Magistrate Judge’s Report and Recommendation — Wall v. CDC

Record facts

UNITED STATES DISTRICT COURT · No. 6:21-cv-00975-PGB-DCI · Doc. 155 · 2021-10-07 · Docket on CourtListener

Full text

UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF FLORIDA 
ORLANDO DIVISION 
 
LUCAS WALL,  
 
 
Plaintiff, 
v. 
Case No: 6:21-cv-975-PGB-DCI 
 
CENTERS FOR DISEASE CONTROL 
& PREVENTION et al., 
 
 
Defendants. 
 
 
REPORT AND RECOMMENDATION 
This matter is before the undersigned upon referral of the following motions for 
consideration and issuance of a report and recommendation: 
 Motion to Dismiss Count 17 by Defendant Greater Orlando Aviation Authority 
(GOAA) (Doc. 49); 
 Motion to Dismiss Count 18 by Defendant Central Florida Regional Transportation 
Authority (LYNX) (Doc. 82); 
 Motion for Summary Judgment Against All Federal Defendants on Counts 1-2, 4-
6, 9-10, 12, 19-20, & 22-23 by Plaintiff (Doc. 83); and 
 Motion to Dismiss and Cross Motion for Summary Judgment by Defendants 
Centers for Disease Control and Prevention (CDC), Department of Health and 
Human Services (HHS), Transportation Security Administration (TSA), 
Department of Homeland Security (DHS), Department of Transportation (DOT), 
and Joseph R. Biden, Jr., in his official capacity as President of the United States 
of America (collectively, the Federal Defendants) (Doc. 125). 
It is respectfully recommended that the Complaint be dismissed without prejudice (and 
with leave to re-plead), except that: (1) the claims against DHS, TSA, and DOT be dismissed 
without leave to replead in this Court (i.e., a district court); and (2) the claims against the President 
of the United States, GOAA, and LYNX be dismissed with prejudice.  If the Complaint is 
dismissed, the motions for summary judgment should be denied as moot. 
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I. 
Introduction  
On June 7, 2021, Plaintiff brought the 206-page Complaint, which contains 23 different 
counts.  Doc. 1.1  After 182 pages and 960 paragraphs of text, the counts begin.  Count 1 begins 
with the following statement: 
For this and all other causes of action, I reallege and incorporate by reference the 
allegations and facts contained in all of the preceding paragraphs as though set forth 
fully herein. 
 
Doc. 1 at 182.  In the counts (using their headings as a summary of the claims and bolding to 
identify the affected defendants), Plaintiff alleges the following: 
1. Violation of the Administrative Procedure Act [APA] against Defendants CDC & 
HHS: CDC failed to observe the notice and comment procedure required by law before 
ordering the Federal Transportation Mask Mandate [FTMM]. 
2. Violation of the [APA] against Defendants CDC & HHS: The FTMM does not comply 
with the Regulatory Flexibility Act. 
3. Violation of the [APA] against Defendants CDC & HHS: arbitrary and capricious 
agency action in ordering the FTMM. 
4. Violation of the [APA] against Defendants CDC & HHS: The FTMM exceeds CDC’s 
statutory authority under the Public Health Service Act. 
5. Violation of the separation of powers against all Federal Defendants: The FTMM is 
an improper delegation of legislative power. 
6. Violation of the 10th Amendment against all Federal Defendants: The FTMM applies 
to intra-state transportation in direct conflict with the mask policies of 46 states. 
7. Violation of the Fifth Amendment against all Federal Defendants: deprivation of due 
process by assigning FTMM enforcement and exemption powers to private companies 
as well as state, regional, and local agencies with no ability to appeal to a federal 
decisionmaker. 
8. Violation of the constitutional right to freedom of travel against all Federal 
Defendants: The FTMM blocks Americans who can’t or won’t wear a face mask from 
traveling. 
 
