Seklecki v. Centers for Disease Control & Prevention

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

___________________________________

)

MICHAEL SEKLECKI, )

)

Plaintiff, )

) Civil Action

v. ) No. 22-10155-PBS

)

CENTER FOR DISEASE CONTROL & )

PREVENTION, et al., )

)

Defendants. )

___________________________________)

MEMORANDUM AND ORDER

October 12, 2022

Saris, D.J.

INTRODUCTION

Plaintiff Michael Seklecki, on behalf of himself and his

minor child, M.S., brings this multi-count action against

American Airlines and Southwest Airlines (the “Airline

Defendants”) alleging that their requirement that passengers

wear masks during the COVID-19 pandemic violated numerous state,

federal, and international laws. See Dkt. 1 at 3.1 The Airline

1 The first eleven counts are against the Centers for Disease Control and

Prevention (“CDC”) and United States Department of Health and Human Services

(“HHS”). Here, the Court only addresses the counts against the Airline

Defendants: Counts 12 and 13, alleging conspiracy to interfere with the

civil rights of the disabled; Count 14, alleging a violation of the

Rehabilitation Act; Counts 15 and 17–24, alleging violations of the

Rehabilitation Act and Air Carrier Access Act; Count 16, alleging violation

of the Air Carrier Access Act; Count 25, alleging a breach of contract; Count

26, alleging reckless endangerment; Count 27, alleging the practice of

medicine without a license; Count 28, alleging invasion of privacy; Count 29,

alleging deceptive and misleading trade practices; Count 30, alleging

Defendants have moved to dismiss counts 12 through 33 of the

Complaint under Federal Rule of Civil Procedure 12(b)(6) for

failure to state a claim upon which relief can be granted.

After hearing, the Court ALLOWS the Airline Defendants’

motion.

BACKGROUND

The pro se Complaint alleges the following facts. The Court

draws all reasonable inferences in favor of Plaintiff.

I. The Federal Mask Mandate

On January 21, 2021, President Biden issued an Executive

Order titled “COVID-19 Safety in Domestic and International

Travel.” Exec. Order No. 13998, 86 Fed. Reg. 7205 (Jan. 26,

2021). Following the Executive Order, the CDC and HHS issued the

Federal Transportation Mask Mandate (“FTMM”). Specifically, the

CDC issued an order, “Requirement for Persons to Wear Masks

While on Conveyances and at Transportation Hubs.” 86 Fed. Reg.

8025 (Feb. 3, 2021). This order mandated that persons wear masks

while on public transportation conveyances like airplanes, but

allowed exemptions for children under the age of two and persons

with disabilities who cannot safely wear a mask.

fraudulent misrepresentation; Count 31, alleging infringement of the

constitutional right to travel; Count 32, alleging violation of the

International Covenant on Civil and Political Rights; and Count 33, alleging

a violation of the Convention on International Civil Aviation.

II. The Plaintiff and His Son

Seklecki resides with M.S. in Sanford, Florida. They fly to

Boston, Massachusetts frequently because M.S. requires

specialized medical care at Boston Children’s Hospital. Since

about June 2021, Seklecki has had to fly with M.S. to Boston one

to two times per month for critical medical care. Seklecki

alleges that masking gives him a feeling of panic and breathing

difficulties because of his Generalized Anxiety Disorder, and

M.S. cannot tolerate a mask because of his Autism Spectrum

Disorder. When Seklecki attempts to put a mask on his son’s

face, M.S. refuses and yells that he is scared, cannot breath,

or that he does not like the mask. M.S.’s doctor corroborated

that M.S. could not medically tolerate a mask.

