COVID-19 Update: Decision Rescinding Federal Moratorium on Temporarily Suspended CDC Deportations | Cadwalader, Wickersham & Taft LLP


On May 5, 2021, the United States District Court for the District of Columbia (“DC Court”) quashed a nationwide deportation moratorium order issued by the Centers for Disease Control (“CDC”) to help mitigate the spread of COVID-19 by Alabama Association of Realtors, et al. v. US Department of Health and Human Services, et al. (the decision “). The DC Court ruled that the CDC had overstepped its authority in issuing such a moratorium on national evictions from rental properties and that the CDC order should be rescinded. The decision was immediately brought to court. appeal by the Justice Department on behalf of the CDC and the decision stayed pending such an appeal.

The moratorium on evictions provided for in the Temporary Stop of Residential Evictions to Prevent the Spread of COVID-19 (the “CDC Order”) was issued by the CDC on September 4, 2020 and subsequently extended to expire on September 30, 2020. July 2021. The CDC order was issued by the CDC to combat the spread of the coronavirus by allowing tenants who met certain financial criteria who had difficulty paying the full contract rent during the pandemic to stay at home. them, rather than being forced into homeless shelters or similar crowded living spaces. . Homeowners and landlords who violate the CDC order could be subject to financial and / or criminal penalties. While several states, including New York and California, and local governments have adopted their own moratoriums on evictions in response to the coronavirus pandemic, the CDC order provided tenants who had difficulty paying rent for the pandemic across the country a defense against evictions. The DC court ruling does not affect these state or local moratoria.

The plaintiffs, which included residential property management companies, filed a lawsuit in November 2020 because they felt the eviction moratorium exceeded the CDC’s statutory authority and challenged the CDC’s order for a certain number of statutory and constitutional grounds. They filed a motion for expedited summary judgment with the DC Court. The CDC and the other defendants, represented in the action by the Department of Justice, filed a motion for summary judgment and a partial motion to dismiss.

The CDC Order was issued by the CDC under Section 361 of the Public Health Services Act, which grants the CDC the power to take action to stop the spread of communicable diseases in the United States. The ruling said, “The question for the court is narrow: does the Public Health Services Act give the CDC legal authority to impose a nationwide moratorium on evictions?” It’s not. “To reach such a decision, Friedrich J. applied the administrative law two-step analysis of Chevron USA Inc. v Natural Resources Defense Council, Inc. to determine whether or not an administrative body should be accorded judicial deference to its interpretation of a statute promulgated by Congress.

The first step of such Chevron the analysis is whether “Congress has spoken directly on the specific issue in dispute”. If the law is found to be ambiguous by a court, the court will apply the additional step of analysis, which assesses whether the agency’s interpretation of the law is reasonable, even if the court would have chosen another interpretation. But the DC court failed to reach the second step and concluded that the Public Health Services Act, in plain language, did not prove Congress’ intention to give the CDC the power to issue such nationwide deportation moratorium. Judge Friedrich wrote that “the Court must apply the ‘ordinary tools of the judicial trade’, including construction cannons. These canons confirm what the plain text reveals. The authority of the secretary does not extend [sic] according to what the Ministry claims. “

Judge Friedrich issued the ruling setting aside the CDC order nationwide, dismissing the government’s request to limit the effect of the ruling and limit any setting aside order to plaintiffs with standing in DC court . Prior to the ruling, there had been several challenges to the CDC order, some of which also concluded that the CDC had exceeded its authority in issuing the CDC order, but on other grounds. Earlier this year, the United States District Court in the Eastern District of Texas ruled that the CDC order exceeded the constitutional authority granted to the CDC, rejecting the government’s argument that the CDC order fell within legislative powers. granted to Congress under the Interstate Commerce Clause. of the US Constitution. But unlike some previous decisions where courts have limited the scope of their decisions to apply only to parties involved in particular legal proceedings before them, Friedrich J. precedent established ”.

The impact of the ruling on tenants and landlords across the country is not yet clear. Immediately after the decision, the Department of Justice filed a notice of appeal and a request to stay the decision until the appeal was decided. The moratorium remains in place for the time being after Judge Friedrich suspended the decision pending such an appeal. We will continue to monitor and keep you informed of further developments, if any, in this event.

1 See Case # 1: 20-cv-0337 in the United States District Court for the District of Columbia.

2 85 Fed. Reg. 55, 292 (September 4, 2020).

3 86 Fed. Reg. 16731 ​​(March 31, 2021).

4 The CDC order states that “an owner, owner of a residential property or any other person having the legal right to pursue eviction or an action with dispossession shall not evict a covered person from any residential property in a jurisdiction to which this Order applies during the term of the Order. “85 Fed. Reg. 55, 292 (September 4, 2020).

5 86 Fed. Reg. at 8.025.

6 The plaintiffs in the action were Danny Fordham, Robert Gilstrap, the corporations they use to manage the rental properties (Fordham & Associates, LLC, HE Cauthen Land and Development LLC and Title One Management LLC) and two trade associations ( Alabama and Georgia Associations of Realtors).

7 The other defendants were the US Department of Health and Human Services, US Department of Justice, Alex M. Azar, II, William P. Barr, Robert R. Redfield, and Nina B. Witkofsky.

8 Case No. 1: 20-cv-0337 in the United States District Court for the District of Columbia.

9 Case 1: 20-cv-0337 in the United States District Court for the District of Columbia.

10 Case 1: 20-cv-0337 in the United States District Court for the District of Columbia citing Mozilla Corp. against the Fed. Commc’ns Comm’n, 940 F. 3d 1, 20 (DC Cir. 2019) and ArQule, Inc. v Kappos, 793 F. Supp. 2d 214, 219-20 (DDC 2011).

11 Case 1: 20-cv-0337 in the United States District Court for the District of Columbia.

12 See Case # 6: 20-cv-00564 in the United States District Court for the Eastern District of Texas.

13 Steven Herman and Jessica Wong, Memo clients and friends of Cadwalader, Update COVID-19: Federal moratorium on evictions canceled, March 5, 2021, https://www.cadwalader.com/resources/clients-friends-memos/covid-19-update–federation-eviction-moratorium-struck-down.

14 Case No. 1: 20-cv-0337 in the United States District Court for the District of Columbia citing OA against Trump, 404 F. Supp. 3d 109, 153 (DDC 2019).


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