1 In violation of Local Rule 1.08(a), the 206-page Complaint appears to be in an 11-point font—
had it been in a compliant font and text size it would certainly be longer. 
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9. Violation of the [APA] against Defendants TSA & DHS: TSA failed to observe the 
notice and comment procedure required by law before ordering security directives and 
an emergency amendment to enforce the [FTMM]. 
10. Violation of the [APA] against Defendants TSA & DHS: The FTMM’s security 
directives and emergency amendment do not comply with the Regulatory Flexibility 
Act. 
11. Violation of the [APA] against Defendants TSA & DHS: arbitrary and capricious 
agency action in ordering the FTMM’s security directives and emergency amendment. 
12. Violation of the [APA] against Defendants TSA & DHS: The FTMM’s security 
directives and emergency amendment exceed TSA’s statutory authority to ensure 
transportation security. 
13. Violation of the separation of powers against Defendant DOT: The Federal Transit 
Administration’s withholding of funds from state, regional, and local authorities that 
fail to enforce the FTMM is an impermissible breach of Congress’ constitutional power 
of the purse. 
14. Violation of the Air Carrier Access Act against all Federal Defendants: The FTMM 
does not comply with Defendant DOT’s regulations concerning how to treat passengers 
with a known communicable disease. 
15. Failure to enforce the Air Carrier Access Act against Defendant DOT: DOT has 
allowed airlines to prohibit all passengers with disabilities who can’t wear face masks 
from flying and/or impose numerous onerous requirements to obtain an exemption that 
violate the ACAA and its accompanying regulations. 
16. Violation of the [APA] against Defendant DOT: arbitrary and capricious agency action 
by the Federal Railroad Administration and the Federal Motor Carrier Safety 
Administration in ordering enforcement of the FTMM. 
17. Violation of Florida law against Defendant [GOAA]: Requiring passengers and 
employees to wear face coverings in defiance of Executive Order 21-102. 
18. Violation of Florida law against Defendant [LYNX]: Requiring passengers and 
employees to wear face coverings in defiance of Executive Order 21-102. 
19. Violation of [APA] against Defendants CDC & HHS: CDC failed to observe the notice 
and comment procedure required by law before ordering the International Traveler 
Testing Requirement [(ITTR)]. 
20. Violation of [APA] against Defendants CDC & HHS: The ITTR does not comply with 
the Regulatory Flexibility Act. 
21. Violation of [APA] against Defendants CDC & HHS: arbitrary and capricious agency 
action in ordering the ITTR. 
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22. Violation of Administrative Procedure Act against Defendants CDC & HHS: The 
ITTR exceeds CDC’s statutory authority under the Public Health Service Act. 
23. Violation of the separation of powers against all Defendants Biden, CDC, & HHS: 
The ITTR is an improper delegation of legislative power. 
Doc. 1 at 182-202 (emphasis added). 
Underlying these broad claims is a simple incident.  On June 2, 2021, Plaintiff allegedly 
attempted to board a flight at the Orlando International Airport and TSA officers did not permit 
Plaintiff to pass through the security checkpoint at the airport because Plaintiff refused to wear a 
mask.   
According to Plaintiff, he purchased his airline ticket from Southwest Airlines on May 31, 
2021, and “immediately” after booking that flight he completed Southwest’s “Passenger 
Application for Exemption to Federal Mask Requirement.”  Doc. 1 at 7.  Instead of submitting a 
medical basis for exemption, it appears that Plaintiff wrote on the form, in sum, that the 
requirement to obtain an exemption in the manner requested by Southwest was illegal.  Id. at 7-8.  
Plaintiff received an automated response that consideration of his request “may” take up to 30 
days.  Id. at 8.  Two days later, and without a mask exemption or a decision on his exemption 
request, Plaintiff went to the airport and, predictably, TSA refused to let him through the security 
checkpoint due to the FTMM.  Plaintiff apparently videoed the incident and posted the video 
online.  Five days later, Plaintiff, proceeding pro se, filed the Complaint.2 
Plaintiff initially sought a temporary restraining order, and the Court denied that request.  
Plaintiff then sought preliminary injunctive relief, but ultimately abandoned that relief.  Plaintiff 
has also sought injunctive relief from the Eleventh Circuit Court of Appeals and the United States 
Supreme Court, but those courts denied relief as well.   
 
2 Plaintiff alleges that, at about the same time, he purchased five other airline tickets, including 
one international ticket to Germany.  See Doc. 1 at 6-7. 
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In the meantime, GOAA and LYNX moved to dismiss the single counts naming them, 
Counts 17 and 18, respectively.  Then, Plaintiff moved for summary judgment against the Federal 
Defendants, but only as to Counts 1-2, 4-6, 9-10, 12, 19-20, & 22-23.  After that, the Federal 
Defendants moved to dismiss the Complaint in whole for a violation of Federal Rule of Civil 
Procedure 8 as well as in relation to specific counts and defendants.   The Federal Defendants also 
filed a cross-motion for summary judgment, which was consolidated with their motion to dismiss.  
All these motions are referred to the undersigned for consideration and are ripe for review. 
II. 
Discussion 
A. The Complaint Violates Fed. R. Civ. P. 8 and 10 
 The Complaint is due to be dismissed as a shotgun pleading.  A complaint must contain 
“a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. 
P. 8(a)(2), so as to “give the defendant fair notice of what the . . . claim is and the grounds upon 
which it rests[.]”  Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).  Further, “[a] party 
must state its claims . . . in numbered paragraphs, each limited as far as practicable to a single set 
of circumstances.”  Fed. R. Civ. P. 10(b).  The Court will not “rewrite an otherwise deficient 
pleading in order to sustain an action.”  Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1169 (11th 
Cir. 2014) (citation omitted). 
 “A complaint that fails to comply with Rules 8 and 10 may be classified as a shotgun 
pleading.”  Luft v. Citigroup Global Markets Realty Corp., 620 F. App’x 702, 704 (11th Cir. 2015) 
(internal quotation omitted).  There are four basic categories of shotgun pleadings: 1) those in 
which “each count adopts the allegations of all preceding counts;” 2) those that do not re-allege all 
preceding counts but are “replete with conclusory, vague, and immaterial facts not obviously 
connected to any particular cause of action;” 3) those that do not separate each cause of action or 
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claim for relief into a different count; and 4) those that assert multiple claims against multiple 
defendants without specifying which applies to which.  Weiland v. Palm Beach Cty. Sheriff’s 
Office, 792 F.3d 1313, 1321-23 (11th Cir. 2015).  “The unifying characteristic of all types of 
shotgun pleadings is that they fail to . . . give the defendants adequate notice of the claims against 
them and the grounds upon which each claim rests.”  Id. at 1323.  A court faced with a shotgun 
pleading has the inherent authority to sua sponte demand repleader of such complaints.  See 
Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1280 (11th Cir. 2006) (“Given the district 
court’s proper conclusions that the complaint was a shotgun pleading and that plaintiffs’ failed to 
connect their causes of action to the facts alleged, the proper remedy was to order repleading sua 
sponte.”).   
A court in this district has explained further the district court’s obligation when faced with 
such a pleading: 
The “most common type” of shotgun pleading “is a complaint containing multiple 
counts where each count adopts the allegation of all preceding counts.” Weiland, 
792 F.3d at 1321. Shotgun pleadings also may “begin with a long list of general 
allegations” that are “incorporated by reference into each count of the complaint.” 
See Johnson Enters. of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290, 1333 
(11th Cir. 1998); Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1359 n.9 (11th 
Cir. 1997) (noting the “all-too-typical shotgun pleading” where the first paragraph 
of each count “incorporates by reference” all of the factual allegations). 
 
