Court filing

Federal Defendants’ Cross-Motion for Summary Judgment and Opposition — Wall v. CDC

Filed March 25, 2022 in Wall v. CDC; one of 35 filings from this case.

Record facts

Court	UNITED STATES DISTRICT COURT
Filed	2022-03-25

UNITED STATES DISTRICT COURT · No. 6:21-cv-00975-PGB-DCI · Doc. 263 · 2022-03-25 · Docket on CourtListener

Full text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

LUCAS WALL,

Plaintiff,

Case No. 6:21-cv-975-PGB-DCI

CENTERS FOR DISEASE
CONTROL AND PREVENTION,
et al.,

Defendants.

FEDERAL DEFENDANTS’ CROSS-MOTION FOR
SUMMARY JUDGMENT AND OPPOSITION TO
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

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TABLE OF CONTENTS
INTRODUCTION ............................................................................................... 1
BACKGROUND .................................................................................................. 2
I.
Statutory and Regulatory Background .......................................................... 2
II.
The COVID-19 Pandemic ............................................................................ 4
III.
The Challenged Orders ................................................................................ 5
a.
The CDC’s Transportation Mask Order .............................................. 5
b.
The CDC’s International Traveler Testing Order ................................ 6
IV.
This Lawsuit ............................................................................................... 7
ARGUMENT ....................................................................................................... 8
I.
The Transportation Mask Order is authorized by the Public Health
Service Act (PHSA) (Count 1). ..................................................................... 8
II.
Plaintiffs’ non-delegation claims are meritless (Counts 4 & 12). ................... 12
III.
The Transportation Mask Order is not arbitrary and capricious (Count
3). ............................................................................................................. 13
IV.
The CDC had good cause to issue the Transportation Mask Order
without notice and comment (Count 2). ..................................................... 18
V.
The Transportation Mask Order does not violate the Constitution
(Counts 5-7). ............................................................................................. 19
VI.
The Transportation Mask Order is consistent with the Air Carrier Access
Act (ACAA) (Count 8). ............................................................................. 21
VII.
To the extent Plaintiff makes non-duplicative claims with respect to the
International Traveler Testing Order, they are also meritless (Counts 9-
12). ........................................................................................................... 21
VIII. Plaintiff’s requested relief is overbroad. ...................................................... 24
CONCLUSION .................................................................................................. 25

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TABLE OF AUTHORITIES
Cases
A.L.A. Schechter Poultry Corp. v. United States,
295 U.S. 495 (1935) .......................................................................................... 20
Abdi v. Wray,
942 F.3d 1019 (10th Cir. 2019) ......................................................................... 20
Alabama Association of Realtors v. HHS,
141 S. Ct. 2485 (2021) ........................................................................... 10, 11, 12
Am. Ass’n of Exps. & Imps. Textile & Apparel Grp. v. United States,
751 F.2d 1239 (Fed. Cir. 1985) ......................................................................... 23
Bhd. of R.R. Trainmen v. Baltimore & O.R. Co.,
331 U.S. 519 (1947) .......................................................................................... 11
Biden v. Missouri,
142 S. Ct. 647 (2022) ................................................................................... 12, 18
Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs,
781 F.3d 1271 (11th Cir. 2015) ......................................................................... 25
Bridges v. Hous. Methodist Hosp.,
543 F. Supp. 3d 525 (S.D. Tex. 2021) ................................................................ 17
Califano v. Yamasaki,
442 U.S. 682 (1979) .......................................................................................... 24
Corbett v. TSA,
19 F.4th 478 (D.C. Cir. 2021) ......................................................................... 1, 6
Cospito v. Heckler,
742 F.2d 72 (3d Cir. 1984) ................................................................................ 20
Dep’t of Com. v. New York,
139 S. Ct. 2551 (2019) ...................................................................................... 15
Dep’t of Homeland Sec. v. New York,
140 S. Ct. 599 (2020) ........................................................................................ 25
Dep’t of Homeland Sec’y v. Regents of Univ. of Cal.,
140 S. Ct. 1891 (2020) ...................................................................................... 14
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iii

