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.

Join the new civil liberties movement. Protect Americans from the Administrative State!

CASE STATUS: Active

CASE START DATE: September 8, 2020

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

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

CASE DOCUMENTS

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

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

MEDIA MENTIONS