Petition for Writ of Certiorari — Michael D. Webb, Petitioner v. Ralph Northam, Governor of Virginia, et al.

Supreme Court briefSep 3, 2021

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Supreme Court, U.S

FILED

21-6170

SEP 0 3 2021

No. 21-A

OFFICEOFTHECLERK

3fn Wqz

Supreme Court of tfje ©mteij States;

Michael D. Webb, a/k/a Major Mike Webb, d/b/a

Friends for Mike Webb and Major Mike'Webb

for Congress, Applicant,

Petitioner-Appellant, Pro Se,

Applicant,

RALPH NORTHAM, in official and individual

capacity, MARK HERRING, in official and

individual capacity, STATE BOARD OF

ELECTIONS and COUNTY OF ARLINGTON

Respondent-Appellee,

Respondents.

Webb v. Northam, et al., 3:20-cv-00497 (E.D. Va. 2020), on appeal Webb v.

Northam, et al.9 No. 20-1968 (4th Cir. 2021)

Amended Petition for Writ of Certiorari

Major Mike Webb, Pro Se

Counsel of Record

955 S. Columbus Street

Apartment 426

Arlington, Virginia

;;:(856);220rI354

- GiveFaithATrv@gmail.com

■r

QUESTIONS PRESENTED

It is well-established, as this Court has stated, that, while “[t]he President’s

need for complete candor and objectivity from advisers calls for great deference from

the courts”, nonetheless, “neither the doctrine of separation of powers* nor the need

for confidentiality of high-level communications, without more, can sustain an

absolute, unqualified Presidential privilege of immunity from judicial process under

all circumstances.” U.S.A. u. Nixon, 418 U.S. 683 (1974). Accordingly, the bright line

rule articulated by this Court, was that “[ajbsent a claim of need to protect military,

diplomatic, or sensitive national security secrets, we find it difficult to accept the

argument that even the very important interest in confidentiality of Presidential

communications is significantly diminished by production of such material for in

camera inspection with all the protection that a district court will be obliged to

provide.” This Court agreed that “’[i]n no case of this kind would a court be required

to proceed against the president as against an ordinary individual’”, id. (quoting U.S.

v. Burr, 25 F. Cas. 55 (C.C.D. Va. 1807)), but tempered this reluctance with the

statement that “this presumptive privilege must be considered in light of our historic

commitment to the rule of law.” Id. Accordingly,

No case of the Court, however, has extended this high degree of deference to a

President's generalized interest in confidentiality. Nowhere in the

Constitution, as we have noted earlier, is there any explicit reference to a

privilege of confidentiality, yet to the extent this interest relatesdoYheeffective

-discharge of-a President's powers, it is constitutionally based. Id. (quoting 'U7S.

v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953).

Yet, in relation to the present_matter, in the case brought_by Appellant in the

U.S. District Court for the Eastern District of Virginia, one issue presented is a

"i‘

petition for writ of mandamus to_compel the White House to respond_to a request for

responsive documents under th^.Freedom of Information Act (FOIA), 5 U.S.C. § 552,

to determine whether standard metrics of secondary attack rate and infectious dose

for COVID-19 are classified information, which they could not be, under Executive

Order 12958, Classified National Security Information, dated April 17, 1995, unless

2019-nCoV was the property of the United States.

Similarly, under Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778.

81 L.Ed.2d 694 (1984) (citations omitted), “[i]f this choice [of a regulatory agency]

represents a reasonable accommodation of conflicting policies that were committed to

the agency’s care by the statute, we should not disturb it unless it appears from the

statute or its legislative history that the accommodation is not one that Congress

would have sanctioned.” Yet, Virginia Governor Ralph S. Northam’s Executive Order

Number 63 (2020), Order of Public Health Emergency Five: Requirement to Wear Face

Covering While Inside Buildings, dated May 26, 2020, amended November 13, 2020,

mandates that “[a)ll individuals in the Commonwealth aged five and over shall, when

entering, exiting, traveling through, and spending time inside the settings listed

below, cover their mouth and nose with a face covering, as described and

recommended by the CDC.” This measure was issued “in furtherance of Amended

Executive Order 51 (2020) and Amended Executive Order 61 and Amended Order of

......... Public Health Emergency Three (2020)Id.

The questions presented are:

--u —

•li*

Whether Appellant presented a justiciable issue, where the choice of the

Virginia Governor and the State Health Commissioner, failed to represent

“a reasonable accommodation of conflicting policies'that were committed to

the agency’s care by the statute,” so that a reviewing court “should. . .

disturb it. . . [when] it appears from the statute or its legislative history

that the accommodation is not one that Congress would have sanctioned.”

Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778. 81 L.Ed.2d 694

(1984) (citation omitted)

Whether the Reviewing Court erred, where Appellant presented a justiciable issue

“limited to ‘the grounds that the agency invoked when it took the action’”, DHS v.

Regents of the University of California, 591 U.S.

(2020) (quoting from Michigan

v. EPA, 576 U. S. 743 (2015).

Whether Appellant presented a justiciable issue, where, a regulation,

“purporting to have been enacted to protect the public health, the public

morals, or the public safety has no real or substantial relation to those

objects, or is, beyond all question, a plain, palpable invasion of rights

secured by the fundamental law, [and] it is the duty of the courts to so

adjudge,

and thereby

give

effect

the

Constitution’.

Jacobson

Massachusetts, 197 U.S. 11, 25 S. Ct. 358, 49 L. Ed. 643 (1905).

... ._4t

"Whether Appellant"‘pTesented_'a~Justiciable issue, where, by imposing a

nonme'dical grade facial coverings order upon persons engaged in worship

for the. entire time within„the_.sanctuary, .in disparate .treatment to other

similarly

situated,

but

secular

establishments,

•in-

the

exercise

of the

Commonwealth^ police power was “exerted in such circumstances or by

regulations so arbitrary and oppressive in particular cases as to justify the

interference of the courts to prevent wrong and oppression.” Id.

Whether Appellant presented a justiciable issue, where the Governor and

State Health Commissioner, under rationale of the UNESCO precautionary

principle, which “has [not] been incorporated into domestic law, by international

treaty or otherwise”, Sancho v. U.S. Dept, of Energy, 578 F. Supp. 2d 1258 (D. Haw.

2008), on a claim that “[t]he loss of life and economic destruction that has been seen

already from COVID-19 is a ‘morally unacceptable harm’.” Jeremy Howard, et at,

Face

Masks

Against

COVID-19:

Evidence

Review,

Preprints,

doi:10.20944/preprints202004.0203.v2 (May 13, 2020).

PARTIES AND RULE 29.6 STATEMENT

Appellant is Michael D. Webb, a/k/a Major Mike Webb, d/b/a Friends for Mike

Webb and Major Mike Webb for Congress, hereinafter referred to as “Webb”.

Appellant was the Petitioner in the U.S. District Court for the Eastern District of

Virginia and was the Appellant in the U.S. Court of Appeals for the Fourth Circuit.

Appellant has no parent corporation, and there is no publicly held corporation owning

10% of more of its stock.

Appellees include RALPH S. NORTHAM, in his official capacity as Governor of

Virginia,-hereinafter referred to-as “Northam.”~Appellee Northam-was the Respondent

in the U.S. District Court for the Eastern District of Virginia; Richmond Division,

and was the Appellee in the U.S. Court of Appeals for the Fourth Circuit, but, since

June 2, 2020, despite a duly executed praecipe filed with the Trial Court, Appellee

•iv*

Northam has, in violation of 18 U.S.C. § 1512(b), which creates a felony, punishable by

fine and/or imprisonment up to 20 years, for “[wjhoever corruptly persuades another

person, or attempts to do so, or engages in'misleading conduct toward another person,

with intent to. . . (1) influence, delay, or prevent the testimony of any person in an

official proceeding; (2) cause or induce any person to. . . (A) withhold testimony, or

withhold a record, document, or other object, from an official proceeding; (B) alter,

destroy, mutilate, or conceal an object with intent to impair the object’s integrity or

availability for use in an official proceeding; (C) evade legal process summoning that

person to appear as a witness, or to produce a record, document, or other object, in an

official proceeding; or (D) be absent from an official proceeding to which such person

has been summoned by legal process” (emphasis added), has failed to make an

appearance or waive service of process in this matter, nor, in compliance with

Fed.R.Crim.Pro. 6(a), has the Trial Court convened a grand jury.

Appellees include MARK R. HERRING, in his official capacity as State Attorney

General for the Commonwealth of Virginia, hereinafter referred to as “Herring.”

Appellee Herring was the Respondent Defendant in the U.S. District Court for the

Eastern District of Virginia, Richmond Division, and was the Appellee in the U.S.

Court of Appeals for the Fourth Circuit, but, since June 2, 2020, despite a duly

executed praecipe filed with the Trial Court, Respondent Herring has, in violation of

18 U.S. C. § 1512(b)(2)(C), has failed to make an appearance or waive service of process

in this matter, nor, in compliance with Fed.R.Crim.Pro. 6(a), has the Trial Court

_ convened a. grand jury.

•v

Appellees include the STATE BOARD OF ELECTIONS, hereinafter referred to as

“SBE.” Appellee SBE was the Respondent in the U.S. District Court for the Eastern

District of Virginia, Richmond Division, and was the Appellee in the U.S. Court of

Appeals for the Fourth Circuit, but, since June 2, 2020, despite a duly executed

praecipe filed with the Trial Court, the County has, in violation of 18 U.S.C. §

1512(b)(2)(C), has failed to make an appearance or waive service of process in this

matter, nor, in compliance with Fed.R.Crim.Pro. 6(a), has the Trial Court convened a

grand jury.

Appellees include the COUNTY OF ARLINGTON, hereinafter referred to as “the

County.” Appellee the County was the Respondent in the U.S. District Court for the

Eastern District of Virginia, Richmond Division, and is the Appellee in the U.S.

Court of Appeals for the Fourth Circuit, but, since June 2, 2020, despite a duly

executed praecipe filed with the Trial Court, the County has, in violation of 18 U.S.C.

§ 1512(b)(2)(C), has failed to make an appearance or waive service of process in this

matter, nor, in compliance with Fed.R.Crim.Pro. 6(a), has the Trial Court convened a

grand jury.

DECISIONS BELOW

All decisions in this case in the lower courts are styled Webb v. Northam, et al.

A Verified Complaint was filed with the U.S. District Court on June 2, 2020, for which

an Order to Amen dr was issued on July-2,-2020, which-is attached hereto as Exhibit A— (the “Order to Amend”).

The Amended Complaint was filed with the U.S. District Court on August 3,_

2020, and, by Order dated August 25, 2020, was dismissed, with prejudice, the Trial

-vi-

Court finding that “[t]he Amended Complaint, which spans thirty-seven pages, names

the Defendants and criticizes Virginia’s mask requirements, which the Governor

imposed during the ongoing COVID-19 pandemic”, and that it seemed “to suggest that

Virginia’s current mask and social distancing requirements, which are intended to help

curb the virus, discriminate against religion.”

Moreover, the Trial Court concluded that the “enigmatic allegations” in “the

Amended Complaint, despite its length, does not set forth a cognizable legal claim or

cause of action,” was presumed to be Appellant’s best statement of the case, and,

accordingly, dismissed the action with prejudice”, attached hereto as Exhibit B (the

“Dismissal Order).