Doe v. Moore,
410 F.3d 1337 (11th Cir. 2005) ......................................................................... 20
Elhady v. Kable,
993 F.3d 208 (4th Cir. 2021) ............................................................................. 21
FCC v. Prometheus Radio Project,
141 S. Ct. 1150 (2021) ........................................................................ 8, 13, 15, 23
Forbes v. Cnty. of San Diego,
No. 20-cv-00998, 2021 WL 843175 (S.D. Cal. Mar. 4, 2021) ............................. 21
Gill v. Whitford,
138 S. Ct. 1916 (2018) ...................................................................................... 24
Haig v. Agee,
453 U.S. 280 (1981) .......................................................................................... 20
J. W. Hampton, Jr. & Co. v. United States,
276 U.S. 394 (1928) .......................................................................................... 12
League of United Latin Am. Citizens v. Bredesen,
500 F.3d 523 (6th Cir. 2007) ............................................................................. 21
Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania,
140 S. Ct. 2367 (2020) .................................................................................. 18-19
Madsen v. Women’s Health Ctr., Inc.,
512 U.S. 753 (1994) .......................................................................................... 24
Medellin v. Texas,
552 U.S. 491 (2008) .......................................................................................... 17
Miccosukee Tribe of Indians of Fla. v. United States,
566 F.3d 1257 (11th Cir. 2009) ......................................................................... 13
Miranda ex rel. M.M. v. Alexander,
No. 21-cv-535, 2021 WL 4352328 (M.D. La. Sept. 24, 2021) ............................. 14
Mobil Oil Exploration & Producing Southeast, Inc. v. United Distribution Cos.,
498 U.S. 211 (1991) .......................................................................................... 24
Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983) .......................................................................................... 1-2
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Murphy v. NCAA,
138 S. Ct. 1461 (2018) ...................................................................................... 19
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,
545 U.S. 967 (2005) .......................................................................................... 11
Nat’l Mining Ass’n v. Dep’t of Labor,
812 F.3d 843 (11th Cir. 2016) ........................................................................... 13
NFIB v. OSHA,
142 S. Ct. 661 (2022) ........................................................................................ 11
Oakes v. Collier Cnty.,
515 F. Supp. 3d 1202 (M.D. Fla. 2021) ............................................................. 14
Pa. Dep’t of Corr. v. Yeskey,
524 U.S. 206 (1998) .......................................................................................... 11
PDK Labs., Inc. v. DEA,
362 F.3d 786 (D.C. Cir. 2004) .......................................................................... 19
SEC v. Chenery Corp.,
332 U.S. 194 (1947) .......................................................................................... 12
Sierra Club v. Van Antwerp,
526 F.3d 1353 (11th Cir. 2008) ......................................................................... 13
Sosa v. Alvarez-Machain,
542 U.S. 692 (2004) .......................................................................................... 17
Stewart v. Justice,
518 F. Supp. 3d 911 (S.D. W. Va. 2021)............................................................ 14
Town of Southold v. Town of E. Hampton,
477 F.3d 38 (2d Cir. 2007) ................................................................................ 20
Trump v. Hawaii,
138 S. Ct. 2392 (2018) ...................................................................................... 25
United States v. James,
No. 19-cr-8019, 2020 WL 6081501 (D. Ariz. Oct. 15, 2020) ............................... 14
Va. Soc’y for Human Life, Inc. v. FEC,
263 F.3d 379 (4th Cir. 2001) ............................................................................. 24
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Whitman v. Am. Trucking Ass’ns,
531 U.S. 457 (2001) .......................................................................................... 12
Wyeth v. Levine,
555 U.S. 555 (2009) .......................................................................................... 19
Zinman v. Nova Se. Univ., Inc.,
No. 21-cv-60723, 2021 WL 4025722 (S.D. Fla. Aug. 30, 2021) .......................... 14
U.S. Constitution
U.S. Const. art. VI, cl. 2 ...................................................................................... 19
Statutes
5 U.S.C. § 553 ................................................................................................ 18, 23
5 U.S.C. § 706 ..................................................................................................... 18
21 U.S.C. § 360bbb-3 ........................................................................................... 17
42 U.S.C. § 264 .............................................................................................. passim
42 U.S.C. §§ 264-272 ........................................................................................ 2, 11
49 U.S.C. § 40105 ................................................................................................ 17
49 U.S.C. § 41705 ................................................................................................ 21
An Act to Establish a Department of Education, and for other purposes,
Pub. L. No. 96-88, 93 Stat. 668 (1979) (codified at 20 U.S.C. § 3508(b)) ........................... 2
Legislative Materials
Consolidation & Revision of Laws Relating to the Public Health Service,
H.R. Rep. No. 1364, 78th Cong. 2d Sess. (1944). ................................................ 2
Administrative and Executive Materials
42 C.F.R. pt. 70 ..................................................................................................... 3
42 C.F.R. § 70.2 ..................................................................................... 3, 4, 12, 14
42 C.F.R. § 70.3 .................................................................................................... 4
42 C.F.R. § 70.6 .................................................................................................... 4
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42 C.F.R. § 70.12 .................................................................................................. 4
42 C.F.R. § 71.31 ............................................................................................. 4, 12
42 C.F.R. § 71.32 ....................................................................................... 4, 12, 22
CDC, Order Under Section 361 of the Public Health Service Act, Requirement for Persons
To Wear Masks While on Conveyances and at Transportation Hubs,
86 Fed. Reg. 8025 (Feb. 3, 2021). ................................................................. passim
Control of Communicable Diseases, Apprehension and Detention of Persons With Specific
Diseases, Transfer of Regulations,
65 Fed. Reg. 49,906 (Aug. 16, 2000) ................................................................... 3
Reorganization Plan No. 3 of 1966,
31 Fed. Reg. 8855 (June 25, 1966), 80 Stat. 1610 (1966) ...................................... 2
CDC, Requirement for Negative Pre-Departure COVID-19 Test Result or Documentation of
Recovery From COVID-19 for all Airline or Other Aircraft Passengers Arriving Into the
United States From Any Foreign Country,
86 Fed. Reg. 69,256 (Dec. 7, 2021) ........................................................ 4, 5, 6, 23
Other Authorities
CDC, COVID Data Tracker,
https://perma.cc/BH8K-HHSG (Mar. 25, 2022) ................................................ 5
CDC, Cruise Ship Travel During COVID-19 (updated March 14, 2022),
https://perma.cc/A4PR-QDEL ....................................................................... 24
CDC, How COVID 19 Spreads (updated July 14, 2021),
https://perma.cc/R38B-WAPL ......................................................................... 5
Sanitation, Merriam-Webster.com Dictionary,
https://perma.cc/9ARR-YKYH ........................................................................ 9

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INTRODUCTION
“The COVID-19 global pandemic poses one of the greatest threats to the
operational viability of the transportation system and the lives of those on it seen in
decades.” Corbett v. TSA, 19 F.4th 478, 480 (D.C. Cir. 2021). In response to that
threat, the Centers for Disease Control and Prevention (CDC) has issued temporary
orders that (with some exceptions) generally require (1) individuals to wear masks
when traveling on public transportation conveyances like airplanes and trains; and
(2) international air travelers to provide proof of a negative COVID-19 test (or
recovery from COVID-19) before departure to the United States.
Plaintiff Lucas Wall claims that those orders exceed the CDC’s statutory
authority, are arbitrary and capricious or procedurally infirm under the Administrative
Procedure Act (APA), and violate the U.S. Constitution. Underlying these challenges
is Plaintiff’s contrarian position that “face masks are totally ineffective in reducing
coronavirus spread but are harmful to human health in at least 68 ways.” Am. Compl.
at 3, ECF No. 188.
All of these claims are meritless—both on the science, and on the law. Congress
prudently gave the Executive Branch broad authority to take reasonable public-health
measures to prevent the spread of communicable disease. That authority has never
been more important than during this pandemic, and the measures at issue here—
masking and testing—are conventional disease prevention steps, squarely in the
heartland of that authority. Plaintiff offers no basis for this Court to accept his
invitation “to substitute [his] judgment for that of the agency.” Motor Vehicle Mfrs.
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Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). For those who
seek to use our nation’s public transportation systems during an unprecedented global
pandemic of an airborne respiratory virus, Congress has entrusted those judgments to
the medical experts at the CDC—not to Plaintiff.
The Court should enter summary judgment for Federal Defendants on all
claims.
BACKGROUND
I.
Statutory and Regulatory Background
Congress enacted the Public Health Service Act in 1944. Consolidation &
Revision of Laws Relating to the Public Health Service, H.R. Rep. No. 1364, 78th Cong. 2d
Sess., at 1 (1944). The resulting statute, 42 U.S.C. § 264—part of a broader statutory
scheme authorizing the Department of Health and Human Services (HHS) to take
wide-ranging public-health actions, see id. §§ 264-272—authorizes the Secretary of
HHS1 “to make and enforce such regulations as in his judgment are necessary to
prevent the introduction, transmission, or spread of communicable diseases from
foreign countries into the States or possessions, or from one State or possession into
any other State or possession.” Id. § 264(a). The second sentence of subsection (a)
further clarifies that “[f]or purposes of carrying out and enforcing such regulations,”

