Emergency Motion for Expedited Consideration — Terkel v. CDC

Record facts

U.S. District Court for the Eastern District of Texas · No. 6:20-cv-00564-JCB · Doc. 14 · 2020-11-17 · Docket on CourtListener

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IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF TEXAS 
TYLER DIVISION 
 
LAUREN 
TERKEL; 
PINEYWOODS 
ARCADIA HOME TEAM, LTD; LUFKIN 
CREEKSIDE APARTMENTS, LTD; LUFKIN 
CREEKSIDE 
APARTMENTS 
II, 
LTD; 
LAKERIDGE 
APARTMENTS, 
LTD; 
WEATHERFORD 
MEADOW 
VISTA 
APARTMENTS, LP; and MACDONALD 
PROPERTY MANAGEMENT, LLC; 
  
Plaintiffs, 
 
  
 v. 
 
CENTERS FOR DISEASE CONTROL AND 
PREVENTION; ROBERT R. REDFIELD, in his 
official capacity as Director of the Centers for 
Disease 
Control 
and 
Prevention; 
NINA 
WITKOFSKY, in her official capacity as Acting 
Chief of Staff for the Centers for Disease Control 
and 
Prevention; 
UNITED 
STATES 
DEPARTMENT OF HEALTH AND HUMAN 
SERVICES; and ALEX AZAR, in his official 
capacity as Secretary of the Department of 
Health and Human Services; 
  
Defendants. 
 
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CIVIL ACTION NO. 6:20-cv-564-JCB 
      JUDGE BARKER 
 
 
 
 
 
 
 
EMERGENCY UNOPPOPSED MOTION FOR EXPEDITED CONSIDERATION OF 
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION  
 
Pursuant to Local Rule CV-7(l), Plaintiffs1 request the Court grant expedited consideration 
of Plaintiffs’ Motion for Preliminary Injunction [ECF #13].  Plaintiffs request the Court issue its 
ruling on Plaintiffs’ Motion on an expedited basis to avoid causing Plaintiffs’ another month of 
continued injury.  Should oral argument assist the Court in resolving the issues presented in 
Plaintiffs’ Motion, Plaintiffs’ counsel announce ready on any day, at any time to appear and be 
                                                          
1  
Plaintiffs are Lauren Terkel, Pineywoods Arcadia Home Team, Ltd., Lufkin Creekside Apartments, Ltd., 
Lufkin Creekside Apartments II, Ltd., and Lakeridge Apartments, Ltd., Weatherford Meadow Vista Apartments, Ltd., 
and MacDonald Property Management, LLC, 
Case 6:20-cv-00564-JCB   Document 14   Filed 11/17/20   Page 1 of 4 PageID #:  216

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heard. 
1. 
Plaintiffs are residential landlords and property management companies subject to the 
Center for Disease Control (“CDC”) Order preventing residential evictions.2  The CDC Order is 
quickly approaching its third month, and Plaintiffs request immediate relief from the Court to avoid 
another month of compounding injury. 
2. 
Plaintiffs’ lawsuit challenges the constitutionality of Centers for Disease Control and 
Prevention Order prohibiting residential evictions.  This case raises issues important to the very 
premise of our federal government as one constrained by limited, enumerated powers. 
3. 
Plaintiffs’ private property has been taken hostage by Defendants through the CDC Order.  
Each day that the CDC Order remains in place causes Plaintiffs recurring injury.  Plaintiffs’ 
property rights are infringed each day by the Order forcing them to maintain on their property 
unwanted persons.  Each day that the CDC Order remains in place prevents Plaintiffs from 
exercising their legal remedies under Texas state law to remove these unwanted persons.  
4. 
By the nature of residential leasing, Plaintiffs’ ongoing injuries are further compounded at 
the beginning of each month when rent is due and Plaintiffs are forced to suffer a new month of 
injury.  See Plf. Mtn. for Preliminary Injunction, p. 4-8; Plf. Reply ISO Mtn. for Prelim. Injunction, 
p. 10-13.  The longer the CDC Order remains in force, the more likely it is that additional tenants 
of Plaintiffs will elect to breach their lease and use the CDC Order as a means to enable them to 
forcibly continue to occupy Plaintiffs’ private property against the will of Mrs. Terkel and her co-
Plaintiffs.  These adverse possessors remain shielded from any consequence by the significant 
criminal penalties in the CDC Order.  See 85 Fed. Reg. 55296.  Each month of the CDC Order 
                                                          