The U.S. Court of Appeals for the Eleventh Circuit warns that actions founded on 
shotgun pleadings should not be permitted because “issues are not joined, discovery 
is not controlled, the trial court’s docket becomes unmanageable, the litigants 
suffer, and society loses confidence in the court’s ability to administer justice.” See 
Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. College, 77 F.3d 364, 367 (11th 
Cir. 1996); see also Chapman AI Trans., 229 F.3d 1012, 1027 (11th Cir. 2000) 
(“We have frequently railed about the evils of shotgun pleadings and urged district 
courts to take a firm hand....”). Heeding this warning, when confronted with a 
shotgun complaint, district courts must require the party to replead. See Paylor v. 
Hartford Fire Ins. Co., 748 F.3d 1117, 1127–28 (11th Cir. 2014) (criticizing district 
court for failing to police shotgun pleadings); Starship Enters. of Atlanta, Inc. v. 
Coweta Cty. Ga., 708 F.3d 1243, 1250 n.7 (11th Cir. 2013) (explaining that shotgun 
pleadings may constitute “an abusive tactic” of litigation). 
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Kendall v. Boston Sci. Corp., No. 6:17-cv-1888-ORL-37GJK, 2017 WL 6042020, at *1 (M.D. Fla. 
Dec. 6, 2017).   
Here, Plaintiff’s Complaint spans 206-pages.  After 182 pages and 960 paragraphs of text, 
Count 1 appears and begins with the following statement: 
For this and all other causes of action, I reallege and incorporate by reference the 
allegations and facts contained in all of the preceding paragraphs as though set forth 
fully herein. 
 
Doc. 1 at 182 (emphasis added).    This is problematic for several reasons; the Complaint contains 
a few different elements of a shotgun pleading.  It appears that Plaintiff is attempting to incorporate 
all 960 paragraphs of text into each of the 23 counts.  But the sheer length of the Complaint means 
that it is almost impossible to determine—or even speculate as to—which of the 960 paragraphs 
apply to which of the 23 counts.  Though this is a pro se pleading, it is not the Court’s responsibility 
to cobble together portions of the Complaint to create a comprehensible pleading.   
On the other hand, if the Court takes a literal approach—that Plaintiff intends that all 960 
paragraphs of text to apply to each count—then the Court cannot avoid the conclusion that the 
Complaint is replete with conclusory, vague, and immaterial facts not obviously connected to each 
cause of action in which they pled.  And Plaintiff must intend that some of the preceding 960 
paragraphs contain allegations essential to particular counts, as a closer inspection of the counts 
reveals that many of them simply lack factual allegations sufficient for them to stand on their own 
and, for example, fail to specify which defendant allegedly took which complained of action.  Take 
Count 8, for example.  It contains no factual allegation concerning a particular action by a 
particular defendant, and instead purports to be a claim against “all Federal Defendants.”  Doc. 1 
at 189.  Count 14 is similarly flawed, as are others.  Even some counts naming a single defendant—
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like Count 13 against DOT—fail to specify any particular “violation” by that defendant.  Id. at 
193-94.   
Given the sheer length of the Complaint and breadth of the allegations and requested relief, 
it should be no surprise that the Complaint blends several characters of a shotgun pleading into 
one lengthy document.  Regardless of what its coined, it is, as the Federal Defendants argue, a 
pleading that fails to comply with Rules 8 and 10.  Plaintiff’s arguments to the contrary are 
unpersuasive.  In fact, Plaintiff never actually asserts that his Complaint is compliant with the 
applicable Federal Rules, just that Defendants understand his Complaint and their argument is 
“bogus.”  Doc. 130 at 43-44.  This may not be a concession, but it is indicative of the problem.  
The Complaint is the antithesis of a “a short and plain statement of the claim showing that the 
pleader is entitled to relief.”  Fed. R. Civ. P. 8(a)(2).  As such, the undersigned recommends that 
it be dismissed with leave to re-plead, subject to the limitations to be discussed in the following 
paragraphs. 
B. Certain of the Federal Defendants Should be Dismissed from this Case 
The claims against DHS, TSA, and DOT should be dismissed without leave to re-plead in 
district court, and the claims against the President of the United States should be dismissed with 
prejudice.   
1. Claims Against DHS and TSA (Counts 9-12) 
In Counts 9-12, Plaintiff purports to assert claims against TSA and DHS in relation to their 
issuance of security directives to enforce the FTMM. 
The Federal Defendants argue that all of Plaintiff’s claims challenging TSA security 
directives (i.e., Counts 9-12) should be dismissed because 49 U.S.C. § 46110 vests exclusive 
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jurisdiction over those claims in the courts of appeals.  Doc. 125 at 32-34.  That statute reads in 
relevant part as follows: 
[A] person disclosing a substantial interest in an order issued by the Secretary of 
Transportation (or Administrator of the Transportation Security Administration 
with respect to security duties and powers designated to be carried out by the 
Administrator of the Transportation Security Administration . . . ) in whole or in 
part under [part A], part B, or subsection (l) or [(s)] of section 114 may apply for 
review of the order by filing a petition for review in the United States Court of 
Appeals for the District of Columbia Circuit or the court of appeals of the United 
States for the circuit in which the person resides. . . . 
 
