Plaintiff’s Combined Reply and Opposition to Cross-Motion for Summary Judgment — Wall v. CDC (M.D. Fla.)

Record facts

U.S. District Court for the Middle District of Florida (Orlando Division) · No. 6:21-cv-00975-PGB-DCI · Doc. 130 · 2021-08-18 · Docket on CourtListener

Full text

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UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF FLORIDA 
ORLANDO DIVISION 
 
 
LUCAS WALL,  
 
 
 
 
 
 
 
: 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
: 
 
 
 
 
Plaintiff,  
 
 
 
 
 
 
 
 
 
: 
Case No. 6:21-cv-975-PGB-DCI 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
: 
 
 
v.  
 
 
 
 
 
 
 
 
 
 
 
 
: 
District Judge Paul Byron 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
: 
 
 
CENTERS FOR DISEASE   
 
 
 
: 
Magistrate Judge Daniel Irick 
CONTROL & PREVENTION et al.    
: 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
: 
 
 
Defendants.  
 
 
 
 
 
 
 
 
: 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
PLAINTIFF’S COMBINED BRIEF REPLYING TO FEDERAL  
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR  
SUMMARY JUDGMENT AS WELL AS OPPOSING THEIR CROSS- 
MOTION FOR SUMMARY JUDGMENT & MOTION TO DISMISS 
 
 
COMES NOW plaintiff, pro se, and files this combined brief (authorized by the 
Court at Doc. 105) in response to the Federal Defendants’1 88-page brief2 (Doc. 
125): 1) opposing my Motion for Summary Judgment (amended at Doc. 127-1); 2) 
cross-moving for summary judgment; and 3) moving to dismiss certain counts of 
the Complaint. The Federal Defendants unwisely chose to file dispositive motions 
on all 16 charges3 against them although there are some material facts in dispute. 
                                                 
1 The Federal Defendants named in this case are: Centers for Disease Control & Prevention, De-
partment of Health & Human Services, Transportation Security Administration, Department of 
Homeland Security, Department of Transportation, and President Joseph Biden. 
 
2 Doc. 125, inclusive of all parts, is 18 pages longer than the 70-page limit agreed to by the parties 
and allowed by the Court. Doc. 105. However, given my desire for the Court to rule on my Motion 
for Summary Judgment as expeditiously as possible, I will not quibble over the Federal Defend-
ant’s slight procedural violation. 
 
3 Counts 2, 10, 13, 16, & 20 were dismissed Aug. 9 by agreement of all parties. Doc. 126. 
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I. REPLY ARGUMENT ON MY MOTION FOR SUMMARY JUDGMENT 
ON COUNTS 1, 4-6, 9, 12, 19, & 22-23, & OPPOSING FEDERAL DE-
FENDANTS’ MOTIONS TO DISMISS & FOR SUMMARY JUDGMENT 
 
A. CDC lacks statutory authority for the FTMM & ITTR (Counts 4 & 22). 
 
 
The Federal Defendants’ major premise is that the Federal Transportation 
Mask Mandate4 and International Traveler Testing Requirement5 should be up-
held because “Congress has authorized … the Centers for Disease Control & Pre-
vention (‘CDC’) to adopt ‘such regulations as in [the agency’s] judgment are nec-
essary to prevent the introduction, transmission, or spread of communicable dis-
eases…” under 42 USC § 264(a). Doc. 125 at 1 (emphasis added). To start, it’s im-
portant to understand the statute authorizes the Department of Health & Human 
Services (“HHS”) secretary only to “make and enforce such regulations…” (em-
phasis added). The FTMM and ITTR are orders, not regulations. Therefore they 
are not authorized by the statute, regardless of how the Court interprets it. Orders 
have not been promulgated by Administrative Procedure Act (“APA”)-required 
procedures (proposed rulemaking, notice and comment, then final rulemaking). 
                                                 
 
4 The Federal Transportation Mask Mandate consists of: 1) Executive Order 13998, 86 Fed. Reg. 
7205 (Jan. 26, 2021); 2) Department of Homeland Security Determination 21-130 (Jan. 27, 2021); 
3) Centers for Disease Control & Prevention Order “Requirement for Persons To Wear Masks 
While on Conveyances & at Transportation Hubs,” 86 Fed. Reg. 8,025 (Feb. 3, 2021); 4) Trans-
portation Security Administration Security Directives 1542-21-01A, 1544-21-02A, and 1582/84-
21-01A (May 12, 2021); and 5) TSA Emergency Amendment 1546-21-01A (May 12, 2021). 
 
5 The International Traveler Testing Requirement is the CDC Order "Requirement for Negative 
Pre-Departure COVID–19 Test Result or Documentation of Recovery from COVID–19 for All Air-
line or Other Aircraft Passengers Arriving into the United States From Any Foreign Country," 86 
FR 7,387 (Jan. 28, 2021). It was mandated by “Executive Order Promoting COVID-19 Safety in 
Domestic & International Travel.” E.O. 13998, 86 Fed. Reg. 7205 (Jan. 26, 2021). 
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1. The Public Health Service Act doesn’t authorize the FTMM or ITTR. 
 
Even if § 264(a) authorized HHS to issue orders as opposed to promulgating 
regulations, the government’s argument about its scope ignores that six federal 
courts6 have disagreed with CDC’s interpretation of the Public Health Service Act 
(“PHSA”). And the only court to tentatively concur with CDC’s position7 was essen-
tially overturned by the Supreme Court.8 “[T]he Supreme Court’s recent decision 
in this case strongly suggests that the CDC is unlikely to succeed on the merits.” 
Alabama Ass’n of Realtors, No. 20-cv-3377 (D.D.C. Aug. 13, 2021). The 11th Circuit 
also strongly signaled it disagrees with CDC’s broad reading of § 264(a).9 “[A]n 
administrative agency’s power to regulate in the public interest must always be 
grounded in a valid grant of authority from Congress. … Courts must be guided by 
a degree of common sense as to the manner in which Congress is likely to delegate 
a policy decision of such economic and political magnitude to an administrative 
agency.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 151 (2000). 
 
This Court two months ago declared CDC’s interpretation of § 264(a) dead 
wrong, using strong language to condemn the agency for acting unlawfully:  
                                                 
6 Tiger Lily v. HUD, No. 2:20-cv-2692, 2021 WL 1171887 (W.D. Tenn. Mar. 15, 2021); Tiger Lily 
v. HUD, No. No. 21-5256 (6th Cir. July 23, 2021); Alabama Ass’n of Realtors v. HHS, No. 20-cv-
3377 (D.D.C. May 5, 2021); Skyworks v. CDC, No. 5:20-cv-2407 (N.D. Ohio March 10, 2021); 
Terkel v. CDC, No. 6:20-cv-564, 2021 WL 742877 (E.D. T Feb. 25, 2021); and State of Florida v. 
Becerra, No. 8:21-cv-839-SDM-AAS (M.D. Fla. June 18, 2021). 
 
7 Alabama Ass’n of Realtors v. HHS, No. 21-5093 (D.C. Cir. June 2, 2021)  
 
8 Alabama Ass’n of Realtors v. HHS, No. 20A169 (June 29, 2021) 
 
9 Brown v. HHS, No. 20-14210 (11th Cir. July 14, 2021) 
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“[N]ever has CDC implemented measures as extensive, disabling, and ex-
clusive as those under review in this action. However, in this action CDC 
claims a startlingly magnified power. … CDC’s assertion of a formidable and 
unprecedented authority warrants a healthy dose of skepticism. … Both text 
and history confirm that the conditional sailing order exceeds the authority 
granted to CDC by Section 264(a). And if Section 264 fails to confer the stat-
utory authority for the conditional sailing order, the regulations implement-
ing Section 264 can grant no additional authority. State of Florida v. 
Becerra, No. 8:21-cv-839-SDM-AAS (M.D. Fla. June 18, 2021). 
 
 
The 11th Circuit just addressed CDC’s powers under § 264(a). Although not a 
merits decision, the dissenting judge on a 2-1 panel concluded CDC exceeded its 
authority by ordering a nationwide Eviction Moratorium due to COVID-19. And 
the two judges who denied a preliminary injunction wrote: “We have doubts about 
the district court’s ruling on the first factor: whether the plaintiffs are likely to suc-
ceed on the merits. ... the second sentence of § 264(a) appears to clarify any ambi-
guity about the scope of the CDC’s power under the first.” Brown v. HHS, Doc. 109.  
“The judiciary is the final authority on issues of statutory construction and 
must reject administrative constructions which are contrary to clear con-
gressional intent. If a court, employing traditional tools of statutory con-
struction, ascertains that Congress had an intention on the precise question 
at issue, that intention is the law and must be given effect.” Chevron v. Nat-
ural Resources Defense Council, 467 U.S. 837 (1984). 
 
 
The Federal Defendants and I agree that “Congress has directly spoken to this 
precise question at issue. … Here, only Chevron’s first step is necessary…” Doc. 125 
at 28. Congress has never enacted a law authorizing a national mask mandate or 
international testing requirement. The PHSA confers no such authority. Therefore, 
the FTMM and ITTR are ultra vires. The Court need not given any deference to the 
agencies’ interpretation. It’s laughable for the Federal Defendants to claim that 
“conventional sanitation measures” include “masking.” Id. There is no evidence 
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that any federal agency has ever in the history of this nation required masking in 
any scenario. And maskwearing certainly does not comport to the statute’s allow-
ance for CDC to require the “sanitation … of animals or articles found to be so in-
fected or contaminated as to be sources of dangerous infection to human beings.” 
42 USC § 264(a). Wearing a mask does not reduce the transmission of viral parti-
cles (Index at Ex. 103) and the statute directs that any “sanitation” be directed at 
“animals or articles,” not the faces of human beings. The use of the exact words 
“human beings” in the same sentence of § 264(a) conclusively shows Congress did 
not conceive the word “animals” as including humans. Plus “sanitation” measures 
may be directed solely to things “found to be so infected or contaminated…,” not 
at every single person (the vast majority of which do not have coronavirus).  
 
Likewise the government’s ITTR argument fails because it is an order, not a 
regulation; and § 264(a) authorizes “inspection … of animals or articles found to 
be so infected or contaminated as to be sources of dangerous infection to human 
beings.” Humans are not animals or articles, and the testing is directed at all in-
ternational air passengers, not those “found to be so infected or contaminated” 
with a disease. Even if the statute did authorize such “inspection,” the government 
admits it would only be allowed for “arriving passengers,” not those air travelers 
departing foreign nations. Doc. 125 at 54. And I do directly challenge 42 CFR § 
71.32(b) as again it applies only to arriving transportation carriers. 
“[§ 264(a)] does not grant the CDC the power it claims. … [T]he first sen-
tence grants the Secretary rulemaking authority. But that authority is not as 
capacious as the government contends. When we interpret statutes, we 
must give effect to each clause and word. … Plainly, the second sentence 
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narrows the scope of the first. … There is no clear expression of congres-
sional intent in § 264 to convey such an expansive grant of agency power, 
and we will not infer one. … [CDC’s] interpretation is both textually implau-
sible and constitutionally dubious.” Tiger Lily v. HUD, No. 21-5256 (6th 
Cir. July 23, 2021). 
 
