- The Washington Times - Wednesday, July 14, 2021

A federal appeals court ruled Wednesday the federal government’s ban on evicting tenants can remain in place over protest from mom-and-pop landlords.

A group of landlords had asked the U.S. Circuit Court of Appeals for the 11th Circuit to halt the eviction moratorium, saying it is unconstitutional and an overreach by the federal government.

One landlord, Richard Brown of Virginia, lost more than $8,000 during the time the ban on evictions has remained in place while another three landlords involved in the lawsuit lost roughly $2,000 each from the moratorium.

But in a 2-1 ruling, the court said the landlords did not show they have suffered irreparable injury in order for the court to issue an injunction, reasoning they can go to court in the future and collect unpaid rent after the ban on evictions expires.

“We fail to see how the temporary inability to reclaim rental properties constitutes an irreparable injury,” wrote Judge Britt Cagle Grant, a Trump appointee, for the panel.

She was joined by Judge Gerald Bard Tjoflat, a Ford appointee.

But Judge Elizabeth Branch, appointed by former President Trump, disagreed with her colleagues’ move, reasoning the CDC overreached its authority.

“The CDC Order, by its own terms, affects as many as ‘30-40 million people,’” Judge Branch wrote. “Nothing … indicates that Congress intended to assign the Director of the CDC sweeping authority over the national rental housing market.”

Advocates representing the landlords said that the 11th Circuit denied them justice.

“It is unfathomable that the harm suffered by NCLA’s landlord clients caused by CDC’s unlawful actions does not count as ‘irreparable,’ especially when at least a majority of the court appears to believe CDC lacked statutory authority to do what it did,” said Mark Chenoweth, executive director of the New Civil Liberties Alliance.

The 11th Circuit’s ruling falls in line with the high court, which declined to halt the moratorium just last month. 

In June, the Supreme Court voted 5-4 to leave the eviction moratorium in place. But Justice Brett M. Kavanaugh, though he voted with the majority leaving the moratorium intact until July 31, said he thought the government had reached too far.

In the order, Justice Kavanaugh said the Centers for Disease Control and Prevention would need congressional authority to extend its eviction moratorium beyond July 31, when it is expected to expire.

He said he did not move to strike down the moratorium immediately because “those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds.”

Justice Amy Coney Barrett, Justice Neil M. Gorsuch, Justice Samuel A. Alito Jr. and Justice Clarence Thomas would have voted to strike down the ban on evictions immediately.

The Centers for Disease Control and Prevention had extended the eviction moratorium for another 30 days last month. It was at least the fourth time the government has implemented an extension.

The ban was scheduled to expire June 30, but will now run through July 31.

The eviction moratorium prevents landlords from evicting tenants while the order is enforced, so landlords are unable to remove a renter who can’t pay rent.

The moratorium was first issued in September under Mr. Trump, but the government has continued to renew it during the following months, even after vaccines have been widely distributed.

Property owners across the country, including struggling mom-and-pop operators, have been asking the nation’s courts why landlords are expected to take a financial hit while non-paying tenants are protected by eviction moratoriums.

• David Eldridge can be reached at deldridge@washingtontimes.com.

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