Another Federal Judge Declares CDC Eviction Moratorium Unlawful

By Peter Vickery, Esq., Legislative Affairs Counsel

May 5, 2021:- Today another federal judge ruled that the eviction moratorium imposed by the Centers for Disease Control (CDC) by President Trump and extended by President Biden is unlawful. Judge Dabney Friedrich of the U.S. District Court for the District of Columbia ordered that the CDC moratorium be set aside, a decision that the Biden administration has said it will appeal. MassLandlords will keep you posted on the outcome of that appeal. In the meantime, I offer my opinion as to what this latest ruling means for housing providers in Massachusetts (see below).

Judge Friedrich’s order goes further than the one issued earlier this year. Back in February, Judge J. Campbell Barker of the U.S. District Court for the Eastern District of Texas issued a declaratory judgment in favor of the Texas Public Policy Foundation holding that the CDC eviction moratorium is unconstitutional.  However, Judge Campbell did not issue an injunction prohibiting the federal government from enforcing the moratorium.  Instead he relied on statements from the Department of Justice lawyers representing the CDC who said that they “anticipated that the [government] would respect the judgment.”  But rather than respecting Judge Barker’s judgment, the government extended the moratorium. Whether the administration will abide by Judge Friedrich’s decision remains to be seen.

What impact does this have here in Massachusetts? In my opinion, for the time being it does not change the facts on the ground. Two subsidies, RAFT and ERAP, will cover arrears in most nonpayment cases leading to the cases being dismissed after the subsidy comes through. Plus, Chapter 257 of the Acts of 2020 prohibits judges from entering judgments for possession and issuing executions in nonpayment cases while the tenant is in the process of applying for a subsidy. In addition, the Eviction Diversion Initiative provides tenants with publicly funded lawyers. Finally, Chapter 151B Section 4 provides protection against discrimination on the basis of public assistance; in essence, landlords are required to participate in the public assistance process, and in many cases (e.g., arrears fully paid) landlords must accept rental subsidy.

Bottom line: The combination of substantial subsidies, Chapter 257, the Eviction Diversion Initiative and Chapter 151B together provide renters in nonpayment cases with protection against being evicted.

So there is no good reason to respond to the (possible) demise of the CDC eviction moratorium by reinstating one at the State level. The eviction moratorium that the Legislature and Governor imposed in 2020 (Chapter 65) did much more than simply ban levied executions (the legal term for forced evictions): It barred housing providers from sending notices to quit and from filing summary process cases, except where a tenant’s conduct posed an ongoing threat to the health or safety of others. This allowed tenants to run up arrears without providing access to the resources that the Housing Court offers. Needless to say, the state eviction moratorium led to a backlog of nonpayment cases and delays that are with us still. Repeating that mistake — especially now that experience tells us exactly how it will play out — would be the height of folly.

Nevertheless, there will be calls to enact H.1434 (previously known as HD 3030) which would not only effectively bar most non-payment cases getting filed, but would also prohibit judges from awarding possession to the landlord if one of the members of the tenants’ household has “a medical condition that the [CDC] has deemed to cause increased risk of experiencing severe illness from a COVID-19 infection.” What does the CDC say could cause such increased risk? Among other things, any learning disability and smoking.

However President Biden responds to Judge Friedrich’s order setting aside the CDC moratorium originally imposed by President Trump, here in Massachusetts there were already ample resources that rendered the moratorium unnecessary. Massachusetts had been coping as well as could be expected even without the CDC order. The Census Household Pulse survey indicates that our housing safety net may be best in the nation. There was never reason to think that the federal CDC order could make things any better. The new State-level bill, H. 1434, would make matters worse.

We will keep you posted on the outcome of that appeal. In the meantime, please continue working with renters to access the safety net and consult with an attorney before taking any action that could affect your rights.