Because of the COVID-19 pandemic, the airlines required

passengers to wear masks while on flights and implemented

various procedures governing requested exemptions from the mask

requirement. Seklecki has had difficulty navigating these

procedures, particularly as they relate to the trips to Boston

for M.S.’s medical treatment. He has had to cancel flights with

Southwest and American because of their exemption policies. For

example, Seklecki and M.S. had tickets booked on Southwest to

fly from Orlando, Florida to Boston in October 2021. After

booking the tickets, Seklecki called Southwest’s customer

service center to tell airline staff that he and M.S. had

medical conditions that prevented them from wearing masks. The

Southwest agent told him that if they did not submit a form at

least seven days in advance with a doctor’s note, they could be

refused travel. The customer service representative told

Seklecki that there were no guarantees that the corporate office

would approve their exemptions, even if they had a physician’s

note. Because of this, Seklecki cancelled his tickets with

Southwest and received credits.

Seklecki also booked a ticket with American to fly from

Orlando to Phoenix, Arizona on November 12, 2021. He submitted a

request for mask exemptions to American. On November 10, he

received a call from the American Airlines Disability Desk

saying they could not process his mask exemption because it had

to be submitted at least 72 hours in advance of a flight. The

American employee said that she would email Seklecki information

about American’s mask policy, adding that a doctor’s note was

required for an exemption. He received the list of requirements

to obtain a mask waiver on November 10. Plaintiff had to cancel

this flight because his mask exemption was denied.

STANDARD OF REVIEW

To survive a motion to dismiss for failure to state a

claim, “a complaint must contain sufficient factual matter . . .

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)). Two basic

principles guide the court’s analysis. “First, the tenet that a

court must accept as true all of the allegations contained in a

complaint is inapplicable to legal conclusions.” Id. “Second,

only a complaint that states a plausible claim for relief

survives a motion to dismiss.” Id. at 679. A claim is facially

plausible if the factual content “allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Id. at 678.

A pro se complaint “is to be liberally construed” and

should “be held to less stringent standards than formal

pleadings drafted by lawyers.” Estelle v. Gamble, 429 U.S. 97,

106 (1976) (internal citation and quotation marks omitted). At

the same time, “[t]he right of self-representation is not ‘a

license not to comply with relevant rules of procedural and

substantive law.’” Andrews v. Bechtel Power Corp., 780 F.2d

124, 140 (1st Cir. 1985) (quoting Faretta v. Cal., 422 U.S. 806,

835 n.46 (1975)).

DISCUSSION

I. Civil Conspiracy

Plaintiff claims that the Airline Defendants and unnamed

airline employees are liable under 42 U.S.C. § 1985(3) for

“conspir[ing] to deprive disabled Americans . . . of [their]

civil rights by adopting policies in Summer 2020 that banned

anyone medically unable to wear a face mask from using the

nation’s air-transportation” and that unnamed airline employees

are liable under 42 U.S.C. § 1986 because they “were aware of

the conspiracy . . . but did nothing to stop it.” Dkt. 1 at 93-

95.

Federal law prohibits two or more persons from conspiring

to deprive “any person or class of persons of the equal

protection of the laws, or of equal privileges and immunities

under the laws.” 42 U.S.C. § 1985(3). A claimant under section

1985(3) must establish “some racial, or perhaps otherwise class-

based, invidiously discriminatory animus behind the

conspirators’ actions.” Griffin v. Breckenridge, 403 U.S. 88,

102 (1971). An actionable claim under section 1985(3) must

allege the existence of:

(1) a conspiracy; (2) a conspiratorial purpose to

deprive a person or class of persons, directly or

indirectly, of the equal protection of the laws or of

equal privileges and immunities under the laws; (3) an

overt act in furtherance of the conspiracy; and (4)

either (a) an injury to person or property, or (b) a

deprivation of a constitutionally protected right or

privilege.

Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996) (citing

Griffin, 403 U.S. at 102).

42 U.S.C. § 1986 provides that every person with knowledge

of a conspiracy under section 1985, but who fails to prevent the

conspiracy, is liable to the injured party. “A prerequisite for

a claim under section 1986 is the existence of a conspiracy

actionable under section 1985.” Lowden v. William M. Mercer,

Inc., 903 F. Supp. 212, 218 (D. Mass. 1995) (cleaned up).

A. Section 1985(3)

The Airline Defendants argue that Plaintiff cannot press

his disability-based discrimination claims under section 1985(3)

because the Air Carrier Access Act of 1986 (“ACCA”), 49 U.S.C.

