Mask Mandate Appeal

USCA11 Case: 22-11287 Date Filed: 05/31/2022 Page: 1 of 48
No. 22-11287
IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
HEALTH FREEDOM DEFENSE FUND, INC., et al.,
Plaintiffs-Appellees,
v.
JOSEPH R. BIDEN, JR., President of the United States, et al.,
Defendants-Appellants.
On Appeal from the United States District Court

for the Middle District of Florida
OPENING BRIEF FOR APPELLANTS
BRIAN M. BOYNTON
Principal Deputy Assistant
Attorney General
ROGER B. HANDBERG
United States Attorney
ALISA B. KLEIN
BRIAN J. SPRINGER
Attorneys, Appellate Staff
Civil Division, Room 7537
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
(202) 616-5446
Health Freedom Defense Fund v. Biden, No. 22-11287
CERTIFICATE OF INTERESTED PERSONS AND

CORPORATE DISCLOSURE STATEMENT
Pursuant to Eleventh Circuit Rule 26.1-1(a)(1), counsel for the
defendants-appellants certify that the following have an interest in the
outcome of this appeal:
Becerra, Xavier
Beckenhauer, Eric B.
Biden, Jr., Joseph R.
Boynton, Brian M.
Cetron, Martin S.
Davillier Law Group, LLC
Daza, Ana Carolina
Freidah, Andrew F.
Gerardi, Michael J.
Hadaway, Brant C.
Hadaway, PLLC
Handberg, Roger B.
Health Freedom Defense Fund, Inc.
Klein, Alisa B.
Mizelle, Honorable Kathryn Kimball, U.S. District Court Judge
Pezzi, Stephen M.
C-1 of 2
Health Freedom Defense Fund v. Biden, No. 22-11287
Pope, Sarah
Porcelli, Honorable Anthony E., U.S. Magistrate Judge
Springer, Brian J.
United States of America
U.S. Centers for Disease Control and Prevention
U.S. Department of Health and Human Services
Walensky, Rochelle P.
Walker, Johnny H.
Wentz, Jr., George Robinson
C-2 of 2
STATEMENT REGARDING ORAL ARGUMENT
To prevent the spread of COVID-19, the Centers for Disease Control
and Prevention (CDC) issued an order that generally requires people to
wear masks when traveling on public transportation and at transportation
hubs. Requirement for Persons To Wear Masks While on Conveyances
and at Transportation Hubs, 86 Fed. Reg. 8025, 8026 (Feb. 3, 2021). The
district court vacated the CDC order nationwide, ruling that the order
exceeds the CDC’s statutory authority, that it is arbitrary and capricious,
and that the CDC did not have good cause to make the order effective
without delay. Another judge in the same district has since reached the
opposite conclusion and upheld the transportation mask order. See Wall v.
CDC, No. 21-975, 2022 WL 1619516 (M.D. Fla. Apr. 29, 2022), appeal
pending, No. 22-11532 (11th Cir.).
Given the importance of the issues presented, the government
respectfully requests oral argument.

TABLE OF CONTENTS
Page
INTRODUCTION ............................................................................................1
STATEMENT OF JURISDICTION ................................................................ 3
STATEMENT OF THE ISSUES ...................................................................... 4
STATEMENT OF THE CASE ......................................................................... 4
I. Statutory Background ........................................................................... 4
II. The CDC’s Transportation Mask Order ................................................ 5
III. District Court Proceedings .................................................................... 8
IV. Standard Of Review .............................................................................. 9
SUMMARY OF ARGUMENT ....................................................................... 10
ARGUMENT ..................................................................................................12
I. The Transportation Mask Order Is Within The CDC’s Statutory

Authority ..............................................................................................12
A. Section 361(a) Expressly Authorizes Sanitation Measures,

And Masks Are A Conventional Sanitation Measure.................12
B. The District Court’s Rulings Are Contrary To

Section 361(a)’s Plain Text And Longstanding Agency
Regulations ................................................................................. 15
II. The Transportation Mask Order Is Not Arbitrary And

Capricious Or Procedurally Invalid .................................................... 20
A. The CDC Reasonably Found Masks Necessary To Prevent

The Spread Of COVID-19 On Public Transportation And
At Transportation Hubs ............................................................ 20
ii
B. The CDC Reasonably Found Good Cause To Make The

Order Effective Without Delay .................................................. 24
III. The District Court Erred In Issuing Nationwide Relief ..................... 27
A. Nationwide Relief Contravenes Bedrock Principles Of

Standing, Equity, Comity, And Judicial Restraint .................... 27
B. The District Court Provided No Sound Basis For

Departing From These Principles ..............................................31
CONCLUSION .............................................................................................. 34
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
iii
TABLE OF CITATIONS
Cases: Page(s)
*Alabama Ass’n of Realtors v. Department of Health & Human Servs.,

141 S. Ct. 2485 (2021) (per curiam) .................. 1, 4, 5, 10, 12, 13, 18, 19, 20
American Pipe & Constr. Co. v. Utah,

414 U.S. 538 (1974) ................................................................................... 33
Arizona v. Biden,
31 F.4th 469 (6th Cir. 2022) ............................................................... 30, 33
Babbitt v. Sweet Home Chapter of Communities for a Great Or.,

515 U.S. 687 (1995)............................................................................... 18, 19
*Biden v. Missouri,
142 S. Ct. 647 (2022) (per curiam) ...........................2, 11, 20, 21, 22, 25, 27
Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs,

781 F.3d 1271 (11th Cir. 2015) ....................................................................31
Brown v. Nexus Bus. Sols., LLC,

29 F.4th 1315 (11th Cir. 2022) ..................................................................... 9
Califano v. Yamasaki,
442 U.S. 682 (1979) ............................................................................. 29, 33
Camreta v. Greene,
563 U.S. 692 (2011) ................................................................................... 28
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837 (1984) ................................................................................... 18
Competitive Enter. Inst. v. U.S. Dep’t of Transp.,

863 F.3d 911 (D.C. Cir. 2017) .....................................................................21
* Authorities upon which we chiefly rely are marked with asterisks.
iv
Corbett v. TSA,
19 F.4th 478 (D.C. Cir. 2021) ............................................................. 8, 20, 26
Department of Homeland Sec. v. New York,

140 S. Ct. 599 (2020) .................................................................... 28, 29, 33
FCC v. Prometheus Radio Project,

141 S. Ct. 1150 (2021)..................................................................... 21, 22, 24
Fishman & Tobin, Inc. v. Tropical Shipping & Constr. Co.,

240 F.3d 956 (11th Cir. 2001) ................................................................... 28
Florida v. Department of Health & Human Servs.,

19 F.4th 1271 (11th Cir. 2021) .............................................................. 26, 29
Gasperini v. Center for Humanities, Inc.,

518 U.S. 415 (1996) .................................................................................... 28
Gill v. Whitford,
138 S. Ct. 1916 (2018) ................................................................................ 28
Gun Owners of Am., Inc. v. Garland,

992 F.3d 446 (6th Cir.), vacated on other grounds,
19 F.4th 890 (6th Cir. 2021) (en banc) ..................................................... 30
Hecht Co. v. Bowles,

321 U.S. 321 (1944) ...............................................................................31, 32
Holland v. National Mining Ass’n,

309 F.3d 808 (D.C. Cir. 2002) .................................................................. 30
Livingston Educ. Serv. Agency v. Becerra, --- F.4th ---,

No. 22-1257, 2022 WL 1594779 (6th Cir. May 20, 2022) ........................ 27
Louisiana v. Mathews,
427 F. Supp. 174 (E.D. La. 1977) .......................................................... 16, 17
Madsen v. Women’s Health Ctr., Inc.,

512 U.S. 753 (1994).................................................................................... 29
v
Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v.

State Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983) ..................................................................................... 20
Sorenson Commc’ns Inc. v. FCC,

755 F.3d 702 (D.C. Cir. 2014).................................................................... 26
Tiger Lily, LLC v. U.S. Dep’t of Hous. & Urban Dev.:

992 F.3d 518 (6th Cir. 2021) ..................................................................... 18
5 F.4th 666 (6th Cir. 2021)........................................................................ 18
Trump v. Hawaii,
138 S. Ct. 2392 (2018) ................................................................... 29, 30, 32
United States v. Dean,

604 F.3d 1275 (11th Cir. 2010) .................................................................. 25
United States v. Mendoza,

464 U.S. 154 (1984) ............................................................................. 29, 30
Virginia Soc’y for Human Life, Inc. v. Federal Election Comm’n,

263 F.3d 379 (4th Cir. 2001) ......................................................................31
Wall v. CDC,
No. 21-975, 2022 WL 1619516 (M.D. Fla. Apr. 29, 2022),
appeal pending, No. 22-11532 (11th Cir.) ................3, 13, 19, 20, 22, 24, 28
Weinberger v. Romero-Barcelo,
456 U.S. 305 (1982)................................................................................... 32
Statutes:
Act of Oct. 15, 1914,

63 Cong. ch. 323, 38 Stat. 730 .................................................................. 32
Communications Act of 1934,

73 Cong. ch. 652, 48 Stat. 1064 ................................................................. 32
Hepburn Act,
59 Cong. ch. 3591, 34 Stat. 584 (1906) ..................................................... 32
vi
5 U.S.C. § 553(b)(B) ................................................................................ 24, 25
20 U.S.C. § 3508(b) ........................................................................................ 5
28 U.S.C. § 1291 .............................................................................................. 4
28 U.S.C. § 1331 .............................................................................................. 3
*42 U.S.C. § 264(a) .......................................................................... 4, 5, 13, 15
42 U.S.C. § 264(b)-(d) ...................................................................................19
Regulations:
21 C.F.R. part 118 ...........................................................................................16
21 C.F.R. part 606 ..........................................................................................16
21 C.F.R. part 630 ..........................................................................................16
21 C.F.R. § 1240.61(a) ....................................................................................16
21 C.F.R. § 1250.27 ........................................................................................16
21 C.F.R. § 1250.35 ........................................................................................ 17
21 C.F.R. § 1250.38 ........................................................................................ 17
21 C.F.R. part 1271 .......................................................................................... 5

21 C.F.R. § 1271.80 ..................................................................................... 17
42 C.F.R. § 70.2 .............................................................................................. 5
42 C.F.R. § 70.9 .............................................................................................16
42 C.F.R. § 70.10............................................................................................16
42 C.F.R. § 71.3 ..............................................................................................16
vii
Rule:
Fed. R. Civ. P. 23(c)(1)(A) ............................................................................ 33

Other Authorities:
Ban on Sale and Distribution of Small Turtles,

40 Fed. Reg. 22, 543 (May 23, 1975)..........................................................16
CDC:
CDC Mask Order Remains in Effect and CDC Realigns Travel
Health Notice System (Apr. 13, 2022),
https://perma.cc/NV88-3PH9 ............................................................... 7
CDC Statement on Masks in Public Transportation Settings
(Apr. 20, 2022), https://perma.cc/35NJ-WDK6 .................................. 7
Control of Communicable Diseases; Restrictions on

African Rodents, Prairie Dogs, and Certain Other Animals,
68 Fed. Reg. 62,353 (Nov. 4, 2003) ........................................................... 17
Paul French, In the 1918 Flu Pandemic, Not Wearing a

Mask Was Illegal in Some Parts of America. What Changed?, CNN,
https://perma.cc/WL95-2WDF (last updated Apr. 4, 2020) ................... 14
Funk & Wagnalls New Standard Dictionary of the English Language

(Isaac K. Funk et al. eds., 1946) .................................................................14
J. Moore et al., Moore’s Federal Practice (3d ed. 2011) .............................. 28
Reorganization Plan No. 3 of 1966,

31 Fed. Reg. 8855 (June 25, 1966), reprinted in
80 Stat. 1610 (1966) .................................................................................... 5
*Requirement for Persons To Wear Masks While on

Conveyances and at Transportation Hubs,
86 Fed. Reg. 8025 (Feb. 3, 2021) ... 1, 2, 6, 7, 8, 9, 21, 22, 23, 24, 25, 26, 27
Sanitation, Merriam-Webster,
https://perma.cc/9ARR-YKYH ................................................................. 14
viii
Why Doctors Wear Masks, Yale Medicine

