Update: Federal Judge in D.C. Sets Aside the CDC Nationwide Eviction Moratorium

On May 5, 2021, Federal District Judge Dabney Friedrich vacated the Centers for Disease Control and Prevention (CDC) nationwide moratorium on residential evictions (the “Order”), 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. Dep’t of Health and Human Services, et al., Case No. 1:20-cv-03377, United States District Court for the District of Columbia). While Judge Friedrich is but one of several federal judges to rule against the Order as highlighted in our March 4, 2021 and March 15, 2021 alerts, her decision is arguably the most extensive. Though no more favorable to the CDC than Judge Friedrich’s vacatur order, the holdings out of federal courts in Ohio and Texas at least were limited to the plaintiffs with standing before those courts. Here, Judge Friedrich 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’” (citing Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998)).

The Alabama Association decision was based primarily on Judge Friedrich’s reading of the Public Health Services Act, 42 U.S.C. § 264(a) (the “Act”), pursuant to which the CDC first issued the Order 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,” Judge Friedrich maintained, Congress could not be said to have delegated it without having made its intention to do so explicit.

The DOJ has announced that it has “already filed a notice of appeal of the decision [to the Court of Appeals for the District of Columbia Circuit] and intends to seek an emergency stay of the order pending appeal.”

We will continue to monitor these cases and provide updates as they become available.

Update (May 6, 2021): Judge Friedrich has just stayed her decision pending the DOJ appeal.

Update (June 3, 2021): On June 2, 2021, the United States Court of Appeals for the District of Columbia Circuit (the “D.C. Circuit”) opted to keep the CDC’s nationwide eviction moratorium in place during the appeals process.

A three-judge panel for the D.C. Circuit issued the per curiam order affirming the stay Judge Friedrich granted on May 6, 2021 over objections by the plaintiffs, a coalition of Alabama landlords and realtors. In filing their motion to vacate the stay, the plaintiffs had hoped to prevent the CDC from enforcing its Order, which expires on June 30, 2021, at least until a final ruling on the DOJ’s appeal. Instead, the D.C. Circuit found that Judge Friedrich had not abused her discretion in granting the stay, largely because, in the court’s opinion, the government had “made a strong showing that it is likely to succeed on the merits, [since] Congress has expressly recognized that the [CDC] had the authority to issue its narrowly crafted moratorium under [the Act].” In further support of its order, the court also underscored the plaintiffs’ failure to prove that the stay might cause irreparable harm to their interests such that reversing Judge Friedrich’s decision would be appropriate: “The record does not demonstrate any likelihood that [the plaintiffs] themselves will lose their businesses, that an appreciable percentage of their own tenants who would otherwise pay in full will be unable to repay back rent, or that financial shortfalls are unlikely ultimately to be mitigated.”

While not meant to resolve “the ultimate merits of the legal question” at issue, the D.C. Circuit’s order suggests that the court may rule in the government’s favor when it finally does consider the appeal of Judge Friedrich’s ruling, whereby she vacated the CDC’s eviction ban on statutory grounds: “[The Department of Health and Human Services] has demonstrated that lifting the national moratorium will exacerbate the significant public health risks identified by the CDC because, even with increased vaccinations, COVID-19 continues to spread and infect persons, and new variants are emerging.”

We will continue to monitor this case and will provide further updates as they become available.