By: James McNally and Steven M. Williams
Relief from the CDC Moratorium may be on its way for landlords and property owners. On May 5, 2021, Judge Dabney Friedrich of the DC District Court set aside the Centers for Disease Control and Prevention (CDC) moratorium that is currently in place until June 30, 2021. Unlike prior federal court rulings that have deemed the national eviction moratorium set forth in the CDC order to be unconstitutional or beyond the scope of the underlying congressional legislation, Judge Friedrich refused to limit her ruling to the plaintiffs standing before the court. Instead, she concluded that the CDC order must be set aside entirely on a nationwide basis.
The case (Alabama Association of Realtors, et al. v. United States Department of Human Health Services, et al.), was filed in November 2020 by landlords, their related property management companies, and two trade associations that alleged that they suffered damages related to the CDC order when tenants who stopped paying rent invoked the protections of the CDC moratorium. The plaintiffs alleged, among other things, that the eviction moratorium is unconstitutional and exceeds the statutory authority of the Public Health Services Act.
Judge Friedrich analyzed the Public Health Services Act, which grants the Secretary of HHS and the CDC (with approval of the Secretary) broad authority to make and enforce regulations necessary to prevent the spread of disease. However, the judge interpreted the relevant statutory language as limited to specific sources of infection—“animals and articles,” and concluded that the Act did not provide the Secretary with the broad authority to issue a nationwide eviction moratorium. Unlike prior rulings in other jurisdictions, Judge Friedrich set aside the nationwide eviction moratorium.
Immediately after the ruling, the Department of Justice filed an appeal and an emergency motion for a stay of the ruling and its impact to avoid evictions pending appeal. It is unclear how the ruling will impact more expansive local moratoria that have been enacted and implemented throughout the country. However, this decision may provide some measure of solace to landlords who have felt the financial brunt of non-paying tenants throughout the pandemic and may provide further indication that the era of eviction moratoria may be coming to an end.
How Judge Friedrich’s decision will impact landlords in the short term is unknown. State courts will likely wait to see whether the appellate court grants a stay of Judge Friedrich’s decision. If it does, nothing will likely change. If a stay is not granted, state courts will need to determine whether they will continue to honor the CDC moratorium pending the appeal.
We will continue to monitor the federal government’s actions regarding the CDC eviction moratorium and provide updated information when available. Please do not hesitate to contact us for more information about this decision and its impact on your business or any particular matter.
Steve Williams offers a full range of legal services to landlords, property managers, and other housing providers. He can be reached at firstname.lastname@example.org and 717.480.5302.
James McNally is a partner at Cohen Seglias and can be reached at email@example.com and 412.227.5947.