§ 41705, already provides administrative regulations and

procedures to respond to complaints against airlines for

disability discrimination. The Court agrees.

The ACAA provides,

[A]n air carrier . . . may not discriminate against an

otherwise qualified individual on the following grounds:

(1) the individual has a physical or mental impairment

that substantially limits one or more major life

activities; (2) the individual has a record of such an

impairment; (3) the individual is regarded as having

such an impairment.

49 U.S.C. § 41705(a).

In an analogous context, the Supreme Court has held that

Ҥ 1985(3) may not be invoked to redress violations of Title

VII” because if a plaintiff were allowed to assert a Title VII

violation through section 1985(3), then he could avoid the

“detailed and specific provisions of the law” and “bypass the

administrative process, which plays such a crucial role in the

scheme established by Congress in Title VII.” Great Am. Fed.

Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 375-78 (1979). Thus,

when a statute creates a right and provides a remedial

structure, a plaintiff cannot use section 1985(3) to vindicate

the same right. See id.

In D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 43-

44 (1st Cir. 2012), the First Circuit held that plaintiffs could

not assert Rehabilitation Act and Americans with Disabilities

Act claims through section 1985(3), explaining that section 1985

does not create substantive rights but provides remedies for

violations of rights created by other sources of law. See also

Sauter v. State of Nev., No. 97-15795, 1998 WL 196630, at *1

(9th Cir. 1998) (conspiracy to violate ADA and ADEA rights are

not cognizable under section 1985 because the statutes have

their own remedial structure); D’Amato v. Wis. Gas Co., 760 F.2d

1474, 1487 (7th Cir. 1985) (Section 503 of the Rehabilitation

Act “provides its own administrative remedy” and an action under

section 1985(3) “would avoid entirely the administrative

procedures provided in Section 503(b) and its accompanying

regulations”); Hagenah v. Berkshire Cnty. ARC, Inc., No. 3:16-

CV-30141-KAR, 2018 WL 907407, at *6 (D. Mass. Feb. 15, 2008) (a

plaintiff “cannot assert a cause of action under § 1985(3) to

redress violations of Title VII”).

Because a statutory scheme and administrative remedies are

in place for the ACAA, Seklecki cannot pursue claims for

disability discrimination under section 1985(3). Therefore,

Plaintiff’s conspiracy claims must be dismissed.

B. Plaintiff Does Not Allege the Existence of a Conspiracy

Alternatively, the Court agrees with the Airline Defendants

that Counts 12 and 13 should be dismissed because Seklecki fails

to plead specific allegations of the existence of a conspiracy.

A claim of civil rights conspiracy “must plausibly allege

facts indicating an agreement among the conspirators to deprive

the plaintiff of h[is] civil rights.” Parker v. Landry, 935 F.3d

9, 18 (1st Cir. 2019). Further, “[v]ague and conclusory

allegations about persons working together, with scant specifics

as to the nature of their joint effort or the formation of their

agreement, will not suffice to defeat a motion to dismiss.”

Alston v. Spiegel, 988 F.3d 564, 578 (1st Cir. 2021). If direct

evidence is not available, “the plaintiff must plead plausible

factual allegations sufficient to support a reasonable inference

that such an agreement was made.” Id. at 578 (quoting Parker,

935 F.3d at 18).

Here, the Complaint fails to allege plausible facts to

support the allegation of a conspiracy under section 1985(3).

The Complaint states that the Airline Defendants have conspired

to interfere with the civil rights of disabled passengers, which

Plaintiff expects to prove through discovery.

The Complaint relies on the fact that multiple airlines

mandated that face masks be worn on flights and that these

airlines later strengthened their mask policies. Plaintiff

argues that because these policies were implemented around the

same time, in July and August 2020, they “demonstrat[e] both

intracorporate and intercorporate conspiracies to interfere with

civil rights by prohibiting all disabled Americans who can’t

obstruct [their] breathing from flying.” Dkt. 1 at 58.

