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Brown v. CDC

CASE: Brown, Rondeau, Krausz, Jones and the National Apartment Association v. CDC

STATUS: Closed

NCLA ROLE: Counsel

COURTS HEARD IN: 11th Cir., N.D. Ga.

ORIGINAL COURT: U.S. District Court for the Northern District of Georgia

DECIDING COURT: U.S. Court of Appeals for the Eleventh Circuit

OPENED: September 8, 2020

AGENCIES: Centers for Disease Control


Due Process Violations

The due process of law guarantees a right to be held to account only through the processes of an impartial court—something administrative tribunals violate every day.

Scope of Authority / Nondelegation

The structure of the Constitution allows only Congress to legislate, only the Executive to enforce laws, and only the Judiciary to decide cases. But the Administrative State evades the Constitution’s avenues of governance when executive agencies issue regulations without statutory authorization from Congress.

Did we achieve our litigation objective? Yes, NCLA’s clients got justice when the Supreme Court held, in a separate case, that the CDC’s nationwide eviction moratorium was unconstitutional for the same reasons NCLA first argued.

Court Outcome: Case was dismissed as moot once the Supreme Court held the eviction moratorium unconstitutional in Alabama Association of Realtors v. Department of Health and Human Services.

Larger Impact: NCLA was the first to sue the CDC over its unlawful eviction moratorium. The successful suit that eventually won at the Supreme Court used NCLA’s arguments and ended the eviction moratorium for all landlords. NCLA’s complaint asked the court to stop the agency from enforcing the unlawful order that—among other problems—violated the right to access the courts, exceeded limits on the Supremacy Clause, raised serious non-delegation doctrine concerns, and implicated anti-commandeering principles and precedents.

Summary: NCLA client, Rick Brown of Winchester, Virginia, was 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 faced up to $100,000 and a year in prison if he evicted the delinquent tenant using legal processes under Virginia state law.

The Supreme Court of Virginia did not extend its moratorium issued on August 7, 2020, suspending eviction proceedings across the Commonwealth in response to the COVID-19 emergency at the request of then-Virginia Governor Ralph Northam. But the CDC, a federal agency, issued a sweeping unilateral order purporting to suspend state law under the premise that it was “necessary” to control the pandemic. The order denied 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 argued that the order violated the U.S. Constitution because the CDC had 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 commandeered 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 was void and its failure was necessary.

On October 29, 2020, the U.S. District Court for the Northern District of Georgia issued an erroneous decision denying property owners’ motion for preliminary injunction. 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.

NCLA appealed the decision to the U.S. Court of Appeals for the Eleventh Circuit arguing that CDC’s nationwide moratorium order had 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.

On July 14, 2021, 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. In a 2-1 decision, the panel affirmed the lower court’s refusal to enjoin CDC’s unlawful eviction moratorium. 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.”

Rick Brown, Plaintiff

Kara Rollins
Litigation Counsel
John J. Vecchione
Senior Litigation Counsel

Order of the U.S. District Court for the Northern District of Georgia

January 31, 2022 | Read More

Response to Defendants-Appellees’ Motion to Dismiss and Suggestion of Mootness

September 9, 2021 | Read More

Supplemental Authority Letter

August 27, 2021 | Read More

Petition for Rehearing En Banc in the U.S. Court of Appeals for the Eleventh Circuit

August 13, 2021 | Read More

Opinion of the U.S. Court of Appeals for the Eleventh Circuit

July 14, 2021 | Read More


US Supreme Ct Validates NCLA Argument that CDC’s Eviction Moratorium Lacks Statutory Authority

August 27, 2021 | Read More

NCLA Seeks En Banc Review in 11th Circuit as CDC Eviction Moratorium Extended to Early October

August 13, 2021 | Read More

Ruling by 11th Cir. Denies Mom-and-Pop Housing Providers Relief from CDC’s Unlawful Eviction Halt

July 14, 2021

Watch: NCLA Video Shows the Housing Providers Hurt by CDC’s Unlawful Eviction Moratorium

June 11, 2021

NCLA Presents Oral Argument Before 11th Cir. Court of Appeals in CDC Eviction Moratorium Lawsuit

May 14, 2021


Here’s what renters can expect after the end of the federal eviction ban


August 27, 2021

Landlords Seek 11th Circ. Rehearing Over CDC Eviction Ban

February 7, 2021

Supreme Court Ruling Allows Evictions to Resume

February 7, 2021


February 7, 2021

Looking Ahead: Housing

February 7, 2021




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