Mossman, et al. v. U.S. Centers for Disease Control and Prevention, et al.
CASE SUMMARY
The laws of all fifty states provide the remedy of eviction through state processes to retake possession of a home you have rented out. But a national eviction moratorium issued by the Centers for Disease Control and Prevention (CDC) in 2020 to “prevent” the spread of COVID-19 denie Plaintiffs the only lawful means available to them to evict a delinquent tenant—access to the courts.
NCLA filed a class-action lawsuit in the U.S. District Court for the Northern District of Iowa on behalf of Asa Mossman of Cedar Rapids, Iowa, and many other blameless housing providers left powerless against the CDC’s lawless order.
NCLA argued that agencies have no inherent power to make law, and nothing in the relevant statutes or regulations gives CDC the power to issue an eviction moratorium order. Two federal courts in less than one week agreed that CDC’s order was invalid.
CDC never met its obligation of showing that state actions were inadequate or that its eviction moratorium was necessary to stop the spread of COVID-19 as required by law. Nevertheless, the CDC order declared that anyone who violated the order faced up to $500,000 in fines or jail time, and housing providers like Plaintiffs in this case could pursue evictions. But if they defaulted and lost their property, the banks could still evict! These Plaintiffs, most of whom were mom-and-pop housing providers, had been unexpectedly targeted by unelected agency bureaucrats, with no authority over housing or state courts, using a rule that only gave CDC authority to regulate sick livestock. The complaint also argued that the order violated the U.S. Constitution because CDC had not identified any act of Congress that confered upon it the power to halt evictions or preempt state landlord-tenant laws. The CDC’s order also impermissibly commandeered state courts and state officers to apply, enforce, and implement an unconstitutional federal law.
By denying access to the state courts, the CDC order exceeded Constitutional limits on the federal government and violated the rights of tens of thousands of Americans based on the say-so of an unelected bureaucrat. NCLA was hopeful, especially given the earlier outcomes in Ohio and Tennessee, that the Northern District of Iowa would follow suit and reject the CDC’s effort to seize control of state law on such an insupportable basis.
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CASE STATUS: Closed
CASE START DATE: March 18, 2021
DECIDING COURT: U.S. District Court for the Northern District of Iowa
ORIGINAL COURT: U.S. District Court for the Northern District of Iowa
CASE DOCUMENTS
September 27, 2021 | Plaintiffs’ Brief in Opposition to Defendants’ Motion to Dismiss
August 30, 2021 | Plaintiffs’ Unopposed Motion for Leave to File a Brief Exceeding 20 Pages in Support of Summary Judgment
August 30, 2021 | Plaintiffs’ Brief in Support of Motion for Summary Judgment
August 30, 2021 | Plaintiffs’ Motion for Summary Judgment
August 18, 2021 | First Amended Complaint in the U.S. District Court for the Northern District of Iowa
August 6, 2021 | Answer of the U.S. Centers for Disease Control and Prevention
July 14, 2021 | Order Granting Defendants’ Second Extension
July 13, 2021 | Defendants’ Second Motion for an Extension of Time
June 17, 2021 | Order Granting Defendants’ First Extension
June 11, 2021 | Defendants’ First Motion for an Extension of Time
March 18, 2021 | Complaint in the U.S. District Court for the Northern District of Iowa
PRESS RELEASES
September 28, 2021 | CDC Seeks to Prevent Ruling on Merits of the Eviction Moratorium, NCLA Opposes Motion to Dismiss
Washington, DC (September 28, 2021) – For nearly a year, the Centers for Disease Control and Prevention (CDC) imposed an unlawful nationwide eviction moratorium on the nation’s home providers. The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, has fought the CDC Order since day one, filing two lawsuits: Brown, et al. v. CDC, et al. and Mossman, et al. v. CDC, et al. Yet after all the CDC’s legal gamesmanship and claims to nearly limitless authority, the eviction moratorium ended with barely a whimper. CDC now claims that the Mossman case is moot just because the agency strategically and voluntarily decided to dismiss its appeal in a separate case that it lost in another jurisdiction—the U.S. District Court for District of Columbia. NCLA has filed a brief opposing Defendants’ motion to dismiss in Mossman, arguing that CDC has not repudiated its Order nor disclaimed the authority it had invoked for its foray into state housing policy.