Not all parallel conduct, though, suggests an unlawful

agreement. See Twombly, 550 U.S. at 556-57 (“Without more,

parallel conduct does not suggest conspiracy”). See also

Andreadakis v. Ctr. for Disease Control & Prevention, No. 22-cv-

52(DJN), 2022 WL 2674194, at *9 (E.D. Va. July 11, 2022).

In light of COVID-19 pandemic and evolving recommendations

on masking in response to the pandemic, there is no plausible

allegation that the Airline Defendants were conspiring to harm

disabled passengers by imposing a mask requirement. Counts 12

and 13 of the Complaint are dismissed.

II. The Airline Deregulation Act Preempts Plaintiff’s State

Law Claims

The Airline Defendants argue that Plaintiff’s state-law

claims for breach of contract, invasion of privacy, deceptive

and misleading trade practices, and fraudulent misrepresentation

are preempted by the Airline Deregulation Act.

The Airline Deregulation Act (“ADA”) prohibits states from

enforcing any law “related to a price, route, or service of an

air carrier.” 49 U.S.C. § 41713(b)(1). The Supreme Court

explained that this preemption provision of the ADA should be

construed broadly and that claims having a “connection with, or

reference to,” an airline’s prices, routes, or services are

preempted. Morales v. Trans World Airlines, Inc., 504 U.S. 374,

384 (1992). Thus, “enforcement of state laws against airlines on

the basis of how particular services are provided is preempted

unless it affects those services in ‘too tenuous, remote, or

peripheral a manner.’” Gill v. JetBlue Airways Corp., 836 F.

Supp. 2d 33, 39 (D. Mass. 2011) (quoting Morales, 504 U.S. at

390).

A. Plaintiff’s Breach of Contract Claim

The Supreme Court has recognized a narrow exception to

preemption under the ADA for breach of contract claims based on

the parties’ bargain. See Am. Airlines v. Wolens, 513 U.S. 219,

223 (1995). In other words, breach of contract claims “seeking

recovery solely for [an] airline’s alleged breach of its own,

self-imposed undertakings” are not preempted by the ADA. Id. at

228. However, a breach of contract claim against an airline can

be preempted if “it seeks to enlarge the contractual obligations

that the parties voluntarily adopt[ed].” Nw., Inc. v. Ginsberg,

572 U.S. 273, 276 (2014).

Seklecki contends that because the contract of carriage

contains no mention of a requirement that passengers need to

wear a mask or face covering, the Airline Defendants have

breached the contract by imposing the requirement. Under Wolens,

Seklecki can bring a breach of contract claim for violations of

the airlines’ own rules, policies, or other self-imposed

undertakings regarding mask exemptions that the airlines

violated. Here, however, Seklecki launches a broad attack on

any mask mandate, even though required by federal law, without

identifying any self-imposed undertaking to refrain from

requiring masks. Accordingly, Count 25 of the Complaint must be

dismissed.2

B. Plaintiff’s Invasion of Privacy Claim

Seklecki brings an invasion of privacy claim against the

Airline Defendants for “forcing a disabled passenger to disclose

his/her medical conditions as a condition of transportation.”

Dkt. 1 at 111. The Airline Defendants argue that Seklecki’s

invasion of privacy claim is preempted by ADA because it relates

to an air carrier’s service. The Court agrees.

2 Plaintiff moved for an injunction based in part on an allegation that the

airlines failed to follow their own rules when declining to grant a mask

exemption. However, the claim in the Complaint was a facial attack on the

mask mandate.

Courts have held that state-law claims relating to an air

carrier “service,” such as ticketing and boarding procedures,

are pre-empted. Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336

(5th Cir. 1995) (en banc). See also Smith v. Comair, Inc., 134

F.3d 254, 259 (4th Cir. 1998). District Courts in the First

Circuit have adopted this approach. See Gill v. JetBlue Airways

Corp., 836 F. Supp. 2d 33, 40 (D. Mass. 2011) (“the term

‘service’ encompasses boarding procedures and assistance”);

DeTerra v. Am. W. Airlines, Inc., 226 F. Supp. 2d 274, 277 (D.

