Abadi v. Am. Airlines

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AARON ABADI Plaintiff, v. AMERICAN AIRLINES, INC., et al., Defendants.

No. 23-cv-4033 (LJL)

United States District Court, S.D. New York

August 16, 2024

OPINION AND ORDER

LEWIS J. LIMAN, United States District Judge.

Defendants the Department of Health and Human Services (“HHS”), Centers for Disease Control and Prevention (“CDC”), National Institute of Health (“NIH”), Department of Transportation (DOT), Pete Buttigieg, Secretary of the DOT, in his official capacity the Transportation Security Administration (“TSA”), Department of Justice (“DOJ”) (together, the “Agency Defendants”), David P. Pekoske, Administrator of the TSA, in his individual capacity, Erinn Bostic, in her individual capacity, Dr. Anthony Fauci, in his individual capacity, and Dr. Robert Redfield, in his individual capacity (together, the “Individual Defendants” and with the Agency Defendants, the “Federal Defendants”) move pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for an order dismissing the complaint against them. Dkt. No. 383.

BACKGROUND

The Court has described the allegations of the complaint at length in a prior Opinion and Order. Dkt. No. 346. The Court accepts those allegations as true and construes them broadly and liberally to state the strongest claims they suggest given Plaintiff's pro se status. See, e.g., Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006).

Plaintiff is a New York resident with a sensory processing disorder that prevents him from wearing a mask. Dkt. No. 3 (“Complaint” or “Compl.”) ¶¶ 1, 141. He also “travels a whole lot,” id. ¶ 807, both for his work and for pleasure, id. ¶¶ 174, 806-807. Plaintiff generally challenges the previously effective CDC order that individuals were required to wear face masks while travelling in airports and on airplanes during the COVID-19 pandemic.

On January 21, 2021, on his first full day in office, President Biden signed Executive Order 13998, Promoting COVID-19 Safety in Domestic and International Travel, 86 Fed.Reg. 7205 (Jan. 21, 2021), directing the Secretaries of Labor, HHS, Transportation (including through the Administrator of the Federal Aviation Administration (“FAA”)), Homeland Security (including through the Administrator of the TSA), and the heads of other executive departments and agencies to “immediately take action, to the extent appropriate and consistent with applicable law, to require masks to be worn in compliance with CDC guidelines in or on,” among other places, airports and commercial aircrafts. Id. § 2(a).

Following the Executive Order, on or about January 29, 2021, the CDC issued an order, Dkt. No. 3-7 (the “CDC Order” or “Mask Mandate”), intended to slow the spread of the deadly COVID-19 virus that caused “most of the planet to get sick, and caused the death [sic] of over 6 million people.” Compl. ¶ 92. In pertinent part, the Mask Mandate directed conveyance operators, including airlines, to use best efforts to ensure that any person on the conveyance wears a mask when boarding, disembarking, and for the duration of travel. Id. ¶ 99. The CDC Order contained an exemption for “a person with a disability who cannot wear a mask, or cannot safely wear a mask, because of the disability as defined by the Americans with Disabilities Act.” Id. ¶ 100. However, a footnote to the CDC Order made clear that “Operators of conveyances or transportation hubs may impose requirements, or conditions for carriage, on persons requesting an exemption from the requirement to wear a mask, including medical consultation by a third party, medical documentation by a licensed medical provider, and/or other information as determined by the operator, as well as require evidence that the person does not have COVID-19 such as a negative result from a SARS-CoV-2 viral test or documentation of recovery from COVID-19.” CDC Order at 4 n.8. By its terms, the Mask Mandate's duration was tied to the determination by the HHS Secretary that a public health emergency existed. It stated that it would remain “in effect unless modified or rescinded based on specific public health or other considerations, or until the Secretary of Health and Human Services rescinds the determination under section 319 of the Public Health Service Act (42 U.S.C. 247(d)) that a public health emergency exists.” Id. at 8030. The Mask Mandate expired on May 11, 2023, the date that the HHS Secretary's declaration of a public health emergency expired. See Expired Order: Wearing of face masks while on conveyances and at transportation hubs, CDC.gov (May 12, 2023), https://www.cdc.gov/quarantine/masks/mask-travel-guidance.html.