The stop-start nature of the eviction moratorium not only left home providers like NCLA’s clients uncertain when they would regain their constitutional and property rights, but it also restricted their ability to challenge the Order in court. Because the Order was perpetually on the verge of expiring, Defendants repeatedly sought and received delays in briefing, and courts across the country hesitated to rule on the merits of a soon-to-expire order. CDC would then reissue the Order just as it was set to expire, or in one case, just after it expired, further compounding the Plaintiffs’ injuries. Plaintiffs have lost millions of dollars in uncollected rents while expending huge sums for property maintenance, utilities, and other costs. Additionally, many Plaintiffs have seen the value of their properties depreciate under the threat that CDC will impose a lawless eviction moratorium again in the future.
On August 26, 2021, the U.S. Supreme Court crippled the eviction moratorium when it removed a stay on an injunction entered by the U.S. District Court for D.C. The Court’s “careful review of that record ma[de] clear” that the home providers “[we]re virtually certain to succeed on the merits of their argument that the CDC has exceeded its authority.” That opinion further stated, “The applicants not only have a substantial likelihood of success on the merits—it is difficult to imagine them losing.” Plaintiffs filed their motion for summary judgment four days after the Supreme Court’s order. Now Defendants claim mootness.
Even though Defendants decided to abandon their appeal of their district court loss, that strategic litigation maneuver does not unambiguously terminate the legal issues presented in this case, nor does it deprive the U.S. District Court for the Northern District of Iowa—the court reviewing Mossman—of its authority to issue the Plaintiffs a judgment declaring that Defendants cannot engage in this unlawful conduct again. Absent a judgment declaring the CDC Order unlawful and enjoining its enforcement as well as the issuance of any similar future order, all Plaintiffs will continue to be injured by a permanent reduction in their properties’ value and the ever-present threat that Defendants may deprive them of their access to those properties and to landlord-tenant courts.
NCLA released the following statements:
“CDC and other Defendants have bobbed and weaved for a year to avoid decisions on the merits for the lawless residential eviction moratorium. The fact that they have lost in one district court ought to mean judgment is entered against them here if they don’t contest that judgment. Our clients have stated that the very fact that CDC and the Government still assert they have the power to close the courts to every home provider in the country when someone is staying in their home without compensating them drives down property values. That is real damage, and our clients need a court order to stop it. The case is not moot, and we fully expect it to go forward.”
— John Vecchione, Senior Litigation Counsel, NCLA
“Back in June, Justice Kavanaugh let CDC’s eviction moratorium stay in place because he thought allowing the government four weeks to wind down its program would somehow be more orderly. CDC has done its best since then to prove him wrong. The agency has abused the courts to drag out its unlawful order for as long as possible while still seeking to avoid an adverse ruling. Our clients are asking the court to enter judgment to prevent CDC from continuing its lawless expansion of power.”
— Jared McClain, Litigation Counsel, NCLA
For more information visit the case page here.
ABOUT NCLA
NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.
August 31, 2021 | NCLA Files for Summary Judgment in Class-Action Lawsuit Against CDC’s Eviction Moratorium
Washington, DC (August 31, 2021) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, has moved for summary judgment in Mossman v. CDC, the class-action lawsuit challenging the Centers for Disease Control and Prevention’s (CDC) eviction moratorium order. The case, currently pending review in the U.S. District Court for the Northern District of Iowa, disputes the authority of CDC to impose the “Temporary Halt in Residential Evictions to Prevent Further Spread of COVID-19.” NCLA represents blameless housing providers left powerless by CDC’s lawless order.
On August 26, 2021, the U.S. Supreme Court removed a stay on an injunction that had been entered in a D.C. District Court. In doing so on facts nearly identical to those in Mossman, the Court stated, “careful review of that record makes clear that the applicants are virtually certain to succeed on the merits of their argument that the CDC has exceeded its authority.” That opinion further suggested, “The applicants not only have a substantial likelihood of success on the merits—it is difficult to imagine them losing.” President Biden admitted the lack of lawful authority for the order back on August 3, saying, “The bulk of the constitutional scholarship says that [a new order is] not likely to pass constitutional muster.” The Supreme Court’s ruling and the Biden administration’s concession make clear—at last—that CDC lacked any authority to issue the unlawful order.
