Court filing

Order on Summary Judgment — Wall v. CDC

Filed April 29, 2022 in Wall v. CDC; one of 35 filings from this case.

Record facts

Court	UNITED STATES DISTRICT COURT
Filed	2022-04-29

UNITED STATES DISTRICT COURT · No. 6:21-cv-00975-PGB-DCI · Doc. 274 · 2022-04-29 · Docket on CourtListener

Full text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

LUCAS WALL,

Plaintiff,

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

CENTERS FOR DISEASE
CONTROL & PREVENTION,
DEPARTMENT OF HEALTH &
HUMAN SERVICES, GREATER
ORLANDO AVIATION
AUTHORITY and CENTRAL
FLORIDA REGIONAL
TRANSPORTATION
AUTHORITY,

Defendants.

/
ORDER
This cause comes before the Court on the following filings:
1.
Plaintiff Lucas Wall’s Motion for Summary Judgment on Counts I–
XII of the Amended Complaint (Doc. 230);
2.
Defendants the Centers for Disease Control and Prevention (the
“CDC”) and the Department of Health and Human Services’
(“HHS”)1 Cross-Motion for Summary Judgment and Opposition to
Plaintiff’s Motion for Summary Judgment (Doc. 263);

1 The CDC is a component of the HHS. The Court refers to them collectively as “the Federal
Defendants.”
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3.
Plaintiff’s Combined Opposition to the Federal Defendants’ Motion
for Summary Judgment and Reply in Support of his Motion for
Summary Judgment (Doc. 269); and
4.
The Federal Defendants’ Reply in Support of their Motion for
Summary Judgment (Doc. 270).
Upon consideration, Plaintiff’s Motion for Summary Judgment is due to be denied,
and the Federal Defendants’ Motion for Summary Judgment is due to be granted.
I.
BACKGROUND
In response to the COVID-19 pandemic, the CDC issued two “orders”2 to
quell the transmission of the deadly SARS-CoV-2 virus. The first is the federal
transportation mask mandate (“FTMM”), which requires individuals traveling via
public transportation to wear a mask. See Requirement for Persons to Wear Masks
While on Conveyances and at Transportation Hubs, 86 Fed. Reg. 8,025 (Feb. 3,
2021). The second is the international traveler testing requirement (“ITTR”),
which requires international travelers to obtain a negative COVID-19 test prior to
departure to the United States from a foreign country. See 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

2
The fact that the CDC classed the FTMM and the ITTR as “orders” rather than “rules” is
immaterial. The FTMM and the ITTR obviously operate as generally applicable rules, and the
Court will treat it as such. See Mendoza v. Perez, 754 F.3d 1002, 1021 (D.C. Cir. 2014) (“A rule
is legislative if it supplements a statute, adopts a new position inconsistent with existing
regulations, or otherwise effects a substantive change in existing law or policy.”).
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United States From Any Foreign Country, 86 Fed. Reg. 69,256 (Dec. 7, 2021).3 The
CDC justified these regulations under Section 361(a) of the Public Health Service
Act (“PHSA”), which provides:
The Surgeon General, with the approval of the Secretary [of
the HHS],4 is authorized 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. For
purposes of carrying out and enforcing such regulations, the
Surgeon General 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.

42 U.S.C. § 264(a).
Plaintiff initiated this action on June 7, 2021, challenging the CDC’s
enactment of the FTMM and the ITTR. (Doc. 1). On December 26, 2021, Plaintiff
filed the Amended Complaint, which asserts the following causes of action against
the Federal Defendants: the FTMM and the ITTR violate the PHSA (Counts I and
IX); the FTMM and the ITTR violate the Administrative Procedure Act (“APA”)

3
This is the third version of the ITTR. The CDC originally issued the ITTR on January 28, 2021,
and it amended the regulation on November 5, 2021. See 86 Fed. Reg. 7,387 (Jan. 28, 2021);
86 Fed. Reg. 61,252 (Nov. 5, 2021).

4 Although the statute vests authority in the Surgeon General, Congress abolished the Office of
the Surgeon General and transferred its functions to the Secretary of Health, Education, and
Welfare in 1966. See Reorganization Plan No. 3 of 1966, 31 Fed. Reg. 8,855 (June 25, 1966).
Congress redesignated the Department of Health, Education, and Welfare as the HHS in 1979.
See Department of Education Organization Act, Pub. L. No. 96-88, 93 Stat. 668 (1979)
(codified as 20 U.S.C. § 3508). Congress reestablished the Office of the Surgeon General in
1987, but the Secretary of the HHS retained the transferred functions. See Statement of
Organization, Functions and Delegations of Authority, 52 Fed. Reg. 11,754-03 (Apr. 10, 1987);
see also 42 U.S.C. § 203. The Secretary of the HHS, in turn, delegated his enforcement and
implementation authority to the CDC. See 42 C.F.R. §§ 70.2, 71.31(b), 71.32(b).
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(Counts II, III, X, and XI); the FTMM and the ITTR violate the nondelegation
doctrine, the Tenth Amendment, the Fifth Amendment, and the right to travel
(Counts IV, V, VI, VII, XII); and the FTMM violates the Air Carrier Access Act
(“ACAA”) (Count VIII). (Doc. 188, ¶¶ 304–412).5 Plaintiff and the Federal
Defendants have filed competing requests for summary judgment, and the matter
is now ripe for review.
II.
STANDARD OF REVIEW
To prevail on a summary judgment motion, the movant must show “that
there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). “An issue of fact is ‘material’ if, under the
applicable substantive law, it might affect the outcome of the case. An issue of fact
is ‘genuine’ if the record taken as a whole could lead a rational trier of fact to find

