21-1493-cv
Chrysafis v. Marks



                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                          August Term 2021

        Argued: September 21, 2021                              Decided: September 29, 2021

                                         Docket No. 21-1493

------------------------------------------
PANTELIS CHRYSAFIS, BETTY S. COHEN, BRANDIE LACASSE,
MUDAN SHI, FENG ZHOU,

PLAINTIFFS-APPELLANTS,

                  V.


LAWRENCE K. MARKS, in his official capacity as Chief
Administrative Judge of the Courts of New York State,
ADRIAN H. ANDERSON, in his official capacity as Sheriff
of Dutchess County, New York, JAMES DZURENDA, in his
official capacity as Sheriff of Nassau County, New York,
JOSEPH FUCITO, in his official capacity as Sheriff of New
York City, New York, MARGARET GARNETT, in her official
capacity as Commissioner of New York City Department of
Investigation, CAROLINE TANG-ALEJANDRO, in her official
capacity as Director, Bureau of Marshals, New York City
Department of Investigation,

        DEFENDANTS - APPELLEES. 1
------------------------------------------

Before: NEWMAN, CABRANES, and WESLEY, Circuit Judges.




        1   The Clerk is directed to change the official caption as above.
      Appeal from a judgment and an order denying a preliminary injunction in a

lawsuit challenging Part A of New York’s eviction moratorium statute, the COVID-

19 Emergency Eviction and Foreclosure Prevention Act of 2020 (CEEFPA), 2020 N.Y.

Laws Ch. 381. The Plaintiffs-Appellants also attempt to challenge Subpart A of Part

C of 2021 N.Y. Laws Ch. 417 (S50001), enacted on Sept. 1, 2021 and seek an injunction

to prevent enforcement of S50001 pending appeal.

      Due Process claims dismissed as moot; injunction denied for lack of

jurisdiction; judgment vacated and remanded with leave to replead.



                                Randy M. Mastro, New York, NY (Akiva Shapiro,
                                     Jessica Benvenisty, William J. Moccia, Lauren
                                     Myers, Gibson, Dunn & Crutcher LLP, New
                                     York, NY, on the brief), for Plaintiffs-
                                     Appellants Pantelis Chrysafis, Betty S. Cohen,
                                     Brandie LaCasse, Mudan Shi, Feng Zhou, and
                                     Rent Stabilization Association of N.Y.C., Inc.

                                Steven C. Wu, Deputy Solicitor General, New York,
                                      NY (Letitia James, Attorney General, Barbara
                                      D. Underwood, Solicitor General, Judith N.
                                      Vale, Assistant Deputy Solicitor General,
                                      Linda Fang, Assistant Solicitor General of
                                      Counsel, New York State Office of the
                                      Attorney General, New York, NY, on the
                                      brief), for Defendant-Appellee Lawrence K.
                                      Marks.




                                          2
                               (Edward Josephson, Roland Nimis, Legal Services
                                    NYC, New York, NY, Judith Goldiner, Ellen
                                    Davidson, Amber Marshall, The Legal Aid
                                    Society, New York, NY, for amicus curiae
                                    Housing Court Answers and Make the Road
                                    NY, in support of Defendants-Appellees.)


JON O. NEWMAN, Circuit Judge:

      This appeal concerns a challenge to Part A (“Part A 2020”) of New York’s

residential eviction moratorium statute, the COVID-19 Emergency Eviction and

Foreclosure Prevention Act of 2020 (“CEEFPA”), 2020 N.Y. Laws Ch. 381, and an

attempt to challenge the new residential eviction moratorium, which is Subpart A

of Part C (“Subpart C(A) 2021”) of 2021 N.Y. Laws Ch. 417 (S50001), enacted on Sept.

1, 2021, after several provisions of the old moratorium statute expired on Aug. 31,

2021. Part A 2020, § 13. Plaintiffs-Appellants Pantelis Chrysafis and four other

landlords (“Landlords”) appeal from the June 14, 2021, judgment of the United

States District Court for the Eastern District of New York (Gary R. Brown, District

Judge), dismissing, after a hearing, their complaint against Defendants-Appellees

Lawrence K. Marks, in his official capacity as Chief Administrative Judge of the




                                         3
Courts of New York State and other public officials (“State Officials”). 2 Chrysafis v.

Marks, No. 21-cv-2516 (GRB), 

 (E.D.N.Y. June 11, 2021) (“Chrysafis

Dist. Ct.”). The Landlords also appeal from the District Court’s June 11, 2021, order,

denying their motion for a preliminary injunction.