(Sept. 1, 2020), https://perma.cc/TE77-8PBH ........................................ 14
ix
INTRODUCTION
The Centers for Disease Control and Prevention (CDC) order at issue
here generally requires people to wear masks when traveling on public
transportation (such as airplanes, buses, and trains) and at transportation
hubs to prevent the spread of COVID-19. Requirement for Persons To
Wear Masks While on Conveyances and at Transportation Hubs, 86 Fed.
Reg. 8025, 8026 (Feb. 3, 2021). This order falls easily within the CDC’s
statutory authority.
As the Supreme Court recently explained, Section 361(a) of the Public
Health Service Act authorizes the CDC to require measures that “directly
relate to preventing the interstate spread of disease by identifying,
isolating, and destroying the disease itself.” Alabama Ass’n of Realtors v.
Department of Health & Human Servs., 141 S. Ct. 2485, 2488 (2021) (per
curiam). That is precisely what the transportation mask order does: masks
isolate the disease itself by trapping viral particles exhaled by infected
travelers and preventing non-infected travelers from inhaling viral
particles. The CDC’s statutory authority explicitly encompasses
“sanitation” measures and “other” similar measures and—as the district
court recognized—a mask is a conventional sanitation measure. Dkt.
No. 53, at 12-13. The plain text of Section 361(a) and longstanding agency
practice foreclose the district court’s ruling that Section 361(a) does not
allow “preventative” measures, id. at 15, and its ruling that measures
authorized by Section 361(a) must be directed toward property rather than
toward individuals, id. at 20-25.
The district court’s additional rulings that the CDC order is arbitrary
and capricious and procedurally invalid echo the claims that the Supreme
Court rejected in Biden v. Missouri, 142 S. Ct. 647 (2022) (per curiam), and
should be reversed for the same reasons. There, the Supreme Court
emphasized that “the role of courts in reviewing arbitrary and capricious
challenges is to simply ensure that the agency has acted within a zone of
reasonableness.” Id. at 654 (alteration and quotation marks omitted). The
CDC order plainly meets that standard. For example, although the district
court suggested that the CDC should have considered “social distancing” or
“frequent handwashing” instead of masks, Dkt. No. 53, at 48 (quoting 86
Fed. Reg. at 8026), the CDC explained that “[s]ocial distancing may be
difficult if not impossible” under the crowded conditions of air travel and
other public transportation, 86 Fed. Reg. at 8029, and the CDC’s findings
showed that handwashing alone does not prevent the spread of an airborne
pathogen. As in Biden v. Missouri, the agency’s findings also demonstrated
2
good cause to make the order effective without delay, rather than allow
preventable infections and deaths during a period of notice and comment.
The district court compounded its errors by issuing nationwide relief.
Another judge in the same district recently upheld the CDC’s transportation
mask order. See Wall v. CDC, No. 21-975, 2022 WL 1619516 (M.D. Fla.
Apr. 29, 2022), appeal pending, No. 22-11532 (11th Cir.). There was no
sound reason for the judge in this case to preempt that ruling or the similar
cases that are pending within other circuits.1 Bedrock principles of
standing, equity, comity, and judicial restraint should have led the district
court to confine any relief to the five individuals who identified themselves
in this case.
STATEMENT OF JURISDICTION
Plaintiffs invoked the district court’s jurisdiction under 28 U.S.C.
§ 1331. Dkt. No. 39, at 7, ¶ 19. The district court entered final judgment on
April 18, 2022. Dkt. No. 54. The government filed a timely notice of appeal
1See, e.g., Carlin v. CDC, No. 22-800 (D.D.C.); Seklecki v. CDC, No. 22-
10155 (D. Mass.); Doe v. U.S. Dep’t of Transp., No. 22-402 (W.D. Pa.);
Andreadakis v. CDC, No. 22-52 (E.D. Va.); Bigtree v. CDC, No. 22-224
(W.D. Tex.); Massie v. CDC, No. 22-31 (W.D. Ky.); Mahwikizi v. CDC,
No. 21-3467 (N.D. Ill. Mar. 1, 2022), appeal pending, No. 22-1776 (7th
Cir.); Marcus v. CDC, No. 22-2383 (C.D. Cal.); Trocano v. CDC, No. 22-727
(D. Colo.).
3
on April 20, 2022. Dkt. No. 55. This Court has appellate jurisdiction under
28 U.S.C. § 1291.
STATEMENT OF THE ISSUES
The CDC order at issue here generally requires that people wear
masks on public transportation and in transportation hubs to prevent the
spread of COVID-19. The questions presented are:
1. Whether the district court erred in holding that the
transportation mask order exceeds the CDC’s statutory authority.
2. Whether the district court erred in declaring the transportation
mask order to be arbitrary and capricious and procedurally invalid.
3. Whether the district court erred in entering nationwide relief.
STATEMENT OF THE CASE
I. Statutory Background
Section 361(a) of the Public Health Service Act authorizes the
Secretary of Health and Human Services (HHS) 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.” 42 U.S.C. § 264(a). The next sentence of that
provision “informs the grant of authority by illustrating the kinds of
measures that could be necessary.” Alabama Ass’n of Realtors v.

4
curiam). It specifies that, in making and enforcing such regulations, 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.”
42 U.S.C. § 264(a). These enumerated measures “directly relate to
preventing the interstate spread of disease by identifying, isolating, and
destroying the disease itself.” Alabama Ass’n of Realtors, 141 S. Ct. at
2488.2
Pursuant to delegations from the Secretary, the authorities conferred
by Section 361 are exercised by the CDC and the Food and Drug
Administration (FDA), which are divisions of HHS. See, e.g., 42 C.F.R.
§ 70.2 (CDC regulations); 21 C.F.R. part 1271 (FDA regulations).
II. The CDC’s Transportation Mask Order
The CDC order at issue here generally requires people to wear masks
over the mouth and nose when traveling on conveyances (such as airplanes,
2 The statute originally assigned authority to the Surgeon General, but

these statutory powers and functions were later transferred to the Secretary
of Health, Education, and Welfare, now the HHS Secretary. See
Reorganization Plan No. 3 of 1966, 31 Fed. Reg. 8855 (June 25, 1966),
reprinted in 80 Stat. 1610 (1966); see also 20 U.S.C. § 3508(b).
5
trains, subways, buses, taxis, ride-shares, and ships) into or within the
United States and at transportation hubs (such as airports, bus terminals,
and subway stations). 86 Fed. Reg. at 8026-27. The order exempts
children under age 2 and anyone with a disability who cannot wear a mask
or cannot safely wear a mask. Id. at 8027. The mask requirement does not
apply “for brief periods” while a person is eating, drinking, or taking
medication, id., nor does it apply to private conveyances operated for
personal, non-commercial use, id. at 8028.
In issuing the order, the CDC explained that wearing a mask is “one of
the most effective strategies available for reducing COVID-19
transmission.” 86 Fed. Reg. at 8026. Because the virus is often
transmitted through airborne droplets “produced when an infected person
coughs, sneezes, or talks,” masks provide a barrier that blocks uninfected
people from breathing in the virus and infected people from spreading the
virus to others. Id. at 8028. This source control is especially important “for
asymptomatic or pre-symptomatic infected wearers who feel well and may
be unaware of their infectiousness” but by some estimates account for more
than half of all transmissions. Id.
The CDC further described the particular reasons for requiring masks
on airplanes, on other public transportation, and at transportation hubs.
6
The CDC explained that in these settings, “[s]ocial distancing may be
difficult if not impossible,” and people are forced to be “in close contact
with others, often for prolonged periods.” 86 Fed. Reg. at 8029; see also id.
(describing comparable exposure risks “in security lines and crowded
airport terminals”). Scientific data demonstrates that the risk of COVID-19
transmission increases “the more closely an infected person interacts with
others and the longer those interactions.” Id. at 8028. “[G]iven how
interconnected most transportation systems are across the nation and the
world,” localized cases can rapidly grow “into interstate and international
transmission when infected persons travel on non-personal conveyances
without wearing a mask.” Id. at 8029.
The CDC recently found that “requiring masking in the indoor
transportation corridor remains necessary for the public health.” CDC,
CDC Statement on Masks in Public Transportation Settings (Apr. 20,
2022), https://perma.cc/35NJ-WDK6. The CDC noted increases in the 7-
day moving average of cases in the United States that were due in large part
to the highly transmissible Omicron variant, whose BA.2 subvariant made
up more than 85% of U.S. cases at the time. CDC, CDC Mask Order
Remains in Effect and CDC Realigns Travel Health Notice System (Apr.
13, 2022), https://perma.cc/NV88-3PH9.
7
Although the CDC order could theoretically have been enforced
through criminal penalties, the CDC indicated at the outset that it did not
intend to rely on criminal penalties and instead anticipated widespread
voluntary compliance. 86 Fed. Reg. at 8030 n.33. The Transportation
Security Administration (TSA) also issued a series of security directives to
assist with the implementation and enforcement of the CDC’s mask order,
which the D.C. Circuit upheld on direct review. See Corbett v. TSA, 19
F.4th 478, 480 (D.C. Cir. 2021).3
III. District Court Proceedings
The individual plaintiffs in this case are Ana Carolina Daza and Sarah
Pope. Ms. Daza’s declaration states that she wishes to fly from Florida to
Colombia; that she has been diagnosed with anxiety; and that she has
obtained a note from her physician excusing her from wearing a mask. Dkt.
No. 48-2. Similarly, Ms. Pope’s declaration states that she has suffered
from panic attacks in the past and has forgone flights to Hawaii and Great
Britain due to health concerns related to wearing a mask. Dkt. No. 48-3.
Although the CDC’s transportation mask order does not apply to
individuals who cannot wear a mask because of a disability as defined by
3 TSA rescinded an extension of its directives in light of the district