 
All courts that have reviewed CDC’s pandemic policies promulgated under § 
264(a) (including this Court) have reached the same conclusion I urge here, disa-
greeing with the Federal Defendants’ argument that the specific measures CDC 
may take enumerated in § 264(a)  “are illustrative, not exhaustive.” Doc. 125 at 29. 
The Congressional Research Service (“CRS”) advised the House and Senate that 
“mask wearing is arguably dissimilar to the specific measures listed in” § 264(a). 
Ex. 159. In the context of cruiseships, this Court agreed. 
“[T]he [PHSA] codifies the limited regulatory power typical of preventing 
diseases caused by a discrete item or a person at a major port of entry. … 
The text of the [PHSA] lends support to a narrower quarantine power for 
CDC. … The second sentence of Section 264(a) discloses, illustrates, exem-
plifies, and limits to measures similar in scope and character the measures 
contemplated and authorized by Congress when enacting the statute. Yates 
v. United States, 574 U.S. 528, 546 (2015) (applying specific statutory terms 
to cabin the meaning of a broad statutory term).” State of Florida. 
 
 
The government’s claim that “cases caused by the Delta variant of COVID-19 
are surging” (Doc. 125 at 2) is irrelevant to the Court’s determination that CDC 
exceeded its statutory authority. If anything, this “surge” proves the FTMM and 
ITTR are failed policies.10 If masks and testing are effective, then why do we read 
                                                 
10 Defendant CDC’s claim that it has “unquestionable public-health expertise” (Doc. 125 at 34) is 
dubious. CDC has been under constant attack by numerous scientists, doctors, politicians, and 
the general public for its terrible decisionmaking regarding COVID-19 that has allowed the pan-
demic to claim more than a half-million American lives. “18 months of ever-changing pandemic 
messaging have left Americans skeptical of public health advice.” Ex. 184. 
 
I could flood the Court with thousands of documents and articles wherein CDC’s supposed 
“expertise” is severely questioned. But it’s sufficient to refer it to the 115 scientific studies and 
medical articles I’ve submitted into evidence indexed at Ex. 103 plus Exs. 15 & 122. 
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that the U.S. “could soon see more than 200,000 new cases of COVID-19 every 
day…”? Ex. 183. This Court shall not allow the government’s fearmongering. Alt-
hough coronavirus cases are rising, the most important metric (deaths) continues 
falling to new lows. Ex. 185. Congress has not passed any law authorizing the 
FTMM or ITTR, and CDC lacks any statutory authority to issue these orders, there-
fore the Court need not consider what the current state of the pandemic is.  
 
Furthermore, 42 USC §§ 264(b)-(d) grants CDC power “for the apprehension, 
detention, and conditional release of individuals to prevent the introduction or 
spread of communicable diseases.” Ex. 161. No authority exists for CDC to require 
masks or anything beyond temporary detention. CDC’s prior use of § 264 confirms 
this: “Until the COVID-19 pandemic, the CDC primarily invoked its Section [264] 
authority to issue and refine regulations relating to quarantine and isolation,” ac-
cording to CRS. Id. “The Public Health Service Act grants the CDC powers to detain 
and medically examine potentially infected persons arriving into the United States 
and traveling between states, but this authority is unlikely to extend to regulatory 
actions such as requiring masks.” Ex. 172. 
 
2. Congress has not enacted a mask mandate or testing requirement. 
 
If Congress believes it needs to pass a mask mandate or testing requirement, it 
could do so (although such actions would still be subject to legal challenges). Even 
though advised by CRS it should consider it, Congress has not taken any action 
during the pandemic to make laws mandating masks or requiring international 
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flyers get tested for COVID-19. “[T]he scope of federal agencies’ existing statutory 
authority to mandate masks … is an open legal question. If Congress wishes to 
eliminate uncertainty over the scope of federal agencies’ statutory authority to im-
plement and enforce public health measures in the transportation sector, Congress 
could consider legislation that expressly authorizes or precludes such measures.” 
Ex. 159. A “federal public health order may implicate major economic or political 
questions … Congress may need to act legislatively, within constitutional limits, to 
supply the necessary additional authority.” Ex. 161. 
 
Congress has not “prudently delegated broad authority to the CDC to take rea-
sonable public-health measures to prevent the spread of communicable disease.” 
Doc. 125 at 2. Even if Congress did, it “would run into both constitutional and prac-
tical hurdles.” Ex. 4. Congress has vigorously debated mask mandates but failed to 
pass a single one. In fact, many lawmakers have pushed to terminate the CDC man-
date. Doc. 1 at ¶¶ 339-353; Docs. 83-8, -10, & -12; Exs. 108-113. There’s a huge 
dispute in the House of Representatives over its mask mandate, which has led to 
litigation. Ex. 114. The Supreme Court has ruled that on questions of “deep eco-
nomic and political significance,” an agency’s interpretation of a statute must be 
scrutinized. “Because the statute did not expressly delegate that decision to the 
agency, the Court gave no deference to the agency’s interpretation and analyzed 
the statute independently of the agency’s position.” Ex.  158, cf. King v. Burwell, 
135 S. Ct. 2480, 2489 (2015). “CDC claims authority to impose nationwide any 
measure, unrestrained by the second sentence of Section 264(a), to reduce to ‘zero’ 
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the risk of transmission of a disease – all based only on the director’s discretionary 
finding of ‘necessity.’ That is a breathtaking, unprecedented, and acutely and sin-
gularly authoritarian claim.” State of Florida. 
 
3. The FTMM and ITTR are motivated by politics unsupported by law. 
 
The FTMM and ITTR are about politics, not public health. “There appears to be 
no legal authority that would allow a US president to enact a nationwide mask 
mandate.” Ex. 4. Defendant Biden, when campaigning for the presidency last year, 
pledged to impose by fiat a nationwide mask mandate anyway. Ex. 1. “He even said 
in his acceptance speech at the Democratic National Convention that a mask man-
date would be part of his national strategy to fight … coronavirus…” Ex. 12. 
 
But Defendant Biden later admitted Sept. 6, 2020, he had no power to do it: 
“[T]here’s a constitutional issue whether the federal government could issue such 
a mandate. I don’t think constitutionally [it] could,” Biden said. Video at 
Ex. 2 (emphasis added); Exs. 6 & 12. “I wouldn't issue a mandate,” Biden 
added, “but I’d plead with [people to cover their faces], I’d carry my mask with me 
everywhere I go…” Ex. 12 (emphasis added); Ex. 163. 
 
But then Defendant Biden acted in bad faith by signing the FTMM and ITTR 
executive order Jan. 21, 2021, (his second day in office) anyway – just as he 
thumbed his nose at the Constitution and the Judicial Branch earlier this month in 
allowing Defendant CDC to extend the Eviction Moratorium even though the        
Supreme Court ruled it would have to be authorized by new congressional              
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legislation11  – and the president himself said numerous times publicly that extend-
ing the moratorium would be illegal. 
 
“Until he backtracked in September, Biden had been promising that he would 
‘do everything possible’ from ‘an executive standpoint’ to ‘make it required that 
people had to wear masks in public.’” Ex. 5. Legal scholars, CRS, and a former 
CDC director agree with my argument that the PHSA “does not give the CDC much 
power beyond quarantining infected individuals.” Ex.  3. “This authority is unlikely 
to extend to regulatory actions such as requiring masks,” they wrote. Id. Others 
said: “NFIB v. Sebelius would not allow the federal government to require people 
to put on a mask.” Ex. 7.  
 
The Federal Defendants’ bad-faith actions in imposing the FTMM and ITTR 
have resulted in devastating consequences for the tens of millions of Americans 
such as myself who medically can’t – or simply don’t want to – cover our faces and 
refuse to pay for an unnecessary and illegal COVID-19 test12 prior to flying home. 
The ITTR violates international law: “No one shall be arbitrarily deprived of the 
right to enter his own country.” International Covenant on Civil & Political Rights 
Art. 12 § 4, Treaty Doc. 95-20 (ratified by the Senate April 2, 1992). Ex. 166. 
 
4. The FTMM and ITTR are not necessary or based on science. 
 
To sustain the government’s interpretation, the Court would have to first find 
                                                 
11 Alabama Ass’n of Realtors v. HHS, No. 20A169 (June 29, 2021) 
 
12 The cost of the test is irrelevant. Even if the test cost a penny, if it’s not authorized by law, it still 
must be vacated. Many COVID-19 tests cost upward of $150-200 in various countries. 
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that an “order” is “regulation,” then agree with Defendant HHS secretary’s deter-
mination that the FTMM is “necessary.” 42 USC § 264(a). But the scientific evi-
dence shows otherwise: Masks do nothing to prevent coronavirus spread but harm 
human health. See discussion in the Complaint, Doc. 1 at ¶¶ 513-855; see also the 
115 scientific studies and medical articles I’ve submitted indexed at Ex. 103. The 
FTMM and ITTR are not “necessary,” “reasonable,” or “science-based.” “[O]rder-
ing masks to stop Covid-19 is like putting up chain-link fencing to keep out mos-
quitos.” Ridgeway Properties v. Beshear, No. 20-CI-678 (Ky. Cir. June 8, 2021); 
Ex. 216. 
 
Canadian arbitrators found twice in favor of the Ontario Nurses Association, 
which challenged policies at various hospitals requiring certain staff wear masks. 
In lengthy decisions, both concluded science doesn’t support forced masking. 
“ONA has established, on its own evidence and through the admissions of the [hos-
pital] experts in cross-examination, that there is scant scientific evidence … of the 
use of masks in reducing the transmission of influenza virus to patients.” 2015 Can-
LII 55,643 (ON LA); Ex. 175. “I also find that the weight of scientific evidence said 
to support the [Vaccine or Mask] Policy on patient safety grounds is insufficient to 
warrant the imposition of a mask-wearing requirement for up to six months every 
year.” 2018 CanLII 82,519 (ON LA); Ex. 176. 
 
The only thing “necessary” about HHS secretary’s finding was that he was 
forced to do it because his boss, Defendant Biden, needed to fulfill a campaign 
promise. CDC itself admits a mask does “NOT provide the wearer with a reliable 
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level of protection from inhaling smaller airborne particles and is not considered 
respiratory protection.” Ex. 124. A top CDC official acknowledged “we mask be-
cause it's the way we take care and express our concern for each other” – not be-
cause masks stop the spread of COVID-19. Ex. 125. 
 
