Opinion
21-cv-05825-JCS
09-02-2021
WILLIAM DAVID BUSH, Plaintiff, v. ROCHELLE WALENSKY, et al., Defendants.
REPORT AND RECOMMENDATION
JOSEPH C. SPERO, Chief Magistrate Judge.
I. INTRODUCTION
Having granted Plaintiff's request to proceed in forma pauperis under 28 U.S.C. § 1915(a)(1), the Court is required to review Plaintiff's complaint under 28 U.S.C. § 1915(e)(2)(B) to determine whether any claims are subject to dismissal on the basis that they: 1) are frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Marks v. Solcum, 98 F.3d 494, 495 (9th Cir. 1996). For the reasons set forth below, the undersigned finds that Plaintiff's claims are insufficiently pled and cannot be cured by amendment. Because all parties have not consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c), this case shall be reassigned to a district judge with the recommendation that the complaint be dismissed with prejudice. 1
II. BACKGROUND
In his Complaint, Plaintiff challenges an Order of the Center for Disease Control (“CDC”) that he refers to as the “January 26 Airline Travel Bill of Health” that was “issued and published in the Federal Registry on 1/28/21.” Complaint ¶ 22. Based on his description of the order, the Court concludes that Plaintiff is referring to a CDC order entitled “Requirement for Negative Pre-Departure COVID-19 Test Result or Documentation of Recovery from COVID-19 for all Airline or Other Aircraft Passengers Arriving into the United States from any Foreign Country” (“the Order”), which went into effect on January 26, 2021 and was published in the Federal Register on January 28, 2021. See 86 FR 7387-7391. The Order requires airline passengers traveling to the United States, with limited exceptions, to show evidence of a negative COVID-19 test result before boarding the plane. See id.
Plaintiff alleges that as a result of the Order, he “miss[ed] his flight returning to the United States, was forced to pay for additional lodging while he made arrangements to receive a covid 19 test, purchase another airline ticket at next day prices, sign waivers of medical procedure and information handling liability in a foreign jurisdiction without the review or consultation of legal counsel, was forced to pay a Covid-19 test procedure fee, and was put at risk to be stranded in a foreign country without health insurance or guarantee of medical treatment if in fact he had contracted Covid-19, or the test was a false positive for any reason[.]” Complaint ¶ 26. Plaintiff alleges that the Order is illegal and violates 42 C.F.R. §§ 71.11 and 71.20. Complaint ¶¶ 23-24. He asserts the following claims against the CDC and CDC director Rochelle Walensky in her official capacity: 1) violation of the Administrative Procedures Act (“APA”), 5 U.S.C. § 706(2)(A) & (C) on the basis that the Order is “not in accordance with law” and “in excess of . . . authority.”; 2) violation of the APA, 5 U.S.C. § 706(2)(A), on the basis that the CDC's issuance of the Order was arbitrary and capricious; and 3) violation of Article 1 §1 of the United States Constitution based on the theory that the Order exceeded the CDC's authority and constituted illegal lawmaking. Plaintiff asks the Court to set aside the Order as unlawful and enjoin its enforcement. 2
III. ANALYSIS
A. Legal Standards Under 28 U.S.C. § 1915 and Rule 12(b)(6)
Where a plaintiff is found to be indigent under 28 U.S.C. § 1915(a)(1) and is granted leave to proceed in forma pauperis, courts must engage in screening and dismiss any claims which: (1) are frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Marks v. Solcum, 98 F.3d 494, 495 (9th Cir. 1996).
To state a claim for relief, a plaintiff must make “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Further, a claim may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6); see also Diaz v. Int'l Longshore and Warehouse Union, Local 13, 474 F.3d 1202, 1205 (9th Cir. 2007). In determining whether a plaintiff fails to state a claim, the court takes “all allegations of material fact in the complaint as true and construe[s] them in the light most favorable to the non-moving party.” Cedars-Sinai Med. Ctr. v. Nat'l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007). However, “the tenet that a court must accept a complaint's allegations as true is inapplicable to legal conclusions [and] mere conclusory statements, ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts “do not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations.” Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (internal quotation marks omitted). The complaint need not contain “detailed factual allegations, ” but must allege facts sufficient to “state a claim to relief that is plausible on its face.” Id. at 678 (citing Twombly, 550 U.S. at 570).
Where the complaint has been filed by a pro se plaintiff, courts must “construe the pleadings liberally . . . to afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). “A pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies in the complaint could not be cured by amendment.” Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds by statute, as recognized in Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (en banc). Further, 3 when it dismisses the complaint of a pro se litigant with leave to amend, “the district court must provide the litigant with notice of the deficiencies in his complaint in order to ensure that the litigant uses the opportunity to amend effectively.” Id. (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). “Without the benefit of a statement of deficiencies, the pro se litigant will likely repeat previous errors.” Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 624 (9th Cir. 1988) (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)).