49 U.S.C. § 46110(a).  The statute further provides that the courts of appeals have “exclusive 
jurisdiction to affirm, amend, modify or set aside any part of [such an] order.” Id. § 46110(c).  The 
Federal Defendants go on to explain that the TSA Security Directives (and Emergency 
Amendment) challenged here are all orders that fall within § 46110’s exclusive jurisdictional 
channel to the courts of appeals because each order was issued pursuant to TSA’s authority under 
Part A (“Air Commerce and Safety”) of Title 49 and Section 114(l).  Doc. 125 at 33.  Citing as 
support opinions from the Eleventh Circuit and other courts, the Federal Defendants state that the 
Court lacks jurisdiction over Counts 9-12 and, as such, those Counts must be dismissed.  Doc. 125 
at 33-34 (citing Green v. Brantley, 981 F.2d 514, 519 (11th Cir. 1993) (finding that district court 
lacked jurisdiction to review challenge to FAA order); Corbett v. United States, 458 F. App’x 866, 
870 (11th Cir. 2012) (finding that district court lacked jurisdiction to review TSA security 
screening procedure); Gilmore v. Gonzales, 435 F.3d 1125, 1133 (9th Cir. 2006) (finding that 
district court lacked jurisdiction to review TSA Security Directive requiring passengers to present 
identification); Merritt v. Shuttle, Inc., 245 F.3d 182, 187 (2d Cir. 2001) (“Section 46110(c) 
precludes federal district courts from affirming, amending, modifying, or setting aside any part of 
such an order.”); Amerijet Int’l v. DHS, 43 F. Supp. 3d 4, 13-14 (D.D.C. 2014) (finding that TSA 
Security Directive is an “order” within the meaning of section 46110); Durso v. Napolitano, 795 
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F. Supp. 2d 63, 69 (D.D.C. 2011) (finding that the court lacked jurisdiction over claim challenging 
TSA screening order). 
In response, Plaintiff asserts that the Court can adjudicate the claims against TSA because, 
in sum, the FTMM and ITTR are not “orders” and, thus, fall outside the purview of § 46110.  Doc. 
130 at 26-28.3  Further, Plaintiff asserts that judicial economy necessitates that the Court accept 
jurisdiction of these claims and that to do otherwise would produce “absurd results.”  Id. at 27.  
Plaintiff cites absolutely no legal authority for his contentions.   
The undersigned agrees with the Federal Defendants.  Counts 9-12 challenge actions by 
TSA that the Federal Defendants assert—without contradiction—were issued pursuant to TSA’s 
authority under Part A (“Air Commerce and Safety”) of Title 49 and Section 114(l).  And the 
undersigned does not find dispositive the fact that the challenged action is not called an “order.”  
See Gilmore v. Gonzales, 435 F.3d 1125, 1133 (9th Cir. 2006) (finding that district court lacked 
jurisdiction to review TSA Security Directive requiring passengers to present identification); 
Amerijet Int’l v. DHS, 43 F. Supp. 3d 4, 13-14 (D.D.C. 2014) (finding that TSA Security Directive 
is an “order” within the meaning of § 46110).  Nor is the undersigned persuaded that concepts of 
judicial economy or the avoidance of a particular result should control if the claims against TSA 
or DHS fall within the purview of § 46110.   
Accordingly, the undersigned respectfully recommends that the Court lacks subject matter 
jurisdiction to adjudicate Counts 9-12, and those Counts should be dismissed. 
 
