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How to Sue the Federal Government (and Live to Tell the Tale)

5 min read

“It’s not likely to pass Constitutional muster”  – President Joe Biden, August 2, 2021

Never in my professional experience has a government defendant so cavalierly offered up a gratuitous admission against interest as did President Biden the day the Centers for Disease Control “independently” announced that it had miraculously discovered authority to reimpose a nationwide eviction moratorium. As the Supreme Court had already ruled that any CDC authority expired on Sept. 1, 2020, the last date for which any federal legislation could be construed to have conferred it, the president might as well have planted a “so sue me” sign in the Rose Garden.

Suing the government is no easy matter. I know, because I did it.

In 1988, I was the volunteer ringleader of a group whose litigation claimed that the Emergency Low Income Housing Preservation Act’s (ELIHPA) “temporary, emergency” moratorium on market conversion of older affordable housing violated the Fifth Amendment’s Takings Clause and the Fourteenth Amendments’ Due Process clause.

Over the next two-and-a-half years, here’s what I learned:

Litigate Only in Pursuit of the Real Objectives: Relief and Recovery
Litigation against the government is a slapstick buzzer under the planted hoof of a schizophrenic behemoth with a thick hide and an immense reservoir of delay and attritive options. You deploy it to annoy the beast enough to lift its weighty hoof and apologize for having stepped on you. Owners who head to court here should do so intending to forestall further illegal extensions, and to recover all economic losses they suffered.

Make the Story What It Should Be
The court of public opinion convenes much faster than the judiciary does, and the Twitterverse convicts on third-hand rumor without so much as a formal indictment. The messaging has to be right from the outset. This means:

  • Be principled. You are not seeking the right to evict for the fun of it, you simply want the rental revenue to which occupancy entitles the owner, and you are suing solely because the government has failed its duty to deliver the money it promised owners when it acted.
  • Agree on the policy ends, challenge the government’s means. The government has promised full relief to owners ($45 billion has been tossed around), but the money has not shown up. That’s the government’s fault, not the owners’, yet owners bear the brunt – and that’s why takings litigation is essential.
  • Frame the issue in numbers and concepts people can understand. The National Equity Atlas has estimated that 6.4 million households are behind on rent, by an average of $3,000 or more per household. That’s $21.3 billion of owners’ operating expenses, real estate taxes and debt service that owners have had to come out of pocket to pay.
  • Be right on the Constitution and the case law. Understand and knowledgeably cite the Fifth Amendment’s Takings Clause: “Nor shall private property be taken for public use, without just compensation,” and the Fourteenth Amendment’s Due Process Clause: “Nor shall any state deprive any person of life, liberty or property, without due process of law.” Not only should you cite them, you should understand their Constitutional and jurisprudence history, including decisions against the government in similar matters.
  • Personify the message with the right faces, people who present well. A faceless plaintiff implies a corporate stooge. Quoting a human landlord whose family is suffering family hardships and loss of the American dream make owners’ damages visible, human-scale and hard to demonize.
  • Be ready for the media spotlight. Back in 1988, I got picketed three days before Christmas. Instead of fleeing out of the parking garage in a tinted-windshield Mercedes, I invited the picketers up to our offices (they declined), then went down and talked with them, while the Boston Globe reporter they’d alerted took notes and scribbled down my remarks. The next day’s story was fair and favorable from our perspective.
  • Be available, and be on the record. Available doesn’t mean ‘instantly,’ and on the record doesn’t mean ‘everything,’ though a prudent person avoids saying anything that can be transmogrified.
  • Position for the endgame: recovery after the moratorium ends. The rental interruption damage has already been done; now opens the campaign to optimize recovery.

In terms of the recovery endgame, the president unwittingly gave owners a second boost, by tacitly conceding this was a political stopgap with a bill of reckoning:

“I can’t guarantee you the court won’t rule that we don’t have that authority but at least we’ll have the ability to, if we have to appeal, to keep this going for a month – at least. I hope longer.” – President Joe Biden, August 4, 2021

In the 1988 litigation I facilitated, the plaintiffs lost all the procedural skirmishes but won the campaign. Under our litigation pressure and its own legislative sunset date, Congress set out to replace ELIPHA with a successor law that delivered monetary compensation to make owners whole relative to their pre-moratorium expectations. And when the committee staffers were putting together an informal working group and looking for someone who could sensibly vocalize the owners’ perspective and participate constructively in designing a balanced outcome, they called upon the fellow who’d been ringleader of the Constitutional litigation – a tall talkative guy from Boston.

David A. Smith is founder and CEO of the Affordable Housing Institute, a Boston-based global nonprofit consultancy that works around the world (60 countries so far) accelerating affordable housing impact via program design, entity development and financial product innovations. Write him at dsmith@affordablehousinginstitute.org.