Mass. 2002); Chukwu v. Bd. of Dir. British Airways, 889 F. Supp.

12, 14 (D. Mass. 1995).

Seklecki argues that in requiring proof of medical

conditions to obtain an exemption from the mask mandate, the

airlines were invading his privacy. This claim relates to an

air carrier’s boarding procedures. Because the ADA preempts

enforcement of a state law relating to a service of an air

carrier, Count 28 of the complaint is pre-empted.

C. Plaintiff’s Deceptive and Misleading Trade Practices and

Fraudulent Misrepresentation Claims

Seklecki claims that the airlines have deceived and misled

their customers into believing that face coverings are good for

their health. He further contends that the airlines have falsely

represented that federal law requires passengers to wear face

masks and have not disclosed the health risks associated with

masks. The Airline Defendants argue that Seklecki’s deceptive

and misleading trade practices and fraudulent misrepresentation

claims are preempted by the ADA.

The Supreme Court, in Wolens, held that the ADA preempts

state consumer fraud and deceptive business practices claims,

explaining that:

In light of the full text of the preemption clause, and

of the ADA’s purpose to leave largely to the airlines

themselves, and not at all to States, the selection and

design of marketing mechanisms appropriate to the

furnishing of air transportation services, we conclude

that § 1305(a)(1) preempts plaintiffs’ claims under the

[Illinois] Consumer Fraud Act.

Wolens, 513 U.S. at 228. See also Wagman v. Fed. Express Corp.,

No. 94-1422, 1995 WL 81686, at *2 (4th Cir. Feb. 17, 1995)

(holding consumer fraud claims alleging misleading advertising

were preempted by the ADA).

Because requiring masks or face coverings on board relates

to the furnishing of an air carrier’s services, Plaintiff’s

claims of deceptive and misleading trade practices and

fraudulent misrepresentation are preempted by the ADA. Thus,

Counts 29 and 30 of the Complaint are dismissed.

D. Plaintiff’s Recklessness Claim

Plaintiff alleges that the Airline Defendants are liable

for recklessly endangering passengers by enforcing the federal

mask mandate. This claim is preempted as it related to services.

III. Plaintiff has no Private Right of Action Under the ACAA

Plaintiff alleges that the Airline Defendants have violated

the ACAA. The Airline Defendants argue that Plaintiff has no

right of action to pursue these claims in this Court.

The ACAA prohibits an air carrier from discriminating

against individuals based on a physical or mental impairment.

See 49 U.S.C. § 41705(a). Rather than filing a private action,

a passenger alleging disability discrimination in violation of

the ACAA may file a written complaint with the United States

Department of Transportation (“DOT”) against an airline. See 49

U.S.C. § 46101(a)(1). In Alexander v. Sandoval, the Supreme

Court held that “private rights of action to enforce federal law

must be created by Congress.” 532 U.S. 276, 286 (2001) (citing

Touche Ross & Co. v. Redington, 442 U.S. 560, 578 (1979)).

Courts look to the relevant statute to determine whether

Congress intended to create a private enforcement mechanism. See

Transamerica Mortg. Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11,

15–16 (1979).

Circuit Courts have held that the ACAA does not create a

private cause of action. See Segalman v. Sw. Airlines Co., 895

F.3d 1219, 1222-27 (9th Cir. 2018); Stokes v. Sw. Airlines, 887

F.3d 199, 202–03 (5th Cir. 2018); Lopez v. JetBlue Airways, 662

F.3d 593, 597 (2d Cir. 2011); Boswell v. Skywest Airlines, Inc.,

361 F.3d 1263, 1270 (10th Cir. 2004); Love v. Delta Air Lines,

310 F.3d 1347, 1354 (11th Cir. 2002).

Courts in this district have also recognized that the ACAA

does not provide a private right of action. See Gill, 836 F.

Supp. 2d at 48 (“the ACAA manifests no congressional intent to

create a private right of action in a federal district court”);

Deterra v. Am. W. Airlines, Inc., 226 F. Supp. 2d 298, 309 (D.

