Federal judge throws out CDC nationwide eviction moratorium – then reverses course to give DOJ more time to appeal

A US federal judge has ordered a stay on a ruling that found the CDC overstepped its authority when it imposed a pause on evictions during the Covid-19 pandemic, delaying the decision amid objections from the Justice Department.

While District Judge Dabney L. Friedrich had ruled earlier on Wednesday that health officials had no legal authority to enforce the eviction moratorium, recently extended until mid-summer, she issued a stay in the evening, pointing to a last-minute appeal launched by the DOJ.

“In order to give the Court time to consider the merits of the defendants'... Emergency Motion for a Stay Pending Appeal, and the plaintiffs time to file an opposition to the motion, the Court will grant the defendants' request for a temporary administrative stay,” the judge said, adding that opponents of the moratorium must submit counter-arguments by May 12. Justice officials would then have four days to respond.

In her initial ruling, Friedrich determined that the eviction pause was “unambiguously” at odds with the “plain language” of the Public Health Service Act, a 1944 law that established the federal government’s power to quarantine citizens during a health crisis.

“The question for the court is a narrow one: Does the Public Health Service Act grant the CDC legal authority to impose a nationwide eviction moratorium? It does not,” she wrote.

The original ban on evicting tenants for non-payment of rent was part of the CARES Act, passed in March 2020, but it was to last 120 days and apply only to rental properties whose occupants received federal assistance. After it expired, the CDC – acting through the Department of Health and Human Services – extended it to tenants of all rental properties across the US. It has been renewed several times since, with the current extension scheduled to expire on June 30.

Several realtors and two trade associations filed the lawsuit against the moratorium in November 2020, arguing that the CDC exceeded its legal authority with the “arbitrary and capricious” decision that violated the Administrative Procedure Act (APA). The US Supreme Court invoked the APA in its June 2020 ruling to block the Trump administration from getting rid of the Deferred Action for Childhood Arrivals (DACA) program.

“With rental assistance secured, the economy strengthening and unemployment rates falling, there is no need to continue a blanket nationwide eviction ban,” the National Association of Realtors said after the ruling, saying a better solution would be to assist tenants in paying their rent, taxes, and utility bills.

The realtors’ association had told the Biden administration in January that 40 million Americans have fallen behind on rent during the pandemic, with $70 billion in missed payments by the end of 2020, according to Reuters. The CDC said more than four million people “feared imminent eviction.”

While helping millions of Americans who lost their jobs due to the pandemic to keep a roof over their heads, the moratorium has reportedly crushed small landlords, who have been unable to make their own mortgage, debt, and tax payments as a result. 

Some $47 billion in rent relief allocated by the Biden administration’s American Rescue Plan – passed in March on a party-line vote – have been slow to materialize, Bloomberg reported last month, pushing many of the mom-and-pop landlords to sell to wealthy corporate investors circling the distressed market like vultures. 

Less than a third of the small landlords qualify for Covid-19 mortgage forbearance, Bloomberg added, while local governments aren’t inclined to forgive property taxes, because business taxes have dried up due to the lockdowns. If they go under, a lot of the rental properties will likely end up consolidated in the hands of private equity companies, and rents will go up, according to Peter Hepburn, an assistant professor of sociology at Rutgers University who researches housing.

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