Plaintiffs have been irreparably harmed by CDC’s ill-conceived foray into national housing policy. CDC’s eviction moratorium prevented thousands of members of the National Apartment Association and National Association of Residential Property Managers from using lawful eviction procedures for over a year, which will cost the members millions of dollars in unrecoverable losses. NCLA’s clients will be unlikely to obtain any economic relief or damages from their tenants, because, by definition, any tenant presenting an appropriate attestation will be insolvent. Many Plaintiffs will never recover from the economic stress caused by the eviction moratorium.
The CDC order is without a statutory or regulatory basis. Before the Supreme Court invalidated the moratorium, several courts had already determined that the CDC order was unlawful for a host of reasons. The issue is so clear, the injury to the Plaintiffs so egregious, and the binding precedent so great, that the Court should promptly grant summary judgment on the merits and declare the eviction moratorium unlawful.
NCLA released the following statements:
“Our clients have been denied access to their property, refused any remedy for non-payment of rent, and have been frozen out of court so their legitimate claims could not even be heard. This lawless act was done without Congressional authorization by a bureaucrat who pays no price for issuing this order. Enough is enough. It has to stop now with a judicial order that prevents CDC and the other defendants from ever pulling this stunt again.”
— John Vecchione, Senior Litigation Counsel, NCLA
“The case against CDC was clear from the day the agency issued its moratorium just ahead of last Labor Day. Now, almost a year later to the date, we ask the district court to follow the Supreme Court’s lead, declare the order unlawful, and enjoin its enforcement nationwide.”
— Jared McClain, Litigation Counsel, NCLA
For more information visit the case page here.
ABOUT NCLA
NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.
August 31, 2021 | NCLA Files for Summary Judgment in Class-Action Lawsuit Against CDC’s Eviction Moratorium
Washington, DC (August 31, 2021) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, has moved for summary judgment in Mossman v. CDC, the class-action lawsuit challenging the Centers for Disease Control and Prevention’s (CDC) eviction moratorium order. The case, currently pending review in the U.S. District Court for the Northern District of Iowa, disputes the authority of CDC to impose the “Temporary Halt in Residential Evictions to Prevent Further Spread of COVID-19.” NCLA represents blameless housing providers left powerless by CDC’s lawless order.
On August 26, 2021, the U.S. Supreme Court removed a stay on an injunction that had been entered in a D.C. District Court. In doing so on facts nearly identical to those in Mossman, the Court stated, “careful review of that record makes clear that the applicants are virtually certain to succeed on the merits of their argument that the CDC has exceeded its authority.” That opinion further suggested, “The applicants not only have a substantial likelihood of success on the merits—it is difficult to imagine them losing.” President Biden admitted the lack of lawful authority for the order back on August 3, saying, “The bulk of the constitutional scholarship says that [a new order is] not likely to pass constitutional muster.” The Supreme Court’s ruling and the Biden administration’s concession make clear—at last—that CDC lacked any authority to issue the unlawful order.
Plaintiffs have been irreparably harmed by CDC’s ill-conceived foray into national housing policy. CDC’s eviction moratorium prevented thousands of members of the National Apartment Association and National Association of Residential Property Managers from using lawful eviction procedures for over a year, which will cost the members millions of dollars in unrecoverable losses. NCLA’s clients will be unlikely to obtain any economic relief or damages from their tenants, because, by definition, any tenant presenting an appropriate attestation will be insolvent. Many Plaintiffs will never recover from the economic stress caused by the eviction moratorium.
The CDC order is without a statutory or regulatory basis. Before the Supreme Court invalidated the moratorium, several courts had already determined that the CDC order was unlawful for a host of reasons. The issue is so clear, the injury to the Plaintiffs so egregious, and the binding precedent so great, that the Court should promptly grant summary judgment on the merits and declare the eviction moratorium unlawful.
NCLA released the following statements:
“Our clients have been denied access to their property, refused any remedy for non-payment of rent, and have been frozen out of court so their legitimate claims could not even be heard. This lawless act was done without Congressional authorization by a bureaucrat who pays no price for issuing this order. Enough is enough. It has to stop now with a judicial order that prevents CDC and the other defendants from ever pulling this stunt again.”
— John Vecchione, Senior Litigation Counsel, NCLA
“The case against CDC was clear from the day the agency issued its moratorium just ahead of last Labor Day. Now, almost a year later to the date, we ask the district court to follow the Supreme Court’s lead, declare the order unlawful, and enjoin its enforcement nationwide.”