1 Although the statute assigns authority to the Surgeon General, all statutory powers and
functions of the Surgeon General were transferred to the Secretary of HHS in 1966, 31 Fed. Reg. 8855
(June 25, 1966), 80 Stat. 1610 (1966); see also Pub. L. No. 96-88, § 509(b), 93 Stat. 668, 695 (1979)
(codified at 20 U.S.C. § 3508(b)). The Secretary has retained these authorities despite the
reestablishment of the Office of the Surgeon General in 1987.
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the Secretary “may provide for such inspection, fumigation, disinfection, sanitation,
pest extermination, destruction of animals or articles found to be so infected or
contaminated as to be sources of dangerous infection to human beings, and other
measures, as in his judgment may be necessary.” Id.
Subsection (b) imposes specific limits on the Secretary’s ability to “provide for
the apprehension, detention, or conditional release of individuals”—a power not
specifically identified in subsection (a)—permitting such impositions on a person’s
physical movement only for diseases specified by Executive Order. Id. § 264(b).
Subsections (c) and (d) set further limits on the detention of individuals. See id.
§ 264(c)-(d). The final subsection provides that the statute and any regulation adopted
thereunder supersede state law “to the extent that such a provision conflicts with an
exercise of Federal authority.” Id. § 264(e).
The Secretary has promulgated several regulations implementing these
provisions and delegating their enforcement to CDC. See 42 C.F.R. pt. 70; Control of
Communicable Diseases, Apprehension and Detention of Persons With Specific Diseases,
Transfer of Regulations, 65 Fed. Reg. 49,906, 49,907 (Aug. 16, 2000). A regulation now
codified at 42 C.F.R. § 70.2 provides the CDC with broad discretion to address the
uncontrolled spread of communicable disease. Specifically, if the CDC Director
“determines that the measures taken by health authorities of any State or possession
(including political subdivisions thereof) are insufficient to prevent the spread of any
of the communicable diseases” between or among states, he is empowered to “take
such measures to prevent such spread of the diseases as he/she deems reasonably
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necessary.” 42 C.F.R. § 70.2. These measures include, but are not limited to,
“inspection, fumigation, disinfection, sanitation, pest extermination, and destruction
of animals or articles believed to be sources of infection.” Id. In addition, separate
longstanding regulations provide that “[w]henever the Director has reason to believe
that any arriving carrier . . . is or may be infected . . . with a communicable disease,
he/she may require detention, disinfection, . . . or other related measures respecting
the carrier or article or thing as he/she considers necessary to prevent the introduction,
transmission, or spread of communicable diseases.” 42 C.F.R. § 71.32(b); see also id.
§ 71.31(b) (allowing “detention of a carrier until the completion of the measures
outlined in this part that are necessary to prevent the introduction or spread of a
communicable disease”). And other regulations authorize CDC to limit interstate
travel of infected persons, see id. § 70.3, to apprehend and detain persons, id. § 70.6,
and to conduct medical examinations, id. § 70.12, to control the spread of disease.
II.
The COVID-19 Pandemic
The respiratory disease COVID-19 is caused by the novel coronavirus SARS-
CoV-2. See Ex. 2, CDC, Requirement for Negative Pre-Departure COVID-19 Test Result or
Documentation of Recovery From COVID-19 for all Airline or Other Aircraft Passengers
Arriving Into the United States From Any Foreign Country, 86 Fed. Reg. 69,256, 69,258
(Dec. 7, 2021). COVID-19 poses a risk of “severe” respiratory illness, meaning that
infected persons may require hospitalization, intensive care, or the use of a ventilator.
Id. at 69,259. Severe cases may be fatal. Id. The virus that causes COVID-19 spreads
in several ways, including when an individual “[b]reath[es] in air when close to an
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infected person.” CDC, How COVID 19 Spreads (updated July 14, 2021),
https://perma.cc/R38B-WAPL. Persons not displaying symptoms are capable of
transmitting the virus. 86 Fed. Reg. at 69,258. As of the date of this filing, the virus
has infected more than 79 million and killed more than 972,000 people in the United
States alone, and many more around the world. See CDC, COVID Data Tracker,
https://perma.cc/BH8K-HHSG (Mar. 25, 2022). Mask wearing “is one of the most
effective strategies available for reducing COVID-19 transmission.” Ex. 1, CDC, Order
Under Section 361 of the Public Health Service Act, Requirement for Persons To Wear Masks
While on Conveyances and at Transportation Hubs, 86 Fed. Reg. 8025, 8026 (Feb. 3, 2021).
III.
The Challenged Orders
a.
The CDC’s Transportation Mask Order
The CDC issued the transportation mask order on February 3, 2021. See id.
Generally, the order requires persons to “wear masks over the mouth and nose when
traveling on any conveyance . . . into or within the United States” and “at
transportation hubs.” Id. at 8026.2
The order exempts “child[ren] under the age of 2,” and anyone “with a
disability who cannot wear a mask, or cannot safely wear a mask,” among others. Id.
at 8027. It also exempts (among other things) “[p]rivate conveyances operated solely

2 On March 10, 2022, CDC announced that, in advance of April 18, 2022, it will work with
government agencies to inform a revised policy framework for when, and under what circumstances,
masks should be required in the public transportation corridor.
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for personal, non-commercial use.” Id. at 8028. And it does not apply “[w]hile eating,
drinking, or taking medication, for brief periods.” Id. at 8027.3
b.
The CDC’s International Traveler Testing Order
On January 13, 2021, “[b]ased on increased transmissibility and spread of . . .
new variants of SARS-CoV-2 and to reduce introduction and spread of these and
future SARS-CoV-2 variants into the United States,” the CDC issued an order
generally requiring air travelers to provide proof of a negative COVID-19 test before
departure to the United States. See ECF No. 125-8 at 5. Subsequently, on January 26,
2021, the testing order was reissued with minor modifications. See ECF No. 125-9.
In December 2021, the CDC issued a further amended testing order, which
Plaintiff challenges in his amended complaint. See Ex. 2, 86 Fed. Reg. 69,256.
Overall, the justification for this testing requirement is simple: “requiring passengers
to demonstrate pre-departure either a negative COVID-19 test result or recovery from
COVID-19 after previous SARS-CoV-2 infection in the past 90 days is necessary to
reduce the risk of transmission of the SARS-CoV-2 virus, including the Omicron
variant and other virus variants, and to protect the health of fellow passengers, aircraft
crew, and U.S. communities.” Id. at 69,260.

