Answer To Amended Complaint Health Freedom Defense Fund, Inc. Et Al v. Biden Et Al

Case 8:21-cv-01693-KKM-AEP Document 41 Filed 01/06/22 Page 1 of 22 PageID 674
UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HEALTH FREEDOM DEFENSE

FUND, INC.; ANA CAROLINA
DAZA; and SARAH POPE,
Plaintiffs,
v. Case No. 8:21-cv-1693-KKM-AEP
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, MD,
MPH, in her official capacity as
Director of the CDC; MARTIN S.
CETRON, MD, in his official capacity
as Director of the CDC’s Division of
Global Migration and Quarantine; and
THE UNITED STATES OF
AMERICA,
Defendants.
ANSWER TO AMENDED COMPLAINT
Defendants (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 (CDC); Rochelle P. Walensky, MD, MPH, 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) hereby answer Plaintiffs’ Amended Complaint as follows:
Defendants answer the individually numbered paragraphs of the Amended
Complaint, using the same numbering contained in the Amended Complaint, as
follows:
1. Paragraph 1 consists of Plaintiffs’ characterization of this lawsuit, to
which no response is required.
2. Paragraph 2 consists of Plaintiffs’ characterization of Defendant Joseph
R. Biden Jr.’s January 21, 2021 Executive Order on Promoting COVID-19 Safety in
Domestic and International Travel (the “Executive Order”), to which no response is
required. To the extent that a response is deemed required, Defendants deny any
characterization of the Executive Order, which speaks for itself, and respectfully refer
the Court to the Executive Order for a full and accurate statement of its contents.
3. Defendants admit that, on January 29, 2021, Defendant CDC issued a
Notice and Order entitled “Requirement for Persons to Wear Masks While on
Conveyances and at Transportation Hubs” (the “Transportation Mask Order”)
without notice and comment under the Administrative Procedure Act (“APA”).
4. Paragraph 4 consists of Plaintiffs’ characterization of the Transportation
Mask Order, to which no response is required. To the extent that a response is deemed
required, Defendants deny any characterization of the Transportation Mask Order,

2

which speaks for itself, and respectfully refer the Court to the Transportation Mask
Order for a full and accurate statement of its contents.
5. Paragraph 5 consists of Plaintiffs’ characterization of this lawsuit and
legal conclusions, to which no response is required; but to the extent a response is
deemed necessary, denied.
8. Defendants lack knowledge or information sufficient to form a belief as
to the truth of the allegations in Paragraph 8.
11. Paragraph 11 consists of Plaintiffs’ characterization of the Amended
Complaint, to which no response is required. To the extent that a response is required,
Defendants admit that Plaintiffs’ Amended Complaint purports to refer to Plaintiffs
Daza and Pope as the “Individual Plaintiffs.”
3

12. Paragraph 12 consists of Plaintiffs’ characterization of the Amended
Complaint, to which no response is required. To the extent that a response is required,
Defendants admit that Plaintiffs’ Amended Complaint purports to use the term
“Plaintiffs” to include Plaintiffs Daza and Pope and Plaintiff Health Freedom Defense
Fund.
13. Defendants admit that Joseph R. Biden, Jr., is President of the United
States. The remainder of this paragraph consists of Plaintiffs’ characterization of this
lawsuit, to which no response is required.
14. Paragraph 14 consists of Plaintiffs’ characterization of this lawsuit, to
15. Defendants admit that the CDC issued and is implementing the
Transportation Mask Order. Defendants further admit that the CDC is a component
of HHS.
16. Defendants admit that Xavier Becerra is the Secretary of Health and
Human Services. The remainder of this paragraph consists of Plaintiffs’
characterization of this lawsuit, to which no response is required.
17. Defendants admit that Rochelle Walensky is the Director of the CDC.
The remainder of this paragraph consists of Plaintiffs’ characterization of this lawsuit,
to which no response is required.
18. Defendants admit that Martin Cetron is Director of the CDC’s Division
of Global Migration and Quarantine. The remainder of this paragraph consists of
Plaintiffs’ characterization of this lawsuit, to which no response is required.