5
To the extent that Plaintiff’s Motion for Summary Judgment raises claims that do not appear
in his Amended Complaint, the Court properly disregards them. See Gilmour v. Gates,
McDonald & Co., 382 F.3d 1312, 1314–15 (11th Cir. 2004) (per curiam); Newman v. Ormond,
396 F. App’x 636, 639 (11th Cir. 2010) (per curiam). Plaintiff’s position—that his contentions
regarding the Food, Drug, and Cosmetic Act (“FDCA”), the International Covenant on Civil
and Political Rights (“ICCPR”), and the Convention on International Civil Aviation (“CICA”)
merely “buttress[]” some of the claims raised in his Amended Complaint—is weak; evaluation
of those contentions would require the Court to undertake an independent review of the FDCA
and the treaties at issue—it is not part and parcel of the arbitrary and capricious analysis. (Doc.
269, pp. 17–19; see Doc. 230, pp. 17–21, 34–35). And, to the extent the Amended Complaint
refers to the FDCA, the ICCPR, and the CICA, it violates the Court’s December 18, 2021, Order,
which dismissed the original Complaint without prejudice (as to some claims and parties) and
prohibited Plaintiff from adding new claims on repleader. (Doc. 187, pp. 28–29).

Furthermore, to the extent Plaintiff raises any new arguments in his response to the Federal
Defendants’ Motion for Summary Judgment and his reply in support of his Motion for
Summary Judgment, the Court properly disregards these arguments. Starbuck v. R.J.
Reynolds Tobacco Co., 349 F. Supp. 3d 1223, 1229 (M.D. Fla. 2018) (“A party cannot raise
new arguments in support of summary judgment for the first time in a reply brief.”).
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for the nonmoving party.” Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir.
2014).
The Court must “view the evidence and all factual inferences therefrom in
the light most favorable to the non-moving party, and resolve all reasonable doubts
about the facts in favor of the non-movant.” Davila v. Gladden, 777 F.3d 1198, 1203
(11th Cir. 2015) (quoting Carter v. City of Melbourne, 731 F.3d 1161, 1166 (11th Cir.
2013) (per curiam)). “A mere ‘scintilla’ of evidence supporting the opposing party’s
position will not suffice; there must be enough of a showing that the jury could
reasonably find for that party.” Brooks v. Cnty. Comm’n of Jefferson Cnty., 446
F.3d 1160, 1162 (11th Cir. 2006) (quoting Walker v. Darby, 911 F.2d 1573, 1577
(11th Cir. 1990)).

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III.
DISCUSSION
The nondelegation doctrine,6 Tenth Amendment,7 Fifth Amendment,8 right
to travel,9 and ACAA10 claims all clearly lack merit. Accordingly, the Court focuses

6 Where Congress has statutorily granted power to an agency and has provided the agency with
an intelligible principle to guide executive discretion, the nondelegation doctrine is not
offended. See J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 404–05 (1928); City
of Arlington v. FCC, 569 U.S. 290, 301 (2013); cf. A.L.A. Schechter Poultry v. United States,
295 U.S. 495, 541–42 (1935). By providing the goal “to prevent the introduction, transmission,
or spread of communicable diseases,” Congress properly gave the CDC an intelligible principle
to guide its judgments. 42 U.S.C. § 264(a).

7
“The 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). Because the FTMM applies to public and private mass transportation
systems, Plaintiff’s Tenth Amendment challenge falls flat. 86 Fed. Reg. at 8,026, 8,028.
Furthermore, the ITTR only applies to private international air travel—not state actors—and
therefore the Tenth Amendment is inapplicable. Cf. New York v. United States, 505 U.S. 144,
156–57 (1992) (“[T]he Tenth Amendment confirms that the power of the Federal Government
is subject to limits that may, in a given instance, reserve power to the States. The Tenth
Amendment thus directs us to determine, as in this case, whether an incident of state
sovereignty is protected by a limitation on an Article I power.”).

8 To qualify as a constitutionally protected, due process liberty interest, the interest must be
“objectively, deeply rooted in history and tradition of the United States, and must be implicit
in concept of ordered liberty, so that neither liberty nor justice would exist if it were
sacrificed.” Kerry v. Din, 576 U.S. 86, 93 (2015) (plurality) (quoting Washington v.
Glucksberg, 521 U.S. 702, 720–21 (1997)). Trying to fit the “right to travel free of a mask” into
this definition is a useless endeavor.

9 The fundamental right to travel primarily protects three things: (1) the “right to enter and
leave another state,” (2) “the right to be treated fairly when temporarily present in another
state,” and (3) the right to be treated the same as other state citizens when moving
permanently to another state. Doe v. Moore, 410 F.3d 1337, 1348 (11th Cir. 2005) (citing Saenz
v. Roe, 526 U.S. 489, 500 (1999)). Plaintiff is not barred from traveling to another state by
virtue of not wearing a mask. A mere inconvenience caused by a reasonable government
regulation is not enough to amount to a denial of this fundamental right. Id.

10 Plaintiff’s ACAA claim fails on several grounds. First, the ACAA only applies to “air carriers”
and the CDC is not an “air carrier.” 49 U.S.C. § 41705(a). Second, Plaintiff alleges that the
FTMM discriminates against handicapped individuals; however, the FTMM explicitly
exempts any “person with a disability who cannot wear a mask . . . because of a disability.” 86
Fed. Reg. at 8,027. Further, the Eleventh Circuit has explained that the ACAA does not provide
a private right of action except for a limited review when the Department of Transportation
has abdicated its statutory duties, which is not relevant here. See Love v. Delta Air Lines, 310
F.3d 1347, 1354, 1360 (11th Cir. 2002).
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on the PHSA and APA claims, which present the following questions: (A) whether
Section 361(a) of the PHSA permitted the CDC’s promulgation of the FTMM and
the ITTR; and (B) if so, whether the CDC properly invoked the APA’s good cause
exception.11
A.
Did the PHSA Permit the CDC’s Promulgation of the FTMM
and ITTR?

