Fifth Circuit Order Dismissing Appeal — Terkel v. CDC

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U.S. District Court for the Eastern District of Texas · No. 6:20-cv-00564-JCB · Doc. 49-1 · 2021-10-19 · Docket on CourtListener

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United States Court of Appeals 
for the Fifth Circuit 
 
 
No. 21-40137 
 
 
Lauren Terkel; Pineywoods Arcadia Home Team, 
Limited; Lufkin Creekside Apartments, Limited;  
Lufkin Creekside Apartments II, Limited;  
Lakeridge Apartments, Limited; Weatherford Meadow 
Vista Apartments, L.P.; MacDonald Property 
Management, L.L.C.,  
 
Plaintiffs—Appellees, 
 
versus 
 
Centers for Disease Control and Prevention; Rochelle 
P. Walensky, in her official capacity as Director of the 
Centers for Disease Control and Prevention; Sherri A. 
Berger, 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; Xavier Becerra, Secretary, U.S. 
Department of Health and Human Services;  
United States of America,  
 
Defendants—Appellants. 
 
 
Appeal from the United States District Court 
for the Eastern District of Texas 
USDC No. 6:20-CV-564 
 
 
 
United States Court of Appeals 
Fifth Circuit 
FILED 
October 19, 2021 
 
Lyle W. Cayce 
Clerk 
Case: 21-40137      Document: 00516060856     Page: 1     Date Filed: 10/19/2021
Case: 21-40137      Document: 00516127299     Page: 1     Date Filed: 12/13/2021
Case 6:20-cv-00564-JCB   Document 49-1   Filed 12/13/21   Page 1 of 3 PageID #:  1774

No. 21-40137 
2 
Before Jones, Smith, and Haynes, Circuit Judges. 
Per Curiam:*
The appellants moved to dismiss this appeal under Federal Rule of 
Appellate Procedure 42(b).  We Grant that motion and dismiss this appeal 
subject to the terms articulated below. 
This case involves the constitutionality of the Centers for Disease 
Control and Prevention’s nationwide eviction moratorium, which prevented 
landlords from exercising their state law eviction rights.  Temporary Halt in 
Residential Evictions to Prevent the Further Spread of COVID-19, 85 Fed. 
Reg. 55,292 (Sept. 4, 2020).  The most recent iteration of the moratorium 
expired October 3, 2021.  Temporary Halt in Residential Eviction to Precent 
the Further Spread of COVID-19, 86 Fed. Reg. 43,244 (Aug. 6, 2021).  
Moreover, another court’s judgment invalidating the CDC’s eviction 
moratorium on the grounds that the moratorium exceeded the CDC’s 
authority under the Public Health Service Act, 42 U.S.C. § 264, is now final.  
Alabama Ass’n of Realtors v. Dep’t of Health & Hum. Services, No. 20-CV-
3377, 2021 WL 1779282 (D.D.C. May 5, 2021). 
The government contends that the expiry of the most recent version 
of the CDC’s eviction moratorium renders the present controversy moot.  It 
also contends that the dispute is moot because it voluntarily ceased 
enforcement of the eviction moratorium even before October 3, the formal 
expiration date, acceding to the finality of Alabama Association of Realtors by 
dismissing its pending appeal in that case.  Alabama Ass’n of Realtors, No. 21-
5093, Doc. Nos. 1912768, 1912769 (D.C. Cir. Sept. 3, 2021).  Nevertheless, 
the government maintains that the CDC has constitutional authority to issue 
the moratorium. 
 
* Judge Haynes joins only in dismissing this appeal. 
Case: 21-40137      Document: 00516060856     Page: 2     Date Filed: 10/19/2021
Case: 21-40137      Document: 00516127299     Page: 2     Date Filed: 12/13/2021
Case 6:20-cv-00564-JCB   Document 49-1   Filed 12/13/21   Page 2 of 3 PageID #:  1775

No. 21-40137 
3 
Appellees respond that the appeal is not moot because the parties still 
dispute whether the government has constitutional power under the 
Commerce Clause to invade individual property rights by limiting landlords’ 
use of state court eviction remedies.  The government maintains it has such 
authority.  And in the government’s view, espoused at oral argument, that 
constitutional power is in no way limited to combatting the ongoing 
pandemic; the government asserts it can wield that staggering constitutional 
authority for any reason.  Appellees further contend the proposed dismissal 
is a pretext to avoid appellate review of the constitutional question. 
After considering the record and the parties’ oral arguments, we find 
it unnecessary to decide mootness.  Instead, we grant the motion to dismiss 
the appeal “on terms . . . fixed by the court.”  Fed. R. App. P. 42(b).  To be 
precise, our dismissal does not abrogate the district court’s judgment or 
opinion, both of which remain in full force according to the express 
concession of the government during oral argument and in briefing. 
It is Ordered that appellant’s voluntary motion to dismiss is 
Granted subject to the forgoing condition. 
Case: 21-40137      Document: 00516060856     Page: 3     Date Filed: 10/19/2021
Case: 21-40137      Document: 00516127299     Page: 3     Date Filed: 12/13/2021
Case 6:20-cv-00564-JCB   Document 49-1   Filed 12/13/21   Page 3 of 3 PageID #:  1776

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