By Order, dated July 1, 2021, attached hereto as Exhibit C (the “Appellate

Order”) “ pursuant to 28 U.S.C. § 1915(e)(2)(B), finding no reversible error, and

dispensing with oral argument, the judgment of the District Court was affirmed, and

by Order of Mandate, pursuant to Fed.R.App. P. 41, filed on July 23, 2021, the Order,

entered on July 1, 2021, took effect, attached hereto as Exhibit D (the “Mandate

Order”).

No transcript record has been created. Neither the Order to Amend, nor the

Order to Dismiss, have been designated for publication in the Federal Supplement.

The docket number in the U.S. District Court for the Eastern District of Virginia,

■Richmond Division is Civil Action No. 3:20CV497, and the_dpcket~number in_the U.S.

Court of Appeals for the Fourth Circuit is 20-1968.

-vir

JURISDICTION

Appellant had a pending appeal, in the U.S. Court of Appeals for the Fourth

Circuit, pursuant to 28 U.S.C. § 1295(a)(1), which provides, in relevant part, that

“[t]he United States Court of Appeals for the Federal Circuit shall have exclusive

jurisdiction. . .of an appeal from a final decision of a district court of the United States.

. . in any civil action arising under, or in any civil action in which a party has asserted

a compulsory counterclaim arising under, any Act of Congress relating to patents or

plant variety protection”.

A writ of certiorari may only be granted for compelling reasons, to include when.

a “court of appeals has entered a decision in conflict with the decision of another

United States court of appeals on the same important matter; has decided an

important federal question in a way that conflicts with a decision by a state court of

last resort; or has so far departed from the accepted and usual course of judicial

proceedings, or sanctioned such a departure by a lower court, as to call for an exercise

„i.

of this Court’s supervisory power”, S.Ct.R. 10(a) (emphasis added), or when “a United

States court of appeals has decided an important question of federal law that has not

been, but should be, settled by this Court, or has decided an important federal question

in a way that conflicts with relevant decisions of this Court”.

Suspicious Coincidences in a Science Not Political?

“A 16*year. political shift has-transformed the -Gommonwealth-of-Virginia from

a solidly red state to a blue one” and-“Virginia’s off-year elections-have-always made

it a proving ground for both political parties”; however, “this year more than normal,

it could be a potential harbinger of things to come for both parties.” Abbv Phillip &

-vm-

Jeff Simon, “Virginia's off-year elections cpuld pose key test for both parties,” CNN,

February 28, 2021. Concerning for Democrats, however, “Republicans hold an

enormous edge in enthusiasm that could make the difference in the upcoming

Virginia governor’s race, according to both public and private polling.” Elena

Schneider, “Virginia Republicans are fired up

and Trump is on the sidelines,”

Politico, October 28, 2021.

Leading up to the election, President Biden reported on his visit to the Vatican,

stating, “We just talked about the fact that he was happy that I was a good Catholic

and to keep receiving communion,” Charlie Spiering, “Joe Biden: Pope Francis Told

Me ‘I Was a Good Catholic’ and to ‘Keep Receiving Communion’,” Breitbart, October

29, 2021. And, in breaking news:

White House press secretary Jen Psaki, who dropped off President Joe Biden's

international trip shortly before he departed, has tested positive for

coronavirus after members of her household did, she said in a statement

Sunday.

Psaki said she last saw Biden Tuesday outside while masked, before the

President departed for Rome for the Group of 20 Summit. Psaki said she was

disclosing the positive test result “out of an abundance of transparency,”

adding that she has experienced mild symptoms and is working remotely.

Kaitlan Collins, “Psaki tests positive for Covid, last saw Biden Tuesday,” CNN,

October 31, 2021. (emphasis added)

Psaki’s interests in full disclosure contrast with the posture of the White

House,=sinceron Monday, -October 25, 2021T=a petition for extraordinary writ was filed

with this Court to compel the White House to provide a response to a request for

information, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, In

ReyMajor- Mike -Webb-, Record No. 21-A__(ILS. 2021), specifically -whether the

'IX'

infectious dose and secondary attack rate for COVID-19 were classified information,

a request initially acknowledged by the White House on March 23, 2021, as attached

at Exhibit E, and initially prompting a federal court action that had been filed on

July 7, 2021. See Webb u. Fauci, et al., Civil Action No. 3:21CV432 (E.D.Va. 2021).

Coincidentally, former White House Communications Director George

Stephanopoulos, announced that he had become infected, David Goldman, “’GMA’

anchor George Stephanopoulos has been diagnosed with coronavirus,” CNN, April 13,

2020, shortly after raising allegations that the former President had failed to respond

to intelligence from the National Medical Intelligence Center (NMIC).

Coincidentally, at the same time, Appellant had filed a motion for certification

as an expert in litigation filed against the Virginia Governor, Webb v. Northam, Webb

v. Northam, et al., Case Number CL20001624 (Alexandria Cir. 2020), on appeal Webb

v. Northam, Record Number 210536 (Va. 2021) has the distinction of having been the

most junior commissioned officer to have ever served as both the Aide de

Camp/Executive Officer to the Commander, as in evidence at Exhibit F, as well as

the Operations Officer for all U.S. Army strategic counterintelligence in the

Continental United States (CONUS), as in evidence at Exhibit G, and, in that

capacity had the distinction to play a critical staff role in during the formation of the

Armed Forces Medical Intelligence Center (AFMIC), see generally DODD 6420.1,

~ArmedForces~Medical Intelligence Center (AFMIC), September 30,~1996 ; the

precursor to the NMIC, see generally DODI 6420.01, National Center for Medical

Intelligence (NCMI), March 20,.2009, incorporating Change..3, effective September 8,

2020, which was the subject of the ABC News report, Josh Margolin & James Gordon

Meek, “Intelligence report warned of coronavirus crisis as early as November^

Sources ‘Analysts concluded it could be a cataclysmic event,’ a source said,” ABC

News, April 8, 2020.

Similarly, in another government public health response related litigation,

immediately after Appellant had filed an affidavit with the Fourth Circuit, in an

action in which the Virginia Governor and State Attorney General had yet still failed

to enter an appearance or filing an affidavit to reiterate the validated secondary

attack rate for COVID-19 that world public health authorities had determined in the

largest sample size tracer contacts study before the lockdowns in the Commonwealth

that there was no evidence to validate COVID-19 as a disease being transmitted from

person-to-person, see Webb u. Northam, et al, 3:20-cv-00497 (E.D. Va. 2020), on

appeal Webb v. Northam, et ah, No. 20-1968 (4th Cir. 2021), it was announced that

“Virginia Gov. Ralph Northam and his wife have tested positive for Covid-19”.

Veronica Stracqualursi, “Virginia Gov. Ralph Northam tests positive for Covid-19,”

CNN, September 25, 2020.

Similarly, on the same day that a petition for writ of mandamus, see In Re:

Major Mike Webb, CL21001829 (Alexandria Cir. 2021), to compel the Commonwealth

At torney for the City of Alexandria to charge the City Sheriff, upon the pleadings

from the Assistant Attorney General and argument that, despite a duly filed praecipe

_ with the Circuit' Court, for theCityof Alexandria, as'attached at F, that;office ’did fail:

to perfect service of a summons, it was immediately announced that “Alexandria

Police Chief Michael L. Brown will retire, effective. June 25,” Colleen Kelleher,.

“Alexandria police chief to retire,” WTOP, June 4, 2021. At the beginning of the

*xi*

public health crisis, it had been announced that “Alexandria Sheriff Dana Lawhorne

announced on Monday that he is retiring after 43 years in law enforcement when his

term expires at the end of 2021,” Staff, “Sheriff Lawhorne to retire at end of 2021,”

Alexandria Times, March 11, 2021, but was suddenly prompted to become a member

of Appellant’s church, Staff, “Sunday, October 17, 2021 (FULL SERVICE),” FBC

Alexandria, October 17, 2021, https://subsnla.sh/ib2b7v8 (accessed October 31, 2021),

while his attorneys and the City have not yet responded to service, as despite, again,

a duly filed praecipe, and while a trial conference has been scheduled for November

6, .2021, as attached at Exhibit I.

II.

Important Federal Question

One national news publication has reported that “months of discord about the

coronavirus epidemic have transformed the cloth mask into a potent political symbol,

touted by Democrats as a key part of communal responsibility, labeled by some GOP

leaders as a sign of government overreach and as a scarlet letter pinned on the

weak.” Ben Guarino, Chelsea Janes & Ariana Eunjung Cha, “Spate of new research

supports wearing masks to control coronavirus spread,” Washington Post, June 13,

2020.

A. Opinions in Support of Nonmedical Grade Facial Coverings

One policy expert, who claims to be convinced that there is no question

regarding.the effectiveness.of nonmedical grade-facial coverings,.recently.advanced__

- the-concern that ‘[t]he CDC’s refusal to clearly outline the-conditions-that would

reverse school mask mandates turns its current “guidance” into an instruction

one

that ignores huge variation in COVID caseloads, vaccination rates and risk across

■Xll"

school districts. Instead of simply telling thepublic to ‘trust us,’ the CDC should

explain to school leaders and parents what conditions are necessary to loosen mask

mandates, and if needed, to reinstate them.” Nat Malkus, “The CDC must explain the

endgame for school masking mandates,” Newsweek /AEI, October 29, 2021.

In the western United States, one publication reported that “[nineteen months

into the pandemic, Colorado businesses and their customers are tasked with making

public health decisions as Gov. Jared Polis declines to reinstate a statewide mask

mandate despite state and federal health experts’ advice that masks help prevent

virus spread.” Noelle Phillips & Elizabeth Hernandez, “Colorado business owners

forced to act as public health experts as government shirks mask mandates,” The

Denver Post, October 31, 2021.

In Florida, a “state senator said. . . she has been receiving death threats for

speaking out about the state’s top medical official’s refusal to wear a mask during a

meeting at her legislative office, even after she informed him she’s battling cancer.”

Yet at the time that the White House had indicated that it would be flagging actions

and identifying problematic accounts on social media, it was reported:

Psaki and Murthy would not answer a shouted question about the fact that Dr.

Anthony Fauci, President Biden’s chief medical adviser and the government’s

top infectious diseases expert, has himself vacillated on COVID-19

information.

; Fauci did not promote mask-wearing=in February, March and early-April 2020

as'the'respiratoiy virus spreaddn the~US,~ despitethe historical use'of masksto

counter airborne viruses and their successful early adoption in East Asia. But

Fauci later pushed even wearing two masks at a time. Steven"Nelson, “White

House ‘flagging’ posts for Facebook to censor over COVID ‘misinformation’”

. New York Post, July 15, 2021. ___

__ __

■xni"

Shortly after the Whiter House announcement, Appellant’s Facebook account

was permanently disabled, as attached at Exhibit J, and the subject of a present

action filed at the U.S. District Court in Richmond. See Webb v. Fauci, et al., Civil

Action No. 3:21CV432 (E.D.Va. 2021).

B. No Scientific Evidence Supporting Public Opinion

By August 2020, opinion surveys had noted that “92% of Democrats and those

who lean toward the Democratic Party say they usually wear masks in stores and

other businesses, as do 76% of Republicans and GOP leaners.” Stephanie Kramer,

“More Americans say they are regularly wearing masks in stores and other

businesses,” Pew Research Center, August 27, 2020. And, in a landmark case that

had been early identified as authority for the power of the state to mandate

nonmedical grade facial coverings, as one reportedly expert on constitutional law

opined, “the Supreme Court basically said the State has the power, effectively to

strap you down and stick a needle in your arm, and make you get vaccinated, . . .