4

19. Paragraph 19 consists of legal conclusions regarding jurisdiction, to
20. Paragraph 20 consists of legal conclusions regarding venue, to which no
response is required.
21. Paragraph 21 consists of legal conclusions, to which no response is
required.
22. Admitted.
23. Paragraph 23 consists of Plaintiffs’ characterization of the Executive
Order, to which no response is required. To the extent that a response is deemed
required, Defendants admit that the Executive Order contains the quoted text, but
deny any characterization of the Executive Order, which speaks for itself, and
respectfully refer the Court to the Executive Order for a full and accurate statement of
its contents.
required, Defendants but deny any characterization of the Executive Order, which
speaks for itself, and respectfully refer the Court to the Executive Order for a full and
accurate statement of its contents.
25. Defendants admit that the CDC issued the Transportation Mask Order
on January 29, 2021, that the Transportation Mask Order was signed by Martin
Cetron, and that the Transportation Mask Order took effect at 11:59 p.m. on February
1, 2021. Defendants deny any remaining allegations in Paragraph 25.

5

27. Denied.
28. The first sentence of Paragraph 28 consists of Plaintiffs’ characterization
of the Transportation Mask Order, to which no response is required. To the extent
that a response is deemed required, Defendants deny any characterization of the
Transportation Mask Order, which speaks for itself, and respectfully refer the Court to
the Transportation Mask Order for a full and accurate statement of its contents. The
second sentence of Paragraph 28 consists of legal conclusions, to which no response is
required; but to the extent a response is deemed necessary, denied.
29. Denied.
required, Defendants admit that the Transportation Mask Order contains the quoted
6

text, but deny any characterization of the Transportation Mask Order, which speaks
for itself, and respectfully refer the Court to the Transportation Mask Order for a full
and accurate statement of its contents.
Order for a full and accurate statement of its contents. Defendants deny any remaining
allegations in Paragraph 32.
Order for a full and accurate statement of its contents. Defendants deny any remaining
allegations in Paragraph 33.
of the Transportation Mask Order, to which no response is required. To the extent a
response is deemed required, Defendants deny any characterization of the
Transportation Mask Order, which speaks for itself, and respectfully refer the Court to
the Transportation Mask Order for a full and accurate statement of its contents. As to
the second sentence of Paragraph 34, Defendants admit that a direct transcontinental
U.S. flight may last 5 hours or more, that travelers generally spend additional time in
7

airports during check-in, security screening, and luggage retrieval, and that
connections generally increase travel time. Defendants lack knowledge or information
sufficient to form a belief as to the truth of the remaining allegations in Paragraph 34.
35. The first sentence of Paragraph 35 consists of argument and legal
conclusions to which no response is required. As for the remainder of Paragraph 35
(and footnote 1), Defendants admit that the cited article contains the quoted material,
but deny any characterization of that article, which speaks for itself, and respectfully
refer the Court to that article for a full and accurate statement of its contents.
37. As to the first sentence of Paragraph 37 (and footnote 2), Defendants
deny any characterization of the cited material, which speaks for itself, and respectfully
refer the Court to that material for a full and accurate statement of its contents. As to
the second sentence of Paragraph 37 (and footnote 3), Defendants deny any
characterization of the cited material, which speaks for itself, and respectfully refer the
Court to the cited material for a full and accurate statement of its contents; Defendants
deny the remainder of the second sentence of Paragraph 37. Defendants deny the third
sentence of Paragraph 37.
8

