Federal Judge Dabney Friedrich Vacates CDC Nationwide Eviction Moratorium

Brian Weinstock

By Brian Weinstock

eviction moratoriumOn May 5, 2021, Federal District Court Judge Dabney Friedrich in Alabama Association of Realtors, et al.  v. United States Department of Health and Human Services, et al., determined the Federal Public Health Service Act, which governs the federal government’s response to infectious diseases such as COVID-19, does not provide legal authority for the Centers for Disease Control (CDC) to impose a nationwide eviction moratorium. Originally set to lapse on December 31, 2020, the eviction moratorium is set to lapse on June 30, 2021. Judge Friedrich reasoned the Public Health Service Act unambiguously forecloses the nationwide eviction moratorium and issued an Order advising that the current CDC nationwide eviction moratorium issued is vacated.

The nationwide eviction moratorium was initially put in place in September 2020 under the Trump Administration and has been extended three times. Judge Friedrich indicated there was “no doubt” Congress intended to empower the CDC to combat COVID-19 through different measures, such as quarantines, but not a moratorium on landlord evictions.  Other federal courts have been divided over the CDC landlord eviction moratorium, with some also finding the CDC exceeded its authority, though none formally blocked its enforcement. The March 25, 2021 blog post “CDC Eviction Moratorium Declared Unconstitutional by Texas Court” discussed other recent rulings in Ohio and Texas:

In the 2020 case KBW Investment Properties v. Azar, the Southern District of Ohio noted HHS and the CDC admitted the CDC Order does not prevent a landlord from seeking judicial review of a tenant’s right to remain on the landlord’s property, provided that no actual eviction occurs while the CDC Order remains in effect and applies to the tenant(s). This includes a landlord’s right to seek an evidentiary hearing to challenge the veracity of the tenant’s CDC Declaration and what efforts, if any, were taken by the tenant to obtain governmental rent assistance.

In the February 2021 case Terkel v. CDC, the plaintiffs—owners and managers of residential properties located in Texas—argued the federal government does not have the authority under Article I to order property owners to not evict specified tenants, and that the decision as to whether an eviction moratorium should be enacted resides with the given state. The CDC countered that Article I afforded it the power to enact a nationwide moratorium, and argued, among other things, that “evictions covered by the CDC order may be rationally viewed as substantially affecting interstate commerce because 15% of changes in residence each year are between States.” However, the Texas Court disagreed, stating that the CDC’s “statistic does not readily bear on the effects of the eviction moratorium” at issue, and that moreover, “[i]f statistics like that were enough, Congress could also justify national marriage and divorce laws, as similar incidental effects on interstate commerce exist in that field.” The Texas Court determined that the CDC’s eviction moratorium exceeds Congress’ powers under the Commerce Clause and the Necessary and Proper Clause. The Texas Court asserted “The federal government cannot say that it has ever before invoked its power over interstate commerce to impose a residential eviction moratorium.” The Texas Court also noted “It [federal government] did not do so during the deadly Spanish Flu pandemic. . . .Nor did it invoke such a power during the exigencies of the Great Depression. The federal government has not claimed such a power at any point during our Nation’s history until last year.”

After the Texas Court ruling, the Department of Justice (DOJ) issued a statement on February 27 announcing its decision to appeal the Texas Court’s decision, citing the Court’s Order “does not extend beyond the particular plaintiffs in that case, and it does not prohibit the application of the CDC’s eviction moratorium to other parties. For other landlords who rent to covered persons, the CDC’s eviction moratorium remains in effect.”

Under the U.S. Constitution, federal law is deemed “the supreme law of the land.” Under Article VI, section 2 of the U.S. Constitution, the Constitution and federal law both “preempt” state or local laws that conflict with federal law. Federal statutes may include specific preemptive language. However, other requirements established by the U.S. Supreme Court in Altria Group v. Good also determine preemption, whether express or implied, and that “state laws that conflict with federal law are without effect.” Express preemption occurs when a federal statute includes language “expressly” declaring preemption. Implied preemption occurs when there is no specific language regarding preemption in the statue and state and federal law directly conflict or a state is seeking to regulate an area under federal control.

In Altria, intent of the law by Congress must be determined during analysis of preemption. The Supreme Court found that when intent cannot be determined or there is any ambiguity, the courts should evaluate the state law in light of Congressional intent. A court could still find in favor of  a federal statute without a preemptive clause even if there is no specific language regarding preemption in the statute, when state and federal law are in direct conflict, or a state is seeking to regulate an area under federal control.

Since Judge Friedrich’s decision, the DOJ has not made a comment as to whether they will appeal the Order but I would expect them to appeal the Order.  Judge Friedrich clearly vacated the CDC’s nationwide eviction moratorium.  Since the nationwide CDC eviction moratorium has been vacated, landlords should proceed with filing eviction cases and, at the very least, request an evidentiary hearing to contest whether a tenant who claims to be a Qualified Tenant under the CDC eviction moratorium has met all the criteria in the CDC Declaration to obtain status as a covered person.

For additional COVID-19 related information, go to our Coronavirus/COVID-19 Resource Center.

Posted by Attorney Brian S. Weinstock. Weinstock concentrates on real estate and corporate transactional law, workers’ compensation, insurance defense, and other civil and commercial litigation. For businesses, he provides financial and legal analysis as well as operational strategies and ideas to manage risk.

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