The FTMM and ITTR are not “comparatively minor imposition[s]” – they have 
stopped tens of millions of Americans including myself from using any form of 
public transportation since Feb. 1. Justice Kavanaugh cited this case in his June 29 
concurring opinion on the eviction moratorium in ruling that CDC lacks the au-
thority it claims under 42 USC § 264(a):  
“EPA’s interpretation is also unreasonable because it would bring about an 
enormous and transformative expansion in EPA’s regulatory authority 
without clear congressional authorization. When an agency claims to dis-
cover in a long-extant statute an unheralded power to regulate a significant 
portion of the American economy, we typically greet its announcement with 
a measure of skepticism. We expect Congress to speak clearly if it wishes to 
assign to an agency decisions of vast economic and political significance. … 
An agency has no power to tailor legislation to bureaucratic policy goals by 
rewriting unambiguous statutory terms. … We reaffirm the core adminis-
trative-law principle that an agency may not rewrite clear statutory terms to 
suit its own sense of how the statute should operate.” Utility Air Regulatory 
Group v. EPA, 573 U.S. 302 (citations and quotation marks omitted). 
 
 
5. There’s no regulatory authority for the FTMM or ITTR. 
 
Regulations cited by the Federal Defendants don’t help their case at all. When 
“the measures taken by health authorities of any State … are insufficient to prevent 
the spread of any of the communicable diseases … [the CDC director] may take 
such measures to prevent such spread of the diseases … including … sanitation … 
of animals or articles believed to be sources of infection.” 42 CFR § 70.2. First, the 
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director did not issue a determination that measures taken by the health authori-
ties of any specific state are insufficient. Also, like the statute, the regulation only 
allows sanitation “of animals or articles,” not measures such as forced masking and 
testing directed at human beings. 
 
42 CFR § 71.31(b) likewise provides no authority for the FTMM or ITTR. This 
provision states the CDC director “may require detention of a carrier until the com-
pletion of the measures outlined in this part that are necessary to prevent the in-
troduction or spread of a communicable disease.” This applies after a plane or ship 
arrives in the United States. It does not authorize masking during the trip nor pre-
departure virus testing. The government also points to 42 CFR § 71.32(b), which 
allows CDC’s director when he/she “has reason to believe that any arriving car-
rier or article or thing on board the carrier is or may be infected or contami-
nated with a communicable disease, he/she may require detention, disinfection, 
disinfestation, fumigation, or other related measures…” (emphasis added). A hu-
man being is not a transportation “carrier” nor an “article or thing.” And the reg 
only applies to an arriving transportation carrier. No authorization for masking or 
pre-departure testing can be found here. The title of this subpart confirms my con-
tentions: “42 CFR Subpart D – Health Measures at U.S. Ports: Communicable Dis-
eases.” The regs apply only upon arrival at U.S. ports of entry, not to pre-departure 
testing or in-transit masking. Finally, the other three regs cited (42 CFR §§ 70.3, 
70.6, and 70.12) only apply to “A person who has a communicable disease,” not 
every single person traveling on any form of public transportation. 
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B. Even if CDC had the statutory and/or regulatory authority it claims 
to impose the FTMM and ITTR, the orders would be an unconstitu-
tional delegation of legislative power (Counts 5 & 23). 
 
 
The way Defendants HHS and CDC interpret their authority under 42 USC § 
264(a), they could impose any policy upon all Americans that they deem “neces-
sary” to protect public health. That is obviously not “an intelligible principle” Con-
gress has given the Executive Branch. Hence if the Court somehow agrees with the 
government’s reading of the PHSA (which no federal court has done so far during 
the pandemic), it would be an unconstitutional improper delegation of legislative 
power. “The Supreme Court has interpreted this constitutional requirement, under 
the nondelegation doctrine, as generally prohibiting Congress from delegating its 
legislative power to another branch,” according to CRS. Ex. 161, cf. Mistretta v. 
United States, 488 U.S. 361, 371–72 (1989); see also Gundy v. United States, 139 
S. Ct. 2116, 2123 (2019) (plurality). 
 “Were we to recognize the authority claimed by EPA in the Tailoring Rule, 
we would deal a severe blow to the Constitution’s separation of powers. Un-
der our system of government, Congress makes laws and the President, act-
ing at times through agencies like EPA, faithfully executes them. The power 
of executing the laws necessarily includes both authority and responsibility 
to resolve some questions left open by Congress that arise during the law’s 
administration. But it does not include a power to revise clear statutory 
terms that turn out not to work in practice. … We are aware of no principle 
of administrative law that would allow an agency to rewrite such a clear stat-
utory term, and we shudder to contemplate the effect that such a principle 
would have on democratic governance.” Utility Air Regulatory Group (ci-
tations and quotation marks omitted). 
 
 
This Court recently spoke on this precise issue:  
“This practically unbounded interpretation causes separation-of-powers 
problems, discussed in greater depth below, and naturally stirs suspicion 
about the constitutionality of Section 264(a). … Forbidding that sort of del-
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egation seems the least that is required by, and the least that is unmistaka-
bly implicit in, the Constitution’s bestowing the entire legislative power on 
the legislative branch. … Unaccountable administrative law, unbounded by 
ascertainable directives from the legislative branch, is not the product of an 
ascendant and robust constitutional republic.” State of Florida. 
 
 
So have other courts: 
“[T]o put extra icing on a cake already frosted, the government’s interpre-
tation of § 264(a) could raise a nondelegation problem. Under that inter-
pretation, the CDC can do anything it can conceive of to prevent the spread 
of disease. That reading would grant the CDC director near-dictatorial 
power for the duration of the pandemic, with authority to shut down entire 
industries as freely as she could ban evictions. In applying the nondelega-
tion doctrine, the degree of agency discretion that is acceptable varies ac-
cording to the scope of the power congressionally conferred. Such unfet-
tered power would likely require greater guidance than ‘such regulations as 
in his judgment are necessary to prevent the introduction, transmission, or 
spread of communicable diseases.’” Tiger Lily (6th Cir. July 23, 2021) (ci-
tations and quotation marks omitted). 
 
 
C. The FTMM and ITTR must be vacated for failing to abide by APA’s 
notice-and-comment requirement (Counts 1 & 19). 
 
 
The Federal Defendants incorrectly argue the FTMM and ITTR are not subject 
to APA’s notice-and-comment requirements and that there was “good cause to pro-
ceed without notice and comment given the urgent circumstances… In addition, 
any error was harmless.” Doc. 125 at 46. “Rules that carry the force and effect of 
law are known as legislative rules.” Ex. 157. “Legislative rules have the ‘force and 
effect of law’ and may be promulgated only after public notice and comment. INS 
v. Chadha, 462 U.S. 919, 986…” Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243, 
250 (D.C. Cir. 2014). The FTMM and ITTR carry severe legal consequences includ-
ing fines and refusal to allow boarding of flights, buses, trains, etc. They are not 
interpretive rules or policy statements that can evade public comment. Ex. 157. 
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16
 
The FTMM and ITTR are not “emergency action[s] taken under the existing 
authority” of the PHSA and its underlying regulations. As this Court explained in 
June, COVID-19 began in December 2019 and was declared a global pandemic in 
March 2020. The Federal Defendants had nearly 11 months to put the FTMM and 
ITTR through APA’s required notice-and-comment procedures, but failed to do so. 
Their inaction and procrastination does not constitute an “emergency.” The only 
“emergency” was the inauguration of a new president, Defendant Biden, who for 
purely political reasons demanded the illegal and unconstitutional policies be put 
into place swiftly without hearing from the public as the APA demands. 
“[T]he conditional sailing order carries identifiable legal consequences, 
such as the prospect of criminal penalties, substantial fines, and suspension 
of sailing. … the conditional sailing order carries the force of law and bears 
all of the qualities of a legislative rule. Accordingly, the conditional sailing 
order’s prospective, generalized application invites the conclusion that the 
order is a ‘rule.’ In plain words, if it reads like a rule, is filed like a rule, is 
treated like a rule, and imposes the consequences of a rule, it’s probably a 
rule. Because the conditional sailing order is a rule, CDC was obligated to 
follow the procedures applying to the promulgation of a rule…” Id. 
 
 
Likewise the FTMM and ITTR carry the prospect of severe penalties. Myself and 
tens of millions of other Americans have been banned from using any form of pub-
lic transportation nationwide. Wall Decl. at Doc. 83-1; Declarations of 33 passen-
gers and flight attendants indexed at Ex. 187. Any U.S. citizen who refuses to sub-
mit a negative COVID-19 test before boarding a flight to the United States is 
banned from entering our own country.  
“The conditional sailing order is a rule … The APA therefore obligates CDC 
to treat the conditional sailing order as a rule and to provide notice and 
comment. 5 U.S.C. § 553(b). To satisfy its notice-and-comment obligations 
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17
under the APA, ‘an agency must consider and respond to significant com-
ments received during the period for public comment.’ Perez v. Mortg. 
Bankers Ass’n, 575 U.S. 92, 96 (2015). Therefore, the conditional sailing or-
der violates the APA…” State of Florida. 
 
 
The FTMM and ITTR were not authorized under 42 USC § 264(a) or 42 CFR § 
70.2, 71.31(b), or 71.32(b). Therefore the government’s argument that the policies 
didn’t require notice and comment is far-fetched. Likewise, the government can’t 
claim the “good cause” exemption found in 5 USC § 553(b)(3)(B) because it can’t 
self-create an “emergency” 10½  months into a declared pandemic. Had CDC 
promulgated as regulations the FTMM and ITTR in March 2020 rather than Jan-
uary 2021, perhaps the Court could have excused the failure to provide notice and 
comment. But the law does not consider public comment for orders imposed nearly 
11 months into a health emergency as “impracticable” or “unnecessary.” This is not 
acting “quickly.” Delay would not have resulted in any “serious harm.” As the gov-
ernment admits, COVID-19 is again surging out of control despite the FTMM and 
ITTR – proving these policies have failed and were not in the public interest. The 
government’s beg for a “good cause” exception would be more plausible if the pol-
icies actually worked. Like masks themselves, the evidence is clear: they don’t. 
“Precedent demonstrates how infrequently the exception should receive ac-
ceptance. See, e.g., Am. Fed’n of Gov’t Emp., AFL-CIO v. Block, 655 F.2d 
1153, 1158 (D.C. Cir. 1981) (‘[A]dministrative agencies should remain con-
scious that such emergency situations are indeed rare.’); N. Carolina Grow-
ers’ Ass’n, Inc. v. United Farm Workers, 702 F.3d 755, 767 (4th Cir. 2012) 
(explaining that the circumstances permitting reliance on the ‘good cause’ 
exception are exceedingly ‘rare’). … The ‘good cause’ exception, ‘narrowly 
construed and only reluctantly countenanced,’ Mack Trucks, Inc. v. EPA, 
682 F.3d 87, 93 (D.C. Cir. 2012) (quoting Util. Solid Waste Activities Grp. 
v. EPA, 236 F.3d 749, 754 (D.C. Cir. 2001)), excuses the APA’s notice-and-
comment procedures in an ‘emergency situation.’ Jifry v. FAA, 370 F.3d 
1174, 1179 (D.C. Cir. 2004).” State of Florida.  
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The Court should ignore the suggestion that “any notice-and-comment error 
was harmless.” Doc. 125 at 47. Tell that to the tens of millions of Americans such 
as myself who are banned from using public transportation or even entering our 
own country because of the FTMM and ITTR. An exception for the ITTR does 
not apply because testing Americans flying home hardly qualifies as a “foreign af-
fairs function of the United States.” Doc. 125 at 57. It involves no relations with the 
governments of other nations. 
 