38. Defendants deny the first sentence of Paragraph 38. As to the second
sentence of Paragraph 38 (and footnote 4), Defendants deny any characterization of
the cited webpage, which speaks for itself, and respectfully refer the Court to that
webpage for a full and accurate statement of its contents.
39. Defendants admit that the U.S. Food and Drug Administration’s April
24, 2020 Emergency Use Authorization, attached by the Plaintiffs as Exhibit C to the
Amended Complaint, contains the quoted text, but deny any characterization of that
document, which speaks for itself, and respectfully refer the Court to that document
for a full and accurate statement of its contents.
40. As to the first sentence of Paragraph 40 (and footnote 6), Defendants
deny any characterization of the cited material, which speaks for itself, and
respectfully refer the Court to that material for a full and accurate statement of its
contents; Defendants deny any remaining allegations in the first sentence of
Paragraph 40. The second sentence of Paragraph 40 consists of argument, to which
no response is required; but to the extent a response is deemed required, denied. The
third sentence of Paragraph 40 consists of Plaintiffs’ characterization of the
Transportation Mask Order, to which no response is required. To the extent that a
Transportation Mask Order, which speaks for itself, and respectfully refer the Court
to the Transportation Mask Order for a full and accurate statement of its contents.
41. Defendants deny the first sentence of Paragraph 41. As to the second
9

sentence of Paragraph 41 (and footnote 7), Defendants deny any characterization of
the cited material, which speaks for itself, and respectfully refer the Court to that
material for a full and accurate statement of its contents; Defendants deny the
remainder of the second sentence of Paragraph 41.
42. Defendants deny any characterization of the material cited in Paragraph
42 (and footnote 8), which speaks for itself, and respectfully refer the Court to that
material for a full and accurate statement of its contents.
43. Defendants admit that the material cited in Paragraph 43 (and footnote
9) contains the quoted text, but deny any characterization of that material, which
speaks for itself, and respectfully refer the Court to that material for a full and accurate
statement of its contents.
44. Defendants deny any characterization of the material cited in
Paragraph 44 (and footnote 10), which speaks for itself, and respectfully refer the
Court to that material for a full and accurate statement of its contents; Defendants
deny any remaining allegations in Paragraph 44.
45. Denied.
46. Denied.
to the truth of the allegations in the first sentence of Paragraph 47. As to the second
sentence of Paragraph 47, the declarations referred to by Plaintiffs, and attached as
Exhibit D to the Amended Complaint, speak for themselves, and Defendants
10

respectfully refer the Court to those declarations for a full and accurate statement of
their contents; Defendants lack knowledge or information sufficient to form a belief
as to the truth of any remaining allegations in the second sentence of Paragraph 47.
The third sentence of Paragraph 47 consists of legal conclusions, to which no
response is required; but to the extent a response is deemed required, denied.
51. As to the first and third sentences of Paragraph 51, Defendants admit
that, as of the date of this Answer, there have been no enforcement actions brought
by the Federal Government against aircraft passengers solely as a result of violations
of the CDC’s Transportation Mask Order. As to the second sentence of Paragraph
51, Defendants admit that, among other government enforcement actions relating to
violations of other statutory and/or regulatory requirements (including actions by the
Transportation Security Administration and Department of Transportation),
enforcement action has been taken and is being taken by the Federal Aviation
Administration, pursuant to 49 U.S.C. § 46318 and 14 C.F.R. §§ 91.11, 121.580,
125.328, 135.210, arising out of incidents relating to passengers’ failure to wear a
11

mask on public transportation conveyances or at public transportation hubs.
52. As to the first sentence of Paragraph 52, Defendants admit that, as of
the date of this Answer, there have been no enforcement actions brought by the
Federal Government against aircraft passengers solely as a result of violations of the
CDC’s Transportation Mask Order, but deny the remainder of that sentence. The
second sentence of Paragraph 52 consists of Plaintiffs’ characterization of the
response is deemed required, Defendants admit that the Transportation Mask Order
contains the quoted text, but deny any characterization of the Transportation Mask
Order, which speaks for itself, and respectfully refer the Court to the Transportation
Mask Order for a full and accurate statement of its contents. Defendants lack
knowledge or information sufficient to form a belief as to the truth of the remaining
allegations in Paragraph 52 (and footnote 11).
12

