The New Civil Liberties Alliance (NCLA) is seeking an injunction to reverse what it called an “erroneous” decision by the US District Court for the Northern District of Georgia. That decision denied an injunction on behalf of property owners against the CDC’s nationwide eviction moratorium to stop the spread of COVID-19. It denied the injunction on the grounds that the “injury” suffered by landlords in the form of lost rental income was not sufficiently “irreparable” to approve an injunction during the extraordinary circumstances of the pandemic.

Caleb Kruckenberg, litigation counsel for the NCLA, told MPA why he thinks the district judge erred and laid out some of the case he’s making on behalf of landlords in this second injunction. He explained that while the judge accepted the harm his clients were suffering was serious, it was not serious enough to warrant intervention.

“We think that was wrong,” Kruckenberg said. “Because my clients aren’t earning income from these residential properties and they’re never going to be able to get that money back. They can’t use properties they own, can’t make money on them, and are incurring costs at the same time.”

Kruckenberg also explained the more delicate legal issue behind his challenge, noting that the law the CDC is invoking to impose this eviction ban was written in 1945 and empowered the body to quarantine livestock, impound goods, quarantine people and impose “other measures.” The courts, Kruckenberg explained, have read those “other measures” to include this eviction ban.

The initial injunction was taken on behalf of 85,000 landlords who Kruckenberg described as largely smaller landlords with fewer than 10 properties. The court, Kruckenberg said, imposed an “impossible burden of proof” on those landlords to show that they were not being paid and would never possibly be paid under this order.

Kruckenberg accepts that there’s a significant PR element to a case like this. Fighting on behalf of landlords who want to retain the right to evict their tenants doesn’t necessarily play well in headlines. He stressed, though, that his tenants are mostly independent small landlords using this rental income to supplement their own incomes or plan for their retirement. He cited the lead plaintiff, Rick Brown, who owns eight properties and remains responsible for their maintenance. Without rental income, Kruckenberg said that Brown’s financial stability and retirement are at risk.

The new injunction is being made to the 11th circuit court which, Kruckenberg explained, includes legal challenges to the ruling from the district court. He hopes the 11th circuit will act quickly on behalf of his clients, some of whom have lost all their income because of this moratorium.

Read more: 23 million Americans could face eviction

Kruckenberg stressed his sympathy for the tenants, too, and said “nobody wants to see evictions.” He says much of this issue is the fault of “half measures” taken when agencies like the CDC are left to resolve structural issues like this during a pandemic. They are arguing that Congress, not an agency like the CDC, should be deciding an issue like this. He argues that blanket orders disadvantaging landlords are not a way to address concerns around housing during a pandemic.

“The CDC administrative order started with an executive order from the president. I think this was an easy way for the administration to say, ‘look, we’re doing something to help people’,” he said. “They didn’t really have to wrestle with the fact that it harmed a lot of people who are providing housing. I think, unfortunately, we’re up against the narrative that landlords deserve to have to pay for tenants. I’ve spoken to so many people who provide housing, almost all of them have fewer than 10 properties. Most of them are just trying to supplement their income and I think my task is to try to get people to understand the full story. I don’t want anyone to be evicted, what I want is Congress to make a better choice. Hopefully, there is some rental assistance and there is a good solution that doesn’t impact my clients in this way.”