Reply re Amended ITTR — Wall v. CDC

Record facts

U.S. District Court for the Middle District of Florida (Orlando Division) · No. 6:21-cv-00975-PGB-DCI · Doc. 184 · 2021-12-07 · Docket on CourtListener

Full text

1
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 REPLY TO FEDERAL DEFENDANTS’  
NEWLY RAISED ARGUMENTS REGARDING AMENDED  
INTERNATIONAL TRAVELER TESTING REQUIREMENT 
 
 
COMES NOW plaintiff, pro se, and replies with leave of the Court (Doc. 183) to 
newly raised arguments in the Federal Defendants’ response (Doc. 172) to my ob-
jections (Doc. 171) to the magistrate’s Report & Recommendation (“R&R”) (Doc. 
155). The Federal Defendants argue for the first time that because the Centers for 
Disease Control & Prevention (“CDC”)’s International Traveler Testing Require-
ment (“ITTR”) that I challenge in the Complaint (Doc. 1) was modified Oct. 25 and 
again Dec. 2 (Doc. 181), I can no longer pursue this claim. Doc. 172 at 17-19. The 
Court must disregard this argument because the latest version of the ITTR is sub-
stantially similar to the version I ask the Court to vacate in the Complaint. There is 
no need to amend my Complaint to assert a new challenge against the latest itera-
tion of the ITTR, which took effect Dec 6.  
Case 6:21-cv-00975-PGB-DCI   Document 184   Filed 12/07/21   Page 1 of 6 PageID 5342

 
2
A. I have standing to contest the ITTR in its slightly altered form.  
 
The R&R recommends dismissing the counts of my Complaint attacking the 
ITTR because it claimed I didn’t have an international flight booked in the future, 
even though I’ve already suffered injury numerous times by being unable to use 
previously purchased international airline tickets. But I have placed into evidence 
that I do indeed have a future flight to Germany reserved. It was booked for Dec. 1 
(Doc. 162-1) and is currently set for Dec. 10. Doc. 174. As I notified the Court, “I 
will continue to change it every 10 days until this Court strikes down the ultra vires 
… FTMM and … ITTR.” Doc. 173. 
 
The Federal Defendants wrongly contend that I “can include allegations to that 
effect in an amended complaint, and they can be considered in the normal course.” 
Doc. 172 at 18. Incorrect. Because I’ve suffered prior injuries of denied travel due 
to the ITTR, I already have standing to contest it. And my standing remains current 
anyway because I have a future ticket booked. Doc. 174. There is no need to amend 
my complaint to obtain standing to ask for vacatur of the ITTR.  
 
B. The amended ITTR is substantially similar to the prior version I 
challenge in the Complaint. Repleading is not required. 
 
 
We now move to the issue raised by the Federal Defendants in their response:  
“CDC issued an amended global testing order (effective November 8, 2021), 
which replaces and supersedes the order that is challenged in Plaintiffs’ 
complaint. … assuming that Mr. Wall intends to challenge the amended 
testing order, he would now need to file an amended complaint to do so, 
because the previous order challenged in his complaint is no longer in effect, 
and those claims are therefore moot.” Doc. 172 at 18. 
 
Case 6:21-cv-00975-PGB-DCI   Document 184   Filed 12/07/21   Page 2 of 6 PageID 5343

 
3
 
Not true. The amended ITTR effective Nov. 8 merely changed the number of 
days for unvaccinated airplane travelers bound for the United States to get a neg-
ative COVID-19 test before departure from three to one. The next version, effective 
yesterday, changes the timeframe for vaccinated travelers also from three days to 
one day. All other aspects of the CDC testing order remain the same.   
 
As Defendant TSA has argued in several related cases challenging the Federal 
Transportation Mask Mandate (“FTMM”), three (soon to be four) versions of the 
mask mandate are substantially similar, a position several circuits concurred with.  
“‘[S]equential regulations’ are considered the ‘same order’ … ‘if they arise 
from the ‘same or interrelated proceedings.’ BASF Wyandotte Corp. v. 
Costle, 582 F.2d 108, 112 (1st Cir. 1978) (citation omitted); see also Nat. Res. 
Def. Council, Inc. v. U.S. EPA, 673 F.2d 392, 399 (D.C. Cir. 1980) (per cu-
riam); Westinghouse Elec. Corp. v. U.S. Nuclear Regul. Comm’n, 598 F.2d 
759, 767 (3d Cir. 1979).” Faris v. TSA, No. 21-3951 (6th Cir. Nov. 9, 2021). 
 
