Court filing
Federal Defendants’ Combined Motion to Dismiss, Cross-Motion for Summary Judgment, and Opposition — Wall v. CDC (M.D. Fla.)
Filed August 9, 2021 in Wall v. CDC; one of 35 filings from this case.
Record facts
| Court | UNITED STATES DISTRICT COURT |
|---|---|
| Filed | 2021-08-09 |
UNITED STATES DISTRICT COURT · No. 6:21-cv-00975-PGB-DCI · Doc. 125 · 2021-08-09 · Docket on CourtListener
Full text
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
LUCAS WALL,
Plaintiff,
v.
Case No. 6:21-cv-975-PGB-DCI
CENTERS FOR DISEASE
CONTROL AND PREVENTION,
et al.,
Defendants.
FEDERAL DEFENDANTS’ COMBINED MOTION TO DISMISS,
CROSS-MOTION FOR SUMMARY JUDGMENT, AND OPPOSITION
TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
BRIAN M. BOYNTON
Acting Assistant Attorney General
KARIN HOPPMANN
Acting United States Attorney
ERIC B. BECKENHAUER
Assistant Branch Director
MARCIA K. SOWLES
Senior Trial Counsel
STEPHEN M. PEZZI
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
ADAM R. SMART
Assistant United States Attorney
Counsel for the Federal Defendants
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i
TABLE OF CONTENTS
INTRODUCTION .........................................................................1
BACKGROUND ......................................................................... 3
I.
Statutory and Regulatory Background ..................................................... 3
II.
The COVID-19 Pandemic...................................................................... 7
III.
The Challenged Orders.......................................................................... 9
IV.
Litigation Background......................................................................... 13
ARGUMENT............................................................................. 15
I.
The Court lacks subject-matter jurisdiction over all of Plaintiff’s
claims against DHS, TSA, DOT, and the President of the United
States. .............................................................................. 16
a.
The Court of Appeals has exclusive jurisdiction over claims
relating to the challenged TSA Security Directives (Counts 9-12). ..... 17
b.
The Court lacks jurisdiction over Plaintiff’s claims that DOT has
failed to enforce the Air Carrier Access Act (Count 15).................... 19
1.
The Court of Appeals has exclusive jurisdiction to review
DOT’s actions under the ACAA. ........................................ 20
2.
Plaintiff cannot satisfy the requirements for mandamus
jurisdiction under 28 U.S.C. § 1361. .................................... 21
c.
Plaintiff’s claims against the President are not redressable (Counts
5-8, and 23). ............................................................................. 25
d.
Plaintiff lacks standing to challenge the international traveler
testing order (Counts 19-23). ....................................................... 26
II.
Plaintiff’s APA challenges to the CDC’s transportation mask order are
meritless............................................................................ 27
a.
The transportation mask order is authorized by the Public Health
Service Act (Count 4). ................................................................ 27
b.
The transportation mask order is consistent with the ACAA and
DOT’s implementing regulations (Count 14).................................. 37
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ii
c.
The transportation mask order is not arbitrary and capricious
(Count 3). ................................................................................ 41
d.
The transportation mask order does not violate the APA’s notice-
and-comment requirements (Count 1). .......................................... 46
III.
Plaintiff’s
APA challenges to the TSA’s Security
Directives
implementing the CDC’s transportation mask order are meritless
(Counts 9-12). ..................................................................... 48
a.
The TSA’s Security Directives fall within TSA’s statutory
authority. ................................................................................. 48
b.
The TSA’s Security Directives do not violate the APA’s notice-
and-comment requirements. ........................................................ 52
IV.
Plaintiff’s APA challenges to the CDC’s international traveler testing
order are meritless (Counts 19-23). ............................................. 53
a.
The international traveler testing order is authorized by the Public
Health Service Act (Count 22). .................................................... 54
b.
The international traveler testing order is not arbitrary and
capricious (Count 21). ................................................................ 56
c.
The international traveler testing order does not violate the APA’s
notice-and-comment requirements (Count 19). ............................... 57
V.
All of Plaintiff’s constitutional claims are meritless.......................... 58
a.
Plaintiff’s right-to-travel claim is meritless (Count 8). ...................... 58
b.
Plaintiff’s non-delegation claims are meritless (Counts 5 and 23). ...... 62
c.
Plaintiff’s Due Process claim is meritless (Count 7). ........................ 63
d.
Plaintiff’s Tenth Amendment claim is meritless (Count 6). ............... 65
VI.
Plaintiff’s complaint violates the Federal Rules of Civil Procedure. ....... 68
VII. Plaintiff’s requested relief is overbroad. ....................................... 69
CONCLUSION .......................................................................... 70
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TABLE OF AUTHORITIES
CASES
13th Reg’l Corp. v. Dep’t of Interior,
654 F.2d 758 (D.C. Cir. 1980) .................................................................... 23
A.L.A. Schechter Poultry Corp. v. United States,
295 U.S. 495 (1935) .................................................................................. 65
Abdi v. Wray,
942 F.3d 1019 (10th Cir. 2019) .................................................... 58, 59, 60, 64
Air Lines Pilots Ass’n v. CAB,
750 F.2d 81 (D.C. Cir. 1984) ...................................................................... 20
Ala. Ass’n of Realtors v. HHS,
141 S. Ct. 2320 (2021) ............................................................................... 34
Ala. Ass’n of Realtors v. HHS,
No. 21-5093, 2021 WL 2221646 (D.C. Cir. June 2, 2021) ............................... 35
Ali v. Fed. Bureau of Prisons,
552 U.S. 214 (2008) .................................................................................. 30
Am. Ass’n of Exps. & Imps. Textile and Apparel Grp. v. United States,
751 F.2d 1239 (Fed. Cir. 1985) ................................................................... 57
Am. Disabled for Attendant Programs Today v. HUD,
170 F.3d 381 (3rd Cir. 1999) ...................................................................... 24
Am. Wildlands v. Kempthorne,
530 F.3d 991 (D.C. Cir. 2008) .................................................................... 43
Amerijet Int’l v. DHS,
43 F. Supp. 3d 4 (D.D.C. 2014) .................................................................. 18
Arrington v. Green,
757 F. App'x 796 (11th Cir. 2018) ............................................................... 69
Ass’n of Citizens to Protect & Pres. the Env’t v. FAA,
287 F. App’x 764 ..................................................................................... 17
Babbitt v. Sweet Home Chapter of Cmtys. for a Greater Or.,
515 U.S. 687 (1995) .................................................................................. 30
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iv
Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc.,
462 U.S. 87 (1983).................................................................................... 41
Barnhart v. Walton,
535 U.S. 212 (2002) .................................................................................. 34
Beydoun v. Sessions,
871 F.3d 459 (6th Cir. 2017) ...................................................................... 60
Big Time Vapes, Inc. v. FDA,
963 F.3d 436 (5th Cir. 2020), cert. denied,
2021 WL 2302098 (U.S. June 7, 2021)......................................................... 62
Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Engr’s,
781 F.3d 1271 (11th Cir. 2015) ................................................................... 70
Brown v. HHS,
--- F. 4th ----, 2021 WL 2944379 (11th Cir. July 14, 2021)........................... 34, 35
Califano v. Yamasaki,
442 U.S. 682 (1979) .................................................................................. 69
Camp v. Pitts,
411 U.S. 138 (1973) .................................................................................. 44
Cash v. Barnhart,
327 F.3d 1252 (11th Cir. 2003) ................................................................... 21
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984) ............................................................................. 27, 28
City of Los Angeles v. Lyons,
461 U.S. 95 (1983).................................................................................... 27
Combat Veterans for Cong. Political Action Comm. v. FEC,
795 F.3d 151 (D.C. Cir. 2015) .................................................................... 48
Competitive Enter. Inst. v. Dep’t of Transportation,
863 F.3d 911 (D.C. Cir. 2017) .................................................................... 43
Corbett v. United States,
458 F. App’x 866 (11th Cir. 2012) ..................................................... 17, 18, 19
Cospito v. Heckler,
742 F.2d 72 (3d Cir. 1984) ......................................................................... 65
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Cramer v. Skinner,
931 F.2d 1020 (5th Cir. 1991) ..................................................................... 61
DHS v. Regents of the Univ. of Cal.,
140 S. Ct. 1891 (2020) ............................................................................... 44
Doe v. Moore,
410 F.3d 1337 (11th Cir. 2005) .............................................................. 59, 60
Durso v. Napolitano,
795 F. Supp. 2d 63 (D.D.C. 2011) ............................................................... 18
FCC v. Prometheus Radio Project,
141 S. Ct. 1150 (2021) ................................................................ 15, 41, 43, 56
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) .................................................................................. 32
Franklin v. Massachusetts,
505 U.S. 788 (1992) ............................................................................. 25, 26
Gill v. Whitford,
138 S. Ct. 1916 (2018) ............................................................................... 69
Gilmore v. Gonzales,
435 F.3d 1125 (9th Cir. 2006) ........................................................... 17, 19, 61
Green v. Brantley,
981 F.2d 514 (11th Cir. 1993) ................................................................ 17, 18
Gregory v. Ashcroft,
501 U.S. 452 (1991) .................................................................................. 68
Guance v. deVincentis,
708 F.2d 1290 (7th Cir. 1983) ..................................................................... 19
Gundy v. United States,
139 S. Ct. 2116 (2019), rehearing denied, 140 S. Ct. 579............................... 32, 62
Heckler v. Chaney,
470 U.S. 821 (1985) .................................................................................. 23
Heckler v. Ringer,
466 U.S. 602 (1984) .................................................................................. 21
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vi
In re Gateway Radiology Consultants, P.A.,
983 F.3d 1239 (11th Cir. 2020) ................................................................... 28
Indep. Turtle Farmers of La. v. United States,
703 F. Supp. 2d 604 (W.D. La. 2010) .......................................................... 29
J.W. Hampton, Jr., & Co. v. United States,
276 U.S. 394 (1928) .................................................................................. 62
Jackson v. Bank of Am., N.A.,
898 F.3d 1348 (11th Cir. 2018) ................................................................... 68
Kabeller, Inc. v. Busey,
999 F.2d 1417 (11th Cir. 1993) .............................................................. 20, 21
Klaassen v. Trs. of Ind. Univ.,
--- F. 4th ----, 2021 WL 3281209 (7th Cir. Aug. 2, 2021) ............................. 58, 64
Lifestar Ambulance Serv., Inc. v. United States,
365 F.3d 1293 (11th Cir. 2004) ................................................................... 21
Little Sisters of the Poor v. Pennsylvania,
140 S. Ct. 2367 (2020) ............................................................................... 47
Louisiana v. Mathews,
427 F. Supp. 174 (E.D. La. 1977)........................................................... 28, 29
Love v. Delta Air Lines,
310 F.3d 1347 (11th Cir. 2002) .............................................................. 20, 22
Lujan v. Defs. of Wildlife,
504 U.S. 555 (1992) ............................................................................. 27, 53
M.S. v. Brown,
902 F.3d 1076 (9th Cir. 2018) ..................................................................... 25
Madsen Women’s Health Ctr., Inc.,
512 U.S. 753 (1994) .................................................................................. 69
Mahon v. USDA,
485 F.3d 1247 (11th Cir. 2007) ................................................................... 27
Marshall v. United States,
414 U.S. 417 (1974) .................................................................................. 29
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vii
Merritt v. Shuttle, Inc.,
245 F.3d 182 (2d Cir. 2001) ....................................................................... 18
Miccosukee Tribe of Indians of Fla. v. United States,
566 F.3d 1257 (11th Cir. 2009) ................................................................... 41
Miller v. Reed,
176 F.3d 1202 (9th Cir. 1999) ..................................................................... 60
Mississippi v. Johnson,
71 U.S. 475 (1867).................................................................................... 25
Monsanto Co. v. Geertson Seed Farms,
561 U.S. 139 (2010) .................................................................................. 69
Murphy v. NCAA,
138 S. Ct. 1461 (2018) ............................................................................... 67
NationsBank of N.C., N.A. v. Variable Annuity Life Ins. Co.,
513 U.S. 251 (1995) .................................................................................. 34
Nat’l Advert. Co. v. City of Miami,
402 F.3d 1335 (11th Cir. 2005) ................................................................... 63
Nat’l Broad. Co. v. United States,
319 U.S. 190 (1943) .................................................................................. 62
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,
545 U.S. 967 (2005) ............................................................................. 33, 34
Nat’l Fed. of Indep. Bus. v. Sebelius,
567 U.S. 519 (2012) .................................................................................. 67
Nat’l Mining Ass’n v. Dep’t of Labor,
812 F.3d 843 (11th Cir. 2016) ..................................................................... 41
New York v. United States,
505 U.S. 144 (1992) .................................................................................. 65
Newdow v. Roberts,
603 F.3d 1002 (D.C. Cir. 2010) .................................................................. 26
NLRB v. Jones & Laughlin Steel Corp.,
301 U.S. 1 (1937) ..................................................................................... 67
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viii
Norton v. S. Utah Wilderness,
All., 542 U.S. 55 (2004) ............................................................................. 24
Norwegian Cruise Line Holdings, Ltd. v. Rivkees,
--- F. Supp. 3d ----, 2021 WL 3471585 (S.D. Fla. Aug. 8, 2021) ........................ 45
PDK Labs., Inc. v. DEA,
362 F.3d 786 (D.C. Cir. 2004) ............................................................... 47, 48
Printz v. United States,
521 U.S. 898 (1997) .................................................................................. 67
Saenz v. Roe,
526 U.S. 489 (1999) ............................................................................. 58, 59
Sebelius v. Auburn Reg’l Med. Ctr.,
568 U.S. 145 (2013) .................................................................................. 33
Sierra Club v. Van Antwerp,
526 F.3d 1353 (11th Cir. 2008) ................................................................... 41
Smith v. Turner,
48 U.S. 283 (1849)...................................................................................... 3
Swan v. Clinton,
100 F.3d 973 (D.C. Cir. 1996) ............................................................... 23, 26
Telecomms. Rsch. & Action Ctr. v. FCC,
750 F.2d 70 (D.C. Cir. 1984) ...................................................................... 20
Tiger Lily, LLC v. HUD,
--- F. 4th ----, 2021 WL 3121373 (6th Cir. July 23, 2021) ................................. 35
Touby v. United States,
500 U.S. 160 (1991) ............................................................................. 61, 62
Town of Southold v. Town of E. Hampton,
477 F.3d 38 (2d Cir. 2007) .................................................................... 59, 60
Trump v. Hawaii,
138 S. Ct. 2392 (2018) ............................................................................... 69
United States ex rel. McLenan v. Wilbur,
283 U.S. 414 (1931) .................................................................................. 23
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United States v. Curtiss-Wright Exp. Corp.,
299 U.S. 304 (1936) .................................................................................. 55
United States v. Darby,
312 U.S. 100 (1941) .................................................................................. 65
United States v. Dean,
604 F.3d 1275 (11th Cir. 2010) ................................................................... 47
United States v. Flores-Montano,
541 U.S. 149 (2004) .................................................................................. 55
United States v. Lopez,
514 U.S. 549 (1995) .................................................................................. 67
United States v. Mead Corp.,
533 U.S. 218 (2001) ............................................................................. 33, 34
Util. Air Regulatory Grp. v. EPA,
573 U.S. 302 (2014) .................................................................................. 32
Wall v. Babers,
82 A.3d 794 (D.C. 2014) ........................................................................... 61
Whitman v. Am. Trucking Ass’ns,
531 U.S. 457 (2001) .................................................................................. 62
Wickard v. Filburn,
317 U.S. 111 (1942) ............................................................................. 66, 67
STATUTES
5 U.S.C. § 551............................................................................................. 46
5 U.S.C. § 553.............................................................................. 46, 47, 57, 58
5 U.S.C. § 701............................................................................................. 24
5 U.S.C. § 706................................................................................... 24, 27, 47
28 U.S.C. § 1361 ......................................................................................... 21
42 U.S.C. §§ 264-272...................................................................................... 4
42 U.S.C. § 264 ...................................................................................... passim
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49 U.S.C. § 114 ...................................................................................... passim
49 U.S.C. § 115 ........................................................................................... 53
49 U.S.C. § 1486 ......................................................................................... 17
49 U.S.C. § 41705......................................................................... 19, 22, 24, 37
49 U.S.C. § 44901........................................................................................ 50
49 U.S.C. § 44902........................................................................................ 50
49 U.S.C. § 44903................................................................................... 49, 50
49 U.S.C. § 44905........................................................................................ 50