3 The Transportation Security Administration (TSA) has also issued a series of Security
Directives, through which TSA assists with the enforcement of the CDC’s mask order. See generally
Corbett v. TSA, 19 F.4th 478 (D.C. Cir. 2021) (holding that TSA Security Directives requiring masks
in public-transportation systems are lawful); see also id. at 490 (Henderson, J., dissenting) (dissenting
on the basis that plaintiff lacked standing, but also noting that, “[o]n the merits, this petition for review
is a slam dunk loser”). TSA is no longer a party to this case.
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IV.
This Lawsuit
Plaintiff filed this lawsuit on June 7, 2021. ECF No. 1. After myriad filings—
including multiple unsuccessful attempts by Plaintiff to seek injunctive relief from this
Court, the Eleventh Circuit, and the Supreme Court—on December 18, 2021, Judge
Byron issued an order, ECF No. 187, which adopted in substantial part Magistrate
Judge Irick’s October 7, 2021 Report & Recommendation, ECF No. 155. The result
was that the complaint was dismissed in its entirety, but the Court granted Plaintiff
leave to replead certain claims against certain defendants.
On December 26, 2021, Plaintiff filed an amended complaint. ECF No. 188.
Plaintiff’s amended complaint brings twelve claims challenging the CDC’s
transportation mask order and testing order. Plaintiff alleges that the CDC’s mask
order violates (1) statutory limitations on the agency’s authority, Am. Compl. ¶¶ 304-
08; (2) the procedural requirements of the APA, id. ¶¶ 309-18; (3) the substantive
requirements of the APA, id. ¶¶ 319-30; (4) the non-delegation doctrine, id. ¶¶ 331-39;
(5) the Tenth Amendment, id. ¶¶ 340-48; (6) the Fifth Amendment, id. ¶¶ 349-57; (7)
the right to travel, id. ¶¶ 358-66; and (8) the Air Carrier Access Act, id. ¶¶ 367-81;
Plaintiff further alleges that the CDC’s testing order violates (9) statutory limitations
on the agency’s authority, id. ¶¶ 382-86; (10) the procedural requirements of the APA,
id. ¶¶ 387-96; (11) the substantive requirements of the APA, id. ¶¶ 397-403; and (12) the
non-delegation doctrine, id. ¶¶ 404-12. In his Motion for Summary Judgment (Mot.),
filed on February 16, 2022, ECF No. 230, Plaintiff seeks summary judgment against
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Federal Defendants on all twelve claims against them, and sweeping relief including a
“[w]orldwide vacatur” of the mask order and testing order, id. at 35.
ARGUMENT
Mr. Wall believes that “face masks are totally ineffective in reducing
coronavirus spread but are harmful to human health in at least 68 ways.” Am. Compl.
at 3. But a large and growing body of scientific data says otherwise, which is why the
CDC issued an order that—temporarily, and with various exceptions, including for
those who cannot safely wear a mask for legitimate medical reasons—generally
requires masks for those traveling in our nation’s public transportation systems. CDC
was doing exactly what Congress authorized it to do: to take actions that “in [its]
judgment are necessary to prevent the introduction, transmission, or spread of
communicable diseases” in the United States. 42 U.S.C. § 264(a). And because CDC
“reasonably considered the relevant issues and reasonably explained the decision[,]”
FCC v. Prometheus Radio Project, 141 S. Ct. 1150, 1158 (2021), this Court should decline
Mr. Wall’s invitation to substitute its (or his) judgment for that of the agency. The
same is true with respect to the international traveler testing order.
I.
The Transportation Mask Order is authorized by the Public Health Service
Act (PHSA) (Count 1).
1. Congress authorized the CDC to adopt “such regulations as in [its] judgment
are necessary to prevent the introduction, transmission, or spread of communicable
diseases from foreign countries into the States or possessions [of the United States], or
from one State or possession into any other State or possession.” 42 U.S.C. § 264(a).
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In doing so, CDC “may provide for such inspection, fumigation, disinfection,
sanitation, pest extermination, destruction of animals or articles found to be so infected
or contaminated as to be sources of dangerous infection to human beings, and other
measures, as in [its] judgment may be necessary.” Id. Whatever the outer bounds of
this authority, it plainly includes, at an absolute minimum, “sanitation” measures, or
“other measures” akin to “sanitation” measures. Id.
Masking is a conventional “sanitation” measure. A leading modern dictionary
defines “sanitation” as “the act or process of making sanitary” or “the promotion of
hygiene and prevention of disease by maintenance of sanitary conditions.” Sanitation,
Merriam-Webster.com Dictionary, https://perma.cc/9ARR-YKYH. Dictionaries from
the 1940s, published shortly before and after enactment of the PHSA, define the term
similarly, or even more broadly.4 Those dictionary definitions are all consistent with
plain meaning and common usage—much like other “sanitation” measures, such as
wearing gloves or a gown, or disinfecting surfaces, wearing a mask is intended to
reduce the transmission of viral particles.
Even if there were doubt on this score, the temporary requirement to wear
masks on public transportation is a comparable (or milder) imposition than the other

4 See, e.g., Ex. 3, FUNK & WAGNALLS NEW STANDARD DICTIONARY OF THE ENGLISH
LANGUAGE 2172 (Isaac K. Funk et al. eds., 1946) (defining “sanitation” as “[t]he devising and
applying of measures for preserving and promoting public health; the removal or neutralization of
elements injurious to health; the practical application of sanitary science”); Ex. 4, WEBSTER’S NEW
INT’L DICTIONARY OF THE ENGLISH LANGUAGE 2214 (William Allan Neilson et al., 2d ed. 1942)
(defining “sanitation” as the “use of sanitary measures,” and defining “sanitary” as “[o]f or
pert[aining] to health; for or relating to the preservation or restoration of health; occupied with
measures or equipment for improving conditions that influence health; free from, or effective in
preventing or checking, agencies injurious to health, esp[ecially] filth and infection; hygienic”).
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examples enumerated in the statute, such as “inspection,” “fumigation,”
“disinfection,” “pest extermination,” and “destruction.” 42 U.S.C. § 264(a). It thus
qualifies, at minimum, as an “other measure[]” that CDC has determined “may be
necessary” “in [its] judgment,” within the meaning of the second sentence of 42 U.S.C.
§ 264(a). For this additional reason, the transportation mask order is unambiguously
within CDC’s statutory authority.
2. It is not clear that Plaintiff disputes that masking qualifies as “sanitation,” or
is at least sufficiently similar to “sanitation.” Instead, he argues that “the statute
directs that any ‘sanitation’ be directed at ‘animals or articles,’ not human faces.” Mot.
at 6. Not so. The plain text of 42 U.S.C. § 264(a) makes clear that the phrase “of
animals or articles found to be so infected or contaminated as to be sources of
dangerous infection to human beings” refers only to the measure immediately
preceding it, “destruction”—not to the five other listed measures, including
“sanitation.” If each of those five measures were limited to “animals or articles,” one
would expect to see the word “or” before “destruction” (not the word “and” before
“other measures”). Id. And Plaintiff’s reading leads to several implausible results: e.g.,
that CDC can order “inspection,” but only of items already “found to be so infected.”
3. The Supreme Court’s decision in Alabama Association of Realtors v. HHS, 141
S. Ct. 2485 (2021) (“AAR”), holding that the CDC’s eviction moratorium was likely
unlawful, is no help to Plaintiff. The Court in no way suggested that the PHSA only
authorizes actions directed at “animals or articles,” even though that would also have
been dispositive in that case. To be sure, AAR does clarify that the second sentence of
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42 U.S.C. § 264(a) at least “informs the grant of authority” in the first, “by illustrating
the kinds of measures that could be necessary.” 141 S. Ct. at 2488. But if anything,
that confirms that the text at least authorizes “sanitation” measures, along with other
“kinds of measures” like sanitation measures. Id.; see also id. (the listed measures
“directly relate to preventing the interstate spread of disease by identifying, isolating,
and destroying the disease itself”). And whatever could be said about the CDC’s
eviction moratorium, there is nothing indirect about the mask order—a mask is
literally a physical barrier that “directly” reduces viral transmission in real time.
In addition, Chevron deference applies here. So even if the Court concludes that
the “statute is ambiguous,” the only remaining question is whether the “agency’s
construction is reasonable.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,
545 U.S. 967, 980 (2005). Here, for all the reasons above, it is.5
4. Plaintiff relies heavily on the Supreme Court’s stay of a vaccine-or-test
requirement in NFIB v. OSHA, 142 S. Ct. 661 (2022), suggesting that the case stands
for the simple proposition that any “significant Executive Branch pandemic mandate”
is necessarily unlawful. Mot. at 2-3 (also citing other miscellaneous COVID-related
orders from other courts). But that faulty reading ignores that on the same day that
the Court granted a stay in NFIB, it also stayed an injunction against a vaccine

5 Plaintiff’s reference to the statutory title “Part G—Quarantine and Inspection,” Mot. at 4, is
unhelpful to him. There is nothing about that generic title (which covers not just the section at issue
in this case, but all of 42 U.S.C. §§ 264-72) that is inconsistent with the operative statutory text in
§ 264(a). Regardless, “[t]he title of a statute . . . cannot limit the plain meaning of the text.” Pa. Dep’t
of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (quoting Bhd. of R.R. Trainmen v. Baltimore & O.R. Co., 331
U.S. 519, 528-29 (1947)).
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requirement for healthcare workers challenged in another case, allowing the
requirement to take effect. See Biden v. Missouri, 142 S. Ct. 647 (2022). In any event,
both cases were statutory-interpretation cases about entirely different statutes and
involving wholly different COVID-19 mitigation measures—and thus neither should
have any bearing on this Court’s interpretation of the Public Health Service Act.6
II.
Plaintiffs’ non-delegation claims are meritless (Counts 4 & 12).

