Another federal court has ruled against the Centers for Disease Control and Prevention (CDC) nationwide ban on residential evictions (the “Order”), which is set to expire on March 31, 2021. A target of the various lawsuits we highlighted in our March 4, 2021 alert, the Order aims to slow the spread of COVID-19 by prohibiting landlords from evicting qualified tenants who have limited or no housing alternatives. The CDC first issued the Order in September 2020, pursuant to a Congressional delegation of authority codified in Section 361 of the Public Health Services Act, 42 U.S.C. § 264(a) (the “Act”). The Act allows the Secretary of the U.S. Department of Health and Human Services to instruct the CDC to “make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases,” and to enact “other measures as in his judgment may be necessary” to carry out those regulations.
On March 10, 2021, U.S. District Judge J. Philip Calabrese held that the CDC’s Order exceeded its authority under the Act (Skyworks, Ltd., et al. v. Centers for Disease Control and Prevention, et al., N.D. Ohio, Case No. 5:20-CV-02407). Like the other aggrieved property owners whose objections sparked the federal cases discussed in our previous alert, the Skyworks plaintiffs, a group of property managers and landlords, first filed suit for injunctive relief and a declaratory judgment in October 2020. Notably, though, their complaint did not raise the same constitutional concerns that underpin Terkel, the only other federal ruling against the Order to date. See Lauren Terkel, et al v. Centers for Disease Control and Prevention, et al., E.D. Tex., Case No. 6:20-CV-00564 (declaring the CDC’s Order an invalid exercise of the federal Commerce Clause power). Instead, the plaintiffs asserted that the Act by its plain terms did not authorize the CDC to mandate an eviction freeze—and Judge Calabrese agreed: “The most natural and logical reading of the [Act] as a whole does not extend the CDC’s power as far as [the CDC] maintains. . . [and the Act’s] text does not authorize such boundless action.” Accordingly, the court ruled in plaintiffs’ favor but did not grant their requested injunction.
While Terkel is the product of constitutional analysis, the outcome in Skyworks rests on the close reading of a federal statute. Judge Calabrese decided the Act was an unambiguous delegation of limited authority, based on an assessment of the Act’s terms “with an eye to their straightforward and commonsense meanings” (citing Black v. Pension Benefit Guar. Corp., 983 F.3d 858, 864 (6th Cir. 2020). However, two federal district courts found that the same Act unambiguously compels the opposite result than decided by Judge Calabrese (Chambless Enters., LLC v. Redfield, 2020 WL 7588849, W.D. La. Dec. 22, 2020; Brown v. Azar, No. 1:20-CV-03702-JPB, N.D. Ga. Oct. 29, 2020). Indeed, each of the federal judges in Chambless and Brown upheld the CDC’s Order, finding that Congress must have intended to give the agency broad latitude to mitigate the pandemic’s effects. Yet Judge Calabrese summarily rejected this view as one that “would authorize action with few, if any, limits—tantamount to creating a general federal police power.” For him, the Chambless and Brown courts had stretched impermissibly to justify the Order by way of “strained or forced readings” of the Act.
Though its Order currently expires at the end of March 2021, the CDC could again find itself in federal court. Whether or not more lawsuits are on the horizon, the agency will need to confront the fact that the law authorizing the Order is susceptible of competing interpretations. We will continue to monitor these cases and will provide further updates as they become available.
Michael Machado, a Law Clerk in our New York office, contributed to the writing of this alert.