DOJ Urges Federal Judge to Keep CDC Eviction Moratorium in Place

Department of Justice lawyers Friday urged a federal judge to let a new Centers for Disease Control and Prevention eviction moratorium remain in place, citing the rising number of COVID-19 cases — and noting the Supreme Court never ruled on the moratorium's merits.

The brief referenced a prior ruling from the Court of Appeals for the D.C. Circuit, which addressed the Centers for Disease Control and Prevention’s statutory authority to issue the measure — and found the Biden administration was likely to succeed in its defense of it.

"Absent a contrary ruling from the Supreme Court in a challenge to CDC’s new moratorium, this court should follow the D.C. Circuit motions panel’s determination that the moratorium should remain in effect," the DOJ brief reads.

Even if District Judge Dabney Friedrich rules against the moratorium, the DOJ lawyers urged her to stay the ruling while it's appealed.

"Any injury to plaintiffs caused by a temporary administrative stay is outweighed by the risk of illness and mortality if the moratorium targeting areas of high or substantial transmission is unnecessarily lifted at this moment when new cases are rapidly increasing due to the highly contagious Delta variant," the filing reads.

The CDC’s evictions moratorium started during the Trump administration, and has been extended multiple times, the National Law Review noted.

But it's also been been challenged in several federal courts by lawyers for landlords, including in Washington, D.C., the legal news outlet reported. Friedrich initially tossed the moratorium after the challenge but later stayed her ruling as it went up on appeal, the National Law Journal noted.

The Supreme Court in June declined to lift her stay in a 5-4 ruling, the legal news outlet reported, noting that though Justice Brett Kavanaugh joined the majority, he said he believed the federal agency had exceeded its statutory authority.

The Biden administration let the moratorium expire at the end of July, but earlier this week announced the CDC would again extend the moratorium, applying it to areas where there is substantial or high transmission of COVID-19.

The tenants’ lawyers then went back to Friedrich with an emergency motion, asking her to again block the moratorium nationally, citing the high court’s decision last month, including Kavanaugh’s statement on the CDC’s lack of statutory authority.

"At a minimum, the Supreme Court’s ruling has eliminated a key premise on which this court’s stay order rested—namely, that the government, at that time, had ‘raised a serious legal question on the merits’," the brief reads, according to the National Law Review.

The DOJ lawyers argued the high court didn’t rule on the merits of the case.

"Until the Supreme Court acts, this court should follow the D.C. Circuit, not predictions about what the Supreme Court may decide," the DOJ lawyers wrote in their brief.