The Federal Defendants falsely state that “Plaintiff never even attempts to ex-
plain what he would have said during a comment process, let alone how that could 
have made a difference in the outcome…” Id. at 48. I know my Complaint is long, 
but you think the government would have read it before making false allegations: 
“[T]he agency failed to consider numerous problems associated with mask 
wearing including: (1) data showing states without mask mandates suffered 
fewer deaths than states that imposed such requirements; (2) the FTMM is 
out of step with the current policies of numerous private businesses who no 
longer require their customers cover their faces; (3) requiring masks in the 
transportation sector leads to widespread chaos in the skies and on the 
ground, endangering aviation and transit safety; (4) the FTMM unlawfully 
discriminates against travelers such as myself who can’t wear a face cover-
ing due to a disability; (5) the gargantuan amount of scientific and medical 
evidence showing that masks have proven to be totally ineffective in reduc-
ing COVID-19 spread and deaths; (6) scientists have known for a long time 
that masks aren’t effective in reducing transmission of respiratory viruses; 
(7) masks pose serious health risks to humans forced to wear them; (8) 
many experts consider forcing kids to wear masks child abuse; (9) masks 
have contributed to a surge in serious crime; (10) masks contribute to the 
huge problem of racism in America; (11) masks are damaging the environ-
ment; (12) unlike masks, vaccines are extremely effective in reducing 
COVID-19 infections and deaths; (13) people who have recovered from 
COVID-19 have long-lasting immunity; and (14) airplane cabins pose little 
risk for coronavirus spread and there have been few, if any, reports of wide-
spread coronavirus spread on aircraft. These problems could have come to 
light if Defendant CDC followed the APA’s notice-and-comment require-
ments prior to ordering the FTMM.” Doc. 1 at ¶ 981. 
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“[B]ald assertions that the agency does not believe comments would be useful 
cannot create good cause to forgo notice-and-comment procedures.” Action on 
Smoking & Health v. Civil Aeronautics Bd., 713 F.2d 795, 800 (D.C. Cir. 1983); see 
also Nat. Res. Def. Council v. Evans, 316 F.3d 904, 906 (9th Cir. 2003). Finally, 
the Federal Defendants are disingenuous when claiming “a medical exemption for 
those with disabilities who cannot wear a mask safely [] is already provided by the 
[FTMM].” Doc. 125 at 48. As explained in detail throughout the Complaint, the 
mask mandate allows airlines to violate the Air Carrier Access Act (“ACAA”) by 
requiring numerous hurdles for a disabled person to jump through that aren’t al-
lowed under Defendant Department of Transportation (“DOT”) regulations, mak-
ing it pretty much impossible for anyone with a medical condition who can’t toler-
ate wearing a mask to get such an exemption. Declarations indexed at Ex. 187. 
 
D. The FTMM must be vacated because it violates the 10th Amendment 
(Count 6). 
 
 
Defendant CDC is not exercising authority that “has been properly delegated by 
Congress.” Doc. 125 at 66. Even if it were, the FTMM runs afoul of the 10th Amend-
ment because it applies to noncommercial intrastate transportation and comman-
deers state employees to enforce a federal order. The mandate also overrules state 
laws prohibiting anyone from wearing a mask in public (to prevent crime). For ex-
ample, South Carolina, which never imposed a statewide mask mandate, makes it 
illegal for any person over 16 to conceal their identity in public. Ex. 173. Although 
it’s true no state has sued to overturn the FTMM, that doesn’t mean there aren’t 
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numerous states who oppose it and/or refuse to enforce it.13 In fact, there are pres-
ently 40 states that don’t enforce a mask mandate. Ex. 107. Of these, only five are 
as extreme as the FTMM in requiring the fully vaccinated don masks. 
“Our reading of the statute’s text accords with the principle that Congress 
does not casually authorize administrative agencies to interpret a statute to 
push the limit of congressional authority. That principle has yet greater 
force when the administrative interpretation alters the federal-state frame-
work by permitting federal encroachment upon a traditional state power” 
such as public health and intrastate transportation. “Agencies cannot dis-
cover in a broadly worded statute authority to supersede state … law. In-
stead, Congress must ‘enact exceedingly clear language if it wishes to signif-
icantly alter the balance between federal and state power and the power of 
the Government over private property’” such as rideshare cars and privately 
owned buses, trains, ferries, airplanes, etc. Tiger Lily (6th Cir. July 23, 
2021). 
 
 
“[P]ublic health powers belong to the states, not the federal government,” said 
Lawrence Gostin, director of Georgetown University’s O'Neill Institute for Na-
tional & Global Health Law. “The federal government couldn’t implement its own 
mask mandates, nor could it force the states to do it.” Ex. 163. When an “adminis-
trative interpretation alters the federal-state framework by permitting federal en-
croachment upon a traditional state power,” there must be “a clear indication that 
Congress intended that result.” Solid Waste Agency of N. Cook Cnty. v. U.S. Army 
Corps of Eng’rs, 531 U.S. 159, 172-73 (2001). “[T]he regulation of health and safety 
matters is primarily, and historically, a matter of local concern. See Rice v. Santa 
Fe Elevator Corp., 331 U.S. at 230.” Hillsborough County v. Automated Medical 
Labs, 471 U.S. 707, 720 (1985). 
                                                 
13 These include Florida (Doc. 1 at Ex.  55), Utah (Id. at Ex.  71), Texas (Id. at Exs. 72-73; Ex.  116), 
Arizona (Doc. 1 at Ex. 74), South Carolina (Id. at Ex. 75), New Hampshire (Ex. 11), South Dakota 
(Ex. 104), North Dakota (Ex. 105), Mississippi (Ex. 106), and Tennessee (Ex. 218). 
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“The power to quarantine and take even more stringent measures in the 
name of public health has belonged largely to the states for nearly 200 years. 
In 1824, the Supreme Court drew a dear line in Gibbons v. Ogden between 
the state and federal governments when it came to regulating activities 
within and between states. In a unanimous ruling, then-Chief Justice John 
Marshall cited the 10th Amendment in saying that police powers are largely 
reserved to states for activities within their borders” such as intrastate 
transportation, according to the American Bar Association (“ABA”). Ex.  171.  
 
“[U]nder the U.S. Constitution’s 10th Amendment and U.S. Supreme Court 
decisions over nearly 200 years, state governments have the primary au-
thority to control the spread of dangerous diseases within their jurisdic-
tions. The 10th Amendment, which gives states all powers not specifically 
given to the federal government, allows them the authority to take public 
health emergency actions, such as setting quarantines and business re-
strictions,” according to ABA. Ex.  168. 
 
 
The Federal Defendants try to get around the problem of enforcing a national 
mask mandate by unconstitutionally commandeering state officials such as the 
heads of airport and transit authorities (as well as their subordinates) to require 
face coverings on state-owned transportation conveyances and in state-operated 
transport hubs. The Federal Defendants suggest “the order may incidentally re-
quire some state employees” to enforce the FTMM. But it’s not “incidental” for 
hundreds of thousands of state workers such as bus drivers, train conductors, air-
port staff, and police officers to be commandeered to enforce a mask mandate that 
in goes against state law in 40-45 states. Ex. 107. “We have already seen local law 
enforcement be reluctant to enforce state mask orders.” Ex. 162. 
“Under the Constitution, the federal government is limited to specifically 
enumerated powers, which do not include a general authority to protect the 
public from communicable diseases. That responsibility lies primarily with 
the states, which retain a broad ‘police power’ that goes far beyond the au-
thority vested in the president or Congress. Federalism leaves most deci-
sions in this area to officials who are more accountable and more familiar 
with local conditions, allows instructive policy experimentation, and avoids 
concentrating power in a national government…” Ex. 5. 
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The FTMM “covers some transportation that arguably does not involve a 
‘channel’ or ‘instrumentality’ of interstate commerce. For example, the or-
der covers cars transporting passengers for hire locally within a state. … The 
Supreme Court has ruled in a number of cases that legislation exceeded this 
aspect of Congress’ Commerce Clause power when Congress relied on ag-
gregating the effects of noneconomic intrastate activities.” Ex. 159. 
 
 
Students riding a school bus and individuals using public transportation such 
as subways to travel short distances within a state for noncommercial purposes do 
not create “a substantial economic effect on interstate commerce” as the govern-
ment argues. Doc. 125 at 67. Because the FTMM regulates intrastate transportation 
and commandeers state officials, it must be struck down. “Pursuant to the princi-
ples of federalism, the Supreme Court has interpreted the Tenth Amendment to 
prevent the federal government from commandeering or requiring state officers to 
carry out federal directives. This principle thus prevents Congress from requiring 
states or localities to mandate masks,” according to CRS. Ex. 160. 
“[E]ven if the law could be interpreted as … the United States suggest[s], it 
would still violate the anticommandeering principle … The anticomman-
deering doctrine may sound arcane, but it is simply the expression of a fun-
damental structural decision incorporated into the Constitution, i.e., the de-
cision to withhold from Congress the power to issue orders directly to the 
States.” Murphy v. NCAA, 138 S. Ct. 1461 (2018).  
 
 
It is unquestioned the Federal Defendants have issued an order (FTMM) di-
rectly to states to prohibit anyone from using public transportation without wear-
ing a mask. Thus, the FTMM unconstitutionally commandeers state officials – es-
pecially as here where state police officers are ordered by the federal government 
to enforce a federal mandate that violates the mask laws of nearly all the states.  
 
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E. The FTMM must be vacated because it violates federal law prohibit-
ing the mandatory use of any medical device approved under an EUA 
by Defendant HHS’ Food & Drug Administration. 
 