       The principal issue is whether the Landlords’ due process claims are moot, an

issue that turns primarily on whether the new statute remedies the defect in the

expired provisions of the old statute that the Supreme Court identified when the

Court enjoined enforcement of Part A 2020 of the earlier statute, Chrysafis v. Marks,

No. 21A8, 

 (U.S. Aug. 12, 2021) (“Chrysafis U.S.”). 3

       The pending challenge has two procedural components, as a result of the

parties’ conflicting claims. The Landlords ask us to enjoin enforcement of Subpart

C(A) 2021 on the ground that it does not remedy the defect in Part A 2020 of

CEEFPA, but is merely a continuation of the previous statute, which, they contend,

remains subject to the Supreme Court’s injunction. Second, The State Officials ask

us to dismiss the appeal as moot primarily on the grounds that the challenged


       2  The Rent Stabilization Association of New York City, Inc., was a plaintiff in the District
Court, but was dismissed for lack of standing. See State Officials’ Memorandum of Law in
opposition to Landlords’ Emergency Motion 1 n.1. The dismissal ruling has not been challenged on
this appeal.
        3 The Supreme Court enjoined Part A 2020 of CEEFPA “pending disposition of the appeal

in the United States Court of Appeals for the Second Circuit and disposition of the petition for a
writ of certiorari, if such writ is timely sought.” Chrysafis U.S., 

, before *1.
                                                 4
provisions of the old statute have expired, Subpart C(A) 2021 does remedy the

defect in that statute identified by the Supreme Court, and any challenge to the new

provisions of the new statute must be brought in a new lawsuit in the District Court.

      We conclude that Plaintiffs’ due process claims are moot, that we should

dismiss them, and, as explained below, that we should remand the entire case to

the District Court. With the appeal remanded, we lack jurisdiction to enjoin

enforcement of Subpart C(A) 2021 of the new statute and therefore deny the

motion to enjoin its enforcement. However, clearly in this case the “mootness is

attributable to a change in the legal framework,” Lewis v. Continental Bank Corp.,

, 482, (1990), and Plaintiffs “may wish to amend their complaint so as

to demonstrate that the repealed statute retains some continuing force or to attack

the newly enacted legislation,” Diffenderfer v. Cent. Baptist Church of Miami, Fla.,

Inc., 

, 415, (1972). We therefore vacate the judgment of the District

Court and remand the case to the District Court with leave for the Plaintiffs to

amend their pleadings and assert claims challenging the new statute. See id.;

Continental Bank Corp., 

 Lamar Advertising of Penn, LLC v. Town of

Orchard Park, New York, 

, 379–80 (2d Cir. 2004).




                                           5
                                    Background

      CEEFPA was enacted on Dec. 28, 2020. The Landlords filed their complaint

on May 6, 2021 (all dates hereafter are to 2021). The complaint alleged that Part A

2020 of CEEFPA (1) violated their First Amendment rights by compelling them to

distribute to tenants forms for a declaration of hardship, (2) was unconstitutionally

vague because the categories of hardship were ill-defined, (3) violated their right to

procedural due process because they lacked an opportunity to dispute a hardship

declaration and (4) violated their First Amendment right to petition by prohibiting

the filing of eviction proceedings until Aug. 31. The Plaintiffs-Appellants sought a

preliminary injunction on May 7.

      The District Court held a hearing on the request for an injunction on June 1.

Thereafter the parties essentially accepted the Court’s suggestion that the injunction

request could be combined with the merits, and agreed that the June 1 hearing

record sufficed for a merits decision.

      On June 11, the District Court filed an opinion denying the Landlords’ motion

for a preliminary injunction to prevent enforcement of Part A 2020 and ordering that

judgment enter in favor of the Defendants-Appellants. Chrysafis Dist. Ct. Judgment

was entered on June 14. On the same day, the Landlords sought an injunction



                                          6
pending appeal, which the District Court denied on June 16. After filing a notice of

appeal, the Landlords, on June 18, sought from this Court an order expediting the

appeal and an injunction pending appeal to prevent enforcement of the COVID-19

Emergency Eviction Moratorium Act of 2020. On June 26, this Court denied the

motion for an injunction pending appeal.

      On August 12, the Supreme Court enjoined enforcement of Part A 2020.

Chrysafis U.S.

       Although the motion to expedite the appeal in this Court was not formally

ruled on, counsel were notified on August 30 that the appeal would be heard on

September 21.

      On August 31, Part A 2020 expired pursuant to the terms of CEEFPA § 13. On

September 1, the New York legislature enacted a new eviction moratorium statute,

2021 New York Laws Ch. 417 (S50001). Subpart C(A) 2021 of the new statute

contains some language from the expired portions of Part A 2020 of the old statute

and some new language not contained in the old statute.