court’s decision in this case. The TSA directives are not subject to district
court review and are not at issue here.
8
the Americans with Disabilities Act, see 86 Fed. Reg. at 8027, neither
plaintiff claimed to have requested an exemption from the mask order’s
requirements.
The organizational plaintiff is Health Freedom Defense Fund, Inc.
Three of its members identified themselves in the district court
proceedings. Dkt. No. 39-4 (declarations of Kelly Pratt, Paula Jager, and
Peter Kennedy). Their declarations indicated that they object to being
required to wear a mask on airplanes. Id.
Plaintiffs challenged the CDC’s transportation mask order on various
statutory and constitutional grounds. On cross-motions for summary
judgment, the district court vacated the transportation mask order
nationwide. See Dkt. No. 54, at 2; see also Dkt. No. 53, at 57-58. The
district court ruled that the order exceeded the CDC’s statutory authority;
that it was arbitrary and capricious; and that the CDC could not issue the
order without first going through notice-and-comment rulemaking. Dkt.
No. 53, at 58.
IV. Standard Of Review
The district court’s summary judgment decision is subject to de novo
review in this Court. Brown v. Nexus Bus. Sols., LLC, 29 F.4th 1315, 1317
(11th Cir. 2022).
9
SUMMARY OF ARGUMENT
I. The CDC order at issue here generally requires that people wear
masks on public transportation and in transportation hubs to prevent the
spread of COVID-19. That order falls easily within the CDC’s statutory
authority, which includes measures that “directly relate to preventing the
interstate spread of disease by identifying, isolating, and destroying the
disease itself.” Alabama Ass’n of Realtors v. Department of Health &
Human Servs., 141 S. Ct. 2485, 2488 (2021) (per curiam). Masks do
exactly that: they isolate the disease itself by trapping viral particles exhaled
by infected travelers and preventing non-infected travelers from inhaling
viral particles.
The CDC’s statutory authority explicitly encompasses “sanitation”
measures and—as the district court itself recognized—a mask is a
conventional sanitation measure. The district court’s observation that
“sanitation in the context of garbage disposal, sewage and plumbing”
typically refers to “direct cleaning of a dirty or contaminated object,” Dkt.
No. 53, at 18, is not a sound reason to adopt a cramped reading of a statute
aimed at preventing the spread of communicable disease. And the court’s
ruling that the measures issued under Section 361(a) may be directed only
10
at “property” rather than “individuals,” Dkt. No. 53, at 24, is contrary to the
statute’s plain text and longstanding agency regulations.
II. The rest of the district court’s rulings replicate the errors that the
Supreme Court identified in Biden v. Missouri, 142 S. Ct. 647 (2022) (per
curiam), which upheld the Centers for Medicare & Medicaid Services (CMS)
requirement that workers at federally funded healthcare facilities be
vaccinated against COVID-19 (subject to exemptions). There, the Supreme
Court emphasized that the role of a court in reviewing an arbitrary and
capricious claim is simply to ensure that the agency acted within a zone of
reasonableness. The district court here nonetheless declared it arbitrary
and capricious for the CDC to rely on masks rather than measures such as
“social distancing,” “testing,” and “occupancy limits.” But the CDC order
explained that social distancing is difficult if not impossible in crowded
settings such as airplanes, buses, and transportation hubs; that the virus
that causes COVID-19 can be spread by people who are asymptomatic; and
that mask wearing is a simple, effective strategy that is less disruptive to
domestic travel than testing or separating passengers.
The findings in the CDC order likewise provide ample support for the
agency’s determination that there was good cause to make the order
effective without delay. In issuing the order, the CDC explained that the
11
virus that causes COVID-19 had by then killed nearly half a million
Americans and that new variants had recently emerged, including one with
evidence of increased transmissibility. Accordingly, the CDC made
immediately effective an order that was explicitly designed to preserve
human life and maintain the safety of the transportation system.
III. The district court compounded its errors by entering nationwide
relief. Article III and traditional principles of equity dictate that any
remedy must be limited to redressing plaintiffs’ particular injuries.
Principles of comity and judicial restraint confirm that the district court
should not have preempted the recent ruling by another judge upholding
the CDC’s transportation mask order or the similar cases pending within
other circuits. These principles should have led the district court to confine
any relief to the five individuals identified in plaintiffs’ filings below.
ARGUMENT
I. The Transportation Mask Order Is Within The CDC’s

Statutory Authority
A. Section 361(a) Expressly Authorizes Sanitation

Measures, And Masks Are A Conventional
Sanitation Measure
The transportation mask order falls easily within the CDC’s statutory
authority, which, the Supreme Court explained, includes measures that
“directly relate to preventing the interstate spread of disease by identifying,
12
isolating, and destroying the disease itself.” Alabama Ass’n of Realtors v.
curiam). That is precisely what the transportation mask order does: masks
isolate the disease itself by trapping viral particles exhaled by infected
travelers and preventing non-infected travelers from inhaling viral
particles. See Wall v. CDC, No. 21-975, 2022 WL 1619516, at *6 (M.D. Fla.
Apr. 29, 2022), appeal pending, No. 22-11532 (11th Cir.).
Section 361(a) of the Public Health Service Act authorizes the
Secretary 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.” 42 U.S.C. § 264(a). The next sentence of that provision
“informs the grant of authority by illustrating the kinds of measures that
could be necessary.” Alabama Ass’n of Realtors, 141 S. Ct. at 2488.
Whatever the outer bounds of this authority, it explicitly includes
“sanitation” measures and “other measures” akin to the enumerated
measures. 42 U.S.C. § 264(a).
Masking is a paradigmatic sanitation measure, as the district court
acknowledged. See Dkt. No. 53, at 13. Masks reduce the release of viral
13
particles into the air, which easily meets the modern and contemporaneous
definition of “sanitation” as “the promotion of hygiene and prevention of
disease by maintenance of sanitary conditions.” Sanitation, Merriam-
Webster, https://perma.cc/9ARR-YKYH; 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”).
Accordingly, “doctors have been wearing medical-grade N95 or surgical
masks . . . during surgeries or patient interactions as part of their daily
routines, for many decades.” Why Doctors Wear Masks, Yale Medicine
(Sept. 1, 2020), https://perma.cc/TE77-8PBH. And “the United States . . .
led the world in mask wearing” to prevent the spread of the 1918 flu
pandemic. Paul French, In the 1918 Flu Pandemic, Not Wearing a Mask
Was Illegal in Some Parts of America. What Changed?, CNN,
https://perma.cc/WL95-2WDF (last updated Apr. 4, 2020).
Furthermore, the temporary requirement to wear masks on public
transportation is comparable to (or more modest than) the measures
enumerated in Section 361(a). It is thus among the “other measures”
authorized by the second sentence of Section 361(a). The district court
14
itself recognized that Section 361(a) authorizes measures that “involve
identifying and eliminating known sources of disease.” Dkt. No. 53, at 16.
The transportation mask requirement “eliminate[s] known sources of
disease,” id., by preventing infected people from exhaling viral particles
into shared airspaces and preventing non-infected people from inhaling
viral particles. It is difficult to imagine a more direct way to control the
spread of communicable disease than a measure that traps infectious
particles to prevent their spread.
B. The District Court’s Rulings Are Contrary To