 
The government ignores that the FTMM is illegal because it forces Americans 
to use a medical device (face masks), most of which are approved by FDA under 
Emergency Use Authorization (“EUA”). Individuals to whom any EUA product is 
offered must be informed “of the option to accept or refuse administration of 
the product, of the consequences, if any, of refusing administration of the prod-
uct…” 21 USC § 360bbb-3(e)(1)(A)(ii)(III) (emphasis added). The Federal Defend-
ants can’t force travelers to use EUA products including masks. CDC may only rec-
ommend masks (as it has done for the rest of society excluding the transportation 
sector) and advise passengers if they refuse to wear a mask, the consequence might 
be a higher risk for contracting COVID-19. Ex. 75. When courts review the legal 
interpretations of an agency (such as CDC) regarding its compliance with statutes 
it does not administer, “such review can be more stringent: Courts sometimes re-
view such matters de novo, or without any deference at all to the agency’s interpre-
tation.” Ex. 158, cf. Freeman v. DirecTV, 457 F.3d 1001, 1004 (9th Cir. 2006). 
 
There’s good reason for the law prohibiting forced use of EUA medical devices. 
Requirements for EUA products are waived for, among other things, “current good 
manufacturing practice otherwise applicable to the manufacture, processing, pack-
ing … of products subject to regulation under this chapter…” 21 USC § 360bbb-
3(e)(3)(A). “Nothing in this section provides the [HHS] Secretary any authority to 
require any person to carry out any activity that becomes lawful pursuant to an 
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24
authorization under this section…” 21 USC § 360bbb-3(l). This is consistent with 
HHS regulations requiring that participants in trials of experimental medical de-
vices must be informed that “participation is voluntary, refusal to participate will 
involve no penalty…” 45 CFR § 46.116(a)(8).  
 
The law is crystal clear: The Federal Defendants have no authority to require 
any passenger wear a mask authorized under EUA. But most masks being used by 
Americans to comply with the FTMM meet the legal definition of an EUA “eligible 
product” that is “intended for use to prevent … a disease…” 21 USC § 360bbb-3(a). 
FDA regulates most face masks under EUAs. Ex. 26. HHS and FDA state:  
“On April 18, 2020, in response to concerns relating to insufficient supply 
and availability of face masks, [FDA] issued an [EUA] authorizing the use 
of face masks for use by members of the general public… A face mask is a 
device … that covers the user’s nose and mouth and may or may not meet 
fluid barrier or filtration efficiency levels. It includes cloth face coverings as 
a subset. … Face masks are regulated by FDA when they meet the definition 
of a ‘device’ under section 201(h) of the Act. Generally, face masks fall 
within this definition when they are intended for a medical purpose. … Face 
masks are authorized under this EUA when they are intended for use as 
source control, by members of the general public … to cover their noses and 
mouths, in accordance with CDC recommendations, to help prevent the 
spread of SARS-CoV-2 during the COVID-19 pandemic.” Ex. 16. 
 
 
The HHS secretary authorized EUAs for COVID-19 countermeasures (85 Fed. 
Reg. 17,335; Ex. 127) including respiratory devices (85 Fed. Reg. 13,907; Ex. 128). 
FDA published the EUA for face masks July 14, 2020. 85 Fed. Reg. 42,410; Ex. 18. 
Another mask EUA was published Nov. 20, 2020. 85 Fed. Reg. 74,352; Ex. 19. HHS 
Secretary Xavier Becerra renewed the public-health emergency for COVID-19 July 
19, 2021, allowing EUAs for masks and other devices to continue. Ex. 129. FDA 
confirms my argument that face masks are worthless. Masks must not be 
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25
“labeled in such a manner that would misrepresent the product’s intended 
use; for example, the labeling must not state or imply that the product is 
intended for antimicrobial or antiviral protection or related uses or is for 
use such as infection prevention or reduction… No printed matter, includ-
ing advertising or promotional materials, relating to the use of the author-
ized face mask may represent or suggest that such product is safe 
or effective for the prevention or treatment of patients during 
the COVID-19 pandemic.” Ex. 16 (emphasis added). 
 
 
 
“Face masks are not personal protective equipment.” Ex. 17. The instruction 
manual for a 3M N95 respirator mask, which is FDA approved, makes clear its 
wearing still has risks: “Misuse may result in sickness or death. … [It] cannot elim-
inate the risk of contracting infection, illness, or disease… Individuals with a com-
promised respiratory system, such as asthma or emphysema, should consult a phy-
sician and must complete a medical evaluation prior to use.” Ex. 123. 
 
Despite the lack of data that masks are effective, FDA issued an umbrella EUA 
for 41 types of surgical masks, many of which are used by passengers to comply 
with the FTMM. Ex. 20. Notably five types of masks have been withdrawn from the 
EUA after FDA found them to be defective. Id. FDA has also revoked the EUA for 
respirator masks made in China for being faulty. Ex. 21. CDC’s National Institute 
for Occupational Safety & Health (“NIOSH”) found many masks made in China 
“authorized under the April 3, 2020, EUA did not meet the expected performance 
standards.” Id. An astounding 167 respirator mask brands from China had their 
EUAs revoked by FDA last month. Another 54 were previously revoked. Id. FDA 
revokes EUAs when “appropriate to protect the public health or safety.” Ex. 24. 
Surgical masks (typically light blue in color) made in China are also not authorized 
by FDA. Ex. 25.  
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26
 
Although these 221 respirator mask brands (plus all surgical masks) manufac-
tured in China may no longer be legally sold in the United States, there are likely 
tens of millions of these face coverings still being used by passengers due to the 
FTMM. My mother is among the numerous Americans who have worn surgical 
masks made in China because of the FTMM. Ex. 22. So not only are quality masks 
worthless in CDC’s goal of reducing transmission of COVID-19, but the vast ma-
jority sold in the United States are actually defective, according to FDA. Ex. 23. 
“The ‘may be effective’ standard for EUAs provides for a lower level of evidence 
than the ‘effectiveness’ standard that FDA uses for product approvals.” Ex. 24. 
Even a well-informed consumer would find it nearly impossible to understand 
what types and brands of face masks have been authorized and which – if any – 
are regarded as safe to use for extended periods of time by NIOSH. The adminis-
trative record shows no indication these issues were considered.  
 
When a mask manufacturer applies for an EUA, it must agree it may not “mis-
represent the product or create an undue risk in light of the public health emer-
gency. For example, the labeling must not include any express or implied claims 
for: … antimicrobial or antiviral protection or related uses, (3) infection preven-
tion, infection reduction, or related uses, or (4) viral filtration efficiency.” Ex. 30. 
 
F. This Court has jurisdiction to adjudicate my claims against DHS and 
TSA because their orders were issued at the direction of CDC and are 
part of one unified federal policy (Counts 9 & 11-12). 
 
 
The government falsely claims the Court lacks jurisdiction over my claims 
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27
against Defendants Department of Homeland Security (“DHS”) and its agency 
Transportation Security Administration (“TSA”). Doc. 125 at 17. First, it cites 49 
USC § 46110, but this provision contains no mention of DHS.  Second, this statute 
vests the Court of Appeals with jurisdiction only for “an order” of the TSA admin-
istrator “with respect to security duties…” (emphasis added). TSA’s part of the 
FTMM is not “an order” “with respect to security duties,” it’s enforcing a CDC 
health mandate. Therefore, the Court of Appeals’ exclusive jurisdiction does not 
apply. Third, because TSA’s FTMM comprises of three directives and one emer-
gency amendment, not orders, the Court of Appeals’ statutory jurisdiction likewise 
doesn’t apply to this lawsuit. The cases cited by the government apply only to TSA 
security orders, not public-health enforcement directives, and thus are irrelevant 
here. Fourth, § 46110 does not apply to “order[s]” related to foreign air carriers. 
But one part of TSA’s FTMM, EA 1546-21-01A, targets foreign airlines. So at min-
imum, this Court has jurisdiction to adjudicate EA 1546-21-01A. 
 
This appears to be a question of first impression nationwide because never be-
fore has TSA attempted to enforce public-health rules. The Court should reject the 
government’s arguments regarding Court of Appeals exclusive jurisdiction be-
cause, it in addition to being legally unsound, it would produce absurd results: 1) 
Any plaintiff seeking to challenge the FTMM would have to file suits both in a Dis-
trict Court and a Court of Appeals. This is far from the goal of “judicial economy” 
this Court seeks. Doc. 67 at 6; and 2) If I succeed in winning vacatur of the FTMM 
only as applied to CDC, then TSA could possibly continue enforcing its own ultra 
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vires mask mandate even though CDC no longer authorizes it. That would result 
in more litigation at the Court of Appeals, which could take a year or longer. This 
Court’s decision vacating the CDC part of the FTMM would have little effect if TSA 
is permitted to continue enforcing its mask directives and emergency amendment. 
The Court must not allow this illogical result. 
 
G. TSA failed to abide by APA’s notice-and-comment requirement 
(Count 9). 
 
 
The Federal Defendants claim that if TSA determines a regulation or security 
directive “must be issued immediately … to protect transportation security,” no-
tice and comment are waived. Doc. 125 at 52 (emphasis added). Because the FTMM 
is not a security policy but a public-health policy, the mask mandate does not fall 
under this exemption. The approval of the Transportation Security Oversight 
Board has no effect on TSA’s duty to engage in notice and comment. 
 
H. TSA lacks statutory authority to enforce a mask mandate (Count 12). 
 
 
There are at least four reasons why TSA can’t enforce a mask mandate: 1) No 
statute authorizes TSA to enforce public-health rules; 2) Congress recognized this 
when the House passed a bill to permit TSA to implement a mask mandate, but it 
died in the Senate; 3) The chairman of the House Homeland Security Committee 
acknowledged TSA lacks authority to perform temperature checks of passengers, 
let alone require masks; and 4) TSA did not adhere to APA’s notice-and-comment 
requirement. Ex. 154. Defendant TSA’s position  
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29
“raises the interpretive question whether ‘transportation security’ measures 
under sections 114(f) and (l) include measures aimed at preventing disease 
transmission. Under a narrower construction, ‘security’ – which is not stat-
utorily defined – connotes the prevention of deliberate harms, such as ter-
rorism or other intentional criminal acts. Some aspects of the larger statu-
tory context could potentially support this narrower construction. Congress 
enacted the [Aviation and Transportation Security Act] in response to the 
September 11, 2001, terrorist attacks, establishing the TSA and giving it re-
sponsibility for ‘security in all modes of transportation.’ Reflecting a coun-
terterrorism focus, some of the TSA’s statutory authorities expressly refer-
ence ‘terrorism’ or ‘criminal violence.’” Ex. 159. 
 
