DC Judge’s Vacatur of Eviction Moratorium On Pause After Granting Stay to Defendants

The nationwide eviction moratorium — for now — will remain in place after the federal District of Columbia judge who ruled Wednesday to vacate the Centers for Disease Control and Prevention’s (CDC) order granted a stay of her own judgment.

In a minute order, Judge Dabney Friedrich of the District of Columbia District Court granted a temporary administrative pause of her judgment to the United States agency defendants after they moved for an emergency stay pending appeal of the vacatur. The plaintiffs have about a week to file an opposition, according to the order.

Although the moratorium — originally ordered by the CDC in September 2020, extended most recently until June 30 — remains unperturbed by way of the stay, Friedrich adjudged in her opinion on the parties’ cross motions for summary judgment that the CDC overstepped its statutory authority in its nationwide order to ban evictions in an attempt to curb the spread of COVID-19. If the defendants, which include the CDC and Department of Health and Human Services (HHS), lose on appeal, evictions could again resume.

The moratorium has yielded much litigation since it was enacted, primarily being challenged by landlords; in March, the Sixth Circuit denied a motion by the same agencies to stay a judgment in a Tennessee district court that rendered the CDC order unlawful, and a similar action is pending in the Fifth Circuit and other federal courts across the country.

In the case at issue, plaintiffs Danny Fordham, Robert Gilstrap, Fordham & Associates LLC, H.E. Cauthen Land and Development LLC, Title One Management LLC, and the Alabama and Georgia Associations of Realtors challenged the CDC order in November 2020, arguing that the CDC does not have the authority to make such a sweeping order to halt evictions — a characterization with which Judge Friedrich agreed.

Friedrich pointed to the Public Health Service Act (PHSA)’s text in reaching her conclusion: The HHS secretary may delegate authority to the agencies it governs to “make and enforce such regulations,” such as “inspection, fumigation, disinfection, sanitation, pest extermination (and) destruction of animals or articles found to be so infected or contaminated,” among “other measures,” based on their discretion to curb infectious disease spread. According to Judge Friedrich, a nationwide eviction moratorium does not fall under any of these criteria — not even the broader “other measures.”

“In sum, the Public Health Service Act authorizes the Department to combat the spread of disease through a range of measures,” Friedrich opined, “but these measures plainly do not encompass the nationwide eviction moratorium set forth in the CDC Order.”

Jones Day represents the plaintiffs.