ATLANTA (CN) — An effort by a national landlord group to strike down the federal directive halting residential evictions during the Covid-19 pandemic was rebuffed Wednesday by a divided 11th Circuit panel, which ruled that the landlords failed to show they would suffer irreparable harm if they remained unable to evict delinquent tenants.
In a 15-page opinion, the 2-1 majority turned down the landlords who wanted to block an eviction moratorium enacted by the Centers for Disease Control and Prevention last year.
“We fail to see how the temporary inability to reclaim rental properties constitutes an irreparable injury,” U.S. Circuit Judge Britt Grant, a Donald Trump appointee, wrote for the majority.
The ruling means that the CDC order will remain in place until July 31.
The National Apartment Association and landlords in four states had argued that the CDC has no power to issue an eviction moratorium order. The plaintiffs have been fighting the ban since Sept. 8, 2020, four days after it was first issued.
During oral arguments in the case in May, the plaintiffs' attorney Caleb Kruckenberg of the New Civil Liberties Alliance told the panel that the moratorium leaves his clients without “any meaningful remedy” to evict tenants who don’t pay their rent.
But Wednesday’s majority opinion rejected that argument outright, pointing out that landlords have many avenues available to them to collect unpaid rent, including the ability in most states to garnish a tenant’s wages to recover on a civil judgment against them.
In a separate concurring opinion, Senior U.S. Circuit Judge Gerald Tjoflat, a Gerald Ford appointee, wrote that the moratorium serves only “to operate as an affirmative defense to eviction” for tenants, “not as a total bar to the commencement of eviction proceedings.”
The temporary ban does not relieve tenants of their obligation to pay rent but does prohibit landlords from evicting them for failing to pay rent while the order is in effect. It also does not prevent landlords from starting eviction proceedings in court as long as the actual eviction does not take place during the moratorium period.
Tenants have to sign a declaration attesting that their income does not exceed the limits set in the order; that they have made “best efforts” to make timely partial payments; and that if they were evicted they would likely become homeless or need to move into a shared-living setting, where they may be at higher risk of contracting Covid-19.
“These attestations certainly show that the tenants could not afford their rent at the time they were signed. But they paint a hazy picture — at best — of any given tenant’s ability to pay later,” the majority found.
Kruckenberg criticized the ruling in a statement Wednesday.
“The court’s decision sets a dangerous precedent about what an administrative agency can get away with when it utters the word ‘emergency," he said.
U.S. Circuit Judge Elizabeth Branch, another Trump appointee, dissented from the majority in a 60-page opinion, writing that the landlords had shown that the CDC exceeded its authority.
Branch wrote that “nothing in [the Public Health Service Act] indicates that Congress intended to assign the director of the CDC sweeping authority over the national rental housing market.”
The dissenting opinion goes on to say the lower court incorrectly found that landlords’ economic harms were outweighed by the potential loss of life the government argued could occur if the order is struck down. Branch wrote that “the district court failed to balance the harms and assess the public interest correctly.”
“The government has not demonstrated that allowing a handful of evictions to go forward would cause any loss of life, let alone the massive loss of life it has claimed could happen if the order is invalidated nationwide,” the dissenting opinion states.
The U.S. Supreme Court last month rejected an emergency request from a separate group of landlords who also challenged the eviction ban.
Four justices said they would have granted the application to vacate a stay of D.C. federal court order that struck down the ban. Justice Brett Kavanaugh wrote separately to indicate that he agreed that the CDC had exceeded its authority.
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