The Fifth Circuit granted on Tuesday the Centers for Disease Control and Prevention’s (CDC’s) request to voluntarily dismiss an appeal without determining whether the case was moot.

Terkel v. Centers for Disease Control and Prevention stemmed from the CDC’s national eviction moratorium, which temporarily prohibited landlords from evicting tenants amid the COVID-19 pandemic. After a recent moratorium extension expired in October, the US Court of Appeals for the DC Circuit invalidated “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.” Soon thereafter, the US Supreme Court affirmed, holding that the CDC exceeded its authority when it issued a moratorium order on evictions in counties with heightened levels of community transmission.

Subsequently, in Terkel, the CDC moved to voluntarily dismiss its appeal. The CDC challenged the appeals court’s authority to hear the case, arguing that it was moot for two reasons. First, the CDC contended that the recent US Supreme Court decision effectively rendered the controversy moot. Second, the CDC noted that it voluntarily ceased to enforce the moratorium after the DC Circuit court invalidated the moratorium. Still, the CDC maintained that it had constitutional authority under the Commerce Clause to issue the moratorium, for any reason, including one not related to the COVID-19 pandemic.

Several property owners, pointing to the CDC’s assertion that it retained such power, argued that the case presented a live controversy. Hence, these owners sought to prevent voluntary dismissal claiming the CDC was evading review of the constitutional claim.

The circuit court granted the CDC’s motion and dismissed the appeal in a per curium decision, stating that deciding on mootness was unnecessary. In dismissing the CDC’s appeal, the court clarified that its “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.”