Washington, DC (August 27, 2021) – The New Civil Liberties Alliance represented the very first plaintiffs to file a complaint against the U.S. Centers for Disease Control and Prevention (CDC) over the agency’s nationwide eviction moratorium. In the Brown v. CDC lawsuit, filed on September 8, 2020, NCLA argued that agencies have no inherent power to make law and that CDC has no statutory authority to order an eviction moratorium. On Thursday, the U.S. Supreme Court agreed with the merits of our arguments. In a case based on legal arguments NCLA first advanced, the high court handed down a 6-3 decision to lift the stay of a federal district judge’s decision setting aside CDC’s unlawful nationwide moratorium order.

Housing providers across the country have been vindicated by the Supreme Court’s decision. In the per curiam opinion, the Court stated, “It strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts.” The statute invoked by CDC was a “wafer-thin reed on which” the agency based a “breathtaking amount of authority.” The Court added, “If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.” NCLA commends the Supreme Court for its belated decision to uphold the rule of law but warns that there is work left to be done in the lower courts.

In Brown v. CDC (and Mossman v. CDC, which is a class-action lawsuit), NCLA represents independent, mom-and-pop housing providers who are financially in the red as a result of the eviction moratorium. NCLA’s clients accrued economic damages every day the unlawful eviction moratorium remained in effect. They are owed tens of thousands of dollars in unpaid rent, not to mention the monthly maintenance costs, the damage to property, and the lost opportunity to use the property or rent it to a different tenant. Addressing these economic damages, the Supreme Court said, “The moratorium has put the applicants, along with millions of landlords across the country, at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recovery. Despite the CDC’s determination that landlords should bear a significant financial cost of the pandemic, many landlords have modest means.”

The Supreme Court’s decision was preceded by several federal court rulings against CDC’s order, none of which had a nationwide effect. The Supreme Court recognized that the district court “produced a comprehensive opinion concluding that the statute on which the CDC relies does not grant it the authority it claims.” In Brown and Mossman, NCLA likewise argues that nothing in the relevant statutes or regulations gives CDC the authority to issue an eviction moratorium order. In light of the Supreme Court’s ruling, NCLA is moving to advance our client’s interests. NCLA filed a 28(j) letter today with the Eleventh Circuit in Brown, where our motion for rehearing en banc is still pending, and we will file new motions in the Mossman case early next week.

NCLA released the following statements:

“It’s hard to imagine anyone truly thought CDC had the authority to issue a nationwide eviction moratorium—a point the Court barely had to explain. But it should never have taken this long for the federal judiciary to intercede. NCLA’s clients have been fighting for nearly a year, since day one of the moratorium, and have been harmed all along. NCLA will continue to push courts to do their duty and stop such lawless agency abuse.”
— Caleb Kruckenberg, NCLA Litigation Counsel and lead counsel in Brown, et al. v. CDC, et al.

“It has been shockingly obvious for some time that the CDC moratorium was illegal for a host of reasons. The Supreme Court just picked the most obvious one. This ruling will allow housing providers the benefit of their property rights and light a fire under tenants to access, and the government to disperse, the Congressionally authorized solution to this problem, which was rent support. CDC’s unlawful order not only injured thousands of mom-and-pop housing providers, and disrupted state landlord-tenant courts across the country, but it also undermined the actual policy Congress chose to address Covid-related rental-market disruptions.”
— John Vecchione, NCLA Senior Litigation Counsel and lead counsel in Mossman, et al. v. CDC, et al.

For more information visit the case pages for Brown v. CDC and Mossman v. CDC.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

 

Washington, DC (August 13, 2021) – Rick Brown, Sonya Jones, and Richard Krausz are among the thousands of mom-and-pop housing providers whose tenants owe them thousands or tens of thousands of dollars in back rent due to the eviction moratorium issued by the Centers for Disease Control and Prevention (CDC). That moratorium forbids property owners from retaking possession of their properties away from delinquent tenants, even if owners comply with state landlord-tenant laws. Today, the New Civil Liberties Alliance filed a petition with the U.S. Court of Appeals for the Eleventh Circuit to rehear en banc the Brown, et al. v. CDC, et al. case.

