Federal Defendants’ Reply in Support of Cross-Motion for Summary Judgment — Wall v. CDC

Record facts

UNITED STATES DISTRICT COURT · No. 6:21-cv-00975-PGB-DCI · Doc. 270 · 2022-04-12 · Docket on CourtListener

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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 AND PREVENTION, 
et al., 
 
 
 
 
 
 
                              Defendants. 
 
 
 
 
 
 
FEDERAL DEFENDANTS’ REPLY IN SUPPORT OF 
CROSS-MOTION FOR SUMMARY JUDGMENT  
 
 
 
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TABLE OF CONTENTS 
I. 
The Transportation Mask Order is authorized by the Public Health 
Service Act (PHSA). .................................................................................... 1 
II.  
The Transportation Mask Order is not arbitrary and capricious. .................... 4 
III. 
The CDC had good cause to issue the Transportation Mask Order 
without notice and comment. ....................................................................... 5 
IV.  
The Transportation Mask Order does not violate the Constitution. ................ 5 
V. 
Plaintiff’s claims regarding the International Traveler Testing Order are 
also meritless. .............................................................................................. 7 
CONCLUSION .................................................................................................... 7 
 
 
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TABLE OF AUTHORITIES 
Cases 
Alabama Association of Realtors v. HHS, 
141 S. Ct. 2485 (2021) ........................................................................................ 3 
Biden v. Missouri, 
142 S. Ct. 647 (2022) .......................................................................................... 5 
FCC v. Prometheus Radio Project, 
141 S. Ct. 1150 (2021) ........................................................................................ 4 
Florida v. HHS, 
19 F.4th 1271 (11th Cir. 2021) ........................................................................ 3, 4 
Gilmore v. Gonzales, 
435 F.3d 1125 (9th Cir. 2006) ............................................................................. 6 
Huffman v. Comm’r, 
978 F.2d 1139 (9th Cir. 1992) ............................................................................. 2 
Kelley v. United States, 
69 F.3d 1503 (10th Cir. 1995) ............................................................................. 6 
New York v. United States, 
505 U.S. 144 (1992) ......................................................................................... 5-6 
Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 
531 U.S. 159 (2001) ............................................................................................ 4 
Tiger Lily, LLC v. HUD, 
5 F.4th 666 (6th Cir. 2021) .................................................................................. 3 
Tiger Lily, LLC v. HUD, 
992 F.3d 518 (6th Cir. 2021) ............................................................................... 3 
Wall v. Southwest Airlines, 
No. 21-cv-1008 (M.D. Fla. Dec. 8, 2021) ............................................................ 5 
Statutes 
42 U.S.C. § 264 ................................................................................................. 1, 3 
 
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49 U.S.C. § 40103 .................................................................................................. 6 
 
Administrative and Executive Materials 
CDC, Order Under Section 361 of the Public Health Service Act, Requirements for Persons To 
Wear Masks While on Conveyances and at Transportation Hubs, 
86 Fed. Reg 8025 (Feb. 3 2021) .................................................................... 3, 4, 5 
CDC, Requirements for Negative Pre-Departure Covid-19 Test Result or Documentation of 
Recovery From Covid-19 for All Airline or Other Aircraft Passengers Arrtiving Into the 
United States From Any Foreign Country, 
86 Fed. Reg 69,256 (Dec. 7, 2021) .................................................................. 3, 7 
Other Authorities 
Sanitary, Merriam-Webster.com Dictionary, 
https://perma.cc/ET57-55XX ............................................................................ 2 
Sanitation, Merriam-Webster.com Dictionary, 
https://perma.cc/9ARR-YKYH ........................................................................ 2 
Transp. Sec. Admin., Staying Healthy When Traveling (May 21, 2020), 
https://perma.cc/7AYK-C75G .......................................................................... 2 
WHO, Sanitation,  
https://perma.cc/E4M4-HVDY......................................................................... 2 
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As Federal Defendants explained in their Cross-Motion & Opposition (Defs.’ 
Br.), ECF No. 263, Plaintiff Lucas Wall’s claims are meritless—both on the science 
and the law.  Plaintiff’s Opposition and Reply (Pl.’s Opp’n), ECF No. 269, does not 
cast doubt on those conclusions.  While Plaintiff advances several new arguments, he 
still offers no factual or legal basis for his claims, instead adhering to the unsupported 
position that “masking does not promote hygiene or disease prevention.”  Id. at 7. 
I.  
The Transportation Mask Order is authorized by the Public Health Service 
Act (PHSA). 
In carrying out and enforcing Congress’s authorization 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,” the CDC is authorized to “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.”  42 U.S.C. 
§ 264(a). The temporary requirement to wear masks on public transportation is a 
conventional “sanitation” measure, and at an absolute minimum qualifies as an “other 
measure[]” akin to the examples enumerated in the statute, including “sanitation.”  
Id.; see Defs.’ Br. at 8-11.1 
                                                 
