Editors note: This column was written to assist in explaining the multiple court decisions, appeals and recent additional eviction moratorium implemented by the CDC. A special thanks to Jeff Peil a local attorney who wrote this column for us to provide some clarity on the subject.
What is the law, now that the CDC has extended its eviction moratorium?
This is my best attempt to breakdown what is a highly technical legal issue into one that can be understood.
The Alabama Association of Realtors has been fighting this issue in federal court and has achieved a half victory. In Alabama Association of Realtors v. Dept. of Health & Human Services, the trial court (the D.C. District Court) entered an order that declared the CDC moratorium was illegal because it exceeded the power Congress had given the federal agency. As a result, the moratorium could not be enforced.
Because the CDC is based in D.C., a D.C. federal court has the ability to invalidate the CDC’s edicts on a nationwide basis. So, landlords win, right? Unfortunately, the CDC immediately appealed the trial court’s order and sought a stay.
Nine days later, the trial court judge, Dabney Friedrich of the D.C. District Court, entered a stay of her own order, pending appeal.
This second order, the judge’s stay, is a bizarre legal construct if you really think about it. Friedrich’s stay is basically a judicial order that says, “What the government is doing is illegal, and must be stopped, but why should one judge in D.C. have the right to issue a nationwide order that cancels government operations? I’ll wait to make sure a higher court agrees with me.” Stays exist so that the law may move slowly and with careful deliberation.
And slow it is.
It typically takes months for a court to reach the actual issues raised in an appeal. The D.C. Circuit Court of Appeals has yet to decide whether the CDC moratorium is valid. Rather, it issued a very length decision in which it thoroughly decided one small matter: the trial court’s order should be stayed until it, the appellate court, can make any further decisions.
The plaintiffs then appealed to the Supreme Court. The Supreme Court refused to overturn the stay order because, as Justice Kavanaugh observed, the CDC order was ending on July 31, 2021, and would be over before the appellate courts really dove into the legal issues.
So, what that means in standard English is that the Supreme Court effectively punted. It declined to take the case. In turn, that means that the last judgment regarding the CDC moratorium is the judgment issued by the D.C. Circuit Court of Appeals, which said that the CDC moratorium could continue to be enforced until it, the appellate court, issued another order.
Everyone assumed that the CDC order would expire on July 31, 2021, and every other court would simply determine the issue to be moot. Indeed, Justice Kavanaugh stated in the Supreme Court’s order: “In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”
Congress never passed any legislation, so game over, right?
Wrong. The CDC decided to extend the moratorium anyway.
The landlord plaintiffs rushed back to the trial court and asked that it drop its stay order. The only problem with that is that the plaintiffs were effectively asking the district court to overrule a higher court. A federal trial court judge in D.C. does not have the authority to overturn the D.C. Circuit Court of Appeals, which had already ruled that the trial court orders were stayed until it, the appeals court, ruled on the CDC’s appeal.
In its opinion, the trial court did a very good job of explaining why it could not rule differently. It essentially asked, “What if it had turned out differently?”
Pretend the trial court entered a stay, the Court of Appeals lifted that stay and then the Supreme Court agreed that the stay should be lifted. This would have resulted in evictions starting back up in full swing last May. Pretend further that the CDC issued a new moratorium order, extending its own moratorium. Surely the CDC could not run back to the trial court and say, “We issued a new order! Put the stay back in place!” The fact is, whether reversed or affirmed, a trial court cannot reverse an appellate court.
If this sounds confusing, it should. There seems to be clear guidance from five U.S. Supreme Court justices that the new extension of the CDC moratorium is unconstitutional. However, the Supreme Court has not been fairly presented with that issue, and its members have not ruled on it. Therefore, landlords in counties facing “substantial” and “high” levels of COVID-19 transmission face the threat of federal criminal prosecution if they “evict any covered person from any residential property in any jurisdiction to which this Order applies.”
That is a serious consideration—is it worth risking federal jail time to collect rent?
What does it mean, practically, for landlords? I handle evictions in about 20 counties split between Atlanta, Augusta, and Savannah in Georgia, and North Augusta, Aiken, and Columbia in South Carolina. Most of those counties have multiple magistrate judges. I speak only from my experience, but in my opinion the landlord’s outcome is about 50% dependent upon the magistrate judge who hears the case. Some magistrates are enforcing the CDC moratorium because it carries with it the force of federal law, and some see clear guidance from the U. S. Supreme Court that this particular federal law is unenforceable. Reasonable people can and do differ, and, indeed, it varies wildly by jurisdiction.
So, what about the other 50%? That comes down to the landlord’s attorney. A good eviction attorney (and there are many) can find a way to make an end run around the CDC moratorium that does not place her or his client in jeopardy of jail time. Unfortunately, for now, the law is very gray, and both landlords and tenants need good attorneys.
What does it mean for tenants? In the majority of counties in Georgia and South Carolina, if the landlord is seeking back rent, the tenants will most likely be able to remain in their unit until Oct. 3, 2021, or until the D.C. Circuit Court of Appeals invalidates the CDC extension, whichever occurs first.