Sixth Circuit holds moratorium on CDC deportations likely ultra vir and unenforceable | Manatt, Phelps & Phillips, srl
The Sixth Circuit Court of Appeal tenuous earlier this week that the CDC is unlikely to prevail on the merits and therefore a decision by the Western District of Tennessee that the federal moratorium on evictions “is ultra vires; and is inapplicable in the Western District of Tennessee ”would not be suspended pending appeal. The decision is a serious blow to the federal moratorium on evictions, at least in the states it covers (Ohio, Tennessee, Kentucky and Michigan). Monday’s decision is at least the third federal court to overturn the CDC’s moratorium on evictions and the first circuit-level decision on the matter.
One of the first measures adopted to deal with the economic fallout from the COVID-19 pandemic was the passage of the CARES law on March 27, 2020, which included a moratorium on evictions. Whereas, technically, Congress has acted on properties secured by loans which it controlled to some extent by virtue of a mortgage loan granted by government or quasi-government actors such as Fannie Mae, Freddie Mac, Ginnie Mae and the VA, FHA, and USDA, or where loans were issued by banks under federal charters (see Section 4024 of the CARES Act), it was common for private entities and other regulators non-federal governments provide similar protections at the onset of the pandemic. Loans with a government connection cover most of the residential market.
The Congressional CARES Act moratorium expired in July 2020, but most states and populated counties and cities enacted similar moratoria on their own that applied throughout the summer and through the fall. 2020. This was true in almost all US states.
By September 2020, however, it became clear that some states generally expected to end lockdowns and therefore moratoriums on evictions by the end of 2020, while others anticipated some level of lockdown, including moratoriums on evictions until 2021. -government actors nonetheless continued their own moratoria, which are generally still in place today, but coverage was not universal and therefore state law remained a point relevant data, especially in the business context.
In “redder” and less populous states, evictions were generally allowed to resume earlier under state law, while in “bluer” and often more populous states, moratoria remained in place indefinitely. . See, for example, California AB 3088, Connecticut Executive Order 9E, Hawaii (via court rules), Illinois Executive Orders 59 and 72, New York Orders 202.66 and 202.70, Oregon Executive Order 20-13 (and extensions). In each case, these great blue states have adopted moratoriums on deportations by one mechanism or another that extended until 2021 or until 2021.
As of September 4, 2020, the Centers for Disease Control and Prevention (CDC), acting under their authority under Section 361 of the Public Health Service Act, ordered a national moratorium on evictions. 85 FR 55292-97. The moratorium covered virtually all property (residential and commercial) and could theoretically apply to most people, but subject to a required affidavit stating that the person was unable to pay and that an eviction would make them homeless. In many “redder” states, the CDC was the primary, if not the only eviction protection available.
The CDC has claimed authorization for the moratorium under 42 USC § 264 (a) which empowers the US Department of Health and Human Services (HHS) to “make and enforce regulations such as  are necessary to prevent the introduction, transmission or spread of communicable diseases. The law goes on to say that this may empower the HHS (of which the CDC is a part) to order “inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or items if infected or contaminated that they are sources of danger infection to humans, and other measures, as in [the HHS Secretary’s] judgment may be necessary. The CDC argued that the moratorium on evictions was in its power as “another measure. “
On March 29, 2021, the CDC announced the extension of the moratorium on evictions until June 30, 2021. On the same day, the Sixth Circuit released its decision in Tiger Lily, LLC v. US Dept. of Housing and Urban Development, et al. ., No.21-5256 (on appeal from No.2: 20-cv-02692 in the Western District of Tennessee). The lower court declared the CDC moratorium “”ultra vires; and is inapplicable in the Western District of Tennessee. The government decided to put the decision on hold pending the appeal, but the Sixth Circuit rejected the government’s motion on the grounds that the government was unlikely to succeed on the merits.
The Court ruled that the “other measures” were a “kind of catch-all provision” which must be interpreted in light of the surrounding words which clearly allow intrusive inspection or remediation requirements, but not the widespread economic moratorium. that the CDC ordered.
The government argued (i) that the CDC has the authority to enforce quarantines, and (ii) that Congress has statutorily blessed the moratorium until at least January 31, 2021, and therefore approved that the CDC has acted under its authority in September 2020. The Sixth Circuit, however, rejected both arguments, arguing that even the quarantine provisions are not broad enough to cover a blanket deportation ban, and Congress’s blessing to the extent where it counted at all expired without renewal and therefore could not serve as a basis for CDC authority now.
Why is this important
The Sixth Circuit decision is the first opinion at the Federal Circuit level, but it is not the first decision against the CDC moratorium. The Eastern District of Texas (No. 6-20-cv-00564, February 25, 2021) and the North District of Ohio (No. 5: 20-cv-2407, March 10, 2021) also rendered decisions in the Same direction. on various grounds. In contrast, courts in the Western District of Louisiana (# 3: 20-cv-1455, December 22, 2020) and the Northern District of Georgia (1: 20-cv-3702, October 29, 2020) have dismissed similar challenges and sided with the government.
Our prediction is that most residential tenants in most jurisdictions will continue to enjoy CDC-type moratorium protection until at least June 30, 2021, as announced earlier this week. While the legal basis for CDC action may be tenuous at best, many states and localities have indeed adopted the same policies as their own laws, even “red” ones. States and localities can rely on the authority vested in them by their general policing power, while the federal government cannot. National and local rules are therefore more likely to survive challenge. While there are undoubtedly at least a few evicted residents who might otherwise have enjoyed CDC protection as a result of Monday’s ruling, we believe the nested web of private moratoriums on voluntary evictions, national laws and local (whether similar in spirit or identical to the CDC rule), and the policies of government and quasi-government agencies that sponsor many of the applicable loans will lead to relatively few evictions as a result of decision.
That said, the problem for landlords and tenants continues to be that they must navigate through cumbersome and complicated moratoria and ordinances at the federal, state and local levels just to understand their rights and obligations. And those protections are constantly evolving, as evidenced by Monday’s decision limited to Sixth Circuit states (and even within them, with uneven and unpredictable enforcement). Nationally, such changes occur almost daily.
Manatt has been monitoring moratoriums on evictions nationwide closely and his lawyers have worked with many landlords and tenants to respond to these difficult and complicated circumstances. While we would expect this to become more complicated as the various federal, state and local tenant protection actions expire and new ones are passed, the options available to landlords and tenants will continue to depend. of jurisdiction.