Plaintiff was impacted by the Mask Mandate during the period it was in effect. He booked travel on several airlines during that period and contracted numerous others, in each instance presenting a letter from a doctor stating that he was unable to wear a mask or face shield and requesting that he be permitted to fly without wearing a mask. Compl. ¶¶ 69, 178, 797. However, as a general matter, the airlines denied him that exemption on the basis of the doctor's note alone, often requiring him to fill out additional documentation or to submit a negative COVID-19 test. In some instances, he was denied permission to fly without a mask outright. As a result, Plaintiff was not able to fly, causing him financial damages and non-monetary harm. Id. ¶¶ 808, 813-814, 825-827.

PROCEDURAL HISTORY

On May 1, 2023, Plaintiff sued the 46 airlines who he contended declined to allow him to fly mask-free, several employees of the airlines, two attorneys who represented the airlines, two medical advisory groups (MedAire, Inc. and the Center for Emergency Medicine of Western Pennsylvania, doing business as STAT-MD), and several governmental defendants, including the NIH, CDC, HHS, certain federal employees, and the President of the United States, alleging a host of statutory and tort claims stemming from the airlines' refusal to allow him to fly without a mask. Dkt. No. 3. Plaintiff also alleges that the Executive Order and Mask Mandate are unlawful.^[1]

Plaintiff filed his Complaint on May 1, 2023, in the United States District Court for the Northern District of Texas. Id. By order of May 8, 2023, the District Court for the Northern District of Texas sua sponte transferred the case to this Court. Dkt. No. 10. On July 10, 2023, Plaintiff moved to supplement his Complaint to add allegations addressing jurisdiction in New York as well as to add allegations against the DOT, Pete Buttigieg, as Secretary of the DOT, the TSA, David P. Pekoske, and Errin Bostic, Dkt. No. 12, and on March 29, 2024, the Court granted that motion and deemed the supplemental complaint filed at Dkt. No. 12-1 to be incorporated into the original complaint filed at Dkt. No. 3. See Dkt. No. 347.

Also on March 29, 2024, the Court signed an Opinion and Order, granting the motion of certain of the airline defendants and their employees to dismiss the complaint against them. Dkt. No. 346. The Court held that Plaintiff failed to state a claim that the moving defendants violated his constitutional rights because he did not plausibly allege that any of those defendants was a state actor, that Plaintiff did not allege a conspiracy for the purpose of depriving him of the equal protection of the laws or of equal privileges and immunities under the laws sufficient to satisfy Section 1985(3) of Title 42 of the U.S. Code, that he did not allege a violation of Section 1986 of Title 42 of the U.S. Code because he did not allege a violation of Section 1985, that the Air Carrier Access Act did not confer a private right of action, that Plaintiff's Rehabilitation Act claim failed because he did not allege either the receipt of federal financial assistance or exclusion on the basis of disability, that Plaintiff's claims for discrimination under state or municipal law were either preempted by the Air Carriers Access Act of 1986 (“ACAA”) or the Airline Deregulation Act or failed to state a claim for relief, that Plaintiff's state law tort and contract claims failed to state a claim for relief, and that Plaintiff failed to state a claim for deprivation of his constitutional right to travel.

On May 31, 2024, the Court signed a Stipulation and Order of Dismissal dismissing the claims against the remaining airline defendants, MedAire, Inc. and STAT-MD, leaving the Federal Defendants as the only remaining defendants. Dkt. No. 376.

On June 28, 2024, the Federal Defendants filed this motion to dismiss along with a memorandum of law in support of the motion. Dkt. Nos. 383-384. Plaintiff filed a memorandum of law in opposition to the motion to dismiss on July 12, 2024. Dkt. No. 385. Federal Defendants filed their reply memorandum of law in further support of the motion to dismiss on July 19, 2024. Dkt. No. 386.

LEGAL STANDARD

In considering a motion to dismiss pursuant to Rule 12(b)(6), a “court must accept the material facts as alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Phelps v Kapnolas, 308 F.3d 180, 184 (2d Cir. 2002) (quoting Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.) cert. denied, 513 U.S. 836 (1994)). However, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must offer more than “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual enhancement” in order to survive dismissal. Twombly, 550 U.S. at 555, 557. The ultimate question is whether ...