49 U.S.C. § 46101.............................................................................. 22, 24, 40
49 U.S.C. § 46106........................................................................................ 24
49 U.S.C. § 46107........................................................................................ 24
49 U.S.C. § 46110.............................................................................. 17, 21, 23
49 U.S.C. § 49101........................................................................................ 24
58 Stat. 703 (1944) ......................................................................................... 1
Act of May 27, 1796,
1 Stat. 474 (1796), repealed 1799 .................................................................... 3
Act of Feb. 25, 1799,
1 Stat. 619 (1799) ....................................................................................... 3
Act of Feb. 15, 1893,
27 Stat. 449 (1893)...................................................................................... 3
Pub. L. No. 96-88,
93 Stat. 668 (1979), codified at 20 U.S.C. § 3508 ............................................... 4
RULES
Fed. R. Civ. P. 8 ......................................................................................... 68
Fed. R. Civ. P. 10 ........................................................................................ 68
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Fed. R. Civ. P. 12 ........................................................................................ 26
REGULATIONS
14 C.F.R. Part 382....................................................................................... 37
14 C.F.R. § 382.19 ............................................................................. 37, 38, 39
14 C.F.R. § 382.21 .................................................................................. 37, 38
14 C.F.R. § 382.23 ....................................................................................... 40
14 C.F.R. § 382.155 ..................................................................................... 22
14 C.F.R. § 382.159 ................................................................................ 22, 40
42 C.F.R. pt. 70 ............................................................................................ 5
42 C.F.R. § 70.2 ..................................................................................... passim
42 C.F.R. § 70.3 ............................................................................................ 7
42 C.F.R. § 70.6 ............................................................................................ 7
42 C.F.R. § 70.12 .......................................................................................... 7
42 C.F.R. § 71.31 ................................................................................ 6, 55, 57
42 C.F.R. § 71.32 ................................................................................ 6, 54, 57
Interstate Quarantine Regulations,
11 Fed. Reg. 9389 (Aug. 27, 1946) ................................................................ 5
Interstate Quarantine,
12 Fed. Reg. 3189 (May 16, 1947), codified at 42 C.F.R. § 12.3 (1947) ................. 5
Interstate Quarantine,
12 Fed. Reg. 6210 (Sept. 16, 1947), recodifying provision at 42 C.F.R. § 73.2 .......... 5
31 Fed. Reg. 8855 (June 25, 1966) .................................................................... 4
Proposed Data Collections Submitted for Public Comment and Recommendations,
65 Fed. Reg. 19772 (Apr. 12, 2000) ........................................................... 5, 6
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Final Rule, Control of Communicable Diseases; Apprehension and Detention of Persons
With Specific Diseases; Transfer of Regulations,
65 Fed. Reg. 49906 (Aug. 16, 2000) .............................................................. 5
Declaring a Nat’l Emergency Concerning the Novel Coronavirus Disease (COVID-19)
Outbreak,
85 Fed. Reg. 15337 (Mar. 13, 2020)........................................................... 7, 8
Temporary Halt in Residential Evictions To Prevent the Further Spread of
COVID-19,
85 Fed. Reg. 55292 (Sept. 4, 2020) ............................................................ 7, 8
Requirement for Negative Pre-Departure COVID-19 Test Result or Documentation of
Recovery From COVID-19 for All Airline or Other Aircraft Passengers Arriving Into
the United States From Any Foreign Country,
86 Fed. Reg. 6331 (Jan. 21, 2021) .......................................................... 12, 13
Promoting COVID-19 Safety in Domestic and International Travel,
86 Fed. Reg. 7205 (Jan. 21, 2021) ................................................................. 9
Requirement for Negative Pre-Departure COVID-19 Test Result or Documentation of
Recovery From COVID-19 for all Airline or Other Aircraft Passengers Arriving Into
the United States From Any Foreign Country,
86 Fed. Reg. 7387 (Jan. 26, 2021) ..................................................... 13, 56, 57
Order Under Section 361 of the Public Health Service Act, Requirement for Persons to
Wear Masks While on Conveyances and at Transportation Hubs,
86 Fed. Reg. 8025 (Feb. 3, 2021)............................................................ passim
Ratification of Security Directive,
86 Fed. Reg. 13971 (Mar. 12, 2021)............................................................. 12
Ratification of Security Directives and Emergency Amendment,
86 Fed. Reg. 26825 (May 18, 2021) ............................................................. 12
U.S. CONSTITUTION
U.S. Const., art. I, s.8.............................................................................. 65, 66
U.S. Const. art. VI ....................................................................................... 67
U.S. Const., amend. X ................................................................................. 65
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OTHER AUTHORITIES
CDC, When You’ve Been Fully Vaccinated (updated July 27, 2021),
https://perma.cc/C3LC-HMLF .............................................................. 8, 45
CDC COVID Data Tracker,
https://covid.cdc.gov/covid-data-tracker .................................................. 8, 45
CODE WIND TALK, Triplevibes Radio (Jul. 21, 2021),
https://www.youtube.com/watch?v=AWzx-VryzdA. ................................... 61
Consolidation & Revision of Laws Relating to the Public Health Service,
H.R. Rep. No. 78-1364 (1944) ...................................................................... 3
COVID-19 testing at the airport (Rapid Test),
https://perma.cc/WWM8-EWE9 .............................................................. 57
HHS, Determination that a Public Health Emergency Exists (Jan. 31, 2020),
https://perma.cc/VZ5X-CT5R .................................................................... 7
https://covid.cdc.gov/covid-data-tracker/#vaccinations ................................ 8, 45
Local Rule 3.01(g) ....................................................................................... 15
Mid-Morning Coffee Break with Adam (July 26, 2021),
http://radioshows.net/WWGH/ATCG-Lucas-Wall-072621.mp3 ................... 61
Nicole Acevedo, NBC NEWS, Florida breaks record for new daily Covid cases for
third time this week (Aug. 7, 2021),
https://perma.cc/F43W-9D8X. ................................................................... 2
Paul French, In the 1918 flu pandemic, not wearing a mask was illegal in some parts of
America. What changed? (April 4, 2020), CNN.com,
https://perma.cc/JCJ6-F2ZU .................................................................... 36
Riemersman & Grogan et al., Vaccinated and unvaccinated individuals have similar
viral loads in communities with a high prevalence of the SARS-CoV-2 delta variant
(July 31, 2021) ......................................................................................... 45
Sanitation, Merriam-Webster.com Dictionary,
https://perma.cc/9ARR-YKYH ................................................................ 31
Statement from CDC Director Rochelle P. Walensky (July 30, 2021),
https://perma.cc/X5MM-EV4G ............................................................. 9, 45
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TSA, Coronavirus (COVID-19) Information,
https://www.tsa.gov/coronavirus .............................................................. 51
YouTube, TSA Denies Me Entry to Security Checkpoint at Orlando (MCO) for
Refusing to Wear a Mask (June 2, 2021),
https://www.youtube.com/watch?v=XGxxF71KWCc ............................ 13, 14
What is Gateway Pundit, the conspiracy-hawking site at the center of the bogus Florida
‘crisis actors’ hype?, THE WASHINGTON POST (Feb. 23, 2018),
https://perma.cc/4LT2-CKXN.................................................................. 43
Why Doctors Wear Masks (Sept. 1, 2020), YALEMEDICINE.ORG,
https://perma.cc/TE77-8PBH .............................................................. 31, 36
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1
INTRODUCTION
Congress has authorized the Secretary of Health and Human Services (HHS),
through the Centers for Disease Control and Prevention (CDC), to adopt “such
regulations as in [the agency’s] judgment are necessary to prevent the introduction,
transmission, or spread of communicable diseases from foreign countries into the
States or possessions [of the United States], or from one State or possession into any
other State or possession.” Public Health Service Act (“PHSA”), ch. 373, § 361(a), 58
Stat. 703 (1944) (codified at 42 U.S.C. § 264(a)). Invoking that authority, the CDC has
issued temporary orders that (with some exceptions) generally require (1) individuals
to wear masks when traveling on public transportation conveyances like airplanes,
trains, and buses; and (2) international air travelers to provide proof of a negative
COVID-19 test (or recovery from COVID-19) before departure to the United States.
Both orders were issued to prevent the spread of COVID-19.
Plaintiff Lucas Wall, pro se, now claims that those orders exceed the CDC’s
statutory authority, are arbitrary and capricious or procedurally infirm under the
Administrative Procedure Act (APA), and violate the U.S. Constitution. He also
challenges a variety of other actions and inactions, including the Transportation
Security Administration (TSA) security directives that implement the CDC’s orders.
On Mr. Wall’s view of the science, “masks do nothing to reduce coronavirus spread
and are actually harmful to humans.” Pl.’s Emergency Mot. for TRO, (“Pl.’s TRO
Mot.”), ECF No. 8, at 20. He also alleges that he “can’t wear a mask because of [his]
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2
anxiety,” Compl. ¶ 42, ECF No. 1, such that requiring him to do so (or obtain a
medical exemption) as a condition of commercial air travel is unlawful. Mr. Wall
seeks broad relief that would bar enforcement of these orders worldwide—as applied
to him, or to anyone. And he does so as cases caused by the Delta variant of
COVID-19 are surging, including “breakthrough infections” among the fully
vaccinated. See, e.g., Nicole Acevedo, NBC NEWS, Florida breaks record for new daily
Covid cases for third time this week (Aug. 7, 2021), https://perma.cc/F43W-9D8X.
At the outset, the Court lacks subject-matter jurisdiction over many of Mr.
Wall’s claims, as clear statutory provisions channel jurisdiction exclusively to the
courts of appeals for (as one example) challenges to TSA orders. Regardless, all of
these claims are meritless. Congress prudently delegated broad authority to the CDC
to take reasonable public-health measures to prevent the spread of communicable
disease. That authority has never been more important than during this pandemic,
and the measures at issue here—masking
and testing—are conventional
disease-prevention steps. Nor is there anything in the APA or the Constitution that
prohibits these temporary, reasonable, and science-based public-health measures.
While Plaintiff may “strongly oppose any mask mandate,” Compl. ¶ 21, his
general opposition provides no basis to overturn the CDC’s considered scientific
judgments. For those who seek to use our nation’s public-transportation systems
during a global pandemic, Congress has entrusted those judgments to the medical
experts at the CDC—not to Mr. Wall, and, respectfully, not to the courts.
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BACKGROUND
I.
Statutory and Regulatory Background
The federal government has a long history of acting to combat the spread of
communicable disease. Congress enacted the first federal quarantine law in 1796 in
response to a yellow fever outbreak, authorizing President Washington to direct
federal officials to help states enforce quarantine laws. Act of May 27, 1796, ch. 31, 1
Stat. 474 (1796) (repealed 1799); see Smith v. Turner, 48 U.S. 283, 300 (1849).
Following a yellow fever outbreak, Congress replaced the 1796 Act with a federal
inspection system for maritime quarantines. Act of Feb. 25, 1799, ch. 12, 1 Stat. 619
(1799). And in 1893, Congress authorized the Secretary of the Treasury to adopt
additional regulations to prevent the introduction of communicable disease into the
United States or across state lines where the Secretary considered state or local
regulation inadequate. Act of Feb. 15, 1893, ch. 114, 27 Stat. 449 (1893).
Congress enacted the Public Health Service Act in 1944. Consolidation
& Revision of Laws Relating to the Public Health Service, H.R. Rep. No. 78-1364, at 1
(1944). In section 361(a), Congress broadened the federal government’s “basic
authority to make regulations to prevent the spread of disease into this country or
between the States.” Id. at 24. For example, Congress removed references to specific
diseases to provide federal health authorities flexibility to respond to new types of
contagion and “expressly sanction[ed] the use of conventional public-health
enforcement methods” by the government in disease-control efforts. Id. at 24-25.
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The resulting statute, 42 U.S.C. § 264—part of a broader statutory scheme
authorizing HHS to take wide-ranging public health actions, see id. §§ 264-272—
authorizes the Secretary of HHS1 “to make and enforce such regulations as in his
judgment are necessary to prevent the introduction, transmission, or spread of
communicable diseases from foreign countries into the States or possessions, or from
one State or possession into any other State or possession.” Id. § 264(a). The second
sentence of subsection (a) further clarifies that “[f]or purposes of carrying out and
enforcing such regulations,” the Secretary “may provide for such inspection,
fumigation, disinfection, sanitation, pest extermination, destruction of animals or
articles found to be so infected or contaminated as to be sources of dangerous infection
to human beings, and other measures, as in his judgment may be necessary.” Id.
Subsection (b) imposes specific limits on the Secretary’s ability to “provide for
the apprehension, detention, or conditional release of individuals”—a power not
referenced in subsection (a)—permitting such impositions on a person’s physical
movement only for diseases specified by Executive Order. Id. § 264(b). Subsections
(c) and (d) set further limits on the detention of individuals. See id. § 264(c)-(d). The
final subsection provides that the statute and any regulation adopted thereunder
1 Although the statute assigns authority to the Surgeon General, all statutory powers and
functions of the Surgeon General were transferred to the Secretary of HHS in 1966, 31 Fed. Reg. 8855
(June 25, 1966), 80 Stat. 1610 (1966), see also Pub. L. No. 96-88, § 509(b), 93 Stat. 668, 695 (1979)
(codified at 20 U.S.C. § 3508(b)). The Secretary has retained these authorities despite the
reestablishment of the Office of the Surgeon General in 1987.
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supersede state law “to the extent that such a provision conflicts with an exercise of
Federal authority.” Id. § 264(e).
The Secretary of HHS has promulgated regulations implementing these
provisions and delegating their enforcement to CDC. See 42 C.F.R. pt. 70; Control of
Communicable Diseases, Apprehension and Detention of Persons With Specific Diseases,
Transfer of Regulations, 65 Fed. Reg. 49,906, 49,907 (Aug. 16, 2000). The Secretary
appears to have first promulgated the regulation titled “measures in the event of
inadequate local control” in 1947, see Interstate Quarantine, 12 Fed. Reg. 3189 (May 16,
1947) (codified at 42 C.F.R. § 12.3 (1947)), following publication of a “general notice
of proposed rule making” in the Federal Register, see Interstate Quarantine Regulations,
11 Fed. Reg. 9389 (Aug. 27, 1946). 2 The regulation has been relocated several times
without substantive change. See, e.g., Interstate Quarantine, 12 Fed. Reg. 6210 (Sept.
16, 1947) (recodifying provision at 42 C.F.R. § 73.2). In 2000, again without any
alteration to its substance, the regulation was repromulgated to transfer, in part,
authority from the Food & Drug Administration to CDC, see Final Rule, Control of
Communicable Diseases; Apprehension and Detention of Persons With Specific Diseases;
Transfer of Regulations, 65 Fed. Reg. 49906 (Aug. 16, 2000), and the agency provided a
notice-and-comment period, see Proposed Data Collections Submitted for Public Comment
2 This “general notice of proposed rulemaking” does not specifically seek comments on the
“measures in the event of inadequate local control” provision, see 11 Fed. Reg. at 9389, but is
referenced as the relevant notice for that regulation in subsequent Federal Register publications, see 12
Fed. Reg. at 3189.
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and Recommendations, 65 Fed. Reg. 19772 (Apr. 12, 2000). Although the notice
specifically requested comments regarding proposed data collection projects, see id. at
19,772, it referenced the provision at issue here, stating that “[t]he regulations . . . being
assumed by CDC were developed to facilitate Federal action in the event of large
outbreaks of disease requiring a coordinated effort involving several States, or in the
event of inadequate local control,” id.
That regulation, now codified at 42 C.F.R. § 70.2, provides the CDC with
discretion to address the uncontrolled spread of communicable disease. Specifically,
if the CDC Director “determines that the measures taken by health authorities of any
State or possession (including political subdivisions thereof) are insufficient to prevent
the spread of any of the communicable diseases” between or among states, he is
empowered to “take such measures to prevent such spread of the diseases as he/she
deems reasonably necessary.” 42 C.F.R. § 70.2. These measures include, but are not
limited to, “inspection, fumigation, disinfection, sanitation, pest extermination, and
destruction of animals or articles believed to be sources of infection.” Id.
In addition, separate longstanding regulations, unchallenged here, provide that
“[w]henever the Director has reason to believe that any arriving carrier . . . is or may
be infected . . . with a communicable disease, he/she may require detention,
disinfection, . . . or other related measures respecting the carrier or article or thing as
he/she considers necessary to prevent the introduction, transmission, or spread of
communicable diseases.” 42 C.F.R. § 71.32(b); see also id. § 71.31(b) (allowing
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“detention of a carrier until the completion of the measures outlined in this part that
are necessary to prevent the introduction or spread of a communicable disease”). And
other regulations (generally not at issue here) authorize CDC to limit interstate travel
of infected persons, see id. § 70.3, to apprehend and detain persons, id. § 70.6, and to
conduct medical examinations, id. § 70.12, to control the spread of disease.
II.
The COVID-19 Pandemic
In December 2019, the novel coronavirus later named SARS-CoV-2 was first
detected in Wuhan, Hubei Province, in the People’s Republic of China. See Declaring
a Nat’l Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, 85 Fed.
Reg. 15337 (Mar. 13, 2020). The virus causes a respiratory disease known as
COVID-19. Id. COVID-19 is a serious illness that spreads easily. COVID-19 poses
a risk of “severe” respiratory illness, meaning that persons who have the disease may
require hospitalization, intensive care, or the use of a ventilator. 85 Fed. Reg. at
55,292. Severe cases may be fatal. Id. CDC has cautioned that the virus that causes
COVID-19 transmits “very easily and sustainably” between people within “close
contact”—approximately six feet—of one another. Id. at 55,293. Persons not
displaying symptoms are capable of transmitting the virus. Id. at 55,292.
On January 31, 2020, the Secretary of HHS declared a public health emergency.