Section 361(a)’s Plain Text And Longstanding
Agency Regulations
1. The district court offered no sound basis for ruling otherwise. Its
pronouncement that the CDC cannot rely on “preventative measures,” Dkt.
No. 53, at 26, contravenes the statute’s plain text: Section 361(a) expressly
authorizes measures “to prevent” the spread of communicable disease. 42
U.S.C. § 264(a) (emphasis added). Taking preventative measures is part of
the CDC’s core mission. It is embodied in the name of the agency—Centers
for Disease Control and Prevention. It makes no sense to suggest that the
agency would not incorporate preventative measures in the actions it
undertakes. The district court’s observation that “sanitation in the context
of garbage disposal, sewage and plumbing” typically refers to “direct
15
cleaning of a dirty or contaminated object,” Dkt. No. 53, at 18, is not a
reason to import that concept when interpreting a statute designed to
prevent the spread of communicable disease.
Unsurprisingly, many CDC and FDA measures issued pursuant to
Section 361(a) are preventative in nature. For example, regulations issued
under Section 361(a) require that perishable food or drink on interstate
conveyances be stored at or below 50 degrees, 21 C.F.R. § 1250.27; prohibit
the interstate sale of milk products made with unpasteurized dairy
ingredients, id. § 1240.61(a); impose detailed requirements for current
good manufacturing practices and other criteria for blood and blood
components, id. parts 606, 630; and impose detailed requirements to
prevent salmonella in eggs, id. part 118.
Similarly, regulations issued under Section 361(a) authorize
“prevention measures” to detect the presence of communicable disease at
transportation hubs. 42 C.F.R. § 70.10. The regulations that provide for
vaccination clinics are an exercise of authority under Section 361(a). Id.
§§ 70.9, 71.3. The turtle-sale ban that the district court cited with approval
(Dkt. No. 53, at 29) was itself a preventative measure, encompassing
healthy and infected turtles alike. See Ban on Sale and Distribution of
Small Turtles, 40 Fed. Reg. 22,543 (May 23, 1975); Louisiana v. Mathews,
16
427 F. Supp. 174, 175-76 (E.D. La. 1977) (rejecting the plaintiff’s claim that
only infected turtles may be banned). Similarly, the Section 361(a)
authority has been used to prohibit the capture, distribution, or release of
certain animals to prevent the spread of monkeypox. See Control of
Communicable Diseases; Restrictions on African Rodents, Prairie Dogs,
and Certain Other Animals, 68 Fed. Reg. 62,353 (Nov. 4, 2003).
2. The district court’s alternative ruling that measures issued under
Section 361(a) may be directed only at “property” rather than at
“individuals,” Dkt. No. 53, at 24, is likewise contrary to the statute’s plain
text and longstanding agency practice. The word “property” does not
appear anywhere in Section 361(a), which is broadly titled “Promulgation
and enforcement by Surgeon General.” And the Section 361(a) authority
has long been used for measures directed to individuals. For example,
regulations issued under Section 361(a) require that individuals be tested
for communicable disease before donating cells or tissue. 21 C.F.R.
§ 1271.80. They prohibit any person who is known or suspected of having a
communicable disease from engaging in the preparation, handling, or
serving of food on interstate conveyances. Id. § 1250.35. And they require
signs directing food-handling employees to wash their hands after each use
of toilet facilities on those conveyances. Id. § 1250.38.
17
In short, the district court’s declaration that Section 361 is “divided
into two parts”—with paragraph (a) authorizing only measures directed at
property, Dkt. No. 53, at 20—is baseless. In so ruling, the district court
mistakenly relied on a preliminary ruling of the Sixth Circuit in a case
involving the eviction moratorium. See Tiger Lily, LLC v. U.S. Dep’t of
Hous. & Urban Dev., 992 F.3d 518, 522 (6th Cir. 2021). The Sixth Circuit
did not embrace that reasoning in its merits decision in that case. See Tiger
Lily, LLC v. U.S. Dep’t of Hous. & Urban Dev., 5 F.4th 666, 669-71 (6th Cir.
2021). Nor did the Supreme Court in its subsequent opinion. See Alabama
Ass’n of Realtors, 141 S. Ct. at 2488. Instead, the Supreme Court held that
Section 361(a) authorizes measures that “directly relate to preventing the
interstate spread of disease by identifying, isolating, and destroying the
disease itself.” Id. As explained above, the transportation mask order does
exactly that.
3. The district court’s observation that “sanitation” measures overlap
with other measures enumerated in Section 361(a), see Dkt. No. 53, at 18-
19, is unremarkable: Congress often uses “overlapping, illustrative terms”
to “enlarge, rather than to confine, the scope of the agency’s power to
regulate.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 862 (1984); see, e.g., Babbitt v. Sweet Home Chapter of Communities
18
for a Great Or., 515 U.S. 687, 703 (1995) (“Any overlap that § 5 or § 7 may
have with § 9 in particular cases is unexceptional . . . and simply reflects the
broad purpose of the Act[.]”). Here, Section 361(a)’s second sentence
explicitly authorizes the CDC to take “other measures” similar to the ones
enumerated. Indeed, the “direct cleaning” definition that the district court
attributed to “sanitation” would overlap with “disinfection,” which is
another measure enumerated in Section 361(a). The district court’s
observation that other paragraphs of Section 361 impose limits on the
apprehension, detention, examination, and conditional release of
individuals, see Dkt. No. 53, at 23-24 (discussing 42 U.S.C. § 264(b)-(d)), is
irrelevant because the transportation mask order does not authorize such
measures.
The district court was plainly wrong to suggest that the transportation
mask order raises concerns under the so-called “major questions doctrine”
akin to those raised by the eviction moratorium. Dkt. No. 53, at 26-27.
Whereas the eviction moratorium was novel, masks are a longstanding
means to prevent the spread of communicable disease. Whereas the
eviction moratorium imposed a large economic burden on landlords, see
Alabama Ass’n of Realtors, 141 S. Ct. at 2489, the mask requirement places
“negligible” (if any) financial burdens on travelers, Wall, 2022 WL 1619516,
19
at *4. And whereas the eviction moratorium addressed a matter of
traditional state concern (landlord-tenant relations), see Alabama Ass’n of
Realtors, 141 S. Ct. at 2489, the order at issue here addresses the nation’s
transportation system, which is an area of traditional federal jurisdiction.
See Corbett v. TSA, 19 F.4th 478, 480 (D.C. Cir. 2021) (noting that the
COVID-19 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”).
II. The Transportation Mask Order Is Not Arbitrary And

Capricious Or Procedurally Invalid
A. The CDC Reasonably Found Masks Necessary To

