CDC eviction moratorium vacated by federal judge, appealed by DOJ

Evictions have been banned for the past year because of the COVID-19 pandemic. That changed in a hurry. And just as quickly changed again.

On May 5, Federal Judge Dabney L. Friedrich vacated the eviction ban established by the Centers for Disease Control and Prevention (CDC).

This comes on the heels of a lengthy legal battle between the Alabama Association of REALTORS® and the U.S. Department of Health and Human Services.

However, the Justice Department is appealing the decision on behalf of the CDC and Friedrich’s ruling has been stayed pending the high-stakes appeal.

The ban was originally slated to expire June 30, but the CDC has extended the ban several times over the past year, meaning the June 30 date could have potentially moved even further into the future.

The Alabama Association of REALTORS® were joined by the Georgia Association of REALTORS®, and other plaintiffs, in filing a lawsuit after the CDC extended the moratorium in November 2020. That lawsuit came when the CDC expanded the reach of its ban to include properties outside of those that were receiving federal assistance.

The REALTORS® argued that more and more renters have been abusing these protections and have simply stopped paying rent.

The main argument though, and likely the most important thing that led to Judge Friedrich’s decision, was that the federal government went too far by extending the moratorium to include properties that were outside the purview of the federal government.

“It is the role of the political branches, and not the courts, to assess the merits of policy measures designed to combat the spread of disease, even during a global pandemic,” Friedrich wrote in the memorandum opinion, according to Inman.  “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, 42 U.S.C. § 264(a), unambiguously forecloses the nationwide eviction moratorium, the Court must set aside the CDC Order, consistent with the Administrative Procedure Act and D.C. Circuit precedent. For the foregoing reasons, the plaintiffs’ motion for expedited summary judgment is granted and the Department’s motion for summary judgment and partial motion to dismiss are denied.”

The CDC extended the moratorium last summer, at Thanksgiving, and then again two days before it was set to expire in March.

“The COVID-19 pandemic has presented a historic threat to the nation’s public health,” CDC director Dr. Rochelle Walensky said in a statement to CNBC. “Keeping people in their homes and out of crowded or congregate settings — like homeless shelters — by preventing evictions is a key step in helping to stop the spread of COVID-19.”

According to a March report issued by the Center on Budget & Policy Priorities, 15% of adult renters in America, or roughly 1.6 million Americans, were behind in their rent.

Moody’s Analytical Report indicated that approximately $57 billion in back rent was owed in the month of January.

Congress tried to eliminate as much of that as possible with $25 billion in rental assistance in the December stimulus package and an additional $27 billion in Biden’s American Rescue Plan that passed in March.

On the local level, existing rental assistance programs are being bolstered and new programs are being launched. According to the National Low Income Housing Coalition, more than 200 of these programs are open and accepting applications.

CNN reported that tenants must meet an income requirement, show they’ve lost income during the pandemic and demonstrate a risk of homelessness in order to qualify for the money.

And while there is a stay in place and evictions aren’t going to start happening next week, whether the appeal overturns Friedrich’s decision or not will be determined by what judges are chosen for the panel.

“The underlying ruling in this case is pretty weak, in my opinion,” Shamus Roller, executive director of the National Housing Law Project told NPR. “Congress in December extended the CDC order. So clearly Congress thinks that the CDC has this authority.

“It’ll be a three judge panel that will review this. It will depend greatly on which three judges get selected.”

The Trump administration put in place several conservative federal judges who, if chosen, might view this moratorium as an example of governmental overreach. This explains why Roller said the judges chosen for this panel will be so important.