CDC eviction ban reaches Supreme Court; Atlanta case a vital piece in Covid debate
By David Pendered
A lawyer handling the federal appeal in Atlanta of the CDC eviction moratorium on tenants during the Covid pandemic said Friday he holds little hope the Supreme Court will use a case it received Thursday to stop the moratorium.
“I doubt it will be successful, I hope it is, but if not I’m looking for our case in the 11th Circuit Court of Appeals [in Atlanta] to negate this,” Caleb Kruckenberg, litigation counsel for the New Civil Liberties Alliance, said of the CDC’s moratorium.
“It’s an important issue and we need a decision soon,” Kruckenberg said of the moratorium that’s to expire June 30 – unless it is extended again.
The Supreme Court has not been asked to rule on the merits of the CDC moratorium, Kruckenberg said. The issue is whether to uphold a District Court judge’s decision to defer her own order halting the moratorium in order to provide the Biden administration time prepare its appeal of her ruling. Some media reports have suggested the Supreme Court now has the case to determine the scope of the CDC’s authority in this type of situation.
One question is the extent of the CDC’s authority to issue a national moratorium on evictions in the face of a public health crisis. The CDC determined it has such authority, to prevent those evicted from crossing state lines and potentially spreading the virus. Several judges have ruled the CDC does not have such authority.
Meanwhile, the appellate court in Atlanta heard arguments May 14 on the case that Kruckenberg is helping to handle. The court did not indicate when it may issue a ruling. Though the current CDC moratorium expires June 30, Kruckenberg and others have noted the clock will not expire on the central question of the CDC’s authority to issue this type of national mandate.
In the meantime, landlords nationwide are losing from $13.8 billion to $19 billion a month in unpaid rental payments that are covered by the moratorium, according to the paper submitted Thursday to the Supreme Court. The Georgia Association of Realtors is a party in the case being led by the Alabama Association of Realtors that states:
- “The CDC shifted the pandemic’s financial burdens from the nation’s 30 to 40 million renters to its 10 to 11 million landlords – most of whom, like applicants, are individuals and small businesses – resulting in over $13 billion in unpaid rent per month….
- “Landlords collectively continue to lose between $13.8 [billion] and $19 billion each month in unpaid rent due to the eviction moratorium, and the cumulative impact of the CDC’s order over the course of a year will be close to $200 billion. And many of the millions of landlords affected by the moratorium are small business owners, some of whom have not collected rent from some tenants in over a year.”
The legal battle over the CDC’s moratorium has been waged in at least six federal courts around the country. Four have halted the moratorium and two upheld it – including a ruling in U.S. District Court in Atlanta, which is the case Kruckenberg has appealed.
The case submitted Thursday to the Supreme Court involves a ruling against the CDC’s moratorium. The wrinkle is that U.S. District Court Judge Dabney Friedrich, in Washington, who struck down the moratorium on May 5, issued another order, on May 14, that said her May 5 ruling will not take effect while the Biden administration prepares an appeal of the initial ruling.
The May 14 ruling was appealed. The appellate court upheld the May 14 ruling in an opinion released Wednesday. On Thursday, the request was submitted to the Supreme Court.
The U.S. Court of Appeals for the District of Columbia Circuit included this observation in its ruling on the moratorium issued by the CDC under the authority of the Secretary of Health and Human Services:
- “To be sure, HHS has not previously imposed a rental-eviction moratorium under Section 264. But no public health crisis even approaching the scale and gravity of this one has occurred since the Public Health Service Act was passed in 1944….
- “HHS has demonstrated ‘that lifting the national moratorium will ‘exacerbate the significant public health risks identified by [the] CDC’ because, even with increased vaccinations, COVID-19 continues to spread and infect persons, and new variants are emerging.”