 
 
3 It appears that Plaintiff’s argument in response goes only to Counts 9, 11, and 12, and, thus, 
Plaintiff has made no argument against dismissal of Count 10 on this basis. 
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2. Claims Against DOT (Count 15) 
In Count 15, Plaintiff purports to assert a claim that DOT failed to enforce the Air Carrier 
Access Act (ACAA) and its accompanying regulations because DOT allegedly allowed airlines to 
prohibit all passengers with disabilities who cannot wear face masks from flying and to impose 
numerous onerous requirements to obtain an exemption. 
The Federal Defendants argue that the Court should dismiss Count 15 because the Court 
lacks jurisdiction to consider that “claim for at least two reasons: (1) the courts of appeals have 
exclusive jurisdiction to consider any claim regarding DOT’s actions under the ACAA, and (2) 
Plaintiff cannot satisfy the stringent requirements for mandamus jurisdiction.”  Doc. 125 at 34-40.   
As to the first argument, and as with the claims against TSA, the Federal Defendants assert 
that because “the ACAA falls within Part A (‘Air Commerce and Safety’) of Title 49, the courts 
of appeals have ‘exclusive jurisdiction to affirm, amend, modify or set aside any part’ of any 
enforcement order issued under the ACAA. 49 U.S.C. § 46110(c).”  Doc. 125 at 35.  Further, the 
Federal Defendants assert that it makes no difference that Plaintiff is challenging a failure to act, 
and not an action itself.  Id. (citing Kabeller, Inc. v. Busey, 999 F.2d 1417, 1421-22 (11th Cir. 
1993) (per curiam); Air Lines Pilots Ass’n v. CAB, 750 F.2d 81, 84 (D.C. Cir. 1984); Telecomms. 
Rsch. & Action Ctr. v. FCC, 750 F.2d 70, 77 (D.C. Cir. 1984)).  In Kabeller, for example, the 
Eleventh Circuit explained that “where a statute commits review of agency action to the Court of 
Appeals, any suit seeking relief that might affect the Circuit Court’s future jurisdiction is subject 
to the exclusive review of the Court of Appeals.”  Id. at 1420. 
In response to this first point, Plaintiff again makes no attempt to distinguish the foregoing 
authorities cited by the Federal Defendants and cites no decisional authority to the Court in return.  
Doc. 130 at 37-40.  Instead, Plaintiff quotes the various statutes and regulations at issue and 
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provides his own interpretations, asserting that the challenged agency action is neither an “order” 
nor is it issued by the Secretary of Transportation, so § 46110 does not apply to vest jurisdiction 
in the courts of appeals.  Id.4 
As with the claims against TSA and DHS, the undersigned agrees with the Federal 
Defendants that the claims against DOT in Count 15 should be dismissed as jurisdiction is vested 
in the courts of appeals pursuant to § 46110. 
In addition, the Federal Defendants argue that Plaintiff’s request for mandamus relief in 
Count 15 should be dismissed because Plaintiff has failed to meet either of the requirements for 
seeking such relief under 28 U.S.C. § 1361.  Doc. 125 at 36-40.  “Mandamus jurisdiction is 
appropriate only where (1) the defendant owes a clear nondiscretionary duty to plaintiff and (2) 
the plaintiff has exhausted all other avenues of relief.”  Lifestar Ambulance Serv., Inc. v. United 
States, 365 F.3d 1293, 1295 (11th Cir. 2004); see Heckler v. Ringer, 466 U.S. 602, 616 (1984) 
(explaining that mandamus “is intended to provide a remedy for plaintiff only if he has exhausted 
all other avenues of relief” and “the defendant owes him a clear nondiscretionary duty”).  The 
undersigned recommends that this argument should not be reached if the Court finds that 
jurisdiction lies in the courts of appeals. 
 
4 The undersigned notes that in his response on this issue Plaintiff appears to demand discovery.  
This occurs throughout his response.  To the extent Plaintiff is attempting to compel or request 
discovery through the response, that request is denied as improper.  A party cannot make a request 
for relief in a response, and certainly not in a response to a motion to dismiss and for summary 
judgment.  On the other hand, to the extent Plaintiff is simply attempting to avoid summary 
judgment as premature because he requires discovery, this is a bit ironic because Plaintiff moved 
for summary judgment first (Doc. 83).  Regardless, the undersigned is recommending that the 
Complaint be dismissed and is not providing any recommendation concerning summary judgment 
other than both motions for summary judgment should be denied as moot.  So, Plaintiff’s apparent 
demands for discovery—whether as actual demands or simply to avoid summary judgment—are 
also moot.   
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Nevertheless, alternatively, the undersigned agrees that the request for mandamus relief is 
due to be denied.  “The party seeking mandamus has the burden of demonstrating that his right to 
the writ is clear and indisputable.”  Hakki v. Sec'y, Dep't of Veterans Affs., 7 F.4th 1012, 1036-37 
(11th Cir. 2021) (internal citations and quotations omitted).  First, the Federal Defendants argue 
that Plaintiff failed to allege that he followed or exhausted other available avenues for relief.  The 
undersigned agrees.  Indeed, Plaintiff sought an exemption just days before attempting to board a 
flight, and his exemption request appears—according to the Complaint—to have been based on 
the asserted illegality of the exemption process, not a disability or medical issue that would have 
prevented him from wearing a mask.  Further, the Complaint was filed within days of his attempt 
to board his first of several booked flights, and there are no allegations that Plaintiff attempted to 
obtain a mask exemption from any agency or airline in relation to any of those other flights.  In 
response, Plaintiff appears to baldly assert that exhaustion would be futile because the agencies 
involved are biased or somehow acting in bad faith.  But Plaintiff makes no allegations that 
plausibly support that conclusion.5  Further, as the Federal Defendants assert, there is no allegation 
by Plaintiff that he attempted to follow DOT’s complaint procedures by making any kind of 
complaint to DOT prior to filing this case.   
Second, the undersigned agrees that Plaintiff has failed to allege a “clear and undisputable 
right to require DOT to take an enforcement action.”  Doc. 125 at 38-40.  Plaintiff almost entirely 
 