58. Defendants repeat and incorporate by reference their responses to
Paragraph 1 through 57 of the Amended Complaint, as if fully set forth herein.
59. Paragraph 59 consists of Plaintiffs’ characterization of a statute, to
which no response is required; but to the extent a response is deemed necessary,
Defendants admit that the cited statute contains the quoted text, but deny any
characterization of that statute, which speaks for itself, and respectfully refer the
Court to that statute for a full and accurate statement of its contents.
60. Paragraph 60 consists of Plaintiffs’ characterization of the
to the Transportation Mask Order for a full and accurate statement of its contents.
61. Denied.
62. Paragraph 62 consists of argument and legal conclusions, to which no
response is required; but to the extent a response is deemed necessary, denied.
of a statute and regulation, to which no response is required. To the extent a response
is deemed necessary, Defendants admit that the cited regulation contains the quoted
text, but deny any characterization of those provisions, which speak for themselves,
13

and respectfully refer the Court to those provisions for a full and accurate statement
of their contents. Defendants deny the second sentence of Paragraph 63. The third
sentence of Paragraph 63 consists of Plaintiffs’ characterization of, and legal
conclusions regarding, the Transportation Mask Order, to which no response is
required. To the extent that a response is deemed required, Defendants admit that
the Transportation Mask Order contains the quoted text, but deny any
characterization of the Transportation Mask Order, which speaks for itself, and
respectfully refer the Court to the Transportation Mask Order for a full and accurate
64. Denied.
65. The first and last sentences of Paragraph 65 are denied. The remainder
of Paragraph 65 consists of argument and legal conclusions, to which no response is
required; but to the extent a response is deemed necessary, Defendants admit that the
cited authorities contain the quoted text, but deny any characterization of the cited
authorities, which speak for themselves, and respectfully refer the Court to those
authorities for a full and complete statement of their contents.
conclusions, to which no response is required; but to the extent a response is deemed
necessary, denied. The remainder of Paragraph 66 consists of Plaintiffs’
characterization of a regulation, to which no response is required; but to the extent a
response is deemed necessary, Defendants admit that the cited regulation contains
14

the quoted text, but deny any characterization of that regulation, which speaks for
itself, and respectfully refer the Court to the cited regulation for a complete and
required; but to the extent a response is deemed necessary, denied except to admit
that the cited regulations contain the quoted text. Defendants respectfully refer the
Court to those regulations for a full and accurate statement of their contents.
of a regulation, to which no response is required; but to the extent a response is
deemed necessary, denied. Defendants respectfully refer the Court to the cited
regulation for a full and accurate statement of its contents. The second and third
sentences of Paragraph 68 consist of legal conclusions, to which no response is
of the Transportation Mask Order, to which no response is required. To the extent
that a response is deemed required, Defendants deny any characterization of the
15

to the Transportation Mask Order for a full and accurate statement of its contents,
and deny the allegation the Transportation Mask Order did not cite the “good cause”
exception, see 86 Fed. Reg. at 8030 (“In the event that a court determines this Order
qualifies as a rule under the APA, notice and comment and a delay in effective date
are not required because there is good cause to dispense with prior public notice and
comment and the opportunity to comment on this Order and the delay in effective
date.”). With respect to the second sentence, Defendants admit that the
Transportation Mask Order was issued without notice and comment.
Defendants separately aver that the Transportation Mask Order explicitly invoked
the “good cause” exception. See 86 Fed. Reg. at 8030 (“In the event that a court
determines this Order qualifies as a rule under the APA, notice and comment and a
delay in effective date are not required because there is good cause to dispense with
prior public notice and comment and the opportunity to comment on this Order and
the delay in effective date.”)
necessary, denied. As to the second sentence of Paragraph 74, Defendants admit that
16