      On September 9, the Landlords filed in this Court a motion to enjoin

enforcement of Subpart C(A) 2021. After hearing the appeal on September 21, we




                                         7
reserved decision on both the appeal and the Landlords’ motion to enjoin

enforcement of Subpart C(A) 2021.

                                               Discussion

        We begin our consideration of the two claims before us by focusing on what

the Supreme Court wrote when it issued the injunction pending appeal. The Court

explained its ruling as follows: “If a tenant self-certifies financial hardship, Part A

of CEEFPA generally precludes a landlord from contesting that certification and

denies the landlord a hearing.” Chrysafis U.S., 

, at *1. “This

scheme,” the Court concluded, was not “consistent with the Due Process Clause.”

        The issue that the parties primarily contest on this appeal is whether the new

language in Subpart C(A) 2021 that S50001 added to the moratorium statute,

remedies the due process violation identified by the Supreme Court. 5 Under



        4The Court also noted that it was not enjoining enforcement of the Tenant Safe Harbor Act
(TSHA), which the Landlords had not challenged. Under TSHA, the Court observed, “If the
[housing] court finds the tenant ‘has suffered a financial hardship’ during a statutorily-prescribed
period, then it ‘shall [not] issue a warrant of eviction or judgment of possession.’”
Chrysafis U.S., 

, at *1 (citing TSHA § 2(1)) (second brackets in original). TSHA is
not challenged in the pending appeal.
       5 S50001 also omits from Part A 2020 of CEEFPA provisions for automatic stays, CEEFPA,

Part A, § 2, an obligation for landlords in some circumstances to translate a tenant’s hardship
declaration into the tenant’s primary language, id. § 3, and a prohibition on initiating eviction
proceedings, id. § 4. The State Officers point to these omissions as additional reasons why the
challenge to the old statute is moot.
                                                 8
CEEFPA, Part A 2020, once a tenant filed a “declaration of hardship” indicating an

inability to pay rent, 6 the housing court was prohibited from initiating an eviction

proceeding against the tenant and required to stay any pending eviction

proceedings. Under S50001, after a tenant files a hardship declaration, Subpart C(A)

2021 provides that a landlord may file an affidavit attesting that the landlord

“believes in good faith that the hardship certified in the hardship declaration does

not exist.” Subpart C(A) 2021 § 3(1)(c). Subpart C(A) 2021 also provides that a tenant

must be given a notice stating, in capital letters, the following:

            IF YOUR LANDLORD MOVES TO CHALLENGE YOUR
       HARDSHIP CLAIM, YOU ARE ENTITLED TO A HEARING. IF THE
       COURT RULES YOUR HARDSHIP CLAIM INVALID AFTER THE
       HEARING, THE LAWSUIT MAY PROCEED TOWARD POSSIBLE
       EVICTION, BUT UNLESS AND UNTIL THE COURT ISSUES AN
       EVICTION WARRANT AGAINST YOU, YOU MAY NOT BE
       EVICTED.

Id. § 2. Subpart C(A) 2021 also provides that:

              Notwithstanding any other provision of this act, a stay under
       this act shall be granted or continued unless the court finds the
       respondent's hardship claim invalid. A motion may be made by the
       petitioner, attesting a good faith belief that the respondent has not
       experienced a hardship, with notice to the respondent, and the court
       shall grant a hearing to determine whether to find the respondent's
       hardship claim invalid.


       6 CEEFPA, Part A 2020, § 1(4)(A). The tenant can also claim hardship based on COVID-19
related health risks stemming from eviction. Id. § 1(4)(B).
                                             9
Id. § 10(a). Finally, Subpart C(A) 2021 provides that “[a]fter a hearing, if the

court finds the [tenant’s] hardship claim invalid, the proceedings shall

continue to a determination on the merits.” Id. § 10(c).

       The State Officials contend that a landlord’s opportunity to (a) dispute a

tenant’s hardship declaration, (b) obtain a hearing on whether the hardship claim is

valid, and, (c) if the claim is determined to be invalid, proceed with a hearing on the

merits of eviction proceeding remedy the due process violation identified by the

Supreme Court. 7 The State Officials also point out that Subpart C(A) 2021 omits

from Part A 2020 of the CEEFPA provisions for automatic stays, CEEFPA, Part A,

§ 2, an obligation for landlords in some circumstances to translate a tenant’s

hardship declaration into the tenant’s primary language, id., § 3, and a prohibition

on initiating eviction proceedings, id. § 4. The State Officials point to these omissions

as additional reasons why the challenge to the old statute is moot.