To answer the first question, the Court analyzes the CDC’s regulations under
the Chevron doctrine, which proceeds in three “Steps.” The initial inquiry—Step
Zero—is whether the application of the doctrine is proper. “Chevron deference is
appropriate ‘when it appears that Congress delegated authority to the agency
generally to make rules carrying the force of law, and that the agency interpretation
claiming deference was promulgated in the exercise of that authority.’” Astrue v.
Capato ex rel. B.N.C., 566 U.S. 541, 558 (2012) (quoting United States v. Mead
Corp., 533 U.S. 218, 226–27 (2001)). “This approach ‘is premised on the theory
that a statute’s ambiguity constitutes an implicit delegation from Congress to the

11 On April 18, 2022, a court in this district vacated the FTMM. Health Freedom Def. Fund, Inc.
et al. v. Biden, No. 8:21-cv-1693, 2022 WL 1134138 (M.D. Fla. Apr. 18, 2022). However, a
“district court cannot be said to be bound by a decision of one of its brother or sister judges.”
Fishman & Tobin, Inc. v. Tropical Shipping & Const. Co., Ltd., 240 F.3d 956, 965 (11th Cir.
2001).

Further, “[a] case becomes moot only when it is impossible for a court to grant any effectual
relief whatever to the prevailing party.” Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S.
298, 307 (2012) (internal quotations omitted). That is, a case does not necessarily become
moot simply because intervening events may make it impossible for a federal court to issue
the exact form of relief that Plaintiff requests. Church of Scientology of Cal. v United States,
506 U.S. 9, 13 (1992) (Stevens, J.). In the Second Amended Complaint, Plaintiff requests that
the Court vacate the FTMM and enjoin the CDC from any further rules “requiring any person
wear a face mask.” (Doc. 188, p. 87). Therefore, “[t]he availability of this possible remedy is
sufficient to prevent this case from being moot.” Id.
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agency to fill in the statutory gaps.’” King v. Burwell, 576 U.S. 473, 485 (2015)
(quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000)).
If the doctrine applies, then the Court advances to Step One, the
interpretation of the agency’s organic statute to determine whether it is
ambiguous. “If the intent of Congress is clear, that is the end of the matter; for the
court, as well as the agency, must give effect to the unambiguously expressed intent
of Congress.” Chevron, U.S.A, Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,
842–43 (1984). “If, however, the court determines Congress has not directly
addressed the precise question at issue, the court does not simply impose its own
construction on the statute, as would be necessary in the absence of an
administrative interpretation.” Id. “Rather, if the statute is silent or ambiguous
with respect to the specific issue, the question for the court is whether the agency’s
answer is based on a permissible construction of the statute,” or Step Two of the
doctrine. Id.
After examining each Step of the Chevron doctrine, the Court concludes that
the FTMM and the ITTR are valid exercises of the CDC’s authority under Section
361(a) of the PHSA.
1.
Chevron Step Zero
Congress clearly intended to delegate authority to the CDC to make rules
regarding public health with the force of law. Section 361(a) of the PHSA
specifically states that “[t]he Surgeon General, with the approval of the Secretary
[of the HHS], is authorized to make and enforce such regulations.” 42 U.S.C. §
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264(a).12 The statute also empowers the agency to “make and enforce such
regulations as . . . are necessary to prevent the introduction, transmission, or
spread of communicable diseases,” further revealing Congress’ intent to give the
CDC power to make binding regulations.13 Nat’l Cable & Telecomm. Ass’n v. Brand
X Internet Servs., 545 U.S. 967, 980–81 (2005) (Thomas, J.) (“[T]he authority to
execute and enforce, . . . and to prescribe such rules and regulations as may be
necessary . . . give the [agency] the authority to promulgate binding legal rules.”
(internal citations and quotations omitted)).
However, even if Congress clearly delegated power to the CDC to create
binding rules, the Court must also ensure that such delegation does not run afoul
of the major questions doctrine. In essence, the major questions doctrine stands
for the proposition that courts “expect Congress to speak clearly when authorizing
an agency to exercise powers of ‘vast economic and political significance.’” Ala.
Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2489 (2021)
(quoting Utility Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)).
The FTMM and the ITTR are not questions of “deep ‘economic and political
significance’” that demand explicit congressional delegations of power. King, 576