NCLA argues the Eleventh Circuit panel erred in its decision to affirm the lower court’s refusal to enjoin CDC’s unlawful eviction moratorium, which exceeded the agency’s authority. The majority did not reach the statutory authority question, instead deciding the case on the theory that NCLA’s clients did not demonstrate irreparable harm. Supreme Court precedent and the Eleventh Circuit’s own precedent compel the Court to conclude that its equitable powers allow it to enjoin governmental abuses like the CDC moratorium. The unlawful moratorium forces NCLA’s clients to incur substantial costs in providing free housing to tenants who refuse to pay rent.

The eviction moratorium issued by CDC in March 2020 has now been extended until October 3, 2021. Despite the Eleventh Circuit panel’s 2-1 ruling, CDC’s ongoing and deliberate violation of the housing providers’ constitutional rights does constitute irreparable harm. Petitioners have no means to seek damages from CDC and will have no redress for CDC’s now-deliberate effort to violate their constitutional property rights and rights to access state court procedures because the panel’s rule limited which constitutional rights merit injunctive relief.

President Biden has conceded repeatedly that CDC lacks the power to issue the eviction moratorium. On August 3, the day CDC extended its moratorium, President Biden spoke candidly about the issue, saying, “the courts made it clear that the existing moratorium was not constitutional; it wouldn’t stand.” The Supreme Court has also weighed in against the CDC eviction moratorium. After denying the application to vacate a stay in another lawsuit, five members of the Court espoused the view that the CDC Order was unlawful. Justices Thomas, Alito, Gorsuch, and Barrett would have granted the application. Justice Kavanaugh concurred in the denial of temporary relief but explained that he agreed that the CDC “exceeded its existing statutory authority” and that any further extension would require Congressional action. Congress tried and failed to extend the moratorium, so CDC extended it anyway—once again without statutory authorization.

The Eleventh Circuit should vacate the panel opinion, grant rehearing en banc, and enjoin the moratorium.

NCLA released the following statement:

“No one, not even the President who oversees the CDC, thinks that the agency has the power to keep property owners from retaking possession of their own homes. Yet the Eleventh Circuit passed the buck because of the limited term of the moratorium. This hesitance only emboldened the agency and the President to extend the order yet again. The rule of law must prevail, and the Court must put a stop to the agency’s abuse of power.”
— Caleb Kruckenberg, Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

 

Washington, DC (July 14, 2021) – Today, the U.S. Court of Appeals for the Eleventh Circuit rejected the request of Rick Brown of Virginia and other hard-hit housing providers across the country to put an end to the eviction moratorium issued by the Centers for Disease Control and Prevention (CDC). In a 2-1 decision in Brown, et al. v. CDC, et al., the panel affirmed the lower court’s refusal to enjoin CDC’s unlawful eviction moratorium. The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed the first lawsuit against CDC’s unconstitutional action with this case last September, arguing that CDC has no statutory authority to issue an eviction moratorium order. Although a majority of the court appeared inclined to agree that CDC lacks statutory authority, the court nonetheless decided that the plaintiffs did not show sufficient “irreparable harm” to merit a preliminary injunction.

Over the thorough and comprehensive dissent of Judge Elizabeth L. Branch, the majority concluded that the plaintiffs had not proved that their tenants will remain insolvent into the future, an effectively impossible burden of proof. According to the majority, the plaintiffs’ deprivation of their property, violations of their constitutional rights, and likely inability to recover any unpaid rent from insolvent tenants, did not constitute the type of irreparable injury to justify a preliminary injunction. This holding contradicts other courts across the country, which have recognized that being deprived of your residential property is, in fact, an intrinsically irreparable injury. In the months after the district court’s decision, several federal courts set aside CDC’s order as unlawful.

