Health Freedom Def. Fund, Inc. v. Biden

572 F.Supp.3d 1257

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

v.Joseph R. BIDEN, Jr., in his official capacity as President of the United States, Xavier Becerra, in his official capacity as Secretary of Health and Human Services, The Department of Health and Human Services, The Centers for Disease Control and Prevention, Rochelle P. Walensky, in her official capacity as Director of the CDC, Martin S. Cetron, in his official capacity as Director of the CDC's Division of Global Migration and Quarantine, and The United States of America, Defendants.

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

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

Signed November 19, 2021

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

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

ORDER

Kathryn Kimball Mizelle, United States District Judge

Plaintiffs Sarah Pope, Ana Daza, and Health Freedom Defense Fund (HFDF) filed this action in the Tampa Division of the Middle District of Florida, seeking a declaratory judgment that Executive Order 13998 and the Centers for Disease Control's (CDC) travel mask mandate are unlawful. (Doc. 1.) Defendants move to transfer this action to the Honorable Paul G. Byron in the Orlando Division of the Middle District of Florida because of an ostensibly similar case pending before him. (Doc. 19.) After a thorough review, this Court denies the motion. The actions are not sufficiently similar—either in kind or procedural posture—as to create "the probability of inefficiency or inconsistency." Local Rule 1.07(a)(2)(B). The convenience of the parties and Plaintiffs’ choice of forum likewise point in favor of retaining the action in this Division. Finally, Defendants’ fear of warring nationwide injunctions is ill-founded, as Plaintiffs have not sought one here.

I. BACKGROUND

In response to the COVID-19 pandemic, President Biden issued Executive Order 13998, which directed federal agencies to require that passengers wear masks on all forms of public transportation. See Exec. Order No. 13998, 86 Fed. Reg. 7205 (Jan. 21, 2021). Following that order, the CDC promulgated an "emergency action" requiring all persons, with limited exceptions, wear a mask covering "the mouth and nose when traveling on any conveyance" or while inside any transportation hub within the United States. See Requirement for Persons to Wear Masks While on Conveyances and at Transportation Hubs, 86 Fed. Reg. 8025, 8025–30 (Feb. 3, 2021).

Plaintiffs Ana Daza and Sarah Pope are residents of counties within the Tampa Division of the Middle District. (Doc. 1 ¶¶ 9–10.) Both flew routinely before the pandemic. (Id. ¶¶ 49–50.) Daza, who regularly visits family in Columbia, has not flown since the CDC's mask mandate came into effect. (Id. ¶ 49.) She objects to wearing a mask because it gives her anxiety, headaches, and shortness of breath. ( Id. ) Though a physician has diagnosed her with anxiety, she alleges she is not qualified for an exception to the mask mandate. ( Id. ) Similarly, the mask mandate has deterred Pope from taking long flights because of her concern that wearing a mask for extended periods will give her anxiety or cause her to have a panic attack. (Id. ¶ 50.) Joining with HFDF, a non-profit entity with members "in the Middle District of Florida, Tampa Division," (id. ¶¶ 47–48), Pope and Daza sued the Defendants on July 12, 2021, seeking a declaratory judgment that the mask mandate and Executive Order 13998 are invalid, (id. ¶ 1; Doc. 26 at 4).

The Complaint alleges that the mask mandate violates the Administrative Procedure Act because it exceeds the CDC's statutory authority (Count I), did not provide for notice and comment (Count II), and is arbitrary and capricious (Count III). The Complaint also alleges that—if the mask mandate is within the CDC's congressionally granted powers—Congress unconstitutionally delegated its legislative power (Count IV). Finally, the Complaint asserts that Executive Order 13998 is an unconstitutional exercise of legislative power (Count V) and that it "violates the Separation of Powers between the States and the Federal Government" (Count VI).

Pope, Daza, and HFDF are not the only ones (or the first) to challenge the mask mandate or Executive Order 13998. On June 7, 2021, Lucas Wall filed a pro se complaint in the Orlando Division of the Middle District. See Wall v. CDC , No. 6:21-cv-0975-PGB-DCI (M.D. Fla.) (Byron, J.). The case was randomly assigned to the Honorable Paul G. Byron. Wall's complaint stretches over 200 pages and contains 23 counts. Like the Complaint here, Wall's complaint asserts that the mask mandate violates the APA, exceeds the CDC's statutory authority, or is the product of an unconstitutional delegation of legislative power. Wall also argues that Executive Order 13998 is invalid because it violates the separation of powers. Additionally, Wall asserts many other claims and names other defendants that are not part of this action.