Prevent The Spread Of COVID-19 On Public
Transportation And At Transportation Hubs
The CDC amply satisfied its obligation to “examine the relevant data
and articulate a satisfactory explanation for” its judgment that the mask
order is necessary to prevent the spread of COVID-19 in transportation
corridors. Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983). As the Supreme Court in Biden v.
Missouri stressed in upholding CMS’s COVID-19 vaccination requirement
for healthcare workers in federally funded facilities, “the role of courts in
reviewing arbitrary and capricious challenges is to ‘simply ensur[e] that the
agency has acted within a zone of reasonableness.’” 142 S. Ct. 647, 654
20
(2022) (per curiam) (alteration in original) (quoting FCC v. Prometheus
Radio Project, 141 S. Ct. 1150, 1158 (2021)). The CDC’s transportation
mask order clearly meets that standard.
The CDC detailed its rationale for requiring people to wear masks in
transportation hubs and conveyances. 86 Fed. Reg. at 8026-27. Citing
studies analyzing the effects of masking on infection and mortality rates,
the CDC explained that wearing a mask is “one of the most effective
strategies available for reducing COVID-19 transmission,” particularly
given that “asymptomatic or pre-symptomatic infected wearers who feel
well and may be unaware of their infectiousness” account for more than
half of all transmissions by some estimates. 86 Fed. Reg. at 8028-29. The
CDC further described the significant exposure risk in indoor
transportation settings where people are forced to be “in close contact with
others, often for prolonged periods,” as they stand in security lines, wait at
crowded transportation hubs, and sit aboard multi-person conveyances. Id.
at 8029; cf. Competitive Enter. Inst. v. U.S. Dep’t of Transp., 863 F.3d 911,
919 (D.C. Cir. 2017) (noting in the context of e-cigarette vapor that airline
passengers have little ability to protect themselves due to “the involuntary
nature of secondhand exposure” in these confined spaces (quotation marks
omitted)).
21
The COVID-19 pandemic is “exactly the type of situation” in which a
court “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.” Wall, 2022 WL 1619516, at
*8. None of the district court’s quarrels with the CDC order comes close to
showing that the CDC has acted outside the “zone of reasonableness.”
Biden v. Missouri, 142 S. Ct. at 654 (quoting Prometheus Radio Project, 141
S. Ct. at 1158). For example, the district court declared that the CDC did
not adequately consider alternatives like “testing, temperature checks, or
occupancy limits in transit hubs and conveyances.” Dkt. No. 53, at 48. But
the CDC explained that mask wearing is a simple, effective strategy that is
less disruptive to domestic travel than testing or separating passengers. See
86 Fed. Reg. at 8030 (characterizing “requiring a negative result from a
SARS-CoV-2 viral test” and “imposing requirements for social distancing”
as “more restrictive” than the mask order). And the CDC’s reasoning
underscored the limitations of the district court’s proposed alternatives.
For instance, temperature checks may not identify “pre-symptomatic or
asymptomatic” individuals, id. at 8028, and occupancy limits may not
maintain “the recommended 6 feet” of distance between people when
traveling, id. at 8029.
22
The district court’s other quibbles with the transportation mask order
are similarly flawed. The court’s suggestion that the CDC should have
required “social distancing,” Dkt. No. 53, at 48 (quoting 86 Fed. Reg. at
8026), disregarded the agency’s explanation that “[s]ocial distancing may
be difficult if not impossible” when people are on airplanes, in crowded
security lines or airport terminals, or on other multi-person conveyances,
86 Fed. Reg. at 8029. The court’s suggestion that the CDC should have
required “frequent handwashing,” Dkt. No. 53, at 48 (quoting 86 Fed. Reg.
at 8026), disregarded the practicalities of travel and the scientific evidence
showing that airborne viral droplets are the primary means of transmission,
see 86 Fed. Reg. at 8028. The court’s questioning of the efficacy of masks,
Dkt. No. 53, at 48, disregarded the CDC’s extensive “guidance for attributes
of acceptable masks,” including that they be “a solid piece of material” and
“fit snugly” against the wearer’s face, 86 Fed. Reg. at 8027 n.6.
As in Biden v. Missouri, there is no plausible contention that the
exceptions to the mask requirement render it useless in curbing the spread
of COVID-19. States that have imposed masking requirements in public
spaces and on public transit have included similar exceptions for children,
persons with disabilities, and activities like eating. See 86 Fed. Reg. at
8029 n.29 (citing a report of state-by-state mask requirements). Moreover,
23
the exceptions in the CDC’s transportation mask order are tailored to
minimize the risks of transmission. For example, allowing people to
remove their masks “for brief periods” when eating or drinking and
“temporarily” when unable to breathe, 86 Fed. Reg. at 8027 & n.7, is
consistent with the goal of reducing COVID-19 spread in transportation
settings. In short, the CDC “reasonably considered the relevant issues and
reasonably explained the decision.” Prometheus Radio Project, 141 S. Ct. at
1158.
B. The CDC Reasonably Found Good Cause To Make

The Order Effective Without Delay
The CDC’s findings likewise established good cause to proceed
without advance notice and comment, assuming that those procedures
were required. See 5 U.S.C. § 553(b)(B). “The highly contagious character
and the devastating effects of the SARS-CoV-2 virus demanded expeditious
action by the CDC.” Wall, 2022 WL 1619516, at *10.
The CDC explained that “[a]s of January 27, 2021, there ha[d] been
over 25,000,000 cases identified in the United States and over 415,000
deaths due to the disease.” 86 Fed Reg. at 8028. In addition to “the rapid
and continuing transmission of the virus across all states,” the CDC
described the recent emergence of “[n]ew SARS-CoV-2 variants,”
“including at least one with evidence of increased transmissibility.” Id. at
24
8028-29. And the CDC emphasized the “interconnected” nature of
“transportation systems,” where “local transmission can grow even more
quickly into interstate and international transmission when infected
persons travel on non-personal conveyances without wearing a mask.” Id.
at 8029. “Considering the public health emergency caused by COVID-19,”
the CDC determined that “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” the transportation mask order. Id. at 8030. These
findings provide the requisite “brief statement of reasons,” 5 U.S.C.
§ 553(b)(B), and constitute “the ‘something specific’ required to forgo
notice and comment,” Biden v. Missouri, 142 S. Ct. at 654 (citation
omitted).
The district court accepted the CDC’s determination that “requiring
masks will limit COVID-19 transmission and will thus decrease the serious
illnesses and death that COVID-19 occasions,” Dkt. No. 53, at 43, but
nonetheless deemed insufficient the agency’s finding of good cause. The
court reached that counterintuitive conclusion by ignoring the detailed
description of contemporaneous pandemic conditions that underlie the
CDC’s determination that “delay would do real harm,” United States v.
Dean, 604 F.3d 1275, 1281 (11th Cir. 2010). The very cases on which the
25
district court relied, Dkt. No. 53, at 36-38, recognize that good cause is
present where, as here, “delay would imminently threaten life,” Sorenson
Commc’ns Inc. v. FCC, 755 F.3d 702, 706 (D.C. Cir. 2014).
The CDC’s explicit discussion of the high risk of COVID-19
transmission in transportation settings undermines the district court’s
statement that the CDC did not “identif[y] specific reasons why in the
environment of [the regulation] the ongoing pandemic constituted good
cause.” Dkt. No. 53, at 43 (alterations in original) (quoting Florida v.
Department of Health & Human Servs., 19 F.4th 1271, 1290 (11th Cir.
2021)). The CDC explained that travelers are “in close contact with others,
often for prolonged periods,” in transportation hubs and conveyances. 86
Fed. Reg. at 8029; see also Corbett, 19 F.4th at 488 (recognizing COVID-
19’s “specific tendency to spread at high rates in transportation areas”).
And the CDC explained that local cases can quickly expand to national and
global spread “given how interconnected most transportation systems are.”
86 Fed. Reg. at 8029.
Contrary to the district court’s suggestion, Dkt. No. 53, at 38-39, the
length of the pandemic does not call into question the CDC’s good cause
finding. The Supreme Court upheld an analogous finding of good cause for
a vaccination requirement issued over a year and a half after the pandemic
26
began. Biden v. Missouri, 142 S. Ct. at 654 (reciting the agency’s finding
that “accelerated promulgation of the rule . . . would significantly reduce
COVID-19 infections, hospitalizations, and deaths”). Like the CMS
vaccination rule, the CDC’s mask order relied on the emergence of COVID-
19 variants with increased transmissibility, which threatened to spread
rapidly and infect the traveling public. See 86 Fed. Reg. at 8028; see also
Livingston Educ. Serv. Agency v. Becerra, --- F.4th ---, No. 22-1257, 2022
WL 1594779, at *1 (6th Cir. May 20, 2022) (upholding good cause finding
for HHS rule requiring staff in the federally funded Head Start program to
be vaccinated against COVID-19). The district court’s objection that the
CDC took too long to issue the mask order (which was issued nine months
before the CMS vaccination requirement), Dkt. No. 53, at 39, echoes the
argument that the Supreme Court rejected in Biden v. Missouri, 142 S. Ct.
at 654, and fails for the same reason.
III. The District Court Erred In Issuing Nationwide Relief
A. Nationwide Relief Contravenes Bedrock

