CDC eviction hold survives appeal to D.C. Circuit

Posted Aug 23, 2021

Samantha Hawkins
Courthouse News

Anthony Crider/CC BY 2.0 President Joe Biden has acknowledged that the latest moratorium might not hold up in court, but said that it was worth a try.

The D.C. Circuit served defeat Friday to a group of landlords and realtors challenging the Center for Disease Control and Prevention’s fourth extension of the eviction ban.

With the landlords saying they plan to immediately file an emergency motion for review, the unsigned order from a three-judge panel sets the challenge up for a Supreme Court showdown.

The justices already ruled 5-4 in June to keep the moratorium in place. At the time, however, Justice Brett Kavanaugh explained in a concurring opinion that he believed the CDC exceeded its legal authority. Kavanaugh said he nevertheless sided with the majority so that Congress would have time to create legislation to extend the moratorium past its July 31 deadline.

When Congress failed to extend it, Biden's CDC said it found the legal authority to make the extension itself under the Public Health Service Act.

As the landlords see it, the moratorium is certain to fail constitutional muster if the Supreme Court review it again.

“With a majority of the Supreme Court in agreement that any further extension of this eviction moratorium requires Congressional authorization, we are confident and hopeful for a quick resolution,” Patrick Newton, a spokesman for the National Association of Realtors, said in an email.

U.S. District Judge Dabney Friedrich also expressed doubt that the Supreme Court would uphold the government’s latest extension. Though the Trump appointee rejected the landlords’ challenge last week, she explained that it was because her hands were tied due to a previous decision by the D.C. Circuit to keep the moratorium in place.

“It is true that the Supreme Court’s recent decision in this case strongly suggests that the CDC is unlikely to succeed on the merits,” Friedrich wrote in her opinion. “Other decisions from the federal courts of appeals further suggest that the government is unlikely to prevail.”

Congress imposed the original moratorium in September of last year to prevent landlords from kicking out tenants who can’t pay rent because of temporary financial hardship stemming from the COVID-19 pandemic. After that moratorium expired, the CDC began issuing extensions, the latest of which runs through October.

President Joe Biden has also acknowledged that the latest moratorium might not hold up in court, but said that it was worth a try, since it would buy the government time to distribute $47 billion in rental assistance. Only a tiny fraction of that money has been awarded to landlords so far.