Health Freedom Def. Fund, Inc. v. Biden

• Decision Date: 18 April 2022
• Docket Number: Case No: 8:21-cv-1693-KKM-AEP
• Parties: HEALTH FREEDOM DEFENSE FUND, INC., Ana Carolina Daza, and Sarah Pope, Plaintiffs, v. Joseph R. BIDEN, Jr., in his official capacity as President of the United States, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

599 F.Supp.3d 1144

HEALTH FREEDOM DEFENSE FUND, INC., Ana Carolina Daza, and Sarah Pope, Plaintiffs,

v.Joseph R. BIDEN, Jr., in his official capacity as President of the United States, et al., Defendants.

Case No: 8:21-cv-1693-KKM-AEP

United States District Court, M.D. Florida, Tampa Division.

Signed April 18, 2022

Brant C. Hadaway, Hadaway, PLLC, Miami, FL, George Robinson Wentz, Jr., Pro Hac Vice, The Davillier Law Group, LLC, New Orleans, LA, for Plaintiffs.

Stephen Michael Pezzi, Andrew Freidah, Michael J. Gerardi, DOJ-Civ, Civil Division, Federal Programs Branch, Washington, DC, for Defendants.

ORDER

Kathryn Kimball Mizelle, United States District Judge

As travelers have been reminded for more than a year, federal law requires wearing a mask in airports, train stations, and other transportation hubs as well as on airplanes, buses, trains, and most other public conveyances in the United States. Failure to comply may result in civil and criminal penalties, including removal from the conveyance. This masking requirement—commonly known as the Mask Mandate—is a Centers for Disease Control and Prevention (CDC) regulation published in the Federal Register on February 3, 2021.

In July 2021, Sarah Pope, Ana Daza, and Health Freedom Defense Fund sued various government officials and the CDC, seeking a declaratory judgment that the Mask Mandate was unlawful and to have it set aside for violating the Administrative Procedure Act (APA). Following submission of the administrative record, Defendants—collectively referred to as "the government"—moved for summary judgment on January 18, 2022. (Doc. 45.) As provided in the parties' agreed briefing schedule, Plaintiffs filed a cross motion for summary judgment on February 17, 2022. (Doc. 48.) The parties completed briefing on March 31, 2022. The cross motions for summary judgment are now ripe for review. The Court concludes that the Mask Mandate exceeds the CDC's statutory authority and violates the procedures required for agency rulemaking under the APA. Accordingly, the Court vacates the Mandate and remands it to the CDC.

I. BACKGROUND

In December 2019, a highly contagious respiratory virus colloquially known as COVID-19 began spreading throughout the world. A month later, the Secretary of Health and Human Services declared COVID-19 a public health emergency. See Determination That a Public Health Emergency Exists , U.S. DEP'T OF HEALTH & HUM. SERVS. , https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx (Jan. 31, 2020). And then on March 13, 2020, President Trump declared the COVID-19 outbreak a national emergency. See Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, 85 Fed. Reg. 15337, 15337 (Mar. 13, 2020).

COVID-19 continued to spread throughout 2020 despite experiments with "unprecedented movement restrictions and social distancing measures." (Doc. 30 at 41.) By the end of 2020, approximately twenty million Americans had been infected with COVID-19 and over 360,000 Americans had died from it. See COVID Data Tracker , CTRS. FOR DISEASE CONTROL & PREVENTION , https://covid.cdc.gov/covid-data-tracker/ (last visited Apr. 13, 2022). The fall and winter of 2020 also brought a spike in new COVID-19 infections, due in part to emerging variants of the virus, some of which were more severe than the original strain and more easily transmissible. Id. ; (Doc. 30 at 12–15). The number of new cases peaked in early January 2021 and decreased steadily in February. See COVID Data Tracker , CTRS. FOR DISEASE CONTROL & PREVENTION , https://covid.cdc.gov/covid-data-tracker/#trends_dailycases (last visited Apr. 11, 2022).

On January 21, 2021, one day after taking the oath of office, President Biden issued Executive Order 13998. See Promoting COVID-19 Safety in Domestic and International Travel, 86 Fed. Reg. 7205 (Jan. 21, 2021). The Executive Order recognized the threats of the continuing COVID-19 pandemic and reasoned that mask-wearing "can mitigate the risk of travelers spreading COVID-19." Id. at 7205. Accordingly, the Order directed executive officials to require masks on various forms of transportation and while in transit hubs. Id.

Approximately two weeks later, on February 3, 2021, the CDC published the Mask Mandate without allowing public participation through the APA's notice and comment procedures. See Requirement for Persons to Wear Masks While on Conveyances and at Transportation Hubs, 86 Fed. Reg. 8025 (Feb. 3, 2021). As the basis for dispensing with the ordinary APA requirements, the CDC found that "it would be impracticable and contrary to the public's health" to delay the Mandate to seek public comment. Id. at 8030. The Mandate also disavowed being a rule under the APA. Id.