5 Here, the undersigned notes that every court in which Plaintiff would litigate his claims—this 
Court, the Eleventh Circuit Court of Appeals, and the United States Supreme Court—have rules 
in place that require litigants to wear masks in court facilities as part of the courts’ COVID-19 
protocols.  Plaintiff’s conclusory allegations that a mask requirement by a government agency (or 
a branch of the United States government) somehow itself evidences bias by that agency (or the 
futility of an exemption request) is baseless and fails to meet the plausibility standard of Ashcroft 
v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a motion to dismiss, a complaint must contain 
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”). 
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fails to address this issue in his response.  See Doc. 130 at 37-40.  Regardless, it appears that 
Plaintiff simply wants DOT to exercise its discretion to take a different action than it has (by acting 
in a way consistent with Plaintiff’s definition of enforcement of the ACAA),6  and he has neither 
alleged nor established that DOT “owes him a clear nondiscretionary duty” to take the action 
Plaintiff desires—i.e., enforcement of the ACAA in such a way that allows Plaintiff to forgo 
wearing a mask or to forgo seeking an exemption from wearing a mask.  Cash v. Barnhart, 327 
F.3d 1252, 1258 (11th Cir. 2003).  Thus, the undersigned alternatively recommends that Count 15 
against DOT be dismissed to the extent Plaintiff seeks mandamus relief in that Count. 
3. Claims Against The President of the United States (Counts 5-8 and 23) 
In Counts 5-8 and 23, Plaintiff purports to seek relief directly against the President of the 
United States.  The Federal Defendants argue that claims directly against the President must be 
dismissed, as the Court may not order the President to perform any particular action.  Doc. 125 at 
40-41 (citing Mississippi v. Johnson, 71 U.S. 475, 501 (1867) (explaining that federal courts have 
“no jurisdiction of a bill to enjoin the President in the performance of his official duties”); Franklin 
v. Massachusetts, 505 U.S. 788, 802-03 (1992) (plurality op.) (stating that a “grant of injunctive 
relief against the President himself [was] extraordinary, and should have raised judicial 
eyebrows”)).  In response, Plaintiff asserts that the President “set in motion” the FTMM and ITTR 
by issuing Executive Order 13998, which, Plaintiff asserts, the President issued in bad faith.  Doc. 
130 at 41-42.   
 
6 This can be seen by looking to the four paragraphs in the Complaint that make up the actual 
allegations of Count 15.  Doc. 1 at 195. 
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Plaintiff appears to seek declaratory and injunctive relief against the President by naming 
the President as part of the Federal Defendants in Counts 5-8 and 147 and by explicitly naming the 
President in Count 23.  Even without accepting the government’s contention that no claim at all 
can lie against the President for injunctive or declaratory relief in this context, the undersigned has 
little difficulty finding that any claim in the Complaint against the President is due to be dismissed.  
Indeed, the Complaint contains no plausible allegations supporting a request for relief against the 
President.  For example, the executive order that Plaintiff now asserts in his response is so 
fundamental to his claims against the President is not mentioned in any of the Counts naming the 
President.  Indeed, any allegations connecting the President explicitly to the executive order are in 
paragraphs 99 and 139 of the Complaint, and those paragraphs contain no allegations of 
wrongdoing on the part of the President.  The executive order is mentioned a few more times in 
the body of the Complaint, but almost always in the context of an agency’s actions implementing 
it, not specifically concerning the executive order or any action by the President.  Finally, 
paragraph A in the request for relief does contain a request that the Court find the executive order 
unconstitutional, but that is untethered to any count or any particular action by the President.  So, 
Plaintiff’s argument in the response is unpersuasive.  Thus, the undersigned recommends that any 
claim against the President is due to be dismissed. 
C. Plaintiff Lacks Standing for Claims Challenging the ITTR (Counts 19-23) 
In Counts 19-23, Plaintiff challenges the ITTR.  The Federal Defendants assert that 
Plaintiff lacks standing to challenge the ITTR because there is no evidence in the record that the 
Defendant currently has any international travel plans, and his alleged trip to visit his brother in 
 