[wjhich quite frankly is far more intrusive than putting you under quarantine. . .

[a]nd certainly much, much more intrusive than mandating you wear a mask when

you’re out in public”, Justin Harlan had stated:

The Supreme Judicial Court of Massachusetts said in the present case:

“Let us consider the offer of evidence which was made by the defendant

3Jacobson.t.The ninth ofthe.propositions which.he offered to prove, as to

-what- vaccination-consists-of/-is -nothing-more -than a fact-of-common - knowledge, upon which the statute is founded, and proof of it was

■unnecessary and~immateriak-The thirteenth and fourteenth-involved

matters depending upon his personal opinion, which could not be taken

as corrector given effect, merely because he made it a ground of refusal

to comply-with the, requirement. Moreover, his views could not affect the

validity of the statute, nor entitle him to be excepted from its provisions.

■xiv

Commonwealth v. Connelly, 163 Massachusetts 539; Commonwealth v.

Has, 122 Massachusetts 40; Reynolds v. United States, 98 U. S. 145;

Regina u. Downes, 13 Cox C.C. 111. . Jacobson u. Massachusetts, 197

U.S. 11 (1905).

The definitive study on nonmedical grade substitutes for personal protective

equipment (PPE) had established over a decade ago that “[r]esults obtained in the

study show that common fabric materials may provide [only] marginal protection

against nanoparticles including those in the size ranges of virus-containing particles

in exhaled breath”, Sarny Rengasamy, et al., Simple Respiratory Protection—

Evaluation of the Filtration Performance of Cloth Masks and Common Fabric

Materials Against 20-1000 nm Size Particles, 54 Ann. Occup. Hyg. 7, pp. 789-798

(2010), and “[judicial review of agency action. . . is limited to ‘the grounds that the

agency invoked when it took the action,”’ DHS v. Regents of the University of

California, 591 U.S.

(2020) (quoting from Michigan v. EPA, 576 U. S. 743 (2015))

(emphasis added), and, at the time when the Governor of Virginia had announced his

facial coverings mandate, national public health guidance stated that nonmedical

grade facial coverings were only “source control”. Staff, “Transmission-Based

Precautions: Droplet Precautions,” CDC, January 7, 2016

https://www.cdc.gov/infectioncontrol/basics/transmission-based-precautions.html

(accessed August 1, 2020). See also Staff, “Considerations for Wearing Masks: Help

Slow-the Spread-of COVID--19” CDC, August 7, 2020 (“Masks with exhalation valves

or vents should NOT be worn to help prevent the person wearing the mask from

spreading COVID-19 to others (source control).”) (accessed August 7, 2020).

•xv

Moreover, research upon which the Governor of Virginia had relied, as alleged

specifically in the amended complaint had stated that:

When someone is breathing, speaking, or coughing, only a small amount of

what is coming out of their mouths is already in aerosol form. Nearly all of

what is being emitted is droplets. Many of these droplets will then evaporate

and turn into aerosolized particles that are 3 to 5-fold smaller, [footnote

omitted] Wearing a mask as source control is largely to stop this process from

occurring, since big droplets dehydrate to smaller aerosol particles that can

float for longer in air [footnote omitted].

In summary, there is laboratory-based evidence that household masks have

some filtration capacity in the relevant droplet size range, as well as efficacy in

blocking droplets and particles from the wearer [footnote omitted]. That is,

these masks help people keep their droplets to themselves. Jeremy Howard, et

al, “Face Masks Against COVID-19: An Evidence Review,” Preprints,

doi:10.20944/preprints202004.0203.v2 (May 13, 2020).

Source control, thus, presumes that the wearer is infected; yet, as averred in

the Amended Complaint, “[i]f a prosecutor had stood before a jury and denied that a

defendant was entitled to a presumption of innocence; if the judge refused to correct

him and failed to give any instruction on the presumption of innocence; if the judge’s

instructions affirmatively suggested there might not be a presumption of innocence;

would anyone doubt that there was a reasonable possibility that the jury had been

misled?” Brown v. Payton, 544 U.S. 133 (2005).

And, particularly with regard to a violation of the Free Exercise Clause1, it is

clear that, in a summary judgment, “[i]n determining whether there is a violation of

i *

‘In Cantwell v. Connecticut,'310 UTS. 296; 303-04,150 S:Ctr900,‘903-04, 84 L.Ed. 1213 (1940), the Court

recognized that there are two aspects of the free exercise of religion: freedom to believe and freedom to act.

On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship.

Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may

‘choose cannot berestricted’by law." Oh the'other hand'.“it safeguards'the free exercise of the chosen form of religion.

Thus the Amendment embraces two concepts.—freedom to believe and freedom to act." U.S v. Meyers, 95 F.3d 1475

(10th Cir. 1996). (emphasis added)

•XVI-

the Free Exercise Clause, courts must assess: “(1) whether the practice asserted is

religious in the person’s scheme of beliefs, and whether the belief is sincerely held; (2)

whether the challenged practice. . . infringes upon the religious belief: and (3)

whether the challenged practice. . . furthers some legitimate. . . objective.” Cardew

v. New York State Dep’t of Corr. Servs., No. 01 CIV. 3669 (BSJ), 2004 WL 943575, at

*1-9 (S.D.N.Y. Apr. 30, 2004) (citing Farid v. Smith, 850 F.2d 917 (2d Cir.1988)), and

there is no question that, just as a rule dictating that “[i]f any place of worship cannot

adhere to the above requirements, it must not conduct in-person services.” Staff,

“Safer at Home: Phase Three Guidelines for All Business Sectors,” Governor of

Virginia, https://www.governor.virginia.gov/media/governorvirginiagov/governor-ofvirginia/pdf/Forward-Virginia-Phase-Three-Guidelines.pdf (accessed June 30, 2020)2,

a rule decreeing that, “[w]hen Virginia’s mask requirements go into effect on Friday,

churches are one place where they’ll be required.” Jeff Williamson, “Virginians will be

required to wear masks while attending church,” Fox News, May 28, 20203.

Moreover, pursuant to the Order, the place of worship where Petitioner is a

member posted on its official website: “The City of Alexandria has asked if our church

attendees can make face masks for essential personnel in our community.” (emphasis

added)) Staff, “How to help during COVID-19: Face Masks,” FBCAlexandria,

https://fbcalexandna.org/fbca-at-home (accessed,April 24, 2020).

2 “Members are.safer at home. Continue to provide and encourage use of online streaming and drive-in options for

people who can utilize these options. No place of worship should feel obligated to return to in-person worship before

they are ready to'do so'.'" Id.

'' “In Gov. RalpifNorthairfs Executive Order 63, seven types of places where masks will be required are liste'd;

however, churches and other houses of worship, are not explicitly mentioned." Id.

-xvir

While research upon which Appellant Northam had relied_for his^facial

coverings mandate, had suggested that “[m]ask-wearing and even mask:making or

distribution can provide feelings of empowerment and self-efficacy', Jeremy Howard,

et al., Face Masks Against COVID-19: An Evidence Review, supra, it is well

established in the law that “a State may regulate the abortion procedure to the

extent that the regulation reasonably relates to the preservation and protection of

maternal health”, a case that placed great reliance upon the opinion of a doctor,

presumably informed. Roe v. Wade, 410 U.S. 113 (1973). See also Easley v. Virginia

Alcoholic Beverage Control Bd., 57 Va. Cir. 15 (2001)'1.

Moreover, as the Court poignantly observed in West Virginia State Bd. of Educ.

v. Barnett, 319 U.S. 624 (1943), “[i]f there is any fixed star in our constitutional

constellation, it is that no official, high or petty, can prescribe what shall be orthodox

in politics, nationalism, religion, or other matters of opinion or force citizens to

confess by word or act their-faith therein,” and, notwithstanding-the clear guidance

from the nation’s highest court that “[w]hatever the power of the state to control

public dissemination of ideas inimical to the public morality, it cannot

constitutionally premise legislation on the desirability of controlling a person's

private thoughts.” Stanley v. Georgia, 394 U.S. 557 (1969).

J“[T]here must be some nexus between these violations and the action or inaction of the Jicensee; there must be

evidence to connect these events with the behavior of the licensee, other than the mere fact that this restaurant is where

these violations took place.

Something the licensee‘did, or failed to do, in and of itself, must [have been] a relevant‘factor in the causation of the

violations." Id. ‘

■xvnr

III.

Conflicts with a Decision by State Court of Last Resort

As in clear and convincing evidence, Appellant has proffered more than just

“mere criticisms”, as determined by the Trial Court, a proffered explanation that is

unworthy of credence. Texas Dept, of Community Affairs v. Burdine, 450 U.S. 248

(1981) (citing. McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), but affirmed

on appeal. Yet, in multiple opinions by the state court of last resort in the

Commonwealth, their lower courts have been warned against short-circuiting

litigation, see Government Strategy & Tech., LLC v. ODonnell, 84 Va. Cir. 223 (2012)

(holding that “dismissing this case without affording the plaintiff the opportunity to

put on evidence would be improper”); Realstar Realtors, L.L.C. v. Glenn, 53 Va. Cir.

177 (2000) (stating that to sustain a demurrer would “incorrectly have short-circuited

litigation pretrial”), and in Government Strategy & Tech., LLC v. ODonnell, 84 Va.

Cir. 223 (2012) (holding that “dismissing this case without affording the plaintiff the

opportunity to put on evidence would be improper”). See also Narayanswarup, Inc. v.

Doswell Hosp., LLC, 80 Va. Cir. 650 (2010).

In accordance with due process, “[t]he due process clause (sic) requires that

every man shall have the protection of his day in court,” Truax v. Corrigan, 257 U.S.

312, 42 S.Ct. 124, 66 L.Ed. 254 (1921), and “[d]ue process is the process that is due

under particular circumstances and does not invariably mandate trial-type

proceedings,” Secy of Labor-v. T-P. Mining,-Inc., 8-FMSH-RC-687 (1986), matters, in

derogation of Appellant’s rights, at issue in the present issues on appeal.

IV.

Departure from the Accepted and Usual Course of Judicial

Proceedings

s- . .

'XIX'

(

The Trial Court has opined, and the Appeals Court, in error, have opined that

Appellant’s pleadings failed to satisfy the pleading standards articulated in

Fed.R.Civ.Pro. 8; however, “[t]he Court is mindful that a pro se plaintiffs complaint,

‘however inartfully pleaded,’ is subjected to ‘less stringent standards than formal

pleadings drafted by lawyers.”’. Brice v. Jenkins, 489 F. Supp. 2d 538 (E.D. Va. 2007)

(quoting Estelle u. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting

Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). See also Gordon

v. Leeke, 574 F.2d 1147 (4th Cir. 1978) (citing Canty v. City of Richmond, Va., Police

Dept., 383 F.Supp. 1396 (E.D.Va.1974), affirmed, 526 F.2d 587 (4 Cir. 1975), cert.

denied, 423 U.S. 1062, 96 S.Ct. 802, 46 L.Ed.2d 654 (1976)) (“Accordingly, the Court

in considering the defendants’ motion to dismiss will not permit technical pleading

requirements to defeat the vindication of any constitutional rights which the plaintiff

alleges, however inartfully, to have been infringed.”).

