Court filing
Opposition to Motion for Combined Reply Brief — Wall v. CDC
Filed August 24, 2021 in Wall v. CDC; one of 35 filings from this case.
Record facts
| Court | U.S. District Court for the Middle District of Florida (Orlando Division) |
|---|---|
| Filed | 2021-08-24 |
U.S. District Court for the Middle District of Florida (Orlando Division) · No. 6:21-cv-00975-PGB-DCI · Doc. 136 · 2021-08-24 · 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 OPPOSITION TO FEDERAL DEFENDANTS’
MOTION FOR LEAVE TO FILE A COMBINED 25-PAGE
REPLY BRIEF ON OR BEFORE SEPT. 30, 2021
COMES NOW plaintiff, pro se, and opposes the Federal Defendants’ Motion for
Leave to File a Combined 25-Page Reply Brief on or Before Sept. 30, 2021, submit-
ted Aug. 20. Doc. 133. The Federal Defendants’ motion should be denied for 20
reasons:
1) Under the Local Rules, the Federal Defendants may file a seven-page reply
brief on their Motion for Summary Judgment (Doc. 125) no later than
Wednesday, Sept. 1. The Court should enforce this plain rule as there is no
cause for changing it.
2) Local Rule 3.01(d) does not allow a reply brief except for a motion for sum-
mary judgment. The Federal Defendants are not permitted a reply brief on
their Motion to Dismiss. They have not provided any legal authority or good
Case 6:21-cv-00975-PGB-DCI Document 136 Filed 08/24/21 Page 1 of 10 PageID 4752
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cause for seeking an exemption to this rule: “NO REPLY AS A MATTER OF
RIGHT. Without leave, no party may file a reply directed to a response ex-
cept a response to a motion for summary judgment. The reply must not ex-
ceed seven pages inclusive of all parts.”
3) Even if a reply brief on a motion to dismiss were permitted by the Local
Rules, the page limit for replies in this Court is seven. Thus even if the Fed-
eral Defendants were entitled to a reply brief on their Motion to Dismiss, it
would be seven pages, not 25. Even if added together 7+7, the maximum
would be 14.
4) This Court throughout this case has not allowed any party to exceed the page
limits established by the Local Rules. There is no reason to deviate from that
consistent approach now.
5) The Federal Defendants early in this ease blocked my efforts to timely obtain
a preliminary injunction by moving to strike my two PI motions (Docs. 33 &
36) that were both 25 pages in compliance with the Local Rules and were on
totally separate government policies. Doc. 48. The Court improperly granted
that Motion to Strike and – unauthorized by the Local Rules – gave the Fed-
eral Defendants 30 instead of seven days to file an opposition to my PI mo-
tions, defeating any fair opportunity I had to expeditiously obtain a PI. Docs.
55 & 67. The Federal Defendants incredibly now ask the Court to not only
ignore they exceeded by 18 pages the 70-page limit agreed to by the parties
and approved by the Court (Doc. 105) in their Aug. 9 combined brief (Doc.
Case 6:21-cv-00975-PGB-DCI Document 136 Filed 08/24/21 Page 2 of 10 PageID 4753
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125), which is 88 pages long1 – but now they demand 25 pages instead of
seven for their reply brief. There is no reason for this Court to deviate from
its strict enforcement of page limits established in the Local Rules – espe-
cially when the Federal Defendants themselves made such a huge issue of it
earlier in the case (Doc. 48).
6) Granting the Federal Defendants extra pages would be contrary to this
Court’s prior ruling: “The Local Rules impose page limits for a reason: the
maintenance of judicial economy.” Doc. 67 at 6.
7) To add outrage to insult, the Federal Defendants also ask to be given an ad-
ditional 29 days to file their reply brief – delaying their deadline from Sept.
1 to Sept. 30 to postpone by a full month this Court’s likely decision to vacate
the Federal Transportation Mask Mandate (“FTMM”) and International
Traveler Testing Requirement (“ITTR”). This Court’s rules are clear: “A
party may reply to a response to a motion for summary judgment within 14
days after service of the response.” Local Rule 3.01(d). My response was filed
Aug. 18. Add 14 days = the reply deadline is Sept. 1. The Court should not
grant any extension.
8) The Federal Defendants and I had an agreement on briefing the three dis-
positive motions before the Court not involving the Local Defendants: Docs.
1 Although I understand in some other federal courts, parts of briefs such as table of contents,
signature, certificate of service, etc. are not included in page/word limits, the Local Rules in this
district are clear that all page limits apply “inclusive of all parts.”
