News for the Homefront : Why it’s not yet time to panic about another CDC moratorium

DISCLAIMER: NOT LEGAL ADVICE. FOR INFORMATION ONLY. DO NOT RELY ON ANY ADVICE YOU RECEIVE ON THIS FORUM. Legal advice comes after a complete review of the facts and relevant documents. An attorney-client relationship, with all the privileges associated with it, can only be formed through a written engagement letter which cannot occur in this forum. Mr. Howell is licensed to practice in the Commonwealth of Virginia only and his thoughts are rooted in Virginia Law or general legal principles, not any other specific state’s laws. You should speak with an attorney licensed in your state, to whom you have provided all facts before you take steps that may impact your legal rights.

Last month we brought you a brief analysis of the CDC’s Moratorium on evictions and promised an update this week upon its expiration.  You can see our post on this issue and the related case, Alabama Association of Realtors v. HUD, here (https://www.parazoniumlawgroup.com/news-updates/news-for-the-homefront-a-landlord-tenant-law-blog-why-relief-may-still-be-coming-for-landlords-despite-a-missed-opportunity-in-the-supreme-court ). To summarize, we concluded in that post that there was good reason to believe that the CDC’s Moratorium, originally set to expire July 31, 2021, would not be extended because a skeptical Supreme Court suggested the order was unconstitutional without Congressional action and Congress was unlikely to act. 

As you may now have seen from the headlines, we were only partially right.  Congress did fail to act and even the White House has expressed skepticism toward the legality of its own order. While this turn of events is unfortunate, there are still good reasons for distressed landlords to hope this order will be struck down before its current expiration date of October 3rd.

As you may recall from our earlier post, the CDC’s ban on evictions due to non-payment of rent was initially left in place by the Supreme Court because the end was in sight.  The moratorium was set to expire on July 31st and it did.  Unfortunately for landlords, the CDC once again imposed a new and different eviction moratorium. This is rather startling considering that the attorney for the government told the Court that it did not intend to extend the order further. (We would like to be a fly on the wall when they return to explain that one to Judge Kavanaugh).  At any rate, Congress tried (and failed) to heed the admonition in Justice Kavanaugh’s concurrence in Alabama by passing legislation on this issue.  Since that didn’t work, the CDC has once again stepped in, albeit with a more targeted version of the moratorium than the one that preceded it.

            While the new moratorium is, on its face, intended to look like a more narrowly tailored means to the same end, its vexatious language conceals theoretically limitless application. According to the four-corners of the order, (which can be found at the following link: https://www.cdc.gov/coronavirus/2019-ncov/communication/Signed-CDC-Eviction-Order.pdf) it is limited only to communities “with substantial or high levels of community transmission of COVID-19.” The term “community transmission” has no legal definition we could find. Instead, the order lays out mathematical equations essentially based on the number of cases in the past 7 days for determining which communities have “substantial” or “high” levels of COVID-19 transmission. 

A plain application of the CDC guidance from its website (you can try it yourself here: https://covid.cdc.gov/covid-data-tracker/?fbclid=IwAR1V17hoJNJ7EWZj1J2QwEwnMXw-_vqZEQTop7qKYm1kf7M9Y2rVZDvGBDY#county-view ) shows that cities and counties could move into or fall out of these categories on a rolling basis.  For example, the CDC’s website presently shows Virginia Beach, Norfolk, and Chesapeake as having “high” community transmission despite a relatively low number of cases in all of them in the past 7 days.  So as of right now, the moratorium appears to apply all over Hampton Roads.  That could change if the number of cases decreases enough in the next week, and then it could change right back if cases spike.  This is a recipe for chaos as landlords and property managers seek to comply with the new order. Considering the order itself provides for hefty fines of up to $100,000 and a year in jail for any person in violation, the consequences for failing to apply these complicated criteria are likely to have a chilling effect on evictions on their own, even in areas not strictly reached by the order.

Now for the good news for landlords likely at their wits end about all of this. While these changes were plainly intended to help the order pass constitutional scrutiny, even the Biden administration has expressed very low confidence in their success. In fact, Biden himself has stated that “the bulk of the constitutional scholarship says [the order] is not likely to pass constitutional muster”. Instead, the President seems focused only on delaying the inevitable by giving renters “additional time” for federal relief to reach them. (see https://apnews.com/article/joe-biden-business-health-coronavirus-pandemic-65770ddb7396b08b4cb6f6a074cc5ca3?fbclid=IwAR1q4HJBEuR2DOR5zcY_Snm3p0ZmPHJsHtbawyDJrXHUhgeSwt_4g1n1qI0 ). 

Given that the Alabama case remains on appeal, President Biden’s candor as to his intentions may prove problematic for the CDC. The Supreme Court’s reasoning for leaving the last order in place heavily relied on the representations of the government that they did not intend to extend the moratorium further. Now that those representations have proven untrue and the President has telegraphed they are merely stalling, there does not appear to be any reason the plaintiffs in pending litigation with appropriate standing could not seek interim relief from a Supreme Court likely frustrated by the CDC’s doubletalk. Further, the 6th circuit’s recent ruling in Tiger Lily v. HUD that the legislative basis advanced by the CDC is invalid begs for a resolution by the Court. Either of these scenarios is a potential avenue of relief landlords can hold out hope for from this patently unconstitutional order.

All in all, it seems highly likely in the coming weeks that we will see yet another challenge to the Order which will eventually end up before an unsympathetic Supreme Court which was already only one vote away from striking a similar order down on its last appearance before them. Stay tuned to our blog as we closely follow this issue and we will keep you posted with the latest!