The majority suggested that the housing providers were likely right that CDC’s statutory authority to prevent the transmission of communicable diseases is limited to the means Congress specified—mainly, the inspection, fumigation, disinfection, and destruction of infected animals and articles.  But “despite [the court’s] doubts” about the district court’s broad reading of that statute, the court concluded that the preliminary-injunction stage was not the proper time for it to rule that the CDC’s order was unlawful.

Judge Branch dissented from the panel’s decision, reasoning that the housing providers showed that CDC exceeded its statutory authority and that “money damages against their insolvent tenants would be an inadequate remedy for their financial harms.” Judge Branch found that neither of the statutory provisions on which CDC relied for its authority “reasonably can be interpreted to authorize the CDC order.” Because “nothing in § 264(a) indicates that Congress intended to assign the Director of CDC sweeping authority over the national rental housing market,” Judge Branch concluded that the statute lacked any indication that Congress intended to disrupt our system of federalism and provide the CDC Director authority “to invade the traditionally State-operated arena of landlord-tenant relations.”

Plaintiffs Brown, Rondeau, Krausz, Jones, and members of the National Apartment Association are independent, mom-and-pop housing providers who are financially in the red as a result of the CDC’s foray into housing policy. NCLA’s clients are accruing economic damages every day the eviction moratorium remains in effect. So far, they are owed tens of thousands of dollars in unpaid rent, not to mention the monthly maintenance costs, the damage to property, and the lost opportunity to use the property or rent it to someone else who would be willing and able to pay the fair market value price.

NCLA is carefully considering whether to appeal this adverse ruling to the U.S. Supreme Court or return to district court for trial.

NCLA released the following statements:

“Justice was denied today. It is unfathomable that the harm suffered by NCLA’s landlord clients and caused by CDC’s unlawful actions does not count as ‘irreparable,’ especially when at least a majority of the court appears to believe CDC lacked statutory authority to do what it did. The dissent here—which intriguingly appears to have been originally written as the majority opinion—has the better view of what ordered liberty and the rule of law require.”
— Mark Chenoweth, Executive Director and General Counsel, NCLA

The court’s decision sets a dangerous precedent about what an administrative agency can get away with when it utters the word ‘emergency.’”
— Caleb Kruckenberg, Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

 

 

Washington, DC (June 11, 2021) – “Emotionally, it’s been trying. Physically, you lose sleep. You’ve got bills to pay. You have obligations,” explains NCLA client Rick Brown in a video released today by the New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group. Mr. Brown is the lead plaintiff in the lawsuit, Rick Brown, et al. v. Secretary Xavier Becerra, et al., challenging the ongoing nationwide eviction moratorium ordered by the Centers for Disease Control and Prevention (CDC) last September. The unlawful order, meant to curb the spread of Covid-19, has hit mom-and-pop housing providers across the country particularly hard, as they struggle to pay the mortgages and taxes related to their rental properties. The video features Mr. Brown and Mrs. Sonya Jones, two plaintiffs who are owed tens of thousands of dollars in unpaid rent.

NCLA argues that the eviction moratorium far exceeds the constitutional and statutory limits of CDC’s authority. The agency’s radical and unprecedented interference with access to state courts has deprived Americans across the country of their constitutional right to resolve their legal disputes in court.

NCLA is asking the U.S. Court of Appeals for the Eleventh Circuit to reverse a decision by the U.S. District Court for the Northern District of Georgia. In the months after the district court’s decision, multiple federal courts have set aside CDC’s order as unlawful. NCLA’s lawsuit is currently pending review in the Eleventh Circuit, and it could be the first to have a nationwide effect. The Court has jurisdiction to enjoin the CDC, which is headquartered in the Eleventh Circuit, from enforcing or extending the eviction order nationally.

