The Mid-Pandemic Battle of Legal Interpretation
Centers for Disease Control Eviction Order and Constitutionality Dilemma
by Jenna Baum, Esq. and Justin Ortega, Esq.
Early September of 2020, six months after the pandemic began and while many state eviction moratoriums had already come to an end, the Centers for Disease Control and Prevention stepped in with an added protection to the landlord tenant eviction process, issuing their own “Temporary Halt on Residential Evictions” (85 FR 55292).
The background of the Order provides that purpose of the CDC eviction moratorium is to prevent homelessness and thus the spread of the novel Coronavirus, as well as reinstate some of the eviction protections of the CARES Act with extra protections put in place.
Who is covered under the CDC Order?
“Under this Order, a landlord, owner of a residential property, or other person with a legal right to pursue eviction or possessory action, shall not evict any covered person from any residential property in any jurisdiction to which this Order applies during the effective period of the Order. This Order does not apply in any State, local, territorial, or tribal area with a moratorium on residential evictions that provides the same or greater level of public-health protection than
the requirements listed in this Order.”
Furthermore, the “covered person” that shall not be evicted prior to March 31, 2020, is defined as: “Any tenant, lessee, or resident of a residential property who provides to their landlord, … a declaration under penalty of perjury stating that they meet the criteria laid out within the CDC Declaration form.”
Very distinct details of what must be attested to in the CDC declaration in order for an occupant to be protected by the Order include: the occupant must declare that they can not make housing payments due to substantial loss of income, that they have made best efforts to obtain assistance for rent or housing, that they expect to earn less than $99,000 in 2020 as an individual or no more than $198,000 if filing a joint tax return, and finally that an eviction would render the individual as homeless.
It is also important to note that under this Order, occupants may still be evicted for reasons other than not paying rent or making a housing payment. The Order specifically mentions that evictions may still move forward based upon whether the tenant engaged in criminal activity on the property, is threatening the health or safety of other residents, is committing damage to the property, or is violating building codes.
The moratorium is not automatic; in fact, the Order requires the tenant to trigger their own defense by delivering the completed CDC Declaration form to the owner of the property. The owner must then review to ensure the tenant meets the outlined criteria and once verified immediately halt all eviction efforts until after March 31, 2021. Since the original sunset of December 31, 2020, the CDC moratorium has been extended two times—once by federal legislation through January 31, 2021 (134 Stat. 1182, 2078-79) and the other extension by the CDC through the current sunset date of March 31, 2021 (86 Fed. Reg. 8020).
Financial penalties for an individual could result in fines of $100,000 to $250,000, with corporations being fined anywhere from $200,000 to $500,000 for violations. Out of an abundance of caution, some landlords have taken affirmative actions to add CDC language into their rent demands to avoid these possible fines and to provide a mitigating factor should Courts make a finding against them.
Courts in Confusion
The courts have varied on how to interpret the CDC order. While some courts have requested attestations from tenants, other courts are using their equitable powers to not require an affidavit or showing from the tenant while still providing relief pursuant to the CDC order. Other courts have refused altogether to hear a case upon a tenant eviction.
In Spicliff, Inc. v. Steven Cowley, the County Court in Escambia Country Florida held that the CDC’s order violated the Fifth Amendment based upon a taking, and that the government cannot force landlords to house persons in a pandemic without due process and just compensation. (2020 Fla. Cty. LEXIS 1) In contrast, Brown v. Azar, a landlord argued that the CDC order was arbitrary and capricious, tantamount to a taking of their residential property, and denied homeowners access to the courts. In Brown, the United States Court for Northern District of Georgia, Atlanta Division, the court reasoned that the CDC had the authority for the order and further that the landlord did not satisfy the standards to obtain a preliminary injunction from the order. (Brown v. Azar, 2020 U.S. Dist. LEXIS 201475)
Arguments have been made that the ability for the federal government to issue this halt on
residential evictions was based upon the Commence Clause, Article 1, Section 8, Clause 3 of the U.S. Constitution, granting the government the ability to regulate commerce among the states. Contrary to this is the 10th amendment which provided state government powers not specifically given to the Federal Government.
“Although the COVID-19 pandemic persists, so does the Constitution,” – United States District Judge J. Campbell Barker
The larger question still loomed—does the CDC even have the authority to create such an order restricting the rights of a homeowner to evict during a pandemic? On February 25, 2021, the United States District Court Eastern District of Texas made a ruling in a tenant eviction case Lauren Terkel v. Centers for Disease Control and Prevention (Terkel Case) that the CDC (Federal government) did not have the powers to enforce an eviction moratorium. The court elaborated that the CDC’s argument of halting evictions via the Commerce Clause through regulating interstate commerce was insufficient and too attenuated as there are more interstate movements by divorce in comparison to foreclosure and evictions. Finally, the Court stated that the CDC order exceeds the power granted to the federal government via the Commerce Clause and held unlawful as contrary to constitutional power. (2021 U.S. Dist. LEXIS 35570)
Where we stand today
As of this moment, the Terkel case is being appealed by the Justice Department to the US Court of Appeals Fifth Circuit.
One thing is certain—every landlord and their counsel should be aware of the Terkel case to possibly use as a persuasive tool when litigating whether a tenant is covered under the CDC Eviction Order.
