Tiger Lily vs. The CDC Eviction Moratorium

Tiger Lily, LLC et al. vs. United States Department of Housing and Urban Development et al.

THE LAWSUIT

The Tiger Lily Plaintiffs filed a lawsuit in September 2020, after the expiration of the eviction moratorium created in the March 2020 CARES Act. Josh Kahane of Glankler Brown PLLC, served as Lead Counsel for the Tiger Lily Plaintiffs. The law team was granted an expedited briefing schedule allowing a hearing and final resolution in early 2021.

THE PLAINTIFFS

“Plaintiffs reflect a diverse group of individuals and business organizations who, upon information and belief, own and/or manage more than Five Thousand (5,000) residential Units located within the Western District of Tennessee, who are being denied the use, enjoyment, and possession of their Units, and who are suffering significant financial loss and damages –all as a direct and proximate result of the unconstitutional issuance and enforcement of the Halt Order.” - Lawsuit Paperwork

THE ALLEGATION

The Plaintiffs claim that the Halt Order (aka eviction moratorium) exceeds the statutory and regulatory authority of the CDC, HUD, and HHS. And that neither the CDC, HUD, nor HHS have the authority to waive, dispense with, or suspend Tennessee laws. Nor has the CDC, HUD, or HHS acted within any congressionally delegated authority to impose the Halt Order, and this in violation of the Supremacy Clause of the Constitution. Nothing in the statutes or regulations cited in the Halt Order gives the CDC, HUD, nor HHS the authority to issue the Halt Order. This means that the issuance of the Halt Order (and its enforcement) therefore violates the Tenth Amendment to the Constitution.

THE RULING

U.S. District Judge Mark S. Norris entered a final judgment on March 16 agreeing that the Halt Order overstepped statutory authority and because of this it is unenforced in Western Tennessee. Since then, local courts in the Western District of Tennessee have been told evictions may proceed, according to the motion

THE APPEAL

March 29, the US Court of Appeals for the Sixth Circuit unanimously upheld a trial court decision holding that the moratorium is illegal. Sixth Circuit agreed that the statute has constitutional problems, and is in violation of Congress’ ability to delegate power to the executive branch.

This kind of catchall provision at the end of a list of specific items warrants application of the ejusdem generiscanon, which says that "where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words." Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114–15 (2001) (citation omitted). The residual phrase in § 264(a) is "controlled and defined by reference to the enumerated categories...before it," id. at 115, such that the "other measures" envisioned in the statute are measures like "inspection, fumigation, disinfection, sanitation, pest extermination" and so on, 42 U.S.C. § 264(a). Plainly, government intrusion on property to sanitize and dispose of infected matter is different in nature from a moratorium on evictions. See Terkel v. CDC, No. 6:20–cv–00564, 2021 WL 742877, at *6 (E.D. Tex. Feb. 25, 2021) (holding that the Halt Order exceeded the scope of the CDC's authority and observing that "eviction is fundamentally the vindication of the property owner's possessory interest"). The Halt Order thus falls outside the scope of the statute.

THE NEXT

This ruling is only a rejection of the federal government's motion to stay the district court ruling until the completion of the appeal process. However, this ruling does hint that the government will have a difficult time winning the appeal. The decision does not conclude the appeal, but it can be seen as a strong indicator of how the panel of judges may ultimately rule. The appeal hearing should be concluded by the end of April.

MORE INFORMATION

B Holladay