Excerpts from the video:

“My clients are mom-and-pop landlords. They have a few properties. They use this as their income. This is their business. This is their livelihood. One of the most outrageous aspects of the CDC’s eviction moratorium order is that it does not stop foreclosures and it doesn’t apply to banks. And once that property goes into foreclosure, the bank is allowed to foreclose on the mortgage and evict the tenant. The CDC order doesn’t actually solve any problems. It doesn’t prevent evictions. It just puts the problem squarely on the shoulders of property owners.”
— Caleb Kruckenberg, Litigation Counsel, NCLA

“Evicting people is a very painful situation for the landlord because you do not want to put anybody on the street. You want to try to work with these people. These are human beings. But we are running a business here. I don’t think I’ll get my money back. I might get some of it, but a very small amount of it. I want my day in court.”
— Rick Brown, Plaintiff, Rick Brown, et al. v. Secretary Xavier Becerra, et al.

“When I found out about the moratorium, I was shocked that they could take possession of my property. I took the tenants to court. One of the first things [the tenants] said was they couldn’t work because of Covid, and the judge said, ‘That’s it, they can stay until December 31.’ When I asked him how I was supposed to pay my taxes, he said, ‘That is not my problem.’”
— Sonya Jones, Plaintiff, Rick Brown, et al. v. Secretary Xavier Becerra, et al.

For more information about this case visit here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (May 14, 2021) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group will present oral argument today before the U.S. Court of Appeals for the Eleventh Circuit in Rick Brown, et al. v. Secretary Xavier Becerra, et al. NCLA was the first to challenge the Centers for Disease Control and Prevention’s (CDC) nationwide eviction moratorium, initially issued in September 2020, which all but forces housing providers across the country to give unlimited free housing to their tenants.

Building on NCLA’s work in this case, numerous other suits have been filed against CDC. Several federal courts have now set aside CDC’s order as unlawful, declaring that the nationwide moratorium exceeded the agency’s statutory authority. But the Eleventh Circuit Court’s ruling could be the first to have nationwide effect. The CDC is headquartered in Atlanta, GA, where the Eleventh Circuit is also based. That means the court has jurisdiction to enjoin the CDC nationally from enforcing or extending the eviction order anywhere. Such a ruling would restore the rights of tens of thousands of housing providers across the country.

NCLA argues, in this case and in its class-action lawsuit Mossman v. CDC, that agencies have no inherent power to make law, and that nothing in the relevant statutes gives CDC the power to issue an eviction moratorium order. Additionally, CDC has unconstitutionally deprived property owners of their rights to access state courts. In March 2021, the U.S. District Court for the Northern District of Ohio accepted similar arguments in Skyworks, LTD., et al. v. Centers for Disease Control and Prevention, et al. and held that the nationwide moratorium was beyond the scope of CDC’s power. In the same month, the Western District of Tennessee ruled comparably in the case Tiger Lily, LLC, et al. v. United States Department of Housing and Urban Development, et al. NCLA filed amicus briefs in both of those cases. And just last week, the U.S. District Court for the District of Columbia likewise set aside CDC’s order.

CDC has asserted power it does not have to abrogate the property and other legal rights of tens of thousands of American housing providers. As a result, these law-abiding citizens have been locked out of their own properties and have incurred significant economic damages, including thousands of dollars in unpaid rent, as well as monthly maintenance costs, and the lost opportunity to rent or use the properties at fair-market value. A preliminary injunction would halt CDC’s lawless actions and protect the housing providers’ interests against further irreparable harm.

Caleb Kruckenberg, NCLA Litigation Counsel, will present oral argument via teleconference today at approximately 10:00 am EDT. You may view the proceedings here.

NCLA released the following statement:

“CDC has struck out into an area about which it has no expertise and issued a sweeping order suspending state law under the premise that doing so was ‘necessary’ to control the COVID-19 pandemic. The entire class of people whom CDC has shut out of the courtroom, not by law, but by unilateral decree, must have their rights restored. The Eleventh Circuit should reverse the district court’s ruling and enter a preliminary injunction.”

