Landlords & Tenants

CDC had no authority to impose nationwide eviction moratorium, 6th Circuit rules

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A federal appeals court on Friday ruled against the Centers for Disease Control and Prevention in a challenge to a moratorium that it imposed to help control the spread of COVID-19.

The 6th U.S. Circuit Court of Appeals at Cincinnati said the CDC did not have authority to impose the moratorium under a federal law that gives the secretary of the Department of Health and Human Services the authority to make and enforce regulations needed to prevent the spread of communicable diseases.

The law, the Public Health Service Act of 1944, “is not as capacious as the government contends,” the 6th Circuit said in the July 23 opinion by Judge John K. Bush.

He said a second sentence in the law had narrowed what may seem to be a broad grant of authority to control diseases.

The sentence said the secretary, for purposes of carrying out the regulations, “may provide for such 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.”

There is no authority to impose a nationwide eviction moratorium in the second sentence, Bush said.

The CDC order replaced a 120-day moratorium imposed by Congress on rental properties participating in federal assistance programs or that had received federally backed loans. The CDC order was broader in that it applied to all rental properties nationwide. The CDC later extended its order, which is now set to expire July 31.

Judges Alan Norris and Amul Thapar joined Bush’s opinion. It followed a previous 6th Circuit opinion finding that the government was unlikely to succeed in the case, Tiger Lily v. U.S. Department of Housing and Urban Development.

The new decision affirms a declaratory judgment by a trial judge who did not issue a preliminary injunction after finding that the plaintiffs’ loss of income didn’t rise to the level of irreparable injury. The 6th Circuit opinion did not impose an injunction.

The U.S. Supreme Court had refused to lift the moratorium in a 5-4 opinion in a different case in June, although one of the justices in the majority, Justice Brett M. Kavanaugh, said he thought the CDC had exceeded its statutory authority.

Kavanaugh said he supported keeping the moratorium in place to “allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds.”

Joshua Kahane, the lawyer who argued the 6th Circuit case for a property manager, told Reuters that the decision means that judges in Tennessee, Kentucky, Ohio and Michigan are no longer bound by the moratorium.

See also: “11th Circuit upholds CDC freeze on evictions due to COVID-19”

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