DC Judge Doubts CDC's Power To Put Halt On Evictions

By Nadia Dreid
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Law360 (April 29, 2021, 9:43 PM EDT) -- The U.S. Centers for Disease Control and Prevention had a hard time convincing the D.C. federal judge tasked with overseeing a challenge to its eviction moratorium that Congress intended to give the public health agency that much power.

U.S. District Judge Dabney L. Friedrich struggled to swallow the argument posed by the CDC on Thursday about the authority it had under the Public Health Service Act, first passed in 1944, to limit human behavior.

The slice of federal statute most at issue during the motion hearing Thursday morning was Section 361 of the law, where the CDC garners its isolation and quarantine authority. It empowers the agency to take certain measures to keep communicable diseases from being brought into the country and from being spread between the states.

That's exactly what the CDC says it was doing when it issued a moratorium on evictions back in September, which has since been extended several times, once by Congress and twice by the CDC itself.

But a group of realtors and property owners say that the agency didn't have the power to do so, and Judge Friedrich seemed inclined to agree.

"At what point is their authority constrained in any way?" Judge Friedrich asked. "Under that reading, the CDC could put a ban on all foreclosures, impose a nationwide lockdown and orders about attending church and sporting events."

The court was talking specifically about the second sentence in Section 361, which gives what the CDC argues are examples of the types of actions the agency could take to restrain the spread of disease. According to the CDC, those examples aren't limiting.

But Judge Friedrich was interested in finding the limit.

"Couldn't the CDC just shut down all travel completely to stop the spread of the disease under that interpretation?" she asked. "Could the CDC use its authority to force everyone to become vaccinated?"

When pressed, counsel for the agency said yes — if the public health risk was severe enough, it could probably force vaccines. Though the CDC did take care to note that it wasn't suggesting it had the power to step on constitutional rights in any way.

What the challengers want is for the court to vacate the rule. They told Judge Friedrich that they didn't think an injunction would do any good, but asked that should she decide to vacate the rule that she do so for everyone affected by it, not just the plaintiffs in the litigation.

They say they're being buried under the financial burden, with tenants who in some cases haven't paid rent for a year, though the CDC pointed out that Congress has appropriated some $46 billion in rent relief to help them out.

In defense of its authority, the agency pointed again toward the statute, which gives the CDC the power to permanently destroy property like livestock in order to prevent the spread of disease — a stronger action than it says it took with the eviction moratorium.

At the close of the hearing, Judge Friedrich thanked both parties for the "outstanding briefing" and said she would have a decision in a week or two.

The challengers are represented by Brett A. Shumate of Jones Day.

The CDC is represented by Leslie Cooper Vigen of the U.S. Department of Justice's Civil Division.

The case is Alabama Association of Realtors et al. v. United States Department of Health and Human Services et al., case number 1:20-cv-03377, in the U.S. District Court for the District of Columbia.

--Editing by Daniel King.

For a reprint of this article, please contact reprints@law360.com.

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