1 Plaintiff appears to have abandoned his non-delegation claims (Counts 4 & 12), failing to 
address them in his Opposition & Reply.    
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1. Plaintiff argues that masking is not a “sanitation” measure because it does 
not involve the removal of sewage and trash, or the provision of clean drinking water.  
Pl.’s Opp’n at 7-10.  But typically, “[w]ords of both technical and common usage are 
construed in the latter sense unless the statute plainly indicates otherwise.”  Huffman 
v. Comm’r, 978 F.2d 1139, 1145 (9th Cir. 1992).  Section 264(a) is free of technical 
jargon and speaks in common, readily understandable terms about what powers CDC 
may exercise.  In common usage, both now and at the time of § 264(a)’s enactment, 
the term “sanitation” covers far more ground than Plaintiff allows.  See Defs.’ Br. at 9-
10, 9 n.4.  For example, a traveler might use “[h]and sanitizer” while waiting for her 
flight to arrive and clean her tray table with “[s]anitizing wipes” before setting a drink 
upon it.  Transp. Sec. Admin., Staying Healthy When Traveling (May 21, 2020), 
https://perma.cc/7AYK-C75G.2 
 
2. Plaintiff offers no textual basis for his theorized distinction between “liberty 
interests” and “property interests” (Pl.’s Opp’n at 8)—words that appear nowhere in 
                                                 
2 Plaintiff provides a contemporary definition from the 2022 version of Merriam-Webster—
which merely offers parenthetical examples of “sanitation”—and he omits the primary definition of 
“sanitation” offered by his cited source: “the act or process of making sanitary,” Sanitation, Merriam-
Webster.com Dictionary, https://perma.cc/9ARR-YKYH, with “sanitary,” in turn, meaning “of or 
relating to health,” Sanitary, Merriam-Webster.com Dictionary, https://perma.cc/ET57-55XX.  
Meanwhile, while the 2022 Oxford Dictionary Plaintiff cites, Pl.’s Opp’n at 7-8, provides “the 
provision of clean drinking water and adequate sewage disposal” as examples, it plainly does not offer 
them as limitations on “sanitation.”  Plaintiff’s attempt to draw on language from the website for 
CDC’s Global Water, Sanitation, & Hygiene Program, id. at 8-9, fares no better—CDC’s 
characterization of “basic sanitation” in the specific context of a wastewater program in 2021 says 
nothing about Congress’s intended meaning of the word in 1944 in the broader context of overall 
disease control and prevention.  Finally, the WHO webpage Plaintiff cites, id. at 9, does not even offer 
a definition of “sanitation.”  See WHO, Sanitation, https://perma.cc/E4M4-HVDY.  
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the statute.3  Likewise, it is immaterial that 42 U.S.C. § 264(d) places certain 
limitations on the agency’s authority to apprehend, examine, or detain persons 
“reasonably believed to be infected.”  Pl.’s Opp’n at 9 (quoting 42 U.S.C. § 264(d)).  
That is not surprising, as such measures are far more intrusive than, for example, 
requiring masks (or proof of a negative COVID-19 test).  But the orders challenged 
here do not provide for the apprehension or examination or detention of anyone, so 
those limitations are irrelevant to this case.  Indeed, the challenged orders do not rely 
on § 264(d).  See 86 Fed. Reg. 8025 (Feb. 3, 2021); 86 Fed. Reg. 69,256 (Dec. 7, 2021).   
3. For the first time, Plaintiff now invokes the so-called “major questions 
doctrine.”  Pl.’s Opp’n at 12-13.  Even if he had not forfeited the argument, the 
Eleventh Circuit recently rejected application of that doctrine where, as here, the 
statute “plainly encompasses the [agency’s] actions,” so Congress need not have 
provided “an indication that specific activities are permitted.”  Florida v. HHS, 19 F.4th 
1271, 1288 (11th Cir. 2021).  “To suggest otherwise would mean that Congress had to 
                                                 