— Caleb Kruckenberg, Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (March 12, 2021) – This week marks the one-year anniversary of the COVID-19 pandemic. With all that has been lost, the New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, is fighting to make sure Americans do not lose their cherished constitutional rights. Today, NCLA filed a reply brief in its appeal to the U.S. Court of Appeals for the Eleventh Circuit in the case Rick Brown, et al. v. Secretary Alex Azar, et al. NCLA is asking the Court of Appeals to reverse an erroneous decision by the U.S. District Court for the Northern District of Georgia denying a motion by several housing providers to block a nationwide “eviction moratorium” order issued by the Centers for Disease Control and Prevention (CDC) in September 2020.

NCLA’s brief points to a ruling just this week from the U.S. District Court for the Northern District of Ohio in the case Skyworks, LTD., et al. v. Centers for Disease Control and Prevention, et al., where the court held that the nationwide moratorium issued by the CDC exceeded the agency’s statutory authority. The reply brief refutes CDC’s arguments and asks the court to stop the agency’s unlawful foray into housing policy and its interference with state court operations. CDC’s public health mandate does not justify the moratorium, which unconstitutionally deprives housing providers of their property and denies them access to state court proceedings.

CDC has never proved that state actions were inadequate or that its eviction moratorium was necessary to stop the spread of COVID-19. Using the pandemic emergency as an excuse, the moratorium order, which is entitled “Temporary Halt in Residential Evictions to Prevent Further Spread of COVID-19,” has since been extended to March 31st and continues to deprive appellants Rick Brown, Jeffrey Rondeau, Richard Krausz, Sonya Jones, and the members of the National Apartment Association of their constitutional rights to access the courts to seek to regain possession of their properties from delinquent tenants. CDC has also presented no compelling evidence that the Order has had any appreciable effect on COVID-19 infections, while it unquestionably has had a devastating effect on housing providers across the country.

NCLA is hopeful, especially given the recent outcome in Ohio, that the Eleventh Circuit will reverse the district court’s decision and enter a preliminary injunction against CDC’s eviction moratorium order.

NCLA released the following statements: 

“As the federal court in Ohio ruled just this week, CDC has no business intruding into state court operations and declaring that housing providers are criminals if they seek a remedy for tenants who refuse to pay rent. With the CDC posed to potentially extend this order yet again, the Eleventh Circuit must stop CDC’s brazen power grab.”

— Caleb Kruckenberg, Litigation Counsel, NCLA 

“CDC had zero statutory basis to issue its unprecedented eviction moratorium. Not stopping this power grab sooner has already had devastating consequences for housing providers. The Eleventh Circuit can now join federal courts in Texas and Ohio that have recognized that this order must be set aside and end the vast overreach of administrative power at work here.”

— Mark Chenoweth, Executive Director and General Counsel, NCLA

For more information about this case visit here.

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (December 21, 2020) –Using the pandemic emergency as an excuse, the Centers for Disease Control and Prevention (CDC), a part of the U.S. Department of Health and Human Services, has issued a nationwide eviction moratorium that far exceeds the constitutional limits of its authority and the agency’s expertise. Today, the New Civil Liberties Alliance filed its opening brief in its appeal to the U.S. Court of Appeals for the Eleventh Circuit on behalf of Rick Brown of Winchester, Virginia and other housing providers who are suing over CDC’s moratorium order. The U.S. District Court for the Northern District of Georgia declined to preliminarily block the order, and NCLA sought intervention by the Court of Appeals. The sweeping order suspends state law under the premise that doing so was “necessary” to control the COVID-19 pandemic. NCLA argues that times of crisis are when constitutional limits are needed the most.

In the case, Rick Brown, et al. v. Secretary Alex Azar, et al., CDC’s radical intrusion into state courts has deprived Americans across the country of their constitutional right to access the courts to seek to regain possession of their properties from delinquent tenants. The public’s interest, especially in a time of need, favors adherence to the rule of law and respecting basic limits on an agency’s power.