       The Landlords contend the procedures in Subpart C(A) 2021 are deficient for

several reasons. First, they allege that they have an inadequate opportunity to

dispute a hardship claim and thereby obtain a hearing because a tenant is not

required to specify the precise grounds for the claim of hardship. Furthermore, they


       7The State Officials represented at oral argument that landlords will encounter no difficulty
obtaining a hearing to dispute a tenant’s declaration of hardship.
                                                10
contend, landlords can obtain a hearing only by swearing under penalty of perjury

that they have a good faith belief that the hardship claim is invalid, and they lack

an opportunity, prior to a hearing, to elicit information from a tenant to support

their good faith belief.

       The threshold issue for us is whether the appeal is moot. Our Court has

previously stated, ”Constitutional challenges to statutes are routinely found moot

when a statute is amended.” Cuomo v. U.S. Dept. of Transportation, 

, 61 (2d

Cir. 1992). The argument for mootness would seem to be even stronger when the

challenged statute has expired and a new statute, endeavoring to remedy the defect

of the old one, has been enacted.

       Of course, an appeal challenging a statute does not become moot if it is

“replac[ed] with one that differs only in some insignificant respect.” Northeastern

Florida Chapter of Associated General Contractors of America v. City of Jacksonville, 

, 662 (1993). 8 And “a claim will not be found moot if the defendant’s change

in conduct is merely superficial or . . . suffers from similar infirmities as it did at the



       8 The Supreme Court pointed out in Northeastern Florida Chapter that the new ordinance
“disadvantaged [the plaintiffs] in the same fundamental way” as the ordinance it replaced. 

. That is not the situation with respect to Subpart C(A) 2021. With that subpart’s addition of
an opportunity for the Landlords to obtain a hearing to challenge a tenant’s hardship declaration
and other changes made by the subpart, the Landlords are no longer disadvantaged “in the same
fundamental way” as they were under Part A 2020.
                                                11
outset.” American Freedom Defense Initiative v. Metropolitan Transportation Authority,

, 109 (2d Cir. 2016) (internal quotation marks omitted). But the pending

case does not concern statutory provisions replaced by those making insignificant

changes or an administrator’s superficial change in conduct. It concerns a state

legislature’s enactment of a new law, which legislators, aware of the defect

identified by the Supreme Court, see S50001, § 1, ¶ 3, explicitly sought to remedy,

see id. ¶ 5. The attempt to challenge the new provisions of S50001 “present a

substantially different controversy from the one that existed” when the Supreme

Court enjoined enforcement of Part A of CEEFPA. Lamar Advertising of Penn, LLC v.

Town of Orchard Park, 

, 378 (2d Cir. 2004) (internal quotation marks

omitted).

      The Supreme Court encountered a somewhat similar situation in Fusari v.

Steinberg, 

 (1975). While a court challenge to Connecticut’s procedure

for awarding unemployment compensation benefits was pending, the state

legislature amended the procedure to improve it. The Supreme Court, though not

ruling that the new law absolutely remedied the defects that the District Court had

noted concerning the old law, concluded, “Both the statutory and constitutional

questions [raised by the plaintiffs] are significantly affected” by one of the changes



                                          12
in the new law. 

. The Court further said, “We can only speculate how the

new system might operate.” 

. Thus, the mere possibility that the new

law would remedy the defects in the old law was enough for the Court to remand

the case “for reconsideration in light of the intervening changes in the Connecticut

law.” 

. The Court has employed a similar practice in other instances where

an intervening statutory change has mooted certain claims, but left open the

possibility that new and related claims might arise under the new statutory scheme.

See New York State Rifle & Pistol Assn. v. City of New York, 

, 1526 (2020)

(after licensing statute amended, Court vacated appealed decision, remanded, and

“[did] not decide [the plaintiffs’] dispute about the new rule”); Continental Bank

Corp., 

, 482, (vacating and remanding “where the mootness is

attributable to a change in the legal framework governing the case, and where the

plaintiff may have some residual claim under the new framework”); Diffenderfer,

 (after statute repealed, Court vacated appealed judgment and

remanded for plaintiffs to “amend their complaint so as to demonstrate that the

repealed statute retains some continuing force or to attack the newly enacted

legislation”).




                                           13
      In this case, we cannot be certain how the new procedures in Subpart C(A)

2021 will be implemented in practice in the state courts or what administrative steps

the Chief Administrative Judge of those courts might think are necessary, if any, to

mitigate the alleged due process deficiencies in those procedures.