As this Court has stated, ‘“(i)t is emphatically the province and duty of the

judicial department to say what the law is’”, U.S. v. Nixon, 418 U.S. 683 (1974)

(quoting Marbury u. Madison, 1 Cranch, 137 (1803). Moreover, cognizant that the

Supreme Court has repeatedly emphasized that courts acting pursuant to their

inherent power must exercise “restraint and discretion”, Annette Reddick v. John

Crockett Henry (In re White), No. 2:07CV342, 2013 WL 5295652, at (E.D. Va. Sept.

.13; 2013) (q\iptingyRwers v:Roudway;Express, Inc.yb 11 U:S, 298'(1994);'accord

Chambers v.'Nasco, Inc., 501 U.S. 32 (1991), and'mindful that “[t]he Court’s inherent

^authority is,..therefore “ ‘not a.broad.reseryoir of power, .ready at an imperial hand,

-, a

but a limited source’ ” that “springs from the well of necessity, and [only] sparingly

’XX'

so/’ (citing Natural Gas Pipeline Company of America v. Energy Gathering Inc., 2 F.

3d 1397 (1993) (quoting NASCO, 894 F.2d at 702), nonetheless, “this Court generally

possesses broad inherent power under Article III to sanction bad faith or

contemptuous conduct. Id. (citing Roadway Express, Inc., 511 U.S., at 298.

And, in this instance, the supervisory powers of the Court are not only

required, but proper to address a departure from the accepted and usual course of

proceedings, defiling the temples of justice, Universal Oil Prods. Co. v. Root Refining

Co., 328 U.S. 575, 66 S.Ct. 1176, 90 L.Ed. 1447 (1946), and requiring a remedy within

this Court’s powers, in accord with “’traditional notions of fair play and substantial

justice.’” International Shoe v. State of Washington, 326 U.S. 310 (1945) (quoting

Milliken v. Meyer, 311 U.S. 457 (1940).

Important Federal Question Decided in Conflict with This Court

As this Court has stated, “no power can be exerted to that end by the United

States unless, apart from the Preamble, it be found in some express delegation of

power or in some power to be properly implied therefrom.” Jacobson, 197 U.S., at 11

(citing 1 Story’s Const. § 462.). In that case, this Court emphasized that “’if a statute

purporting to have been enacted to protect the public health, the public morals, or the

public safety has no real or substantial relation to those objects, or is, beyond all

question, a plain, palpable invasion of rights secured by the fundamental law, it is

-----the-duty-of-the courts-to so adjudge-, and-thereby give effect to the Constitution.’” Id.

(citing Mugler v: Kansas, 123 U. S: 623 (1887); Minnesota v. Barber, 136 U: S. 313

(1890); Atkin v. Kansas, 191 U. S. 207 (1907).

■xxr

Appellants Northam and Mark Herring have quoted precedential authority

that endorses the proposition that “[djealing with ... an emergency situation requires

an immediacy of action that is not possible for judges.” Opp. Brief, Hughes v.

Northam, Civil Action No. CL20-415 (Russell Cy. Cir.) (quoting U.S. u. Chalk, 441

F.2d 1277, 1281 (4th Cir. 1971), but, to Appellant’s limited understanding, that

decision did not license a plenary power, even though it acknowledged that

“[attempting to precisely define under what specific conditions each of the authorized

restrictions might be imposed would destroy the 'broad discretion' necessary for the

executive to deal with an emergency situation”, id. (quoting Sterling v. Constantin,

287 U.S. 378 (1932), that Court had prudently recognized that “”’[a]ll power may be

abused if placed in unworthy hands’,” id. (quoting Luther v. Borden, 48 U.S. (7 How.)

1, 2, 12 L.Ed. 581 (1849)), and emphasized the role of the Judiciary in ensuring the

proper administration of justice, and protection against manifest injustice, stating

that “[t]he courts cannot prevent abuse of power, but can sometimes correct it.” Id.

Moreover, it is the argument of Appellant that essentially this matter revolves

around the standard regulatory deference doctrine articulated by this Court in

Chevron U.S.A., Inc. v. N.R.D.C., Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694

(1984), where this Honorable Court had determined that,“[w]hen a challenge to an

agency construction of a statutory provision, fairly conceptualized, really centers on

71'~ .thn wisdom; ofthe agencyfs policy,_rather than whether it is a reasonable choice within

a'gap left open by Congress, the challenge must fail,” and “[s]uch legislative

regulations are given controlling weight unless.they are arbitrary,, capricious, or

manifestly contrary to the statute”. Moreover, as this Court had stated in Recognizing

-xxir

that “[t]he Government’s regulatory interest in community safety can, inappropriate__

circumstances, outweigh an individual’s liberty interest,” this Court has stated, “[a]

facial challenge to a legislative Act is, of course, the most difficult challenge to mount

successfully, since the challenger must establish that no set of circumstances exists

under which the Act would be valid.” U.S. v. Salerno, 481 U.S. 739, 107 S. Ct. 2095,

95 L. Ed. 2d 697 (1987). And, in the present instance, no set of circumstances exists

under which the facial coverings mandate in address to a perceived threat posed by

a novel coronavirus would be valid.

Similarly, as the current President had, as a candidate, had “called for

immediate mask mandates nationwide for the next three months, keeping the focus

on drawing a stark contrast between how he would respond to the pandemic crisis

compared to how he says it’s been mishandled by President Donald Trump”, John

Verhovek, Molly Nagle & Libby Cathey, “Biden calls for mask mandates nationwide

for 3 months, targeting Trump’s pandemic response,” ABC News, August 13, 2020, a

misrepresentation of a material fact, unsupported by any known science, including a

hasty review of 172 observational studies under the direction of the World Health

Organization (WHO), that had confirmed what should be obvious, that” N95 or

similar respirators might be associated with a larger degree of protection from viral

infection than disposable medical masks or reusable multilayer (12-16-layer) cotton

....;masks7’5 6 and' that '“in view of the limitations of these' data, we~did not rate the~

- Rachel Morris. Anthony Charles & Christopher Tignanelli, "Standards save lives. Doctors don't have the guidance

we need for this pandemic," Washington Post, April 4, 2020 (“Compared with surgical masks, cloth masks can lead to

‘“increased risk of infection," and “[rjeusing masksdessens their protection overtime, and the contaminated mask can

spread the virus to oth'eFsurfaces.”)6 “Use facemasks according to product labeling and local, state, and federal requirements.

•xxnr

certainty of effect as high”, and any reasonable person should agree that there is “a

potential benefit of continuous N95 respirator use over medical masks against

seasonal viral infections”, Derek K. Chu, et al, Physical distancing, face masks, and

eye protection to prevent person-to-person transmission of SARS-CoV-2 and COVID19: a systematic review and meta-analysis, The Lancet, June 1, 2020, online June 1,

2020, DOI:

https://doi.org/10.1Q16/S0140-6736(20)31142-98. a sensible option

forbidden in the Commonwealth by criminal law. Va. Code § 18.2-422.

Under the rule stated in Thompson v. Bacon, 245 Va. 107 (1993), “[a] party

alleging fraud must prove by clear and convincing evidence (1) a false representation,

(2) of a material fact, (3) made intentionally and knowingly, (4) with intent to mislead,

(5) reliance by the party misled, and (6) resulting damage to him”, id. (citing Winn v.

Aleda Constr. Co., 227 Va. 304 (1984), and “[c]lear and convincing evidence is such

proof as will establish in the trier of fact a firm belief or conviction concerning the

allegations that must be established. Id. citing Walker Agency, Inc. v. Lucas, 215 Va.

535 (1975).

FDA-cleared surgical masks are designed to protect against splashes and sprays and are prioritized for use when such

exposures are anticipated, including surgical procedures.

Facemasks.that are not regulated by FDA, such as some procedure masks,-which are typically used for isolation

purposes, may not provide protection against splashes and sprays.” Staff. “Strategies for Optimizing the Supply of

Facemasks” CDC, March 17, 2020.

7:“The'se data also suggest that wearing face masks protects people (both health-care workers andithe-general_public)=

- -- ..against-infection by these-corona-viruses.-and that eye protection could-confer-additional benefit. However,-none-of-- these interventions afforded complete protection from infection, and their~optimuniTole might ne'edTisk assessment"

and several contextual considerations.'"No randomised trials were identified for these interventions in COVID-19,_

SARS, or MERS.” Id. (emphasis added)

8 “These data also suggest that wearing face masks protects people (both health-care workers and the general public)

against infection by these coronaviruses. and that eye protection could confer additional benefit. However, none of

......... thesednterventi'ons 'afforded complete proteciionfrom infection,'arid theiropt iiminTrole might need risk assessment

and several contextual 'considerations. No’ randomised trials were identified for these interventions in COVID-19,

SARS, or MERS " Id. (emphasis added)

'XXIV'

And, just as there is no genuine issue of material fact,Fed.R.Civ.Pro. (6), that

the claims of the Virginia-Governor that “[y]ou can even grab a bandana”, Lowell

Feld, “Live Video, Highlights: Gov. Ralph Northam’s Tuesday (5/26) Virginia COVID19 Briefing,” Blue Virginia, May 26, 2020, by the nation’s only physician serving as a

state governor, Alan Suderman, “Northam, Nation’s Only Doctor Governor, Offers

Sober Voice on Coronavirus,” NBC Washington, April 9, 2020, would be clear and

convincing evidence of a knowing and willful misrepresentation of a material fact,

since even this Honorable Court has stated that “£(i)t is emphatically the province and

duty of the judicial department to say what the law is’”, U.S. v. Nixon, 418 U.S. 683

(1974) (quoting Marbury v. Madison, 1 Cranch, 137 (1803), there can be no greater

detrimental reliance, importing a derogation substantive rights, as raised in the

present matter with regard to free exercise of religion, and constituting an irreparable

harm. Cohen v. Rosenstein, 691 F. App’x 728, (Mem)-730 (4th Cir. 2017), but further,

in the context of an election, raising a reasonable allegation of electoral fraud, on an

unprecedented scale, a specter, as noted above, that continues to plague the national

conscience.

Hence, beyond a reasonable doubt, Appellant raises an important federal

question, to such extent that if this matter fails to satisfy the threshold then the

standard becomes a mere nullity, and farce, while, on this All Saints Day, and day

after celebration of Halloween, “[m]ore_than ^'million people have died from COVID19'in less than two years”, Kate Feldman, “Global COVID-19 death toll hits 5 million,”

New York Daily News, Novejnbex.1,_2021, attributed .to a noveLcorpnayirus that all

•XXV'

clear and convincing evidence^ affirms bears_ a label: Made in the USA. See In Re:

Major Mike Webb, Record No. 21-A.

(U.S. 2021)

XXVI

Table of Contents

Questions Presented..........................................................................................................

Parties and Rule 29.6 Statement....................................................................................

Decisions Below...................................................................................................................

Jurisdiction...........................................................................................................................

Suspicious Coincidences in a Science Not Political?........................................

II.

Important Federal Question..............................................................................

Xll

Opinions in Support of Nonmedical Grade Facial Coverings.................

Xll

No Scientific Evidence Supporting Public Opinion...................................

XIV

III.

Conflicts with a Decision by State Court of Last Resort.............................

XIX

IV.

Departure from the Accepted and Usual Course of Judicial Proceedings

XIX

Important Federal Question Decided in Conflict with This Court...........

XXI

Table of Contents................................................................................................................

XXV11

Table of Authorities............................................................................................................

XXIX

On petition for certiorari to the united states supreme court...................................

-1 -

Statement of the Case........................................................................................................

-1 -

Situation Report.......................................................................................................

-4-

“II.

“Fighting a Biological War.....................;........ ;.......................:....... r..............

