United States: CDC, Biden announce moratorium on 60-day evictions in high-risk areas
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On Tuesday, August 3, the United States Centers for Disease Control and Prevention (CDC) issued a new order (the “Order”) that prohibits deportations in areas of the country experiencing “substantial transmission” of the COVID-virus. 19. Specifically, the ordinance only applies in U.S. counties where the virus and its Delta variant appear to be spreading faster based on the CDC’s COVID Data Tracker tool. A set of requirements that tenants must meet and to which they must swear an oath in a declaration form under penalty of perjury, in order to benefit from eviction protection, further limit the scope of the Order:
- The tenant has made their best efforts to obtain all available government assistance for rent or accommodation;
- The tenant either (i) did not earn more than $ 99,000 ($ 198,000 if the tenant is a joint filer) in 2020 or expects not to earn more than these amounts in 2021, (ii) does was not required to report income in 2020, or (iii) received an economic impact payment (stimulus check);
- The tenant cannot pay the full rent or make full payment for the accommodation due to a substantial loss of income, loss of compensable working hours, layoff or extraordinary medical expenses;
- The tenant does their best to make timely partial rent payments as close to the full amount as the tenant’s circumstances allow;
- Eviction would likely make the tenant homeless; and
- The tenant resides in a U.S. county with substantial or high rates (as defined by the CDC) of levels of community transmission of COVID-19.
The order, which is due to expire on October 3, 2021, comes after weeks of increasing pressure from various groups on the Biden administration to extend the nation’s moratorium on CDC deportations (the “previous moratorium”), now expired. The Biden administration has resisted this pressure, pointing to the scrutiny to which the previous moratorium was subjected by federal courts across the country, as we detailed in our customer alerts of March 4, March 15, 6. May and July 1. More recently, the Supreme Court reviewed the previous moratorium in Association of Realtors of Alabama, et al. v. Department of Health and Human Services, et al., 594 US ____ (2021), where Judge Kavanaugh ruled, in agreement, that the CDC did not have the authority to issue the previous moratorium and, therefore, “clear and specific authorization from Congress (via a new legislation) would be needed for the CDC to extend the moratorium beyond July 31. “
Although its scope is narrower in application and only targets certain parts of the country, time will tell if the Order will face legal challenges similar to those faced by the previous Moratorium or if the courts will see it differently. . In announcing the order, President Biden acknowledged the Supreme Court ruling in Alabama Association and the possibility of litigation in the near future.
We will continue to monitor the Order and related issues, and provide updates. Please do not hesitate to contact the Morrison & Foerster team if you have any questions.
Michael Machado, forensic scientist in our New York office, helped draft this alert.
Due to the generality of this update, the information provided here may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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