 
TSA is not entitled to Chevron deference because the statute is unambiguous: 
Congress has not assigned TSA the duty of enforcing public-health dictates. De-
fendant Biden “can’t require masks on interstate buses and trains because only the 
U.S. Congress can regulate interstate commerce by law, not the president by di-
rective.” Ex. 174. Also, 49 USC § 44902(a) only permits TSA to deny boarding to “a 
passenger who does not consent to a search” or “property of a passenger who does 
not consent to a search.” No denial of boarding is authorized for passengers not 
wearing masks. 49 USC § 44903 allows TSA to prevent “violence and piracy,” not 
a disease. It hard to imagine Congress had enforcing a mask mandate in mind 
when it gave TSA the authority to deploy “police at airport security checkpoints ‘to 
ensure passenger safety and national security.’” Doc. 125 at 50.  
 
TSA is tasked with items that only logically apply to protection from intentional 
attacks. The irony here, regardless of “safety” or “security” terminology, is that the 
FTMM has made flying much more dangerous due to the chaos in the skies 
over enforcing masks. Doc. 1 at ¶¶ 424-479; Declarations of flight attendants at 
Exs. 190, 209-210, & 215. Finally, the government admits more than “8,000 [TSA] 
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30
screening employees have been [infected] with COVID-19…” Doc. 125 at 51. TSA 
employees are forced to wear face coverings. If masks are effective, why have so 
many TSA workers tested positive for coronavirus? 
 
II. ARGUMENT OPPOSING MOTIONS FOR SUMMARY  
JUDGMENT OR TO DISMISS COUNTS 3, 7-8, 11, 14-15, & 21 
 
A. The Court must not grant summary judgment for the Federal De-
fendants on my arbitrary-and-capricious claims because there is a gen-
uine dispute as to any material fact and they are not entitled to judg-
ment as a matter of law (Counts 3, 11, & 21). 
 
 
The Federal Defendants’ actions in promulgating the FTMM and ITTR are not 
“rational,” “reasonably considered,” or “reasonably explained.” Doc. 125 at 41. In 
addition to lacking regulatory, statutory, and constitutional authority, they are ar-
bitrary and capricious. Whether an agency decision is arbitrary and capricious is 
largely a fact-based and situation-specific question. Troy Corp. v. Browner, 120 
F.3d 277, 284 (D.C. Cir. 1997). Therefore summary judgment in favor of the gov-
ernment is not appropriate here as there is a genuine dispute over material facts. 
Fed.R.Civ.P. 56. Although the 11th Circuit gives “an extreme degree of deference to 
the agency when it is evaluating scientific data,” a court may not ignore contrary 
evidence such as 115 scientific studies and medical articles14 demonstrating that 
                                                 
14 The Federal Defendants disparage the source of one article I submitted attached to the Com-
plaint (Doc. 125 at 43, FN 17) but fail to acknowledge that the other 42 scientific studies and med-
ical articles attached to Doc. 1 (322 pages total) come from numerous prestigious and well-re-
spected publications including Annals of Family Medicine; Annals of Internal Medicine; Associa-
tion of American Physicians & Surgeons; British Medical Journal; CDC Emerging Infectious Dis-
eases; European Journal of Medical Research; Frontiers in Public Health; International Journal 
of Environmental Research & Public Health; Lancet Infectious Diseases; Medical News Today; 
National Academies of Sciences, Engineering, & Medicine; and University of New South Wales. 
The same is true with the additional 72 studies and articles I attach to this brief (Exs. 31-102). 
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31
masks are ineffective and harmful. Index at Ex. 103. An agency policy created due 
to politics and not reasoned scientific endeavor is arbitrary and capricious. Ex. 158, 
cf. Midwater Trawlers Coop. v. Dep’t of Commerce, 282 F.3d 710, 720 (9th Cir. 
2002). It’s frankly a lie (perpetrated by politics) for CDC to claim mask wearing “is 
one of the most effective strategies available for reducing COVID-19 transmission.” 
Doc. 125 at 41. The evidence shows otherwise. Ex. 103. COVID-19 cases surged last 
winter despite 40 states having a mask mandate and 85% of Americans surveyed 
saying they wore masks “all or most of the time.” Exs. 117 & 164. The U.S. experi-
ence (huge coronavirus infections despite universal masking) has occurred in 
countries all over the globe including India. Ex. 118. Meanwhile Sweden, which 
eliminated its transport mask mandate in early July, is now down to almost zero 
COVID-19 deaths. Ex. 186. I have not moved for summary judgment on Counts 3, 
11, and 21 because the government and I greatly differ about the scientific facts 
regarding the efficacy of mask wearing and the harms of forced muzzling.  
 
When the government cites seven studies15 supporting mask wearing vs. the 115 
I’ve submitted detailing how masks are ineffective and harm our health (Ex. 103), 
the Court must favor the evidence that overwhelmingly discredits CDC’s political 
position it attempts to justify by science. See Exs. 8-9, 25, 27, 28-29, 119-120, 125, 
                                                 
15 I actually count 12 studies in the administrative record: 1) Doc. 114 at 16-20; 2) Id. at 21-40; 3) 
Id. at 44-48; 4) Id. at 49-52; 5) Id. at 53-70 & Doc. 115 at 1-13; 6) Doc. 115 at 14-17; 7) Id. at 18-24; 
8) Id. at 25-38; 19) Id. at 39-74 & Doc. 116 at 1-32;  10) Doc. 116 at 33-93; 11); Doc. 117 at 1-12; 12) 
Doc. 118 at 2-4. Nonetheless, 115 is still nearly 10 times more evidence than 12, showing the Court 
there is a genuine dispute over material facts that doesn’t warrant summary judgment at this time. 
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130-147, 148-153, 155-157, 177-178, 180, & 217.  
 
An agency decision is arbitrary and capricious if it “entirely failed to consider 
an important aspect of the problem, offered an explanation for its decision that 
runs counter to the evidence before the agency, or is so implausible that it could 
not be ascribed to a difference in view…” Motor Vehicle Manufacturers Ass’n v. 
State Farm Auto Mutual Ins. Co., 463 U.S. 29, 43 (1983). All three factors are in 
play here with the FTMM. 
 
Finally, the ITTR is arbitrary and capricious, inter alia, for violating the Equal 
Protection Clause because it applies to fully vaccinated Americans flying home but 
not illegal aliens (who are mostly unvaccinated) and others crossing the land bor-
der from Mexico when the evidence shows these unauthorized immigrants are 
much more likely to be infected with COVID-19. The ITTR also has not “reduce[d] 
introduction and spread of these and future SARS-CoV-2 variants into the United 
States” as the government admits the delta variant is surging. “[W]hile courts must 
be deferential to the need to protect public health, courts must also be vigilant 
against abuses of public health powers.” Ex. 165. 
 
B. The Court must not grant summary judgment for the Federal De-
fendants on my Fifth Amendment claim because they are not entitled 
to judgment as a matter of law (Count 7). 
 
 
The government argues that “there is no evidence in the record that Mr. Wall 
has actually attempted to take advantage of those [mask] exemption provisions” 
and that I “did not submit the exemption form in the time required by the airline 
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33
… [and] did not provide the requisite documentation.” Doc. 125 at 63. This is a 
ludicrous argument. There is documentation in the record that I tried to get a mask 
exemption from Southwest Airlines. Doc. 1 at Ex. 204. It was denied because 
Southwest – like every other airline as illegally permitted by the FTMM – puts on-
erous requirements on passengers seeking mask exemptions that are explicitly 
prohibited by federal regulations. Doc. 1 at ¶¶ 231-272. I pursued a medical exemp-
tion in good faith but was illegally denied. Defendant TSA forbade me passage 
through its checkpoint June 2 solely because a private company (Southwest) acting 
illegally would not grant me a mask exemption. A complaint to Defendant DOT 
would be futile because DOT itself told the airlines it could violate the regulations. 
Id. at Ex. 208. I was given no opportunity to contest TSA’s decision, let alone in a 
timely manner that would have allowed me to make my flight. This is a classic vio-
lation of the Due Process Clause and far from “fully satisfactory.” 
 
Delegating FTMM decisionmaking to private companies such as airlines and 
then telling them they may violate federal regulations in doing so is not seeking 
private enforcement of a federal order in “matters more or less of a technical na-
ture.” Doc. 125 at 65. The FTMM removes the government completely from the 
mask-exemption process and hands that task entirely to private companies, at least 
in the aviation sector (in other sectors, it unconstitutionally commandeers state 
officials to enforce the mask mandate; see 10th Amendment discussion supra.) 
 
 
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C. The Court must not grant summary judgment for the Federal De-
fendants on my freedom-to-travel claim because they are not entitled 
to judgment as a matter of law (Count 8). 
 
 
The Federal Defendants contend “reasonable restrictions on the right to inter-
state travel are permissible.” Doc. 125 at 59. But the FTMM is unreasonable as it 
imposes an impossible burden on tens of millions of travelers – having to wear a 
face covering that is medically dangerous and intolerable – for no public benefit 
(masks are not effective in reducing COVID-19 spread and actually harm human 
health; Ex. 103). I am not free to leave Florida by land (bus or train), air, or sea16 
because the FTMM applies to all of these transit modes. I could only leave by driv-
ing myself, but I don’t own a car.17 Using public transport is my only way of travel-
ing interstate and internationally.18 “The original conception of the right to travel 
embodies it as a broadly-based freedom that encompasses all modes of transport. 
… abridgement of any mode of transportation undermines the constitutionally en-
shrined travel right.” Ex. 169. Should this issue reach the 11th Circuit, it appears to 
be a question of first impression. This Court must declare the right to interstate 
                                                 
16 I am not aware of any ferry or other passenger-ship service from Florida to other states. And 
there is very little interstate ship service anywhere in the nation. 
 
17 The Federal Defendants suggest that because I recently traveled by car to an aunt’s funeral in 
Tampa, I could drive elsewhere. They fail to note I rode in the car with my mother (who owns the 
vehicle) and that Tampa is only a 75-minute drive from The Villages, where she resides. They fail 
to explain how it would be reasonable to drive to a place such as Salt Lake City, Utah – which 
would be an estimated 34-hour one-way drive – or how I could drive a car across the Atlantic 
Ocean to visit my brother and his wife in Germany. Flying is absolutely a necessity for me. 
 
18 The government falsely suggests that my right-to-travel claim is limited only to interstate travel. 
As one of my trips postponed because of the FTMM and ITTR is to Germany, this is a ridiculous 
statement. In fact, I have rebooked my flight to Germany for Sept. 12. Ex. 13. 
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travel includes one’s choice on the best or most reasonable mode to utilize. “Travel 
embodies a broadly based personal, political, and economic right that encom-
passes all modes of transportation and movement. … The right to travel, inherent 
in intercourse among the states, is one of the implied and unenumerated rights 
reserved [under the Constitution] to the People.” Id., cf. Crandall v. Nevada, 73 
U.S. 35, 48-49 (1867). 
 
