Washington Housing Providers Appeal Dismissal of COVID Eviction Moratorium Class Action to the Ninth

Despite district court ruling against landlords on binding precedent, Davis Wright Tremaine files immediate appeal, vowing to challenge Ninth Circuit precedent and pursue the case to the U.S. Supreme Court if necessary

Seattle, WA - On August 5, U.S. District Judge Barbara J. Rothstein dismissed the class action lawsuit brought by Washington State housing providers over losses suffered during the COVID-19 eviction moratorium. Promptly, attorneys at Davis Wright Tremaine LLP (DWT) filed a Notice of Appeal to the United States Court of Appeals for the Ninth Circuit. DWT, RHAWA and the plaintiff class are committed to challenging the existing precedent and, if necessary, taking this case all the way to the U.S. Supreme Court.

The lawsuit was originally filed in December 2025 in Thurston County Superior Court on behalf of a class of small housing providers who were prohibited from evicting nonpaying tenants for nearly two years during the pandemic. The defendants — which include Washington State, Governor Bob Ferguson, and eight local governments including Seattle, King County, Burien, Kenmore, Kirkland, Olympia, Everett, and Spokane — removed the case to federal court and moved to have it dismissed.

During the moratorium period, housing providers were required to continue meeting all of their obligations — paying mortgages, utilities, insurance, and maintenance costs — while being legally prohibited from removing nonpaying tenants or re-renting their units to paying residents. Nonpaying tenants could remain on the property even after their lease agreements had terminated, and housing providers had no contractual remedy available to them. The result was years of lost income, deferred maintenance, and financial hardship for both the plaintiff class and many other housing providers across Washington State.

In dismissing the case, Judge Rothstein declined to rule on the defendants’ statute of limitations arguments, instead ruling directly to the merits. The order’s key language states: “Because both the Ninth Circuit and the Washington State Court have ruled that landlord-tenant regulations are not physical takings, the Court is compelled to dismiss Plaintiffs’ claims on the merits.” The court cited GHP Management Corp. v. City of Los Angeles, a 2024 Ninth Circuit decision, and Gonzales v. Inslee, the Washington State Supreme Court’s narrow 5-4 ruling from September 2023.

The plaintiffs maintain that by preventing housing providers from excluding nonpaying former tenants from their property, the government appropriated one of the most fundamental rights of property ownership — the right to exclude — without paying for it. Under established constitutional law, while the government may exercise that power, it must compensate those whose property rights it takes. The government did not require grocers to give out free groceries, or gas stations to provide free fuel, to support public welfare during the emergency. Housing providers alone were compelled to carry the financial burden of a government policy decision.

DWT has acknowledged from the outset that the district court was bound by Ninth Circuit precedent, and that the appeal is where the real battle begins. The firm may seek en banc review before the Ninth Circuit, with the ultimate goal of bringing this constitutional question before the U.S. Supreme Court. Central to that strategy is a clear and recognized circuit split: the Eighth Circuit and the Federal Circuit have both applied recent Supreme Court precedent to find that similar eviction moratoria did constitute compensable physical takings — directly at odds with the Ninth and Second Circuits. “Ultimately there is a split in the circuits,” said John DiLorenzo Jr. of Davis Wright Tremaine, lead counsel for the plaintiffs. “The Ninth and the Second say that these types of eviction moratoriums are not per se takings. The Eighth and the Federal Circuits say they are.” DiLorenzo called the case “a very clean presentation of this particular issue” and confirmed that RHAWA and DWT are prepared to pursue it as far as the law allows.

For media inquiries contact:
Sean Flynn, Executive Director
Rental Housing Association of Washington
president@RHAwa.org
(206) 905-0615

^{About Rental Housing Association of Washington (RHAWA): With more than 6,000 members, RHAWA provides resources and advocacy to small to mid-size rental housing providers. Our goal is to support members and the community in building a healthy housing economy for all. RHAWA is a not-for-profit organization and provides its members with a full range of products and services including tenant screening, leasing forms, and education.}

^{About Davis Wright Tremaine: Davis Wright Tremaine LLP is a prominent American law firm founded in 1944 and headquartered in Seattle, Washington, with more than 600 lawyers across multiple U.S. offices, offering a wide range of business, litigation, and industry-focused legal services.}