Order on Service and Scheduling — Terkel v. CDC

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An order in Lauren Terkel et al. v. Centers for Disease Control and Prevention et al., No. 6:20-cv-00564, entered December 10, 2020 in the U.S. District Court for the Eastern District of Texas. The order finds the plaintiffs' affidavit of service insufficient because it does not attest to service on the United States, additionally required under Fed. R. Civ. P. 4(i)(2) when suing a United States agency or officer in an official capacity, and directs the plaintiffs to serve the United States. Under Fed. R. Civ. P. 21 the court adds the United States as a defendant and directs the clerk to amend the case caption, citing 5 U.S.C. § 702. It sets December 14, 2020 for any motion disagreeing with that addition and for the defendants to file the administrative record and any summary judgment briefing, and allows the plaintiffs further briefing by December 17, 2020.

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No. 6:20-cv-00564 
Lauren Terkel et al., 
Plaintiffs, 
v. 
Centers for Disease Control and Prevention et al., 
Defendants. 
ORDER 
 
Plaintiffs in this action sue the U.S. Department of Health 
and Human Services (HHS), the Centers for Disease Control 
and Prevention (a component of HHS), and three HHS offi-
cials responsible for the challenged agency order. Doc. 1 at 4-
5. Pursuant to Federal Rule of Civil Procedure 4(l), plaintiffs 
have filed an affidavit of service of process. See Doc. 7. That 
affidavit, however, appears insufficient. Although it attests to 
service on each of the five defendants named in the complaint, 
the affidavit does not attest to service on the United States, 
which is additionally required when suing a United States 
agency or United States officer in an official capacity. Fed. R. 
Civ. P. 4(i)(2). Plaintiffs are directed to serve process on the 
United States, if that has not been done already, and file a suf-
ficient affidavit of service forthwith. 
 
Additionally, because the challenged agency order may be 
enforced in a criminal proceeding brought in the name of the 
United States, see 85 Fed. Reg. at 55,296, the court adds the 
United States as a defendant. See Fed. R. Civ. P. 21 (“[O]n its 
own, the court may at any time, on just terms, add or drop a 
party.”). The court finds that addition just, as it would allow 
a remedy corresponding to the full substance of plaintiffs’ al-
legations and has no effect on the course of the litigation since 
Department of Justice counsel have already appeared to de-
fend the order. See 5 U.S.C. § 702 (“The United States may be 

 
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named as a defendant in any such action [for judicial review 
of agency action], and a judgment or decree may be entered 
against the United States[.]”); id. § 703 (“the action for judicial 
review may be brought against the United States, the agency 
by its official title, or the appropriate officer”); see, e.g., Mul-
laney v. Anderson, 342 U.S. 415, 417 (1952) (adding party on 
appeal under Rule 21 where earlier joinder would not “have 
in any way affected the course of the litigation”); Du Shane v. 
Conlisk, 583 F.2d 965, 967 (7th Cir. 1978) (similar for remedial 
purposes). The clerk of court is directed to amend the case 
caption accordingly. Any disagreement with this addition 
should be raised by motion filed by December 14, 2020. Coun-
sel for defendants are further directed to notify the court by 
that date if their notices of appearance for all defendants 
should not be extended to the United States. 
 
Lastly, the court modifies its scheduling order (Doc. 24) to 
direct defendants to file the administrative record in this ac-
tion on or before December 14, 2020. By that same date, de-
fendants may file any desired briefing on summary judgment 
in light of the administrative record. That may be unnecessary 
because plaintiffs’ Commerce Clause challenge is a purely le-
gal question that turns only on legislative facts, not adjudica-
tive facts developed in this case. See Doc. 18; Moore v. Madigan, 
702 F.3d 933, 942 (7th Cir. 2012) (“The constitutionality of the 
challenged statutory provisions does not present factual ques-
tions for determination in a trial.”); Nat'l Rifle Ass’n of Am. v. 
Magaw, 132 F.3d 272, 290 (6th Cir. 1997) (noting that the “con-
stitutionality of the [statute] on Commerce Clause and Equal 
Protection grounds . . . are purely legal issues”). Plaintiffs 
may file any additional briefing regarding the administrative 
record by December 17, 2020. Any such brief is limited to 15 
pages for all plaintiffs and 15 pages for all defendants. 
 
 

 
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So ordered by the court on December 10, 2020. 
  
J. CAMPBELL BARKER 
United States District Judge

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