On Tuesday, August 3, the U.S. Centers for Disease Control and Prevention (CDC) issued a new order (the “Order”) that prohibits evictions in parts of the country experiencing “substantial transmission” of the COVID-19 virus. Specifically, the Order applies only in those U.S. counties where the virus and its Delta variant seem to be spreading more rapidly based on the CDC’s COVID Data Tracker tool. Further limiting the Order’s scope are a set of requirements tenants must meet, and to which they must swear in a declaration form under penalty of perjury, in order to qualify for protection from eviction:
- The tenant has used best efforts to obtain all available governmental assistance for rent or housing;
- The tenant either (i) earned no more than $99,000 ($198,000 if tenant is a joint filer) in 2020 or expects to earn no more than those amounts in 2021, (ii) was not required to report income in 2020, or (iii) received an Economic Impact Payment (stimulus check);
- The tenant cannot pay full rent or make a full housing payment due to substantial loss of income, loss of compensable hours of work, a layoff, or extraordinary medical expenses;
- The tenant is using best efforts to make timely partial rent payments as close to the full amount as tenant’s circumstances may permit;
- Eviction would likely render the tenant homeless; and
- The tenant resides in a U.S. county experiencing substantial or high rates (as defined by the CDC) of community transmission levels of COVID-19.
The Order, which is set to expire on October 3, 2021, comes after weeks of mounting pressure from various groups on the Biden administration to extend the CDC’s now-expired nationwide eviction moratorium (the “Previous Moratorium”). The Biden administration resisted that pressure, pointing to the intense scrutiny to which the Previous Moratorium was subject in federal courts across the country, as we detailed in our March 4, March 15, May 6, and July 1 client alerts. Most recently, the Supreme Court reviewed the Previous Moratorium in Alabama Association of Realtors, et al. v. Dep’t of Health and Human Services, et al., 594 U.S. ____ (2021), where Justice Kavanaugh opined, in concurrence, that the CDC lacked the requisite authority to issue the Previous Moratorium and, therefore, “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”
Though its scope is narrower in application and targets only certain parts of the country, time will tell whether the Order will face legal challenges akin to those the Previous Moratorium faced or if courts will view it any differently. In announcing the Order, President Biden acknowledged the Supreme Court’s ruling in Alabama Association and the possibility of litigation in the near future.
We will continue to monitor the Order and related issues, and we will provide updates.
Michael Machado, a Law Clerk in our New York office, contributed to the writing of this alert.