The Federal Defendants misrepresent Second Circuit precedent on the issue of 
having a constitutional right to a convenient mode of transport – especially when 
it comes to traveling across oceans to foreign nations: 
“To make one choose between flying to one's destination and exercising 
one's constitutional right appears to us, as to the Eighth Circuit, United 
States v. Kroll, 481 F.2d 884, 886 (8th Cir. 1973), in many situations a form 
of coercion, however subtle. Cf. Lefkowitz v. Turley, 414 U.S. 70, 79-82, 94 
S. Ct. 316, 38 L. Ed. 2d 274 (1973). While it may be argued there are often 
other forms of transportation available, it would work a considerable hard-
ship on many air travelers to be forced to utilize an alternate form of trans-
portation, assuming one exists at all.” United States v. Albarado, 495 F.2d 
799 (2nd Cir. 1974).  
 
 
The Eighth Circuit held in Kroll that “flying may be the only practical means of 
transportation;” when limited, it often deprives an individual of the right to travel. 
A District Court also addressed this issue recently: 
“The impact on a citizen who cannot use a commercial aircraft is profound. 
He is restricted in his practical ability to travel substantial distances within 
a short period of time, and the inability to fly to a significant extent defines 
the geographical area in which he may live his life. … An inability to travel 
by air also restricts one’s ability to associate more generally, and effectively 
limits educational, employment and professional opportunities.” Mohamed 
v. Holder, 2014 WL 243115, at *6 (E.D.Va. Jan. 22, 2014). 
 
 
Although “mere burdens on a person’s ability to travel from state to state are 
not necessarily a violation of their right to travel,” a complete ban on interstate and 
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36
international travel because I medically can’t wear a mask is much more than a 
burden, minor restriction, or inconvenience – it is an unconstitutional prohibition.  
 
“The Supreme Court has consistently applied strict scrutiny to restrictions on 
the right to interstate travel.” Ex. 167. “Undoubtedly the right of locomotion, the 
right to remove from one place to another according to inclination, is an attribute 
of personal liberty, and the right, ordinarily, of free transit from or through the 
territory of any State is a right secured by the … Constitution.” Williams v. Fears, 
179 U.S. 270, 274 (1900).  
 
I am not “free to travel with a mask” because it would be detrimental to my 
health. Wall Decl. at Doc. 83-1 and medical records at Doc. 12, Exs. 1-6; see also 
115 mask studies indexed at Ex. 103. In addition, airlines and Defendant DOT have 
illegally made getting a mask exemption virtually impossible. Dec. 1 at ¶¶ 231-272 
and Ex. 208. “[C]ourts recognize the unique nature of flight as a necessarily acces-
sible and protected mode of transportation under the travel right and federal law. 
… An individual’s liberty may be harmed by an act that causes or reasonably threat-
ens a loss of physical locomotion or bodily control” such as forced masking. Ex.  
169 (emphasis added). The Supreme Court recently disdained pandemic re-
strictions that violate constitutional rights. An American is “irreparably harmed by 
the loss of [constitutionally protected] rights ‘for even minimal periods of time’; 
the State has not shown that ‘public health would be imperiled’ by employing less 
restrictive measures.” Tandon v. Newson, No. 20A151 (April 9, 2021). 
 
I also have a statutory right to fly: “A citizen of the United States has a public 
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37
right of transit through the navigable airspace.” 49 USC § 40103(a)(2). “The con-
stitutional right to travel from one State to another, and necessarily to use the high-
ways and other instrumentalities of interstate commerce in doing so, oc-
cupies a position fundamental to the concept of our Federal Union. It is a right that 
has been firmly established and repeatedly recognized.” United States v. Guest, 
383 U.S. 745, 757 (1966) (emphasis added). Thus, the right to travel can’t be lim-
ited to driving a vehicle on the highways, as the government argues.  
 
My constitutional right to freedom of movement can’t be restricted when there 
is no evidence that airplanes have contributed to the spread of COVID-19 and there 
are less restrictive systems already in place (the Do Not Board and Lookout data-
bases; Doc. 1 at ¶¶ 354-365). Reducing coronavirus spread could be adequately ad-
dressed by means which, when compared with the FTMM, are more discriminately 
tailored to the constitutional liberties of individuals.  
 “The right to travel is a part of the ‘liberty’ of which the citizen cannot be 
deprived without due process of law under the Fifth Amendment. … Free-
dom of movement is basic in our scheme of values. See Crandall v. Nevada, 
6 Wall. 35, 44; Williams v. Fears, 179 U. S. 270, 274; Edwards v. California, 
314 U.S. 160. … Since we start with an exercise by an American citizen of an 
activity included in constitutional protection, we will not readily infer that 
Congress gave the Secretary … unbridled discretion to grant or withhold it.” 
Kent v. Dulles, 357 U.S. 116 (1958). 
 
 
D. The Court has jurisdiction over my two claims against DOT. It must 
not grant summary judgment because there is a genuine dispute as to 
any material fact and the Federal Defendants are not entitled to judg-
ment as a matter of law (Counts 14-15). 
 
 
The government misleadingly argues the Court lacks jurisdiction over my 
claims against Defendant DOT and my mandamus prayers for relief. Doc. 125 at 
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16, 19-25, & 37-40. It also is not entitled to summary judgment because there is a 
genuine dispute over the material facts. It’s a bald-face lie to claim “DOT has issued 
an enforcement policy precisely to ensure protection under the [Air Carrier Access 
Act] for those who cannot wear a mask for legitimate reasons.” Id. at 19. DOT’s 
Notice of Enforcement Policy (“NEP”) (Ex. 1 at 208) violates the ACAA (49 USC § 
41705) and these regulations: 14 CFR §§ 382.19(a), 382.23(a), 382.23(c)(1), 
382.23(d), and 382.25. DOT admits it failed to enforce the ACAA from Spring 2020 
to February 2021. Ex. 1 at ¶ 243. Its own publications describe now the Feb. 5, 
2021, NEP contradicts the law. Doc. 1 at Exs. 209 & 210; ¶¶ 231-272. 
 
Jurisdiction is not limited to the Court of Appeals because 49 USC § 46110 only 
applies to “an order issued by the Secretary of Transportation…” DOT’s NEP is a 
“notice,” not an “order.” And it was issued by Blane Workie, assistant general coun-
sel, not the secretary. I am not challenging one “order” of DOT. I am challenging 
its failure to perform its statutory duty of protecting airline passengers with disa-
bilities from discrimination. “The Secretary shall investigate each complaint of a 
violation…” 49 USC § 41705(c)(1). I allege DOT is not doing this when it comes to 
mask complaints. And CDC has no authority to issue a mask order (which is not 
duly promulgated as a regulation) with provisions that violate sections of the Code 
of Federal Regulations. The government’s assertion CDC may ignore the CFR (Doc. 
125 at 37) is disingenuous and dangerous. 
 
To prove this claim, I require discovery to obtain all complaints filed with DOT 
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during the pandemic (March 2020 to present) regarding passengers denied board-
ing and/or harassed by airlines for not wearing masks as well as showing how the 
department resolved those complaints.19 DOT claims it’s enforcing the ACAA; I as-
sert it’s not. This is based on my experience as well as that of other passengers. 
Declarations indexed at Ex. 187. This is a genuine dispute over material facts that 
prohibits summary judgment under Fed.R.Civ.P. 56.  
 
DOT’s nonenforcement of its own regulations regarding mask exemptions is 
part of a comprehensive package of Executive Branch orders, directives, amend-
ments, and notices that make up the broad-sweeping FTMM. To force a litigant to 
file separate challenges to each part of the mask mandate in a District Court and a 
Court of Appeals runs against this Court’s desire for judicial economy and prevents 
this Court from resolving all claims concerning the same comprehensive govern-
ment scheme. The government’s position would deprive this Court of its manda-
mus jurisdiction: “The district courts shall have original jurisdiction of any action 
in the nature of mandamus to compel … any [U.S.] agency … to perform a duty 
owed to the plaintiff.” 28 USC § 1361. Here, the DOT secretary owes me (and all 
other disabled passengers similarly situated) a “clear nondiscretionary duty” to en-
force the ACAA and its own regulations. I’m excused from having to “exhaust[] all 
other avenues of relief” because it would be futile. The Court shall not divest itself 
                                                 
19 I requested these documents Aug. 17 from DOT counsel Stephen Pezzi so we can avoid the need 
for formal discovery in this case. He is checking with DOT about providing the materials. 
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of its jurisdiction under 28 USC § 1651(a): “[A]ll courts established by Act of Con-
gress may issue all writs necessary or appropriate in aid of their respective juris-
dictions and agreeable to the usages and principles of law.” 
 
The doctrine of exhaustion must be balanced with the interests of the individual 
“in retaining prompt access to a federal judicial forum…” McCarthy v. Madigan, 
503 U.S. 140, 146 (1992). There are equitable exceptions to the exhaustion rule 
including when “the challenge is to the adequacy of the agency procedure itself” 
and when the agency is biased or has predetermined the issue such that exhaustion 
would be futile. Id. I am not required to exhaust airlines’ exemption policies or 
ACAA’s administrative remedy of filing a complaint with DOT because it would be 
pointless – as I expect to prove during discovery and as dozens of passengers have 
already testified to. Index of Declarations at Ex. 187. At least one passenger has 
made nine complaints to DOT regarding airlines refusing to honor his doctor’s note 
that he is exempt from wearing a mask; none of them have resulted in DOT taking 
any action. Ex. 170. Excusal of the exhaustion requirement is proper “when resort 
to the administrative remedies would be futile or the remedy inadequate.” Counts 
v. Am. Gen. Life & Accident Ins. Co., 111 F.3d 105, 108 (11th Cir. 1997). DOT has 
also acted in bad faith by neglecting its statutory duty to protect the rights of disa-
bled airline passengers, further excusing any exhaustion requirement. This Court 
must issue a writ of mandamus compelling DOT to the job Congress entrusted to 
it the department. 
 
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III. ARGUMENT OPPOSING UMBRELLA ASSERTIONS IN THE GOV-
ERNMENT’S MOTIONS FOR SUMMARY JUDGMENT & TO DISMISS 
 
A. Defendant Biden should not be dismissed because his unconstitu-
tional executive order set in motion the FTMM and ITTR. 
 