-5-

III.

Aerosol Transmission...........................................................................................

-8-

IV.

Biological Agent.................................................................................................... - 11 -

V. Evasion....................................................................................................................... - 19 VI.

Not an Infectious Disease

- 21 -

Reasons for Granting certiorari....

-24-

I. Whether the Trial Court had improperly dismissed Appellant’s case, raising

claims under the Free Exercise and Establishment Clauses in error.

- 24 ~“'=7‘

—

•

-Hr--Whether, in-dismissal of Appellant-s-case, the Trial and-Appellate Courts hadacted with a discriminatory motive, in derogation of Appellant’s religious liberties,

his~suspect class or in' stifling his' free sp'eechr.

- 28Conclusion..

- 28-

__Certification

- 29*xxvir

TABLE OF EXHIBITS

Exhibits

XXVlll

TABLE OF AUTHORITIES

Cases

Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 564-82, 105 S. Ct. 1504, 150616, 84 L. Ed. 2d 518 (U.S. 1985).................................................................................. - 39 Annette Reddick v. John Crockett Henry (In re White), No. 2:07CV342, 2013 WL

5295652, at (E.D. Va. Sept. 13, 2013)........................................................................ XXVll

Association for Molecular Pathology v. Myriad Genetics, Docket No. 12-398, 566 U.S.

___(2013)..........................................................................

- 20 Atkin u. Kansas, 191 U. S. 207 (1907)...........................

XXIX

Brice v. Jenkins, 489 F. Supp. 2d 538 (E.D. Va. 2007)

XXVI

XXI

Brown v. Payton, 544 U.S. 133 (2005)...........................

Cantwell v. Connecticut, 310 U.S. 296, 303—04, 60 S.Ct. 900, 903—04, 84 L.Ed. 1213

(1940)....................................................................................................................................... XXI

Canty v. City of Richmond, Va., Police Dept., 383 F.Supp. 1396 (E.D.Va.1974),

affirmed, 526 F.2d 587 (4 Cir. 1975), cert, denied, 423 U.S. 1062, 96 S.Ct. 802, 46

L.Ed.2d 654 (1976)

XXVll

Cardew v. New York State Dep’t of Corr. Servs., No. 01 CIV. 3669 (BSJ), 2004 WL

943575, at *1-9 (S.D.N.Y. Apr. 30, 2004).

XXII

Chambers v. Nasco, Inc., 501 U.S. 32 (1991)

XXV111

Chevron U.S.A., Inc. v. N.R.D.C., Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694

(1984)

XXX

Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778. 81 L.Ed.2d 694 (1984).ii,

Cohen v. Rosenstein, 691 F. App’x 728, (Mem)-730 (4th Cir. 2017).......,.

XXXIV

DHS v. Regents of the University of California, 591 U.S.

(2020)........

iv, xix, - 3 Easley v. Virginia Alcoholic Beverage Control Bd., 57 Va. Cir. 15 (2001)

........... xxiv

Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).......

xxvi

Fairfax Cnty. v. Williams, 216 Va. 49, 58 (1975)). And, in Bd. of Supervisors v. Snell

Corp., 214 Va. 655 (1974)................................................................................

- 38 Farid v. Smith, 850 F.2d 917 (2d Cir. 1988)....................................................

XXII

Gavett v. Alexander, All F. Supp. 1035 (D.D.C. 1979)................................. - 42 -, - 43 Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978)..............................................

XXVI

Government Strategy & Tech., LLC v. O’Donnell, 84 Va. Cir. 223 (2012)

XXV

In Re: Major Mike Webb, CL21001829 (Alexandria Cir. 2021)

xiv, - 31 -, 37

__ In'Re:'MdjofMike Webb,(Record No. 21-A_____ (U.S. 2021)..

xxxv, - 20 In Re: Major Mike Webb, Record No. 21-A

(U.S. 2021)

International Shoe v. State of Washington, 326 U.S. 310 (1945)..................... ........xxviii

Jacobson v. Massachusetts, 197 U.S. .11 (1905)................................................... xix, xxix

Jacobson v. Massachusetts, 197 U.S. 11, 25 S. Ct. 358, 49 L. Ed. 643 (1905)

IV-'

'XXIX'

Little Sisters of the Poor Home for the Aged, Denver, Colo. v^Burwell, 794 F.3d 1151

(10th Cir. 2015), vacated and remanded sub norh. Zubik v. Burwell, 136 S. Ct. 1557,

194 L. Ed. 2d 696 (2016)...........................................................

- 42 Luther v. Borden, 48 U.S. (7 How.) 1, 2, 12 L.Ed. 581 (1849)

XXX

Marbury v. Madison, 1 Cranch, 137 (1803).............................

XXV11, XXXIV

Michigan v. EPA, 576 U. S. 743 (2015).....................................

.iv, xix, - 3 Milliken v. Meyer, 311 U.S. 457 (1940).....................................

xxix

Minnesota v. Barber, 136 U. S. 313 (1890)...............................

xxix

Mugler v. Kansas, 123 U. S. 623 (1887)....................................

Natural Gas Pipeline Company of America v. Energy Gathering Inc., 2 F. 3d 1397

(1993)............................................................................................................................

xxvm

xxix

Opp. Brief, Hughes v. Northam, Civil Action No. CL20-415 (Russell Cy. Cir.)

- 42 Religious Freedom Restoration Act............................................................................

XXIV

Roe o. Wade, 410 U.S. 113 (1973)..............................................................................

Sancho v. U.S. Dept, of Energy, 578 F. Supp. 2d 1258 (D. Haw. 2008)............

Sarah Gibbens, “See how a sneeze can launch germs much farther than six feet,”

National Geographic, April 17, 2020............................................................................. - 39 Sec’y of Labor v. T.P. Mining, Inc., 8 FMSHRC 687 (1986)........................................ XXVI

Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969.................... XXIV

Sterling v. Constantin, 287 U.S. 378 (1932).........................................

XXX

XXX111

Thompson v. Bacon, 245 Va. 107 (1993)...............................................

XXVI

Truax v. Corrigan, 257 U.S. 312, 42 S.Ct. 124, 66 L.Ed. 254 (1921)

XXI

U.S v. Meyers, 95 F.3d 1475 (10th Cir. 1996)......................................

U.S. v. Anderson, 747 F.3d 51, 60 (2d Cir.2014).................................

- 30 -, - 36 U.S. v. Burr, 25 F. Cas. 55 (C.C.D. Va. 1807)......................................

U.S. v. Climico, No. S2 11 CR. 974-08 CM, 2014 WL 4230320, at *1-7 (S.D N.Y. Aug.

7, 2014).............................................................................................................

- 30 - 36 .U.S. v. Nixon, 418 U.S. 683 (1974)............................................................... .

XXVll, XXXIV

U.S. v. Pungitore, 910 F.2d 1084 (3d Cir. 1990)........................................ .

- 30 -, - 35 U.S. v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987)

............ xxxi

U.S. v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948) - 39

U.S. v.Chalk, 441 F.2d 1277, 1281 (4th Cir. 1971)................................... ............ XXX

U.S.A. v. Nixon, 418 U.S. 683 (1974)....................................................................

. U.S.A. v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)......................

-United-States v. De-Parias, 805 F.2dU447,U454-(llth-Cir;1986), cert, denied, 482

U.S. 916, 107 S.Ct. 3189, 96 L.Ed.2d 678 (1987)..................

- 30“-, - 36 - 30 -, - 36 - 30 -, - 36 -

United States v. Eggleton, 799 F.2d 378, 380-81 (8th Cir.1986)

United States v. Miles, 468 F.2d 482, 489-90 (3d Cir. 1972)......

Universal Oil Prods. Co. .v. Root Refining Go., 328 U.S.-575,-66 S.Ct. 1176, 90 L.Ed.

xxvm

1447 (1946)

•xxx-

XXXlll

Walker Agency, Inc, v. Lucas, 215 Va. 535 (1975).............. .............

xi, xvii, - 20 Webb u. Fauci, et al, Civil Action No.' 3:21CV432 (E.D.Va. 2021)

Webb v. Northam, Case No. CL20001624, (Alexandria Cir. 2020), on appeal Webb v.

Northam, Record Number 210536 (Va. 2021)

- 31 - 37 Webb v. Northam, et al., 3:20-cv-00497 (E.D. Va. 2020), on appeal Webb v. Northam,

1, xiv

et al, No. 20-1968 (4th Cir. 2021)

Webb u. Northam, Webb v. Northam, et al, Case Number CL20001624 (Alexandria

Cir. 2020), on appeal Webb v. Northam, Record Number 210536 (Va. 2021).......... Xll

West Virginia State Bd. of Educ. v. Barnett, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed.

1628 (1943)....................................................................................................................... xxiv

Zvi Bar-Yam & Yaneer Bar-Yam, “The Potential for Screening and Tracking of

COVID-19 Using Particle Counters, Version 2,” New England Complex Systems

Institute, March 29, 2020

- 16 -, - 40 -

Statutes

18 U.S.C. § 1512........

18 U.S.C. § 175..........

18 U.S.C. § 175b........

28 U.S.C. § 1295.......

42 CFR Part 73..........

5 U.S.C. § 3331..........

7CFR Part 331...........

9 CFR Part 121..........

vi, vii, viii, - 29 .....................- 17 .....................- 17 IX

.......... - 17 - 31 - 37 .......... - 17 .......... - 17 -

.11, IV

Constitution...................

- 20 Executive Order 12958

Executive Order Number 63 (2020), Order of Public Health Emergency Five:

Requirement to Wear Face Covering While Inside Buildings, dated May 26, 2020

amended November 13, 2020............................................................................... .... iii, - 3 Freedom of Information Act (FOIA), 5 U.S.C. § 552............................................ ii, xi, - 20 Ralph Northam & Kelly Thomasson, Executive Order Number Fifty-Three,

Temporary Restrictions on Restaurants, Recreational, Entertainment, Gatherings,

Non-Essential Retail Businesses, and Closure ofK-12 Schools Due to Novel

Coronavirus (COVID-19), March 23, 2020, amended April 15, 2020, amended May

- -- 4,-2020.:.......... ..................................................................................... .-................. .

- 32 ■’—.Ralph Northam .& Nofnian OliverGovernor-andlStdtfHealtJT’

- 32 Commissioner: Declaration of Public Health Emergency, March 17, 2020.....

Ralph Northam, Executive Order Number 51 (2020,), Declaration of a State of

Emergency Due to Novel Coronavirus (COVID-19), March 12, 2020, amended May

- 32 ............. 26, 2020 ........

*" Va. Code § 18.2-422

xxxiii, - 4 'XXXI'

Va. Code jj 44-146.17..

-5-

Other Authorities

Abby Phillip & Jeff Simon, “Virginia’s off-year elections could pose key test for both

parties,” CNN, February 28, 2021 ...................................................................................... x

Alan Suderman, “Northam, Nation’s Only Doctor Governor, Offers Sober Voice on

xxxiv, - 7 Coronavirus,” NBC Washington, April 9, 2020

Ashley Yeager, “Could Statins Reduce the Severity of COVID-19?” The Scientist,

June 12, 2020; Austin R. Morrison, et al., Acute hypertriglyceridemia in patients

with COVID-19 receiving tocilizumab, J. Med Virol., pp. 1791-1792 (2020)- 28 -, - 29

Associated Press, “Transcript: President Joe Biden on the Coronavirus Pandemic,”

NBC New York, March 11, 2021 ..

