US Files Brief in 5th Circuit Supporting District Denial of Injunction for Landlords in Eviction Moratorium Challenge

The United States agency defendants in one case challenging the Centers for Disease Control and Prevention (CDC) eviction moratorium filed an appellee brief in the Fifth Circuit on Wednesday, arguing that the Western District of Louisiana did not abuse its discretion in denying a landlords’ request for a preliminary injunction to allow evictions to continue.

The district court on Dec. 22 denied the injunction request by plaintiffs Chambless Enterprises LLC and Apartment Association of Louisiana Inc. and, on Monday, granted a motion to stay that denial by the defendants — CDC officials Rochelle Walensky and Sherri Berger, Department of Health and Human Services (HHS) Secretary Xavier Becerra, Attorney General Merrick Garland, and both the CDC and HHS — pending the plaintiffs’ appeal in the Fifth Circuit. 

The CDC issued an order in September 2020 temporarily freezing evictions as a response to the COVID-19 pandemic, citing statute that gives the agency power to “make and enforce such regulations as in (the agency’s) judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” The CDC reasoned that banning evictions during such a large-scale public health crisis is necessary to prevent disease spread, given that more evictions lead to more people in transit and gathering in congregate living spaces such as homeless shelters.

Before the initial order’s moratorium could expire, the CDC extended it and continued to do so before the expiration of each extension; now, the moratorium will continue through June 30, according to the brief.

“In extending the moratorium through June 30, 2021, the CDC emphasized the ongoing need to ‘maintain COVID-19 precautions to avoid further rises in transmission and to guard against yet another increase in the rates of new infections,’ even as ‘vaccines continue to be distributed,’ ” the brief said.

The moratoria only apply to individuals who may be forced to become homeless or turn to a close-quarters communal living setting where the risk of disease spread is high, the CDC clarified. The order is further limited by the fact that it does not excuse tenants from paying rent or complying with their lease, and landlords still may commence eviction proceedings in state courts as long as they do not carry out the eviction while the moratorium remains.

The landlord appellants in this case challenged the CDC’s order, arguing that it overstepped its statutory authority, that the moratorium is arbitrary and capricious, and that the agency did not follow the proper notice-and-comment procedure. The district court reasoned in its denial of the injunction that the plaintiffs did not adequately show that they would suffer irreparable harm without immediate injunctive relief; on the appeal in this docket, the plaintiffs claimed the district court abused its discretion in its judgment.

The defendant-appellees sided with the district court, agreeing that the landlords could not establish that they would suffer irreparable harm — and sufficiently pleading irreparable harm is an “indispensable prerequisite to issuance of a preliminary injunction,” citing Tate v. American Tugs Inc.

Noting that the most recent two extensions of the moratorium have included more than $46 billion of assistance for tenants who cannot afford to pay rent as well as the aforementioned narrow terms of who is covered under the moratorium, the defendants claimed that the plaintiffs have no strong case to plead that the district court erred in not providing the immediate relief, an action normally reserved for extraordinary cases yielding extraordinary injuries.

These appellate proceedings are among other recent actions one circuit court away. In the Sixth Circuit, another group of landlords challenged the CDC’s moratoria on similar grounds — but yielded different results. Last month, the Department of Housing and Urban Development had asked for a stay of a Tennessee district ruling that actually found the eviction moratorium unlawful, which the Sixth Circuit panel denied pending appeal.

The U.S. agencies retain their own counsel. The landlord plaintiffs in this case are represented by Pacific Legal Foundation and Alker & Rather LLC.