In the Mandate, the CDC explained that COVID-19 "spreads very easily and sustainably between people who are in close contact." Id. at 8028. This spread occurs mainly through the transfer of "respiratory droplets" from one person to another. Id. Masks, the CDC found, prevent this spread by "blocking exhaled virus" and "reducing inhalation of these droplets." Id. Because COVID-19 can be spread by "pre-symptomatic" and "asymptomatic" individuals infected with it, id. , the CDC found that masks are "one of the most effective strategies available for reducing COVID-19 transmission," id. at 8026. The Mandate did not differentiate between kinds of masks based on their efficacy at blocking transmission. It simply included a footnote linking to CDC guidance for the "attributes of acceptable masks." Id. at 8027 n.6 ("Masks can be either manufactured or homemade and should be a solid piece of material without slits, exhalation valves, or punctures.").

The Mask Mandate requires that "a person must wear a mask while boarding, disembarking, and traveling on any conveyance into or within the United States." Id. at 8029. The Mandate's reach extends to "aircraft[s], train[s], road vehicle[s]"—including ride-sharing services, like Uber—"vessel[s]" and "other means of transport." Id. at 8027. It also applies beyond conveyances to any transportation hub, which includes "any airport, bus terminal, marina, seaport or other port, subway station, terminal ..., train station, U.S. port of entry, or any other location that provides transportation subject to the jurisdiction of the United States." Id. In addition to the requirement that individuals in these locations wear masks, the Mandate also enlists conveyance operators to police it. It requires operators to use "best efforts" to enforce masking. Id. at 8026.

Though broad in scope, the Mandate provides exceptions to limit its coverage based on the person, the conveyance, or the situation. First, the Mandate excludes children under the age of two years old and persons with a disability that prevents them from being able to safely wear a mask. See id. at 8027. The latter exception applies only to individuals who cannot wear a mask because of a disability that is within the scope of the Americans with Disabilities Act (ADA). Id. Second, it excludes "personal, non-commercial use" of vehicles and commercial vehicles occupied by a single person. Id. at 8028. Third, it excludes situations where, for example, a person must wear an oxygen mask; or is actively "eating, drinking, or taking medication"; or must remove the mask to verify his identity; or to catch his breath after "feeling winded"; or to communicate with someone who is hearing impaired. Id. at 8027 & n.7.

Health Freedom Defense Fund, Ana Daza, and Sarah Pope (Plaintiffs) sued to challenge the Mask Mandate on July 12, 2021. (Doc. 1.) Daza and Pope routinely travel by airplane. (Doc. 48-2 at 2; Doc. 48-3 at 2.) Daza has anxiety that is aggravated by wearing masks. (Doc. 48-2 at 3.) Daza alleges that "the government does not recognize [her] anxiety as a basis for a [medical] exemption" from the Mandate. ( Id. ) Similarly, Pope flew regularly before the pandemic, but has done so less since the CDC imposed the Mask Mandate as the "constricted breathing from wearing a mask" provokes or exacerbates her panic attacks. (Doc. 48-3 at 2–3.) Health Freedom Defense Fund is a non-profit organization that "opposes laws and regulations that force individuals to submit to the administration of medical products, procedures, and devices against their will." (Doc. 48 at 19.) Health Freedom represents the interests of its members who are subject to the Mask Mandate, at least one of whom has alleged harms sufficient to establish standing in her own right. (Id. at 21; Doc. 39-4 at 2–4); see Ga. Republican Party v. SEC , 888 F.3d 1198, 1203 (11th Cir. 2018) (explaining that an organization may sue on behalf of its members if at least one member has standing). The government "do[es] not dispute that at least some Plaintiffs have Article III standing to challenge the CDC's transportation mask order" because it "imposes a legal obligation on the individual Plaintiffs to wear masks when using public transportation." (Doc. 45 at 44.)

Seeking a declaratory judgment that the Mask Mandate is unlawful and to have it set aside under the APA, Plaintiffs sued President Joseph Biden, Secretary of Health and Human Services Xavier Becerra, CDC Director Rochelle Walensky, and Director of the CDC's Division of Global Migration and Quarantine Martin Cetron, all in their official capacities. Plaintiffs also sued the CDC and the United States of America.

II. LEGAL STANDARD

Summary judgment is appropriate if "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). A fact is "material" if it could change the outcome of the litigation. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). And a dispute is "genuine" if a reasonable finder of fact could conclude for the nonmoving party. Id.

The APA requires that reviewing courts "hold unlawful and set aside agency action" that is "arbitrary" or "c...