      But we do not think we should undertake to rule on those matters definitively

on this appeal, which is nominally a challenge to the expired provisions of the old

statute but is realistically an attempt to challenge the new statute. State Officials

represented at oral argument that landlords will have access to a prompt and

meaningful process to contest tenants’ hardship declarations before a court, as

required by Subpart C(A) 2021 § 10. A hearing in a District Court proceeding will

provide an opportunity to clarify how the new statute will be implemented, thereby

creating the basis for an informed appellate ruling as to a due process claim in the

event of a subsequent appeal. These considerations, as well as the fundamental fact

that the pending appeal is from a judgment challenging expired provisions of the

old statute, lead us to conclude that the Landlords’ due process claim is moot.

      That conclusion leaves for consideration the Landlords’ First Amendment

(compelled speech and Petition Clause) and void-for-vagueness claims. As to these

claims, we first consider their argument that the Supreme Court’s injunction ruling



                                         14
prohibiting enforcement of CEEFPA, Part A 2020, in effect operates to prohibit

enforcement of Subpart C(A) 2021, including the provisions retained from Part A

2020 of CEEFPA that are challenged on First Amendment and vagueness grounds.

      We disagree. First, the Supreme Court’s ruling was issued before the

enactment of S50001, which contains Subpart C(A) 2021, and could not prohibit

enforcement of a statute not then enacted. What the Landlords are really claiming

is that because, in their view, the provisions of the new law are similar to the expired

provisions of the old law, we should infer from the Supreme Court’s order that the

Court would want us to enjoin enforcement of all provisions of the new law.

      With respect to the old law, the Supreme Court’s order is subject to two

inferences. On the one hand, as the State Officials point out, the Court’s explicit

reference to the due process defect stemming from lack of a hearing to challenge a

tenant’s hardship declaration and the absence of any reference to First Amendment

and vagueness challenges supports an inference that the Court thought that only

the due process claim had a sufficient probability of success to warrant an

injunction. That inference gains some strength from the explicit reference in Justice

Breyer’s dissent to the First Amendment claim, noting “persuasive arguments” that

CEEFPA “requires only the dissemination of purely factual and uncontroversial



                                          15
information in the context of commercial speech and is therefore authorized by our

precedents.” Chrysafis U.S., 

, at *2 (Breyer, J., with whom

Sotomayor and Kagan, JJ, join, dissenting).

       We think the State Officials have the better of the argument on the proper

understanding of the Supreme Court’s ruling. It is not likely that the Court thought

the First Amendment and vagueness claims had sufficient probability of success to

warrant an injunction in the absence of any mention of those claims.9

       The next issue with respect to the Landlords’ First Amendment and

vagueness claims is whether we should adjudicate them on this appeal or defer

consideration until we encounter those claims on a new appeal, if filed, from a

judgment on claims specifically challenging Subpart C(A) 2021. Taking our cue from

the Supreme Court, we also decline to say anything at this point about these claims,

letting the mootness of the due process claim return the entire lawsuit back to the



       9 We note that even though the Landlords’ pending due process claims are moot, the
Supreme Court’s injunction as to CEEFPA, Part A 2020, remains operative because it was ordered
“pending disposition of the appeal in the United States Court of Appeals for the Second Circuit
and disposition of the petition for a writ of certiorari, if such writ is timely sought.” Chrysafis U.S.,

, before *1. However, nothing in the Supreme Court’s injunction or in our ruling
prevents eviction proceedings from being initiated or continued pursuant to the provisions of
Subpart C(A) 2021. To the extent, if any, that a new or continued eviction proceeding encounters
objections arising from language in Part A 2020 of CEEFPA that is retained in Subpart C(A) 2021,
whether those objections are based on the Supreme Court’s injunction or any other ground, those
objections remain for adjudication in the first instance in the Housing Court or in the District Court,
once the precise implementation of Subpart C(A) 2021 has been clarified.
                                                   16
District Court for repleading or such further steps in the District Court and

elsewhere as the Plaintiffs-Appellants may choose to take.

                                         Conclusion

      For all of the reasons set forth above, we dismiss the Plaintiffs’ due process

claims as moot. Pursuant to U.S. v. Munsingwear, 

, 39 (1950), we vacate

the District Court’s order and judgment, and remand to the District Court for further

proceedings, with leave for the parties to amend their pleadings and for

reconsideration in light of the intervening changes in New York law. With our

jurisdiction over the appeal terminated by our remand, we deny the Landlords’

motion to enjoin enforcement of Subpart C(A) 2021 pending appeal for lack of

jurisdiction. The mandate will issue 48 hours after the filing of this opinion. In the

event of a subsequent appeal of a District Court ruling concerning Subpart C(A)

2021, the appeal will be referred to this panel.




                                          17