B. The APA Claims
1. The APA
The APA affords a right to seek judicial review of agency action to a person who suffers a legal wrong or is “adversely affected or aggrieved” by that action “within the meaning of the relevant statute.” 5 U.S.C. § 702. “To the extent necessary to decision and when presented… [t]he reviewing court shall . . . (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be . . . (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” [or] (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706.
2. The Public Health Service Act and Implementing Regulations
The Order was issued under Section 361 of the Public Health Service Act, codified at 42 U.S.C. § 264. 86 FR 7387-01. Section 361(a) provides:
Promulgation and Enforcement by Surgeon General. The Surgeon General, with the approval of the Secretary, 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). Although this provisions assigns authority to the Surgeon General, all statutory powers and functions of the Surgeon General were transferred to the Secretary of HHS in 4 1966, 31 Fed.Reg. 8855 (June 25, 1966), 80 Stat. 1610 (1966), see also Pub. L. No. 96-88, § 509(b), 93 Stat. 668, 695 (1979) (codified at 20 U.S.C. § 3508(b)). The Secretary of HHS has promulgated regulations implementing the provisions of Section 361 and delegating their enforcement to CDC. See 42 C.F.R. pt. 70; Control of Communicable Diseases, Apprehension and Detention of Persons With Specific Diseases, Transfer of Regulations, 65 Fed.Reg. 49, 906, 49, 907 (Aug. 16, 2000).
The Order was issued under two implementing regulations, 42 C.F.R. §§ 71.20 and 71.31(b). Section 71.20, entitled “Public health prevention measures to detect communicable disease[, ]” provides:
(a) The Director may conduct public health prevention measures, at U.S. ports of entry or other locations, through non-invasive procedures as defined in section 71.1 to detect the potential presence of communicable diseases.
(b) As part of the public health prevention measures, the Director may require individuals to provide contact information such as U.S. and foreign addresses, telephone numbers, email addresses, and other contact information, as well as information concerning their intended destination, health status, known or possible exposure history, and travel history.
42 C.F.R. § 71.20. Section 71.31(b) provides:
(b) The Director may require detention of a carrier until the completion of the measures outlined in this part that are necessary to prevent the introduction or spread of a communicable disease. The Director may issue a controlled free pratique to the carrier stipulating what measures are to be met, but such issuance does not prevent the periodic boarding of a carrier and the inspection of persons and records to verify that the conditions have been met for granting the pratique.42 C.F.R. § 71.31(b).
Plaintiff contends the Order is inconsistent with Section 71.20 and 42 C.F.R. § 71.11, which provides that “[a] carrier at any foreign port clearing or departing for any U.S. port shall not be required to obtain or deliver a bill of health.”
3. Discussion
Plaintiff's claim that the CDC acted outside of its authority is based on the theories that: 1) neither 42 C.F.R. § 71.20 nor 42 C.F.R. § 71.31 authorizes the CDC to regulate “U.S. Airlines, much less every Airline in the world”; and 2) neither of these regulations allows the Director to 5 conduct “public health prevention measures in foreign jurisdictions.” Complaint ¶¶ 34-35. His claim that the Order is arbitrary and capricious is based on the theories that: 1) it is arbitrary and capricious to single out airlines while not imposing similar requirements as to passengers who arrive via other modes of transportation; 2) the timing of the Order is arbitrary and capricious because it was enacted “two years after the Covid 19 virus was generally identified”; and 3) it is inconsistent with 42 C.F.R. § 71.11. The Court finds no authority to support these theories.
First, Plaintiff's assertion that the regulations do not allow the CDC to regulate airlines bound for the United States is plainly contradicted by regulations found in Part 71 of 42 C.F.R. Subchapter F, governing “Foreign Quarantines.” For example, Section 71.4 requires “any airline with a flight arriving into the United States” to make certain data “available to the Director for passengers or crew who, as determined by the Director, may be at risk of exposure to a communicable disease.” Likewise, under Section 71.44, the “Director may require disinsection of an aircraft if it has left a foreign area that is infected with insect-borne communicable disease and the aircraft is suspected of harboring insects of public health importance.” Conversely, no regulation expressly limits the CDC's authority with respect to airlines.
Plaintiff's reliance on Skyworks, Ltd. v. Centers for Disease Control & Prevention is also misplaced. See Complaint ¶ 34 (citing No. 5:20-CV-2407, 2021 WL 911720, at *10 (N.D. Ohio Mar. 10, 2021), order clarified, No. 5:20-CV-2407, 2021 WL 2228676 (N.D. Ohio June 3, 2021)). In that case, the court addressed whether the CDC had the authority to issue a nationwide eviction moratorium under Section 361(a) of the Public Health Service Act and 20 C.F.R. § 70.2. 2021 WL 911720, at *5. The Court concluded that the apparently broad authority conferred in the first sentence of Section 361(a) and the reference to “other measures” in the second sentence of that section, must be understood in the context of the provision as a whole and, in particular, the list of examples in Section 361(a), allowing the CDC to take measures such as requiring “fumigation, disinfection, [or] destruction of animals or things[.]” Id. at *10. The Court held that the eviction moratorium was not a similar type of action and therefore went beyond Congress's authorization. Id. In contrast, the Order here requiring passengers to provide information about their health status and in particular, whether they are carrying a communicable disease, is akin to the 6 “inspection” that Section 361(a) expressly authorizes. Therefore, the reasoning of the Skyworks does not apply to Plaintiff's claim.