HHS, Determination that a Public Health Emergency Exists (Jan. 31, 2020),
https://perma.cc/VZ5X-CT5R. On March 11, 2020, the World Health Organization
(WHO) classified COVID-19 as a pandemic. 85 Fed. Reg. at 15337. And on March
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8
13, 2020, then-President Trump declared the outbreak a national emergency. Id. By
late August 2020, the virus had spread to all 50 states. Id. at 55292. As of the date of
this filing, it has infected more than 35 million and killed more than 614,000 people in
the United States alone, and many more around the world. See CDC COVID Data
Tracker, https://covid.cdc.gov/covid-data-tracker (last visited August 9, 2021).
To combat the spread of this highly contagious, deadly virus, governments at
all levels have taken “unprecedented or exceedingly rare actions” to protect the public.
85 Fed. Reg. at 55,292. These include border closures, travel restrictions, stay-at-home
orders, eviction moratoria, and mask requirements. Id. “[M]ask wearing” in
particular “is one of the most effective strategies available for reducing COVID-19
transmission.” 86 Fed. Reg. at 8025.
By this spring, significant progress had been made with vaccinations and falling
case counts in the United States, which led the CDC to relax its mask-wearing
guidance for fully vaccinated individuals. See Compl. ¶ 136. Nevertheless, as of this
filing,
only
about
half
the
country
is
fully
vaccinated.
See
https://covid.cdc.gov/covid-data-tracker/#vaccinations (last visited August 9, 2021).
And new, highly transmissible variants are circulating, leading the CDC just a few
weeks ago to recommend that, “[t]o maximize protection from the Delta variant and
prevent possibly spreading it to others,” even fully vaccinated individuals should
“wear a mask indoors in public if you are in an area of substantial or high
transmission.” CDC, When You’ve Been Fully Vaccinated (updated July 27, 2021),
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https://perma.cc/C3LC-HMLF; see Statement from CDC Director Rochelle P. Walensky
(July 30, 2021), https://perma.cc/X5MM-EV4G (“Delta infection resulted in
similarly high SARS-CoV-2 viral loads in vaccinated and unvaccinated people. High
viral loads suggest an increased risk of transmission and raised concern that, unlike
with other variants, vaccinated people infected with Delta can transmit the virus.”).
III.
The Challenged Orders
a. The CDC’s Transportation Mask Order. On January 21, 2021, President
Biden issued an Executive Order explaining that public-health experts “have
concluded that mask-wearing, physical distancing, appropriate ventilation, and timely
testing can mitigate the risk of travelers spreading COVID-19.” Exec. Order 13998,
Promoting COVID-19 Safety in Domestic and Int’l Travel, 86 Fed. Reg. 7205 (Jan. 21,
2021). “Accordingly, to save lives and allow all Americans, including the millions of
people employed in the transportation industry, to travel and work safely,” the
President called on all relevant government agencies to “immediately take action, to
the extent appropriate and consistent with applicable law, to require masks to be worn
in compliance with CDC guidelines” on public-transportation systems. Id.
A few weeks later, the CDC issued the transportation mask order. See Ex. 1,
CDC, Order Under Section 361 of the Public Health Service Act, Requirement for Persons to
Wear Masks While on Conveyances and at Transportation Hubs, 86 Fed. Reg. 8025 (Feb. 3,
2021). Generally, the transportation mask order requires persons to “wear masks over
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the mouth and nose when traveling on conveyances into and within the United States”
and “at transportation hubs.” Id. at 8026. The order’s objectives are
• Preservation of human life;
• Maintaining a safe and secure operating transportation system;
• Mitigating the further introduction, transmission, and spread of COVID-19 into the
United States and from one state or territory into any other state or territory; and
• Supporting response efforts to COVID-19 at the Federal, state, local, territorial, and
tribal levels.
Id. at 8027. In addition, the order notes that “[r]equiring masks will help us control
this pandemic and aid in re-opening America’s economy.” Id. at 8029.
The scientific justifications for the mask order are straightforward: “Masks help
prevent people who have COVID-19, including those who are pre-symptomatic or
asymptomatic, from spreading the virus to others.” Id. at 8028. They “also provide
personal protection to the wearer by reducing inhalation of” “virus-laden droplets.”
Id. “The community benefit of wearing masks . . . is due to the combination of these
effects; individual prevention benefit increases with increasing numbers of people
using masks consistently and correctly.” Id.
The order also explains why mask-wearing is especially important on public
transportation and in commercial air travel: “[t]raveling on multi-person conveyances
increases a person’s risk of getting and spreading COVID-19 by bringing persons in
close contact with others, often for prolonged periods[.]” Id. “Furthermore, given
how interconnected most transportation systems are across the nation and the world,
local transmission can grow even more quickly into interstate and international
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transmission when infected persons travel on non-personal conveyances without
wearing a mask and with others who are not wearing masks.” Id.
The order exempts “child[ren] under the age of 2,” and anyone “with a
disability who cannot wear a mask, or cannot safely wear a mask,” among others. Id.
at 8027. It also exempts (among other things) “[p]rivate conveyances operated solely
for personal, non-commercial use.” Id. at 8028. And it does not apply “[w]hile eating,
drinking, or taking medication, for brief periods.” Id. Although the order could
theoretically be enforced through criminal penalties, “CDC does not intend to rely
primarily on . . . criminal penalties but instead strongly encourages and anticipates
widespread voluntary compliance[.]” Id. at 8030 n.33.
b. The TSA’s Security Directives. On January 27, 2021, the Acting Secretary
of Homeland Security issued a Determination of a National Emergency that invoked
his emergency powers and directed the TSA to support “the CDC in the enforcement
of any orders or other requirements necessary to . . . mitigate the spread of COVID-19
through the transportation system.” Ex. 2, DHS Decl. of Nat’l Emergency (Jan. 27,
2021). The TSA then issued a series of directives to implement and support the
enforcement of the CDC’s mask order: Security Directive (SD) 1542-21-01 (Ex. 3)
applies the CDC’s mask requirements to airport operators; SD 1544-21-02 (Ex. 4) to
domestic aircraft operators; and SD 1582-21-01 (Ex. 5) to surface-transportation
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systems. Emergency Amendment 1546-21-01 later imposed those requirements on
foreign air carriers landing in or taking off from the United States. Ex. 6. 3
c. The CDC’s International Traveler Testing Order. On December 25, 2020,
the CDC issued an order generally requiring air travelers seeking to depart the United
Kingdom with a final destination in the United States to provide documentation of a
negative COVID-19 test result to the airline before departure. See Ex. 7, Requirement
for Negative Pre-Departure COVID-19 Test Result for All Airline Passengers Arriving Into the
United States from the United Kingdom (UK) (Dec. 25, 2020). The order noted that a
COVID-19 variant that was then spreading through England “may be more
transmissible than previously circulating variants,” and that although testing “does not
eliminate all risk,” it can “make travel safer by reducing spread on conveyances and
in transportation hubs” “where social distancing may be challenging.” Id. at 3-4.
A few weeks later, the UK variant had been identified in North America, along
with another highly transmissible variant from South Africa. Ex. 8, Requirement for
Negative Pre-Departure COVID-19 Test Result or Documentation of Recovery From COVID-19
for All Airline or Other Aircraft Passengers Arriving Into the United States From Any Foreign
Country, 86 Fed. Reg. 6331, 6333-34 (Jan. 21, 2021). On January 13, 2021, “[b]ased
on increased transmissibility and spread of these new variants of SARS-CoV-2, and to
reduce introduction and spread of these and future SARS-CoV-2 variants into the
3 Each of these security directives has since been ratified by the Transportation Security
Oversight Board. See Ratification of Security Directive, 86 Fed. Reg. 13,971 (Mar. 12, 2021); Ratification
of Security Directives and Emergency Amendment, 86 Fed. Reg. 26,825 (May 18, 2021).
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United States,” the CDC determined that “expanding current UK pre-departure
testing requirements to all foreign countries and U.S.-bound passengers is warranted.”
Id. at 6334.
On January 26, 2021, the CDC reissued the testing order with minor
modifications, superseding the January 13 version. See Ex. 9, Requirement for Negative
Pre-Departure COVID-19 Test Result or Documentation of Recovery From COVID-19 for all
Airline or Other Aircraft Passengers Arriving Into the United States From Any Foreign Country,
86 Fed. Reg. 7387 (Jan. 26, 2021). Overall, the justification for these testing
requirements is simple: “Individuals who travel may be at risk for exposure to
SARS-CoV-2 before, during, and after travel,” which “could result in U.S.-bound
travelers further spreading the virus to others during travel, upon arrival in the United
States, and at their destinations.” Id. at 7389.
IV.
Litigation Background
According to Plaintiff’s complaint (and videos he posted on YouTube4), on
June 2, 2021, without wearing a mask, Mr. Wall approached a TSA checkpoint at
Orlando International Airport, attempting to board a flight to Fort Lauderdale. See
Compl. ¶¶ 38-40. A uniformed TSA officer told him: “I need you to put your mask
on, OK?” See YouTube, TSA Denies Me Entry to Security Checkpoint at Orlando (MCO)
for
Refusing
to
Wear
a
Mask
(June
2,
2021),
https://www.youtube.com/watch?v=XGxxF71KWCc. The officer then reached to
4 The videos are linked in the complaint, and at https://www.youtube.com/user/lewnwdc.
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hand Mr. Wall a mask. See id. Mr. Wall refused: “No I won’t wear a mask,” to which
the officer responded: “To get in you need a mask.” Id. Mr. Wall continued: “No,
that’s in violation of Florida law, I’m traveling to Fort Lauderdale.” Id. The officer
then put away the box of masks, and asked Mr. Wall to “wait on the side for me.” Id.
Over the next hour, just outside the security checkpoint, Mr. Wall spoke with
various employees of both TSA and Southwest Airlines. Mr. Wall eventually claimed
that he “can’t wear a mask because of [his] anxiety.” Compl. ¶ 42. In response, a TSA
supervisor asked: “Do you have medical documentation concerning your anxiety issue
that’s preventing you from wearing a mask?” Id. Mr. Wall responded: “I don’t have
it with me, no.” Id. Mr. Wall ultimately explained that he submitted Southwest’s
medical exemption form two days prior (when he booked his ticket), which is less than
the seven days’ advance notice required by the airline. See id. ¶¶ 47, 57, 68; see also
ECF No. 1-13, Pl.’s Ex. 204 (Southwest Airlines form).
A Southwest employee told Mr. Wall that “[w]e’re trying to get it expedited . . .
but it has to go through an approval process. It’s not something we can just come out
and say ‘he’s approved.’” Compl. ¶ 69. Ultimately, the efforts of airline staff to process
Mr. Wall’s medical exemption request on an expedited basis were apparently
unsuccessful: “Unfortunately I tried to see if I could push this through, because you
didn’t meet the requirements, and unfortunately our company is saying now you have
to wear a mask if you go through” the TSA checkpoint. Id. ¶ 71.
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Mr. Wall left the airport, and on June 7, 2021, filed this lawsuit. On June 15,
the Court denied his TRO motion. Order, ECF No. 28 (“TRO Opinion”). After a
plethora of filings on a variety of issues (including before the Eleventh Circuit and the
Supreme Court), Mr. Wall moved for summary judgment. Pl.’s Mot. for Summ. J. at
10, ECF No. 83 (“Pl.’s MSJ”). On August 4, 2021, all parties agreed that Counts 2,
10, 13, 16, and 20 should be dismissed. See infra, Local Rule 3.01(g) Certification.
Federal Defendants now move to dismiss, cross-move for summary judgment, and
oppose Plaintiff’s motion for summary judgment.
ARGUMENT
Mr. Wall believes that “face masks are totally ineffective in reducing
coronavirus spread (and are actually harmful in many circumstances).” Compl. at 3.
But the science says otherwise, which is why the CDC issued an order in January
that—temporarily, and with various exceptions, including for those who cannot safely
wear a mask for legitimate medical reasons—generally requires masks for those
traveling in our nation’s public transportation systems. CDC was doing exactly what
Congress authorized it to do: to take actions that “in [its] judgment are necessary to
prevent the introduction, transmission, or spread of communicable diseases” in the
United States. 42 U.S.C. § 264(a). And because CDC “reasonably considered the
relevant issues and reasonably explained the decision,” FCC v. Prometheus Radio Project,
141 S. Ct. 1150, 1158 (2021), the Court should not accept Mr. Wall’s invitation to
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substitute its (or his) judgment for that of the expert agency. The same is true with
respect to the international traveler testing order.
Mr. Wall asks a lot of this Court: no less than a “worldwide” injunction, Pl.’s
Certificate of Interested Persons, ECF No. 77 at 3, which would prevent enforcement
of any of the challenged orders, in any context, against anyone. But there is no legal
basis for that result, or even relief for Mr. Wall alone. Several of his claims fail
straightforwardly for lack of subject-matter jurisdiction, because he filed in the wrong
court (e.g., with respect to all claims against DHS, TSA, and DOT). In any event, all
of his claims (even those over which the Court does have jurisdiction) are meritless.
The precise reasons why vary widely, but the overarching problem with all of them is
that Mr. Wall seems to think it is up to him (or the federal courts) to make complex
decisions of scientific and public-health policy during a global pandemic. In fact,
Congress has entrusted that power to the CDC. See 42 U.S.C. § 264(a).
I.
The Court lacks subject-matter jurisdiction over all of Plaintiff’s claims
against DHS, TSA, DOT, and the President of the United States.
The Court lacks jurisdiction over several of Plaintiff’s claims, including: (1) all
claims against the Department of Homeland Security (DHS), TSA, the Department of
Transportation (DOT), and the President; (2) all claims challenging the international
traveler testing order; and (3) all of Mr. Wall’s mandamus claims. Those claims should
all be dismissed without any consideration of the merits.
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a. The Court of Appeals has exclusive jurisdiction over claims relating to
the challenged TSA Security Directives (Counts 9-12).
All of Plaintiff’s claims challenging TSA Security Directives should be
dismissed, because 49 U.S.C. § 46110 vests exclusive jurisdiction over such claims in
the courts of appeals:
a person disclosing a substantial interest in an order issued by the Secretary of
Transportation
(or
Administrator
of
the
Transportation
Security
Administration with respect to security duties and powers designated to be
carried out by the Administrator of the Transportation Security Administration
. . . ) in whole or in part under [part A], part B, or subsection (l) or [(s)] of
section 114 may apply for review of the order by filing a petition for review in
the United States Court of Appeals for the District of Columbia Circuit or the
court of appeals of the United States for the circuit in which the person resides
. . . .
49 U.S.C. § 46110(a). The courts of appeals have “exclusive jurisdiction to affirm,
amend, modify or set aside any part of [such an] order.” Id. § 46110(c).
Thus, pursuant to section 46110, only courts of appeals may consider challenges
to orders issued by the TSA or the Secretary of Transportation. See Green v. Brantley,
981 F.2d 514, 519 (11th Cir. 1993) (district court lacked jurisdiction to review
challenge to FAA order). 5 If such a claim is filed in district court, it should be
dismissed. Id. at 521; accord Corbett v. United States, 458 F. App’x 866, 870 (11th Cir.
2012) (district court lacked jurisdiction to review TSA security screening procedure);
Gilmore v. Gonzales, 435 F.3d 1125, 1133 (9th Cir. 2006) (district court lacked
jurisdiction to review TSA Security Directive requiring passengers to present
5 When Green was decided, the judicial review provisions at issue were codified at 49 U.S.C.
§ 1486 rather than 49 U.S.C. § 46110, but “[t]he statutes do not materially differ.” Ass’n of Citizens to
Protect & Pres. the Env’t v. FAA, 287 F. App’x 764, 766 n. 3 (11th Cir. 2008).
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identification); Merritt v. Shuttle, Inc., 245 F.3d 182, 187 (2d Cir. 2001) (“Section
46110(c) precludes federal district courts from affirming, amending, modifying, or
setting aside any part of such an order.”); Green, 981 F.2d at 516 (district court lacked
subject matter jurisdiction over claim challenging FAA order); Amerijet Int’l v. DHS, 43
F. Supp. 3d 4, 13-14 (D.D.C. 2014) (TSA Security Directive is an “order” within the
meaning of section 46110); Durso v. Napolitano, 795 F. Supp. 2d 63, 69 (D.D.C. 2011)
(district court lacks jurisdiction over claim challenging TSA screening order).
The TSA Security Directives (and Emergency Amendment) challenged here are
all orders that fall within section 46110’s exclusive jurisdictional channel to the courts
of appeals. Each order was issued pursuant to TSA’s authority under Part A (“Air
Commerce and Safety”) of Title 49 and/or Section 114(l). 6
Plaintiff cannot “escape the jurisdictional limitations of § 46110 by claiming that
he asserts” constitutional challenges to the orders. Corbett, 458 F. App’x at 871. When
an individual challenges an action that falls within the scope of Section 46110, the
courts of appeals have exclusive jurisdiction over the claim and any other claims that
are “inescapably intertwined.” Green, 981 F.2d at 521. A claim is intertwined “if it
alleges that the plaintiff was injured by such an order and that the court of appeals has
authority to hear the claim on direct review of the agency order.” Merritt, 245 F.3d at
6 SD 1542-21-01A (applicable to airport operators and airlines that have exclusive area
agreements) was issued pursuant to 49 U.S.C. §§ 114 and 44903; SD 1544-21-02A (applicable to
aircraft operators) was issued pursuant to 49 U.S.C. §§ 114, 44902, and 44903; SD 1582/84-21-01A
(applicable to surface transportation) was issued pursuant to 49 U.S.C. § 114; and EA 1546-21-01A
(applicable to foreign air carriers) was issued pursuant to 49 U.S.C. § 114, 44902 and 44903.
