In Brown v. Azar, No. 1:20-CV-03702-JPB (N.D. Ga. Oct. 29, 2020), several landlords brought suit against the Secretary of the U.S. Department of Public Health and Human Services (“HHS”) challenging the Center for Disease Control and Prevention’s (“CDC”) September 4, 2020 moratorium on residential evictions (“Order”). They sought a preliminary injunction barring the enforcement of the moratorium claiming, inter alia, that the Order lacks a statutory and regulatory basis; that even if it was authorized the Order is arbitrary and capricious; and the Order violates the landlords’ rights to access the courts. The district court denied the injunction chiefly on the grounds that the landlords were not likely to succeed on the merits of their claims, but it also found that they have not suffered irreparable harm and the balance of harm favored upholding the moratorium.

42 U.S.C. § 264(a) authorizes the Secretary of HHS to “make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States … or from one State … into any other State.” The second sentence of § 264(a), states that 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 turn, the Secretary delegated authority to the Director of the CDC under 42 C.F.R. § 70.2 which states that whenever the Director of the CDC determines that the measures taken by the health authorities of any state or local jurisdiction are insufficient to prevent the spread of a communicable disease, “he/she may take such measures to prevent such spread of the diseases as he/she deems reasonably necessary, including inspection, fumigation, etc…”. Thus, the plain language of the delegation provision makes it clear that Congress gave the Secretary broad power to issue regulations necessary to prevent the introduction, transmission or spread of communicable diseases.

The court rejected the argument that the second sentence of § 264(a) limits the Secretary’s authority to inspection, fumigation, etc. Limiting the authority this way makes little sense when considering the subsequent subsections of § 264 which allows the Secretary to issue regulations concerning individuals reasonably believed to be infected with a communicable disease. The presence of the additional subsections means that the list contained in the first subsection is not an exhaustive list of the permissible measures available to the Secretary.

Moreover, 42 C.F.R. § 70.2 closely mirrors its statutory counterpart and so for the same reasons why the Secretary has broad authority to make and enforce regulations to prevent the spread of disease, the CDC has the same authority. The only qualifying condition is that the CDC cannot act unless it determines that the measures taken by the health authorities of state or local governments are insufficient. Furthermore, the regulation states that the CDC may take measures to prevent the spread of disease as it deems necessary, “including” the enumerated items. § 70.2. The term “including” does not signal an exhaustive list. Thus, the Order is supported by statutory and regulatory authority.

Nor is the Order arbitrary and capricious. Contrary to the landlords’ position, the Order is supported by substantial evidence that the moratorium is necessary to prevent the spread of the disease. The Order cites data that evictions cause many people to become homeless or forced to lived in congregate housing situations both of which increase the rate of transmission. The court also found that the Order plainly states that the measures in state and local jurisdictions are insufficient to prevent the spread of COVID-19. The CDC analyzed each state’s eviction restrictions and concluded that in the absence of an eviction moratoria millions of Americans would be evicted.

The landlords were also not deprived of their constitutional rights to access the courts. The moratorium only prohibits a landlord from evicting a covered tenant on a temporary basis. It does not apply to every tenant or to every possible reason for an eviction. And it also does not apply to all possible avenues of recovery for a landlord – such as suing for rent – or to all procedural aspects of eviction proceedings. It allows landlords to start and prosecute eviction orders, just not actually displace tenants. This does not amount to a deprivation of access to the courts.

The court also found that the landlords did not show they suffered an irreparable harm. The test is whether, in all likelihood, they can show they will never recoup the losses that occur while the Order is in place. That the tenants are currently delinquent on their rent is not enough to show that the landlords will never be able to collect the debt. In addition, the Order offers some protection to landlords by allowing them fees and interest for the delinquent rent and the tenants may, in the future, receive government assistance that they can use to pay back rent.


  • 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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