On May 5, 2021, Federal District Judge Dabney Friedrich vacated the Center for Disease Control and Prevention (CDC) nationwide moratorium on residential evictions (the “Order”), which the CDC had recently extended beyond its congressionally approved expiration date of March 31 to June 30, 2021 (Alabama Association of Realtors, et al. v. U.S. Dep’t of Health and Human Services, et al., Case No. 1:20-cv-03377, United States District Court for the District of Columbia). While Judge Friedrich is but one of several federal judges to rule against the Order as highlighted in our March 4, 2021 and March 15, 2021 alerts, her decision is arguably the most extensive. Though no more favorable to the CDC than Judge Friedrich’s vacatur order, the holdings out of federal courts in Ohio and Texas at least were limited to the plaintiffs with standing before those courts. Here, Judge Friedrich refused a request by the Department of Justice (DOJ) for similar treatment and held that the CDC Order must be set aside: “[The D.C. Circuit] has instructed that when ‘regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioner is proscribed’” (citing Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998)).
The Alabama Association decision was based primarily on Judge Friedrich’s reading of the Public Health Services Act, 42 U.S.C. § 264(a) (the “Act”), pursuant to which the CDC first issued the Order in September 2020. Specifically, the federal court found that the Act, by its plain terms, did not expressly indicate congressional intent to vest the CDC with authority to impose a national eviction moratorium. Because the decision to ban evictions is one of “vast economic and political significance,” Judge Friedrich maintained, Congress could not be said to have delegated it without having made its intention to do so explicit.
The DOJ has announced that it has “already filed a notice of appeal of the decision [to the Court of Appeals for the District of Columbia Circuit] and intends to seek an emergency stay of the order pending appeal.”
We will continue to monitor these cases and provide updates as they become available.
Michael Machado, a Law Clerk in our New York office, contributed to the writing of this alert.