-6-,-10Ben Guarino, Chelsea Janes & Ariana Eunjung Cha, “Spate of new research supports

wearing masks to control coronavirus spread,” Washington Post, June 13, 2020 xv, 3-

Charlie Spiering, “Joe Biden: Pope Francis Told Me ‘I Was a Good Catholic’ and to

‘Keep Receiving Communion’,” Breitbart, October 29, 2021....................................... xi

Colleen Kelleher, “Alexandria police chief to retire,” WTOP, June 4, 2021................ xiv

Committee on Acute Exposure Guideline Levels, et al., Acute Exposure Guideline

Levels for Selected Airborne Chemicals: Volume 16(7). Washington (DC), National

- 16 -, - 23 Academies Press (March 21, 2014)

Craig A. Spencer, “‘Long-haul’ covid-19 complications are real. I faced similar

problems after surviving Ebola,” Washington Post, September 19, 2020............ - 22 David Goldman, “’GMA’ anchor George Stephanopoulos has been diagnosed with

- "coronavirus,” CNN, AprilT3,^2020...7................................................... 7..................... Xll

Derek K. Chu, et al., Physical distancing, face masks, and eye protection to prevent

person-to-person transmission of SARS-CoV-2 and COVID-19: a systematic review

XXXll

and meta-analysis, The Lancet, June 1, 2020, online June 1, 2020

Derek R. MacFadden, MD and Wayne L. Gold, MD Measles, 186 CMAJ 6, April 1

2014, see also Staff, “Transmission of Measles,” CDC, February 5, 2018,

https://www.cdc.gov/measles/transmission.html (accessed August 20, 2020)

- 14DODI 6420.01, National Center for Medical Intelligence (NCMI), March 20, 2009

incorporating Change 3, effective September 8, 2020 ................................................ Xlll

__ Elena Schneider, “Virginia Republicans are fired up

and Trump is_on the

......... sidelines," Politico.,.October 28,. 2021........................

FM 3-11.22, Weapons of Mass Destruction—Civil Support Team Operations, March

31, 2009

-8Governor of Virginia, “Governor Northam COVID-19 Briefing: September 1, 2020,”

Facebook, September 1,_2020., _.

__ ___

•XXXll'

https://www.facebook.cqm/watch/live/?v=345338893318066&ref=watch_permalink

(accessed September I,'2020)

-18 Governor Ralph Northam, “I’ll be in Northern Virginia at 2:00 PM this afternoon to

share the latest on COVID-19 in our Commonwealth. . Facebook, June 18, 2020,

https://www.facebook.com/watch/?v=266686721059875............................................. - 3 Gregory S. Schneider and Laura Vozzella, “Despite Northam’s public health

credentials, some Virginians question his leadership during pandemic,”

Washington Post, May 30, 2020....................................................................................... - 2 Holly Secon, “The coronavirus’ crown-like spikes give the virus family its name —

- 25 here's what it looks like,” Business Insider, January 28, 2020

James Kingsland, “COVID-19 liver damage may be more common than previously

thought,” Medical News Today, August 12, 2020; see also Staff, “What to Know

About Liver Disease and COVID-19,” CDC, May 5, 2020,

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/liver- 27 disease.html (accessed September 25, 2020)

Jason Socrates Bardi, “The Gross Science of a Cough and a Sneeze,” Live Science,

- 15 June 14, 2009

Jeff Williamson, “Virginians will be required to wear masks while attending church,”

Fox News, May 28, 2020............................................................................................... xxm

Jenna Luche-Thayer, “Suppressed Science Indicates Covid-19 Is Man Made,”

Linkedln, March 14, 2020............................................................................................ -24Jeremy Howard, et al, “Face Masks Against COVID-19: An Evidence Review,”

Preprints, doi:10.20944/prepnnts202004.0203.v2 (May 13, 2020)................. xx, xxm

Jeremy Howard, et al., Face Masks Against COVID-19: An Evidence Review,

Preprints, doi:10.20944/preprmts202004.0203.v2 (May 13, 2020).................

Jeremy M. Lazarus, “Faces of leadership: Virginia Health Commissioner M. Norman

Oliver is on front line of fight,” Richmond Free Press, March 26, 2020, updated

March 27, 2020..........................................................................................................

-5Jessie Yeung, et al., “March 15 coronavirus news,” CNN, March 15, 2020....

-7Jianyun Lu, et al., COVID-19 Outbreak Associated with Air Conditioning in

Restaurant, Guangzhou, China, 2020, 26 Emerg. Inf. Dis. 7 (July 2020) - 11 - 12 -,

- 14 -, - 15 Joanne Ma, “What effects can tear gas have on your health and the environment?”

South China Morning Post, November 20, 2019

- 13 John A. Lednicky, Isolation of SARS-_CoV-2_from the air in a car driven by.a COVID

■ —patient with mi/<Y///ttessrMedRxIV,-January 15r2020,-doi: ...........—

" https://doi.org/10.1101/2021.01.12*21249603.................................................. '........... - 19 Joseph J. Hout, et al., o-Chlorobenzylidene~Malononitrile (CS Riot Control Agent)

Associated Acute Respiratory Illnesses in a U.S. Army Basic Co?nbat Training

Cohort, 17.9 Military Medicine, pp. 7_93-.T98 (J.uly 2014).......................................... - 23 -

-xxxnr

_Josh Margolin & James Gordon Meek, “Intelligence report warned of coronavirus

crisis as early as November: Sources ‘Analysts concluded it could be a cataclysmic

event,’ a source said,” ABC News, April 8, 2020

Joshua Philipp, “COVID 19 Documentary - Epoch Times/ 1st Documentary Movie on

the Origin of CCP Crisis: Media Isn’t Showing You this via Epoch Times,” YouTube,

April 13, 2020

- 25 ■

Julia Belluz, “China’s cases of Covid-19 are finally declining. A WHO expert explains

why,” Vox, March 2, 2020, updated March 3, 2020................................................. - 35 Kaitlan Collins, “Psaki tests positive for Covid, last saw Biden Tuesday,” CNN,

October 31, 2021 .............................................................................................................

Kate Feldman, “Global COVID-19 death toll hits 5 million,” New York Daily News,

November 1, 2021

XXXV

Kelly Sedor, The Law of Large Numbers and Its Applications, Lakehead University

(2015)

-9Lidia Morawskal & Donald K. Milton, It is Time to Address Airborne Transmission of

COVID-19, Oxford University Press for the Infectious Diseases Society of America,

July 10, 2020

- 11 Linsey C. Marr, “Yes, the Coronavirus Is in the Air,” NYT, July 30, 2020.. - 11 -,- 12 Liu Zhen, “China set to step up tear gas production as demand for crowd control

weapons booms at home and abroad,” South China Morning Post, August 25, 2019 13 Lowell Feld, “Live Video, Highlights: Gov. Ralph Northam’s Tuesday (5/26) Virginia

COVID-19 Briefing,” Blue Virginia, May 26, 2020

- 41 Lowell Feld, “Live Video, Highlights: Gov. Ralph Northam’s Tuesday (5/26) Virginia

COVID-19 Briefing,” Blue Virginia, May 26, 2020

XXXIV

Marie K Tomlin, “Governor Bans All Events Over 100 People, Coronavirus Cases Up

to 45 in Va.,” WJJS, March 15, 2020

- 7Martin J Tobin, Why COVID-19 Silent Hypoxemia Is Baffling to Physicians, 202 Am.

J. Respir. Crit. Care Med. 3, pp. 356-360, August 1, 2020, doi: 10.1164/rccm.2020062157CP

- 22 Mel Leonor, “Virginia’s health department is looking for 1,300 COVID-19 contact

tracers. So far, it’s hired 168,” Richmond Times-Dispatch, June 5, 2020

-34Mike Baker & Sherri Fink, “Covid-19 Arrived in Seattle. Where It Went from There

Stunned the Scientists,” New York Times, April 22, 2020, updated May 6, 2020- 23 Molly. Nagel, “Biden says Pope Francis told him he’s a ‘good Catholic’ amid:criticism

----- over his abortion views*” ABC News, October 29, 2021 .............................................. - 6 Nat Malkus, “The CDC must explain the endgame for school masking mandates,”

Newsweek /AEI, October 29, 2021.;.... .................................. ;........................... :............ xvi

National Research Council, “Acute Exposure Guideline Levels for Selected Airborne

___ Chemicals: Volume 16,”-NationaLAcademi.es Press (2014)

- 41 -

-XXXIV-

Noelle Phillips & Elizabeth Hernandez, “Colorado business owners forced to act as

public health experts as government shirks mask mandates,” The Denver Post,

October 31, 2021 ............................................................................................................... XVII

Olivana Lathouris, “Red eyes and conjunctivitis new symptoms of COVID-19,” 9

News (Au), August 21, 2020. See also Staff, “COVID-19 and Your Eyes,” WebMD,

https://www.webmd.eom/eye-health/covid-19-and-your-eyes#l (accessed September

26, 2020)

- 21 Onur Aydin, et al., “Performance of fabrics for home-made masks against spread of

respiratory infection through droplets: a quantitative mechanistic study,” medRxiv

preprint doi: https://doi.org/10.1101/2020.04.19.20071779

- 40 Patrick Forterre, Defining Life: The Viral Viewpoint, 40 Orig. Life Evol. Biosph. 2, pp.

151-160 (April 2010)........................................................................................................... -9possible to interrupt virus spread, provided that countries put in place strong

measures to detect disease early, isolate and treat cases, trace contacts, and

promote social distancing measures commensurate with the risk”); but see

Benjamin Lesser, et al., “Local governments ‘overwhelmed’ in race to trace U.S.

COVID contacts,” Reuters, August 4, 2020.................................................................. -34Prashant Pradhan, et al., Uncanny similarity of unique inserts in the 2019-nCoV

spike protein to HIV-1 gpl20 and Gag bioRxiv, February 2, 2020....................... -24Principles of Epidemiology in Public Health Practice, Third Edition: An Introduction

to Applied Epidemiology and Biostatistics, “Lesson 3: Measures of Risk: Section 2:

Morbidity Frequency Measures,” CDC, May 18, 2012

-33Ramanan Laxminaraya, Epidemiology and transmission dynamics of COVID-19 in

two Indian states, pp. 691-697, Science 370 (2020)

- 34Raymond Tellier, et al., Recognition of aerosol transmission of infectious agents: a

commentary, 19 BMC Infect. Dis. 101, January 31, 2019,

https://doi.org/10.1186/sl2879-019-3707-y

- 12Robert Towey, “Global numbers of Covid cases and deaths rise for the first time in 2

months, WHO says,” CNBC, October 28, 2021

-6Samy Rengasamy, et al., Simple Respiratory Protection—Evaluation of the Filtration

Performance of Cloth Masks and Common Fabric Materials Against 20-1000 nm

Size Particles, 54 Ann. Occup. Hyg. 7, pp. 789-798 (2010)................................ xix, - 2 Sherry Gaba, “Understanding Fight, Flight, Freeze and the Fawn Response,”

Psychology Today, August 22, 2020

- 30 - 36 . Shuo.Feng,.etal., Correlatejyof protection against symptomatic and asymptoinatic

-SARS-CoV-2 infection, MedRix, June 24, 2021, doi:

—

https://doi.org/10.1101/2021.06.21.21258528

- 19Staff, “Automated Filter Tester: 8130A,” TSI, https://www.tsi.com/products/filtertesters/automated-filter-tester-8130a/ (accessed May 30, 2020).............................. - 1 -

•XXXV-

Staff, “Certitest Automated Filter Tester Model 3160,” TSfi

https://www.tsi.eom/getmedia/5ee9520b-eadf-4ad9-89a4-lbe3c7bd2c5c/3160-AutoFilter-Test_US_5001197_RevD_Web?ext=.pdf (accessed May 30, 2020)............ - 1 Staff, “Considerations for Wearing Masks: Evidence for Effectiveness of Masks,”

CDC, July 16, 2020, https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/cloth-face-cover-guidance.html

-43Staff, “Considerations for Wearing Masks: Help Slow the Spread of COVID-19” CDC,

August 7, 2020..................................................................................................................... xx

Staff, “COVID Data Tracker,” CDC, October 28, 2021, https://covid.cdc.gov/coviddata-tracker/#datatracker-home (accessed October 29, 2021)................................ - 5 Staff, “COVID Toes: What to Know About This Rare Symptom of Infection,”

Healthline, May 15, 2020................................................................................................. -26Staff, “COVID-19 in Virginia: Summary,” VDH, October 29, 2021........................... - 7 Staff, “Dioxins and their effects on human health,” WHO, October 24, 2016,

https://www.who.int/news-room/fact-sheets/detail/dioxins-and-their-effects-onhuman-health (accessed September 26, 2020)............................................... ............ -24Staff, “Dioxins, Furans and Dioxin-Like Polychlorinated Biphenyls Factsheet,” April

7, 2017, https://www.cdc.gov/biomonitoring/DioxinLikeChemicals_FactSheet.html

- 27 -, - 28 (accessed September 25, 2020)...........