Even if Plaintiff’s one-sentence references to the non-delegation doctrine, see
Mot. at 11, 32, sufficed to preserve such claims, those claims are plainly meritless. So
long as Congress provides “an intelligible principle to which” the agency “is directed
to conform, such legislative action is not a forbidden delegation of legislative power.”
J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928). This is not a high
bar. Indeed, Plaintiff ignores 80 years of Supreme Court precedent upholding broader
and less specific delegations, including one to “protect the public health.” Whitman v.
Am. Trucking Ass’ns, 531 U.S. 457, 475-76 (2001). In light of this, it is abundantly clear
that the PHSA is not an unconstitutional delegation of legislative power. Moreover,
AAR states that the scope of 42 U.S.C. § 264(a) is at least “inform[ed]” by the statute’s
list of six specific measures. 141 S. Ct. at 2488. That plainly resolves any arguable
non-delegation problem.

6 Citing no authority, Plaintiff also argues that the authority to issue “regulations” cannot be
understood to include “[o]rders.” Mot. at 4. But an “agency must be equipped to act either by general
rule or by individual order,” and “[t]o insist upon one form of action to the exclusion of the other is
to exalt form over necessity.” SEC v. Chenery Corp., 332 U.S. 194, 202 (1947). In any event, the statute
authorizes CDC to make “and enforce” regulations, and the mask order and the testing order were
both issued pursuant to authority delegated from HHS to CDC in regulations, consistent with 42
U.S.C. § 264(a). See 42 C.F.R. §§ 70.2, 71.31(b), 71.32(b).
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III. The Transportation Mask Order is not arbitrary and capricious
(Count 3).
Arbitrary-and-capricious review under the APA is “exceedingly deferential.”
Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008) (citation omitted).
Courts may not “substitute [their] judgment for the agency’s as long as its conclusions
are rational.” Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d 1257, 1264
(11th Cir. 2009). Instead, “[a] court simply ensures that the agency has acted within a
zone of reasonableness and, in particular, has reasonably considered the relevant
issues and reasonably explained the decision.” Prometheus Radio Project, 141 S. Ct. at
1158. The Eleventh Circuit “give[s] an extreme degree of deference to the agency
when it is evaluating scientific data within its technical expertise.” Nat’l Mining Ass’n
v. Dep’t of Labor, 812 F.3d 843, 866 (11th Cir. 2016) (citation omitted).
1. Plaintiff’s claim is largely premised on his own contrarian view of the
scientific evidence: that “masks are ineffective and harmful.” Mot. at 14. But the
CDC has amply supported its determination that mask wearing “is one of the most
effective strategies available for reducing COVID-19 transmission.” 86 Fed. Reg. at
8026. And the CDC has “reasonably explained,” Prometheus Radio Project, 141 S. Ct.
at 1158, that masks both (1) “help prevent people who have COVID-19, including
those who are pre-symptomatic or asymptomatic, from spreading the virus to
others[,]” and (2) “also provide personal protection to the wearer by reducing
inhalation of” “virus-laden droplets,” 86 Fed. Reg. at 8028. Under bedrock principles
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of administrative law, that is more than enough—even if there were room for
reasonable scientists to disagree.7
Moreover, CDC’s judgment aligns with the widespread medical consensus at
the time the mask order was promulgated (as well as today) that masks work effectively
to slow the spread of COVID-19. See 86 Fed. Reg. at 8028 (“Seven studies have
confirmed the benefit of universal masking in community level analyses[.]”); Dep’t of
Homeland Sec’y v. Regents of Univ. of Cal., 140 S. Ct. 1891, 1907 (2020) (judicial review
is limited to “the grounds that the agency invoked when it took the action”). In fact,
as courts around the country have recognized in the context of challenges to state and
local mask mandates, “nearly every public health institution in the country has
recommended mask-wearing as a means of slowing the virus’s spread.” Zinman v.
Nova Se. Univ., Inc., No. 21-cv-60723, 2021 WL 4025722, at *14 (S.D. Fla. Aug. 30,
2021).8 Indeed, this Court has itself recognized that “there is substantial scientific

7 Plaintiff asserts that Federal Defendants “failed to articulate . . . what specific state measures
were inadequate,” Mot. at 15, which appears to be a reference to 42 C.F.R. § 70.2, discussed earlier
in Plaintiff’s motion, Mot. at 8. That provision authorizes CDC to act when it “determines that the
measures taken by health authorities of any State or possession . . . are insufficient to prevent the
spread” of communicable disease between states. 42 C.F.R. § 70.2. But the CDC reasonably
determined that “[a]ny state or territory without sufficient mask-wearing requirements for
transportation systems within its jurisdiction has not taken adequate measures to prevent the spread
of COVID-19 from such state or territory to any other state or territory[,]” carving out locales that
“provide the same level of public health protection as—or greater protection than—the requirements
listed herein.” 86 Fed. Reg. at 8029-30.
8 See also, e.g., Stewart v. Justice, 518 F. Supp. 3d 911, 919 (S.D. W. Va. 2021) (“The Mask
Mandate . . . furthers a compelling interest by slowing the spread of the coronavirus and saving lives.”);
Oakes v. Collier Cnty., 515 F. Supp. 3d 1202, 1209 (M.D. Fla. 2021) (“It would be difficult to contend
with a straight face that a mask requirement does not bear a rational relation to protecting people’s
health and preventing the spread of COVID-19.”); Miranda ex rel. M.M. v. Alexander, No. 21-cv-535,
2021 WL 4352328, at *6 (M.D. La. Sept. 24, 2021) (“[A] nearly unanimous consensus of the public
health community recommends the use of masks as a means of reducing the spread of the virus and
protecting the mask wearer from it.”); United States v. James, No. 19-cr-8019, 2020 WL 6081501, at *1
(D. Ariz. Oct. 15, 2020) (“studies and epidemiological models from leading experts . . . indicate that
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evidence showing that masks are very effective in blocking aerosolized particles
containing the COVID-19 virus and usually have no significant adverse health effects
for the wearers.” Order 9, Wall v. Southwest Airlines, No. 21-cv-1008, ECF No. 153
(M.D. Fla. Dec. 8, 2021).
Even accepting the (dubious) premise that there is significant uncertainty about
either the efficacy or safety of mask wearing during a global pandemic of an airborne
respiratory virus, the APA does not require unanimity or certainty in the scientific
literature before an agency can act. Cf. Prometheus Radio Project, 141 S. Ct. at 1160
(“[T]he FCC did not have perfect empirical or statistical data. Far from it. But that is
not unusual in day-to-day agency decisionmaking within the Executive Branch.”).
Plaintiff also speculates (baselessly) that the order “is about politics, not public
health.” Mot. at 15. But even if that were true, “a court may not set aside an agency’s
policymaking decision solely because it might have been influenced by political
considerations.” Dep’t of Com. v. New York, 139 S. Ct. 2551, 2573 (2019).9
2. Plaintiffs further argues that the mask order violates the Food, Drug, &
Cosmetic Act (FDCA) and two international treaties (the International Covenant on
Civil & Political Rights (ICCPR) and the Convention on International Civil Aviation

