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U.S. Supreme Court to Weigh in on Federal Eviction Moratorium

A group of Alabama and Georgia realtors have asked the U.S. Supreme Court for emergency relief in their lawsuit now pending on appeal before the U.S. Court of Appeals for District of Columbia Circuit.

The realtors sued the U.S. government, challenging the legality of the federal eviction moratorium that the Centers for Disease Control and Prevention (“CDC”) instituted in September 2020. The CDC’s moratorium is broader than the Congressional one it replaced in that it applies to all residential properties nationwide, not just federally backed properties. In enacting the moratorium, the CDC relied on the Public Health Service Act, a 1944 law authorizing the federal government to take action to prevent the introduction, transmission and spread of disease. The realtors argued that in enacting such a broad moratorium, the CDC strayed outside the bounds of the authority granted to it under the Public Health Service Act. The U.S. District Court for the District of Columbia agreed and rescinded (“vacated”) the CDC’s nationwide eviction moratorium.

The government appealed to the U.S. Court of Appeals for the District of Columbia Circuit and asked the District Court to delay its decision from taking effect until the appeal had run its course—ensuring that no evictions would occur in the meantime. The District Court entered the stay, noting that although the government had not established a likelihood of success on appeal, serious injury would occur because “as many as 433,000 cases of COVID-19 and thousands of deaths could be attributed to the lifting of state-based eviction moratoria.” The realtors asked the Court of Appeals to lift the stay and, when the Court declined to do so, filed an emergency petition asking the U.S. Supreme Court to do the same. In their emergency petition, the realtors contend that in enacting the moratorium, “the CDC shifted the pandemic’s financial burdens from the nation’s 30 to 40 million renters to its 10 to 11 million landlords—most of whom, like applicants, are individuals and small businesses—resulting in over $13 billion in unpaid rent per month.”

Now the Supreme Court will decide whether the stay should be lifted, and the moratorium rescinded, while the government pursues its appeal. With the current moratorium set to expire at the end of this month, however, the propriety of the stay may quickly become a moot point.

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