Bush v. Walensky

Background

William David Bush challenged a Centers for Disease Control and Prevention order requiring airline or other aircraft passengers arriving in the United States from foreign countries to provide a negative COVID-19 test result or a document showing recovery from COVID-19. The order became effective on January 26, 2021, and was issued under Section 361 of the Public Health Service Act, 42 U.S.C. § 264.

Magistrate Judge Joseph Spero granted Bush’s application to proceed without paying filing fees and screened the complaint under 28 U.S.C. § 1915(e)(2)(B). That screening law requires dismissal of claims that are frivolous or malicious, fail to state a claim for relief, or seek money from a defendant who is immune from such relief. Bush proceeded without a lawyer, so the court read his pleadings liberally.

Claims and Analysis

Bush asserted claims under the Administrative Procedure Act, arguing that the CDC order was unlawful, arbitrary, or inconsistent with 42 C.F.R. § 71.11. The court adopted Magistrate Judge Spero’s conclusion that the order was lawfully issued under Section 361 and lawfully implemented under 42 C.F.R. §§ 71.20 and 71.31(b). The court also agreed that the airline-industry application, timing, and relationship to the “bill of health” regulation did not support an arbitrary-or-capricious claim.

Bush also claimed that the order violated Article I, Section 1 of the Constitution. The court held that this claim failed because Section 361 authorized the order. The court rejected Bush’s additional arguments concerning testing procedures, approval by the Secretary of Health and Human Services, and 42 C.F.R. § 71.40(f). It explained that Section 71.40(f) concerns prohibiting entry by certain people who are not U.S. citizens, U.S. nationals, or lawful permanent residents, while Section 71.20 authorizes public-health prevention measures at U.S. ports of entry or other locations regardless of citizenship, residency, or country of origin.

Disposition

The court found Bush’s objections largely repetitive of arguments already rejected in the report and recommendation. Judge Yvonne Gonzalez Rogers adopted Magistrate Judge Spero’s report and recommendation in every respect and dismissed the case with prejudice for failure to state a claim. The order terminated the case, terminated Docket Number 6, and directed the clerk to close the case.