Staff, “Dioxins,” NIH, August 28, 2017,

https://www.niehs.nih.gov/health/topics/agents/dioxins/index.cfm (accessed

-26September 25, 2020)..................................................................................................

Staff, “Ebola Report: Introduction,” CDC, July 9, 2015,

https://www.cdc.gov/about/ebola/introduction.html (accessed February 2, 2021)- 33 Staff, “Faith Based Organizations,” VDH,

https://www.vdh.virginia.gov/coronavirus/schools-workplaces-community..- 35 locations/faith-based-organizations/...........................

Staff, “Governor Ralph Northam,” Virginia Governor,

https://www.governor.virgima.gov/about-the-governoi7governor-ralph-northam/

(accessed June 20, 2020)..............................................................................

- 10 Staff, “How to help during COVID-19: Face Masks,” FBCAlexandria,

xxm

https://fbcalexandria.org/fbca-at-home (accessed April 24, 2020).....

Staff, “Measles (Rubeola): For Healthcare Professionals,” CDC, February 5, 2018,

https://www.cdc.gov/measles/hcp/index.html (accessed September 26, 2020)

- 15 Staff, “Multisystem inflammatory. syndrome in childremand adolescents temporally

■ -relatedto COVID-19: Scientific Brief,” WHO, May 15^2020..-.

..- 25 Staff, “NIOSH Publications & Products: Immediately Dangerous To Life or Health

(IDLH) Values: Table of IDLH Values: o-^hlorobenzylidene malononitrile:

Immediately Dangerous to Life or Health Concentrations (IDLH),” CDC, October 8,

2019 https://www.cdc.gov/niosh/idlh/intridl4.html (accessed October 31,..2021).- 21 ^ .

-xxxvr

Staff,_^Safer_at Home: Phase Three Guidelines for All Business Sectors,” Governor of

Virginia, https:'//www.governor;Virginia.gov/media/governorvirgimagov/governor-ofvirginia/pdf/Forward-Virginia-Phase-Three-Guidelines.pdf (accessed June 30, 2020)

................................................................................................................................................. xxii

Staff, “Scientific Brief: SARS-CoV-2 Transmission,” CDC, May 7, 2021

- 11 -, - 19 Staff, “Sheriff Lawhorne to retire at end of 2021,” Alexandria Times, Mai'ch 11, 2021

Staff, “Sunday, October 17, 2021 (FULL SERVICE),” FBC Alexandria, October 17,

2021, https://subspla.sh/jb2b7y8 (accessed October 31, 2021)................................... xv

Staff, “Transmission-Based Precautions: Droplet Precautions,” CDC, January 7,

2016, https://www.cdc.gov/infectioncontrol/basics/transmission-basedprecautions.html (accessed August 1, 2020)................................................................... xx

Stephanie Kramer, “More Americans say they are regularly wearing masks in stores

and other businesses,” Pew Research Center, August 27, 2020.............................. xvm

Steven Nelson, “White House ‘flagging’ posts for Facebook to censor over COVID

‘misinformation’” New York Post, July 15, 2021......................................................... XVII

Tara Parker-Pope, “What’s the Best Material for a Mask? Scientists are testing

everyday items to find the best protection from coronavirus. Pillow cases, flannel

pajamas and origami vacuum bags are all candidates,” NYT, April 20, 2020.... - 42 TM 43-0001-29, Technical Manual: Army Ammunition Data Sheets for Grenades,

June 1994 (Obsolete)........................................................................................................ - 14Verhovek, Molly Nagle & Libby Cathey, “Biden calls for mask mandates nationwide

for 3 months, targeting Trump’s pandemic response,” ABC News, August 13, 2020

................................................................................................................................................ xxxi

Veronica Stracqualursi, “Virginia Gov. Ralph Northam tests positive for Covid-19,”

CNN, September 25, 2020................................................................................................... xiv

WHO, Novel Coronavirus(2019-nCoV) Situation Report -11, January 31, 2020 ...- 33 /8\

'XXXVll*

ON PETITION FOR CERTIORARI TO THE UNITED STATES SUPREME COURT

Pursuant to Rule 10, incorporating Rules 10*14, 29, 30, 33.2, 34 and 39 for pro

se filers in forma pauperis, Guidance Concerning Clerk’s Office Operations, dated

November 13, 2020 and 28 U.S.C. § 1651, Appellant Michael D. Webb, a/k/a Major

Mike Webb (“Applicant” or “Webb”) respectfully petitions for grant of certiorari

regarding a dismissal ordered in error by the Trial Court, and affirmed, in error, on

appeal, arising from a matter brought against the facial coverings mandates in the

Commonwealth of Virginia, for which, as noted above, Appellant has established

jurisdiction for this Honorable Court.

STATEMENT OF THE CASE

It is a fact that, over a decade ago, the National Institute for Occupational Safety

and Health (NIOSH), using the gold standard efficacy testing apparatus, a Model 8130

Automatic Filter Tester, Staff, “Automated Filter Tester: 8130A,” TSI,

https://www.tsi.com/products/filter-testers/automated-filf.er-tester-8130a/ (accessed May 30,

2020), as well as a TSI 3160, “the most advanced system available for challenging filters and

filter media with submicrometer aerosols,” Staff, “Certitest Automated Filter Tester Model

3160,” TSI, https://www.tsi.com/getmedia/5ee9520b-eadr-4ad9-89a4-lbe3c7bd2c5c/3160-AutoFilter-Test US 5001197 RevD Web?ext=.pdf (accessed May 30, 2020), determined that any

protection afforded against microbial infection by anything less than a medical grade mask

would be marginal, and specifically stating that “[t]he penetration levels of these fabric

----- materiais-against both polydisperse-and monodisperse aerosols were much-higher-than the

penetrations for the control N95 respirator filter media.” Sarny Rengasamy, et al., Simple

__ Respiratory Protection—Evaluation of the Filtration Performance of Cloth Masks and

'.j

Common Fabric Materials Against 20-1000 nm Size Particles, 54 Ann. Occup. Hyg. 7, pp.

789-798 (2010).

Had this NIOSH study supported the usage of nonmedical grade facial coverings

there would be no necessity for “evolving science”. Gregory S. Schneider and Laura Vozzella,

“Despite Northam’s public health credentials, some Virginians question his leadership during

pandemic,” Washington Post, May 30, 2020 (“’There is no road map for closing or reopening

an entire economy, particularly in the absence of federal support, guidelines and constantly

evolving science,’ said Clark Mercer, Northam’s chief of staff.”).

As this Court has reiterated “judicial review of agency action. . . is limited to ‘the

grounds that the agency invoked when it took the action,’” Regents of the University of

California, 591 U.S., at

(quoting from Michigan v. EPA, 576 U. S., at 743) (emphasis

added), a decision that Appellee Northam had indicated that he well understood before an

audience in Fairfax, calling for two rounds of applause for the decision. Governor Ralph

Northam, “I’ll be in Northern Virginia at 2:00 PM this afternoon to share the latest on

COVID-19 in our Commonwealth. . .” Facebook, June 18, 2020,

https://www.facebook.com/watch/7v-2666867 2.1059875 (accessed June 20, 2020).

Yet, amid claims that “months of discord about the coronavirus epidemic have

transformed the cloth mask into a potent political symbol, touted by Democrats as a key part

of communal responsibility, labeled by some GOP leaders as a sign of government overreach

and as a scarlet letter pinned on the weak.” Ben Guaririo, Chelsea Janes & Ariana Eunjung

Cha, “Spate of new research supports wearing masks, to .control coronavirus spread,”

Washington Post, June 13, 2020, it remains a fact that that study by NIOSH was what was

known at the-time Appellee took actions to mandate nonmedical grade facial coverings,

Ralph Northam, Executive Order Number 63 (-2020),-0rde?--o/ Public Health Emergency

- 2 --

Five: Requirement to Wear Face Covering While Inside Buildings, dated May 26, 2020:

amended November 13, 2020, mandating that “[a]ll individuals in the Commonwealth aged

five and over shall, when entering, exiting, traveling through, and spending time inside the

settings listed below, cover their mouth and nose with a face covering, as described and

recommended by the CDC”, a measure was issued “in furtherance of Amended, Executive

Order 51 (2020) and Amended Executive Order 61 and Amended Order of Public Health

Emergency Three (2020).” Id. See also Ralph S. Northam & Mohammed Norman Oliver,

Executive Order Number Seventy-Nine (2021) and Order of Public Health Emergency Ten:

Ending of Commonsense Public Health Restrictions Due to Novel Coronavirus (COVID-19),

May 14, 20219. And a similar disregard for the controlling law has been exhibited in

treatment of the declaration of a communicable disease of public health threat, not simply

conceded, but celebrated to have been promulgated one month before the first reported case

of infection, Jeremy M. Lazarus, “Faces of leadership: Virginia Health Commissioner M.

Norman Oliver is on front line of fight,” Richmond Free Press, March 26, 2020, updated

March 27, 2020 (“On Feb. 7, a month before the first case of coronavirus was diagnosed in

Virginia, Dr. Oliver declared the virus a public health threat”), in direct contravention and

violation of a requirement under the controlling statute, Va. Code § 44-146.17 (Effective until

March 1, 2021), which provides, in relevant part, that the Governor’s authority regarding

executive orders is not plenary, and “[s]uch executive orders declaring a state of emergency

may address exceptional circumstances that exist relating to an order of quarantine or an

.order of-isolation concerning a communicable, disease of public health threat that is issued by .

9Rebran'ded to address a policy that “[m]asks are a critical tool in protecting yourself and others until you are fully

vaccinated”, surviving in the present executive order is the provision that “[mledical-grade masks and personal

protective equipment should be reserved for medical personnel’', Ralph S. Northam & Mohammed Norman Oliver.

