Aaron J. Walayat, Esq., firstname.lastname@example.org, (412) 594-3935
On June 29, 2021, the Supreme Court refused to end the nationwide eviction moratorium issued by the Centers for Disease Control and Prevention (CDC), leading to quite a bit of confusion among the Courts of Appeal. In Alabama Association of Realtors, et al. v. United States Department of Health and Human Services, et al., the Supreme Court (in a 5-4 determination) denied an application to vacate a stay of an order that struck down the CDC’s broad eviction moratorium. Tucker Attorneys Ken Scholtz and Alex Boyer provided a detailed analysis of the Eviction Moratorium and what it means for landlords in an excellent article.
The CARES Act, passed at the beginning of the COVID-19 pandemic, enacted a 120-day eviction moratorium which applied to rental properties receiving federal assistance. After the end of the CARES Act moratorium, the United States Department of Health and Human Services, through the CDC, issued a broader eviction moratorium which applied to all rental properties nationwide. Since then, Congress granted a temporary, 30-day extension of the CDC moratorium and the CDC itself extended its order three times.
The CDC moratorium was originally slated to expire on December 31, 2020,  but Congress extended the deadline through January 31, 2021. in the Consolidated Appropriations Act through January 31, 2021. On January 29, 2021, the CDC, it its own initiative, extended its moratorium through March 31, 2021. The CDC did this again on March 28, 2021, extending its moratorium until June 30, 2021. On June 24, 2021, the CDC again extended its moratorium until July 31, 2021.
Plaintiffs, a coalition of property owners, property management companies, and two trade associations, filed an action on November 20, 2020 in the United States District Court for the District of Columbia, challenging the moratorium on the grounds that the Public Health Service Act (the federal law which empowers the CDC to make and enforce regulations necessary to prevent the spread of “communicable diseases”) did not include the power of the CDC to order an eviction moratorium. The District Court, in an order by Judge Dabney Friedrich, ruled in favor of the Plaintiffs.
While the Public Health Service Act certainly grants broad rulemaking authority to the CDC, enforcement of those rules are limited by the principle of interpretation known as edjusdem generis. Edjusdem generis is a fancy Latin phrase meaning that if there is a vague term in a list of explicit terms, the interpretation of what is included within the vague term is limited in scope by the explicit term. For example, if a list states that “no cars, motorcycles, or any other vehicles” are allowed in a park, the term “any other vehicles” is limited by the words “cars” and “motorcycles” and the vague term “any other vehicles” is therefore likely to include trucks and ATVs while excluding roller skates and skateboards. Nevertheless, there is a still a gray area for vehicles in between (like bicycles or motorized bicycles).
The Public Health Service Act provided that the CDC could enforce its regulations by “provid[ing] for inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.” 42 U.S.C. § 264(a). The District Court determined that, based on the explicitly listed types of action the CDC could take, the term “other measures” did not include a nationwide eviction moratorium.
On May 14, 2021, acknowledging the major repercussions of its decision, the District Court stayed its own order pending appeal. The Plaintiffs applied to vacate the stay (that is, to uphold the District Court’s original order and strike down the CDC’s eviction moratorium) to the United States Court of Appeals for the District of Columbia Circuit. The Court of Appeals denied the application on June 2, 2021, upholding the stay (and the moratorium). The next day, the Plaintiffs applied to the Supreme Court to vacate the stay.
On June 29, 2021, the Supreme Court denied the application to vacate the stay on Judge Friedrich’s order. Chief Justice Roberts, joined by Justices Breyer, Sotomayor, Kagan, and Kavanaugh voted to deny the stay while Justices Thomas, Alito, Gorsuch, and Barrett voted to grant the application.
A Concurring Opinion Potentially Opens the Door for Future Litigation
In the Denial of Application, Justice Kavanaugh authored a one-paragraph concurrence. What is surprising is that Justice Kavanaugh appears to agree with the opinion of the District Court (and the dissenting Justices) that the CDC overstepped its statutory authority when it issued a nationwide eviction moratorium. It appears the majority of Justices upholding the moratorium is a “marriage of convenience,” as Justice Kavanaugh agrees with the dissent on the law, but sides with the majority on practicality. He voted to uphold the moratorium because it was slated to expire on July 31, 2021. It appears that Justice Kavanaugh considers the matter to be prematurely moot, that is, since the moratorium is slated to expire by the end of July, the Court might as well let it run its course.
His concurrence, however, comes with a veiled threat, inviting the possibility (indeed, likelihood) of future litigation. Justice Kavanaugh ends his concurrence, remarking that “In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.” This last sentence appears to be an invitation to Congress to give the “clear and specific congressional authorization” necessary for the CDC to lawfully extend the moratorium.
