Landlords on Friday mounted the latest challenge to the Centers for Disease Control’s nationwide freeze on many residential evictions during the COVID-19 pandemic, urging the 11th U.S. Circuit Court of Appeals to block the ban.
Caleb Kruckenberg of New Civil Liberties Alliance, a lawyer for the landlord group National Apartment Association and several individual landlords who sued to challenge the eviction moratorium, told the three-judge panel that his clients "can't use their own property," asking the court to issue a preliminary injunction allowing evictions to proceed.
Alisa Klein of the U.S. Department of Justice countered that U.S. District Judge J.P. Boulee in Atlanta correctly denied the injunction last year because the temporary moratorium was not an irreparable harm.
Circuit Judges Elizabeth Branch, Britt Grant and Gerald Tjoflat sat on the panel.
The CDC moratorium, which began last September and is scheduled to lapse on June 30, has drawn multiple legal challenges. U.S. District Judge Dabney Friedrich in Washington ruled in favor of the landlords in one of those challenges and blocked the ban, though that ruling has been stayed while the government appeals.
At least two other courts have found that the moratorium exceeds the CDC's authority under the law, but have declined to issue injunctions blocking it.
As in other lawsuits, the plaintiffs in the 11th Circuit case claimed the eviction ban unconstitutionally deprived them of their property and their right of access to courts. They also claimed that the federal law giving the CDC powers to fight contagious diseases was not broad enough to cover the moratorium.
In refusing to enter a preliminary injunction last year, Boulee said that the landlords had not been deprived of their property or the right to access the courts because they could still sue for breach of contract to recover back rent, and could still initiate eviction proceedings, even if they would be put on hold until the freeze lifts.
Kruckenberg said Friday that Boulee "credited the CDC's guess that maybe someday my clients will be repaid," but ignored the fact that they currently cannot use their properties as they want to.
"That is irreparable, and that's compounding every single day," he said.
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