Nor do the regulations limit the CDC's authority to require passengers to meet public health requirements before they board an airplane bound for the United States, when they are still in a foreign jurisdiction. To the contrary, Section 73.20(a) provides (a) that “[t]he Director may conduct public health prevention measures, at U.S. ports of entry or other locations, through non-invasive procedures as defined in section 71.1 to detect the potential presence of communicable disease.” 42 C.F.R. § 71.20(a) (emphasis added). Plaintiff's theory ignores the highlighted language. Moreover, subsection (b) of that regulation expressly provides that “as part of the public health prevention measures, the Director may require individuals to provide . . . information concerning their . . . health status.” The negative covid test result required under the Order falls squarely under this authority.
Plaintiff's claim that the Order is arbitrary and capricious also fall short. While he asserts generally that it is arbitrary to single out air travel, he fails to offer any explanation of why the reason offered by the CDC for adopting the Order, namely, to mitigate the risk of “U.S.-bound travelers further spreading the virus to others during travel, upon arrival in the United States, and at their destinations[, ]” is not reasonable. See 86 FR 7387-01. Likewise, while he contends the timing of the Order is arbitrary, he does not address the Order's detailed discussion of recent rapid increases in infection rates and the discovery of new variants of COVID-19 in various parts of the world or explain why the CDC acted unreasonably in responding to these developments by issuing the Order.
Finally, the Court rejects Plaintiff's reliance on 42 C.F.R. § 71.11, which provides that “[a] carrier at any foreign port clearing or departing for any U.S. port shall not be required to obtain or deliver a bill of health.” While the term “bill of health” is not defined in the regulation, a Florida District Court recently explained that a “bill of health” was a mechanism adopted in 1893 when Congress federalized quarantine power:
. . . Congress further federalized the quarantine power by adopting a “bill of health” system. In 1893, Congress enacted the “last significant quarantine legislation before the [ ] enactment of the Public Health7
Service Act in 1944, ” WEN SHEN, SCOPE OF CDC AUTHORITY UNDER SECTION 361 OF THE PUBLIC HEALTH SERVICE ACT, at 8 (Congressional Research Service, 2021), which conscripted the Marine Hospital Service to, among other things, obtain a “bill of health” from a vessel arriving from abroad.19 Act of Feb. 15, 1893, 52 Cong., Ch. 114. The bill of health, obtained from a U.S. “consular officer ... at the port of departure, ” was required to “set[ ] forth the sanitary history and condition of [a] vessel” and to affirm the vessel's compliance with sanitation rules and regulations. Upon arrival at a U.S. quarantine station, a vessel would display the bill of health to a quarantine officer. See ALEX CHASE-LEVENSON, THE YELLOW FLAG: QUARANTINE AND THE BRITISH MEDITERRANEAN WORLD, 1780-1860, at 13-16 (Cambridge Univ. Press, 2020) (discussing the development of these practices). Although later abandoned and replaced by casual “radio pratique” practices in 1985, 42 C.F.R. § 71.11, the bill of health served as an important quarantine tool during this period.State v. Becerra, No. 8:21-CV-839-SDM-AAS, 2021 WL 2514138, at *13 (M.D. Fla. June 18, 2021) (emphasis added). It is clear that the requirement that passengers present proof of a negative covid test before boarding an aircraft bound for the United States is not a “bill of health” and Plaintiff points to no authority that supports a contrary conclusion. Therefore, this argument also fails.
For these reasons, the Court concludes that Plaintiff's APA claims are insufficiently pled.
C. The Constitutional Claim
Plaintiff also contends the Order violates Article I, § 1 of the U.S. Constitution, which provides, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” According to Plaintiff, because the Order exceeds the CDC's authority, it constitutes unauthorized lawmaking by the CDC. As discussed above, however, the Court concludes that the Order is authorized under Section 361 of the Public Service Health Act. Therefore, the Court finds that this claim fails for the reasons discussed above in connection with Plaintiff's APA claims.
IV. CONCLUSION
For the reasons stated above, it is recommended that the Court dismiss Plaintiff's complaint with prejudice. If Plaintiff objects to this recommendation he may file an objection 8 within two weeks of the date on which he receives this Report & Recommendation. The case management conference previously set for October 9, 2021 is vacated. 9