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83 (amended at 127-1) and 125 (times two). As noted in the parties’ unop-
posed motions (Docs. 103 & 104) and approved by this Court (Doc. 105), the
federal government and I agreed our briefs would stay within the limits of
the Local Rules while consolidating them. There was no agreement to extend
any deadlines except I, in good faith, consented earlier to the Federal De-
fendants’ Motion for Extension of Time (Doc. 96; granted by the Court at
Doc. 97) to respond to my Motion for Summary Judgment until Aug. 9, the
same deadline for them to answer or otherwise respond to the Complaint.
The instant motion to give the Federal Defendants 29 extra days to reply and
an additional 18 pages violates the spirit, if not the letter, of the agreement.
9) I had to spend numerous hours cutting down my combined brief (Doc. 130)
from the first draft of 62 pages to comply with the 47-page limit the parties
agreed on and the Court approved. This number was based in part on the
seven-page reply-brief maximum (7 reply + 20 opposition + 20 opposition
= 47). I thought about seeking leave for extra pages, but opted not to because
it would have violated the parties’ agreement (even though one could argue
it would have only been fair given that the Federal Defendants submitted an
extra 18 pages beyond the 70-page limit). There were several sections of my
combined brief I had to chop in great despair because the arguments were
so strong. Trimming to meet the page limit the parties agreed on was not an
easy task. Therefore I find it disrespectful to be hit by the Federal Defendants
with a request for another 18-page page violation of our agreement (not to
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mention a bad-faith request to delay disposition of the motions by a month
to intentionally ensure I can’t fly to Germany to visit my family Sept. 12).
10)
Beyond the seven pages permitted by Local Rule 3.01(d), the Federal De-
fendants will have an opportunity to reply to any assertions I made in my
opposition brief (Doc. 130) at oral argument, which I have requested (Docs.
83-15 & 130-22). Oral argument is a better forum than an expansive and se-
verely delayed reply brief for the government to address any “new issues”
raised in my opposition because I will have a fair opportunity to immediately
respond, and the Court will likewise have the chance to ask questions inquir-
ing into both parties’ positions in this important case of first impression na-
tionwide.
11)
The Court previously denied my efforts to get modifications to the rules
governing motions. Likewise the Federal Defendants “offer[] no persuasive
reason based in the law to support the requested relief. … the case must con-
tinue forward as required by the rules and orders of this Court.” Doc. 90 at
4.
12)
The Court should ignore the Federal Defendants’ silly assertion that I
“filed [my] combined brief early.” Doc. 133 at ¶ 3. The Local Rules set dead-
lines for when briefs must be filed; they do not set dates before which filings
may not be made. My combined brief (Doc. 130) included a reply to the Fed-
eral Defendants’ Opposition to my Motion for Summary Judgment. Per Lo-
cal Rule 3.01(d), I had a maximum of 14 days to file my combined brief (Aug.
Case 6:21-cv-00975-PGB-DCI Document 136 Filed 08/24/21 Page 5 of 10 PageID 4756
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9 + 14 = Aug. 23). That I filed five days ahead of the deadline (Aug. 18) does
not make the filing “early” – it just means, consistent with my posture
throughout this case – I worked hard to get my brief filed as quickly as pos-
sible.
13)
Even if the Court were to buy this “filed early” nonsense, my brief was
submitted five days ahead of the deadline. Yet the Federal Defendants some-
how ask this Court for an additional 29 days to reply. This argument just
doesn’t compute except that Defendant President Biden wants to delay as
long as possible the embarrassment of having one of his signature campaign
promises (the FTMM) struck down when he’s already facing plunging poll
numbers because of the Afghanistan debacle, he lost tonight at the Supreme
Court on immigration enforcement,2 and he’s expected to suffer a humiliat-
ing thrashing at the high court this week or next on Defendant CDC‘s Evic-
tion Moratorium.3 As with the FTMM and ITTR orders themselves, this de-
sire to delay delay delay is based solely on politics. The Court should not
endorse it.
14)
The Federal Defendants complain that “Plaintiff’s combined brief was
also accompanied by 218 new exhibits, totaling over 1,500 additional pages.”
Doc. 133 at ¶ 3. They note they filed three different certified administrative
records, but fail to mention those totaled 633 pages. My lengthy submission
2 Biden v. Texas, No. 21A21 (Aug. 24, 2021); Ex. 1
3 Alabama Ass’n of Realtors v. HHS, No. 21A23
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of exhibits was warranted to contradict the materials in the administrative
record, showing the Federal Defendants failed to consider numerous prob-
lems with the FTMM and ITTR, and did not consider less restrictive alter-
natives that don’t violate constitutional rights.
15)
No one can read with a straight face the Federal Defendants’ claim that
they “respectfully request a brief period of additional time to prepare their
reply...” Id. at ¶ 6 (emphasis added). When the rule allots 14 days to reply
and a party asks for 43 days instead, that is the complete opposite of “a brief
period of additional time.” That is in fact more than triple the time author-
ized by Local Rule 3.01(d).
