Litigation To Successfully Challenge The CDC Eviction Moratorium

Litigation To Successfully Challenge The CDC Eviction Moratorium
By Jeffery S. Watson

There are two important legal concepts that apply to every lawsuit:  standing and jurisdiction.  For a person to be a party to a lawsuit, such as a Plaintiff, they must have actual standing.  In the case of challenging the CDC moratorium, they have to be a landlord with tenants who have filed the affidavit recommended by the CDC, and these tenants are not paying full rent.  Obviously, a national association such as the National Association of Real Estate Investors (NREIA) does not qualify to have standing to bring such an action because NREIA does not have rental properties in its own name.

With regards to jurisdiction, the lawsuit must be brought by a Plaintiff with standing (having tenants who are not paying their rent) in the jurisdiction where the rental properties are located.  This means that multiple lawsuits may need to be filed by one landlord if they have properties in more than one state.  It also means that the court that hears it has jurisdiction only in its particular area, and its decision for or against enforcing the CDC moratorium applies only to that area, such as a decision recently made by a Federal Judge in Cleveland, Ohio.  That decision only applies to the Northern District of Ohio, just as a similar decision made by a judge in Memphis, Tennessee only applies to the Western District in Tennessee, and a decision made in Texas only applies to one of the northern districts in Texas.

If these decisions are appealed, as I believe at least the one in Texas has been, and the decision is affirmed, then it will be valid law throughout the entire 5^th Circuit.  In Ohio, an affirmed decision would be for the 6^th Circuit, and for Tennessee it would also be for the 6^th Circuit.

This is being explained so people can understand why an association such as NREIA is not legally able to “represent” any or all of its members in a lawsuit against the CDC.  NREIA does not have its own tenants.  Even if NREIA did have a tenant, that lawsuit could only be brought in the state in which the rental property is located, and the decision in that jurisdiction would not be legal authority until it was affirmed at the appellate level.

It is probable that this issue of litigation will make its way to the U.S. Supreme Court given that I anticipate that the 5^th Circuit and 6^th Circuit will affirm the decisions made by the respective trial courts.  There are other decisions out there, however, in other districts that I expect will affirm the enforcement of the CDC moratorium and say that it is constitutional and within the scope of the CDC’s statutory authority.  This conflict between different Circuit Courts of Appeal would have to then work its way up to the U.S. Supreme Court.  A decision from the U.S. Supreme Court would apply across all courts in all states.

Jeffery S. Watson is an attorney who has had an active trial and hearing practice for more than 25 years. As a contingent fee trial lawyer, he has a unique perspective on investing and wealth protection. He has tried over 20 civil jury trials and has handled thousands of contested hearings. Jeff has changed the law in Ohio four times via litigation.  Read more of his viewpoints at WatsonInvested.com.

Editors’s note:
Click here to read the latest about recent federal court decisions regarding the CDC’s eviction moratorium.  Real Estate Investing Today will continue to update that post as new developments occur.