— Jared McClain, Litigation Counsel, NCLA
For more information visit the case page here.
ABOUT NCLA
NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.
March 18, 2021 | NCLA Files Class-Action Lawsuit to Put an End to CDC’s Lawless Nationwide Eviction Moratorium
Washington, DC (March 18, 2021) – The laws of all fifty states provide the remedy of eviction through state processes to retake possession of a home you have rented out. But a national eviction moratorium issued by the Centers for Disease Control and Prevention (CDC) in 2020 to “prevent” the spread of COVID-19 denies Plaintiffs the only lawful means available to them to evict a delinquent tenant—access to the courts. Today, the New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed a class-action lawsuit in the U.S. District Court for the Northern District of Iowa on behalf of Asa Mossman of Cedar Rapids, Iowa, and many other blameless housing providers left powerless against the CDC’s lawless order.
NCLA argues that agencies have no inherent power to make law, and nothing in the relevant statutes or regulations gives CDC the power to issue an eviction moratorium order. Two federal courts in less than one week have agreed that CDC’s order is invalid. Last Wednesday the U.S. District Court for the Northern District of Ohio ruled in Skyworks, LTD., et al., v. Centers for Disease Control and Prevention, et al. that the nationwide moratorium exceeded the agency’s statutory authority. And earlier this week, the Western District of Tennessee ruled similarly in the case of Tiger Lily, LLC, et al. v. United States Department of Housing and Urban Development, et al. NCLA had filed amicus briefs in both cases.
CDC has yet to meet its obligation of showing that state actions were inadequate or that its eviction moratorium was necessary to stop the spread of COVID-19 as required by law. Nevertheless, the CDC order declares that anyone who violates the order faces up to $500,000 in fines or jail time, and housing providers like Plaintiffs here cannot pursue evictions. But if they default and lose their property, the banks can still evict! These Plaintiffs, most of whom are mom-and-pop housing providers, have been unexpectedly targeted by unelected agency bureaucrats, with no authority over housing or state courts, using a rule that only gives CDC authority to regulate sick livestock. The complaint also argues that the order violates the U.S. Constitution because CDC has not identified any act of Congress that confers upon it the power to halt evictions or preempt state landlord-tenant laws. The CDC’s order also impermissibly commandeers state courts and state officers to apply, enforce, and implement an unconstitutional federal law.
By denying access to the state courts, the CDC order exceeds Constitutional limits on the federal government and violates the rights of tens of thousands of Americans based on the say-so of an unelected bureaucrat. NCLA is hopeful, especially given the recent outcomes in Ohio and Tennessee, that the Northern District of Iowa will follow suit and reject the CDC’s effort to seize control of state law on such an insupportable basis.
NCLA released the following statements:
“Mr. Mossman and the other housing providers in this suit are being ordered by CDC to provide homes for free with no ability to recover their property when tenants fail to pay their contractual obligations. There is little to no chance any of these housing providers, who pay their mortgages and property taxes, keep up with the maintenance and provide a livable space, will recover their losses. We file this action on behalf of these plaintiffs but also for the entire class of blameless housing providers who have been irreparably injured by the CDC order.”
— John Vecchione, NCLA Senior Litigation Counsel
“CDC insists that its order does not hurt housing providers because they can eventually seek back rent from their tenants in state court. But the longer this moratorium continues, the less hope that plaintiffs have of ever seeing a dime of what they’re owed. Yet they must continue to pay their mortgages and property taxes on rental properties that have not produced any rental income in six months to a year.”
— Jared McClain, NCLA Litigation Counsel
“CDC has unlawfully extended its nationwide eviction moratorium to March 31, and it seems bound and determined to extend this gross violation of housing providers’ civil liberties even further. Despite three separate federal courts now ruling the agency’s conduct out of bounds, CDC continues its misconduct. If state or federal authorities want to keep people from being evicted, they need to provide them rental assistance. Imposing a fake quarantine that vastly exceeds CDC’s power is hogwash. This lawsuit provides the court with an opportunity to end this civil liberties nightmare once and for all.”
— Mark Chenoweth, NCLA Executive Director and General Counsel
For more information about this case visit here.
ABOUT NCLA
NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.