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

CASE SUMMARY

NCLA’s complaint 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.

Learn more about housing providers struggling as a result of the CDC moratorium order here.

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CASE STATUS: Active

CASE START DATE: September 8, 2020

DECIDING COURT: United States Court of Appeals for the Eleventh Circuit

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

CASE DOCUMENTS

May 5, 2021 | Supplemental Authority Letter
April 2, 2021 | Defendants-Appellees’ Response in Opposition to Plaintiffs’ Motion to Expedite Appeal
March 30, 2021 | Plaintiff-Appellants’ Motion To Expedite Appeal
March 16, 2021 | Supplemental Authority Letter
March 12, 2021 | Plaintiff-Appellants’ Reply Brief in the United States Court of Appeals for the Eleventh Circuit
February 19, 2021 | Brief for the Appellees
December 21, 2020 | Plaintiffs-Appellants’ Brief-in-Chief in the United States Court of Appeals for the Eleventh Circuit
November 12, 2020 | Plaintiffs-Appellants’ Motion for Injunction Pending Appeal in the United States Court of Appeals for the Eleventh Circuit
October 29, 2020 | Order to Deny Plaintiffs’ Motion for Preliminary Injunction
October 16, 2020 | Plaintiffs’ Reply in Support of Motion for Preliminary Injunction
October 9, 2020 | FAQs: HHS/CDC Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19
October 2, 2020 | Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for Preliminary Injunction
September 18, 2020 | Plaintiffs’ Brief in Support of Motion for Preliminary Injunction
September 18, 2020 | Amended Complaint in the United States District Court for the Northern District of Georgia
September 8, 2020 | Plaintiff’s Brief in Support of Motion for Temporary Restraining Order or Preliminary Injunction
September 8, 2020 | Complaint in the U.S. District Court for the Northern District of Georgia

PRESS RELEASES

June 11, 2021 | Watch: NCLA Video Shows the Housing Providers Hurt by CDC’s Unlawful Eviction Moratorium

 

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

May 14, 2021 | NCLA Presents Oral Argument Before 11th Cir. Court of Appeals in CDC Eviction Moratorium Lawsuit

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

March 12, 2021 | NCLA Points 11th Circuit to Recent District Court Ruling Setting Aside CDC’s Eviction Moratorium

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

December 21, 2020 | NCLA Appeals to Stop the Radical Intrusion on State Courts Caused by CDC’s Eviction Moratorium

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

November 13, 2020 | NCLA Seeks Injunction Pending Appeal to Eleventh Circuit Court in Eviction Moratorium Case

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

October 19, 2020 | NCLA Reply Brief Continues to Question CDC’s Statutory Authority to Issue Eviction Moratorium

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

September 22, 2020 | NCLA’s Lawsuit against CDC’s National Eviction Moratorium Draws New Plaintiffs Including Organization Representing over 85,000 in the Rental Housing Industry

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 8th 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.

Download the full document

September 8, 2020 | NCLA Challenges Unlawful CDC Order that Leaves Landlords Powerless to Evict Delinquent Tenants

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

OPINION