U.S. Supreme Court Vacates CDC Eviction Moratorium

From:  T. Robert Finlay, Wright, Finlay & Zak, LLP


In a swift and decisive opinion, the U.S. Supreme Court vacated the CDC’s Eviction Moratorium last month.

As previously reported, the Center for Disease Control and Prevention (“CDC”) implemented its most recent eviction moratorium order on August 3, 2021, after expiration of the previous Order as of July 31, 2021.  Prior to the implementation of the August Order, the Supreme Court in July (noting that the CDC had exceeded its authority) allowed the previous Order to continue because it was going to end within a few weeks on July 31, 2021.  Despite this express admonition, the CDC issued the August Oder hoping to buy time for congressionally authorized rental assistance to be disbursed to tenants.  The same landlord parties that had filed suit previously renewed their claims to halt the new CDC order.

Last night, the Supreme Court in a per curiam opinion vacates the CDC moratorium, granting stay relief to the landlord parties.  Although not a final ruling, the Supreme Court in issuing the opinion indicated that “careful review of that record makes clear that the applicants are virtually certain to succeed on the merits of their argument that the CDC has exceeded its authority.”  Three justices indicated that they would have denied stay relief due to the recent spike in COVID cases, the public interest favored keeping the stay in place, especially as Congress had already allocated rental assistance that the dissenting judges admitted has taken time to get to the tenants and landlords.  Importantly, this ruling indicates that the Supreme Court believes that the CDC’s powers are not limitless:  “our system does not permit agencies to act unlawfully even in pursuit of desirable ends . . . [i]t is up to Congress, not the CDC, to decide whether the public interest merits further action here.”  Click here to review the opinion.

So, what does this mean for evictions nationally?  Currently, seven states (CA, IL,  MN, NJ, NM, NY, WA ) and the District of Columbia have eviction moratoria in place.  These state moratoria are not affected by the Supreme Court’s ruling.  However, while California is probably not affected by the Supreme Court’s ruling, it still provides welcomed clarity.  We no longer need to include references to the CDC Order in notices out of an abundance of caution, and the risk of judges being confused over the applicability of CDC Order in California is removed.  For the remaining states, the decision means that the CDC’s moratorium cannot be used as a means to stop evictions.  All states have rental assistance programs in place.  Some states, like Colorado and Nevada, have provisions in place to slow down the pace of evictions so that tenants may acquire rental assistance.   Looking forward, the Supreme Court sent a strong signal that future federal eviction moratoriums will not be legal unless authorized by Congress.  The federal executive branch has urged the states to act to stop what it believes will be an onslaught of evictions.  It remains to be seen what actions any states will take or whether there will truly be an onslaught of evictions, but we will keep you posted of any further developments at the state level.

If you have any questions regarding SCOTUS’ ruling, its impact on a particular eviction or the eviction rules in a particular state, county or city in any of the states WFZ handles (CA, NV, WA, OR, UT, AZ, WY, HI, SD), please do not hesitate to contact Robert Finlay at rfinlay@wrightlegal.net or Arnold Graff at agraff@wrightlegal.net.

Thank you.