Principles Of Standing, Equity, Comity, And
Judicial Restraint
The district court compounded its errors by issuing nationwide relief.
There was no basis for the district court to preempt the ruling in Wall or
the similar cases pending within the D.C., First, Third, Fourth, Fifth, Sixth,
27
Seventh, Ninth, and Tenth Circuits. See supra p. 3 n.1. As the judge in
Wall observed when registering its disagreement with the district court’s
decision in this case, a “district court cannot be said to be bound by a
decision of one of its brother or sister judges.” Wall, 2022 WL 1619516, at
*2 n.11 (quoting Fishman & Tobin, Inc. v. Tropical Shipping & Constr. Co.,
240 F.3d 956, 965 (11th Cir. 2001)). Whereas decisions of the Supreme
Court establish nationwide precedent, and the binding precedent of a court
of appeals governs within that circuit, “[a] decision of a federal district
court judge is not binding precedent in either a different judicial district,
the same judicial district, or even upon the same judge in a different case.”
Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) (quoting 18 J. Moore et
al., Moore’s Federal Practice § 134.02[1][d], at 134-26 (3d ed. 2011)); see
also Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 430 n.10
(1996) (“If there is a federal district court standard, it must come from the
Court of Appeals.”).
Article III requires that “[a] plaintiff’s remedy must be tailored to
redress the plaintiff’s particular injury.” Gill v. Whitford, 138 S. Ct. 1916,
1934 (2018). When a court orders “the government to take (or not take)
some action with respect to those who are strangers to the suit, it is hard to
see how the court could still be acting in the judicial role of resolving cases
28
and controversies.” Department of Homeland Sec. v. New York, 140 S. Ct.
599, 600 (2020) (Gorsuch, J., concurring). These constitutional limitations
are reinforced by traditional principles of equity, which dictate that 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)).
Nationwide relief takes a “toll on the federal court system.” Trump v.
Hawaii, 138 S. Ct. 2392, 2425 (2018) (Thomas, J., concurring). As this
Court recently explained, such relief “undermines the judicial system’s
goals of allowing the ‘airing of competing views’ and permitting multiple
judges and circuits to weigh in on significant issues.” Florida, 19 F.4th at
1283 (quoting Department of Homeland Sec., 140 S. Ct. at 600 (Gorsuch,
J., concurring)). Such relief thus undercuts the Supreme Court’s decision
in United States v. Mendoza, 464 U.S. 154 (1984), where, in holding that
the government is not subject to nonmutual offensive collateral estoppel,
the Court reasoned that “[a]llowing only one final adjudication would
deprive” it “of the benefit it receives from permitting several courts of
29
appeals to explore a difficult question before th[e] Court grants certiorari.”
Id. at 160.4
Nationwide relief also has the perverse effects of “encouraging forum
shopping, and making every case a national emergency for the courts and
for the Executive Branch.” Hawaii, 138 S. Ct. at 2425 (Thomas, J.,
concurring). It impedes the government’s ability to implement its policies
because the government must “prevail in all 94 district courts and all 12
regional courts of appeals” while one plaintiff can derail a nationwide policy
with a single victory. Arizona v. Biden, 31 F.4th 469, 484 (6th Cir. 2022)
(Sutton, C.J., concurring). And it may erode confidence in the Judiciary by
creating an impression that an Article III judge, who is unaccountable due
to life tenure, is setting national policy. “All in all, nationwide injunctions
have not been good for the rule of law.” Id. at 485.
4
See also Gun Owners of Am., Inc. v. Garland, 992 F.3d 446, 474
(6th Cir.) (observing that cutting off the development of the law in different
jurisdictions eliminates the “value in having legal issues ‘percolate’ in the
lower courts”), vacated on other grounds, 19 F.4th 890 (6th Cir. 2021) (en
banc); Holland v. National Mining Ass’n, 309 F.3d 808, 815 (D.C. Cir.
2002) (“Allowing one circuit’s statutory interpretation to foreclose . . .
review of the question in another circuit would squelch the circuit
disagreements that can lead to Supreme Court review.”).
30
B. The District Court Provided No Sound Basis For