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187. This includes constitutional claims that “squarely attack[]” particular agency
orders. Gilmore, 435 F.3d at 1130 (Fourth Amendment and right-to-travel claims);
accord Corbett, 458 F. App’x at 871 (explaining that “§ 46110 does not deny . . . judicial
review” of Fourth Amendment claims, but channels review to the courts of appeals);
Guance v. deVincentis, 708 F.2d 1290, 1293 (7th Cir. 1983) (due process).
Accordingly, the Court should dismiss all of Plaintiff’s claims against TSA
(Counts 9-12) for lack of subject-matter jurisdiction.
b. The Court lacks jurisdiction over Plaintiff’s claims that DOT has failed
to enforce the Air Carrier Access Act (Count 15)
Plaintiff does not challenge any final, reviewable order or action by DOT.
Instead, in Count 15, Plaintiff asserts that DOT has failed to enforce the Air Carrier
Access Act (“ACAA”), 49 U.S.C. § 41705, and seeks a writ of mandamus compelling
DOT to enforce the ACAA as he interprets it. See Compl. ¶¶ 1042-1045, Prayer for
Relief, ¶ J. As explained below, Mr. Wall’s interpretation of the ACAA is misguided,
and DOT has issued an enforcement policy precisely to ensure protection under the
ACAA for those who cannot wear a mask for legitimate medical reasons. See Pl.’s Ex.
208, ECF No. 1-13. But in all events, this Court lacks jurisdiction to consider this
claim for at least two reasons: (1) the courts of appeals have exclusive jurisdiction to
consider any claim regarding DOT’s actions under the ACAA, and (2) Plaintiff cannot
satisfy the stringent requirements for mandamus jurisdiction.
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1. The Court of Appeals has exclusive jurisdiction to review DOT’s
actions under the ACAA.
Count 15 suffers from the same jurisdictional defect as the claims against TSA.
Because the ACAA falls within Part A (“Air Commerce and Safety”) of Title 49, the
courts of appeals have “exclusive jurisdiction to affirm, amend, modify or set aside
any part” of any enforcement order issued under the ACAA. 49 U.S.C. § 46110(c).
Under that provision, as this Court recently recognized, “the ACAA creates a ‘limited
private right’ for individuals with a ‘substantial interest’ in an enforcement action to
petition for review of DOT decisions in a United States Court of Appeals.” Wall v.
Southwest Airlines, No. 6:21-cv-1008 (M.D. Fla. June 16, 2021), ECF No. 8 at 5
(quoting Love v. Delta Air Lines, 310 F.3d 1347, 1357 (11th Cir. 2002)).
The fact that Plaintiff is not challenging a final order but challenging DOT’s
alleged failure to issue an order, or to take some form of enforcement action, does not
avoid this jurisdictional flaw. Courts have recognized that where, as here, a statute
grants the courts of appeals exclusive jurisdiction to review an agency action, the
courts of appeals also have exclusive jurisdiction to review claims alleging that an
agency has failed to act. Kabeller, Inc. v. Busey, 999 F.2d 1417, 1421-22 (11th Cir. 1993)
(per curiam); Air Lines Pilots Ass’n v. CAB, 750 F.2d 81, 84 (D.C. Cir. 1984); Telecomms.
Rsch. & Action Ctr. v. FCC, 750 F.2d 70, 77 (D.C. Cir. 1984).
In Kabeller, for example, a skydiving company filed an administrative complaint
with the Federal Aviation Administration (FAA) alleging that a city was not in
compliance with certain grant agreements. Alleging that the FAA had unreasonably
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delayed acting on its complaint, the company filed suit in district court seeking to
compel action. The district court dismissed, ruling that the court of appeals had
exclusive jurisdiction. Kabeller, 999 F.2d at 1419-20. The Eleventh Circuit affirmed,
explaining that “where a statute commits review of agency action to the Court of
Appeals, any suit seeking relief that might affect the Circuit Court’s future jurisdiction
is subject to the exclusive review of the Court of Appeals.” Id. at 1420.
The same is true here. Judicial review of Plaintiff’s claim under the ACAA, to
the extent that it is cognizable anywhere, must be pursued in the courts of appeals
pursuant 49 U.S.C. § 46110. Accordingly, the Court should dismiss Count 15.
2. Plaintiff cannot satisfy the requirements for mandamus jurisdiction
under 28 U.S.C. § 1361.
A writ of mandamus is “an extraordinary remedy which should be utilized only
in the clearest and most compelling of cases.” Cash v. Barnhart, 327 F.3d 1252, 1257
(11th Cir. 2003). The mandamus statute provides that “[t]he district courts shall have
original jurisdiction of any action in the nature of mandamus to compel an officer or
employee of the United States or any agency thereof to perform a duty owed to the
plaintiff.” 28 U.S.C. § 1361. “Mandamus jurisdiction is appropriate only where
(1) the defendant owes a clear nondiscretionary duty to plaintiff and (2) the plaintiff
has exhausted all other avenues of relief.” Lifestar Ambulance Serv., Inc. v. United States,
365 F.3d 1293, 1295 (11th Cir. 2004); see Heckler v. Ringer, 466 U.S. 602, 616 (1984)
(mandamus “is intended to provide a remedy for plaintiff only if he has exhausted all
other avenues of relief” and “the defendant owes him a clear nondiscretionary duty”).
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Plaintiff fails to meet either of these jurisdictional requirements. First, he has
not exhausted other avenues of relief, namely, seeking an exemption from the airlines
and (assuming an airline handled his exemption claim inappropriately) filing an
administrative complaint with DOT. As Plaintiff ultimately acknowledges (and as
explicitly contemplated by the CDC’s transportation mask order), airlines have
established procedures for seeking exemptions from the mask requirement. Compl.
¶¶ 11-18, 54. Here, Plaintiff does not allege that he has followed or exhausted those
procedures—to the contrary, he admits that he has sought to bypass them, based on
his own belief that they are illegal. 7
Moreover, although the ACAA does not provide a private right of action to
bring suit against an airline, Love, 310 F.3d at 1357, any person believing a carrier has
violated the ACAA or DOT’s implementing regulations may seek redress from the
DOT through well-established complaint procedures. 14 C.F.R. § 382.159. A person
may file an informal complaint using an online form available on DOT’s website, or
by mail to DOT’s Office of Aviation Consumer Protection. Id. § 382.159(a). A person
may also file a formal written complaint with DOT. Id. § 382.155; 49 U.S.C.
§ 46101(a). The ACAA provides that “the Secretary shall investigate each complaint
of a violation.” 49 U.S.C. § 41705(c)(1). A person aggrieved by DOT’s action on a
7 Although Mr. Wall submitted an (untimely) exemption form to Southwest Airlines with
respect to his June 2, 2021 itinerary, he admits that he did not submit the requisite documentation
from a physician. Instead, he wrote on the form that he considered the request to be illegal. See
Compl. ¶¶ 15-16. Southwest explained that without a physician’s statement, it was unable to approve
his request. See ECF No. 50 at 3-4 (email from Southwest Airlines to Plaintiff dated June 17, 2021).
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complaint could (assuming that all other jurisdictional requirements were met) pursue
an action in an appropriate court of appeals under 46 U.S.C. § 46110. Here, Plaintiff
has apparently made no attempt to pursue any of these administrative remedies.
Second, Plaintiff has no “clear and undisputable” right to require DOT to take
an enforcement action, particularly under the circumstances here. To warrant
mandamus relief, the duty to be performed must be “ministerial and the obligation to
act peremptory, and clearly defined. The law must not only authorize the demanded
action, but require it; the duty must be clear and undisputable.” 13th Reg’l Corp. v. Dep’t
of Interior, 654 F.2d 758, 760 (D.C. Cir. 1980) (quoting United States ex rel. McLenan v.
Wilbur, 283 U.S. 414, 420 (1931)); see Swan v. Clinton, 100 F.3d 973, 977 (D.C. Cir.
1996) (a ministerial duty is “one that admits of no discretion, so that the official in
question has no authority to determine whether to perform the duty”).
The decision whether to take enforcement action is not a ministerial act—just
the opposite, it is “generally committed to an agency’s absolute discretion.” Heckler v.
Chaney, 470 U.S. 821, 831 (1985). Decisions of agency enforcement discretion
“involve[] a complicated balancing of a number of factors which are peculiarly within
[the agency’s] expertise.” Id. “[T]he agency must not only assess whether a violation
has occurred, but whether the agency resources are best spent on this violation or
another, whether the agency is likely to succeed if its acts,” and “whether a particular
enforcement action requested best fits the agency’s overall policies[.]” Id.
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The statutory provisions governing DOT’s authority to conduct investigations
and to take enforcement action under Part A of Title 49 confirm the discretionary
nature of the Secretary’s decision to initiate an investigation (absent a formal
administrative complaint alleging a violation of the ACAA)8 or to bring an
enforcement action. See 49 U.S.C. § 46101(a)(2) (“On initiative of the Secretary . . . ,
the Secretary . . . may conduct an investigation, if a reasonable ground appears to the
Secretary,” that there has been a violation) (emphasis added); id. § 46106 (The
Secretary “may bring a civil action against a person in a district court of the United
States to enforce this part”) (emphasis added); see also id. § 46107(b)(1) (“On the request
of the Secretary of Transportation . . . , the Attorney General may bring a civil action
in an appropriate court—(A) to enforce this part or a requirement or regulation
prescribed, . . . under this part; and (B) to prosecute a person violating this part or a
requirement or regulation prescribed . . . under this part.”) (emphasis added). 9
8 As noted above, 49 U.S.C. § 41705(c)(1) does require DOT to “investigate each complaint
of a violation of [the ACAA].” However, this requirement does not obligate the agency to take any
specific enforcement action, and DOT retains its authority to determine that the investigation does
not warrant further “action.” 49 U.S.C. § 49101(3). In all events, Plaintiff has not even filed a
complaint.
9 For the same reason, Plaintiff’s claim that DOT has failed to enforce the ACAA also fails to
state a claim under the APA, which does not permit judicial review of agency actions that are
“committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). Moreover, although the APA allows
reviewing courts to “compel agency action unlawfully withheld or unreasonably delayed,” id. § 706(1),
the APA limits such relief to cases in which the plaintiff has identified discrete actions which the
agency is required by law to take; the APA does not allow a broad-based programmatic challenge to
DOT’s enforcement decisions. Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004) (APA precludes
“broad programmatic attack” and instead allows review of a claim that “an agency failed to take a
discrete agency action that it is required to take.”); Am. Disabled for Attendant Programs Today v. HUD, 170
F.3d 381, 389 (3rd Cir. 1999) (APA does not allow plaintiff to pursue “broad-based attack on HUD’s
investigative and enforcement scheme” that allegedly violated 42 U.S.C. § 3608).
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And although this is a matter for DOT’s enforcement discretion rather than
oversight by Plaintiff, DOT has implemented an enforcement policy, which makes
clear that the airlines retain their ACAA obligations regarding persons with disabilities
who cannot wear a mask (or cannot wear a mask safely) because of their disability.
See Pl.’s Ex. 208, ECF No. 1-13. That policy, which is fully consistent with the CDC
orders that Plaintiff challenges, also sensibly acknowledges that airlines may require
proof from the party seeking an exemption that they are unable (not just unwilling) to
wear a mask, for legitimate medical reasons. See id. at 6.
c. Plaintiff’s claims against the President are not redressable (Counts 5-8,
and 23).
The redressability requirement of Article III standing is not satisfied “if a federal
court lacks the power to issue” the relief requested by the Plaintiff. M.S. v. Brown, 902
F.3d 1076, 1083 (9th Cir. 2018). That principle is fatal to all of Plaintiff’s claims
against the President of the United States. Accordingly, all of those claims should be
dismissed, and the President should be dismissed as a Defendant.
Although federal courts may issue injunctions in appropriate circumstances
against the President’s subordinates, issuing an injunction directly against the
President himself would violate the longstanding principle—rooted in the separation
of powers—that federal courts have “no jurisdiction of a bill to enjoin the President in
the performance of his official duties[.]” Mississippi v. Johnson, 71 U.S. 475, 501 (1867);
see also Franklin v. Massachusetts, 505 U.S. 788, 802-03 (1992) (plurality op.) (stating that
a “grant of injunctive relief against the President himself [was] extraordinary, and
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should have raised judicial eyebrows”). “[F]or the President to ‘be ordered to perform
particular executive . . . acts at the behest of the Judiciary,’ . . . at best creates an
unseemly appearance of constitutional tension and at worst risks a violation of the
constitutional separation of powers.” Swan, 100 F.3d at 978 (citation omitted). 10
Accordingly, because the Court will be unable to award relief against the
President, Plaintiff’s claims against the President are not redressable, which provides
an independent basis for the Court to dismiss him as a Defendant. 11
d. Plaintiff lacks standing to challenge the international traveler testing
order (Counts 19-23).
There is no evidence in the record that Plaintiff has any specific international
travel plans. While his complaint referenced a trip to Germany, Compl. ¶ 8, the date
for that planned trip has long since passed. It is entirely speculative whether he will
ever be subject to the testing requirement in the future. Under directly on-point
Supreme Court precedent, that deprives him of Article III standing (or moots his
claims)—even if he has a general intent to travel abroad at some point in the future.
“Such ‘some day’ intentions—without any description of concrete plans, or indeed
10 The same is true of Plaintiff’s claims for declaratory relief against the President. In practice,
to subject the President to suits for declaratory relief poses essentially the same concerns as injunctions.
See Franklin, 505 U.S. at 827 (Scalia, J., concurring in part and concurring in the judgment) (“It is
incompatible with [the President’s] constitutional position that he be compelled personally to defend
his executive actions before a court.”). Thus, even where (unlike here) “[t]he only apparent avenue of
redress for plaintiffs’ claimed injuries would be injunctive or declaratory relief against . . . the President
himself . . . [s]uch relief is unavailable.” Newdow v. Roberts, 603 F.3d 1002, 1013 (D.C. Cir. 2010).
11 Plaintiff has also failed to state any claim against the President under Federal Rule of Civil
Procedure 12(b)(6), given the absence of any allegation that the President (rather than his
subordinates) engaged in any unlawful conduct. In addition, the Supreme Court has squarely held
that the President himself is not subject to APA litigation, because the President is not an “agency” as
that term of art is used in the APA. See Franklin, 505 U.S. at 796.
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even any specification of when the some day will be—do not support a finding of the
‘actual or imminent’ injury that” the Supreme Court requires. Lujan v. Defs. of Wildlife,
504 U.S. 555, 564 (1992). Nor does it matter that he would have been subject to the
testing requirement on his prior (canceled) trips. See City of Los Angeles v. Lyons, 461
U.S. 95 (1983) (past injury does not provide standing to seek prospective injunctive
relief). All of Plaintiff’s challenges to the testing order should be dismissed for lack of
Article III standing (or because they are moot). 12
II.
Plaintiff’s APA challenges to the CDC’s transportation mask order are
meritless.
Under the APA, a court may set aside agency action only where it is “arbitrary,
capricious, an abuse of discretion, unconstitutional, in excess of statutory authority,
without observance of procedure as required by law, or unsupported by substantial
evidence.” Mahon v. USDA, 485 F.3d 1247, 1253 (11th Cir. 2007); see 5 U.S.C.
§ 706(2). Although Plaintiff tries several of those theories in his varied claims
challenging the CDC’s transportation mask order, they all fail.
a.
The transportation mask order is authorized by the Public Health
Service Act (Count 4).
The CDC acted within its statutory authority in issuing the transportation mask
order. Under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
12 Indeed, much the same could be said of Plaintiff’s domestic travel plans. Federal Defendants
have not emphasized that argument here, lest Mr. Wall buy new tickets and claim that another
emergency requires the Court’s immediate intervention. As a formal matter, however, there is a strong
jurisdictional argument that Mr. Wall lacks standing for all of his claims on this basis, and the Court
could dismiss the case in its entirety for that reason alone (with or without discussion of the merits).
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837 (1984), the Court first asks “whether Congress has directly spoken to the precise
question at issue.” Id. at 842. If so, both the Court and the agency “must give effect
to the unambiguously expressed intent of Congress.” Id. at 843. “If, however, the
statute is ambiguous on the point, we assume that Congress delegated to the agency
the authority to reasonably answer the question.” In re Gateway Radiology Consultants,
P.A., 983 F.3d 1239, 1256 (11th Cir. 2020). So “[t]he second Chevron step is to
determine if the agency’s interpretation of the statute is reasonable.” Id.
Here, only Chevron’s first step is necessary, because Congress unambiguously
vested CDC (through the Secretary of HHS) with authority to take decisive action to
control the spread of communicable diseases through conventional sanitation
measures like masking. But even if the statute were ambiguous, CDC’s reasonable
interpretation warrants deference.
1. The first sentence of 42 U.S.C. § 264(a) empowers the Secretary “to make
and enforce such regulations as in his judgment are necessary to prevent the introduction,
transmission, or spread of communicable diseases” into or throughout the United
States. (emphasis added). The text of the statute thus evinces a legislative
determination to defer to the “judgment” of public-health authorities about what
measures they deem “necessary” to prevent communicable disease, see id. In other
words, “Congress has granted broad, flexible powers to federal health authorities who
must use their judgment in attempting to protect the public against the spread of
communicable disease.” Louisiana v. Mathews, 427 F. Supp. 174, 176 (E.D. La. 1977).