However, it is unclear exactly what Justice Kavanaugh wants from Congress. In the District Court’s Order, Judge Friedrich determined that the Consolidated Appropriations Act simply did not suffice as congressional ratification of the CDC’s power to enforce a nationwide moratorium, as it was simply Congress’s temporary extension of a moratorium that was unlawfully ordered by the CDC. Would another congressional extension of deadline be enough for Justice Kavanaugh to find that Congress has authorized the CDC to enforce eviction moratoriums, or would he need Congress to amend the Public Health Service Act to expressly grant the CDC the power to create and enforce moratoriums? This remains to be seen.
Keep in mind that the Supreme Court’s denial of the application to vacate the stay is just that — it is denying an application to remove the stay of Judge Friedrich’s original order. The merits of Judge Friedrich’s order is still pending appeal before the Court of Appeals for the District of Columbia Circuit, and whether the Court of Appeals will actually hear arguments on the merits will depend on whether the moratorium continues past the July 31 deadline. If the moratorium expires, the Court of Appeals will likely find that the case is moot and throw it out.
Lower Courts Appear Equally Torn
Besides the merits argument currently pending in the Court of Appeals for the District of Columbia Circuit, Courts of Appeals in other jurisdictions have recently spoken on the matter. On July 14, 2021, the Court of Appeals for the Eleventh Circuit, based in New Orleans, also upheld the CDC’s moratorium in Brown v. U.S. Department of Health and Human Services. Plaintiffs in that case had moved for a preliminary injunction. One of the requirements for being granted a preliminary injunction is that the Plaintiffs must show that they would suffer an “irreparable injury” if the injunction (in this case, the injunction to end the moratorium) is not granted. The trial judge determined that the Plaintiffs did not show an irreparable injury. The Eleventh Circuit upheld the trial judge’s decision. However, Judge Britt Grant, following Justice Kavanaugh’s concurrence, expressed doubts about the legality of the CDC moratorium in her majority opinion. The trial judge in Brown had determined that Plaintiffs were unlikely to show a “likelihood of success on the merits,” another requirement for a preliminary injunction. Judge Grant expressed doubts that the “other measures” language of the 42 U.S.C. 264(a) could include a CDC moratorium. Nevertheless, since Plaintiffs could not show all the requirement for a preliminary injunction, the Eleventh Circuit upheld the denial and the CDC moratorium was allowed to stand.
On the other hand, the Court of Appeals for the Sixth Circuit, based in Cincinnati, did consider the merits of the argument that the CDC’s moratorium is illegal. In Tiger Lily, LLC v. U.S. Department of Housing and Urban Development, in a decision by Judge John Bush, the Sixth Circuit determined that the “other measures” language did not include the power to impose a moratorium. The extent of this ruling, however, is limited. It is not a nationwide injunction and only covers the Middle District of Tennessee.
The CDC’s eviction moratorium is slated to expire on July 31. If the moratorium is allowed to expire, the current cases challenging it, including Tiger Lily, will be mooted. If the CDC again extends the deadline by itself, or if Congress again temporarily extends the deadline as it did previously, more litigation will come to challenge the legality of the eviction moratorium. The current decisions, whether it is Justice Kavanaugh’s concurrence in Alabama Association of Realtors, statements by Judge Grant in Brown, the decision of the Sixth Circuit in Tiger Lily, have provided litigators with strong precedent to challenge the legality of the CDC’s moratorium. Further, given Justice’s Kavanaugh’s position as the all-important fifth vote on the matter, it is fair to speculate that the Supreme Court appears sympathetic to finding the moratorium unlawful.
For more information on the Eviction Moratorium and other COVID-19 business solution topics, contact Aaron Walayat at email@example.com. You can also access Tucker Arensberg’s recent articles regarding pandemic business solutions at https://www.tuckerlaw.com/category/covid-19-answers-to-business-challenges.
 CARES Act Sec. 4024(b).
 85 Fed. Reg. 55,292 (Sept. 4, 2020).
 85 Fed. Reg. 55, 297.
 Consolidated Appropriations Act, Pub. L. No. 116-260 § 502, 134 Stat. 1182 (2020).
 86 Fed. Reg. 8020 (Feb. 3, 2021).
 86 Fed. Reg. 16,731.
 Alabama Association of Realtors et al v. United States Department of Health and Human Services et al., — F.Supp.3d –, No. 20-cv-3377, 2021 WL 1779282, *4 (D.D.C. May 5, 2021).