Defendant HHS first declared in January 2020 that a public health emergency existed
as a result of COVID-19; Defendants further admit that the Transportation Mask
Order was issued on January 29, 2021. Defendants deny any remaining allegations
in the second sentence of Paragraph 74. Defendants deny the third sentence of
Paragraph 74. The fourth sentence of Paragraph 74 consists of argument and legal
necessary, denied.
76. Paragraph 76 consists of Plaintiffs’ characterization of a statute, to
Defendants admit that the cited statute contains the quoted text, but deny any
characterization of that statute, which speaks for itself, and respectfully refer the
Court to that statute for a full and accurate statement of its contents.
of a judicial decision, to which no response is required. To the extent a response is
deemed necessary, Defendants admit that the cited decision contains the quoted text,
but deny any characterization of that decision, which speaks for itself, and
respectfully refer the Court to that decision for a full and complete statement of its
17

contents. The second sentence of Paragraph 78 consists of argument and legal
necessary, denied.
response is deemed required, Defendants admit that the Transportation Mask Order
contains the quoted text, but deny any characterization of the Transportation Mask
Order, which speaks for itself, and respectfully refer the Court to the Transportation
Mask Order for a full and accurate statement of its contents, and deny any remaining
allegations.
to the Transportation Mask Order for a full and accurate statement of its contents,
and deny any remaining allegations.
necessary, denied. The second sentence of Paragraph 81 consists of Plaintiffs’
characterization of regulations, to which no response is required; but to the extent a
response is deemed necessary, denied except to admit that the cited regulations
18

contain the quoted phrase. Defendants respectfully refer the Court to the cited
regulations for a full and accurate statement of their contents.
83. Paragraph 83 consists of Plaintiffs’ characterization of Article I, Section
1 of the U.S. Constitution, to which no response is required; but to the extent a
response is deemed necessary, Defendants admit that Article I, Section 1 of the U.S.
Constitution contains the quoted text, but deny any characterization of that
provision, which speaks for itself, and respectfully refer the Court to that provision
for a full and accurate statement of its contents.
of the Executive Order, to which no response is required. To the extent that a
response is deemed required, Defendants deny any characterization of the Executive
Order, which speaks for itself, and respectfully refer the Court to the Executive Order
for a full and accurate statement of its contents, and deny the remaining allegations
19

in the first sentence of Paragraph 87. Defendants deny the second sentence of
Paragraph 87. As to the third sentence of Paragraph 87, Defendants admit that the
COVID-19 pandemic has been a declared public health emergency in the United
States since January 2020, and deny any remaining allegations.
88. Defendants admit that Congress did not enact legislation requiring the
wearing of masks on public conveyances during the year that preceded January 21,
2021. The remainder of Paragraph 88 consists of argument and legal conclusions, to
denied.
necessary, denied. Defendants lack knowledge or information sufficient to form a
belief as to the truth of the allegations in the second sentence of Paragraph 89.
required, Defendants deny any characterization of the Executive Order, which speaks
for itself, and respectfully refer the Court to the Executive Order for a full and accurate
91. Defendants repeat and incorporate by reference its responses to
92. Paragraph 92 consists of Plaintiffs’ characterization of the Tenth
20

Amendment to the U.S. Constitution, to which no response is required; but to the
extent a response is deemed necessary, Defendants admit the Tenth Amendment
contains the quoted text, but deny any characterization of that provision, which
speaks for itself, and respectfully refer the Court to that provision for a complete and
required, Defendants deny any characterization of the Executive Order, which speaks
for itself, and respectfully refer the Court to the Executive Order for a full and accurate
statement of its contents, and deny the remaining allegations.
The remainder of the Amended Complaint sets forth Plaintiffs’ prayer for
relief, to which no answer is required, but to the extent a response is deemed
necessary, denied.
Defendants hereby deny all allegations in Plaintiffs’ Amended Complaint not
expressly admitted or denied.
21

Dated: January 6, 2022 Respectfully submitted,
BRIAN M. BOYNTON
Acting Assistant Attorney General
KARIN HOPPMANN
Acting United States Attorney
ERIC B. BECKENHAUER
Assistant Branch Director
By: /s/ Andrew F. Freidah

STEPHEN M. PEZZI
ANDREW F. FREIDAH
Trial Attorneys
United States Department of Justice
Civil Division
Federal Programs Branch
1100 L Street NW
Washington, DC 20005
Telephone: 202-305-0879
Email: [email protected]
Counsel for Defendants
22

