Landlords ask judge to stop CDC eviction moratorium in early hearing

A federal lawsuit challenging the Centers for Disease Control and Prevention’s sweeping eviction moratorium forged ahead Tuesday, with lawyers from both sides arguing over Zoom whether the judge should invalidate the moratorium while the trial is ongoing.

The plaintiffs are landlords, who argue that in addition to experiencing unsustainable financial harm from being forced to allow non-paying tenants to stay, they’re being deprived of their own properties and their rights to the court system.

“The idea that an administrative agency focused on public health can walk in and shut down court systems across the country is really breathtaking,” the plaintiffs' lawyer, Caleb Kruckenberg, said during the hearing. “It cannot be my clients' responsibility to provide free housing indefinitely just because there’s economic hardship because of the pandemic.”

The Centers for Disease Control’s order, announced Sept. 1, suspends evictions for the rest of the year for tenants who submit a form to their landlords saying under penalty of perjury that among other qualifications, they can’t pay their rent because of a loss in income, and that an eviction would either render them homeless or force them to move into a new shared living setting.

Leslie Cooper Vigen, the government’s attorney, said that the Centers for Disease Control has been granted broad powers by Congress to act in the interest of public health during a crisis like this one. She said that regulations go so far as to grant the agency the ability to kill livestock that may be spreading diseases, and said those hypothetical harms would be much worse than the temporary losses caused to landlords by this order.

“This is a virtually unprecedented pandemic here, in which the CDC has taken, admittedly, very wide-ranging action but it’s what is necessary ... when we have such widespread contagion,” Vigen said. “Invalidating the entire order could result in millions of evictions throughout the country leading into the winter flu season.”

This case filed in a Georgia federal court began with one Virginia landlord, Richard Lee Brown, challenging the order, but last month three more landlords from other states were added to the case, in addition to the National Apartment Association — which represents more than 85,000 property owners.

Kruckenberg also argued the federal government hasn’t provided evidence that allowing states to handle their own evictions policies would prevent the spread of the coronavirus. Instead, it’s shocking how the Centers for Disease Control can overreach to upend state laws “and pretend it has something to do with public health,” he said.

Kruckenberg works for the New Civil Liberties Alliance, a Washington-based group which took up this case. According to the Washington Post, it has documented past ties to a foundation backed by Charles Koch, a heavyweight conservative political donor.

Many states — including Florida — have allowed their eviction moratoria to expire, leaving millions of renters exposed to losing their housing, the federal government noted. If the order was broadly voided, Florida renters would be left without any protections against evictions, aside from any lingering local mandates.

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The plaintiffs want the court to issue a preliminary injunction that would void the moratorium while the trial continues.

When it issued the order, the Centers for Disease Control argued that without action, 30 to 40 million renters are at risk, creating the potential for “a wave of evictions” so large it “would be unprecedented in modern times.” Forcing that many people out of their homes would allow for increased spread of the coronavirus, the agency has said, as the newly homeless would move in with loved ones or into crowded shelters.

Several homeless shelters have already experienced outbreaks in Seattle, Boston, and San Francisco, the agency said.

The federal order does not cancel rent nor does it prohibit late fees. But because the landlords’ tenants are currently unable to afford their full rent, by definition under the order, Kruckenberg argued, they have little hope of recovering unpaid rent from them when the moratorium expires. It is currently set to lapse at the end of the year, but the Centers for Disease Control said in the order that it may be extended.

U.S. District Judge J.P. Boulee did not make a decision on the injunction request during Tuesday’s Zoom hearing, nor did he indicate when to expect one. Other than asking both lawyers informational questions, he did not give any hints whether he was leaning in one direction or another.

In addition to this case, landlords in Tennessee have also filed a lawsuit challenging the Centers for Disease Control’s order in a federal court there. That case, too, is still ongoing.

The order was also challenged in a federal court in Ohio, but that case was recently dismissed after the government and the plaintiff, a landlord company, mutually agreed that the company could still seek an eviction by having a local court review the accuracy of a tenant’s claim that they qualified for the order’s protections.

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