16)
The fact that Stephen Pezzi of the U.S. Department of Justice (“DOJ”),
counsel for the Federal Defendants, needs to “avoid conflicts with the pre-
existing professional obligations” is not good cause to delay for a month the
resolution of this case when I (and tens of millions of Americans similarly
situated) have been prohibited from using any mode of public transportation
for nearly three months because of the illegal FTMM and ITTR. I, as a soli-
tary pro se plaintiff, was able to wade through the government’s 88-page
combined brief plus 633 pages of the administrative record, then drafted a
47-page response brief with 218 exhibits in nine days. Then surely the
mighty DOJ can write a seven-page reply brief in 14 days. If Mr. Pezzi is un-
available to write seven pages in a two-week period, his co-counsel in this
case, Adam Smart, or others within DOJ could assume that small task.
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17)
I strongly object to the Federal Defendants’ statement that “This request
would not meaningfully prejudice any other party.” Doc. 133 at ¶ 7. As noted,
I have been banned from flying or using any other mode of public transport
for months because of the illegal FTMM and ITTR. A one-month delay would
be extremely prejudicial to me as I remain stranded in Florida pending (at
least a partial) resolution of this lawsuit.
18)
The Federal Defendants’ motion to delay a month is made in bad faith
when it acknowledges I have rebooked (for a third time) my flight to Ger-
many to visit my brother and his wife Sept. 12. Id. The government incor-
rectly asserts that “even on the current schedule, there is no realistic possi-
bility that judgment would be entered before September 12, particularly
given Plaintiff’s desire for oral argument…” Id. That’s not true. Once the Fed-
eral Defendants file their reply brief Sept. 1 as required by Local Rule
3.01(d), the case could and should be transferred back to District Judge Paul
Byron (as I have asked for during this entire litigation; see Docs. 46, 58, 61,
83-15, 100-8, 101-1, & 130-22). Judge Byron could decide the motions on the
briefs or schedule oral argument for Sept. 2-9, when his schedule is quite
open. Ex. 2. While admittedly a tight timeline, it would not be impossible for
Judge Byron to issue a decision by Sept. 11 – at least on summary judgment
in my favor on two counts of the Complaint (one on FTMM and one on ITTR)
before my flight to Germany departs Sept. 12. The entire case (16 counts vs.
the Federal Defendants and two counts vs. the Local Defendants) would not
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have to be decided by Sept. 11 as I only need prevail on one count to vacate
the FTMM and one count to vacate the ITTR.
19)
Even if it proves too tight of a timeline for the Court to at least partially
resolve this case by Sept. 11, that does not give the government justification
for seeking a one-month delay in filing its seven-page reply. I could change
my ticket to Germany for a fourth time by moving back the trip a couple
weeks if needed for this Court to hold oral argument and render at least a
partial judgment. But any further changes to my travel plans should be due
to the Court’s schedule, not an unnecessary 29-day delay sought by the Fed-
eral Defendants.
20)
Finally, the government contends “there is no justification for any atypi-
cal urgency, given that … Plaintiff abandoned his efforts to obtain a prelim-
inary injunction…” Doc. 133 at ¶ 7. But I am not asking for “any atypical ur-
gency.” I simply want the Court to enforce its own rules stating the Fed-
eral Defendants have 14 days to file a reply brief not exceeding seven pages.
I am not the party asking for the Court to grossly bend the rules; the govern-
ment is. And I “abandoned” efforts to obtain a preliminary injunction be-
cause of the Federal Defendants’ actions, which this Court mistakenly ap-
proved. However, I retain the right at any time to seek a PI. I have not done
so because it appears all parties concur this case can and should be resolved
on the merits as quickly as possible. Moving for a PI at this stage in the case
would only muddy the waters and likely lead to further delays in deciding
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the merits. However, should the Court grant the government’s request for a
one-month delay in filing a seven-page reply, I would be well within my
rights to immediately move for an expedited preliminary injunction to make
my Sept. 12 flight – creating even more work for Mr. Pezzi and his colleagues
(not to mention the Court).
WHEREFORE, I request this Court issue an order denying the Federal Defend-
ants’ Motion for Leave to file excess pages and delay the case by 29 days (Doc. 133).
The government should be directed to comply with the Local Rules by filing a
seven-page reply brief no later than Wednesday, Sept. 1, after which I urge the
Court to promptly schedule oral argument.
Respectfully submitted this 24th day of August 2021.
Lucas Wall, plaintiff
435 10th St., NE
Washington, DC 20002
Telephone: 202-351-1735
E-Mail: Lucas.Wall@yahoo.com
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