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Has the CDC Eviction Moratorium Been Vacated?

Last Tuesday, May 5th, a federal court in Washington, D.C. issued an opinion vacating the Center for Disease Control’s (CDC) Eviction Moratorium which prevents eligible tenants who have completed the CDC Declaration Form from being evicted for nonpayment of rent. The CDC’s moratorium has been in place since September 4, 2020 and was extended through June 30, 2021. The headlines last week, however, may have instilled some false hope for landlords, as most gave the impression that the CDC eviction moratorium has been vacated.

Judge Dabney Friedrich, in Alabama Association of Realtors et al v. United States Department of Health and Human Services , concluded that the CDC did not have the legal authority to impose a nationwide eviction moratorium as a means of combatting the ongoing COVID-19 pandemic in the United States after January 31st since Congress wasn’t explicit in supporting the moratorium beyond this date. Because Congress did not specifically support the extension, the question for the court was whether the Public Health Service Act grants the CDC the legal authority to impose a nationwide eviction moratorium. As Judge Friedrich stated, restricting evictions is “different in nature than ‘inspect[ing], fumigat[ing], disinfect[ing], sanitize[ing], . . . . exterminate[ing], or destroy[ing].’” The court held that the moratorium exceeds the CDC’s statutory authority to protect public health.

Within hours of the D.C. ruling, the Justice Department’s Civil Division filed a notice of appeal of the decision and stated they would seek an emergency stay of the order pending appeal. If granted, this would mean that the CDC Order would remain in place until the appeal was concluded. This could play out in courts for months.

Earlier this year, a federal district court in Tennessee (Tiger Lily, LLC v. U.S. Department of Housing and Urban Development) ruled that Congress itself had no constitutional authority to empower the CDC to prohibit evictions because such matters do not involve “interstate commerce.” Federal courts in Texas[i] and Ohio[ii] also found the CDC’s eviction moratorium to be outside of the CDC’s authority granted by Congress. Five federal courts in all (thus far) have declared the CDC moratorium invalid.

How does all of this affect us in Colorado or Utah? Because the federal courts that have vacated the CDC Eviction Moratorium are local district courts, they do not create precedence that our Colorado courts must follow. Simply put, unless you set forth your own argument that the CDC moratorium is unlawful AND your local court agrees, you must abide by the CDC rules. The recent challenges, however, create a framework for others to set forth a challenge.

Landlords in Colorado can now charge late fees again. Governor Polis’ executive order barring landlords from charging late fees because of inability to pay rent or any portion of rent in a timely matter expired Tuesday, April 27, 2021, and has not been extended by further executive order.

[i] Lauren Terkel et al v. Centers for Disease Control and prevention et al (2021)

[ii] Skyworks, Ltd. v. Centers for Disease Control & Prevention (2021)

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