Late last week a federal district court judge for the District of Columbia held that the nationwide eviction moratorium issued by the Centers for Disease Control and Prevention (CDC) went beyond the agency’s statutory authority and vacated it nationwide. This decision effectively expanded a similar decision by a Texas federal court last month that found the CDC’s moratorium was an improper use of federal power but limited its decision to the litigants to that case and declined to vacate the CDC order.
The CDC eviction moratorium (the Order) was designed to halt certain cases of eviction for low-income tenants and was the most significant nationwide tenant protection for nonpayment of rent due to the COVID-19 pandemic. While the federal government has said it will appeal this week’s decision and has sought to stay its effect, it is a significant blow to the federal government’s efforts to halt evictions due to the COVID-19 pandemic. This decision may now open an avenue for landlords to begin evicting nonpaying tenants that had been halted by the eviction moratorium since mid-2020.
First announced in September 2020, the CDC’s eviction moratorium followed the expiration of the CARES Act’s 120-day, limited eviction moratorium for federally funded rental properties. The CDC’s Order went beyond the CARES Act’s limitations, and required a halt to evictions for all rental properties for nonpayment of rent due to the COVID-19 pandemic, where the tenant would face homelessness or be forced to move into unsafe communal settings, subject to certain income limits for the tenants. This eviction moratorium was renewed multiple times by both the Trump and Biden administrations; the most recent extension was set to expire June 30 but appeared likely to be extended again.
The Order has faced several legal challenges, and in February was held unconstitutional by another federal court in Texas in Terkel v. Centers for Disease Control and Prevention. In that case, though, the court had declined to apply the holding beyond the immediate parties, .
As in the Texas case, the plaintiffs in the D.C. district court case, three rental property management companies, the Alabama Association of Realtors and the Georgia Association of Realtors, alleged a litany of claims, including that the order exceeded the CDC’s statutory authority, violated the Administrative Procedure Act, violated the Regulatory Flexibility Act, was an unconstitutional delegation of legislative powers, and amounted to a Fifth Amendment violation under the Takings Clause of the United States Constitution.
In granting summary judgment for the plaintiffs, the court examined the Public Health Service Act’s textual delegation of authority to the Secretary of Health and Human Services (HHS), identifying that the HHS and subsequently the CDC, an agency of HHS, have certain statutory powers to prevent the spread of disease. The court then applied a two-step “Chevron deference” analysis to determine whether the CDC eviction moratorium overstepped this granted authority. Firstly, the court looked at whether Congress had addressed the precise issue at hand when delegating authority, and secondly, if it has not, whether the agency interpretation of its authority is permissible under the law.
Under this framework, the court first found that Congress had not spoken directly to the issue at hand. Turning to the second step, whether the agency’s interpretation was the permissible, the court held that while the Public Health Service Act did give the Secretary broad authority, this “authority is not limitless” under the Act. Instead, the court held that the delegated authority “prescribed clear means by which the Secretary could achieve that purpose,” which, in the court’s view, do not include the promulgation of such a nationwide eviction moratorium.
Finding that the CDC had gone beyond its statutory authority granted under the Public Health Service Act, the court held that “the plain language of the Public Health Service Act […] unambiguously forecloses the nationwide eviction moratorium” and vacated it nationwide. The government had asked the judge to limit the holding to plaintiffs before the court, but the court declined to do so, finding that “vacatur is the appropriate remedy” and that “the CDC Order must be set aside.”
Immediately following the issuance of the opinion, the Department of Justice (DOJ) announced that it intends to appeal this decision and will seek a stay of the ruling pending the appeal. In the request for stay, the DOJ emphasized, “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.” Judge Friedrich has put the effect of her decision on hold until May 12 to allow the appeals process to commence.
While this ruling does not impact the state and local protections that remain in effect in many jurisdictions, the largest nationwide barrier to evictions has now initially been found to be unconstitutional. And, with an estimate of 1 in 5 residential tenants falling behind on rent payment, nonpayment of rent and housing insecurity continue to be a concern. Neither court examining the CDC eviction moratorium, nor the CDC, have yet addressed the implications of the federal COVID-19 vaccination program on residential eviction law or policy.