As the weather heats up, so too does the fight to end the Centers for Disease Control and Prevention’s pandemic-related eviction moratoriums and restore landlords’ ability to take legal action against delinquent renters.

Caleb Krukenberg, New Civil Liberties Alliance Litigation Counsel. Courtesy photo Caleb Kruckenberg, New Civil Liberties Alliance Litigation Counsel. Courtesy photo

And one of the groups driving the push is the New Civil Liberties Alliance, which presented oral arguments via teleconference before the U.S. Court of Appeals for the Eleventh Circuit in Brown v. CDC, an eviction moratorium lawsuit against the Centers for Disease Control and Prevention.

Despite being able to file eviction paperwork in many state courts, NCLA litigation counsel Caleb Kruckenberg argued that his housing provider clients faced irreparable injury because they could not remedy the suits.

“The injury is that they cannot retake possession of their own property, because what is undisputed is that a state judiciary is forbidden by federal law from issuing an eviction order that can be executed to return … possession of the property to my client,” Kruckenberg said before the three-judge appellate panel via videoconference. “That is the text of the CDC eviction order. It says evictions are a federal misdemeanor.”

U.S. Court of Appeals for the Eleventh Circuit in Brown v. CDC Oral Arguments May 14, 2021. Courtesy photo U.S. Court of Appeals for the Eleventh Circuit in Brown v. CDC Oral Arguments May 14, 2021. Courtesy photo

Kruckenberg said his clients also endured the irrecoverable deprivation of the total value of their property, deeming it another irreparable harm.

“This is something that they can never recover,” Kruckenberg said.

Representing the CDC, Alisa B. Klein of the Civil Division of the Department of Justice in Washington, D.C., argued that $46 billion in congressionally appropriated funds for rental assistance provided directly to landlords mitigated Kruckenberg’s irrecuperable-rent argument.

Britt Grant, Georgia Supreme Court Justice, testifies before the Senate Judiciary Committee, during her confirmation hearing to be U.S. Circuit Judge for the Eleventh Circuit, on Wednesday, May 23, 2018. Photo: Diego M. Radzinschi/ALM Judge Britt Grant, U.S. Court of Appeals for the Eleventh Circuit (Photo: Diego M. Radzinschi/ALM)

Klein also highlighted that the CDC moratorium existed, in part, to help protect the general public from COVID-19 exposure by ensuring tenants had a place to self-quarantine, self-isolate and ensure social distancing as needed.

“If we can consider, as you say we should, the rental assistance that Congress has offered, can we also consider the dramatic decline of COVID-19 in the United States?” asked 11th Circuit Judge Britt Grant. “I mean, I think it’s hard to have it both ways. Right?”

“We’re on a path that we hope to make the pandemic a thing of the past, but we’re not there yet,” Klein replied. “The CDC doesn’t want to undermine the improving trajectory by prematurely lifting this moratorium or other guidance for unvaccinated people.”

Lisa Branch, Circuit Judge with the U.S. Court of Appeals for the Eleventh Circuit, speaking during a panel discussion titled “The Pros and Cons of Plea Bargaining,” at The Federalist Society’s 2018 National Lawyers Convention, held at The Mayflower Hotel in Washington, D.C., on Thursday, November 15, 2018. Judge Lisa Branch, U.S. Court of Appeals for the Eleventh Circuit. (Photo: ALM).

Judge Elizabeth “Lisa” Branch questioned a lack-of-insolvency argument by Klein, who said property owners might obtain judgments replacing unpaid rent in the future, pointing out that tenants had already declared under penalty of perjury that they could not pay any rent.

“What I see is you have such a lack of ability to pay; I don’t know why we are not in the insolvency arena,” Branch said.

While the panel called the CDC’s authority into question, juxtaposing its national moratorium authorization with its lack of power to order schools to close nationwide, the proceeding adjourned without a clear victor.

Other Litigation

The Eleventh Circuit case is just one battle in an ongoing war between the NCLA and the CDC over the eviction moratorium.

In New Jersey, NCLA has filed a reply brief in Kravitz v. Murphy in the Superior Court of New Jersey, Appellate Division challenging Executive Order No. 128, which Gov. Phil Murphy issued on April 24.

Challenged is a provision of the executive order that allows tenants to pay portions of their rent with their security deposit. The document says, “A security deposit and the accumulated interest and earnings on the investment of such deposit remain the property of the tenant.”

But representing small property owners, NCLA said the executive order “interfered with the contractual rights and obligations of private citizens.”

By constraining residential housing providers to use their tenants’ security deposits toward rent payments, Murphy’s order subverted property rights through its deferral of existing laws governing residential leasehold contracts. As a result, NCLA said, property owners have been deprived of security against property damage caused by tenants.

“Governor Murphy made clear to the Appellate Division that he believes he has the power to do literally anything he wants, so long as he unilaterally decides that his executive actions are related to the pandemic and in the public’s interest,” said Jared McClain, NCLA litigation counsel. “But the governor’s emergency powers do not include the authority to waive statutory law and rewrite private contracts. Our clients are simply asking the court to rule that Governor Murphy is still bound by law during an emergency.”

Read More:

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Federal Judge Vacates CDC’s Eviction Moratorium

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