the widespread use of masks safely and meaningfully reduces COVID-19 transmission,
hospitalization, and death”).
9 Plaintiff argues that the number of TSA employees that have tested positive for COVID-19
“shows the policy doesn’t stop infections.” Mot. at 16. But case counts do not disprove the utility of
masks, as they say nothing about how the numbers would look in the absence of masking. Plaintiff
also asserts that airplanes have “high-efficiency filters,” id. at 17, but the mask order applies
throughout the public transportation system, and even accepting that airplanes contain such air filters,
it is also the case that “[a]ir travel often requires spending time in security lines and crowded airport
terminals” and “[s]ocial distancing may be difficult if not impossible on flights.” 86 Fed. Reg. at 8029.
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(CICA)). Mot. at 17-21. These arguments represent an attempt by Plaintiff to
shoehorn new claims into his amended complaint, despite the Court explicitly stating
that leave to replead was “not an opportunity to add new claims,” ECF No. 187 at 28,
and Plaintiff’s consequent agreement not to make such claims, see Ex. 5, Dec. 24, 2021
Email from L. Wall to S. Pezzi. Therefore, the Court should disregard those
arguments.10 But even to the extent that the Court considers them, they are meritless.
Plaintiff argues that the mask order violates the FDCA by “forc[ing] Americans
to use a medical device (face masks), most of which are approved” by the FDA “under
Emergency Use Authorization (‘EUA’) or not authorized at all.” Mot. at 17. In
reality, the order says nothing about requiring the use of a mask that is authorized
under an EUA. Instead, it simply requires “material covering the nose and mouth of
the wearer, excluding face shields.” 86 Fed. Reg. at 8027 & n.6. The order further
explains that a mask “should be a solid piece of material without slits, exhalation
valves, or punctures,” and that compliant masks include—but are not limited to—
“[m]edical masks and N-95 respirators.” Id. at 8027 n.6. In other words, individuals
may use (1) a mask that is FDA-cleared (like an N-95 respirator), (2) a mask that is
authorized under an EUA (like certain disposable surgical masks), or (3) a mask that
is not cleared, approved, or authorized by the FDA at all—as long as it properly
“cover[s] the nose and mouth.” Id. at 8027. So, if Mr. Wall has concerns about
wearing a mask authorized under an EUA, he can select another mask that is not.

10 For the same reason, the Court should also disregard Plaintiff’s arguments that the testing
order violates the FDCA. See Mot. at 35.
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In any event, the statutory provision on which Plaintiff relies does not place
substantive limits on requiring use of a product subject to an EUA; it merely allows the
agency to establish conditions that are “necessary or appropriate to protect the public
health,” including to ensure “that individuals to whom the product is administered”
have certain information, such as about “the option to accept or refuse administration
of the product” and “of the consequences, if any, of refusing administration of the
product.” 21 U.S.C. § 360bbb-3(e)(1)(A). In other words, the statute explicitly
contemplates that there may be “consequences” from refusal. Cf. Bridges v. Hous.
Methodist Hosp., 543 F. Supp. 3d 525, 528 (S.D. Tex. 2021) (“Bridges can freely choose
to accept or refuse a COVID-19 vaccine [subject to an EUA]; however, if she refuses,
she will simply need to work somewhere else.”).11
Meanwhile, Plaintiff provides no basis for his assertion (with no further
elaboration) that the mask order violates provisions of the ICCPR and CICA. But
even if it did, such provisions would not create legal obligations that could be enforced
in federal court.12 See Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004) (the ICCPR
does not “create obligations enforceable in the federal courts”); Medellin v. Texas, 552
U.S. 491, 504-05 (2008) (explaining that treaties are “ordinarily” not self-executing).13

11 For this same reason, Plaintiff’s assertion that the testing order violates the FDCA, Mot. at
35, is also meritless.
12 Plaintiff invokes 49 U.S.C. § 40105(b)(1)(A), Mot. at 21, but that statute is inapplicable here,
among other reasons because it governs how “the Secretary of Transportation and the Administrator
[of the Federal Aviation Administration],” neither of whom is a defendant in this suit, carries out
certain statutory provisions of federal aviation law.
13 Plaintiff also briefly asserts that the testing order “violates international law,” citing a
discussion in his amended complaint about the ICCPR. Mot. at 34. This too appears to be an attempt
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IV.
The CDC had good cause to issue the Transportation Mask Order without
notice and comment (Count 2).
Notice and comment are not required “when the agency for good cause finds”
that those procedures “are impracticable” or “contrary to the public interest.” 5 U.S.C.
§ 553(b)(B). CDC explicitly made that finding here. See 86 Fed. Reg. at 8030. If the
good-cause exception does not apply to temporary public-health measures to protect
our transportation systems during a pandemic that has already killed over 972,000
Americans, it is hard to imagine when it would.
In response, Plaintiff suggests that CDC cannot invoke the good-cause
exception because “COVID-19 began in December 2019 and was declared a global
pandemic in March 2020,” and CDC “can’t self-create an ‘emergency’ 10½ months
into a declared pandemic.” Mot. at 12-13. But the Supreme Court recently rejected a
virtually identical argument, holding that the government appropriately invoked the
good-cause exception in a COVID-related rule issued in November of 2021. See Biden
v. Missouri, 142 S. Ct. at 654 (agency may “forgo notice and comment” for a
vaccination requirement intended to “reduce COVID-19 infections, hospitalizations,
and deaths” among healthcare workers).
In the alternative, any notice-and-comment error was harmless. The APA
provides that “due account shall be taken of the rule of prejudicial error,” 5 U.S.C.
§ 706, which is like “an administrative law harmless error rule,” Little Sisters of the Poor

