A federal judge in Florida denied Saturday, the Centers for Disease Control & Prevention’s effort to dismiss a legal challenge to the International Traveler Testing Requirement, which demands airlines flying to the United States refuse to board to any passenger – regardless of vaccination status – who doesn’t present a negative COVID-19 test taken within one day of departure.
The decision by U.S. District Judge Paul Byron is a win for fully vaccinated globetrotter and travel blogger Lucas Wall, 44, of Washington, D.C., who wants the requirement vacated because it’s burdensome, expensive, and not authorized by Congress.
Wall, who has visited 134 countries, hasn’t been abroad since March 2020 because of onerous COVID-19 restrictions such as the ITTR and Federal Transportation Mask Mandate. His case appears to be the only one in the nation challenging the ITTR as unlawful.
Wall filed suit against CDC on June 7 challenging both the testing requirement and mask mandate. He had a ticket to visit his brother and sister-in-law in Germany in late June, which he couldn’t use because of the ITTR and FTMM. At that time, the first version of the ITTR, which took effect on Jan. 26 at the direction of newly inaugurated President Biden. It required COVID-19 testing within three days of departure for the United States.
CDC argued Wall’s challenge is moot because it put into place a second version of the ITTR effective Nov. 8, which required the unvaccinated to submit a negative coronavirus test within one day of departure. Then a third version requiring everyone to show airlines a negative test within one day of the flight took effect Dec. 6. CDC also contended Wall didn’t suffer any legal injury as a result of the ITTR.
Byron rejected both of CDC’s arguments, allowing Wall’s claims seeking to strike down the testing requirement to move forward. Notably the ITTR only applies to air travelers and not those crossing into America by land or sea.
“The lost opportunity to go to Germany, alone, constitutes a concrete, particularized, actual injury in fact,” Byron ruled, citing Supreme Court precedent that there is a constitutional right to international travel. “The record shows that Plaintiff has rescheduled his flight to Germany several times over the course of this litigation, and, recently, Plaintiff notified the Court of his upcoming flight to Germany for December 20, 2021. Thus, the record demonstrates that Plaintiff also possesses a concrete, particularized, imminent injury in fact.”
The order also found the three versions of the ITTR are the same regulatory scheme, thus Wall’s challenge remains ripe.
The three orders still involve “the imposition of a COVID-19 testing requirement on international travelers seeking entry into the United States,” Byron wrote. “And because these amendments to the ITTR do not alter the substance of the mandate, the fact that the CDC predicates each new amendment to the ITTR on its augmented COVID-19 research is also inapposite. Fundamentally, the CDC’s motivation for enacting the ITTR and each amendment thereto remain constant: the goal of eradicating, or least quelling the spread of, COVID-19.”
Byron denied CDC’s motion to dismiss and instead ordered Wall to file a shorter complaint by Jan. 3. Wall said he intends to do so within a couple days.
“Today’s decision is disappointing in that Judge Byron did not reach the merits of whether CDC has violated the law and the Constitution by mandating virus testing for passengers flying to the United States, a power Congress has never given it,” Wall said. “I’m extremely disappointed to again be denied the right to visit my family who reside in Germany, meaning I will miss the winter holidays with my brother and his wife.”
Wall said the newest ITTR, requiring all flyers to present a negative COVID-19 test within a day of departure, has caused chaos as many countries don’t have reliable coronavirus testing that can guarantee results within a day. This has led to countless passengers missing their flights, being stranded abroad, and having to get tested again every day until they can finally obtain a rapid result that is accepted by airlines per CDC guidelines.
Byron on Saturday also denied CDC’s motion to dismiss Wall’s claims that the mask mandate is illegal and unconstitutional.
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