Justice Dept. to appeal judge’s order vacating CDC eviction moratorium

The Department of Justice (DOJ) on Wednesday said it would appeal a federal judge’s order vacating a nationwide freeze on evictions.

The department’s announcement came just hours after a federal judge in Washington, D.C., struck down the eviction moratorium put in place by the Centers for Disease Control and Prevention (CDC) to help cash-strapped renters remain in their homes during the pandemic.

“The Department of Justice respectfully disagrees with today’s decision … concluding that the moratorium exceeds CDC’s statutory authority to protect public health,” Brian Boynton, a DOJ attorney, said in a statement. “In the department’s view, that decision conflicts with the text of the statute, Congress’s ratification of the moratorium, and the rulings of other courts.”

Housing advocates and tenants rights groups — which had immediately called upon the Biden administration to appeal the ruling — hailed the latest development in the fast-moving lawsuit.

Emily Benfer, a law professor at Wake Forest University who has filed friend of the court briefs defending the CDC policy in related litigation, said the DOJ’s appeal was evidence that the Biden administration “will continue to vigorously defend” the moratorium.

“Without this critical public health measure, the eviction floodgates would open, placing millions of families in jeopardy, thwarting efforts to control the pandemic and undercutting $46 billion in eviction prevention assistance,” she told The Hill.

The Wednesday morning decision handed a victory to a group of property owners and realtors behind one of several pending challenges against the federal eviction halt. U.S. District Court Judge Dabney Friedrich, a Trump appointee, ruled that the agency exceeded its authority with the temporary ban.

The DOJ’s appeal elevates the case to the D.C. Circuit Court of Appeals, where the department will also ask the court to block Friedrich’s ruling from taking effect while the appeal plays out.

A number of other judges have ruled on the eviction ban’s lawfulness, with landlords holding a slight advantage in their win-loss record against the federal government. 

But Friedrich’s order was thought to be the most far-reaching, since she rebuffed the DOJ’s request that the order apply only to the parties in the suit, expressly giving her ruling nationwide application.

The ruling, if it takes effect, would not disturb eviction freezes enacted by state and local governments, however. 

Friedrich’s decision drew praise earlier Wednesday from landlords’ attorneys and property rights groups. 

Luke Wake, an attorney at Pacific Legal Foundation, which represents landlords in a number of related lawsuits, called the ruling a clear signal that the tide has turned against the CDC.

“The challengers have been right all along,” he said. “The government has no authority against any landlord. Full stop.”

Enacted in September as a public health measure, the CDC order was designed to mitigate the spread of coronavirus by helping financially distressed tenants remain in their homes, instead of forcing them into homeless shelters or other crowded living spaces.

Renters demonstrate their eligibility for CDC eviction protections by signing a sworn declaration under penalty of perjury, attesting that they would face homelessness or overcrowded conditions if evicted, and certifying that they have made partial rent payments to the best of their ability.

Corporate landlords filed more than 56,000 eviction actions since the eviction pause took effect in September, with almost half of those filed this year, according to a study by the Private Equity Stakeholder Project of seven states.

Those notices, which don’t always lead to evictions, are being sent even as billions in rental assistance authorized by Congress continues to make its way from Washington to tenants in need of aid. Experts say there is no nationwide data tracking how many notices have led to evictions during the freeze.

Benfer, of Wake Forest University, said there is clear evidence that evictions are linked to poor health outcomes, with a disproportionate impact on people of color.

“We know eviction spreads COVID-19, we know it disrupts access to health care, and we know it’s increasing health inequity among Black and Latinx people and we know the moratorium stops all of these harms,” she said.