CDC eviction moratorium vacated in D.C. as Atlanta case due for hearing May 14

By David Pendered

The week before a federal appellate court in Atlanta is to consider a challenge to the CDC’s moratorium on evictions during the coronavirus epidemic, a federal judge in Washington on Wednesday vacated the moratorium.

The ruling is a setback for advocates of the eviction moratorium issued Sept. 4, 2020 by the Atlanta-based Centers for Disease Control and Prevention. The moratorium has been extended three times and is due to expire June 30.

The ruling issued Wednesday has force only in the jurisdiction of the U.S. District Court for the District of Columbia. However, it does join a number of rulings in other courts that halted the moratorium in their jurisdictions, including a March 12 ruling that added western Tennessee to portions of Ohio and Texas as areas where judges halted the ban.

Wednesday’s ruling was heralded by the lead attorney for the case pending in Atlanta. Caleb Kruckenberg, litigation counsel for the New Civil Liberties Alliance, issued this statement:

• “Today’s decision is just the latest in a line of lower courts opinions throwing out CDC’s brazen power grab as being well outside of the agency’s authority. Unfortunately, the eviction moratorium is still on the books in a number of jurisdictions.
• “Having now agreed to hear the case on an expedited basis, the Eleventh Circuit [in Atlanta] is poised to be the first federal appeals court to strike down the moratorium and protect housing providers across the country who have been forced to provide unlimited free housing to their tenants.”

The Justice Department issued a statement saying it “respectfully disagrees” with the ruling and has filed an appeal, according to a statement released Wednesday by Brian M. Boynton, acting assistant attorney general for the department’s Civil Division. Boynton’s full statement observes:

• “The CDC’s eviction moratorium — which Congress extended last December and the CDC later extended through June 30, 2021 — protects many renters who cannot make their monthly payments due to job loss or health care expenses. Scientific evidence shows that evictions exacerbate the spread of COVID-19, which has already killed more than half a million Americans, and the harm to the public that would result from unchecked evictions cannot be undone.
• “The Department of Justice respectfully disagrees with today’s decision of the district court in Alabama Association of Realtors v. HHS concluding that the moratorium exceeds CDC’s statutory authority to protect public health. In the department’s view, that decision conflicts with the text of the statute, Congress’s ratification of the moratorium, and the rulings of other courts.
• “The department has already filed a notice of appeal of the decision and intends to seek an emergency stay of the order pending appeal.”

The lawsuits challenging the CDC’s moratorium have been brought by smaller landlords and organizations that contend the CDC does not have the authority to prevent landlords from evicting tenants who cannot pay due to hardships and sickness related to the coronavirus pandemic.

The ruling Wednesday noted that at least six rulings have been issued in similar lawsuits. Four halted the moratorium and two upheld it – including one ruling in U.S. District Court in Atlanta.

The Atlanta case is scheduled for oral arguments on May 14 in the U.S. Court of Appeals.

On Wednesday, the lead lawyer for the plaintiffs in the Atlanta case notified the court clerk of the ruling by the D.C. judge. The letter quoted from the ruling by the D.C. judge and cited the law on which the CDC has been defending the moratorium, the Public Health Service Act, passed by Congress in 1944. The law was intended to halt the spread of communicable diseases.

U.S. District Judge Dabney Friedrich, of the D.C. court, joined other judges in determining that the CDC exceeded its authority in issuing its order, “Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID-19.” The CDC issued the order after then President Trump issued an executive order instructing the CDC to evaluate such a moratorium.

Friedrich’s ruling cites the Public Health Service Act:

• “The question for the Court is a narrow one: Does the Public Health Service Act grant the CDC the legal authority to impose a nationwide eviction moratorium? It does not.
• “Because the plain language of the Public Health Service Act … unambiguously forecloses the nationwide eviction moratorium, the Court must set aside the CDC Order….”

Kruckenberg’s letter to the court clerk in Atlanta cited this language from the ruling:

• “Thus, while ‘the Public Health Service Act authorizes the Department to combat the spread of disease through a range of measures,’ ‘these measures plainly do not encompass the nationwide eviction moratorium set forth in the CDC Order.’”