Federal Judge Weighs Challenge to CDC Order Barring Evictions

Should the CDC have the authority to bar evictions during the COVID-19 pandemic? That was the question put before a federal judge in Atlanta on Tuesday.

“I represent several small residential landlords, including the National Apartment Association (NAA), but my clients all share the same thing — they own property that they’re legally entitled to take possession of and are prevented from doing so by the CDC’s order,” said plaintiff’s attorney Caleb Kruckenberg. “This is an unprecedented exercise of claimed agency power … With a stroke of the pen and without even using ‘notice and comment’ rulemaking, this agency, which is meant to protect public health, criminalized the use of state legal procedures across the country.”

That’s not the way Leslie Vigen, the CDC attorney, saw it. “This case is about maintaining a valid order issued by the public health experts at the CDC to prevent the ongoing spread of a deadly disease in the midst of a global pandemic,” she said. “Enjoining the order can force millions from their homes into congregate settings or onto the street, which are locations where COVID-19 spreads easily at a time when the virus is surging in many states.”

Oral arguments in the case, known as Brown v. Azar, were held virtually by the U.S. District Court for the Northern District of Georgia. The case centers around an order the CDC issued on Sept. 4 to halt residential evictions temporarily. “In the context of a pandemic, eviction moratoria — like quarantine, isolation, and social distancing — can be an effective public health measure utilized to prevent the spread of communicable disease,” the order reads.

“Eviction moratoria facilitate self-isolation by people who become ill or who are at risk for severe illness from COVID-19 due to an underlying medical condition. They also allow state and local authorities to more easily implement stay-at-home and social distancing directives to mitigate the community spread of COVID-19. Furthermore, housing stability helps protect public health because homelessness increases the likelihood of individuals moving into congregate settings, such as homeless shelters, which then puts individuals at higher risk [of] COVID-19.”

The CDC notes, “This order does not relieve any individual of any obligation to pay rent, make a housing payment, or comply with any other obligation that the individual may have under a tenancy, lease, or similar contract,” nor does it preclude charging fees or interest on unpaid rent. It applies only to people making under $99,000 a year and who certify that they can’t make their full payment due to a substantial loss of income or high out-of-pocket medical expenses, and that they are doing their best to make timely partial payments. The order runs through Dec. 31 unless it is extended.

Kruckenberg’s client, Richard Lee Brown, owns a residential property in Winchester, Virginia. He rented it to a tenant in April 2017 for $925 per month, but due to the pandemic, the tenant has fallen behind and now owes more than $8,000 in rent. Besides the lost revenue, Brown is subject to “monthly maintenance costs, damages to his property and the lost opportunity to rent or use the property at fair market value,” according to the legal complaint, which seeks a preliminary injunction blocking the CDC order.

“There is no evidence here from the CDC that their order is necessary,” Kruckenberg told the court. “The best the CDC ever said is they think this order may help, but even that is built on a series of inferences and almost no data whatsoever,” just some rough preliminary data that people in homeless shelters view eviction as the reason they’re there, and some data showing people in homeless shelters had higher incidences of COVID-19.

“That’s not substantial evidence,” he said. “There’s no evidence whatsoever that this order has been effective or could be effective against coronavirus.”

Vigen disagreed. “The order has pages and pages of evidence with citations as to why the public health experts at CDC think that this measure is reasonably necessary in the interest of public health,” she said. “There is evidence about the spread of this disease among congregate settings like homeless shelters, [where] persons [who] would be evicted in the absence of this order, are likely to gather in. There is evidence that people experiencing homelessness tend to have underlying conditions that lead to more severe COVID-19 outcomes. Given this evidence, eviction moratoria can help to control and prevent the spread of COVID-19.”

Vigen added, “States that don’t have eviction moratoria in place are not taking adequate measures.”

Judge J.P. Boulee asked both attorneys whether the landlords had received any coronavirus relief money under the CARES Act to help them make their building payments. “I would assume some NAA members received some Paycheck Protection Program funds,” Kruckenberg replied. “What I can say with confidence is the members of NAA we cited in our papers, none have received any governmental assistance that offsets what’s happening to them.” Vigen said she couldn’t address the issue because she was not an expert on the CARES Act, “but I know there are certainly payment available for certain landlords in certain jurisdictions, but I couldn’t speak to these individual plaintiffs.”

There was no indication of when Boulee would rule on the preliminary injunction.