CDC’s effort to seize control of state law must be rejected for three basic reasons: First, the CDC Order vastly exceeds CDC’s limited grant of authority to take “necessary” action to prevent the spread of disease in controlled ways concerning infected and diseased people and effects. Second, CDC has never presented any evidence that its attempt to close the courthouse doors across the country is a necessary step in stopping the spread of disease. Third, the Order violates the basic constitutional guarantee of access to the courts.

A preliminary injunction is necessary to prevent irreparable harm to the Plaintiffs NCLA represents in this case.

NCLA released the following statements: 

“The district court blessed CDC’s unprecedented effort to overrule the legislatures of all 50 states and lock the doors to the courthouse for millions of people. The Court of Appeals must preserve constitutional order and set this right.”

— Caleb Kruckenberg, Litigation Counsel, NCLA 

“It appears that Congress may pass and the President may sign an extension of CDC’s Order. But the Congress has no more power than CDC to commandeer state officials and violate the constitutional rights of citizens by closing the courthouse doors to them.”

— Mark Chenoweth, Executive Director and General Counsel, NCLA 

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (November 13, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, has filed a motion for injunction pending appeal in the U.S. Court of Appeals for the Eleventh Circuit in the case of Brown, et al. v. CDC, et al. NCLA is seeking to reverse an erroneous decision by the U.S. District Court for the Northern District of Georgia denying property owners’ motion for preliminary injunction.

The district court erred because it placed an impossible burden of proof on property owners in contradiction to other courts across the country, which have recognized that being deprived of your residential property is in fact an intrinsically irreparable injury. In its appeal, NCLA also argues that CDC’s nationwide moratorium order has no statutory or regulatory basis. No provision of law grants the agency the broad, unilateral authority to void state landlord-tenant laws. If the district court’s reading of CDC’s authority were to stand, the agency could take virtually any action overturning state law as long as it asserted a public-health benefit.

NCLA’s original lawsuit challenges the authority of CDC to impose the “Temporary Halt in Residential Evictions to Prevent Further Spread of COVID-19” order, which claims stopping residential evictions will help contain COVID-19. Because the act of Congress upon which CDC relies does not actually confer on the agency the power to halt evictions or to preempt state landlord-tenant laws, the nationwide eviction moratorium order violates the U.S. Constitution and should be enjoined and declared void. NCLA’s lawsuit also argues that CDC had deprived property owners of their constitutional due process rights to have access to state courts.

At a minimum, there is a substantial question as to whether the CDC order may permissibly stop all 50 states from applying their own legal regimes governing real property. And unless the Eleventh Circuit acts, the property owners will continue to suffer the irreparable deprivation of their real property, as well as the unrecoverable loss of all economic value of their properties.

NCLA released the following statements: 

“CDC’s unprecedented order stakes out an untenable position that CDC can change any law in any state as long as it merely invokes the threat of COVID-19. The Eleventh Circuit must step in and make clear that the Constitution still applies—even in a pandemic.”

— Caleb Kruckenberg, Litigation Counsel, NCLA 

“Incredibly, the district court held that no deprivation of due process occurred here because the eviction moratorium expires on Dec. 31. You’ve probably heard the saying that ‘justice delayed is justice denied.’ There is no rule that authorizes federal agencies to temporarily deprive housing providers of due process rights. What the CDC has done here is unlawful, and the Eleventh Circuit needs to intervene immediately to put a stop to it.”

— Mark Chenoweth, Executive Director and General Counsel, NCLA 

For more information, visit the case summary page here. 

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

​

Washington, DC (October 19, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, has filed a reply brief in support of its motion for preliminary injunction in the U.S. District Court for the Northern District of Georgia. The brief refutes the arguments of the Centers for Disease Control and Prevention (CDC) for upholding a nationwide “eviction moratorium.”