Departing From These Principles
The principles discussed above should have led the district court to
confine its relief to the five individuals identified below. As the district
court stated in this very case, “[t]he better approach—and one arguably
more consistent with Article III—is narrowly crafted equitable relief
remedying only the harms of the parties before the district court, allowing
for potentially divergent adjudications that promote judicial dialog [sic].”
Dkt. No. 35, at 16. The district court offered no persuasive reason for ruling
more broadly. The court declared that “vacatur . . . is the ordinary
[Administrative Procedure Act (APA)] remedy.” Dkt. No. 53, at 53-54 (first
alteration in original) (quoting Black Warrior Riverkeeper, Inc. v. U.S.
Army Corps of Eng’rs, 781 F.3d 1271, 1290 (11th Cir. 2015)). But the cases
cited for that proposition addressed whether courts should remand to the
agency without vacating the agency action, as opposed to the proper scope
of the vacatur.
“Nothing in the language of the APA” requires an unlawful regulation
be “set[ ] aside . . . for the entire country.” Virginia Soc’y for Human Life,
Inc. v. Federal Election Comm’n, 263 F.3d 379, 394 (4th Cir. 2001).
Congress enacted the APA against a background rule that statutory
remedies should be construed in accordance with “traditions of equity
31
practice,” Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944), and courts “do not
lightly assume that Congress has intended to depart from established
[equity] principles,” Weinberger v. Romero-Barcelo, 456 U.S. 305, 313
(1982). At the time of the APA’s enactment, nationwide injunctions were
all but unknown. See, e.g., Hawaii, 138 S. Ct. at 2427-29 (Thomas, J.,
concurring) (explaining the lack of historical precedent for universal
injunctions). Indeed, a 1937 report to Congress from the Attorney General
recorded 1,600 separate injunctions issued against a single piece of New
Deal tax legislation in just over six months, while also noting that collection
of the tax from those who had not filed suits continued. S. Doc. No. 75-42,
at 1, 3 (1937). The absence of such sweeping relief at that time is
particularly notable given the multiple pre-APA statutes providing that
courts could “set aside” agency action held unlawful. See, e.g., Hepburn
Act, 59 Cong. ch. 3591, sec. 15, § 4, 34 Stat. 584, 589 (1906); Act of Oct. 15,
1914, 63 Cong. ch. 323, § 11, 38 Stat. 730, 735–36; Communications Act of
1934, 73 Cong. ch. 652, §§ 402, 408, 48 Stat. 1064, 1093, 1096.
The district court alternatively declared that the “difficulty of
distinguishing the named Plaintiffs from millions of other travelers” made
nationwide relief appropriate. Dkt. No. 53, at 57. But there is no such
difficulty. There are only two named individual plaintiffs and only three
32
members of the organizational plaintiff who identified themselves in the
proceedings below. A court order exempting those five individuals from the
transportation mask requirement should be no harder to administer than
the exemptions provided by the CDC order itself.
In any event, the named plaintiffs cannot circumvent the class-action
requirements of Rule 23 by seeking relief on behalf of unnamed individuals.
Class actions are the “mechanism for applying a judgment to third parties,”
and “Rule 23 carefully lays out the procedures for permitting a district
court to bind nonparties to an action.” Arizona, 31 F.4th at 484 (Sutton,
C.J., concurring). When a court decides to certify a class—which it must do
at “an early practicable time” after the suit is filed, Fed. R. Civ. P.
23(c)(1)(A)—the absent class members will be bound by a favorable or
unfavorable judgment, see Califano, 442 U.S. at 702. Nationwide relief, by
contrast, amounts to an inequitable one-way class action. See Department
of Homeland Sec., 140 S. Ct. at 601 (Gorsuch, J., concurring); cf. American
Pipe & Constr. Co. v. Utah, 414 U.S. 538, 547 (1974) (explaining that the
rule against one-way intervention prevents potential parties from
“await[ing] developments in the trial or even final judgment on the merits
in order to determine whether participation would be favorable to their
interests”).
33
CONCLUSION
The judgment of the district court should be reversed.
Respectfully submitted,
BRIAN M. BOYNTON
Principal Deputy Assistant
Attorney General
ROGER B. HANDBERG
United States Attorney
ALISA B. KLEIN
s/ Brian J. Springer
BRIAN J. SPRINGER
Attorneys, Appellate Staff
Civil Division, Room 7537
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
(202) 616-5446
brian.j.springer@usdoj.gov
May 2022
34
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limit of Federal Rule of
Appellate Procedure 32(a)(7)(B) because it contains 7,100 words. This
brief also complies with the typeface and type-style requirements of Federal
Rule of Appellate Procedure 32(a)(5)-(6) because it was prepared using
Microsoft Word 2016 in Georgia 14-point font, a proportionally spaced
typeface.
Brian J. Springer
CERTIFICATE OF SERVICE
I hereby certify that on May 31, 2022, I electronically filed the
foregoing brief with the Clerk of the Court for the United States Court of
Appeals for the Eleventh Circuit by using the appellate CM/ECF system.
Participants in the case are registered CM/ECF users, and service will be
accomplished by the appellate CM/ECF system.
Brian J. Springer

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USCA11 Case: 22-11287 Date Filed: 05/31/2022 Page: 1 of 48

IN THE UNITED STATES COURT OF APPEALS

HEALTH FREEDOM DEFENSE FUND, INC., et al.,

JOSEPH R. BIDEN, JR., President of the United States, et al.,

On Appeal from the United States District Court

OPENING BRIEF FOR APPELLANTS

CERTIFICATE OF INTERESTED PERSONS AND

Pursuant to Eleventh Circuit Rule 26.1-1(a)(1), counsel for the

defendants-appellants certify that the following have an interest in the

outcome of this appeal:

Biden, Jr., Joseph R.

Davillier Law Group, LLC

Daza, Ana Carolina

Health Freedom Defense Fund, Inc.

Mizelle, Honorable Kathryn Kimball, U.S. District Court Judge

Porcelli, Honorable Anthony E., U.S. Magistrate Judge

United States of America

U.S. Centers for Disease Control and Prevention

U.S. Department of Health and Human Services

Wentz, Jr., George Robinson

STATEMENT REGARDING ORAL ARGUMENT

To prevent the spread of COVID-19, the Centers for Disease Control

and Prevention (CDC) issued an order that generally requires people to

wear masks when traveling on public transportation and at transportation

hubs. Requirement for Persons To Wear Masks While on Conveyances

exceeds the CDC’s statutory authority, that it is arbitrary and capricious,

pending, No. 22-11532 (11th Cir.).

Given the importance of the issues presented, the government

respectfully requests oral argument.

STATEMENT OF JURISDICTION ................................................................ 3

STATEMENT OF THE ISSUES ...................................................................... 4

STATEMENT OF THE CASE ......................................................................... 4

I. Statutory Background ........................................................................... 4

II. The CDC’s Transportation Mask Order ................................................ 5

III. District Court Proceedings .................................................................... 8

IV. Standard Of Review .............................................................................. 9

SUMMARY OF ARGUMENT ....................................................................... 10

I. The Transportation Mask Order Is Within The CDC’s Statutory

A. Section 361(a) Expressly Authorizes Sanitation Measures,

B. The District Court’s Rulings Are Contrary To

II. The Transportation Mask Order Is Not Arbitrary And

A. The CDC Reasonably Found Masks Necessary To Prevent

B. The CDC Reasonably Found Good Cause To Make The

III. The District Court Erred In Issuing Nationwide Relief ..................... 27

A. Nationwide Relief Contravenes Bedrock Principles Of

B. The District Court Provided No Sound Basis For

*Alabama Ass’n of Realtors v. Department of Health & Human Servs.,

American Pipe & Constr. Co. v. Utah,

Babbitt v. Sweet Home Chapter of Communities for a Great Or.,

Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs,

Brown v. Nexus Bus. Sols., LLC,

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,

Competitive Enter. Inst. v. U.S. Dep’t of Transp.,

* Authorities upon which we chiefly rely are marked with asterisks.

Department of Homeland Sec. v. New York,

FCC v. Prometheus Radio Project,

Fishman & Tobin, Inc. v. Tropical Shipping & Constr. Co.,

Florida v. Department of Health & Human Servs.,