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And “[w]hen Congress undertakes to act in areas fraught with medical and scientific
uncertainties, legislative options must be especially broad and courts should be
cautious not to rewrite legislation.” Marshall v. United States, 414 U.S. 417, 427 (1974).
The examples Congress gave of specific measures the Secretary may take—
which are illustrative, not exhaustive—underscore the breadth of this authority,
showing that it may even infringe on personal liberties where appropriate to protect
public health. See Indep. Turtle Farmers of La. v. United States, 703 F. Supp. 2d 604,
619-20 (W.D. La. 2010) (explaining that “the list does not act as a limitation upon the
types of regulations that may be enacted under Section 361 [of the PHSA]”). Such
measures include the authority to impose restrictions on individuals’ freedom of
movement, including the “apprehension, detention, or conditional release of
individuals.” 42 U.S.C. § 264(a)-(b). The terms of the statute—including the examples
of measures that the Secretary may adopt—invite the Secretary’s exercise of expert
judgment to determine what regulations may be appropriate to “prevent the
introduction, transmission, or spread of communicable diseases.” Id.
This point is bolstered by the fact that, although subsection (a) makes no
mention of the Secretary’s ability to detain persons, it is plainly contemplated as within
the scope of what may be “necessary” in his “judgment,” given the specific restrictions
placed on any such regulations in subsections (b) through (d). See id. § 264(a)-(d). So
it cannot be the case that the list of specific measures in subsection (a) is intended to
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be an exhaustive list of the permissible measures available to the Secretary—otherwise,
the restrictions on detention in subsections (b) through (d) would make little sense.13
2. Plaintiff focuses most of his attention on the second sentence of 42 U.S.C.
§ 264(a), arguing that the list of more specific measures that the Secretary “may”
implement to prevent the spread of disease should be read as limiting the authority
granted by the first sentence. Relying on arguments that have been advanced in other
litigation challenging other CDC orders, Plaintiff invokes the ejusdem generis canon of
construction, “which says that where general words follow specific words in a
statutory enumeration, the general words are construed to embrace only objects
similar in nature to those objects enumerated by the preceding specific words.” Pl.’s
MSJ at 10 (quotation omitted). This argument not only fails on its own terms but, if
anything, underscores that the order falls comfortably within the second sentence.
The ejusdem generis canon focuses on “the common attribute” of specific items
to aid in the interpretation of a “catchall phrase.” Ali v. Fed. Bureau of Prisons, 552 U.S.
214, 224-25 (2008). The noscitur a sociis canon likewise looks to surrounding words to
inform meaning. Babbitt v. Sweet Home Chapter of Cmtys. for a Greater Or., 515 U.S. 687,
13 Although he argues that the mask order exceeds the authority that Congress has delegated
to the Executive Branch, Plaintiff appears not to dispute that the regulation implementing this
statutory language, by delegating authority to the CDC, is consistent with the statute. Nor could he:
the regulation is consistent with Congress’s intent to provide flexibility in combatting the spread of
disease, by allowing the CDC Director to “take such measures to prevent such spread of the diseases
as he/she deems reasonably necessary[.]” See 42 C.F.R. § 70.2. The regulation does impose the
additional requirement that CDC “determine[] that the measures taken by the health authorities of
State or possession (including political subdivisions thereof) are insufficient to prevent the spread of .
. . disease.” Id. CDC has satisfied that obligation here. See 86 Fed. Reg. 8025, 8030 (Feb. 3, 2021)
(“This Order shall not apply” where state or local “requirements . . . provide the same level of public
health protection as—or greater protection than—the requirements listed herein.”).
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702 (1995). Here, the statute and the relevant regulations each permit CDC to take a
number of similar (or more intrusive) actions that may affect individual rights,
including “fumigation, disinfection, sanitation,” and even the “destruction” of private
property. 42 U.S.C. § 264(a); 42 C.F.R. § 70.2.
Masking is a conventional “sanitation” measure. A leading dictionary defines
“sanitation” as “the act or process of making sanitary” or “the promotion of hygiene
and prevention of disease by maintenance of sanitary conditions.” Sanitation,
Merriam-Webster.com Dictionary, https://perma.cc/9ARR-YKYH. Much like wearing
gloves or a gown, or disinfecting surfaces, wearing a mask reduces the transmission of
viral particles. That is exactly why “doctors have been wearing medical-grade N95 or
surgical masks . . . during surgeries or patient interactions as part of their daily routines,
for many decades.” Why Doctors Wear Masks (Sept. 1, 2020), YALEMEDICINE.ORG,
https://perma.cc/TE77-8PBH. And even if there were doubt on this score—and there
is not—the temporary requirement to wear masks on public transportation is a
comparable (or milder) imposition than the other examples enumerated in the statute.
It thus qualifies as an “other measure[]” that CDC has determined “may be necessary”
“in [its] judgment,” within the meaning of the second sentence of 42 U.S.C. § 264(a).
So regardless of whether the Court interprets the first sentence of 42 U.S.C.
§ 264(a) broadly, as it is written (i.e., to authorize any measure that “in [the CDC’s]
judgment [is] necessary to prevent the introduction, transmission, or spread of
communicable diseases”), or rather adopts a narrower interpretation (i.e., to authorize
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only measures that are akin to those listed in the second sentence, including
“sanitation” measures), the transportation mask order is lawful.
3. Plaintiff references “[t]he major-questions doctrine,” Pl.’s MSJ at 12, though
it is one that, to the government’s knowledge, has never featured in a Supreme Court
or Eleventh Circuit majority opinion. See Gundy v. United States, 139 S. Ct. 2116,
2141-42 (2019) (Gorsuch, J., dissenting) (advocating in dissent for application of a
“major questions” doctrine in the context of nondelegation challenges). In any event,
Plaintiff never explains why a temporary requirement to wear a face covering while
on public transportation (or obtain a medical exemption) even qualifies as such a
“major question.” To the contrary, a temporary requirement to wear a mask (or
document one’s medical inability to do so) during a global pandemic is a
comparatively minor imposition, particularly in the context of commercial air travel—
in which travelers are routinely subjected to extensive government searches and safety
measures, under color of federal law, that would be unthinkable in many other
settings. And the order does not, for example, “lay[] claim to extravagant statutory
power over the national economy” in general, nor depart from prior agency
interpretations to bring about “an enormous and transformative expansion in [its own]
regulatory authority.” Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 324 (2014) (citing
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000) (rejecting FDA’s
new interpretation of its own authority to regulate tobacco products).
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4. Even if the statute were ambiguous, Chevron step two requires deference to
the agency’s reasonable interpretation. The rationale underlying Chevron deference is
that “ambiguities in statutes within an agency’s jurisdiction to administer are
delegations of authority to the agency to fill the statutory gap in reasonable fashion”—
decisions that “involve[] difficult policy choices that agencies are better equipped to
make than courts.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.
967, 980 (2005). Chevron thus applies where “Congress delegated authority to the
agency generally to make rules carrying the force of law, and . . . the agency
interpretation . . . was promulgated in the exercise of that authority.” United States v.
Mead Corp., 533 U.S. 218, 226-27 (2001). In such circumstances, courts must uphold
the agency’s interpretation “as long as it is a permissible construction of the statute,
even if it differs from how the court would have interpreted the statute.” Sebelius v.
Auburn Reg’l Med. Ctr., 568 U.S. 145, 158 (2013).
Those prerequisites for Chevron deference are satisfied here. The PHSA reflects
a congressional delegation to HHS to promulgate regulations with the force of law.
The statute authorizes the Secretary “to make and enforce such regulations as in his
judgment are necessary” to prevent the spread of disease. 42 U.S.C. § 264(a). It further
allows the Secretary to “provide for . . . measures [that] in his judgment may be
necessary” in order to “carry[] out and enforc[e] such regulations[.]” Id. And the
implementing regulation paraphrases this language to delegate to the CDC Director
the full authority Congress provided to “take such measures to prevent such spread of
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the diseases as he/she deems reasonably necessary,” provided he makes the additional
determination that state and local disease-control measures are inadequate. 42 C.F.R.
§ 70.2. The language clearly provides the agency authority to make binding
regulations. Accord Brand X, 545 U.S. at 980-81 (analyzing a statute empowering an
agency to “execute and enforce” an Act and “prescribe such rules and regulations as
may be necessary in the public interest to carry out [its] provisions”). Finally, the mask
order was issued pursuant to that authority, and has the force of law. See 86 Fed. Reg.
at 8030. 14 Accordingly, even if the Court determines that the statutory question is a
close one, it should defer to CDC’s reasonable interpretation under Chevron.
5. Plaintiff is wrong to analogize the mask order to the CDC’s eviction
moratorium, which both the Supreme Court and the Eleventh Circuit recently left in
place. See Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2320 (2021) (denying application to
vacate stay pending appeal); Brown v. HHS, --- F. 4th ----, 2021 WL 2944379 (11th Cir.
July 14, 2021) (affirming denial of preliminary injunction for lack of irreparable harm,
after declining to “consider or resolve the scope of the CDC’s statutory authority”).
14 The fact that the agency did not engage in notice-and-comment rulemaking does not change
this conclusion. See Barnhart v. Walton, 535 U.S. 212, 221 (2002) (“that the Agency previously reached
its interpretation through means less formal than ‘notice and comment’ rulemaking, . . . does not
automatically deprive that interpretation of the judicial deference otherwise its due”); Mead, 533 U.S.
at 231 (“we have sometimes found reasons for Chevron deference even when no such administrative
formality was required and none was afforded”). Instead, factors like the clear authority pursuant to
which it was promulgated, the fact that the Order carries the force of law, its formality—the Order
was published in the Federal Register—and the agency’s unquestionable public-health expertise
demonstrate that deference to the agency’s interpretation of the statute is warranted. See Mead, 533
U.S. at 230-31; see also NationsBank of N.C., N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 257-58
(1995) (deferring, under Chevron, to agency’s reasonable position articulated in interpretive letters).
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To be clear, several courts have endorsed CDC’s interpretation of its authority.
See, e.g., Ala. Ass’n of Realtors v. HHS, No. 21-5093, 2021 WL 2221646, at *1 (D.C. Cir.
June 2, 2021) (“[T]he CDC’s eviction moratorium falls within the plain text of 42
U.S.C. § 264(a).”). But even the unfavorable lower-court opinions about the eviction
moratorium have acknowledged that the CDC’s authority to prevent the spread of
disease includes areas of traditional federal jurisdiction—as contrasted with the
evictions and landlord-tenant relations that those courts described as traditional
state-law matters. See, e.g., Tiger Lily, LLC v. HUD, --- F. 4th ----, 2021 WL 3121373, at
*4 (6th Cir. July 23, 2021) (reasoning that the CDC’s eviction moratorium “alters the
federal-state framework by permitting federal encroachment” on the “traditional state
power,” over “landlord-tenant relations”); see also Brown, 2021 WL 2944379, at *26
(Branch, J., dissenting) (arguing in dissent that Ҥ 264(a) does not authorize the CDC
Order” placing a moratorium on evictions “because [t]here is no unmistakably clear
language in the Public Health Service Act indicating Congress’s intent to invade the
traditionally State-operated arena of landlord-tenant relations”) (quotation omitted).
Some of those opinions have also accepted the argument (advanced by Plaintiff
here) that the CDC’s authority is limited to the types of measures specifically listed in
the second sentence of 42 U.S.C. § 264(a), because of various canons of construction.
See, e.g., Brown, 2021 WL 2944379, at *26 (Branch, J., dissenting) (“Applying the
canons of noscitur a sociis and ejusdem generis, ‘other measures’ must be measures like
inspection, fumigation, disinfection, sanitation, pest extermination, or destruction of
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animals or articles found to be sources of dangerous infection[.]”). But as explained
above, even if that reading were correct, the transportation mask order still qualifies:
either as an actual “sanitation” measure, or (at a minimum) as an “other measure[]”
sufficiently similar to a “sanitation” measure. 42 U.S.C. § 264(a).
The mask order is thus consistent with even the narrowest interpretation of
CDC’s authority in the eviction-moratorium opinions: it is a targeted response to a
public-safety
threat
facing
our
nation’s
interstate-transportation system—
unquestionably an area of traditional federal control—and it relies on an entirely
conventional sanitation measure to reduce the spread of communicable disease, 15
which falls comfortably within the CDC’s core mission. Likewise, especially when it
comes to air travel, there is nothing novel about the federal government adopting safety
measures that might be considered unnecessary in other contexts, such that any
uncommon clarity from Congress should be expected or required. So although
Federal Defendants respectfully disagree with several of the opinions about CDC’s
eviction moratorium, even if they were correct (or binding), they would not warrant
vacatur of the CDC’s transportation mask order.
15 See, e.g., Paul French, In the 1918 flu pandemic, not wearing a mask was illegal in some parts of
America. What changed? (April 4, 2020), CNN.com, https://perma.cc/JCJ6-F2ZU (“Mask-wearing
laws largely had public support and were mostly policed by consent.”); Why Doctors Wear Masks
(Sept. 1, 2020), YaleMedicine.org, https://perma.cc/TE77-8PBH (“While mask-wearing may be new
to most of us, doctors have been wearing medical-grade N95 or surgical masks . . . during surgeries or
patient interactions as part of their daily routines, for many decades.”).
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b.
The transportation mask order is consistent with the ACAA and
DOT’s implementing regulations (Count 14).
The transportation mask order is likewise consistent with the ACAA and its
implementing regulations—both with respect to the general requirement to wear a
mask, and the exemptions for persons with disabilities that prevent them from wearing
a mask or doing so safely.
At the outset, there is plainly no violation of the ACAA itself, and it is not clear
that Plaintiff contends otherwise. Although he does cite 49 U.S.C. § 41705, see Compl.
¶ 1037, that statute merely prohibits an “air carrier” from “[d]iscrimination against
handicapped individuals.” The CDC is not an “air carrier,” but in any case, by
generally requiring masking, neither the mask order nor airlines implementing it
“discriminate against” passengers on the basis of “a physical or mental impairment
that substantially limits one or more major life activities.” 49 U.S.C. § 41705. To the
contrary: the order explicitly exempts any “person with a disability who cannot wear a
mask, or cannot safely wear a mask, because of the disability.” 86 Fed. Reg. 8027.
And the motivation for the mask requirement is not anyone’s disability, but generally
applicable concerns about the spread of a communicable disease.
As for the ACAA’s implementing regulations in 14 C.F.R. Part 382, they
likewise apply only to airlines, 14 C.F.R. §§ 382.19, 382.21, so they have no clear
relevance to Plaintiff’s claims against the CDC (or the Federal Defendants generally).
But even ignoring that threshold problem, those regulations provide clear guidance on
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how airlines should accommodate persons with disabilities when implementing the
transportation mask order, and are not violated here.
In Count 14, Plaintiff alleges that the mask order runs afoul of 14 C.F.R.
§ 382.21, which he reads to preclude an airline from requiring a passenger to wear a
mask, or refusing him carriage for not doing so, unless it determines that the passenger
in fact “has a communicable disease and poses a ‘direct threat’” to other passengers or
crew. Compl. ¶ 1038 (citing 14 C.F.R. § 382.21). That reading is mistaken, as that
regulation has no application here. In short, Section 382.21 provides that an airline
may not “[r]efuse to provide transportation to [a] passenger” or “[i]mpose on the
passenger any condition . . . not imposed on other passengers” “on the basis that [he]
has a communicable disease or infection,” absent a finding of a direct threat. 14 C.F.R.
§ 382.21 (emphasis added). But the mask order does not differentiate between
passengers who do or do not have COVID-19, or direct airlines to deny carriage to
passengers “on the basis” of their infection status; passengers who decline to wear
masks are denied carriage “on the basis” of their refusal to adhere to that safety
requirement. The Court need go no further to reject this claim.
To the extent Mr. Wall alleges in Count 14 (or perhaps Count 15) that the mask
order instead runs afoul of 14 C.F.R. § 382.19—which governs airlines’ refusal of
carriage “on the basis of disability,” as opposed to infection status—the claim also
fails. Under Section 382.19, an airline may not refuse carriage to a passenger who
asserts an inability to wear a mask (or to do so safely) due to a disability unless the
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airline first makes “an individualized assessment [of the direct threat posed by that
passenger], based on reasonable judgment that relies on current medical knowledge or
on the best available objective evidence.” Id. § 382.19(c)(1). The purpose of the
assessment is to ascertain “(i) [t]he nature, duration, and severity of the risk [posed by
the individual]; (ii) [t]he probability that the potential harm to the health and safety of
others will actually occur; and (iii) [w]hether reasonable modifications of policies,
practices, or procedures will mitigate the risk.” Id. If the airline has adequately
determined, based on such an individualized assessment, that the passenger does pose
a direct threat to the health or safety of others because of a disability-related condition,
the airline “must select the least restrictive response from the point of view of the
passenger, consistent with protecting the health and safety of others,” and must “not
refuse transportation to the passenger if [the airline] can protect the health and safety
of others by means short of a refusal” to provide transportation. Id. § 382.19(c)(2).
