by Sara Tussey, Esq.
Rosenberg & Associates, LLC
USFN Member (DC, MD, VA)

The COVID-19 pandemic caused a widespread economic challenge leading to millions of Americans being unable to pay rent. While the federal government wanted to avoid mass homelessness during a pandemic, it was not clear how to accomplish the task, as evictions and other enforcement of property rights are generally areas controlled by the individual states. 

Congress included a federal eviction moratorium in the CARES Act, which applied only to federally related properties. There is little argument that Congress can restrict evictions on federally related properties as part of the requirements imposed on landlords who received federally backed funds. However, there was a push for something that could halt all residential evictions. This push led to the September 4, 2020, issuance of the “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19” Order (the “CDC Order”).

The CDC Order prohibited a landlord from evicting any qualified person for nonpayment of rent if the tenant filed the required CDC declaration. It differed from the earlier CARES Act moratorium in two important ways. First, it applied to all residential evictions in the United States, not just federally backed programs or loans. Second, it included criminal penalties, which carried individual fines of up to $250,000 or one year in prison. The immediate question raised by numerous plaintiffs was whether the CDC had authority to issue such a broad order.

There have been six major federal suits questioning the validity and/or constitutionality of the CDC Order since its issuance. Five of the suits made the same argument, that the CDC acted outside of its grant of authority in issuing the CDC Order. This argument focuses on the statute the CDC relied on to issue the order. Plaintiffs argue that the statute specifically limits the CDC’s authority to implement regulations involving inspection, fumigation, disinfection, sanitation, pest extermination and destruction of animals or articles believed to be sources of infection. Plaintiffs further argue that the broader reading of this statute to include the CDC limiting evictions, was over-reaching and would assume nearly limitless authority for the CDC, which was clearly not Congress’s intent.

The District Courts for the Northern District of Georgia and the Western District of Louisiana disagreed with this argument. They both determined that the CDC Order was necessary to control the COVID-19 pandemic and denied preliminary injunction requests. See Brown v. Azar, 497 F. Supp. 3d 1270 (N.D. Ga, 2020), Chambless Enters., LLC, v. Redfield, 2020 U.S. Dist. LEXIS 241269 (W.D. La., 2020).

However, the Northern District of Ohio and Western District of Tennessee agreed with Plaintiffs. In Skyworks, Ltd. V. CDC, 2021 U.S. Dist. LEXIS 44633 (N.D. Ohio, 2021), the Northern District of Ohio reasoned that the strict limitation on the CDC’s authority did not apply to evictions because it was not an animal or article. The Ohio court noted that the CDC moratorium was allowing some evictions to proceed, specifically where there was criminal conduct, damage to property, or other reasons unrelated to nonpayment of rent. The court could not see how those evictions were less likely to spread COVID-19 than those for nonpayment of rent.

Using similar reasoning, the Western District of Tennessee granted summary judgment to the plaintiffs in Tiger Lily, LLC v. HUD, 2021 U.S. Dist. LEXIS 59100 (W.D. Tenn. 2021). When appealed to the Sixth Circuit, the appellate court denied the government’s motion to stay because it found the government was unlikely to succeed on the merits. Tiger Lily, LLC v. HUD, 992 F.3d 518 (6^th Cir. 2021).

Finally, the D.C. Circuit weighed in with its opinion in Alabama Association of Realtors v. HHS, 2021 U.S. Dist. LEXIS 85568 (D.D.C. 2021). The reasoning closely followed Skyworks and Tiger Lily and agreed the CDC had overstepped its authority in issuing the order. But the D.C. District Court went a step further than the previous courts with their remedy and issued a vacatur order, which would vacate the CDC Order in its entirety, not just in the district where the case was pending. The government immediately appealed and requested an emergency stay, which the District Court granted. The decision to stay the order was appealed all the way to the Supreme Court, which declined to remove the stay.

Meanwhile, in an outlier case, the Eastern District of Texas considered one single issue: whether Congress has the authority to invoke a nationwide eviction moratorium. In Terkel v. CDC, 2021 U.S. Dist. LEXIS 35570 (E.D. Tx, 2021), the government argued it had such power under the Commerce Clause, however, the court agreed with the Plaintiffs that Congress did not have such broad authority. The court noted that the CDC Order made it a crime for a landlord to evict a covered tenant. Further, they noted, if this power was allowed, the federal government would be able to suspend all evictions long past the end of the pandemic for any reason. The court determined these areas were clearly related to property rights, an area traditionally regulated by the states. Therefore, the court found there is no Congressional authority to impose a nationwide ban on evictions, so no such authority could be granted to the CDC.

While all six suits continue to move through the federal court system, the expiration of the CDC Order at the end of July will make these cases moot. However, they will remain as meaningful contributions to the case law regarding what steps the federal government can take against parties seeking to enforce their property rights during a large-scale economic crisis.

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Summer 2021 USFN Report