At least six lawsuits have arisen around the country challenging the CDC’s moratorium in federal court.

At the beginning of the COVID-19 pandemic, the federal government, along with various states, counties and municipalities, enacted legislation and rules regarding residential evictions. On the federal level, Congress initially passed the Coronavirus Aid, Relief and Economic Security Act (CARES Act), which included a 120-day eviction moratorium that applied to all rental properties that received federal assistance.

Within the first week of May alone, the laws on eviction moratoriums have been upended in many different directions, and the current status of these laws is unclear at best.

When the eviction moratorium under the CARES Act expired, the Centers for Disease Control and Prevention (CDC), acting on behalf of the U.S. Department of Health and Human Services (HHS), implemented its own eviction moratorium. The CDC’s moratorium is broader than the CARES Act. First, it applies to all residential rental properties nationwide, not just those receiving federal assistance. Second, it prohibits evictions based upon nonpayment of rent when, among other things, a tenant expects to earn less than $99,000 in income, would be homeless if evicted and is unable to pay full rent due to substantial loss of household income. Notably, the CDC moratorium does not purport to prohibit evictions based on other grounds, such as a tenant holding over after the expiration of a lease.

Prior to the expiration of the original CDC moratorium, Congress extended it by an additional 30 days. The CDC has since extended the moratorium itself twice, and the moratorium is currently set to expire on June 30, 2021. In addition, the Consumer Financial Protection Bureau recently gave the CDC’s moratorium even more teeth, implementing an interim final rule that took effect on May 3, 2021. Under this interim final rule, debt collectors, including attorneys in many instances, must provide written notice of the CDC’s eviction moratorium and may not misrepresent an individual tenant’s ineligibility for protection when the basis for eviction is nonpayment of rent.

At least six lawsuits have arisen around the country challenging the CDC’s moratorium in federal court. On May 5, 2021, the United States District Court for the District of Columbia entered an order in one of the more prominent of these cases striking down the CDC’s moratorium.[1]

Ultimately, the D.C. circuit court found that the CDC had exceeded its statutory authority in imposing the moratorium. The court first looked to whether Congress had spoken on the precise question of the CDC’s authority to impose an eviction moratorium and concluded that it had not. According to the court, although the Public Health Service Act, from which the HHS and CDC derive their authority, does give these agencies broad authority to enact rules and regulations in order to prevent the spread of disease, an eviction moratorium was not the type of regulation that specifically targeted the source of COVID-19 infections.

Some district courts, like the United States District Courts for the Western District of Tennessee[2] and the Northern District of Ohio[3], have reached similar conclusions. The Tennessee case is currently on appeal to the Sixth Circuit.

Other district courts, like the Northern District of Georgia[4] and the Western District of Louisiana[5], have gone the other direction and found (at least at the preliminary injunction stage) that the CDC’s eviction moratorium is valid.

And, in somewhat of an outlier, the United States District Court for the Eastern District of Texas went so far as to conclude that the federal government generally lacks constitutional authority for an eviction moratorium from any agency.[6]

Shortly after the District of Columbia court issued its order, the Justice Department filed an appeal and separately asked the court to administratively stay its order during the appeal. The court did decide to administratively stay its decision for the time being; however, that could change after the court fully considers the plaintiffs’ arguments against a stay, which should be sometime after May 16.

While the D.C. circuit court’s order, along with the orders entered by other federal trial courts, could certainly have an impact on the decision matrix state court judges use to decide eviction matters across the country, these decisions are primarily suggestive rather than controlling. It is unlikely there will be any clarity until the federal appellate courts start weighing in on the issue. The Eleventh Circuit, for example, has a hearing scheduled on a case out of the Northern District of Georgia on May 14. And in any event, if the CDC decides not to renew its moratorium past June 30, 2021, the question may very well be moot by the time the appellate courts can issue any rulings. Further, the D.C. circuit court’s decision does not modify current eviction moratoriums promulgated under local or state laws. Still, it is important to understand that in some instances, landlords have had success arguing that the CDC’s moratorium is invalid, which could very well sway state court judges deciding these issues at the ground level.

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If you have any questions about this Alert, please contact Kenneth B. Franklin, Amelia (Amy) H. Huskins, any of the attorneys in our Trial Practice Group, any of the attorneys in our Real Estate Practice Group or the attorney in the firm with whom you are regularly in contact.

Notes

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