Today, airlines allow passengers who are unable to wear a mask (or to do so
safely) because of a disability to travel without masks so long as those passengers
participate in these “individualized assessments” and follow the conditions imposed
by the carrier to protect the health and safety of others. In any event, airlines are
permitted to refuse “any passenger whose carriage would violate FAA or TSA
requirements.” 14 C.F.R. § 382.19(c). That alone is sufficient to resolve the matter,
given the TSA Security Directives implementing the CDC’s mask order. See Exs. 3-6.
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Regardless, as noted earlier, each of the challenged orders provides an
exemption for persons who have a disability that prevents them from wearing a mask
or doing so safely. See 86 Fed. Reg. at 8027; Ex. 3, SD 1542-21-01A at 4; Ex. 4, SD
1544-21-02A at 3; Ex. 5, SD 1582/84-21-01A at 4; Ex. 6, EA 1546-21-01A at 3. To be
sure, to ensure the integrity of the exemption process, the airlines may impose
reasonable conditions, including that passengers request an accommodation in
advance, provide documentation from a licensed medical provider, or participate in a
third-party medical consultation. 86 Fed. Reg. at 8027 n.8. In addition, the CDC
order allows airlines to impose protective measures, such as requesting that the person
seeking an exemption submit a negative COVID-19 test, or seating the individual in a
less-crowded section of the aircraft. Id. Plaintiff points to nothing in the text of Section
382.19 mandating otherwise. 16
16 Plaintiff also cites 14 C.F.R. § 382.23(a) which provides that an airline generally “must not
require a passenger with a disability to have a medical certificate as a condition for being provided
transportation.” See Compl. ¶ 239. But “medical certificate” is a defined term, describing
documentation used to verify that the person can complete the flight safely without requiring
extraordinary medical assistance. See 14 C.F.R. § 382.23(b)(2). Airlines may also require a medical
certificate for a passenger if he or she has a communicable disease or condition that could pose a direct
threat to the health or safety of others on the flight, and in this context, a “medical certificate” is
defined as “a written statement from the passenger’s physician saying that the disease or infection
would not, under the present conditions in the particular passenger’s case, be communicable to other
persons during the normal course of the flight.” Id. § 382.23(c)(2). The term does not encompass
medical documentation verifying a disability to obtain an exemption from a generally applicable
requirement. In all events, if Plaintiff believes that an airline has improperly denied him an exemption
or imposed particular requirement not permitted by the ACAA, his remedy in the first instance is to
seek redress from DOT through its complaint procedures, 49 U.S.C. § 46101(a); 14 C.F.R. § 382.159,
not to file a claim in district court. See supra Section I(b)(2).
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c.
The transportation mask order is not arbitrary and capricious
(Count 3).
Arbitrary and capricious review is “exceedingly deferential.” Sierra Club v. Van
Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008) (quotation omitted). Courts may not
“substitute [their] judgment for the agency’s as long as its conclusions are rational.”
Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d 1257, 1264 (11th Cir. 2009).
“A court simply ensures that the agency has acted within a zone of reasonableness
and, in particular, has reasonably considered the relevant issues and reasonably
explained the decision.” Prometheus Radio Project, 141 S. Ct. at 1158. Of particular
relevance here, the Eleventh Circuit “give[s] an extreme degree of deference to the
agency when it is evaluating scientific data within its technical expertise.” Nat’l Mining
Ass’n v. Dep’t of Labor, 812 F.3d 843, 866 (11th Cir. 2016) (quotation omitted); see also
Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 103 (1983) (where an
agency “is making predictions, within its area of special expertise, at the frontiers of
science, . . . a reviewing court must generally be at its most deferential”).
Plaintiff’s claim cannot satisfy this “exceedingly deferential” standard. Van
Antwerp, 526 F.3d at 1360. Mr. Wall’s claim is largely premised on his own contrarian
view of the scientific evidence: that “face masks are totally ineffective in reducing
coronavirus spread (and are actually harmful in many circumstances).” Compl. at 3.
But the CDC has amply supported its determination that mask wearing “is one of the
most effective strategies available for reducing COVID-19 transmission.” 86 Fed. Reg.
at 8026. And the CDC has “reasonably explained,” Prometheus Radio Project, 141 S.
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Ct. at 1158, that masks both (1) “help prevent people who have COVID-19, including
those who are pre-symptomatic or asymptomatic, from spreading the virus to others,”
and (2) “also provide personal protection to the wearer by reducing inhalation of”
“virus-laden droplets.” 86 Fed. Reg. at 8028. Under bedrock principles of
administrative law, that is enough to resolve this claim, even if there were room for
reasonable scientists to disagree.
That said, even a cursory review of the administrative record shows that CDC’s
judgment aligns with the widespread medical consensus that masks work to slow the
spread of COVID-19. See 86 Fed. Reg. at 8028 (“Seven studies have confirmed the
benefit of universal masking in community level analyses,” each of which
“demonstrated that, following directives . . . for universal masking, new infections fell
significantly.”). Although Mr. Wall may disregard that evidence in formulating his
own beliefs, the CDC has greater responsibilities—both to the rigors of the scientific
method, and to the American people.
The scientific consensus supporting mask-wearing to prevent transmission of
COVID-19 is presumably why “[a] person not wearing a mask . . . will not be allowed
in—or will be directed to leave—a courthouse” in the Middle District of Florida.
Ex. 10, No. 3:20-mc-00023, ECF No. 4, COVID-19 Order (M.D. Fla. July 30, 2021)
(Corrigan, C.J.). And in the context of commercial air travel in particular, social
distancing is often impossible, and there is a long history of federal regulation—
including to protect passengers from being exposed to airborne contaminants. Cf.
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Competitive Enter. Inst. v. Dep’t of Transportation, 863 F.3d 911, 919 (D.C. Cir. 2017)
(“[E]-cigarette vapor in confined aircrafts could harm non-users. Especially due to the
involuntary nature of secondhand exposure on aircrafts, where individuals are often
assigned seats, . . . [t]hose seated next to users may not want to expose themselves (or
their babies or older children) to even small risks[.]”) (citations omitted).
Mr. Wall points to a smattering of other sources, see Compl. ¶¶ 682-827, which
he interprets to be inconsistent with the CDC’s judgment about the safety and efficacy
of masks—or what he considers to be “muzzling suffocation devices that science says
are causing great harm.” Id. ¶ 787. Many of those “studies” are flawed and
questionably sourced on their face, 17 but this Court need not wade into that morass.
Even accepting the (dubious) premise that there is significant uncertainty about either
the efficacy or safety of mask-wearing during a global pandemic of an airborne
respiratory virus, the APA does not require unanimity or certainty in the scientific
literature before an agency can act. Cf. Prometheus Radio Project, 141 S. Ct. at 1160
(“[T]he FCC did not have perfect empirical or statistical data. Far from it. But that is
not unusual in day-to-day agency decisionmaking within the Executive Branch.”).
Congress has entrusted these judgments to the CDC—not to Mr. Wall, and,
respectfully, not to the courts. Cf. Am. Wildlands v. Kempthorne, 530 F.3d 991, 1000
(D.C. Cir. 2008) (“In an area characterized by scientific and technological
17 As but one example, Plaintiff relies on sources like thegatewaypundit.com, see Pls.’ Ex. 161,
ECF No. 1-11, a website that is hardly known for its scientific rigor. See, e.g., What is Gateway Pundit,
the conspiracy-hawking site at the center of the bogus Florida ‘crisis actors’ hype?, THE WASHINGTON POST
(Feb. 23, 2018), https://perma.cc/4LT2-CKXN.
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uncertainty[,] . . . this court must proceed with particular caution, avoiding all
temptation to direct the agency in a choice between rational alternatives.”).
Mr. Wall emphasizes that he is fully vaccinated, and that COVID-19
vaccination dramatically reduces the risk of infection, transmission, hospitalization,
and death. See Compl. ¶¶ 2, 329. But that does nothing to undermine the legality of
the mask order. At the outset, it certainly does not affect this facial challenge, in which
Plaintiff seeks an order that would prohibit “any requirement that any traveler or
transportation employee cover their face unless the person is known to be infected by
a communicable disease.” Compl., Prayer for Relief ¶ Q (emphases added).
More fundamentally, the question here is whether the CDC acted rationally in
January, when it issued the order—not whether CDC would rely on identical reasoning
to justify it today. DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1907 (2020) (“It
is a foundational principle of administrative law that judicial review of agency action
is limited to the grounds that the agency invoked when it took the action.”) (emphasis
added) (quotation omitted); Camp v. Pitts, 411 U.S. 138, 142 (1973) (“[T]he focal point
for judicial review should be the administrative record already in existence, not some
new record made initially in the reviewing court.”). Plaintiff cannot dispute that in
January, case counts were at or near “the[ir] highest peak,” see Compl. ¶ 409, and
vaccines were not yet widely available. In addition, “at th[at] time there [was] limited
information on how much the available COVID-19 vaccines may reduce transmission
in the general population and how long protection lasts.” 86 Fed. Reg. at 8029.
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Even if it were appropriate to consider subsequent developments (like increased
vaccine availability) that post-date the action under review, only about half the country
is fully vaccinated, see https://covid.cdc.gov/covid-data-tracker/#vaccinations (last
visited August 9, 2021), and the CDC recently recommended that, in order “[t]o
maximize protection from the Delta variant and prevent possibly spreading it to
others,” even fully vaccinated individuals should “wear a mask indoors in public if
you are in an area of substantial or high transmission,” CDC.gov, When You’ve Been
Fully Vaccinated (updated July 27, 2021), https://perma.cc/C3LC-HMLF; see also Ex.
10, Middle District of Florida COVID-19 Order (requiring masks for “[e]very person
age four or over seeking to enter a courthouse . . . regardless of vaccination status”).
Case counts are rising once again. See CDC COVID Data Tracker,
https://covid.cdc.gov/covid-data-tracker (last visited August 9, 2021); Norwegian
Cruise Line Holdings, Ltd. v. Rivkees, --- F. Supp. 3d ----, 2021 WL 3471585, at *3 (S.D.
Fla. Aug. 8, 2021) (“Since the end of June, the number of new COVID-19 cases has
increased dramatically in Florida, which now accounts for 20 percent of all new cases
in the United States.”). And, contrary to Mr. Wall’s assertion that they face “zero
risk,” Pl.’s MSJ at 17, even fully vaccinated individuals face a risk of both infection
and transmission of the Delta variant. See Statement from CDC Director Rochelle P.
Walensky (July 30, 2021), https://perma.cc/X5MM-EV4G; Riemersman & Grogan et
al., Vaccinated and unvaccinated individuals have similar viral loads in communities with a
high prevalence of the SARS-CoV-2 delta variant (July 31, 2021) (pre-print),
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https://perma.cc/NCM6-JGDS. Whether based on the facts before the CDC in
January, or the facts before the CDC today, Mr. Wall’s challenge fails.
d.
The transportation mask order does not violate the APA’s notice-and-
comment requirements (Count 1).
Plaintiff contends that the transportation mask mandate is void because CDC
did not comply with the notice-and-comment requirements that apply to legislative
rules under the APA. Compl. ¶ 965. That claim fails because the mask order is not a
“rule” to which those requirements apply, and even if it were, there was good cause to
proceed without notice and comment given the urgent circumstances, as the APA
expressly permits. See 5 U.S.C. § 553(b)(B). In addition, any error was harmless.
First, the APA’s notice-and-comment requirements apply to “rule making,” see
5 U.S.C. § 553, with the term “rule” defined to include “statement[s] of general or
particular applicability and future effect” that are designed to “implement, interpret,
or prescribe law or policy,” id. § 551(4). But the mask order is not a “rule” in the
relevant sense; instead, it is an “an emergency action taken under the existing authority
of 42 U.S.C. § 264(a) and 42 C.F.R. §§ 70.2, 71.31(b), 71.32(b).” 86 Fed. Reg. at 8030.
By contrast, 42 C.F.R. § 70.2 is a duly promulgated rule, and it permits the Director of
CDC to take “such measures to prevent such spread of the diseases as he/she deems
reasonably necessary” to prevent the further spread of disease. Given that the very
purpose of § 70.2 is to enable CDC to take swift steps to prevent the spread of
communicable diseases, it cannot be that the actions it authorizes are also rules that
require another round of notice and comment before they take effect.
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Second, even if the mask order were a rule, notice-and-comment rulemaking is
not required “when the agency for good cause finds (and incorporates the finding and
a brief statement of reasons therefor in the rules issued) that notice and public
procedure thereon are impracticable, unnecessary, or contrary to the public interest.”
5 U.S.C. § 553(b)(B). This exception streamlines APA procedures in emergency
situations, or where delay could result in serious harm. United States v. Dean, 604 F.3d
1275, 1281 (11th Cir. 2010). The finding here meets that standard: as CDC explained,
“[c]onsidering the public health emergency caused by COVID-19, it would be
impracticable and contrary to the public’s health . . . to delay the issuance and effective
date of this Order.” 86 Fed. Reg. at 8030. CDC thus acted quickly given the “public
safety justification[s]” at stake, Dean, 604 F.3d at 1281, just as the APA permits. If the
good-cause exception does not apply to temporary public-health measures to protect
our transportation systems during a pandemic that has already killed 614,000
Americans, it is hard to imagine when it would.
In any event, in the alternative, any notice-and-comment error was harmless.
The APA provides that “due account shall be taken of the rule of prejudicial error,” 5
U.S.C. § 706, which is like “an administrative law harmless error rule,” Little Sisters of
the Poor v. Pennsylvania, 140 S. Ct. 2367, 2385 (2020) (alteration and citation omitted).
Accordingly, “[i]f the agency’s mistake did not affect the outcome, if it did not
prejudice the petitioner, it would be senseless to vacate and remand.” PDK Labs., Inc.
v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004). “The party claiming injury bears the
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burden of demonstrating harm; the agency need not prove its absence.” Combat
Veterans for Cong. Political Action Comm. v. FEC, 795 F.3d 151, 157 (D.C. Cir. 2015).
Here, Plaintiff never even attempts to explain what he would have said during
a comment process, let alone how that could have made a difference to the outcome,
given the emergency that CDC was (and is) facing in responding to COVID-19. For
that reason “it would be senseless to vacate and remand,” PDK Labs., 362 F.3d at 799,
given the likelihood that CDC would reach the same conclusion—particularly now,
given the spread of the highly transmissible Delta variant. And what Plaintiff seems
to be most interested in—namely, a medical exemption for those with disabilities who
cannot wear a mask safely—is already provided by the order. See 86 Fed. Reg. at 8027.
III.
Plaintiff’s APA challenges to the TSA’s Security Directives implementing
the CDC’s transportation mask order are meritless (Counts 9-12).
a. The TSA’s Security Directives fall within TSA’s statutory authority.
As discussed, see supra Section I(a), the Court lacks subject-matter jurisdiction
over all of Plaintiff’s claims against the TSA. But even if Plaintiff could overcome that
problem, those claims are meritless. Contrary to Plaintiff’s assertion (Count 12),
Congress did not leave the TSA powerless to address a threat to the transportation
system arising from a global pandemic. Instead, Congress has provided the TSA with
several independently adequate, and mutually reinforcing, sources of authority upon
which the agency properly relied in implementing the CDC’s mask order.
First, Congress has vested in the TSA broad authority to develop plans and
strategies for dealing with threats to transportation security. See 49 U.S.C. § 114(f)
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(enumerating the TSA’s functions and duties); id. § 114(f)(3) (directing the TSA to
“develop policies, strategies, and plans for dealing with threats to transportation
security”); id. § 114(f)(4) (directing the TSA to additionally “make other plans related
to transportation security, including coordinating countermeasures with appropriate
departments, agencies, and instrumentalities of the United States Government”); id.
§ 114(f)(13) (authorizing the TSA to coordinate with the FAA “with respect to any
actions or activities that may affect aviation safety”). Second, the TSA has additional
responsibilities in the transportation sector where, as here, the Secretary of Homeland
Security has declared a national emergency. 49 U.S.C. § 114(g). During a declared
emergency like this one, the TSA becomes responsible for “coordinat[ing] domestic
transportation,” and “oversee[ing] the transportation-related responsibilities of other
departments and agencies of the Federal Government.” Id. In other words, the TSA
is specifically empowered to coordinate with the CDC and other agencies to take
common action and address a threat to transportation, as it did here.
Plaintiff mistakenly suggests that “TSA’s sole mission . . . is to ensure
transportation security, i.e. to prevent planes, trains, buses, subways and ferries from
being blown up or hijacked.” Compl. ¶ 1028 (emphasis added). The distinction
Plaintiff tries to draw between “security” and “safety,” however, ignores the statutory
text, which repeatedly tasks the TSA with ensuring both “safety” and “security.” See
49 U.S.C. § 44903(h)(3) (authorizing deployment of law-enforcement personnel at
airports to address “aviation safety and security concerns”); id. § 44903(h)(4)(C)(i)
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(requiring the TSA to “establish procedures to ensure the safety” of “all persons
providing services with respect to aircraft”); id. § 44901(h) (authorizing TSA to deploy
police at airport security checkpoints “to ensure passenger safety and national
security”), id. § 44902(b) (permitting carriers to refuse transportation to passengers or
property “inimical to safety”); id. § 44903(b) (passenger screening regulations to
“ensure . . . their safety”); id. § 44903(e) (responsibility to direct police activity “related
to the safety of passengers”); id. § 44905(a) (empowering TSA to cancel a flight if a
threat to “the safety of passengers and crew of a particular flight” cannot be mitigated).