by Plaintiff to raise a new claim that he explicitly agreed not to make, see Ex. 5, which the Court should
disregard, but in any event the claim is meritless for the same reasons.
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Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2385 (2020) (alteration and
citation omitted). Where, as here, “the agency’s mistake did not affect the outcome,
if it did not prejudice the petitioner, it would be senseless to vacate and remand.” PDK
Labs., Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004). Plaintiff fails to explain how
any of his comments, focused principally on the supposed ineffectiveness of masks,
would have changed the outcome, given the emergency that CDC was (and is) facing
in responding to COVID-19 and the substantial evidence that masks work.
V.
The Transportation Mask Order does not violate the Constitution (Counts
5-7).
1. Plaintiff argues that the federal government “can’t overrule mask laws”
enacted by the States, Mot. at 23, but the Supremacy Clause allows exactly that, U.S.
Const. art. VI, cl. 2, including via regulation, see Wyeth v. Levine, 555 U.S. 555, 576
(2009).
2. Plaintiff contends that, because the mask order applies to state-operated
transportation hubs, it “commandeer[s]” some state employees in violation of the
Tenth Amendment. Mot. at 23. But the order is generally applicable to all public and
private mass transportation systems. It does not exempt state employees, but that is not
a Tenth Amendment problem: “[t]he anticommandeering doctrine does not apply
when” the government “evenhandedly regulates an activity in which both States and
private actors engage.” Murphy v. NCAA, 138 S. Ct. 1461, 1478 (2018).
3. Plaintiff’s due process claim is also meritless. There is no constitutionally
protected liberty interest in, for example, “being able to breathe without the
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obstruction caused by a face mask,” Am. Compl. ¶ 354—and certainly not while on a
commercial airline flight during a global pandemic of an airborne respiratory virus.
And allowing private companies to assist with implementation of a regulatory order (as
compared with delegating policymaking authority to a private actor) is neither unusual
nor unlawful. See Cospito v. Heckler, 742 F.2d 72, 87 n.25 (3d Cir. 1984) (citing A.L.A.
Schechter Poultry Corp. v. United States, 295 U.S. 495, 537 (1935)). Finally, Plaintiff’s
statement that “[i]t is futile to demand exemptions from the airlines,” Mot. at 24, is
demonstrably untrue. For instance, one of his associates flew with an exemption just
last month. See Notice of Flight, Andreadakis v. CDC, No. 22-cv-52-DJN, ECF No. 33
(E.D. Va. Feb. 15, 2022) (“[O]n February 14, 2022 the Plaintiff flew from Richmond,
Virginia to Redding, California . . . and was not required to wear a facemask.”).
4. Plaintiff’s right-to-travel claim also fails because both “the freedom to travel
interstate” and “the freedom to travel abroad” are “subject to reasonable government
regulation.” Abdi v. Wray, 942 F.3d 1019, 1030 (10th Cir. 2019) (quoting Haig v. Agee,
453 U.S. 280, 306 (1981)). “[M]ere burdens on a person’s ability to travel from state
to state are not necessarily a violation of their right to travel.” Doe v. Moore, 410 F.3d
1337, 1348 (11th Cir. 2005); Town of Southold v. Town of E. Hampton, 477 F.3d 38, 54
(2d Cir. 2007) (“[M]inor restrictions on travel simply do not amount to the denial of a
fundamental right.”). And the Eleventh Circuit has squarely held that merely alleging
that “it is inconvenient to travel” in light of some otherwise reasonable government
regulation is not enough. Moore, 410 F.3d at 1348. Here, even setting aside the fact
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that “[t]he Mask Rules do not prevent [Plaintiff] from engaging in interstate travel,”
Forbes v. Cnty. of San Diego, No. 20-cv-00998, 2021 WL 843175, at *7 (S.D. Cal. Mar.
4, 2021), the challenged order is plainly reasonable. That is enough.14
VI.
The Transportation Mask Order is consistent with the Air Carrier Access
Act (ACAA) (Count 8).
Plaintiff’s claim that the Transportation Mask Order violates the ACAA is
meritless (among other reasons) because while the ACAA prohibits an “air carrier”
from “discriminat[ing] against handicapped individuals,” CDC is not an “air carrier.”
49 U.S.C. § 41705(a). In any event, neither the mask order nor airlines implementing
it “discriminate against” passengers on the basis of a disability. To the contrary: the
order explicitly exempts any “person with a disability who cannot wear a mask, or
cannot safely wear a mask, because of the disability.” 86 Fed. Reg. at 8027. If it is
true that Plaintiff is a “person with a disability who cannot wear a mask, or cannot
safely wear a mask, because of the disability,” id., then the CDC’s order does not even
apply to him.
VII. To the extent Plaintiff makes non-duplicative claims with respect to the
International Traveler Testing Order, they are also meritless (Counts 9-12).
Plaintiff’s claims challenging the testing order are also meritless—and he barely
offers any arguments to the contrary, other than incorporating by reference his
arguments challenging the mask order. Plaintiff’s duplicative claims and arguments

14 Plaintiff’s assertion (accompanied by no citation to a right-to-travel case) that courts
“consistently appl[y] strict scrutiny to restrictions on the right to interstate and international travel,”
Mot. at 27, is incorrect. See, e.g., Elhady v. Kable, 993 F.3d 208, 221 (4th Cir. 2021); League of United
Latin Am. Citizens v. Bredesen, 500 F.3d 523, 535 (6th Cir. 2007).
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challenging the testing order fail for the same reasons that his challenges to the mask
order fail, see supra at 8-21, but Federal Defendants briefly address his few testing-
specific arguments.
1. Plaintiff asserts that the testing order exceeds CDC’s statutory authority
under the PHSA. Mot. at 30-32. But the second sentence of 42 U.S.C. § 264(a) plainly
authorizes the testing requirement, particularly given the explicit reference to
“inspection.” Indeed, Plaintiff does not even contest that the testing requirement
qualifies as an “inspection” measure (or an “other measure” akin to an “inspection”
measure). Rather, Plaintiff argues that “[e]ven if the statute did authorize testing as
‘inspection,’ it would only be allowed for ‘arriving passengers,’ not those air travelers
departing foreign nations.” Mot. at 31 (citing 42 C.F.R. § 71.32(b)). Plaintiff identifies
no such limitation in the statute itself. But, regardless, all “air travelers departing
foreign nations” for the United States are “arriving passengers.” Id. And Plaintiff
identifies no legal prohibition on requiring pre-flight (instead of post-flight) testing—
even ignoring the obvious practical downsides.
2. For similar reasons that the mask order did not have to go through the APA’s
notice-and-comment process, see supra at 18, neither did the testing order, in which the
CDC similarly made an explicit finding that the good cause exception applied because
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“notice-and-comment rulemaking would defeat the purpose of the Amended Order
and endanger the public health.”15 See 86 Fed. Reg. at 69,260.16
3. Plaintiff’s arbitrary-and-capricious challenge to the testing order fails because
CDC “reasonably considered the relevant issues and reasonably explained the
decision,” which is all that the APA requires. Prometheus Radio Project, 141 S. Ct. at
1158. The agency’s justification was straightforward: the testing order “is necessary
to reduce the risk of transmission of the SARS-CoV-2 virus, including the Omicron
variant and other virus variants, and to protect the health of fellow passengers, aircraft
crew, and U.S. communities.” 86 Fed. Reg. at 69,260. Plaintiff points to nothing to
question this judgment.
Plaintiff nevertheless argues that the testing order is arbitrary and capricious
because, “[i]f masks are effective in stopping COVID-19 transmission . . . then there’s
no need for a testing requirement because everyone flying muzzled would not spread