12 See supra note 4.

13 While examining the procedure used in the promulgation of the rule is an excellent tool to
determine whether it was meant to have the force of law, the procedure is only a proxy for the
true question—whether Congress intended the agency to act with the force of law—which may
only be ascertained from the language of the statute alone. Cf. Mead, 533 U.S. at 231 (“[T]he
want of [formal] procedure here does not decide the case, for we have sometimes found
reasons for Chevron deference even when no such administrative formality was required and
none was afforded.”). The Court reviews the procedure the CDC used for the FTMM and the
ITTR in depth later in this Order.
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U.S. at 485–86. Unlike the CDC’s moratorium on eviction, which obviously placed
a large financial burden on landlords, the masking and testing requirements place
negligible financial burdens on travelers. Ala. Ass’n of Realtors, 141 S. Ct. at 2489.
In fact, the CDC correctly pointed out that the FTMM helps prevent the imposition
of economic burdens by stymying the spread of COVID-19 and, consequently,
avoiding future lockdowns and resulting losses. 86 Fed. Reg. at 8,029. Further, the
CDC’s regulations do not intrude into a particular domain of state law. Ala. Ass’n
of Realtors, 141 S. Ct. at 2489. Instead, the regulations deal with a matter of public
health relating to uniquely federal issues—interstate and foreign commerce. See,
e.g., Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258 (1964); United
States v. Darby, 312 U.S. 100, 118–19 (1941); Gibbons v. Ogden, 22 U.S. 1, 89–91
(1824).
Moreover, the FTMM and the ITTR clearly fall within the CDC’s public
health domain. Cf. King, 576 U.S. at 486 (“It is especially unlikely that Congress
would have delegated this decision to the IRS, which has no expertise in crafting
health insurance policy of this sort.”). The CDC targeted the spread of the highly
contagious, airborne SARS-CoV-2 virus via air travel by requiring all passengers to
wear a mask and by requiring negative COVID-19 pre-departure tests for
international fliers seeking entry into the United States. 86 Fed. Reg. at 8,026; 86
Fed. Reg. at 69,256–57. The fact that the CDC operated within its area of expertise
bolsters the Court’s conclusion here: the CDC’s authority does not run afoul of the
major questions doctrine.
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2.
Chevron Step One
Section 361(a) of the PHSA is clearly unclear. On the one hand, the statutory
text indicates a broad conferral of authority upon the CDC to issue any public
health measure effective in “prevent[ing] the introduction, transmission, or spread
of communicable diseases.” 42 U.S.C. § 264(a). Indeed, the title of Section 361,
“Regulations to control communicable diseases,” “suggests a broad authority,” and
the first sentence of Section 361(a) gives the CDC the authority “to make and
enforce such regulations as . . . are necessary,” without limitation. § 264(a); WEN
W. SHEN, CONG. RSCH. SERV., R46758, SCOPE OF CDC AUTHORITY UNDER SECTION
361 OF THE PUBLIC HEALTH SERVICE ACT (PHSA) 27 (2021).
It follows that the second sentence does not limit the scope of the first; such
a construction would not only conflict with the expansive grant of power in the first
sentence, but it would also read restrictive language into the second. See Lindh v.
Murphy, 521 U.S. 320, 336 (1997) (favoring an interpretation that “accords more
coherence” to the statutory provisions); ANTONIN SCALIA & BRYAN A. GARNER,
READING LAW: THE INTERPRETATION OF LEGAL TEXTS 155–57 (2012) (“The
provisions of a text should be interpreted in a way that renders them compatible,
not contradictory.”). Rather, the second sentence clarifies the breadth of the first
by enumerating various “tools” at the CDC’s disposal “[f]or purposes of carrying
out and enforcing such regulations” and concluding with the open-ended phrase
“and other measures, as in [its] judgment may be necessary.” § 264(a). That is, the
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second sentence is not an exhaustive list; it is merely a list of examples or
suggestions.
On the other hand, the statutory context implies a narrow grant of authority
to the CDC to issue public health measures related or incident to quarantine.
Section 361 appears under Part G of the PHSA, titled “Quarantine and Inspection,”
and “several other provisions within this part refer to regulations issued under
Section 361 as ‘quarantine laws,’” “point[ing] to a narrower interpretation of
Section 361 under which quarantine and isolation authority is the principal, if not
the maximum, authority granted under the provision.” SHEN, supra, at 4–6, 27.14
Additionally, subsections (b) through (d) of Section 361 “primarily set forth
the CDC’s foreign and interstate quarantine and isolation authority, including the
authority to apprehend, examine, and detain any individual reasonably believed to
be infected with certain communicable diseases,” subject to “additional
safeguards.” SHEN, supra, at 26 (internal quotations omitted); see § 264(b)–(d). It
follows that, “insofar as Congress contemplated a use of subsection (a) authority
beyond the enumerated measures to permit the quarantine of persons . . . it
subjected the exercise of such authority to some limits,” and, given that the
cornerstone of the subsequent subsections is the CDC’s “quarantine authority and

14 The Congressional Research Service Report cites to Sections 311 and 322 of the PHSA, which
do not appear in Part G of Title 42. 42 U.S.C. §§ 243(a), 249. The author notes: “The headings
and subheadings referenced in this report are as they appear in the PHSA, and may differ
slightly from the versions codified in Title 42 of the U.S. Code. Title 42 of the U.S. Code is a
non-positive law title that has been editorially arranged by the Code’s editors and includes
certain changes in the compiled laws’ text to facilitate their inclusion in the Code.” SHEN,
supra, at 4 n.43.
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its parameters, the enumerated list under subsection (a) could potentially be
understood as a list of measures that facilitate or supplement quarantine efforts.”
SHEN, supra, at 26; see Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576,
586 (2008) (“Under that rule [of ejusdem generis], when a statute sets out a series
of specific items ending with a general term, that general term is confined to
covering subjects comparable to the specifics it follows.”).
Adding even more obscurity to the statutory text, Section 361 does not define
those listed terms in subsection (a), including, as is pertinent here, the words
“sanitation” and “inspection.” Thus, the Court looks to the “ordinary,
contemporary, and common meaning[s]” of those words at the time Congress
enacted the statute in 1944. Patel v. United States Att’y Gen., 971 F.3d 1258, 1273
(11th Cir. 2020) (quoting Artis v. Dist. of Columbia, 138 S. Ct. 594, 603 n.8
(2018)); see SCALIA & GARNER, supra, at 80–89 (“Words must be given the
meaning they had when the text was adopted.”). Because both terms have multiple
permissible meanings, they are inherently ambiguous.
Dictionaries from 1942 and 1946, respectively, define “sanitation” as: “[a]
rendering sanitary; science of sanitary conditions; use of sanitary measures”; and
“[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.” Sanitation, WEBSTER’S NEW INTERNATIONAL
DICTIONARY OF THE ENGLISH LANGUAGE (1942); Sanitation, FUNK & WAGNALLS NEW
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STANDARD DICTIONARY OF THE ENGLISH LANGUAGE (1946).15 These dictionaries
further define “sanitary” as: “[o]f or pert. 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. filth and infection; hygienic,” or “[a]
water closet, urinal, or the like, fitted with sanitary plumbing”; and “[r]elating to
the preservation of health, especially to hygiene and public health; concerned with
sanitation,” or “[a] public water-closet or urinal, especially one equipped with
sanitary fixtures.” Sanitary, WEBSTER’S NEW INTERNATIONAL DICTIONARY OF THE
ENGLISH LANGUAGE (1942); Sanitary, FUNK & WAGNALLS NEW STANDARD
DICTIONARY OF THE ENGLISH LANGUAGE (1946). Notably, modern dictionary
definitions are substantially the same: “sanitation” means “the promotion of
hygiene and prevention of disease by maintenance of sanitary conditions (as by
removal of sewage or trash)” or “the act or process of making sanitary,” and
“sanitary” means “of or relating to health,” “of, relating to, or used in the disposal
especially of domestic waterborne waste,” or “characterized by or readily kept in
cleanliness.” Sanitation, Sanitary, MERRIAM-WEBSTER (2022), https://www.
merriam-webster.com/dictionary/sanitation, https://www.merriam-webster.com
/dictionary/sanitary.
A 1942 dictionary definition of “inspection” is: the “[a]ct or process of
inspecting; a strict or prying examination”; a legal term for “[t]he critical

