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Federal judge overturns nationwide eviction moratorium

The fate of a nationwide eviction ban — set to expire June 30 — is in limbo after a judge overturned the federal protection on Wednesday.

The Centers for Disease Control and Prevention implemented the temporary eviction ban in September to help renters who were behind or unable to pay rent because of financial hardship caused by the coronavirus pandemic.

But U.S. District Court Judge Dabney Friedrich, a Trump appointee, said in a 20-page ruling that the CDC exceeded its authority by implementing the temporary ban, noting “the question for the Court is a narrow one: Does the Public Health Service Act grant the CDC the legal authority to impose a nationwide eviction moratorium? It does not.”

A number of landlords have challenged the CDC order in lower courts, but it has led to conflicting rulings with judges applying it to the parties involved. However, Friedrich’s ruling applies nationwide writing that the federal government’s request to limit her ruling to the parties in the case is a position “…‘at odds with settled precedent.’”

Nevada State Apartment Association Executive Director Susy Vasquez said she was flooded with phone calls and emails when the decision came out Wednesday morning. But, she explained, it’s not quite a moment of excitement for Nevada’s landlords.

“We’re kind of in the waiting game to see how it’s going to move forward or if it’s going to move forward (in court),” said Vasquez.

That’s because the Department of Justice released a statement Wednesday afternoon saying it has filed an appeal and intends to seek an emergency stay of the order.

“The Department of Justice respectfully disagrees with today’s decision of the district court in Alabama Association of Realtors v. HHS concluding that the moratorium exceeds CDC’s statutory authority to protect public health,” said Brian Boynton, acting assistant attorney general for the Justice Department’s Civil Division. “In the department’s view, that decision conflicts with the text of the statute, Congress’s ratification of the moratorium, and the rulings of other courts.”

Under pressure

The CDC eviction moratorium was announced under the Trump administration last year and took effect Sept. 4 — a measure aimed at lowering the spread of COVID-19 as residents were asked to shelter in place.

The order was going to end Dec. 31 but received a series of extensions with the latest deadline set for June 30. It requires eligible tenants to opt-in by signing a CDC declaration form and giving it to their landlord or property manager.

“The COVID-19 pandemic has presented a historic threat to the nation’s public health,” CDC Director Dr. Rochelle Walensky said in a March statement when announcing the latest extension. “Keeping people in their homes and out of crowded or congregate settings — like homeless shelters — by preventing evictions is a key step to stop the spread of COVID-19.’’

The latest survey from the U.S. Census Bureau found one in five renters living with children are not caught up on rent, compared with 10 percent of adults not living with anyone under the age of 18.

The CDC order also served as a final safety net when Gov. Steve Sisolak briefly lifted Nevada’s eviction ban for nonpayment of rent in October, explaining at the time that the state’s ban “would be duplicative.”

Sisolak later reinstated the statewide eviction ban, or Directive 036, which expires May 31.

Meghin Delaney, a spokeswoman for Sisolak, said the governor’s office is monitoring the federal case.

“We are continuing to analyze the ruling and what effects it may have in Nevada,” Delaney said Wednesday in an emailed statement to the Review-Journal. “We will also monitor the case for further developments, such as an appeal or a stay of the ruling.”

She said the state’s moratorium is still in effect until the end of this month and eligible tenants should continue following existing guidelines — “submit a declaration to your landlord if you are eligible, apply for rental assistance, and if you receive an eviction notice, file the tenant answer and elect mediation.”

While Sisolak said he would not extend the moratorium after this month, it’s unclear if he’ll reconsider following Friedrich’s ruling.

The state and CDC eviction moratorium has received strong support among housing advocates and tenants, but large and small landlords have criticized the moratoriums saying it’s left them shouldering the financial burden.

Las Vegas attorney Terry Moore of the firm Marquis Aurbach Coffing said no one in any other industry has been placed in similar situation similar as landlords.

“If you don’t pay your phone bill, your phone gets turned off. If you don’t pay your gas bill, they’ll turn off your gas. Landlords are the only ones saying, ‘Oh, you don’t pay your rent? OK, you can stay here for free,’” he said. “(Landlords) are in the business of renting but when you have this many people who haven’t paid, it would be nice to be able to get back to a level of normalcy.”

Christine Miller, director of community initiatives and outreach for Legal Aid of Southern Nevada, said in a statement that it’s too soon to tell what effect Wednesday’s ruling will have on evictions in Nevada. But she said the state’s moratorium is still in effect and she encouraged tenants to apply for rental assistance through the CARES Housing Assistance Program.

Contact Subrina Hudson at shudson@reviewjournal.com or 702-383-0340. Follow @SubrinaH on Twitter. Review-Journal staff writer Jonathan Ng contributed to this report.

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