Ohio and Tennessee district courts hold that the CDC exceeded its authority to make and enforce a nationwide moratorium on evictions

In Skyworks, Ltd. v. Centers for Disease Control & Prevention, No. 5:20-CV-2407 (N.D. Ohio Mar. 10, 2021) and 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) district courts in Ohio and Tennessee struck down the Centers for Disease Control and Prevention’s (“CDC”) eviction moratorium concluding that the CDC lacked the authority to make and enforce the moratorium. In both cases the dispute centered not on public health or policy considerations, but on the narrow question of whether Congress authorized the CDC to adopt the Moratorium which was simply a matter of statutory interpretation.

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 set to expire on March 31, 2021.

Section 361 of the Public Health Service Act (“PHS Act”) permits the Secretary of the Department of Health and Human Services 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.” The regulation requires “reasonably necessary” agency actions but omits the last words of the statute, which authorizes “other measures” beyond the specific list of permissible actions introduced with the word “including.”

The plaintiffs in both cases, landlords, property managers and trade associations, challenged the moratorium on the grounds that it exceeded the statutory authority Congress delegated to the agency under the PHS Act and that the CDC acted outside the scope of its delegated authority.

The Skyworks, Ltd. Court noted that the PHS Act’s first sentence “sweeps broadly” and standing alone supported the government’s argument that it had broad authority. But the second sentence expressly ties the first sentence to the power Congress authorized the agency to exercise. Under this language, Congress directed the agency to act on specific “animals or articles” which are infected or a source of contagion that present a risk of transmission to other people.

The final words of the first subsection of the statute read “and other measures, as in his judgment may be necessary,” and it is this language which drove the dispute in these cases. The government argued that the statute authorizes other measures beyond those specified. But the Skyworks, Ltd. Court said to read the words “other measures” would divorce them from their context and take them in isolation without regard for what came before. “Other measures” must be reasonably of the type Congress contemplated in the statutory text—fumigation, disinfection, destruction of animals or things, or other measures reasonably of this type. In addition, the CDC must direct “other measures” to specific targets “found” to be sources of infection—not to amorphous disease spread but to actually infected animals, or at least those likely to be. The Tiger Lily LLC court noted “[I]f the Director were not limited in his or her authority, why list any specific examples of measures within that authority”? The government’s theory rendered the limitations superfluous. Thus, the text of the statute does not authorize such boundless action.

Both courts took pains to observe that under the government’s reading the Director could do whatever is necessary to prevent the spread of the disease, which would likely amount to an unconstitutional delegation of authority by Congress. The Tennessee court surmised that the government’s reading would authorize the CDC to not only prohibit evictions but any “congregate activity” such as voting, interstate and intra-state travel, mass migration, and could even mandate a nationwide rule on face coverings.

Finally, both courts rejected the argument that Congress ratified the moratorium by enacting the Appropriations Act of 2021 which extended the moratorium to the end of January 2021. Congress only has the power to ratify the acts which it might have authorized in the first place, which it did not. Furthermore, when it does so, it must do so clearly and explicitly. Here, Congress did not speak to the merits of the policy at issue, as it did in the CARES Act. Nor did it amend the PHS Act to authorize the moratorium or to add such an action to the list of permissible agency actions. All Congress did was change the expiration date to no doubt give the incoming administration the opportunity to determine its own policies for responding to the pandemic. The Appropriations Act does not amount to a ratification in any sense in which Congress has historically ratified prior actions.


  • 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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