Landlords’ Group Sues CDC Over Pandemic-Era Eviction Moratorium

September 23, 2020 Updated: September 23, 2020

The National Apartment Association (NAA) and four individual landlords are suing the Trump administration in federal court over the federal eviction moratorium that prevents them from displacing delinquent residential tenants during the ongoing pandemic.

The lawsuit, known as Brown v. Azar, was filed in U.S. District Court for the Northern District of Georgia and names Health and Human Services (HHS) Secretary Alex Azar, the U.S. Centers for Disease Control and Prevention (CDC), and acting CDC Chief of Staff Nina B. Witkofsky, as defendants, and asks the court to vacate “their September 1, 2020 Order, which suspended lawful residential evictions as applied to Plaintiffs.”

The legal action targets the second federal eviction moratorium now in effect. On March 27, Congress approved the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which included a limited, temporary moratorium on evictions for certain types of federally backed housing, which expired on July 24.

But the new moratorium by the Trump administration covers most renters across the United States and runs through the end of the year. CDC’s Witkofsky issued the moratorium order, titled, “Temporary Halt in Residential Evictions to Prevent Further Spread of COVID-19,” on Sept. 1.

The order became effective upon publication in the Federal Register, which took place Sept. 4.

The landlords’ lawyers took aim at what they characterized as the Trump administration’s overreach.

“When will the federal government learn that Congress makes the laws, not federal agencies?” Mark Chenoweth, executive director and general counsel for the New Civil Liberties Alliance (NCLA), which is representing the landlords, said in a statement.

“NCLA looks forward to vindicating the civil rights of our clients to access the courts, enforce their rental contracts, and preserve their rights to reclaim their own property.”

NCLA describes itself as “a nonpartisan, nonprofit civil rights group” that aims “to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.”

The CDC’s moratorium blocks property owners from moving to evict tenants for nonpayment of rent if they notify their landlord in writing that they experienced a loss of income, large medical bills, have tried unsuccessfully to obtain financial assistance from the government, and would be forced into homelessness or an uncomfortably crowded living situation if they were to be evicted.

The moratorium covers individual renters who earn less than $99,000 a year. Landlords who defy the CDC order and move to evict tenants could suffer criminal penalties of up to a year in jail and fines up to $250,000.

The CDC argues that it has the power to act, based on the Public Health Service Act and related federal regulations that give it the authority to do what is “reasonably necessary” to halt the interstate spread of communicable disease, including “inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.”

In the legal complaint, the plaintiffs dispute the government’s claims. They “provided habitable homes to their tenants and continue to pay for maintenance, utilities, and other expenses,” and have “a right to expect that if their tenants did not pay rent, the law and the courts would be open to them.”

But the landlords “failed to anticipate … that CDC, a federal agency without any authority over housing, would issue a sweeping order suspending state law under the flimsy premise that doing so was ‘necessary’ to control the COVID-19 pandemic.”

CDC’s actions “are not authorized by statute or regulation” and “are unprecedented in our history and unconstitutionally deny property owners across the country to access the courts.”

“Since we filed our lawsuit, NCLA has received an overwhelming response from people across the country who have been harmed by CDC’s national eviction order,” NCLA litigation counsel Caleb Kruckenberg said in a statement.

“This speaks to the serious damage caused by CDC’s lawless effort to rewrite the law. We are thrilled to represent the members of the NAA and the brave property owners who are standing up to this abuse of power.”