15 (See Docs. 263-3, 263-4).
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examination of something as a part of a legal proceeding[,] esp. . . . [t]he physical
examination of the injured part of a person suing for damages for personal injury
[or] [t]he examination of articles of commerce (under laws called inspection laws)
to determine their fitness for transportation or sale”; “[i]nsight; perception”; or a
military and naval term for an “[o]fficial examination to determine and report on
the condition of personnel and material.” Inspection, WEBSTER’S NEW
INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE (1942). The same
dictionary defines “inspect” as: “[t]o look upon; to view closely and critically, esp.
so as to ascertain quality or state, to detect errors, etc.; to scrutinize”; “[t]o view
and examine officially, as troops, arms, etc.”; and “[t]o grade, as lumber.” Inspect,
WEBSTER’S NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE (1942).
Again, these words’ meanings are substantially the same today: “inspection” is “the
act of inspecting,” the “recognition of a familiar pattern leading to immediate
solution of a mathematic problem,” or “a checking or testing of an individual
against established standards”; and “inspect” is “to view closely in critical
appraisal: look over,” “to examine officially,” or “to make an inspection.”
Inspection,
Inspect,
MERRIAM-WEBSTER
(2022),
https://www.merriam-
webster.com/dictionary/inspection, https://www.merriam-webster.com/dictiona
ry/inspect.
The legislative history is also ambiguous. A drafter of the PHSA “described
Section 361[] . . . as concerning ‘quarantine and inspection and supersedes several
complex, outmoded, and inadequate statutes on the subject.’” SHEN, supra, at 9
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(quoting Alanson W. Wilcox, The Public Health Service Act, 1944, 7 SOC. SEC. BULL.
15, 17 (1944)). At a 1944 congressional hearing, the drafters explained that the first
sentence of Section 361(a) “express[es] ‘the gist of a long and complex provision of
the act of February 14, 1893,’” noted that “the states had already ‘wholly
withdrawn’ from foreign quarantine,” and stated that “as to interstate quarantine,
the federal law would be ‘confined to matters pertaining to the interstate
movement of people or things over which the States have both constitutional and
practical difficulties in achieving effective control.’” Id. at 9–10 (quoting Hearing
Before a Subcomm. on Interstate & Foreign Commerce on H.R. 3379: A Bill to
Codify the Laws Relating to the Public Health Service, and for Other Purposes,
78th Cong. 138–39 (1944) (statements of Alanson W. Wilcox, Assistant General
Counsel, Federal Security Agency, and Thomas Parran Jr., Surgeon General)).
Regarding the second sentence, the drafters testified that it “expressly authorize[s]
the [agency] to make inspections and take other steps necessary in the
enforcement of quarantine.” Id. at 10. And, as to subsections (b) through (d) of
Section 361, the drafters “designed [them] to clarify, perhaps enlarge, the authority
with respect to the apprehension and detention of individuals.” Id.
However, at the same hearing, the drafters “emphasized that ‘these
provisions are written in broader terms in order to make it possible to cope with
emergency situations which we cannot now foresee.’” Id. And, “[i]n a separate
committee hearing, then-Surgeon General Thomas Parran Jr. similarly echoed the
view that the authority under Section 361 ‘may be very important because of the
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possibility that strange diseases may be introduced in the country and become a
threat,’ and ‘flexibility in dealing with such contingencies would be very helpful.’”
Id. (quoting Hearing before a Subcomm. on Educ. & Labor, 78th Cong. 6 (1944)
(statement of Thomas Parran Jr., Surgeon General)).
Furthermore, Congress only “substantively” amended Section 361 once, as
part of the Public Health Security and Bioterrorism Preparedness and Response
Act of 2002, “to bolster the nation’s ability to respond effectively to bioterrorist
threats and other public health emergencies following the anthrax attacks in the
fall of 2001.” Id. at 11. The amendments expanded the agency’s authority—
specifically, the agency’s quarantine authority (i.e., they eliminated a provision
that predicated the issuance of quarantine rules on recommendations by the
National Advisory Health Council, and they permitted the quarantine of
individuals “in the precommunicable stage, if the disease would be likely to cause
a public health emergency if transmitted to other individuals”). Id. Thus, the
legislative history supports either the broad reading of the statutory text or the
narrow reading, and the Court concludes that Congress has not directly addressed
whether Section 361(a) of the PHSA permits the CDC’s promulgation of the FTMM
and the ITTR.
3.
Chevron Step Two
Cognizant that it is not the judiciary’s role to impose its own construction on
the statute, the Court finds that the CDC’s interpretation of the PHSA is
permissible and that it did not act arbitrarily and capriciously in issuing the FTMM
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and the ITTR. Given the ambiguity of the statutory text, the statutory context, and
the legislative history, the CDC’s broad reading of Section 361(a) is certainly
reasonable.
Moreover, even setting aside Section 361(a)’s wide-ranging catch-all
provision for other “necessary” measures, it is reasonable to categorize the FTMM
as a “sanitation” measure. As a matter of common sense, masks control the number
of particles inhaled from the public airspace by the wearer and the number of
particles exhaled by the wearer into the public airspace. In other words, masks
have two functions: (1) they protect the wearer from breathing in harmful air
particles (e.g., construction workers frequently use masks to protect themselves
from inhaling asbestos, sawdust, or other harmful substances); and (2) they
prevent the wearer from breathing out harmful air particles (e.g., surgeons, nurses,
and other operating room staff use masks for the patient’s benefit). In this way,
masks (to varying degrees) promote the public health by checking the transmission
of airborne viruses, such as SARS-CoV-2, and thus fit within the definitions of
“sanitation.”
Likewise, it is reasonable to categorize the ITTR as an “inspection” measure.
Antigen tests “detect structural features of the outside of the [SARS-CoV-2] virus
called antigens—small proteins that make up the virus—that may be present in a
patient’s sample,” often obtained by a nasopharyngeal swab, an anterior nasal
swab, or a saliva collection cup. Johns Hopkins Ctr. for Health Sec., Antigen Tests,
COVID-19 Testing Toolkit (2022), https://www.centerforhealthsecurity.org/
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covid-19TestingToolkit/testing-basics/types-of-COVID-19-tests/diagnostic-tests/
antigen-tests.html. Molecular tests, or nucleic acid amplification tests, identify the
ribonucleic acids that comprise the genetic material of the SARS-CoV-2 virus from
specimens collected from the patient’s upper or lower respiratory tract and then
amplify, or produce many copies of, the virus’ genetic material, if any is present in
the patient’s specimen. Ctrs. for Disease Control & Prevention, Nucleic Acid
Amplification Tests (NAATs), COVID-19 (June 14, 2021), https://www.cdc.gov/
coronavirus/2019-ncov/lab/naats.html.
Logically,
these
tests
are
critical
examinations of patients’ samples to uncover the presence of the SARS-CoV-2
virus and therefore qualify as “inspections” of those patients.
The broad reading of Section 361(a) makes sense from a practical, policy
perspective, too. The narrow reading of the PHSA constrains the CDC’s ability to
expediently address health crises, such as the COVID-19 pandemic, to the
detriment of the public health. And, most importantly, Congress delegated the
administration of the PHSA, “in light of everyday realities,” to the CDC, the nation’s
health protection experts, not to federal judges, who are neither “experts in the
field” nor “part of either political branch of the Government”:
When a challenge to an agency construction of a statutory
provision, fairly conceptualized, really centers on the wisdom
of the agency’s policy, rather than whether it is a reasonable
choice within a gap left open by Congress, the challenge must
fail. In such a case, federal judges—who have no
constituency—have a duty to respect legitimate policy choices
made by those who do. The responsibilities for assessing the
wisdom of such policy choices and resolving the struggle
between competing views of the public interest are not judicial
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ones: “Our Constitution vests such responsibilities in the
political branches.”