3 On this point, Plaintiff cites an order from a Sixth Circuit motions panel denying a stay 
pending appeal in a case concerning the CDC’s eviction moratorium.   Tiger Lily, LLC v. HUD, 992 
F.3d 518 (6th Cir. 2021).  But the Sixth Circuit’s subsequent merits ruling in Tiger Lily did not rely on 
any such distinction between “property interests” and “liberty interests,” see 5 F.4th 666 (6th Cir. 
2021), and, importantly, neither did the Supreme Court’s opinion in Alabama Association of Realtors v. 
HHS, 141 S. Ct. 2485 (2021).  In any event, the purported distinction is mistaken.  As the statutory 
text makes clear, it is subsection (a) that authorizes CDC to adopt “regulations . . . necessary to prevent 
the . . . spread of communicable diseases,” regardless of whether they restrict either liberty or property, 
42 U.S.C. § 264(a); although subsections (b)–(d) place conditions on that power in the quarantine 
context, those conditions apply only to “regulations prescribed under this section, insofar as they 
provide for the apprehension, detention, examination, or conditional release of individuals,” id. 
§ 264(c) (emphasis added), indicating that Congress contemplated that CDC might well prescribe 
other regulations that restrict liberty to which the conditions of subsections (b)–(d) would not apply. 
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have anticipated both the unprecedented COVID-19 pandemic and the unprecedented 
politicization of the disease to regulate . . . against it.”  Id.4 
II.  
The Transportation Mask Order is not arbitrary and capricious. 
Here, where CDC provided a robust explanation, relying on peer-reviewed 
literature that supports the widespread scientific consensus in favor of the efficacy and 
safety of masks, it is clear that “the agency has acted within a zone of reasonableness.”  
FCC v. Prometheus Radio Project, 141 S. Ct. 1150, 1158 (2021).   
1. Plaintiff protests that CDC guidance no longer recommends that persons in 
most U.S. counties wear masks indoors in public, while the CDC still requires that 
masks be worn on public transportation conveyances.  See Pl.’s Opp’n at 14.  However, 
the agency explained that “[t]raveling on multi-person conveyances increases a 
person’s risk of getting and spreading COVID-19 by bringing persons in close contact 
with others, often for prolonged periods, and exposing them to frequently touched 
surfaces.”  86 Fed. Reg. at 8029.   
2. Plaintiff argues that “CDC failed to consider lesser alternatives,” including 
limiting the mask requirement to only certain types of public transportation.  Pl.’s 
Opp’n at 16.  But the CDC in fact concluded that “[a]ir travel” and “[t]ravel by bus, 
train, vessel, and other conveyances used for international, interstate, or intrastate  
                                                 
4 Plaintiff’s citation to Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 
531 U.S. 159 (2001), is inapposite.  Federal regulation of public transit is pervasive, and Plaintiff makes 
no assertion that states have traditionally required masks or testing for communicable diseases, so 
there is plainly no “federal encroachment upon a traditional state power” here.  Id. at 173. 
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transportation pose similar challenges.”  86 Fed. Reg. at 8029. 
III. 
The CDC had good cause to issue the Transportation Mask Order without 
notice and comment. 
Plaintiff does not contest that the CDC made a finding of good cause to issue 
the mask order without notice and comment.  See Defs.’ Br. at 18.  Rather, he asserts 
that there was no good cause because the mask order was issued “10½ months” into 
the pandemic.  Pl.’s Opp’n at 19.  But that is contrary to Biden v. Missouri, 142 S. Ct. 
647, 654 (2022), in which the Supreme Court rejected a virtually identical argument.  
See Defs.’ Br. at 18.  Plaintiff’s attempt to distinguish Biden v. Missouri by asserting that 
the CDC’s explanation here was merely “conclusory,” Pl.’s Opp’n at 19-20, ignores 
the fact that CDC’s finding of good cause was based on “[c]onsidering the public 
health emergency caused by COVID-19,” 86 Fed. Reg. at 8030, which was extensively 
described in the order, see id. at 8028-29.5  
IV.  
The Transportation Mask Order does not violate the Constitution. 
 