Mass. 2002).

Seklecki has already filed one discrimination complaint

against American and two complaints against Southwest with the

DOT. Despite this administrative remedy, Seklecki contends that

he should have a private right of action because the DOT has

failed to enforce the ACAA. Under the ACAA, that argument

belongs in a petition to the appropriate court of appeals, not

in this Court. See 49 U.S.C. § 46110(a). See also Wall v. Sw.

Airlines, No. 6:21-cv-1008-PGB-GJK, 2021 WL 8201968, at *2 (M.D.

Fla. Jun. 16, 2021) (plaintiff did not have a private right of

action “because the ACAA expressly provides recourse to private

citizens who feel the DOT has abandoned its statutory

obligations”).

Thus, there is no private right of action in this Court to

assert violations of the ACAA. Accordingly, the ACAA claims in

Counts 15, 16, 17, 18, 19, 20, 21, 22, 23, and 24 are dismissed.

IV. Plaintiff’s Rehabilitation Act Claims

Seklecki argues that the Airline Defendants are liable

under the Rehabilitation Act, 29 U.S.C. § 794(a), because they

accepted $25 billion in federal assistance under the Coronavirus

Air, Relief, and Economic Security Act (“CARES Act”). The

Airline Defendants argue that the Rehabilitation Act is

inapplicable to Seklecki’s claims because they did not receive

federal financial assistance. They contend that the only

federal funds they received were pursuant to the Payroll Support

Program under the CARES Act, which was provided exclusively for

the payment of wages, salaries, and benefits to employees.

Section 504 of the Rehabilitation Act provides that no

qualified individual with a disability shall be subjected to

discrimination under “any program or activity receiving Federal

financial assistance.” 29 U.S.C § 794(a). To prevail on a

section 504 claim, Seklecki must prove (1) that he was disabled,

(2) that he sought services from a federally funded entity, (3),

that he was otherwise qualified to receive those services, and

(4) that he was denied those services because of his disability.

See Drachman v. Bos. Sci. Corp., 258 F. Supp. 3d 207, 211 (D.

Mass. 2017) (citing Lesley v. Hee Man Chie, 250 F.3d 47, 52–53

(1st Cir. 2001)).

At issue here is whether the CARES Act funding constitutes

federal financial assistance which triggers the provisions of

the Rehabilitation Act. On March 27, 2020, Congress passed the

CARES Act in response to the COVID-19 global pandemic and

economic fallout. See Coronavirus Aid, Relief, and Economic

Security Act, Pub. L. No. 116-136, 134 Stat 281 (2020). The

CARES Act was aimed at helping businesses cover payroll expenses

to keep people employed. See In re Gateway Radiology

Consultants, P.A., 983 F.3d 1239, 1247 (11th Cir. 2020).

Because the CARES Act was assistance designated for the

particular purpose of covering payroll expenses, and not for

general assistance, at least one court has held that the

airlines did not receive federal financial assistance within the

meaning of the Rehabilitation Act. See Andreadakis, 2022 WL

2674194, at *10 (“the Court does not find that the CARES Act

provided an exception to the Supreme Court’s general rule that

the Rehabilitation Act does not apply to the airlines”); see

also Lucius v. Fort Taco, LLC, No. 21-22397-CIV-

WILLIAMS/MCALILEY, 2022 WL 335491, at *6 (S.D. Fla. Jan. 5,

2022) (Rehabilitation Act was inapplicable because the Paycheck

Protection Program loan, an extension of the CARES Act, was

designated for a particular purpose and was not considered

general assistance extended to a company “as a whole”). Cf.

Shotz v. Am. Airlines, Inc., 420 F. 3d 1332, 1334 (11th Cir.

2005) (holding Rehabilitation Act inapplicable where funds

airlines received from Congress after the September 11 terrorist

attacks were compensatory and not considered subsidies

consisting of “federal financial assistance”); see generally S.

