Judge denies landlords’ request to void CDC eviction moratorium

The decision is especially important for states like Florida, where the governor’s eviction moratorium has expired.
A sign marks the entrance to the federal Centers for Disease Control and Prevention in Atlanta. [Associated Press]
A sign marks the entrance to the federal Centers for Disease Control and Prevention in Atlanta. [Associated Press]
Published Oct. 29, 2020|Updated Oct. 29, 2020

A federal judge in Georgia issued an order Thursday denying landlords' request for a preliminary injunction that would have voided the nationwide eviction moratorium while their lawsuit proceeds.

The landlords have sued the Centers for Disease Control and Prevention over its moratorium, which prevents tenants from being evicted for the rest of 2020. In order to qualify, tenants must submit a signed declaration form saying under penalty of perjury that they can’t pay 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, among other requirements.

In a Zoom hearing earlier this month, the landlords' lawyer contended the eviction order is forcing them to allow non-paying tenants to stay, and thus deprives them of their rights to their own property and access to the courts.

Thursday’s order means that the moratorium will remain in place for now, and also casts doubt on the landlords' future success if the case were to go to trial. In his 66-page order, U.S. District Judge J.P. Boulee wrote that the plaintiffs “have not clearly shown” that they have a “substantial likelihood of success” based on their arguments.

The ruling is especially important in states such as Florida, where the governor’s eviction moratorium has expired — leaving the federal order as the last layer of protection for renters, unless they live in an area with a local order still in place.

Overall, the plaintiffs did not show that the harms being caused to them outweighed the public interest, Boulee wrote.

“Federal courts across the country have routinely concluded that undoing orders deemed necessary by public health officials and experts ... would result in comparatively more severe injury to the community,” the order reads.

One major question raised by the landlords was whether the Centers for Disease Control had the authority to freeze evictions, which go through local courts.

“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 landlords' lawyer, Caleb Kruckenberg, said during the hearing. The plaintiffs are four individual landlords plus the National Apartment Association, which represents 85,000 property owners.

But Boulee was unswayed.

“Congress gave the Secretary of (the Department of Health and Human Services) broad power to issue regulations necessary to prevent the introduction, transmission or spread of communicable diseases,” he wrote, referencing the broader federal agency over the Centers for Disease Control. “Because ... the order is necessary to control the COVID-19 pandemic, the CDC was authorized to issue it.”

Related: Renting in Florida? Here’s how to avoid eviction under CDC order

Additionally, Boulee agreed with the federal government that they adequately proved that without this order, a wave of evictions — the Centers for Disease Control said 30 to 40 million renters are at risk — would be a public health risk not fully prevented by states' efforts.

“The CDC has shown what it needs to: that an eviction moratorium for individuals likely to be forced into congregate living situations is an effective public health measure ... because it aids the implementation of stay-at home and social distancing directives," he wrote.

Boulee noted that the eviction moratorium only applies to tenants who meet the declaration form’s qualifications, and also does not prohibit landlords from charging late fees or other penalties. Additionally, it does not preclude them from filing eviction paperwork in court, so long as the tenant isn’t actually kicked out while the order is in place, therefore not completely cutting off landlords' access to courts.

He acknowledged the economic harm done to the landlords, saying “because of the order, plaintiffs are forced to provide housing to non-paying tenants,” and “must also pay monthly maintenance costs and endure damage to their property from wear and tear, and they have lost the opportunity to rent their properties at fair market value.”

Still, those injuries did not meet the legal thresholds for issuing the injunction, Boulee concluded.

“Although plaintiffs have shown an economic harm," the order reads, “that economic harm pales in comparison to the significant loss of lives that defendants have demonstrated could occur should the court block the order.”

This is a breaking story that will be updated.

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