In short, the TSA’s authorizing statute embraces a broad and holistic
understanding of transportation safety and security that encompasses responding to
any type of threat to travelers and transportation workers. And the challenged
directives are directly related to transportation safety and security. First, as explained
above, see supra Section II(c), the transportation mask order can mitigate the risk of
travelers spreading COVID-19, and in turn, reduce the loss of life. See 86 Fed. Reg. at
8029. Second, the TSA’s mandate to protect the security of transportation systems
also extends to ensuring that potential threats do not disturb the operational viability
of transportation providers. The nature of transportation requires that workers
“frequently come into close contact with other people,” including passengers, placing
them at increased risk of contracting the virus. Id. at 8029. If those workers fall ill,
transportation providers will have to cut service, and if the service cuts become severe,
it could threaten the nation’s domestic and global supply chain, and consequently, our
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economic and national security. Id. Likewise, if too many TSA screening employees
fall ill from close contact with infected passengers and are unavailable for work, the
TSA’s ability to effectively conduct screening operations that are critical to the safety
and security of the traveling public would be drastically impaired. That concern is not
a hypothetical one: to date, over 8,800 screening employees have been infected with
COVID-19, and eighteen employees (and one contractor) have died. See TSA,
Coronavirus (COVID-19) Information, https://www.tsa.gov/coronavirus (last visited
August 9, 2021).
In any event, Plaintiff’s unduly narrow interpretation of the TSA’s general
responsibility to maintain transportation security under 49 U.S.C. § 114(f) ignores
TSA’s additional responsibilities in the transportation sector where, as here, the
Secretary of Homeland Security has declared a national emergency. 49 U.S.C.
§ 114(g). That provision empowers the TSA to “oversee the transportation-related
responsibilities of other departments and agencies”; coordinate with other federal
agencies “about threats to transportation”; and carry out “such other duties . . .
relating to transportation during a national emergency as the Secretary of Homeland
Security shall prescribe”—all without regard to whether the actions taken in the
transportation sector are related to matters of “security.” Id.
The directives at issue here were properly promulgated pursuant to TSA’s
authorities to impose security or safety requirements in the aviation and surface
transportation sector. On January 27, 2021, the Acting Secretary of Homeland
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Security announced he had “consult[ed] with public health officials” and determined
that “a national emergency exists” with respect to the continued threat of COVID-19.
Ex. 2, DHS Emergency Decl. at 1. In light of this emergency, he directed TSA to take
all actions “consistent with” its emergency authorities “to promote safety in and secure
the transportation system,” including by “supporting the CDC in the enforcement of
any orders” designed to “mitigate the spread of COVID-19 through the transportation
system.” Id. at 1-2.
Shortly thereafter, the CDC issued the transportation mask order, which
expressly contemplated that the TSA would follow the direction of the Secretary of
Homeland Security and exercise TSA’s authority to assist in enforcement of the CDC’s
order. See 86 Fed. Reg. at 8030; see also Ex. 2, DHS Emergency Decl. at 1 (directing
the TSA to “support[] the CDC in the enforcement of any” transportation-related
order). That is exactly what the TSA did when it issued the challenged directives.
b. The
TSA’s
Security
Directives
do
not
violate
the
APA’s
notice-and-comment requirements.
Plaintiff’s claim (Count 9) that the TSA’s Security Directives violate the APA’s
notice-and-comment requirements likewise has no merit. Under 49 U.S.C.
§ 114(l)(2)(A), if the TSA determines that a regulation or security directive “must be
issued immediately in order to protect transportation security,” the TSA can issue it
“without providing notice or an opportunity for comment and without prior approval
of the Secretary [of Homeland Security].” Regulations and security directives issued
under this authority are subject to review by the Transportation Security Oversight
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Board, see 49 U.S.C. § 115(b), and “shall remain effective for a period not to exceed 90
days” unless submitted to and ratified by the Board. Id. § 114(l)(2)(B).
Here, whether or not it was required, TSA requested that the Board review and
ratify all of the challenged Security Directives as “a practical measure to validate” their
implementation. See Ex. 11, Action Mem. for TSOB Chairman, Transportation Security
Oversight Board Ratification of TSA Security Directives 1542-21-01, 1544-21-02 & Emergency
Amendment 1546-21-01 Imposing Mask Requirements in Aviation Transportation (Mar. 30,
2021). The Board ratified each of the directives, effective April 20, 2021. See id.; see
also 86 Fed. Reg. at 26,826. That resolves this claim. 18
IV.
Plaintiff’s APA challenges to the CDC’s international traveler testing order
are meritless (Counts 19-23).
Plaintiff also challenges the CDC’s international traveler testing order, a
January 2021 order that (with certain exceptions) generally requires international air
travelers to provide proof of a negative COVID-19 test (or documentation of recovery
from COVID-19) before departing for the United States. See Ex. 9. As discussed
above, see supra Section I(d), Mr. Wall’s claims challenging this order seem to request
an advisory opinion forbidden by Article III, as there is no evidence in the record that
Mr. Wall has any “concrete plans” for future international travel in which he would
be subject to the testing order. Lujan, 504 U.S. at 564. But even if the court had
18 Count 11 (APA arbitrary-and-capricious claim) against TSA fails for all the same reasons as
Plaintiff’s arbitrary-and-capricious claims against CDC, see supra Section II(c), as well as the additional
reasons set forth earlier in this section—for example, the importance of maintaining the health and
safety of TSA’s own employees, without whom our nation’s air-transportation systems could not
function safely.
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jurisdiction (or if Mr. Wall is able to cure that defect), these claims are meritless, for
many of the same reasons that apply to the transportation mask order.
a.
The international traveler testing order is authorized by the Public
Health Service Act (Count 22).
As explained at length above in the context of Plaintiff’s statutory challenge to
the transportation mask order, see supra Section II(a), the Public Health Service Act
authorizes the CDC “to make and enforce such regulations as in [its] judgment are
necessary to prevent the introduction, transmission, or spread of communicable
diseases from foreign countries into the States or possessions, or from one State or
possession into any other State or possession.” 42 U.S.C. § 264(a). And at a
minimum, CDC’s reasonable interpretation of any ambiguity in that provision is
entitled to Chevron deference. All of those same arguments apply equally to the testing
requirement, and are sufficient to sustain it.
The second sentence of 42 U.S.C. § 264(a) also plainly authorizes the testing
requirement, particularly given the explicit reference to “inspection.” The inspection
of arriving passengers to determine whether they are bringing something dangerous
into the United States is hardly a novel concept for international travelers. It makes
no difference whether the goal of this inspection is to find something small (i.e., a
virus), rather than something large (e.g., narcotics, or plants or animals carrying
disease). And this authority is also consistent with longstanding regulations that Mr.
Wall appears not to directly challenge here. See also 42 C.F.R. § 71.32(b) (“Whenever
the Director has reason to believe that any arriving carrier . . . is or may be infected
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. . . with a communicable disease, he/she may require detention, disinfection, . . . or
other related measures respecting the carrier or article or thing as he/she considers
necessary to prevent the introduction, transmission, or spread of communicable
diseases.”); id. § 71.31(b) (similar). Indeed, those regulations have long authorized the
CDC to “conduct public health prevention measures,” including non-invasive testing,
on arriving passengers “to detect the potential presence of communicable diseases.”
Id. § 71.20(a); see id. § 71.1 (definitions). So, much like the mask order, see supra
Section II(a), even if this Court were to adopt a narrow reading of 42 U.S.C. § 264(a),
authorizing only measures like “inspection, fumigation, disinfection, [and]
sanitation,” the testing order would still qualify, whether as an inspection or, at a
minimum, a measure akin to one.
Finally, the propriety of CDC’s interpretation of its authority is even clearer in
the context of international travelers entering the United States, given the President’s
independent authority under Article II of the Constitution. “The Government’s
interest in preventing the entry of unwanted persons and effects is at its zenith at the
international border.” United States v. Flores-Montano, 541 U.S. 149, 152 (2004); see also,
e.g., United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936) (discussing the
“plenary and exclusive power of the President as the sole organ of the federal
government in the field of international relations—a power which does not require as
a basis for its exercise an act of Congress”). So with respect to the international traveler
testing order, it would be even more problematic to adopt Plaintiff’s cramped
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interpretation of the authority that Congress expressly delegated to the Executive
Branch “to prevent the introduction, transmission, or spread of communicable
diseases from foreign countries into” the United States. 42 U.S.C. § 264(a).
b.
The international traveler testing order is not arbitrary and capricious
(Count 21).
Plaintiff’s arbitrary-and-capricious challenge to the international traveler testing
order fails because CDC “reasonably considered the relevant issues and reasonably
explained the decision,” which is all that the APA requires. Prometheus Radio Project,
141 S. Ct. at 1158. The agency’s justification was straightforward: “The COVID-19
pandemic has spread throughout the world. Individuals who travel may be at risk for
exposure to SARS-CoV-2 before, during, and after travel. This could result in U.S.-
bound travelers further spreading the virus to others during travel, upon arrival in the
United States, and at their destinations.” 86 Fed. Reg. at 7389. No more need be said.
To be sure, as CDC expressly acknowledged, “[p]re-departure testing does not
eliminate all risk.” Id. at 7390. But “when pre-departure testing is combined with
other measures such as self-monitoring for symptoms of COVID-19, wearing masks,
social distancing, and hand hygiene, it can make travel safer by reducing spread on
conveyances, in transportation hubs, and at destinations.” Id. And Plaintiff does not
(and cannot) dispute the obvious and critical benefit: “Pre-departure testing may detect
travelers infected with SARS-CoV-2 before they initiate their travel” to the United
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States. Id. (emphasis added). There is no basis to second-guess this straightforward,
and comparatively non-intrusive, public-health precaution. 19
c.
The international traveler testing order does not violate the APA’s
notice-and-comment requirements (Count 19).
For many of the same reasons that the mask order did not have to go through
the APA’s notice-and-comment process, see supra Section II(d), neither did the testing
order, which was also “an emergency action taken under the existing authority of 42
U.S.C. § 264(a) and 42 C.F.R. §§ 70.2, 71.31(b), 71.32(b).” 86 Fed. Reg. at 8030
(transportation mask order); accord 86 Fed. Reg. at 7391 (international traveler testing
order) (citing 42 U.S.C. § 264(a) and 42 C.F.R. §§ 71.31(b), 71.32(b)).
In addition, the international traveler testing order was exempt from the APA’s
notice-and-comment requirements for an additional, independent reason: 5 U.S.C.
§ 553(a)(1)’s explicit textual exception for agency actions that “involve[] . . . a military
or foreign affairs function of the United States.” Unlike the transportation mask order,
the international traveler testing order applies only in the context of international travel
to the United States, and indeed it operates almost exclusively overseas, given the
requirement for a “pre-departure” negative test. 86 Fed. Reg. at 7388. It is thus
“linked intimately with the Government’s overall political agenda concerning
19 Although Plaintiff alleges that his refusal to wear a mask is grounded in a medical
justification, his objection to (and alleged Article III injury from) the international testing order is
harder to identify. The closest he comes is the statement that he does not wish to “pay[] for a costly
COVID-19 test,” Compl. at 6, but the overall cost of international air travel dwarfs the cost of a
COVID-19 test—in fact, so does the filing fee for this lawsuit. For example, in Frankfurt, Germany,
where Mr. Wall previously planned to travel, COVID-19 testing appears to be available at the airport
for €29. See COVID-19 testing at the airport (Rapid Test), https://perma.cc/WWM8-EWE9.
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relations with []other countr[ies].” Am. Ass’n of Exps. & Imps. Textile and Apparel Grp. v.
United States, 751 F.2d 1239, 1249 (Fed. Cir. 1985). In particular, the testing order
began as a UK-specific measure, see Ex. 7, and continues to play an important role in
the United States’s global response to an ongoing global crisis. It thus (at least)
“involve[s]” a “foreign affairs function of the United States,” 5 U.S.C. 553(a)(1), and
is therefore exempt from notice and comment.
Finally, as with the mask order, even if there was some notice-and-comment
obligation, any error was harmless, and Plaintiff has not carried his burden to show
otherwise. See supra Section II(d).
V.
All of Plaintiff’s constitutional claims are meritless.
Plaintiff brings a wide variety of constitutional claims challenging the CDC’s
transportation mask order and international traveler testing order. Each fails. Cf.
Klaassen v. Trs. of Ind. Univ., --- F. 4th ----, 2021 WL 3281209, at *1 (7th Cir. Aug. 2,
2021) (“[P]laintiffs just need to wear masks and be tested, requirements that are not
constitutionally problematic.”).
a.
Plaintiff’s right-to-travel claim is meritless (Count 8).
Plaintiff challenges the transportation mask order as a violation of “the freedom
to travel.” Compl. ¶ 1005. This claim fails because, although the Constitution
“protects the right of a citizen of one State to enter and to leave another State,” Saenz
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v. Roe, 526 U.S. 489, 500 (1999), “reasonable restrictions on the right to interstate travel
are permissible,” Abdi v. Wray, 942 F.3d 1019, 1029 (10th Cir. 2019). 20
At the outset, Plaintiff’s constitutional right to interstate travel is not threatened
here, for the simple reason that he is free to leave Florida at any time—by land, air, or
sea. As the Court has already held, “[t]here is nothing stopping Plaintiff from traveling
from state to state.” TRO Opinion at 4. Mr. Wall is free to travel with a mask (if he
wants to use public transportation conveyances), or without a mask (if he either (1)
uses any other means of transportation, or (2) obtains a medical exemption). That is
fatal to his interstate-travel claim from the start: Mr. Wall’s “right . . . to enter and to
leave another State,” Saenz, 526 U.S. at 500, is not infringed by the temporary
requirement that he wear a mask (or obtain an exemption) when using public
transportation during a once-in-a-century global pandemic.
Even if the mask order has made Mr. Wall’s travel marginally less convenient,
“mere burdens on a person’s ability to travel from state to state are not necessarily a
violation of their right to travel.” Doe v. Moore, 410 F.3d 1337, 1348 (11th Cir. 2005);
Town of Southold v. Town of E. Hampton, 477 F.3d 38, 54 (2d Cir. 2007) (“[M]inor
restrictions on travel simply do not amount to the denial of a fundamental right.”).
The Eleventh Circuit has squarely held that merely alleging that “it is inconvenient to
travel” in light of some otherwise-reasonable government restriction is not enough.
20 “The Supreme Court has distinguished between the right to travel interstate and the right to
travel internationally.” Abdi, 942 F.3d at 1029. Although international travel features in some of Mr.
Wall’s other claims, his right-to-travel claim is limited only to domestic, interstate travel. See Compl.
¶¶ 1004, 1005.
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Moore, 410 F.3d at 1348. And here, for all the reasons above, see supra Section II(c),
the transportation mask order is not only reasonable, but the CDC “has a strong
interest,” Moore, 410 F.3d at 1348, in temporarily requiring masks (or a medical
exemption) on public-transportation conveyances. Courts around the country have
upheld far more severe travel-related burdens, inconveniences, and limitations. See,
e.g., Abdi, 942 F.3d at 1024 (plaintiff “systematically subject to extra screening at
airports and land border crossings”); Beydoun v. Sessions, 871 F.3d 459, 468 (6th Cir.
2017) (“While Plaintiffs may have been inconvenienced by the extra security hurdles
they endured in order to board an airplane, these burdens do not amount to a
constitutional violation.”); Moore, 410 F.3d at 1348 (in-person sex-offender
notification required “when [plaintiff] change[s] permanent or temporary residences”).
Although that is more than enough to decide this claim under existing Eleventh
Circuit precedent, the Second, Fifth, Sixth, Ninth, and Tenth Circuits have also all
expressly held that a traveler does not have a constitutional right to the most
convenient form of travel, such as traveling by airplane as opposed to car. See Abdi,
942 F.3d at 1030-31 (alleged placement on terrorist screening list “affects only one
mode of transportation” and “places no restrictions on Abdi’s ability to drive, bus, or
otherwise commute interstate” and is therefore constitutional); Beydoun, 871 F.3d at
468 (“Importantly, Plaintiffs have not actually been prevented from flying altogether
or from traveling by means other than an airplane.”); Town of Southold, 477 F.3d at 54
(“[T]ravelers do not have a constitutional right to the most convenient form of
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travel.”); Gilmore, 435 F.3d at 1137 (“Gilmore does not possess a fundamental right to
travel by airplane even though it is the most convenient mode of travel for him.”);
Miller v. Reed, 176 F.3d 1202, 1205 (9th Cir. 1999) (no “right to drive” because
“burdens on a single mode of transportation do not implicate the right to interstate
travel”); Cramer v. Skinner, 931 F.2d 1020, 1031 (5th Cir. 1991) (same).
That is independently fatal to Plaintiff’s right-to-travel claim, because he has not
been categorically excluded from any form of travel—he can fly with a mask or an
exemption. And, with or without a mask, he remains entirely free to drive across state
lines, for example. As the Court put it, although “flying may be Plaintiff’s preferred
mode of transportation,” “it is by no means the only reasonable mode of transportation
available to him.” TRO Opinion at 4.