REP. No. 100–64 at 17 (1987) (“Federal financial assistance

extended to a corporation or other entity ‘as a whole’ refers to

situations where the corporation receives general assistance

that is not designated for a particular purpose.”).

Whether Cares Act funding was a subsidy or compensation,

the Court concludes that Congress did not intend to circumvent

the procedures for handling claims of disability discrimination

against the airlines under the ACAA. Accordingly, the

Rehabilitation Act claims in Counts 14, 15, 17, 18, 19, 20, 21,

22, 23, and 24 are dismissed.

V. Plaintiff’s Claim of Practicing Medicine Without a

License

The Airline Defendants argue that Seklecki’s claim that

they were practicing medicine without a license should be

dismissed because they were implementing the FTMM. The Court

agrees.

In a similar case, a Florida court stated:

[T]he Court is unpersuaded that Alaska Airlines is

illegally practicing medicine without a license by

requiring passengers to wear a mask on the flight. The

Alaska Airlines flight attendants were simply enforcing

a federal mandate requiring all passengers to wear a

mask while on the flight. As a matter of common sense,

it is antithetical to reason that asking someone to wear

a mask is in any way analogous to practicing medicine.

Wall v. Sw. Airlines Co., No. 6:21-cv-1008-PGB-DCI, 2021 WL

8201967, at *3 (M.D. Fla. Dec. 8, 2021). See also Gunter v. N.

Wasco Cnty. Sch. Dist. Bd. of Edu., No. 3:21-cv-1661-YY, 2021 WL

6063672, at *15 n.5 (D. Or. Dec. 22, 2021) (requiring the

correct placement of masks did not constitute practicing

medicine without a license).

By enforcing the FTMM and requiring passengers to wear a

mask, the Airline Defendants were not practicing medicine.

Accordingly, Count 27 of the Complaint is dismissed.

VI. Plaintiff’s Infringement of Right to Travel Claim

Seklecki argues that the Airline Defendants have infringed

his constitutional right to travel. There is a constitutional

right to travel “from one State to another, and necessarily to

use the highways and other instrumentalities of interstate

commerce in doing so.” U.S. v. Guest, 383 U.S. 745, 757 (1966).

The right to travel includes three components: (1) “the right of

a citizen of one State to enter and to leave another State”; (2)

“the right to be treated as a welcome visitor rather than an

unfriendly alien when temporarily present in the second State”;

and (3) “for those travelers who elect to become permanent

residents, the right to be treated like other citizens of that

State.” Saenz v. Roe, 526 U.S. 489, 500 (1999).

In this case, Plaintiff was not prohibited from getting on

a plane; he was prohibited from getting on a plane without a

mask or mask exemption. See Wall v. Ctr. for Disease Control &

Prevention, No. 6:21-CV-975-PGB-DCI, 2022 WL 1619516, at *11 n.9

(M.D. Fla. Apr. 29, 2022) (“Plaintiff is not barred from

traveling to another state by virtue of not wearing a mask. A

mere inconvenience caused by a reasonable government regulation

is not enough to amount to a denial of this fundamental right”).

Requiring a mask in compliance with the FTMM is not an

actionable interference with Seklecki’s constitutional right to

travel. Accordingly, Count 31 is dismissed.

VII. Plaintiff’s International Law Claims

Seklecki alleges that the Airline Defendants have violated

the International Covenant on Civil and Political Rights and the

Convention on International Civil Aviation. The Airline

Defendants argue that these international agreements do not

provide a private right of action.

The First Circuit has held that because the International

Covenant on Civil and Political Rights is not self-executing, it

is not binding as a matter of domestic law. Igartua v. United

States, 654 F.3d 99, 100 (1st Cir. 2011) (citing Igartua-De La

Rosa v. United States, 417 F.3d 145, 150 (1st Cir. 2005)).

Plaintiff cannot enforce international covenants through a

private right of action. Thus, Counts 32 and 33 are dismissed.

ORDER

The motion to dismiss (Dkt. 109) is ALLOWED as to Counts 12

through 33.

SO ORDERED

/s/ PATTI B. SARIS

Hon. Patti B. Saris

United States District Judge