Answer To Amended Complaint Health Freedom Defense Fund, Inc. Et Al v. Biden Et Al

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Case 8:21-cv-01693-KKM-AEP Document 41 Filed 01/06/22 Page 1 of 22 PageID 674

UNITED STATES DISTRICT COURT

HEALTH FREEDOM DEFENSE

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

JOSEPH R. BIDEN, JR., in his official

ANSWER TO AMENDED COMPLAINT

Defendants (Joseph R. Biden, Jr., in his official capacity as President of the

States of America) hereby answer Plaintiffs’ Amended Complaint as follows:

Defendants answer the individually numbered paragraphs of the Amended

Complaint, using the same numbering contained in the Amended Complaint, as

1. Paragraph 1 consists of Plaintiffs’ characterization of this lawsuit, to

which no response is required.

2. Paragraph 2 consists of Plaintiffs’ characterization of Defendant Joseph

Domestic and International Travel (the “Executive Order”), to which no response is

3. Defendants admit that, on January 29, 2021, Defendant CDC issued a

Conveyances and at Transportation Hubs” (the “Transportation Mask Order”)

4. Paragraph 4 consists of Plaintiffs’ characterization of the Transportation

required, Defendants deny any characterization of the Transportation Mask Order,

Order for a full and accurate statement of its contents.

5. Paragraph 5 consists of Plaintiffs’ characterization of this lawsuit and

legal conclusions, to which no response is required; but to the extent a response is

deemed necessary, denied.

6. Paragraph 6 consists of Plaintiffs’ characterization of this lawsuit and

legal conclusions, to which no response is required; but to the extent a response is

deemed necessary, denied.

7. Paragraph 7 consists of Plaintiffs’ characterization of this lawsuit and

legal conclusions, to which no response is required; but to the extent a response is

deemed necessary, denied.

8. Defendants lack knowledge or information sufficient to form a belief as

to the truth of the allegations in Paragraph 8.

9. Defendants lack knowledge or information sufficient to form a belief as

to the truth of the allegations in Paragraph 9.

10. Defendants lack knowledge or information sufficient to form a belief as

to the truth of the allegations in Paragraph 10.

11. Paragraph 11 consists of Plaintiffs’ characterization of the Amended

Complaint, to which no response is required. To the extent that a response is required,

Defendants admit that Plaintiffs’ Amended Complaint purports to refer to Plaintiffs

Daza and Pope as the “Individual Plaintiffs.”

12. Paragraph 12 consists of Plaintiffs’ characterization of the Amended

Complaint, to which no response is required. To the extent that a response is required,

States. The remainder of this paragraph consists of Plaintiffs’ characterization of this

lawsuit, to which no response is required.

14. Paragraph 14 consists of Plaintiffs’ characterization of this lawsuit, to

which no response is required.

Human Services. The remainder of this paragraph consists of Plaintiffs’

characterization of this lawsuit, to which no response is required.

The remainder of this paragraph consists of Plaintiffs’ characterization of this lawsuit,

to which no response is required.

of Global Migration and Quarantine. The remainder of this paragraph consists of

Plaintiffs’ characterization of this lawsuit, to which no response is required.

19. Paragraph 19 consists of legal conclusions regarding jurisdiction, to

which no response is required.

20. Paragraph 20 consists of legal conclusions regarding venue, to which no

21. Paragraph 21 consists of legal conclusions, to which no response is

23. Paragraph 23 consists of Plaintiffs’ characterization of the Executive

Order, to which no response is required. To the extent that a response is deemed

24. Paragraph 24 consists of Plaintiffs’ characterization of the Executive

Order, to which no response is required. To the extent that a response is deemed

accurate statement of its contents.

1, 2021. Defendants deny any remaining allegations in Paragraph 25.

26. Paragraph 26 consists of Plaintiffs’ characterization of the Transportation

required, Defendants deny any characterization of the Transportation Mask Order,