Government’s Appeal of CDC’s Eviction Moratorium Is Dismissed on Its Own Motion but the District Court’s Order Remains in Effect, Fifth Circuit Holds

In Terkel v. Centers for Disease Control, No. 21-40137 (5th Cir. Oct. 19, 2021), a published per curiam order of the Fifth Circuit, the court dismisses the federal government’s appeal of an order enjoining a national eviction moratorium but notably leaves the lower court order in effect.

Subject to certain exceptions, when a federal case becomes moot on appeal, the court vacates the decision below and directs that the case be dismissed. United States v. Munsingwear, Inc., 340 U.S. 36 (1950). This case involved a challenge to “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 moratorium expired October 3, 2021 while the case was on appeal.

The government, which lost below, moved to dismiss its appeal under Fed. R. App. P. 42(b). “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).”

The plaintiffs, though, contended that the case was not really 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.”

The panel (with one judge only joining in the dismissal) punts on mootness. “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.”

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