7 The Federal Defendants do not identify Count 14 in this portion of their motion, but the analysis 
applies with equal force to this Count.   
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Germany has “long since passed.”  Doc. 125 at 41-42.  The Federal Defendants assert, in sum, that 
now that the time for Plaintiff’s international trip has passed, Plaintiff has no concrete plans for 
international travel and, thus, there is no “actual or imminent injury that the Supreme Court 
requires.” Id. (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 564 (1992)).  Plaintiff states that 
he clearly has been attempting to visit his brother in Germany and has rescheduled the trip due to 
this litigation.  Doc. 130 at 42-43.   
The undersigned agrees with the Federal Defendants that there are no allegations in the 
Complaint—or evidence in the record—that support a finding that Plaintiff currently has an 
international trip planned.  That said, Plaintiff did have such a trip planned and has rescheduled 
that trip during this litigation—often requesting expedited rulings so that he could make the trip.  
Indeed, when Plaintiff filed his response on August 18, 2021, he asserted that he had an 
international trip planned for September 12, 2021.  Doc. 130 at 43.  So, while the undersigned 
recommends that Counts 19-23 be dismissed based on the current record before the Court, no 
further opinion is expressed concerning the ability of Plaintiff to replead claims related to the ITTR 
in any amended complaint filed.   
D. Claims Against GOAA and LYNX 
In Counts 17 and 18, Plaintiff purports to assert claims against GOAA and LYNX 
respectively.  In each Count, Plaintiff alleges that these non-federal entities violated Florida 
Executive Order 21-102 (issued by Florida Governor Ron DeSantis) by enforcing a mask mandate, 
i.e., the FTMM.  That state executive order, in relevant part, prohibits localities in Florida from 
enacting and enforcing mask mandates.  
Both GOAA and LYNX move to dismiss on various grounds, including that the Complaint 
is a shotgun pleading.  The Court agrees.  But not only is the Complaint a shotgun pleading as 
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already stated herein, these claims are simply not cognizable in federal court.8  Indeed, in Counts 
17 and 18, Plaintiff fails to state any plausible claim for relief, and the Counts are due to be 
dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for at least two reasons. 9  First, as 
GOAA and Lynx persuasively argue, there is no private right of action under the executive order.  
Looking to the plain language of the executive order, it provides for no such action, whether 
explicitly or implicitly.  Second, even if there were a private right of action, the allegations in the 
Complaint do not support a conclusion that GOAA or LYNX violated the executive order.  Indeed, 
 
8 Indeed, though not directly raised by GOAA or LYNX, the undersigned is concerned that the 
Court lacks subject matter jurisdiction to adjudicate these claims, which are essentially claims that 
a state or municipal entity failed to follow the executive order of the state’s governor.  No 
jurisdictional basis is explicitly stated in the Complaint for these claims, and they involve no 
federal question.  Nor do the claims involve questions of fact or law so intertwined with Plaintiff’s 
claims against the Federal Defendants that judicial economy, fairness, convenience, or comity 
would be served by this Court (in this case) determining whether these state or municipal entities 
violated their state governor’s executive order concerning COVID-19 and (intertwined with that) 
whether any person may bring an action for such an alleged violation—which is a novel and 
complex issue of state law.  See Ameritox, Ltd. v. Millennium Lab'ys, Inc., 803 F.3d 518, 532 (11th 
Cir. 2015) (finding that a district court’s decision to retain supplemental jurisdiction over novel 
and complex state law claims was an abuse of discretion). To the extent Plaintiff is inviting the 
Court to exercise supplemental over these claims, it is recommended that the Court instead exercise 
its discretion to decline that invitation.  This is an independent basis to dismiss these claims, and 
if the Court agrees, it obviates the need to address the merits of the Rule 12(b)(6) challenges by 
GOAA and LYNX. 
   
9 In addition, GOAA—but not LYNX—asserts Count 17 is due to be dismissed with prejudice 
pursuant to Rule 12(b)(1) because Plaintiff lacks standing as he suffered no injury in fact—i.e., 
GOAA officials allowed Plaintiff to remove his mask at the airport when he stated that he had 
applied for a medical exemption with the airline.  Doc. 49 at 5-8.  Plaintiff responds that he did 
suffer an injury because he was “bothered” by GOAA officials and that was an invasion of his 
privacy.  Doc. 100.  The undersigned recommends that Plaintiff has attempted to allege a claim 
based on GOAA’s alleged enforcement of the FTMM in violation of state law—and he has alleged 
that GOAA enforced the FTMM, even if he was granted an on-the-spot exemption.  He appears to 
be alleging that the enforcement in violation of state law harmed him, not that GOAA required 
him to wear a mask, because it did not.  So, while this is an inherent difficulty in attempting to 
construe pro se pleadings such as this one, the undersigned recommends that Count 17 be 
dismissed because it fails to state any claim for relief, not because Plaintiff lacks standing to bring 
it.  Of course, if the Court determines Plaintiff lacks standing it need not address whether the claim 
was sufficiently pled. 
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the executive order applies to enactments and restrictions issued by local governments.  GOAA 
and LYNX are not local governments, nor (even if they could be construed as such) did they make 
any enactment or restriction, nor did they enforce any enactment or restriction by a local 
government.  The regulations enforced here were federal regulations enacted by federal agencies, 
and Florida’s executive order does not apply to federal agencies or the regulations they issue.10    
While the Court has considered them, Plaintiff’s arguments against GOAA’s and LYNX’s 
motions to dismiss are entirely inapposite and warrant little discussion.  Overall, in response, 
Plaintiff attempts to save Counts 17 and 18 by stating that they allege something that they do not—
whether a violation of federal regulations, or the Florida constitution, or the United States 
Constitution.  But in considering a motion to dismiss, the Court considers the claims alleged in the 
Complaint, not any recharacterization of those claims in a plaintiff’s response to a motion to 
dismiss.   
Accordingly, the undersigned recommends that Counts 17 and 18 against GOAA and 
LYNX, respectively, be dismissed.   
E. Whether Dismissal is With Prejudice 
Finally, the undersigned acknowledges that the Court must liberally construe pro se 
pleadings and has done so in this case.  Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th 
Cir. 1998).  A pro se pleading, however, must “still comply with procedural rules governing the 
proper form of pleadings,” Hopkins v. St. Lucie Cnty. Sch. Bd., 399 F. App’x 563, 565 (11th Cir. 
 