NCLA’s lawsuit in Brown, et al. v. CDC challenges the authority of  CDC to impose the “Temporary Halt in Residential Evictions to Prevent Further Spread of COVID-19” order, which claims stopping residential evictions will help contain COVID-19. Because the CDC has not identified any act of Congress that confers upon it the power to halt evictions or to preempt state landlord-tenant laws, the order violates the U.S. Constitution and should be enjoined and declared void by the Court. The lawsuit also argues that CDC has deprived property owners of their constitutional right to access state court eviction proceedings.

In its recent memorandum opposing a preliminary injunction, CDC has studiously avoided a claim that its order was an essential tool in the fight against COVID-19. Instead, the agency has defended itself purely through distraction, claims to unlimited power, and, in the end, a tepid argument that its order “may” provide some possible benefit to the public.

CDC also stubbornly—and mistakenly—insists that it has “broad” statutory authority to void any provision of state law so long as it merely declares the action to be “reasonably necessary” in its sole judgment—as one that “may help curb the spread of COVID-19.” CDC relies on a mere string of inferences and almost no hard data to support this assertion. According to the agency’s arguments, there is no action CDC could not take, and it could write and rewrite the substantive laws of every state at will—never facing any judicial limitation. But the text of the relevant statutory provisions does not support CDC’s claims.

NCLA urges the Court to enter a preliminary injunction against the CDC order to halt a massive unconstitutional deprivation of property rights. In this case, CDC’s lawless order wildly exceeds the agency’s statutory authority and violates the U.S. Constitution. The Court has set a hearing on NCLA’s motion for a preliminary injunction for October 20, 2020.

NCLA released the following statements: 

“CDC’s defense of its nationwide eviction moratorium should terrify anyone who values their freedom. The agency has declared that it has the unlimited power to void any state law as long as it decides its actions “may” protect against COVID-19. No government actor has such unbridled power—certainly not unelected bureaucrats in an administrative agency.” — Caleb Kruckenberg, Litigation Counsel, NCLA

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (September 22, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, added thousands of new plaintiffs to its lawsuit against the national eviction moratorium issued by the U.S. Centers for Disease Control and Prevention (CDC) earlier this month. The order overrules duly enacted state laws across the country that protect landlords from delinquent tenants who break their rental contracts.

In addition to the original plaintiff, Rick Brown of Virginia, the new plaintiffs in the case include Jeffrey Rondeau of New Jersey; David Krausz of South Carolina; Sonya Jones of Georgia; and the National Apartment Association. The NAA has more than 85,000 members managing over 10 million rental units throughout the United States.

NCLA filed a complaint and request for a temporary restraining order on September 8^th in the U.S. District Court for the Northern District of Georgia. The lawsuit challenges the authority of the CDC to impose the “Temporary Halt in Residential Evictions to Prevent Further Spread of COVID-19” agency order, which claims stopping residential evictions will help contain COVID-19.

Plaintiffs Brown, Rondeau, Krausz, and Jones claim they are in the red and are owed thousands of dollars in back rent from their delinquent tenants. The federal order denies their right to access state courts to obtain a writ of eviction to take possession of their own property by the only lawful means available to them to evict a tenant. The lawsuit argues that nothing in the relevant statutes or regulations gives CDC the power or authority to issue an eviction-moratorium order because these agencies have no right to make law. Only Congress can do that.

Because the CDC has not identified any act of Congress that confers upon it the power to halt evictions or preempt state landlord-tenant laws, the order violates the U.S. Constitution and should be declared void by the Court. CDC’s order also impermissibly commandeers state courts and state officers to apply, enforce, and implement an unconstitutional federal law.

NCLA asks the court to stop the agency from enforcing the unlawful order that also exceeds limits on the Supremacy Clause, raises serious non-delegation doctrine concerns, and implicates anti-commandeering principles and precedents.