 
Were the Court to accept CDC’s argument that a slightly modified ITTR moots 
my challenge, the government could defeat any lawsuit against any order by chang-
ing a few words and issuing a “new” mandate, requiring a plaintiff to amend his 
complaint, triggering a modified order, and then never-ending repetition. The gov-
ernment can’t avoid Administrative Procedure Act challenges to Executive Branch 
orders this way. There is no substantial change to the ITTR that would require me 
to replead. The CDC order still requires all passengers flying to the United States 
(but not those crossing by land or sea) to present a negative COVID-19 test before 
departing. Whether the test must be within one or three days of departure is not 
material. CDC need not produce a new administrative record. I have not yet sought 
summary judgment on my arbitrary-and-capricious count (21). 
Case 6:21-cv-00975-PGB-DCI   Document 184   Filed 12/07/21   Page 3 of 6 PageID 5344

 
4
 
TSA’s arguments before the D.C. Circuit on the FTMM contradict the position 
taken by CDC here. In opposing petitioners’ motion to transfer back to the 11th 
Circuit, the government asserts “Here, the challenged orders are not just interre-
lated, they are substantively identical…” Wall v. TSA (No. 21-1220). The govern-
ment can’t have it both ways, arguing in the TSA cases that the FTMM versions are 
the same order in an attempt to ensure the petitions are consolidated, but then 
telling this Court that the virtually identical ITTR orders are vastly different. 
 
CDC here relies on Nat’l Advert. Co. v. City of Miami, 402 F.3d 1329, 1332-33 
(11th Cir. 2005), but that case held “amendments or revocation of challenged leg-
islation renders the lawsuit moot.” (emphasis added). The ITTR is not legislation 
enacted by Congress, it’s an ultra vires order issued by CDC. Changing the date by 
which a flyer must obtain a negative virus test by two days in no ways moots my 
challenge to the order. Contrary to CDC’s argument, the amended order is not ma-
terially different than the version challenged in the Complaint. Indeed, CDC itself 
admits the new version is “a further amended order,” not a different one. Doc. 181 
at 1. Indeed, a read of the versions shows that are nearly identical. 
 
To side with CDC that a whole new complaint would be needed to challenge an 
immaterial change to the ITTR would not only delay justice for my claim but go 
against this Court’s oft-stated desire for “economy of time and effort for itself, for 
counsel, and for litigants.” Doc. 168 at 3. 
 
 
 
Case 6:21-cv-00975-PGB-DCI   Document 184   Filed 12/07/21   Page 4 of 6 PageID 5345

 
5
C. If forced to replead, my arguments would be the same. 
 
 
Being forced to replead the ITTR would achieve nothing but burden the Court 
with a cycle of repetitious motions and responses, exactly the opposite of its goals. 
If ordered to replead, my arguments against the ITTR wouldn’t change: CDC failed 
to observe the notice-and-comment procedure required by law before ordering the 
ITTR and good cause doesn’t excuse it (Count 19); the ITTR is arbitrary and capri-
cious (Count 21); the ITTR exceeds CDC’s statutory authority under the Public 
Health Service Act (Count 22); and the ITTR, if found to be within CDC’s statutory 
authority, is an improper delegation of legislative power (Count 23). 
 
CDC’s argument for why the new ITTR version is “materially different” is that 
“The amended order (unlike the original order) draws distinctions between vac-
cinated and unvaccinated travelers…” Doc. 172 at 19. But the newest version erases 
that distinction. Vaccinated or not, all flyers must get a COVID-19 test one day be-
fore departure. Furthermore, CDC’s claim that it put a “good cause” exemption in 
the newest ITTR doesn’t render my challenge moot. This exemption claim is sub-
ject to judicial review and “Precedent demonstrates how infrequently the exception 
should receive acceptance.” State of Florida v. Becerra, No. 8:21-cv-839  (M.D. 
Fla. June 18, 2021). 
 
 
WHEREFORE, I request this Court issue an order granting me summary judg-
ment on Counts 19, 22, and 23 of the Complaint and vacate the ITTR. 
 
 
 
Case 6:21-cv-00975-PGB-DCI   Document 184   Filed 12/07/21   Page 5 of 6 PageID 5346

 
6
Respectfully submitted this 7th day of December 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 184   Filed 12/07/21   Page 6 of 6 PageID 5347

File and source

File

gov.uscourts.flmd.390847.184.0.pdf

Size

187,349 bytes

SHA-256

5346f35a885edbd1ff097366ed4ded6af6326f686b31c0a07adeaae02e1c4fd5

Our copy

gov.uscourts.flmd.390847.184.0.pdf

Original

archive.org