Court filing
Plaintiffs' Statement in Support of Summary Judgment — Terkel v. CDC (E.D. Tex.)
Filed December 4, 2020 in Terkel v. Centers for Disease Control and Prevention; one of 14 filings from this case.
Record facts
| Court | U.S. District Court for the Eastern District of Texas |
|---|---|
| Filed | 2020-12-04 |
U.S. District Court for the Eastern District of Texas · No. 6:20-cv-00564-JCB · Doc. 22 · 2020-12-04 · Docket on CourtListener
Full text
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; and
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
PLAINTIFFS’ STATEMENT IN SUPPORT OF CONSIDERING AND GRANTING
DECLARATORY RELIEF ON SUMMARY JUDGMENT
On November 20, 2020, this Court ordered the parties “to provide any information that
would counsel against considering or granting summary judgment.” Doc. 18. Plaintiffs are in full
agreement that summary judgment on the merits of their constitutional claims can and should be
granted. The facts here are undisputed and the sole issue presented is a legal question of
constitutional interpretation. The Court should therefore convert Plaintiffs’ preliminary injunction
motion to a summary judgment and enter a final judgment resolving the entirety of this case at the
trial court level. Given Plaintiffs’ agreement that the motion should be converted, Plaintiffs are
uncertain that any further response is required. However, insofar as any response from Plaintiffs
Case 6:20-cv-00564-JCB Document 22 Filed 12/04/20 Page 1 of 4 PageID #: 321
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is required, Plaintiffs hereby file the following brief statement in support of considering and
granting their request for declaratory relief on a summary judgment basis.
Under Federal Rule of Civil Procedure 56(f), a court may, by its own motion, consider
summary judgment when: (1) it has provided notice to the parties; (2) it has given parties a
reasonable time to respond; and (3) material facts are not genuinely in dispute. The Court here has
provided sufficient notice to the parties and has given them a reasonable time (two weeks) to
respond. See, e.g., Wolcott v. Sebelius, 497 Fed. Appx. 400, 405 (5th Cir. 2012) (finding that giving
just a few hours’ notice before entering a sua sponte motion for summary judgment was
insufficient, whereas “explicitly order[ing] the parties” to file motions by a certain date was
reasonable under Rule 56(f)) (citing Powell v. United States, 849 F.2d 1576, 1579 (5th Cir. 1988);
New York Life Ins. Co. v. Brown, 84 F.3d 137 (5th Cir. 1996)).
Moreover, there are no material facts in dispute. Defendants did not dispute the facts
alleged in Plaintiffs’ declarations either in their Response or during the hearing on Plaintiffs’
Motion for Preliminary Injunction. More importantly, Plaintiffs’ brought a purely legal challenge
to the constitutionality of the CDC Order. To the extent that the Administrative Procedure Act
(APA) applies beyond the procedural means for Plaintiffs to raise their constitutional challenge,
any record the government might submit is irrelevant to the sole constitutional legal claim at issue.
When it comes to constitutional claims under the APA, “[t]he Court need not consider the
record on the APA claim because it requires a purely legal statutory-interpretation analysis.”
Franciscan All. Inc. v. Azar, 414 F. Supp. 3d 928, 942 n.6 (N.D. Tex. 2019).
Any arguments by Defendants to the contrary can be viewed as nothing more than a delay
tactic to drag litigation into the new year. But as this Court points out, “neither factual development
in this court nor filing of the administrative record appears necessary to put the court in a position
Case 6:20-cv-00564-JCB Document 22 Filed 12/04/20 Page 2 of 4 PageID #: 322
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to adjudicate the merits of plaintiffs’ claims.” Doc. 18. Thus, Plaintiffs respectfully request that
this Court consider their claim for declaratory relief on summary judgment, grant summary
judgment in Plaintiffs’ favor, and enter a final judgment in this case providing prompt relief to
Plaintiffs who continue to suffer daily compounding injuries.
DATED: December 4, 2020
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
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 Plaintiff
Case 6:20-cv-00564-JCB Document 22 Filed 12/04/20 Page 3 of 4 PageID #: 323
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CERTIFICATE OF SERVICE
I certify that the foregoing document was electronically filed on December 4, 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 22 Filed 12/04/20 Page 4 of 4 PageID #: 324File and source
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