2  
Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, 85 Fed. Reg. 
55292 (Sept. 4, 2020), available at https://www.govinfo.gov/content/pkg/FR-2020-09-04/pdf/2020-
19654.pdf. 
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blocks Plaintiffs from obtaining new tenants who will abide by their contractual obligations in 
contrast to the current tenants in breach who continue to occupy Plaintiffs’ property through the 
force of the CDC Order.   
5. 
Proceeding under Local Rule CD-7(e) is inadequate because the Parties have already fully 
briefed the preliminary injunction motion with yesterday’s filing of Plaintiffs’ Reply.  [ECF #13].  
The Parties have worked diligently to file their Motion, Response, and Reply without seeking any 
extension of time.  
6. 
Plaintiffs’ counsel shall notify chambers of the presiding judge of the filing of this 
emergency motion pursuant to Local Rule CV-7(l)(4). 
THEREFORE, Plaintiffs respectfully request the Court grant this unopposed Motion, 
immediately notice oral argument should the Court so desire, and issue its Order on Plaintiffs’ 
Motion for Preliminary Injunction on an expedited basis.  
Respectfully Submitted, 
 
/s/Robert Henneke 
 
 
ROBERT HENNEKE 
Texas Bar No. 24046058 
rhenneke@texaspolicy.com 
CHANCE WELDON  
Texas Bar No. 24076767 
cweldon@texaspolicy.com 
RYAN D. WALTERS 
Texas Bar No. 24105085 
rwalters@texaspolicy.com 
TEXAS PUBLIC POLICY FOUNDATION 
901 Congress Avenue 
Austin, TX 78701 
Telephone: 
(512) 472-2700 
Facsimile: 
(512) 472-2728 
 
KIMBERLY S. HERMANN 
(admitted pro hac vice) 
Georgia Bar No. 646473 
khermann@southeasternlegal.org 
Case 6:20-cv-00564-JCB   Document 14   Filed 11/17/20   Page 3 of 4 PageID #:  218

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CELIA HOWARD O’LEARY 
(admitted pro hac vice) 
Georgia Bar No. 747472 
coleary@southeasternlegal.org 
SOUTHEASTERN LEGAL FOUNDATION 
 
 
 
 
 
 
560 West Crossville Rd., Ste. 104 
Roswell, GA 30075 
Telephone: 
(770) 977-2131 
 
Attorneys for Plaintiffs 
 
 
CERTIFICATE OF CONFERENCE 
I hereby certify that on November 17, 2020, I conferred with counsel for Defendants, Leslie 
Cooper Vigen, about the relief sought in the attached Motion to Exceed Page Limits.  Defendants’ 
counsel represented their position as follows: “Defendants have previously demonstrated that 
Plaintiffs are not entitled to expedited relief, see Defs.’ Opp. to Mot. for Prelim. Inj. (ECF No. 11), 
but respectfully defer to the Court as to when it resolves Plaintiffs’ motion for a preliminary 
injunction and therefore take no position on the motion to expedite.” 
  
 
 
 
 
 
  
 
 
 
 
 
/s/Robert Henneke 
 
 
  
 
 
 
 
 
ROBERT HENNEKE 
 
 
 
CERTIFICATE OF SERVICE 
I certify that the foregoing document was electronically filed on November 17, 2020 with 
the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all 
counsel of record. 
 
 
 
 
 
  
 
 
 
 
 
/s/Robert Henneke 
 
 
  
 
 
 
 
 
ROBERT HENNEKE 
 
Case 6:20-cv-00564-JCB   Document 14   Filed 11/17/20   Page 4 of 4 PageID #:  219

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