Federal Judge Vacates CDC Eviction Moratorium

The Justice Department is appealing the decision.

On May 5, 2021, a federal judge in the District of Columbia set aside the Centers for Disease Control and Prevention (CDC) nationwide moratorium on residential evictions, which the CDC had recently extended beyond its congressionally approved expiration date of March 31 to June 30, 2021 [Alabama Association of Realtors, et al. v. U.S. Dept. of Health and Human Services].

The decision was based primarily on the judge’s reading of the Public Health Services Act. The CDC first issued the order based on the act in September 2020. Specifically, the federal court found that the act, by its plain terms, did not expressly indicate congressional intent to vest the CDC with authority to impose a national eviction moratorium. Because the decision to ban evictions is one of “vast economic and political significance,” the judge ruled that Congress could not be said to have delegated it without having made its intention to do so explicit.

In February 2021, a federal judge in Texas ruled the moratorium was unconstitutional in a case filed by the Texas Public Policy Foundation and the Southeastern Legal Foundation on behalf of East Texas landlords. Two weeks after the ruling, in March 2021, a federal judge in Ohio also ruled that the CDC exceeded its authority as defined by the Public Health Service Act. Also in March, a federal judge in Tennessee ruled that evictions could resume, arguing that the CDC didn’t have the authority to enforce the order in the Western District of Tennessee.

While the D.C. federal judge was the latest to rule against the moratorium, her decision is the most extensive. The decisions out of the federal courts in Ohio and Texas were limited to the plaintiffs before those courts. In this decision, however, the judge refused a request by the Department of Justice (DOJ) for similar treatment and held that the CDC order must be set aside: “[The D.C. Circuit] has instructed that when ‘regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioner is proscribed.”

In response to the decision, Brian M. Boynton, Acting Assistant Attorney General for the Justice Department’s Civil Division, confirmed that they have filed a notice of appeal of the decision. “In the department’s view, that decision conflicts with the text of the statute, Congress’s ratification of the moratorium, and the rulings of other courts. The department has already filed a notice of appeal of the decision and intends to seek an emergency stay of the order pending appeal,” stated Boynton.

As of May 6, the judge issued an administrative stay putting her order vacating the CDC eviction moratorium on hold. The court will allow both parties to submit briefs against and in support of the stay.