In response, Mr. Wall has represented in prior filings that he does not own a
car. See ECF No. 58 at 15. Whatever the reason for that, 21 the CDC is not stopping
him from buying a car (or renting or borrowing one), if exercising his right to interstate
travel is sufficiently important to him. 22
21 Mr. Wall appears to have obtained driver’s licenses in (at least) Massachusetts and the
District of Columbia, according to a published opinion from separate constitutional litigation brought
by Mr. Wall against the D.C. Department of Motor Vehicles, arising out of a dispute over a speeding
ticket in Maine. See Wall v. Babers, 82 A.3d 794, 797 n.4 (D.C. 2014).
22 On a recent talk-radio appearance, Mr. Wall described having recently traveled by car to
attend a family member’s funeral in Tampa. See Mid-Morning Coffee Break with Adam, at 44:30-
44:44 (July 26, 2021), http://radioshows.net/WWGH/ATCG-Lucas-Wall-072621.mp3. And on a
YouTube video, Mr. Wall suggested that flying is simply his preferred method of transportation, rather
than a necessity: “Folks say oh, well you could just drive. It’s like, well, that’s not the point. I don’t
want to drive. I want to fly.” CODE WIND TALK, Triplevibes Radio, 15:10-15:19, (Jul. 21, 2021)
available at https://www.youtube.com/watch?v=AWzx-VryzdA.
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b.
Plaintiff’s non-delegation claims are meritless (Counts 5 and 23).
Plaintiff asserts in Counts 5 and 23 that 42 U.S.C. § 264 is an unconstitutionally
broad delegation of legislative power, but “Congress does not violate the Constitution
merely because it legislates in broad terms.” Touby v. United States, 500 U.S. 160, 165
(1991). Instead, as long as Congress provides “an intelligible principle to which” the
agency “is directed to conform, such legislative action is not a forbidden delegation of
legislative power.” J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).
42 U.S.C. § 264 easily clears that low bar. Over the past century, the Supreme
Court has repeatedly upheld far broader (and vaguer) standards than this one. See, e.g.,
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 475-76 (2001) (“protect the public
health”); Touby, 500 U.S. at 166 (“imminent hazard to the public safety”) (citation
omitted); Nat’l Broad. Co. v. United States, 319 U.S. 190, 216 (1943) (“public interest”).
In fact, the Supreme Court has not invalidated a statute on nondelegation grounds
since 1935, Gundy, 139 S. Ct. at 2129 (plurality opinion), rehearing denied, 140 S. Ct.
579; the CDC’s authority to issue public-health orders necessary to prevent the spread
of disease during a global pandemic should not be the first. See, e.g., Big Time Vapes,
Inc. v. FDA, 963 F.3d 436, 447 (5th Cir. 2020) (rejecting nondelegation challenge under
existing Supreme Court precedent, because it is not the province of the lower courts to
“reexamine or revive the nondelegation doctrine”), cert. denied 2021 WL 2302098 (U.S.
June 7, 2021).
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c.
Plaintiff’s Due Process claim is meritless (Count 7).
Plaintiff brings what appears to be a Due Process Clause challenge to the fact
that (1) the CDC’s mask order allows for medical exemptions, but (2) leaves much of
the implementation of those exemptions to airlines, in the first instance. At the outset,
this claim fails because there is no evidence in the record that Mr. Wall has actually
attempted to take advantage of those exemption provisions—to the contrary, it is
undisputed that (at least with respect to his failed attempt to fly on June 2) he (1) did
not submit the exemption form in the time required by the airline, Compl. ¶ 57, (2) did
not provide the requisite documentation, ECF No. 50 at 3-4 (letter from Southwest),
and (3) has not filed any complaint with DOT. Plaintiff should not be heard to
complain of administrative procedures that he has not even tried to take advantage of.
Cf. Nat’l Advert. Co. v. City of Miami, 402 F.3d 1335, 1339-40 (11th Cir. 2005) (“claim is
not ripe” because plaintiff “never properly pursued its claim through the administrative
process” that was “made available to them”). At least theoretically, it is possible that
Mr. Wall could have received an exemption through those procedures, which
underscores why it would be inappropriate to review them in this abstract context.
In any event, even if Mr. Wall had fully pursued a medical exemption in good
faith and had still been denied, Plaintiff’s due process claims all fail for the lack of any
protected interest. Citing no authority, Plaintiff claims to have “constitutionally
protected liberty interests” in: (1) “being able to breath[e] without the obstruction a
face mask,” (2) “to make [his] own medical decisions without government
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interference,” (3) “to not have a policy imposed on [him] that results in numerous
adverse health effects,” and (4) his “purchased airline and other transportation tickets
that can’t be infringed upon by government mandates made contrary to the
Constitution, laws, and regulations.” Compl. ¶¶ 999-1000.
As for “being able to breath[e] without the obstruction a face mask,” id. ¶ 999,
that is not a liberty interest that is protected by the Constitution. Cf. Abdi, 942 F.3d at
1032 (being “reasonably encumbered” in one’s “ability to travel” “by only one mode
of transportation” does not violate due process); Klaassen, 2021 WL 3281209, at *1
(requirement “to wear masks” is “not constitutionally problematic”). As for his
“purchased” tickets, Mr. Wall purchased his (apparently refundable) tickets with full
awareness of the mask order, and in any event the mask order is not “contrary to the
Constitution, laws, and regulations,” Compl. ¶ 1000—and if it were, a Due Process
claim would be unnecessary. Mr. Wall can certainly still “make [his] own medical
decisions,” id. ¶ 999, but any such right does not extend to placing others at risk of
communicable diseases while traveling in interstate commerce. And there is no
constitutional right “to not have a policy imposed on [him],” id., that he thinks is
harmful—that is one of the basic tradeoffs of living in a society, with a government
that is authorized to make policy choices that individual citizens may not support.
Finally, even if this claim could somehow overcome Mr. Wall’s failure to
pursue the administrative process and the lack of any protected liberty or property
interest, the exemption process is fully satisfactory, leaving flexibility to airlines to
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implement on a case-by-case basis. And Mr. Wall is incorrect to suggest that allowing
private-sector entities to assist with implementation of a federal regulatory order (as
compared with delegating policymaking authority to a private actor) is either unusual or
unlawful. See, e.g., Cospito v. Heckler, 742 F.2d 72, 87 n.25 (3d Cir. 1984) (“[E]ven
Schechter, which is perhaps the furthest extension of the hostility to delegations of
authority to nonpublic organizations, acknowledges that Congress may seek private
assistance in ‘matters of a more or less technical nature.’” (quoting A.L.A. Schechter
Poultry Corp. v. United States, 295 U.S. 495, 537 (1935)).
d.
Plaintiff’s Tenth Amendment claim is meritless (Count 6).
The Tenth Amendment provides: “The powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people.” U.S. Const. amend X. The Tenth Amendment “is
essentially a tautology,” in that it “confirms that the power of the Federal Government
is subject to limits that may, in a given instance, reserve power to the States.” New
York v. United States, 505 U.S. 144, 157 (1992). Those limits on federal power,
however, are “not derived from the text of the Tenth Amendment itself,” but rather
derive from all of the other “limitations contained in the Constitution.” Id. at 156;
accord United States v. Darby, 312 U.S. 100, 124 (1941) (“The amendment states but a
truism that all is retained which has not been surrendered.”).
Plaintiff’s Tenth Amendment claim is thus largely duplicative of his other
claims. As discussed supra, Sections II(a), V(b), the CDC is exercising authority that
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has been properly delegated by Congress. So the only remaining question is whether
Congress has the constitutional authority to legislate to prevent the spread of
communicable disease, as it did in the Public Health Service Act.
That question answers itself: Congress may “regulate Commerce with foreign
Nations, and among the several States,” and “make all Laws which shall be necessary
and proper for carrying into Execution the foregoing Powers.” U.S. Const., art. I, s.
8, cl. 3 and 18. 42 U.S.C. § 264(a) falls squarely in that wheelhouse: it authorizes
measures that “are necessary to prevent the introduction, transmission, or spread of
communicable diseases from foreign countries into the States or possessions, or from
one State or possession into any other State or possession.” As that text makes clear,
this is a classic exercise of the interstate and foreign commerce powers (including as
supplemented by the Necessary and Proper Clause, to the extent necessary).
Plaintiff argues that “[m]ost modes of transportation . . . such as city buses,
school buses, subways, light rail, commuter trains, and rideshare cars never cross state
lines.” Compl. ¶ 994. Even if the premise were true, this is a curious argument for
Plaintiff to rely on—particularly in a facial challenge, arising out of his attempts to fly
across both state and international borders—but it ultimately does not matter that
some public conveyances do not cross state lines. What matters is that communicable
diseases do not respect borders, and thus especially in this context, even wholly
intrastate activity can “exert[] a substantial economic effect on interstate commerce,”
Wickard v. Filburn, 317 U.S. 111, 125 (1942)—as is obvious from the economic turmoil
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that COVID-19 has created. And Plaintiff’s basic argument—that wholly intrastate
activity is beyond the reach of the commerce power—was rejected long ago. See, e.g.,
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937) (cited favorably in Nat’l Fed.
of Indep. Bus. v. Sebelius, 567 U.S. 519, 551 (2012)). If wholly intrastate wheat
production may “be reached by Congress if it exerts a substantial economic effect on
interstate commerce,” Wickard, 317 U.S. at 125, then so can commercial air travel. 23
Plaintiff’s suggestions that the mask order violates the anti-commandeering
doctrine also lack merit. That doctrine places some limits on federal authority to
command state officers or state legislatures to create or operate a federal regulatory
program. See, e.g., Murphy v. NCAA, 138 S. Ct. 1461, 1475-79 (2018); Printz v. United
States, 521 U.S. 898, 933 (1997); New York, 505 U.S. at 144. Tellingly, no State has
raised such an objection, likely because the mask order does no such thing. And that
the order may incidentally require some state employees, like “drivers on school
buses,” Pl.’s MSJ at 22, to wear masks does not amount to commandeering.
Nor does it matter that some states have withdrawn prior mask mandates, or
tried to prohibit them as a matter of state law—if anything, that underscores the need
for a uniform federal policy, at least in the transportation sector. And as a legal matter,
“[a]s long as it is acting within the powers granted it under the Constitution,” the
23 Without much explanation, Plaintiff suggests that the mask order “regulat[es] noneconomic
intrastate activity,” Pl.’s MSJ at 21, presumably to try and squeeze within precedents like United States
v. Lopez, 514 U.S. 549 (1995). The premise is wrong: public transportation is economic activity
(literally requiring a commercial transaction, in most instances), but even if it were not, the spread of
COVID-19 has (obvious and massive) economic significance, and all of the challenged orders are
ultimately designed to reduce the spread of COVID-19.
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federal government “may impose its will on the States” by preempting conflicting state
enactments through the Supremacy Clause. Gregory v. Ashcroft, 501 U.S. 452, 460
(1991) (citing U.S. Const., art. VI, cl. 2). It has done so here, as explicitly authorized
by Congress. See 42 U.S.C. § 264(e) (preemption clause of the PHSA).
VI.
Plaintiff’s complaint violates the Federal Rules of Civil Procedure.
As other defendants have argued, see ECF Nos. 49, 82, Plaintiff’s complaint is
an impermissible “shotgun pleading”—not the “short and plain statement” required
by Federal Rule of Civil Procedure 8(a)(2). The complaint is 206 pages long, contains
1,085 paragraphs, and was accompanied by more than 1,000 pages of exhibits. To
make matters worse, the first 182 pages and 960 paragraphs comprise one omnibus
“Statement of Facts,” which apparently applies to 23 different counts, against all
defendants. See Compl. ¶ 961; but see Fed. R. Civ. P. 10(b); Jackson v. Bank of Am.,
N.A., 898 F.3d 1348, 1356 (11th Cir. 2018) (affirming dismissal of pleading that
“employs a multitude of claims and incorporates by reference all of its factual
allegations into each claim, making it nearly impossible for Defendants and the Court
to determine with any certainty which factual allegations give rise to which claims”). 24
The Eleventh Circuit has “condemned shotgun pleadings time and again,
and . . . [has] repeatedly held that a District Court retains authority to dismiss a
24 Those factual allegations stray far from the operative facts that are core to Mr. Wall’s
claims—everything from one-off stories about non-parties who believe they were treated rudely by
flight attendants, Compl. ¶¶ 482-85; to the lower risk of COVID-19 in children (even though Mr. Wall
is not a child and the mask order exempts young children), id. ¶ 837; to a high-school track-and-field
anecdote from Oregon, id. ¶¶ 843-45.
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shotgun pleading on that basis alone.” Jackson, 898 F.3d at 1357. And the Eleventh
Circuit has applied this rule to pro se plaintiffs. See, e.g., Arrington v. Green, 757 F. App'x
796, 797 (11th Cir. 2018) (per curiam). Accordingly, although Federal Defendants
believe this case can (and should) be resolved on the basis of the jurisdictional and
merits arguments above, in the alternative and at a minimum, the Court should dismiss
the complaint, without prejudice to re-filing in compliance with the Federal Rules.
VII. Plaintiff’s requested relief is overbroad.
Even if the Court were to disagree with all of Federal Defendants’ other
arguments, the relief that Plaintiff has requested here—that is, a “worldwide”
injunction, ECF No. 77 at 3, which would prevent enforcement of any of the
challenged orders, in any context, against anyone—is significantly overbroad.
As required both by Article III of the Constitution and traditional principles of
equity, “[a] plaintiff’s remedy must be tailored to redress the plaintiff’s particular
injury,” Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018), and “injunctive relief should be
no more burdensome to the defendant than necessary to provide complete relief to the
plaintiffs,” Madsen Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994) (quoting Califano
v. Yamasaki, 442 U.S. 682, 702 (1979)). Nationwide injunctions, by contrast, “take a
toll on the federal court system—preventing legal questions from percolating through
the federal courts, encouraging forum shopping, and making every case a national
emergency for the courts and for the Executive Branch.” Trump v. Hawaii, 138 S. Ct.
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2392, 2425 (2018) (Thomas, J., concurring). Accordingly, although all of Plaintiff’s
claims are meritless, at the most, any relief should be limited to Plaintiff himself. 25
Relatedly, should the Court determine that CDC committed procedural errors
under the APA (such as by failing to engage in notice and comment or by failing to
adequately explain its reasoning), the Court should at most remand to the agency
without vacatur. See Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Engr’s, 781 F.3d
1271, 1289-90 (11th Cir. 2015). The alleged procedural errors that Plaintiff relies on
could all be cured on remand, and even temporary (or partial) vacatur of these orders
could have disruptive and dangerous consequences.
CONCLUSION
For these reasons, Plaintiff’s claims against the Federal Defendants should be
dismissed (either for lack of subject-matter jurisdiction, or failure to state a claim). In
the alternative, summary-judgment should be entered for Federal Defendants on all
claims.
25 In addition, even a successful APA plaintiff is not typically entitled to an injunction. See,
e.g., Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165-66 (2010) (“If a less drastic remedy (such
as partial or complete vacatur of [the agency] decision) was sufficient to redress respondents’ injury,
no recourse to the additional and extraordinary relief of an injunction was warranted.”).
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Dated: August 9, 2021
Respectfully submitted,
BRIAN M. BOYNTON
Acting Assistant Attorney General
KARIN HOPPMANN
Acting United States Attorney
ERIC B. BECKENHAUER
Assistant Branch Director
By: /s/ Stephen M. Pezzi
MARCIA K. SOWLES
Senior Trial Counsel
STEPHEN M. PEZZI
Trial Attorney
United States Department of Justice
Civil Division
Federal Programs Branch
1100 L Street NW
Washington, DC 20005
Telephone: 202-305-8576
Email: stephen.pezzi@usdoj.gov
ADAM R. SMART
Assistant United States Attorney
USA No. 195
400 W. Washington Street, Suite 3100
Orlando, Florida 32801
Telephone: (407) 648-7500
Facsimile: (407) 648-7588
Email: adam.smart@usdoj.gov
Counsel for the Federal Defendants
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LOCAL RULE 3.01(g) CERTIFICATION
Pursuant to Local Rule 3.01(g), during the week of August 2, 2021, counsel for
the Federal Defendants conferred with Mr. Wall by phone and email, and with counsel
for all other parties by email.
Counsel for Defendants Greater Orlando Aviation Authority and Central
Florida Regional Transportation Authority each reported that they do not oppose the
relief requested in Federal Defendants’ motion to dismiss.
Plaintiff reported that he opposes most of the relief requested in Federal
Defendants’ motion to dismiss except that, per an agreement reached by all parties
during the meet and confer process, all parties (including Plaintiff) now consent to the
dismissal of Counts 2, 10, 13, 16, and 20. As a result of that agreement and Plaintiff’s
concession, Federal Defendants do not address those counts further in this filing.
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CERTIFICATE OF SERVICE
Although Plaintiff is proceeding pro se, he has been authorized by the Court to
use the CM/ECF system. ECF No. 14. Accordingly, Plaintiff will receive service of
this filing through the CM/ECF system.
/s/Stephen M. Pezzi
STEPHEN M. PEZZI
Trial Attorney
United States Department of Justice
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