CDC Extends its Eviction Moratorium Through the End of June at Same Time the Sixth Circuit Rejects CDC’s Authority to Halt Evictions At All

On March 28, three days before its scheduled expiration date, the Centers for Disease Control and Prevention (“CDC”) extended its nationwide eviction moratorium order (“CDC Moratorium”) through June 30, 2021.[1]  The CDC took this action at nearly the same time that the Sixth Circuit—the first federal appellate court to weigh in on legal challenges to the CDC Moratorium—denied an emergency stay filed by the federal government, concluding that it was not likely to succeed on the merits of its appeal because the CDC had exceeded its authority.

CDC Eviction Moratorium.

In short, the CDC Moratorium subjects landlords and property owners to possible criminal and civil penalties if they proceed with actions to evict certain “covered” residential tenants affected by the COVID-19 pandemic for nonpayment of rent.  It does not affect tenants’ underlying rental payment obligations or landlords’ ability to sue for unpaid rent.  We previously summarized the restrictions of the CDC Moratorium here, and highlighted its prior extension through March 31, 2021 here.  We also wrote about successful legal challenges to the CDC Moratorium here.

CDC’s March 28, 2021 Moratorium Extension Order.

On March 28, 2021, the CDC extended the eviction moratorium for three months, through June 30, 2021.[2]  To support its order, the CDC cited the emergence of COVID-19 variants in the Unites States, studies on the impacts that evictions have on housing, migration and homelessness across state lines, and made findings that its action would directly mitigate the further spread of COVID-19.[3]

Latest Round:  Sixth Circuit’s Stay Denial Ruling in Tiger Lily, LLC v. HUD.

In Tiger Lily v. HUD, the plaintiffs, all of which own or manage residential rental properties, challenged the CDC Moratorium, as then extended, seeking a declaratory judgment that it violated the Administrative Procedure Act and a preliminary injunction barring its enforcement.  The District Court denied the preliminary injunction, but granted summary judgment in plaintiffs’ favor finding that the CDC Moratorium exceeded the CDC’s authority under the Public Health Service Act, specifically 42 U.S.C. § 264(a).[4]  The government filed an appeal and moved the District Court for emergency and administrative stays, and subsequently filed an emergency stay motion with the United States Court of Appeals for the Sixth Circuit.  The Sixth Circuit denied the government’s motion, finding that it was unlikely to succeed on the merits of its appeal.[5]  The court held that Section 264 “does not authorize the CDC Director to ban evictions.”[6]

The Sixth Circuit reasoned that “[t]o slow disease transmission, the HHS Secretary, and the CDC by extension, can impose specific restrictions on both property interests, see 42 U.S.C. § 264(a), and liberty interests, see id. § 264(d).  As to the former, the Secretary ‘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.’”[7]  It rejected the government’s assertion “that a nationwide eviction moratorium is among the ‘other measures’ for disease control that Congress envisioned when drafting the statute.”[8]  In doing so, it applied “the ejusdem generis canon, which says that ‘where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.’”[9]  Citing Terkel v. CDC, the Sixth Circuit found that “[p]lainly, government intrusion on property to sanitize and dispose of infected matter is different in nature from a moratorium on evictions”, and that the CDC Moratorium “thus falls outside the scope of the statute.”[10]

Where it all Goes From Here.

We last wrote on March 18, 2021, that having then been struck down by two federal district courts each on different theories, the CDC Moratorium had just gone down to the mat, but that it would be for a long 10-count.[11]  Since then, the government got up and punched back with an emergency stay motion, only to be slapped back down by the ref, the Sixth Circuit Court of Appeals.

As a technical matter, the Sixth Circuit’s decision was not a decision on the merits of the issue.  It was a procedural ruling denying an emergency stay of the District Court’s decision pending an appeal on the grounds that the government failed to show that it is likely to win its appeal.  Nonetheless, the answer to how many angels can dance on the head of this pin is none, because the Sixth Circuit has all but ruled that the United States will lose its appeal.  Meanwhile, the government is also pursuing an appeal in the Fifth Circuit of the Terkel court’s similarly-reasoned decision invalidating the CDC Moratorium.[12]  “Prediction is very difficult, especially about the future,”[13] but we think it likely that the Fifth Circuit will follow the Sixth Circuit’s well-reasoned analysis.

Nonetheless, the Biden Administration appears intent on continuing the CDC Moratorium as long as it can.  Stay tuned!

[1] See CDC, Order Under Section 361 of the Public Health Service Act (42 U.S.C. 264) and 42 Code of Federal Regulations 70.2, “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19” (March 28, 2021) (“Extension Order”), copy available at https://www.cdc.gov/coronavirus/2019-ncov/covid-eviction-declaration.html (last viewed March 31, 2021).  The CDC Moratorium was previously set to expire on March 31, 2021.  See Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, § 502, 134 Stat. 1182, 2078-79 (2020) (extending the CDC Moratorium through Jan. 31, 2021); 86 Fed. Reg. 8,020, 8,021 (Feb. 3, 2021) (further extending it through March 31, 2021).

[2] Id., Extension Order at 17.

[3] Id. at 7-11.

[4] Tiger Lily, LLC v. HUD, __ F. Supp. 3d __, No. 2:20-cv-02692-MSN-atc, 2021 WL 1171887, at *3-11 (W.D. Tenn. March 15, 2021), appeal filed, No. 21-5256 (6th Cir. 2021).

[5] Tiger Lily, LLC v. HUD, __ F.3d __, No. 21-5256, 2021 WL 1165170, Order (6th Cir. March 29, 2021).

[6] Tiger Lily, LLC, 2021 WL 1165170, at *4.

[7] Id. at *3 (quoting 42 U.S.C. § 264(a)).

[8] Id. (quoting 42 U.S.C. § 264(a)).

[9] Id. (quoting Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-15 (2001) (citation omitted by the court)).

[10] Id. (citing Terkel v. CDC, No. 6:20-cv-00564, 2021 WL 742877, at *6 (E.D. Tex. Feb. 25, 2021), appeal filed, No. 21-40137 (5th Cir. 2021)).  We previously discussed the Terkel decision in our Legal Update, “Is the CDC’s Nationwide COVID-19 Eviction Moratorium Down for the Count?”.

[11]  See id.

[12] See Terkel v. CDC, No. 21-40137 (5th Cir. 2021).

[13] Danish Nobel Prize winning Physicist Niels Bohr, Wikiquote, https://en.wikiquote.org/wiki/Niels_Bohr (as quoted in Teaching and Learning Elementary Social Studies (1970) by Arthur K. Ellis, p. 431) (last viewed March 31, 2021).