Alert August 17, 2021

Supreme Court Partially Blocks New York’s Eviction Moratorium; Block of Federal Eviction Moratorium Likely to Follow

Summary
Eviction moratoria at both the state and federal levels are appearing increasingly vulnerable. On August 12, the U.S. Supreme Court partially enjoined New York’s eviction moratorium, concluding that the state’s “self-certification” procedure likely violates due process. A renewed challenge to the U.S. Centers for Disease Control and Prevention’s moratorium is expected to land at the Supreme Court by the beginning of next week. While the Court narrowly declined to enjoin the prior iteration of the federal moratorium at the end of June, the Court will likely block the new moratorium. These developments signal that governments can no longer justify moratoria as temporary emergency measures enacted to address a rapidly changing public health crisis. States (rather than the federal government) may still be able to implement narrow eviction moratoria, but they will likely need to require an individualized showing that a tenant is unable to pay rent.

The Supreme Court Partially Blocks New York’s Eviction Moratorium

New York has enacted two statutes that alter the state’s eviction framework. Under the Tenant Safe Harbor Act (TSHA), tenants who have “suffered a financial hardship” during the pandemic may raise the hardship as a defense to eviction. The COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (CEEFPA) streamlines this process by allowing tenants to provide a sworn attestation that they are experiencing financial hardship as a result of the pandemic. For tenants who “self-certify” in this manner, eviction proceedings are stayed until CEEFPA expires at the end of this month.

On August 12, the Supreme Court enjoined CEEFPA’s self-certification scheme pending appeal. The Court’s unsigned order concluded that the “scheme violates the Court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case’ consistent with the Due Process Clause,” noting specifically that “due process generally requires a hearing.” Chrysafis v. Marks, No. 21A8, Order at 1 (quoting In re Murchison, 349 U.S. 133, 136 (1955)); see also United States v. James Daniel Good Real Property, 510 U.S. 43, 53 (1993). 

The Supreme Court Narrowly Declines to Block The CDC’s Federal Moratorium

At the end June, the Supreme Court declined by a vote of 5-4 to enjoin the CDC’s federal eviction moratorium. The district court (Judge Friedrich in the District of Columbia) had ruled that the moratorium exceeds the CDC’s authority under the Public Health Services Act, which authorizes the CDC to adopt “such regulations as in [the agency’s] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases[.]” 42 U.S.C. § 264(a). While the district court ruled in favor of the challengers, the court stayed its order pending appeal, and the D.C. Circuit declined to lift the stay. The Supreme Court did the same, with Justices Thomas, Alito, Gorsuch, and Barrett noting that they would have granted the emergency application. Justice Kavanaugh concurred, explaining that he agreed the CDC had exceeded its authority, but that emergency relief was nevertheless unnecessary because the federal eviction moratorium was set to expire on July 31.

Three days after the moratorium expired, CDC issued a new moratorium, set to remain in place through October 3, 2021. While ostensibly narrower — it applies only in areas of substantial or high disease transmission — it currently covers over 90% of counties. See CDC, COVID Data Tracker: Integrated County View. On August 13, Judge Friedrich denied a challenge to the new moratorium, concluding that she was bound by the D.C. Circuit’s decision not to vacate her prior stay. The challengers have again asked the D.C. Circuit to enjoin the moratorium; a decision will likely be issued this week. 

The Supreme Court Is Likely To Grant A Renewed Request To Block The CDC Moratorium

If the D.C. Circuit declines to enjoin the moratorium, the dispute will almost certainly land before the Supreme Court. Given that four members of the Court already expressed a willingness to put the moratorium on hold, and Justice Kavanaugh made clear his view that “new legislation” was needed “to extend the moratorium,” the Supreme Court is likely to grant a renewed request to stay the federal moratorium pending appeal on the basis that the CDC lacked the authority to issue the moratorium. Ala. Ass’n of Realtors v. HHS, No. 20A169, Order at 2.

Moreover, while the Court’s New York order may have limited effect in New York — CEEFPA is set to expire on August 31 — the Court’s injunction of the New York moratorium suggests that the CDC moratorium could likewise be vulnerable to challenge on due process grounds. There are some minor differences between the CDC and New York procedures: the CDC moratorium requires that the attestation be signed under penalty of perjury, and the CDC order does not technically halt eviction proceedings in full (rather delaying when a landlord can enforce an eviction order). But those differences are unlikely to resolve the Court’s due process concern, and landlords can now invoke the Court’s New York order to challenge the federal eviction moratorium under the Due Process Clause.

If you would like to learn more or have questions about a specific proceeding, please reach out to Allison Schoenthal (aschoenthal@goodwinlaw.com) or Jaime Santos (jsantos@goodwinlaw.com).