D.C. District Court strikes down CDC eviction moratorium on the grounds that the HHS Secretary exceeded his statutory authority

In Alabama Ass’n of Realtors v. United States Dep’t of Health & Hum. Servs., No. 20-CV-3377 (D.D.C. May 5, 2021) the U.S. District Court for the District of Columbia struck down the Centers for Disease Control and Prevention’s (“CDC”) eviction moratorium concluding that the Secretary of the Department of Health and Human Services (“Secretary”) exceeded his authority under section 361 of the Public Health Service Act (“PHS Act”) in issuing the moratorium. This is the third decision to strike down the moratorium. See, Skyworks, Ltd. v. Centers for Disease Control & Prevention, No. 5:20-CV-2407 (N.D. Ohio Mar. 10, 2021); Tiger Lily LLC v. United States Dep’t of Housing & Urban Development, No. 2:20-CV-2692-MSN-ATC (W.D. Tenn. Mar. 15, 2021); Terkel v. Centers for Disease Control & Prevention, No. 6:20-CV-00564, 2021 WL 742877 (E.D. Tex. Feb. 25, 2021).

In the early days of the coronavirus pandemic, Congress enacted a nationwide moratorium on evictions pursuant to the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) which lapsed in July 2020. About two weeks later, the CDC ordered a moratorium on evictions which is currently set to expire on June 30, 2021.

Section 361 of the PHS Act permits the Secretary to authorize the CDC to “make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases”. “For purposes of carrying out and enforcing such regulations, the [Secretary] may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.”

In promulgating regulations, the Secretary charged the CDC with taking measures to prevent the spread of disease. The applicable regulation provides: “Whenever the Director of the [CDC] determines that the measures taken by health authorities of any State or possession (including political subdivisions thereof) are insufficient to prevent the spread of any of the communicable diseases from such State or possession to any other State or possession, he/she may take such measures to prevent such spread of the diseases as he/she deems reasonably necessary, including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.”

In determining whether the eviction moratorium exceeds the Department’s statutory authority, the Court applied the familiar two-step framework under Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837 (1984)). The first question, therefore, was whether Congress has directly spoken to the precise question at issue. The Court found that it did not, and that the moratorium satisfied none of the limitations found in the PHS Act. Imposing a moratorium on evictions is different in nature than “inspect[ing], fumigat[ing], disinfect[ing], sanit[izing], … exterminat[ing] [or] destr[oying],” a potential source of infection. Moreover, interpreting the term “articles” to include evictions would stretch the term beyond its plain meaning. Even if the meaning “articles” could be so stretched, the statute instructs that they must be “found to be so infected or contaminated as to be sources of dangerous infection to human beings.” The Secretary made no such findings.

While it is true that Congress granted the Secretary broad authority to protect the public health, it also prescribed clear means by which the Secretary could achieve that purpose. And those means place concrete limits on the steps the Department can take to prevent the interstate and international spread of disease. Interpreting the Act otherwise would ignore its text and structure.

Application of the canons of statutory construction confirms this result. First, to allow the Secretary’s broad reading would render the second sentence of § 264(a) superfluous. If the first sentence empowered the Secretary to enact any regulation that, in his “judgment,” was “necessary” to prevent the interstate spread of communicable disease, there would be no need for Congress to enumerate the “measures” that the Secretary “may provide for” to carry out and enforce those regulations. The canon of “constitutional avoidance” also supports this interpretation because extending a nearly unlimited grant of legislative power to the Secretary would raise serious constitutional concerns. Lastly, under the “major questions” doctrine, Congress has not clearly spoken in favor of assigning the CDC decision making powers of vast economic and political significance. In fact, Congress and many states have themselves imposed eviction moratoria.

Finally, the Court rejected the Secretary’s last argument that Congress ratified the moratorium by enacting the Appropriations Act of 2021, which extended the moratorium to the end of January 2021. When Congress granted a temporary extension of the eviction moratorium it acknowledged that the CDC issued its order pursuant to the PHS Act, but it did not expressly approve of the agency’s interpretation or provide the agency with any additional statutory authority.

On May 5, 2021, the Secretary appealed.


  • James Noonan

    Jim is a founding partner of Noonan & Lieberman. Jim has more than 25 years of experience in civil litigation on behalf of creditors, servicers, business and real estate owners.

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