On April 14, 2021, U.S. District Judge Joanna Seybert dismissed a lawsuit filed by a group of five landlords against Attorney General Letitia James ("AG James") in the Eastern District of New York (Chrysafis, et al. v. James, Case No. 2:21-cv-00998-JS-ARL). As we highlighted in our March 4, 2021 alert, the suit challenged Part A of New York's COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (the "Act") on constitutional free speech and due process grounds. While the legislation also halts residential foreclosure proceedings and tax lien sales, the plaintiffs had hoped to enjoin enforcement of the Act's moratorium on residential evictions for tenants facing pandemic-related hardship until August 31, 2021. In particular, Part A of the Act automatically stays eviction proceedings against tenants who submit a hardship declaration form that certifies, under penalty of perjury, their qualifications for protection under the Act.
Yet, Judge Seybert ruled against the landlords without reaching the merits of their claims and granted AG James' motion to dismiss for lack of subject matter jurisdiction. Specifically, the Office of the Attorney General (OAG) argued that the plaintiffs' suit was barred by the Eleventh Amendment and its guarantee of sovereign immunity, which prohibits suits by private citizens against a nonconsenting U.S. state (or against an agency or officer acting on behalf of such state) in federal court. In defense, landlords' counsel relied on Ex Parte Young, 209 U.S. 123 (1908), a case in which the Supreme Court first recognized an exception to the Eleventh Amendment for private lawsuits based on alleged violations of the U.S. Constitution by state officials: ". . . through the doctrine of Ex Parte Young, a party may bring 'a suit for injunctive [or declaratory] relief challenging the constitutionality of a state official's actions in enforcing state law.'" Riley v. Cuomo, Case No. 2:17-cv-01631, 2018 WL 1832929, at *4 (E.D.N.Y. Apr. 16, 2018). Accordingly, the plaintiffs maintained that the Eleventh Amendment did not bar their complaint, since it alleged ongoing violations of the First Amendment and Fourteenth Amendment by AG James, a state official.
Judge Seybert was not persuaded, however, finding instead that AG James was not a proper party to the landlords' action in the first instance. According to the court, the landlords had failed to establish a key requisite of the Ex Parte Young exception: an adequate nexus between the alleged constitutional infraction-in this case, a duty to enforce or enforcement of Part A of the Act-and the state official made a party to the lawsuit. Ex Parte Young, 209 U.S. at 157. To establish that nexus, plaintiffs' counsel pointed to guidelines the OAG issued to local law enforcement regarding the Act's provisions and unlawful evictions, all to suggest that AG James has a duty to and did so enforce the Act. But in the court's view, those guidelines were "general guidance to local officials about their responsibilities in administering a state statute" (emphasis added), and did not imply a duty on behalf of, or constitute enforcement by, a state official, as the limited Ex Parte Young exception requires. Judge Seybert's opinion also makes clear that the landlords might have avoided application of the Eleventh Amendment if the OAG had had a "particular duty to enforce" the Act (whether by the Act's plain terms or based on the general laws of New York), or if AG James herself had threatened to enforce its allegedly unconstitutional provisions to the plaintiffs' detriment. Absent such facts, the court found no alternate basis on which to predicate the denial of sovereign immunity the landlords sought.
UPDATE (May 7, 2021): On May 4, 2021, New York Governor Andrew Cuomo signed Senate Bill 6362-A/Assembly Bill 7175-A, effectively extending the Act until August 31, 2021. Just two days later, the Chrysafis plaintiffs joined in a new federal complaint with the Rent Stabilization Association of New York City and asserted against Chief Administrative Judge Lawrence Marks the same constitutional claims they initially had raised against AG James. At least on its face, the new complaint (No. 21-cv-2516) seems to avoid the improper defendant issue that led Judge Seybert to rule against the plaintiffs. As the OAG asserted in its motion to dismiss, the court system—and not AG James—is charged with administering the Act.
The new complaint, also filed in the Eastern District of New York, sets forth a demand for both preliminary and permanent injunctive relief to prevent further enforcement of the Act.
We will continue to monitor this case and provide updates. Please do not hesitate to contact the Morrison & Foerster team if you have any questions.
Michael Machado, a Law Clerk in our New York office, contributed to the writing of this alert.
Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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