Chevron, 467 U.S. at 865–66 (quoting TVA v. Hill, 437 U.S. 153, 195 (1978)).
However, “[n]ot only must an agency’s decreed result be within the scope of
its lawful authority, but the process by which it reaches that result must be logical
and rational.” Allentown Mack Sales & Serv., Inc v. NLRB, 522 U.S. 359, 374
(1998). “It follows that agency action is lawful only if it rests ‘on a consideration of
the relevant factors.’” Michigan v. EPA, 576 U.S. 743, 750 (2015) (Scalia, J.)
(quoting Motor Vehicle Mfrs. Ass’n of United States, Inc. v. State Farm Mut.
Automobile Ins. Co., 463 U.S. 29, 43 (1983)). Ultimately, a court may not
substitute its judgment, but instead “simply ensures that the agency has acted
within a zone of reasonableness.” FCC v. Prometheus Radio Project, 141 S. Ct. 1150,
1158 (2021).
Relying on several scientific journals, the CDC explained the specific benefits
of wearing a mask as (1) reducing the “emission of virus-laden droplets . . . by
blocking exhaled virus” and (2) reducing the “inhalation of these droplets . . .
through filtration.” 86 Fed. Reg. at 8,028. Then, citing to seven different studies
that “confirmed the benefit of universal masking in community level analyses,” the
CDC concluded that masking would be beneficial when people are exposed to
others for prolonged periods in places that are not amenable to social distancing.16
Id. The CDC observed that these risk factors are especially prevalent during mass