10 The undersigned notes that even if Plaintiff’s claims were otherwise cognizable, it appears that 
Plaintiff failed to comply with Florida Statutes section 768.38 because Counts 17 and 18 fall within 
the newly-enacted statute’s requirements for COVID-19 claims against governmental entities, and 
those Counts are neither pled with particularity nor contains the required physician’s affidavit.  
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2010),11 because the Court will not “rewrite an otherwise deficient pleading in order to sustain an 
action,” Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1169 (11th Cir. 2014) (citation omitted).  A 
pro se plaintiff must generally be given one chance to amend a pleading “if it appears a more 
carefully drafted [pleading] might state a claim upon which relief can be granted even if the 
plaintiff never seeks leave to amend.”  Silva v. Bieluch, 351 F.3d 1045, 1048-49 (11th Cir. 2003) 
(internal quotations omitted).   
Here, the undersigned recommends that Plaintiff be given leave to replead all of his claims 
except those against DHS, TSA, DOT, the President of the United States, GOAA, and LYNX.  As 
to those claims, and for the reasons stated in the foregoing paragraphs, the undersigned finds that 
it does not appear that a more carefully drafted pleading might state a claim for relief.  Repleading 
of those claims would be futile. 
III. 
Conclusion 
Accordingly, it is respectfully RECOMMENDED that: 
1. The Motion to Dismiss Count 17 by Defendant Greater Orlando Aviation Authority 
(GOAA) (Doc. 49) should be GRANTED such that Count 17 be dismissed with 
prejudice; 
2. The Motion to Dismiss Count 18 by Defendant Central Florida Regional transportation 
Authority (LYNX) (Doc. 82) should be GRANTED such that Count 18 be dismissed 
with prejudice; 
 
11 In the Eleventh Circuit, unpublished decisions are not binding, but are persuasive authority.  See 
11th Cir. R. 36-2. 
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3. The Motion for Summary Judgment Against All Federal Defendants on Counts 1-2, 4-
6, 9-10, 12, 19-20, & 22-23 by Plaintiff (Doc. 83) be DENIED as moot if the 
Complaint is dismissed as recommended herein;12 and 
4. The Motion to Dismiss and Cross Motion for Summary Judgment by the Federal 
Defendants (Doc. 125) be: 
a. GRANTED in part to the extent that any claims against DHS, TSA, and 
DOT be dismissed without leave to replead in this Court; 
b. GRANTED in part to the extent that any claims against the President of the 
United States, GOAA, and LYNX be dismissed with prejudice; 
c. DENIED as moot to the extent that it requests summary judgment or any other 
relief;13 and 
5. Plaintiff be DIRECTED to file an amended complaint consistent with the Court’s 
order on this Report and Recommendation within a set number of days after that order 
is issued. 
 
 
 
12 The undersigned notes that Plaintiff moved for summary judgment before the Federal 
Defendants had even responded to the Complaint.  In turn, the Federal Defendants moved for 
summary judgment as they responded to the Complaint.  The result is much spilled ink on 
judgment prior to the pleadings even being set.  To be sure, the parties requested, and the Court 
granted, leave to take this procedural course (and to greatly exceed the normal page limitations 
and restrictions on replies), but leave should not be confused for an endorsement. 
 
13 In making the foregoing recommendations, the undersigned has not addressed several other 
grounds for dismissal asserted by the Federal Defendants.  Because of the shotgun nature of the 
pleading, those other grounds cannot adequately be addressed.  It is recommended that the Federal 
Defendants motion be denied without prejudice as to all other grounds they assert for dismissal, 
with leave to reassert any basis for dismissal if Plaintiff attempts to replead. 
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NOTICE TO PARTIES 
The party has fourteen days from the date the party is served a copy of this report to file 
written objections to this report’s proposed findings and recommendations or to seek an extension 
of the fourteen-day deadline to file written objections.  28 U.S.C. § 636(b)(1)(C).  A party’s failure 
to serve and file written objections waives that party’s right to challenge on appeal any unobjected-
to factual finding or legal conclusion the district judge adopts from the Report and 
Recommendation.  See 11th Cir. R. 3-1; 28 U.S.C. § 636(b)(1). 
Recommended in Orlando, Florida on October 7, 2021. 
 
 
 
 
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