15 The testing order was also exempt from the APA’s notice-and-comment requirements for an
additional, independent reason: 5 U.S.C. § 553(a)(1)’s explicit textual exception for agency actions
that “involve[] . . . a military or foreign affairs function of the United States.” The international traveler
testing order applies only in the context of international travel to the United States, and indeed it
operates almost exclusively overseas, given the requirement for a “pre-departure” negative test. 86
Fed. Reg. at 69,257. It is thus “linked intimately with the Government’s overall political agenda
concerning relations with []other countr[ies].” Am. Ass’n of Exps. & Imps. Textile & Apparel Grp. v. United
States, 751 F.2d 1239, 1249 (Fed. Cir. 1985). It thus (at least) “involve[s]” a “foreign affairs function
of the United States,” 5 U.S.C. § 553(a)(1), and is therefore exempt from notice and comment.
16 As with the mask order, even if there was some notice-and-comment obligation, any error
was harmless, and Plaintiff has not carried his burden to show otherwise. See supra at 18-19. Plaintiff
argues that public comments “would have revealed” that the testing order would “not stop [the
Omicron variant] from entering America,” noting that the vast majority of new infections are caused
by the Omicron variant. Mot. at 33. But the percent of infections caused by a specific variant does
not tell us anything about how high the number of infections might have been or how quickly that
variant might have been introduced without the testing order. And, in the testing order, the CDC
acknowledged that “pre-departure testing does not eliminate all risk” but rather is part of a “multi-
layered proactive approach” to both “prevent[] and slow[]” the “introduction of cases and further
spread of the virus within U.S. communities.” 86 Fed. Reg. at 69,260.
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the virus.” Mot. at 33. This argument ignores (among other things) that (1) taking
precautions (including multiple overlapping precautions) may be prudent even in the
absence of 100% effectiveness; and (2) infected individuals traveling from abroad may
“spread[] the virus to others during travel, upon arrival in the United States, and at
their destinations” after they land. ECF No. 125-9 at 4.17
VIII. Plaintiff’s requested relief is overbroad.
An Article III court’s “constitutionally prescribed role is to vindicate the
individual rights of the people appearing before it.” Gill v. Whitford, 138 S. Ct. 1916,
1930, 1933 (2018). Accordingly, as required both by Article III of the Constitution
and traditional principles of equity, “[a] plaintiff’s remedy must be tailored to redress
the plaintiff’s particular injury,” id. at 1934, and “injunctive relief should be no more
burdensome to the defendant than necessary to provide complete relief to the
plaintiffs,” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994) (quoting
Califano v. Yamasaki, 442 U.S. 682, 702 (1979)); see also Va. Soc’y for Human Life, Inc. v.
FEC, 263 F.3d 379, 393-94 (4th Cir. 2001) (“language of the APA” does not require
courts to invalidate a rule “for the entire country”). Nationwide relief, by contrast,

17 Plaintiff complains that “illegal aliens” are not required to test, Mot. at 33, but does not
explain how there could be a testing regime for illegal entry. And while Plaintiff notes that the testing
order does not apply to those “crossing land borders” and “arriving by sea,” Mot. at 34, an agency
“need not solve every problem before it in the same proceeding,” Mobil Oil Exploration & Producing
Southeast, Inc. v. United Distribution Cos., 498 U.S. 211, 231 (1991), so there is nothing impermissible
about the agency aiming to slow the spread of COVID-19 in the United States by addressing the
substantial percentage of international travelers that arrive in the country by air—often on long,
densely-packed flights. In any event, CDC has also issued separate orders and guidance regarding
other forms of international travel. See, e.g., CDC, Cruise Ship Travel During COVID-19 (updated March
14, 2022), https://perma.cc/A4PR-QDEL (recommending individuals get a COVID-19 test “as close
to time of cruise departure as possible (no more than 3 days) before you travel”).
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“take a toll on the federal court system—preventing legal questions from percolating
through the federal courts, encouraging forum shopping, and making every case a
national emergency for the courts and for the Executive Branch.” Trump v. Hawaii,
138 S. Ct. 2392, 2425 (2018) (Thomas, J., concurring). And the orders at issue have
been challenged in numerous other cases—some involving Plaintiff himself—
underscoring why this Court should not attempt to decide their legality for all parties
nationwide. See Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599, 601 (2020)
(Gorsuch, J., concurring) (lamenting the “gamesmanship and chaos” created by the
possibility of “conflicting nationwide injunctions,” as well as the “asymmetric” effects
in which “the government’s hope of implementing any new policy could face the long
odds of a straight sweep, parlaying a 94-to-0 win in the district courts into a 12-to-0
victory in the courts of appeal”). Accordingly, although all of Plaintiff’s claims are
meritless, at most, any relief should be limited to him. See, e.g., Order, Wall v. TSA,
No. 21-1220 (D.C. Cir. Nov. 10, 2021) (“petitioners have not demonstrated any basis
for enjoining the challenged agency action in its entirety”).18
CONCLUSION
Federal Defendants’ motion for summary judgment should be granted, and
Plaintiff’s motion for summary judgment should be denied.

18 Relatedly, should the Court determine that CDC committed procedural errors under the
APA (such as by failing to engage in notice and comment or by failing to adequately explain its
reasoning), the Court should at most remand to the agency without vacatur. See Black Warrior
Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs, 781 F.3d 1271, 1289-90 (11th Cir. 2015). The alleged
procedural errors that Plaintiff relies on could all be cured on remand, and even temporary (or partial)
vacatur of these orders could have disruptive and dangerous consequences.
Case 6:21-cv-00975-PGB-DCI Document 263 Filed 03/25/22 Page 32 of 34 PageID 7423

Dated: March 25, 2022

Respectfully submitted,

BRIAN M. BOYNTON

Principal Deputy Assistant Attorney General

ROGER B. HANDBERG

United States Attorney

ERIC B. BECKENHAUER

Assistant Branch Director

By:
/s/ Andrew F. Freidah
MARCIA K. SOWLES
Senior Trial Counsel
STEPHEN M. PEZZI
ANDREW F. FREIDAH
JOHNNY H. WALKER
MICHAEL J. GERARDI
Trial Attorneys
United States Department of Justice
Civil Division
Federal Programs Branch
1100 L Street NW
Washington, DC 20005
Telephone: 202-305-0879
Email: andrew.f.freidah@usdoj.gov

Counsel for the Federal Defendants

Case 6:21-cv-00975-PGB-DCI Document 263 Filed 03/25/22 Page 33 of 34 PageID 7424

CERTIFICATE OF SERVICE
I hereby certify that on March 25, 2022, I caused a true and correct copy of the
as-filed version of this filing to be served on all counsel of record via the CM/ECF
system. Although Plaintiff is proceeding pro se, he has been authorized by the Court
to receive Notices of Electronic Filing from the CM/ECF system. ECF No. 14.
Accordingly, Plaintiff will receive service of this filing through the CM/ECF system.

/s/Andrew F. Freidah
ANDREW F. FREIDAH
Trial Attorney
United States Department of Justice

Case 6:21-cv-00975-PGB-DCI Document 263 Filed 03/25/22 Page 34 of 34 PageID 7425

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Federal Defendants’ Cross-Motion for Summary Judgment and Opposition — Wall v. CDC

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