16 These studies were conducted on wide range of subjects, from insulated hospital systems and
a German city to nationwide studies from Canada and the United States. Id.
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transportation, as people spend extended periods of time in security lines, crowded
terminals, and tight seating arrangements on airplanes, buses, and trains. Id. at
8,029. Further, the CDC relied on an economic analysis of American data to
support its prediction that the masking requirement could “prevent the need for
lockdowns and reduce associated losses of up to $1 trillion or about 5% of the gross
domestic product.” Id. at 8,028.
When giving the CDC the power to create rules under Section 361(a) of the
PHSA, Congress stated that the CDC may “make and enforce such regulations in
[its] judgment [that] are necessary.” § 264(a) (emphasis added). The use of the
word “necessary” gives the CDC leeway to decide what the relevant factors are in a
particular situation, but “an agency may not ‘entirely fail to consider an important
aspect of the problem’ when deciding whether regulation is appropriate.”
Michigan, 576 U.S. at 752 (2015) (quoting State Farm Mut. Automobile Ins. Co.,
463 U.S. at 43). Here, as discussed above, the CDC looked at extensive scientific
research supporting the use of masks to prevent the spread of COVID-19, especially
when other preventative tools were impossible to implement effectively, such as
social distancing. 86 Fed. Reg. at 8,028–29. Further, the CDC not only relied on
scientific data for the benefits of the mask regulation, but it also relied on the cost
to the entire country’s economy if the regulation was not implemented. Cf.
Michigan, 576 U.S. at 752 (“No regulation is ‘appropriate’ if it does significantly
more harm than good.”). Therefore, the CDC properly considered the relevant
factors and appropriately based the FTMM on the evidence before the agency.
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The Court recognizes that the CDC was making a prediction about the effects
of the FTMM—but this is exactly when courts should defer to agency expertise. At
the time of the FTMM’s enactment, the novel SARS-CoV-2 virus continued to
mutate into new variants (and, in fact, new variants continue to emerge to this
day), some even more lethal than the original strain, and treatment of COVID-19
was at the forefront of scientific discovery.17 86 Fed. Reg at 8,028. Thus, the
COVID-19 pandemic was exactly the type of situation imagined by Congress where
courts should refrain from imposing its own judgment and give appropriate
deference to the agency’s scientific expertise in determining the best way to stem
the spread of the unprecedented disease. Baltimore Gas & Elec. Co. v. Nat. Res.
Def. Council, Inc., 462 U.S. 87, 103 (1983) (O’Connor, J.) (“[A] reviewing court
must remember that the [agency] is making predictions, within its area of special
expertise, at the frontiers of science. When examining this kind of scientific
determination, as opposed to simple findings of fact, a reviewing court must
generally be at its most deferential.”).
Many of the same observations above apply equally to the ITTR, which the
CDC supported in three parts. First, the CDC discussed how SARS-CoV-2 is spread
among the population. 86 Fed. Reg. at 69,258. The CDC again cited to a variety of
scientific articles, including the one titled “Transmission from People Without

17 While the Court notes that there are still new variants emerging today, the Court does not rely
on any post-hoc rationalizations in arriving at its decision. SEC v. Chenery Corp., 332 U.S.
194, 196 (1947) (holding a court reviewing an agency’s decision “must judge the propriety of
[the agency] action solely by the grounds invoked by the agency”).
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Covid-19 Symptoms.” Id. at 69,258 n. 15. Second, the CDC addressed the new
concern facing the United States during the pandemic: the emergence of the
Omicron variant. Id. at 69,259. At the time, it was not clear how the Omicron
variant would affect vaccinated or previously infected people because the variant
“contains more changes in the spike protein than have been observed in other
variants.” Id. Properly relying on the limited scientific studies available, the CDC
predicted that vaccines may give the individual “reduced protection from
infection.” Id. Therefore, due to this “potential danger to public health posed by
this newly identified variant,” the CDC mandated a pre-departure testing
requirement for all international travelers, regardless of vaccination status. Id. at
69,259–60.
When promulgating the ITTR, the CDC properly considered the relevant
factors, assessed the evidence before it, and relied on its scientific expertise to
determine the best way to prevent the Omicron variant from undermining the
nation’s progress in combating the pandemic. Given that SARS-CoV-2 may be
spread by unvaccinated individuals, including those who may be asymptomatic,
and the limited scientific evidence on how vaccines may be less effective against
the new variant allowing vaccinated individuals to contribute to the spread, the
CDC predicted that the new Omicron variant could easily be spread by both the
vaccinated and unvaccinated population. Id. As stated previously, these
predictions were at the “frontiers of science,” and, as such, they warrant the “most
deferential” judicial review. Baltimore Gas & Elec. Co., 462 U.S. at 103.
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In conclusion, when issuing the FTMM and the ITTR, the CDC made
permissive policy decisions, provided adequate evidence to support the decisions,
and provided sound reasoning to connect the evidence with their policy decisions,
and there is no reason to suspect the CDC passed the FTMM or the ITTR for
pretextual reasons. Cf. Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2575–76
(2019) (“We are presented, in other words, with an explanation for agency action
that is incongruent with what the record reveals about the agency’s priorities and
decisionmaking [sic] process.”). Therefore, the CDC did not abuse its discretion in
enacting the FTMM and the ITTR.
Accordingly, the Court finds that the CDC properly promulgated the FTMM
and the ITTR under Section 361(a) of the PHSA and grants summary judgment in
favor of the Federal Defendants on these claims.
B.
Did the CDC Properly Invoke the APA’s Good Cause
Exception?

The Court now shifts to the second question presented here: whether, in
promulgating the FTMM and the ITTR, the CDC appropriately bypassed the
standard notice-and-comment rulemaking procedure under the APA’s good cause
exception.18 The answer: yes.
Sections 553(b) and (d) of the APA requires an agency to publish a general
notice of proposed rulemaking in the Federal Register at least 30 days prior to the
proposed rule’s effective date, and, after publication, Section 553(c) requires the

18 See supra note 2.
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agency to “give interested persons an opportunity to participate in the
[rulemaking] through the submission of written data, views, or arguments with or
without opportunity for oral presentation.” 5 U.S.C. § 553(b)–(d). However, there
is an exception to the notice-and-comment rulemaking procedure “when the
agency for good cause finds (and incorporates the finding and a brief statement of
reasons therefor in the rules issued) that notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public interest.” § 553(b)(B). While
“the good cause exception should be read narrowly,” “[t]he exception is, however,
an important safety valve to be used where delay would do real harm.” U.S. v.
Dean, 604 F.3d 1275, 1279 (11th Cir. 2010) (internal quotations omitted).
“Emergencies, though not the only situations constituting good cause, are the most
common”; in other words, an emergency is not a prerequisite to the invocation of
the good cause exception. Id. at 1281.
Here, the FTMM, issued on February 3, 2021, explicitly invokes the good
cause exception: “Considering the public health emergency caused by COVID-19,
it would be impracticable and contrary to the public’s health, and by extension the
public’s interest, to delay the issuance and effective date of this Order.” 86 Fed.
Reg. at 8,030. It also describes the nature of the emergency:
There is currently a pandemic of respiratory disease . . . caused
by a novel coronavirus (SARS-CoV-2). As of January 27, 2021,
there have been 99,638,507 confirmed cases of COVID-19
globally, resulting in more than 2,141,000 deaths. As of
January 27, 2021, there have been over 25,000,000 cases
identified in the United States and over 415,000 deaths due to
the disease. New SARS-CoV-2 variants have emerged in
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recent weeks, including at least one with evidence of increased
transmissibility.