 
The government untruthfully contends the Court lacks jurisdiction over my 
claims against Defendant Biden. Doc. 125 at 16 & 25. “Legal scholars overwhelm-
ingly agree that despite his insistence to the contrary, Biden’s calls from the cam-
paign trail for a mask mandate imposed by the federal government were unconsti-
tutional.” Ex. 11. Defendant Biden himself acknowledged this but then acted in bad 
faith when signing the challenged executive order anyway. Exs. 1-13.  
“Two questions are always asked whenever an executive order is challenged: 
(1) where does the President get the authority to enact the order? (2) Does 
it violate any constitutional rights? … State and local governments have ‘po-
lice powers’ to enact measures that will protect the general health and safety 
of the public. However, the federal government does not have such powers 
and the Constitution does not give the President the power to enact a mask 
mandate. Therefore, the White House must point to a law passed by Con-
gress that gives the President such a power or the mask mandate will be 
unconstitutional.” Ex. 10. 
 
 
The government wrongly asserts that I haven’t alleged “that the President … 
engaged in any unlawful conduct.” Doc. 125 at 26. Biden’s E.O. 13998 for the 
FTMM and ITTR is illegal and unconstitutional, as I’ve argued throughout this 
case. Doc. 1 at 202, ¶¶ A & B. And although it’s true the president is not considered 
an “agency” under the APA, the judiciary has the power to declare executive orders 
unconstitutional and/or illegal and enjoin their enforcement. Youngstown Sheet 
& Tube v. Sawyer, 343 U.S. 579 (1952). “[I]t is settled law that the separation-of-
powers doctrine does not bar every exercise of jurisdiction over the President of 
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the United States.” Nixon v. Fitzgerald, 457 U.S. 731, 753–54 (1982). See also Clin-
ton v. Jones, 520 U.S. 681, 703 (1997); Bond v. United States, 564 U.S. 211, 225–
26 (2011); and Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 
477, 491 (2010). Notably Defendant Biden did not cite any constitutional or statu-
tory authority for the FTMM and ITTR in E.O. 13988. Doc. 1 at Ex. 6. Federal court 
review of executive orders helps to define the scope of presidential powers and 
serves as a significant aspect of the checks and balances woven into the American 
constitutional system. E.O. 13998 contains no expiration date or sunset provision, 
and fails to provide any guidance as to when or under what conditions it will expire. 
 
Courts may strike down executive orders not only on the grounds that the pres-
ident lacked authority to issue them but also in cases where the order is found to 
be unconstitutional in substance. And because Defendant Biden acted in bad faith, 
the Court must not just vacate his executive order but also shall employ the ex-
traordinary remedy of enjoining him from again ordering any mask mandate or 
traveler testing requirement because he has shown a total disregard for both the 
Constitution and our laws. An injunction would not order Biden to “perform par-
ticular … acts” but would prohibit him from again issuing ultra vires executive or-
ders pertaining to masks, testing, and other pandemic restrictions. 
 
B. I have standing to contest both the ITTR and the FTMM. 
 
 
The government falsely claims the Court lacks jurisdiction over my ITTR claims 
(Doc. 125 at 16) and suggests I don’t even have standing on my FTMM claims (Id. 
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at 27, FN 12). These arguments are absurd because there’s no dispute that I was 
denied the ability to fly by Defendant TSA on June 2 solely because I can’t wear a 
mask. Doc. 125 at 13-14. It’s also uncontested that I was not able to fly June 16, 18, 
20, 22, 24-25, and 30 as well as July 3, 10, and 15 because of the FTMM and (for 
the June 30 flight home from Germany) the ITTR. Doc. 1 at ¶¶ 4-10. Were it not 
for the FTMM and ITTR,  I would have taken all these trips. These are concrete 
injuries that give me Article III standing to challenge both policies. 
 
Even if the government’s position were correct, it fails to acknowledge I re-
scheduled (for a third time) my trip to Germany to see my brother and his wife for 
Sept. 12-22. Ex. 13. While booking my ticket, United warned me I will be subject to 
the ITTR and the FTMM (including that there are “no exceptions” to the mask rule 
but for eating and drinking as well as kids under two years old; disproving the gov-
ernment’s allegations that I can follow administrative channels to obtain a mask 
exemption). Ex. 14. It’s critical this Court vacate these policies before Sept. 12. 
 
C. My Complaint is not an impermissible shotgun pleading. 
 
 
The Federal Defendants incorrectly assert that my “complaint is an impermis-
sible ‘shotgun pleading…’” that makes it “nearly impossible for Defendants and the 
Court to determine with any certainty which factual allegations give rise to which 
claim.” Doc. 125 at 68. Just like with the two Local Defendants, this argument is 
bogus. Based on the extreme detail in their 88-page brief asking for dismissal of 
and summary judgment on the merits of all 16 pending charges against them, it’s 
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obvious the Federal Defendants understand with certainty the facts of the case and 
how they are applied to each claim. They cite facts in the Complaint they contend 
are irrelevant, but all are actually on point regarding the arbitrary and capricious 
nature of agency action taken, inter alia, despite: A) numerous health problems 
caused by masks (e.g. the Oregon athlete collapsing while masked due to low oxy-
gen levels); and B) chaos in the skies caused by airlines having to enforce mask 
mandates (e.g. families being treated rudely and thrown off planes because their 
autistic children can’t keep a mask on). 
 
The government whines about my Complaint being long as well as full of facts 
and exhibits supporting those facts, but there is no inability to comprehend what 
they have been charged with as evidenced by their thorough arguments in opposi-
tion. The Federal Defendants themselves acknowledge “this case can (and should) 
be resolved” on the merits. Doc. 125 at 69.  
 
Lastly, they filed an administrative record totaling 633 pages. Does that make 
their motions the equivalent of a disallowed “shotgun pleading” simply because of 
the large volume of exhibits included? As painful as it was to read all those 633 
pages, I don’t think so. The same goes for my Complaint. 
 
D. My prayers for relief are not overbroad. 
 
 
The Federal Defendants complain my prayers for relief, if I prevail, would be 
overbroad because the judgments and orders I seek from the Court “would prevent 
enforcement of any of the challenged orders, in any context, against anyone…” Doc. 
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125 at 69. But under the APA, when a Court determines government agencies have 
exceeded their regulatory, statutory, and/or constitutional authority; failed to 
abide by notice and comment; promulgated arbitrary and capricious policies; etc., 
the proper remedy is to “hold unlawful and set aside” the ultra vires orders. 5 USC 
§ 706. This means nationwide vacatur is the appropriate remedy. Alabama Ass’n 
of Realtors v. HHS (D.D.C. May 5, 2021). Because the ITTR applies abroad to all 
air carriers preventing them from boarding any passenger to the United States who 
fails to present a negative COVID-19 test, worldwide vacatur is the relief required.  
“[A] federal district judge has authority and subject matter jurisdiction to 
grant plaintiffs an injunction that bars the federal executive from imple-
menting an unconstitutional or illegal federal government program any-
where ...The federal courts keep the federal executive in constitutional line. 
In a system without the nationwide national government injunction, the 
federal executive could develop and implement policies and programs that 
avoid obeying the law.” Ex. 182. 
 
 
To set aside the ultra vires FTMM and ITTR only for myself would violate the 
Equal Protection Clause. An illegal, unconstitutional order may not be enforced by 
the government against any person. To declare that only Lucas Wall, one of the 
estimated 66 million Americans every day who use public transportation, is ex-
empt from the unlawful orders would lead to an crazy result: the Federal Defend-
ants being allowed to enforce the FTMM and ITTR against the other 65,999,999 
people who were not a plaintiff in this case. And if those 65,999,999 had to file 
their own lawsuits, it would completely overwhelm the federal judiciary to accom-
plish the same result. As the Court can plainly see by the declarations of 33 other 
passengers and flight attendants (Index at Ex. 187) and all the news stories about 
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others being banned from flying I’ve submitted into evidence, these policies have 
a negative impact on tens of millions of Americans every day. The government 
quotes only one Supreme Court justice objecting to a nationwide injunction as the 
proper remedy when the government acts unlawfully. But that’s not what the plain 
text of the APA states. “National government injunctions respond to … the federal 
executive’s practice of issuing executive orders and administrative regulations to 
make major unilateral policy changes that bypass the legislative process. Separa-
tion of powers and judicial review together enable courts to prevent the executive’s 
improper and arbitrary exercise of power.” Ex. 182. 
 
If the Court holds unlawful and sets aside the FTMM and ITTR, a permanent 
injunction prohibiting their enforcement and any future orders by the Federal De-
fendants to achieve the same political goals is absolutely necessary given the bad 
faith that Defendant Biden has engaged in multiple times, saying he knows the 
CDC orders are unconstitutional but putting them in place anyhow. Ex. 115. The 
Judicial Branch has a constitutional responsibility to a stop this power grab by the 
Executive Branch. Separation of powers demands it. Defendant CDC has already 
disrespected this Court by saying it will enforce its mask rule on cruiseships even 
though such restrictions were preliminary enjoined. State of Florida; Ex. 121. CDC 
Director Dr. Rochelle Walensky admitted were it not for political interference, her 
agency would be leaving it up to states and local health officials to set guidelines 
concerning maskwearing. The CDC has “always said that local policymakers need 
to make policies for their local environment,” she said. Ex. 126. 
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47
 
Remand to the agencies is not an appropriate remedy as the Federal Defendants 
suggest (Doc. 125 at 70) because there is no way they could cure all the errors made 
in issuing these ultra vires orders. Remand without vacatur would allow the gov-
ernment to continue enforcing unlawful policies. Finally, the Court should not buy 
the hysteria the government is selling that “even temporary (or partial) vacatur of 
these orders could have disruptive and dangerous consequences.” As I have 
demonstrated, the mask mandate and testing requirement are not based on sci-
ence, but politics. Vacating these two orders would not be disruptive; it would 
simply restore the status quo to our public-transportation system that existed prior 
to January 2021. The government acknowledges that COVID-19 cases are again 
surging, illustrating how ineffective these policies are. It would be dangerous for 
the Court to leave the FTMM in place given the strong body of scientific evidence 
showing how harmful masks are to human health. Index at Ex. 103. 
 
IV. CONCLUSION 
 
WHEREFORE, I request this Court issue an order granting me summary judg-
ment on Counts 1, 4−6, 9, 12, 19, & 22−23 (Doc. 127-1) and denying the Federal 
Defendant’s Cross-Motion for SJ and Motion to Dismiss (Doc. 125).  
Respectfully submitted this 18th day of August 2021.
Lucas Wall, plaintiff 
435 10th St., NE 
Washington, DC 20002 
Telephone: 202-351-1735 
E-Mail: Lucas.Wall@yahoo.com 
Case 6:21-cv-00975-PGB-DCI   Document 130   Filed 08/18/21   Page 47 of 47 PageID 3157

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