After this Court granted an extension, Defendants in this action answered the Complaint, (Doc. 20), and now move to transfer to the Orlando Division for adjudication by Judge Byron, (Doc. 19). Plaintiffs oppose a transfer. (Doc. 26.)

II. LEGAL STANDARD and ANALYSIS

Citing the potential for inconsistency or inefficiency from adjudication in different Divisions and by different judges, Defendants ask this Court to transfer to the Orlando Division under Local Rule 1.07(a), and, in the alternative, under 28 U.S.C. § 1404(b).

A. Intra-District Transfer under Local Rule 1.07(a)

Local Rule 1.07(a) provides that, if "actions before different judges present the probability of inefficiency or inconsistency, a party may move to transfer a later-filed action to the judge assigned to the first-filed action." Local Rule 1.07(a)(2)(B) (emphasis added). As the plain text instructs, a motion to transfer is discretionary from start to finish. The party need not move to transfer simply because his later-filed case satisfies the threshold standard of "probability of inefficiency or inconsistency." And nothing in Rule 1.07(a)(2)(B) mandates that a judge in the later-filed action grant a party's request to transfer, even if the party satisfies that threshold standard to seek a transfer. The decision to transfer thus resides with the judge in the later-filed action, but she can only transfer "with the consent of the transferee judge." Id. Aside from the consent requirement, the transfer decision remains purely discretionary. See Daniels v. Gov't Emps. Ins. Co. , No. 8:19-cv-2612, 2020 WL 6599420, at *2 (M.D. Fla. Jan. 15, 2020) (Scriven, J.) ("The determination of the issue, however, is vested in the sound discretion in the Court.")¹ ; Local Rule 1.07(a)(2)(A) (noting that a presiding judge may transfer "at any time and for any reason"); see also United States v. Musselwhite , 709 F. App'x 958, 967 (11th Cir. 2017) (explaining that the Local Rules on transfer "must be read in conjunction"). In exercising this discretion, courts within the Middle District consider a plaintiff's opposition to the transfer, the convenience of the parties, efficiency, and the interests of justice. See Petro Gate, Inc. v. Circle K Stores, Inc. , No. 2:20-cv-246, 2020 WL 10458523, at *1 (M.D. Fla. Apr. 27, 2020) (Honeywell, J.).

Defendants assert that this action raises the same legal challenges against the same agency action as Wall. Thus, absent transfer, Defendants contend there is a probability of inefficient expenditure of judicial resources or inconsistent judgments. (Doc. 19.) Plaintiffs disagree and cite numerous differences both in substance and procedural posture between the two actions. (Doc. 26 at 2.) Plaintiffs also contend that their choice of forum and convenience weigh against a transfer. (Id. at 10–13.) This Court agrees that the two actions are not as similar as they might first appear, and that transfer is not warranted.

1. Significant Dissimilarities Weigh in Favor of Retaining the Action in this Division

Despite some similarities, the actions are not sufficiently related to warrant transfer. As the parties acknowledge, Wall contains several of the same legal claims as in this action. Both actions challenge the CDC's mask mandate, (Doc. 19 at 4), alleging that it violates the APA's notice-and-comment requirements or is arbitrary and capricious, (id. at 5). They both make similar arguments that the mask mandate exceeds the CDC's statutory authority or is an unconstitutional delegation of legislative power. (Id. ) Both cases also argue that Executive Order 13998 is unlawful. (Id. )

But the similarities end there. As Defendants admit, "Mr. Wall also brings several additional claims (and names several additional defendants) that do not appear in this case." (Doc. 19 at 6.) Wall's complaint names the Greater Orlando Aviation Authority, the Central Florida Regional Transportation Authority, and the federal Transportation Security Administration as defendants, (Doc. 26 at 5), none of which appear in this action. See Parkervision, Inc. v. Qualcomm Inc. , No. 6:14-cv-687, 2015 WL 12852308, at *2 (M.D. Fla. Mar. 9, 2015) (Byron, J.) (denying intra-district transfer after finding the cases "distinguishable" because of "the inclusion of several additional defendants").

Not only does Wall sue additional defendants, he also brings additional claims. Wall's complaint contains 23 counts. (Doc. 26 at 5.) Among these counts, Wall asserts violations of the Fifth Amendment, Tenth Amendment,² the constitutional right to travel, Florida law, as well as a violation of the Air Carrier Access Act.³ (Doc. 26 at 9.) These claims are not present in this action. Middle District courts applying the intra-district transfer rule have found differing claims—even when the defendants are almost identical—a sufficient reason to...