Id. at 8,028. Similarly, the latest iteration of the ITTR, issued on December 7, 2021,
states:
To reduce introduction and spread of current and future
SARS-CoV-2 variants into the United States at a time when
global air travel is increasing, CDC must take quick and
targeted action to help curtail the introduction and spread of
the Omicron variant into the United States. As of December 2,
2021, [the World Health Organization] has indicated that 23
countries have reported cases of the Omicron variant, many
of which were associated with international travelers. . . . there
is good cause to dispense with prior public notice and
comment and a delay in effective date. Considering the rapid
and unpredictable developments in the public health
emergency caused by COVID-19, including the recently
identified
emergent
Omicron
variant,
it
would
be
impracticable and contrary to the public’s health, and by
extension the public’s interest, to delay the issuance and
effective date of this Amended Order. Further delay could
increase risk of transmission and importation of additional
undetected cases of SARS-CoV-2 Omicron variant or other
emerging variants through passengers.

86 Fed. Reg. at 69,260 (internal citations omitted). The CDC’s “brief statement[s]
of reasons” speak for themselves. The highly contagious character and the
devastating effects of the SARS-CoV-2 virus demanded expeditious action by the
CDC. Frankly, if battling this elusive enemy does not rise to the level of urgency
that qualifies for deviation from normal rulemaking procedures under the good
cause exception, the Court is not sure what does. Cf. Florida v. Dep’t of Health &
Hum. Servs., 19 F.4th 1271, 1290 (11th Cir. 2021) (“But recognizing that good cause
existed in this case does not mean that the COVID-19 pandemic always will justify
an agency’s bypassing the notice-and-comment process.”).
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One argument against the application of the good cause exception to the
FTMM and the ITTR is that COVID-19 has been plaguing the world since
December 2019. In other words, COVID-19 is old news. However, the Court does
not see a correlation between the length of the pandemic and the severity of it. In
fact, the justification of the ITTR was the rise of and high risk associated with the
Omicron variant, which could infect both the unvaccinated and vaccinated
populations. 86 Fed. Reg at 69,259–60. The fact that the world has lived with
SARS-CoV-2 for over two years, and perhaps has grown accustomed to the virus’s
unpredictability, does not necessarily diminish the emergency or the CDC’s
responsibility to the public health.

Another, related argument against the application of the good cause
exception here is that the pandemic was in full force by mid-2020, but the CDC did
not issue the FTMM and the ITTR until 2021; that is, the CDC unreasonably
delayed in promulgating these orders and thereby contributed to the exigent
circumstances. This argument ignores the emergence of SARS-CoV-2 variants with
increased transmissibility, referenced in both orders. See 86 Fed. Reg. at 8,028;
68 Fed. Reg. at 69,259–60.
In any event, the good cause exception is not limited to emergencies; it
applies when “delay would do real harm.” Dean, 604 F.3d at 1279. All of the CDC’s
good cause justifications related to the public interest: (1) the SARS-CoV-2 virus
was extremely transmissible and has caused millions of deaths worldwide; (2) new
variants of the SARS-CoV-2 virus continued to emerge, some of which possessed
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increased transmissibility, and the ability of vaccines to protect individuals against
these variants was unknown; (3) “masks prevent dispersal of an infected person’s
respiratory droplets that carry the virus” and “also provide some protection to the
wearer by helping reduce inhalation of respiratory droplets,” and they “prevent the
introduction, transmission, and spread of COVID-19 into the United States and
among the states and territories,” particularly as “[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”; and (4) although pre-departure
testing for SARS-CoV-2 “does not eliminate all risk,” it “monitor[s] risk and
control[s] introduction and spread of SARS-CoV-2” and forms part of the United
States’ “multi-layered proactive approach to combating COVID-19, concurrently
preventing and slowing the continued introduction and spread of the virus within
U.S. communities.” 86 Fed. Reg. at 8,028–30; 86 Fed. Reg. at 69,258–60.
Delay in the issuance of the FTMM or the ITTR would do real harm to the
public health—it only takes one traveler to start an outbreak and, because the
SARS-CoV-2 virus is so persistent and mutable, the CDC must adopt a consistent,
concerted approach. Accordingly, the good cause exception excuses the CDC’s
failure to adhere to the notice-and-comment rulemaking procedure.
IV.
CONCLUSION
For the aforementioned reasons, it is ORDERED and ADJUDGED that
Plaintiff’s Motion for Summary Judgment is DENIED and the Federal
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Defendants’ Motion for Summary Judgment is GRANTED. The Clerk of Court is
DIRECTED to enter judgment in favor of the Federal Defendants.
Furthermore, the Amended Complaint only asserts state law claims against
Defendants Greater Orlando Aviation Authority (“GOAA”) and Central Florida
Regional Transportation Authority (“LYNX”), invoking the Court’s supplemental
jurisdiction. (Doc. 188, p. 5, ¶¶ 413–22). Because this Order resolves the claims
over which the Court has original jurisdiction, the Court declines to exercise its
supplemental jurisdiction over these state law claims. 28 U.S.C. § 1367(c)(3).
Accordingly, the claims against the GOAA and LYNX are DISMISSED
WITHOUT PREJUDICE, and the Clerk of Court is DIRECTED to close the file.
DONE AND ORDERED in Orlando, Florida on April 29, 2022.

Copies furnished to:

Counsel of Record
Unrepresented Parties
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