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CDC EVICTION MORATORIUM
Jason Gabbard
Founder of justLaw
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WHAT TO EXPECT NOW THAT CDC EVICTION MORATORIUM HAS ENDED?

                                                ABOUT THE AUTHORS

                  Alex Safarian CDC EVICTION MORATORIUM

Alex Safarian is an attorney who litigates a wide range of claims, including Personal Injury, Unlawful Detainer, Fair Housing, Discrimination, Wrongful and Retaliatory Eviction, and Breach of Lease, and is well respected by defense attorneys, judges, and insurance companies in Los Angeles and neighboring counties for his integrity and compassionate representation of his clients.
Safarian is a member of Los Angeles Bar Association, Armenian Bar Association and the Consumer Attorneys Association of Los Angeles and keeps close relationships with other Attorneys in his field.

                Ryan G. BlockCDC EVICTION MORATORIUM

Ryan Block is a seasoned trial attorney who has represented thousands of clients as the lead trial attorney and has appeared in front of over 50 judges in the Los Angeles County and surrounding areas.
Mr. Block’s reputation has allowed him to have tremendous success early in his career as the founding partner at Block LLP.  Mr. Block ensures his firm has excellence in service and consistency of results for each of his clients. After earning a bachelor’s degree from the University of California, Los Angeles, Ryan earned his law degree from Southwestern Law School. Ryan began his legal career with the office of Dennis P. Block and associates, working on real estate litigation.

Click here to get to know him more

                              Learn more about BLOCK LLP

This Article has 3 parts. Stay Tuned for the continuation..

WHAT WAS THE CDC EVICTION MORATORIUM?

On September 4, 2020, the Centers for Disease Control and Prevention issued the “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID–19”. This Order would be more colloquially described as the “CDC’s Eviction Moratorium.” This Moratorium was passed in an effort to address concerns that the economic effects of the pandemic on renters would lead to a glut of evictions and, by proxy, increased spread of COVID-19 among the newly unhoused. Specifically, the Moratorium’s statement of intent was:

“This Order shall be interpreted and implemented in a manner as to achieve the following objectives:

  • Mitigating the spread of COVID-19 within congregate or shared living settings, or through unsheltered homelessness;
  • Mitigating the further spread of COVID-19 from one U.S. State or U.S. territory into any other U.S. State or U.S. territory; 
  • And supporting response efforts to COVID-19 at the Federal, State, local, territorial, and tribal levels”

In support of this ideal, the CDC Moratorium was designed broadly. Functionally, if any rent-paying tenant, in any state, signed a declaration stating that they were suffering from COVID-19-related financial distress, and provided a copy to their landlord, then they could not be physically evicted until the expiration of the Moratorium, for non-payment of rent related reasons. On paper, the Moratorium threatened potential criminal penalties for any landlord who violated this order.

In practice, the Moratorium did not prevent any Landlord from filing an unlawful detainer action against their tenant. Presenting the declaration to a Court, in effect, stopped the clock until the order expired. However, there cannot be any doubt that the Moratorium was broad in scope. Provided the requisite declaration has been signed, any tenant, of any type, would be covered.

It was an order unconcerned with individual considerations. It was, as designed, an attempt to provide all tenants a back door when facing imminent eviction. While other statewide,

county, and city eviction moratoria provided similar protections to tenants in their relevant communities, the CDC Moratorium’s protections covered all tenants in all 50 states.

 

WHY DID IT END?

As originally designed, the order was to expire on December 31, 2020. The idea was that the Moratorium was a temporary stop-gap to help with the fears of the wildfire spread of COVID-19 during the winter of 2020 due to the imminent risks posed by evicting people.

When the spread of COVID-19 did not show signs of improvement by late December 2020, Congress extended the Moratorium for one month.  After this, Congress did not provide for any other extensions of the Moratorium. 

However, where Congress was silent, the CDC stepped in. Each time a new deadline approached, the CDC would extend the order unilaterally. 

Predictably, this did not go unnoticed by Landlords and their associated groups. Many challenges were brought against the CDC’s Eviction Moratorium in the Courts.

Eventually, one of these challenges wound its way to the Supreme Court in Alabama Association of Realtors, et al. V. Department of Health and Human Services, et al., 2021 WL 1946376 (May 14, 2021)

ROUND ONE: ALABAMA ASSOCIATION OF REALTORS, ET AL. V. DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL.


As summarized by the Supreme Court, Alabama Ass’n of Realtors v. Dep’t of Health & Human Servs. arose whe
n,

“Realtor associations and rental property managers in Alabama and Georgia sued to enjoin the CDC’s moratorium. The U. S. District Court for the District of Columbia granted the plaintiffs motion for summary judgment, holding that the CDC lacked statutory authority to impose the moratorium.”

While a significant number of courts throughout the nation had previously found that the CDC overstepped its bounds with the Eviction Moratorium, the District Court’s order went further. The Court summarized its ruling as follows, 

 

“the question for the Court is a narrow one: Does the Public Health Service Act grant the CDC the legal authority to impose a nationwide eviction moratorium?  It does not.  Because the plain language of the Public Health Service Act, 42 U.S.C. § 264(a), unambiguously forecloses the nationwide eviction moratorium, the Court must set aside the CDC Order, consistent with the Administrative Procedure Act, see 5 U.S.C. § 706(2)(C), and D.C. Circuit precedent, see National Mining Ass’n, 145 F.3d at 1409.” 

 

Through this order, the District Court nullified the CDC’s Eviction Moratorium at a nationwide level.  Unsurprisingly, the above ruling was appealed, and the Court stayed its order pending the appeal of the Dept. of Health and Human Servs. When the D.C. Circuit Court did not vacate the stay, the dispute was brought before the Supreme Court.

On June 29, 2021, the Supreme Court denied the application to vacate the stay imposed on the District Court’s order on a 5-4 vote, with Justice Kavanaugh casting the deciding vote.

However, Justice Kavanaugh’s concurrence to the order explained that he was only siding with the majority on this because the CDC’s moratorium was set to end on July 31, 2021 and that a few weeks would “allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds.” On the merits, he stated “I agree with the District Court and the applicants that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium,” and that in his view, clear and specific congressional authorization would be necessary for any further extensions of the Moratorium.

This concurrence was meant as a signal to the other two branches of government. For the executive, it was a clear warning that if the CDC again unilaterally extended the Eviction Moratorium, the Court would strike it down. For the Legislature, it was a statement that only Congress could extend or continue this nationwide eviction moratorium.

However, Congress failed to pass any laws or orders that would extend the CDC’s Eviction Moratorium or impose a new national Eviction Moratorium. As such, the Order lapsed on July 31, 2021. 

In the absence of any action by the Legislature, the CDC, with full warning of the potential consequences, reinstated the Eviction Moratorium extending its protections until October 3, 2021. 

In response, the Plaintiffs in Alabama Association of Realtors, et al. filed an emergency application with the District Court to vacate the stay currently in place. 

Within the space of a few weeks, Plaintiff’s application of was again in front of the Supreme Court. 

Up next:

ALABAMA ASSOCIATION OF REALTORS, ET AL. V. DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., ROUND TWO

EXECUTIVE AND LEGISLATIVE BRANCH NONRESPONSE TO RULING

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