NCLA released the following statements: 

“Since we filed our lawsuit, NCLA has received an overwhelming response from people across the country who have been harmed by CDC’s national eviction order. This speaks to the serious damage caused by CDC’s lawless effort to rewrite the law. We are thrilled to represent the members of the NAA and the brave property owners who are standing up to this abuse of power.”

— Caleb Kruckenberg, Litigation Counsel, NCLA

“When will the federal government learn that Congress makes the laws, not federal agencies? NCLA looks forward to vindicating the civil rights of our clients to access the courts, enforce their rental contracts, and preserve their rights to reclaim their own property.”

— Mark Chenoweth, Executive Director and General Counsel, NCLA

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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Washington, DC (September 8, 2020) – Today the New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed a complaint and request for a temporary restraining order or preliminary injunction in the U.S. District Court for the Northern District of Georgia challenging the authority of the Centers for Disease Control and Prevention (CDC) to impose a nationwide “eviction moratorium.” In an unprecedented overreach, CDC issued a “Temporary Halt in Residential Evictions to Prevent Further Spread of COVID-19” order, effective September 4, 2020, “to temporarily halt residential evictions to prevent the further spread of COVID-19.”

NCLA’s complaint, Rick Brown v. Secretary Alex Azar, et al., asks the court to stop the agency from enforcing the unlawful order that—among other problems—violates the right to access the courts, exceeds limits on the Supremacy Clause, raises serious non-delegation doctrine concerns, and implicates anti-commandeering principles and precedents.

NCLA client, Rick Brown of Winchester, Virginia, is suffering significant economic damages, including $8,092 in unpaid rent, as well as monthly maintenance costs, damages to his property, and the lost opportunity to use the property or rent it to someone else who would be able to pay the fair market value of at least $925 per month. Incredibly, under the unlawful CDC order, Mr. Brown also faces up to $100,000 and a year in prison if he evicts the delinquent tenant using legal processes under Virginia state law.

The Supreme Court of Virginia on Friday did not extend its moratorium issued on August 7, 2020 suspending eviction proceedings across the commonwealth in response to COVID-19 emergency at the request of Virginia Governor Ralph Northam. But the CDC, a federal agency, has now issued a sweeping unilateral order purporting to suspend state law under the premise that it was “necessary” to control the pandemic. The order denies Mr. Brown his right to access the courts to obtain a writ of eviction to take possession of his own property by the only lawful means available to him to evict a delinquent tenant. Agencies have no inherent power to make law, and nothing in the relevant statutes or regulations gives CDC the power or authority to issue an eviction-moratorium order.

The complaint also argues that the order violates the U.S. Constitution because the CDC has not identified any act of Congress that confers upon it the power to halt evictions or preempt state landlord-tenant law. CDC’s order also impermissibly commandeers state courts and state officers to apply, enforce, and implement an unconstitutional federal law. Because CDC cannot lawfully waive the application of Virginia’s laws governing evictions, the order is void and must fail.

NCLA released the following statements: 

“CDC’s order is an unprecedented power grab that hurts hardworking people who have done nothing more than try to earn a living renting out their property. An administrative agency has no authority to overrule duly enacted state laws across the country that protect landlords from delinquent tenants when a contract is in place. If CDC can get away with such a brazen abuse, then federal power has no limits.”

— Caleb Kruckenberg, Litigation Counsel, NCLA  

“These are perilous times, and the rule of law is a fragile thing. As sympathetic as many tenants are, the CDC has no power to stop landlords from using state court eviction processes. Left unchecked, this abuse of power would set a horrible precedent that would destabilize rental markets for tenants and landlords alike. Aside from future rental market impacts, CDC’s order purports to exercise authority Congress has not and could not give to the agency. Once again the Administrative State is running amok. If Congress wants to prevent evictions, it could pass an emergency rental subsidy, but it cannot force landlords to let tenants occupy their property.”

— Mark Chenoweth, Executive Director and General Counsel, NCLA 

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document