1. Plaintiff seems to concede (correctly) that the mask order “does not exceed 
Congress’s authority under the Commerce Clause.”  Pl.’s Opp’n at 21.  Thus, there 
can be no Tenth Amendment problem.  See New York v. United States, 505 U.S. 144,  
 
                                                 
5 In arguing that the harmless-error rule would not apply here, Pl.’s Opp’n at 20-21, Plaintiff 
appears to only identify recent commentary that is not contemporaneous with consideration of the 
mask order in early 2021, see id.  In any event, given the COVID-19 pandemic and the “substantial 
scientific evidence showing that masks are very effective in blocking aerosolized particles containing 
the COVID-19 virus,” Order at 9, Wall v. Southwest Airlines, No. 21-cv-1008, ECF No. 153 (M.D. Fla. 
Dec. 8, 2021), Plaintiff cannot demonstrate prejudice from any notice-and-comment error. 
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156 (1992) (“If a power is delegated to Congress in the Constitution, the Tenth 
Amendment expressly disclaims any reservation of that power to the States.”).  
Plaintiff’s argument that the mask order intrudes upon “domains of the states,” Pl.’s 
Opp’n at 21-22, is both incorrect, see supra at 4 n.4, and irrelevant, see Kelley v. United 
States, 69 F.3d 1503, 1509 (10th Cir. 1995) (“[E]ven if plaintiffs are correct . . . that 
[the statute] intrudes upon a domain traditionally left to the states, it is constitutional 
as long as it falls within the commerce power.”).6  
 
2. Plaintiff does not deny that freedom to travel is “subject to reasonable 
government regulation” and that “[m]ere burdens on a person’s ability to travel from 
state to state are not necessarily a violation of their right to travel.”  Defs.’ Br. at 20.  
Rather, he asserts that he has been “[b]ann[ed] . . . from flying interstate and 
internationally” by the mask order.  Pl.’s Opp’n at 23.  But there is no ban.  And if 
Plaintiff “medically can’t wear a mask,” id., then the order does not apply to him.7   
 
3. Regarding his Due Process claim, Plaintiff seems not to dispute that he has 
“no constitutionally protected liberty interest” at stake.  Defs.’ Br. at 19-20.  
Meanwhile, it is plainly possible to receive a mask exemption, id. at 20, and Plaintiff’s 
                                                 
6 Plaintiff appears to have abandoned his “commandeering” argument. 
7 To the extent that Plaintiff asserts he has a constitutional right to his preferred method of 
travel, Pl.’s Opp’n at 24, “the Constitution does not guarantee the right to travel by any particular 
form of transportation.”  Gilmore v. Gonzales, 435 F.3d 1125, 1136 (9th Cir. 2006); see also Order at 4, 
ECF No. 28 (“[F]lying may be Plaintiff’s preferred method of transportation, but it is by no means the 
only reasonable mode of transportation available to him.”).  And while Plaintiff asserts “a right to use 
the public airspace” under 49 U.S.C. § 40103, Pl.’s’ Opp’n at 24, as explained above, he is not banned 
from flying.  See also Order at 6, ECF No. 255 (“Plaintiff can still fly in compliance with the FTMM, 
or he can apply for an exemption to the FTMM.”). 
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claim to “numerous exemption denials,” Pl.’s Opp’n at 23, does not prove that the 
mask-exemption process is “futile.”8   
V. 
Plaintiff’s claims regarding the International Traveler Testing Order are also 
meritless. 
Plaintiff barely addresses his claims challenging the testing order, and indeed 
does not address his arbitrary-and-capricious or non-delegation claims at all.  But to 
the extent he addresses the testing order, Plaintiff does not deny that a testing 
requirement is an “inspection.” Rather, Plaintiff argues that § 264(a) requires 
“inspection” of “animals or articles,” Pl.’s Opp’n at 25, a reading of the statute that is 
grammatically mistaken, see Defs.’ Br. at 10.  Plaintiff also appears to argue that CDC’s 
good-cause statement was inadequate because the Delta and Omicron variants “spread 
rapidly” despite the testing order, Pl.’s Opp’n at 25, but this does not tell us anything 
about how much the virus would have spread absent the testing order, and, in any 
event, the CDC acknowledged that “pre-departure testing does not eliminate all risk,” 
see Defs.’ Br. at 23 n.16 (quoting 86 Fed. Reg. at 69,260). 
CONCLUSION 
Federal Defendants’ motion for summary judgment should be granted, and 
Plaintiff’s motion for summary judgment should be denied.  
 
                                                 
8 In very briefly addressing his ACAA claim (Count 8), Plaintiff concedes that “CDC is not an 
air carrier.”  Pl.’s Opp’n at 24.  This is fatal to his claim, and, in any event, as Federal Defendants 
have previously explained, the CDC mask order plainly does not discriminate against disabled 
individuals.  See Defs.’ Br. at 21.   
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Dated: April 12, 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 
 
 
 
 
 
 
 
 
 
 
 
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CERTIFICATE OF SERVICE 
I hereby certify that on April 12, 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 
 
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