Executive Order Number Seventy-Nine (2021) "andOrder qfPublic'Hecilih Emergency Ten: Ending of Commonsense

'Public-Health Restrictions Due to Novel Coronavirus (COVID-19), May 14, 2021, acknowledging the Class 6 felony

for donning a mask when over the age of 16, Va. Code § 18.2-422.

- 3 --

the State Health Commissioner for an affected area of the Commonwealth pursuant to

Article 3.02 (§ 32.1-48.05 et seq.) of Chapter 2 of Title 32.1.” (emphasis added)

Situation Report

As of this date, 740,348 American lives lost have been attributed to infections

arising from a novel coronavirus, Staff, “COVID Data Tracker,” CDC, October 28,

2021, httos://covid.cdc.gov/covid-data-tracker/#datatracker-home (accessed October

29, 2021), a number that the President has confirmed to account for “more deaths

than in World War I, World War II, the Vietnam War and 9/11 combined”, and daily

he has said he is reminded by a card that he carries in his “pocket with a number of

Americans who have died from COVID to date”, and on that historic date, marking

the first anniversary of the pandemic declaration, that foreboding number was

527,726. Associated Press, “Transcript: President Joe Biden on the Coronavirus

Pandemic,” NBC New York, March 11, 2021.

Sadly, with an 18% surge in reported cases in Europe, while infections in other

parts of the world are in decline, Robert Towey, “Global numbers of Covid cases and

deaths rise for the first time in 2 months, WHO says,” CNBC, October 28, 2021, and

while the President has, before an election, shuffled off for an extended with the Pope

to discuss issues such as abortion, global climate change and the pandemic, Molly

Nagel, “Biden says Pope Francis told him he’s a ‘good Catholic’ amid criticism over

•his abortion views,” ABC News, October 29, 2021, the World Health-Organization

(WHO) Director-General, Dr. Tedros Adhanom Ghebreyesus,-projects a sobering

prognosis: “It’s another reminder that the Covid-19 pandemic is far from over.” Id.

-4-

In Virginia alone, where the nations only physician serving as a state governor

has been the responsible executive, Alan Suderman, “Northam, Nation’s Only Doctor

Governor, Offers Sober Voice on Coronavirus,” NBC Washington, April 9, 2020, while,

today, there are a total of 13,907 fatalities, Staff, “COVID-19 in Virginia: Summary,”

VDH, October 29, 2021, an exponential leap from only one fatality on the very first

day in which he had begun a COVID-19 response, cancelling large, nonessential

gatherings of 100 persons or more, with only 45 laboratory confirmed cases, Marie K

Tomlin, “Governor Bans All Events Over 100 People, Coronavirus Cases Up to 45 in

Va.,” WJJS, March 15, 2020, from just over three thousand nationwide. Jessie Yeung,

et al, “March 15 coronavirus news,” CNN, March 15, 2020 (US cases grow: There are

now more than 3,000 cases of the novel coronavirus in the US, according to

government agencies and the CDC.”).

II.

“Fighting a Biological War

It is a fact that Biological warfare is the oldest type of weapon of mass

destruction (WMD)1(), dating back to the Mongols in 1347, Thinley Kalsang Bhutia,

et al.

“Biological Weapons

In History,”

Britannica,

November

2017,

https://www.britannica.com/technologv/biological-weapon/Biological-weanons-in

history (February 1, 2021) TA \1 “Thinley Kalsang Bhutia, et al., \“Biological

Weapons

History,\”

Britannica,

November

27,

2017,

■https://www.bri tannica^om/technologv/biological-weapon/Biolngical-weapens-in-

10 Weapons of mass destruction (WMD), are generally described as “chemical, biological, radiological, nuclear, or

high-yield explosive's Incident's'', or “[a]n emergency resultinsHfom the'"deliberate or uni'titeritibiTarrelease of nuclear,

biological, radiological, or toxic or poisonous materials or the detonation of a high-yield explosive", FM 3I \ .22.Weapons of Mass Destruction—Civil Support Team Operations, March 31, 2009.

•* 5 --

history (February 1, 2021), and the Assyrians in the 6th Century B.C. Staff, “First use

of biological- warfare,” Guiness Book of World Records,

January 20, 2002,

https://www.guinnessworldrecords.CQm/world-records/first-use-of-biological-warfare

(accessed February 1, 2021) TA \1 “Staff, \“First use of biological warfare,\” Guiness

Book

World

Records,

January

20,

2002,

https://www.guinnessworldrecords.coin/world-records/first-use-of-biological-warfare

(accessed February 1, 2021).

It may be readily and reasonably inferred that biological warfare provides a

first strike capability, with plausible deniability to exploit the most important

principle of warfare, in surprise; so, to counter a doctrinal and historical surreptitious

deployment, planners must be familiar with the science of infectious disease and

defeat the rebuttable presumption that any emerging public health threat is, in fact,

a surprise attack using a biological agent.

It is established that viruses-are the most abundant'biological particles in the

world, Patrick Forterre, Defining Life: The Viral Viewpoint, 40 Orig. Life Evol.

Biosph. 2, pp. 151-160 (April 2010), but, around the time of the emergence of MERS,

there were only a total of 119 viruses harmful to mankind. Mark Woolhous et al,

Human viruses: discovery and emergence, Phil. Trans. R. Soc. B, 367, pp. 2864-2871

(2012), infinitesimally ..small-, -when considering..the Law of Large Numbers. .See

generally Kelly Sedor, The Law of Large Numbers and Its Applications, Lakehead

University (2015); Juan M. Sanchez, An Exercise in Sampling: The Effect of Sample

- 6 --

__ Size_ and Number of Samples on Sampling Error, 4 World Journal of Chemical

Education 2, pp. 45-48 (2016).

It is a fact that Appellee Ralph Northam a former army surgeon, Staff,

“Governor

Ralph

Northam,”

Virginia

Governor,

https://www.governor.virginia.gov/about-the-governoi7governor-raIph-northam/

(accessed June 20, 2020), who often stated that he was fighting a biological war,

Timothy Barber, “We’ve been fighting a biological war ABC7’s one-on-one with Gov.

Northam,” WJLA, December 14, 2020. See also Associated Press, “Transcript:

President Joe Biden on the Coronavirus Pandemic,” NBC New York, March 11, 2021

(“I’m using every power I have as President of the United States to put us on a war

footing to get the job done.)

It is a fact that the current public health guidance confirms that “[t]he

principal mode by which people are infected with SARS-CoV-2 (the virus that causes

COVID-19) is through exposure to respiratory fluids carrying infectious virus.

Exposure occurs in three principal ways: (1) inhalation of very fine respiratory

droplets and aerosol particles, (2) deposition of respiratory droplets and particles on

exposed mucous membranes in the mouth, nose, or eye by direct splashes and sprays,

and (3) touching mucous membranes with hands that have been soiled either directly

by virus-containing respiratory fluids or indirectly by touching surfaces with virus on

them. Sta’ff, “Scientific Brief: SARS-CoV-2 Transmission,” CDC, May 7, 2021

(emphasis added), a modification from droplet transmission to aerosols that had been

the recommendation of at least 238 scientists since July 2020. Lidia Morawskal &

Donald K. Milton, It is Time to Address Airborne Transmission of COVID-19, Oxford

University Press for the Infectious Diseases Society of America, July 10, 2020; see

also Linsey C. Marr, “Yes, the Coronavirus Is in the Air,” NYT, July 30, 2020, but

also her work in the Chinese restaurant case study that formed the basis of that same

recommendation. See Jianyun Lu, et al., COVID-19 Outbreak Associated with Air

Conditioning in Restaurant, Guangzhou, China, 2020, 26 Emerg. Inf. Dis. 7 (July

2020).

III.

Aerosol Transmission

It is a fact that a leading environmental engineer from Virginia Tech

University was a part of this recommendation to modify the transmission model to

aerosols1], see Linsey C. Marr, “Yes, the Coronavirus Is in the Air,” NYT, July 30,

2020, as well as a coauthor of the primary study upon which that recommendation

had relied, see Jianjmn Lu, et al., COVID-19 Outbreak Associated with Air

Conditioning in Restaurant, Guangzhou, China, 2020, 26 Emerg. Inf. Dis. 7 (July

2020), a study in which leading medical experts had determined that, on January 24,

2020, in a dining room, measuring exactly 145 square meters, with a total of 91

persons, including eight staff members, only ten persons seated within a space,

measuring exactly 30 square meters, found “Families A and B were each seated for

'.^Strictly-speaking; ‘aerosols' refeixto particles in-suspension in a gas,.such as small droplets imair”, and “[f]or

•• • tuberculosis (TB), definitive experimental evidence.of.airborne-transmission being necessary and-sufficient to cause

disease was provided in a series of guinea-pig experimen'ts'[fobtnotes omitted], which has been repeated more recently

in a slightly differenyclinical context (footnote omitted]" and “[njumerous other outbreak reports have confirmed the

transmissibility of TB via the airborne route [footnotes omitted], and interventions specifically targeting the airborne

transmission route have proven effective in reducing TB transmission [footnote omitted].” Id. And, similarly, for

another validated highly contagious disease, “[f]or smallpox, a recent comprehensive, retrospective analysis of the

literature by Milton has suggested an important contribution of the airborne transmission route for this infection.”

Raymond Teilier, et a/., Recognition of aerosol transmission of infections agents: a commentary, 19 BMC Infect. Dis.

101. January 31.2019. https://doi.oiWl0.1 186/s i2879-019-3707-v.

- 8 --

an overlapping period of 53 minutes and families A and C for an overlapping period

of 73 minutes”, with “[t]he air outlet and the return air inlet for the central air

conditioner were located above table C”, and that those subjects, ranging in age from

20 to 82, with only two individuals evidencing a prior medical condition of

hypertension (ages 63), a retired male and female, and one with an additional medical

condition of hyperlipidemia (female), all received a sufficient exposure to an infectious

dose so as to develop an infection, exhibited through presentation of asymptomatic

signs of infection, like running nose and/or, cough, and/or symptoms of fever,

polypnea, head pain, chest pain, and/or diarrhea by February 5, 2020, and all of such

severity that all were hospitalized, beginning with the index case, a 63 year old female

retiree, who had traveled 614 miles with four members of her family from Wuhan for

a lunch date. Id.

It is a fact that a smoke grenade, a riot munition that the Beijing government

had prioritized for. production as late as August .2019,. .Liu. Zhen,_“China_set to step___

up tear gas production as demand for crowd control weapons booms at home and

abroad,” South China Morning Post, August 25, 2019, bringing their own unique

concerns, Joanne Ma, “What effects can tear gas have on your health and the

environment?” South China Morning Post,.November 20, 201912, has an effective area

target range of exactly 30 square meters, TM 43-0001-29, Technical Manual: Army

Chinese CS grenades bum at a higher temperature than those made in Western countries. When the grenade is

tired, the compounds inside, which include chlorine and organic matter, can turn into highly toxic dioxins.

Dioxins pose a serious health threat. According to the WHO, they can cause problems with reproduction and

development, and change the immune system. They can also disrupt hormones and lead to cancer.” Id.

-9-

Ammunition Data Sheets for Grenades, June 1994 (Obsolete) (“The ignited smoke

composition disperses to produce a white smoke cloud within 2 to 6 seconds after

firing at approximately 98 feet (30 m) from the launching device.”), the exact

dimensions of the affected area in the Chinese restaurant study. Jianyun Lu, et al.,

COVID-19 Outbreak Associated with Air Conditioning in Restaurant, Guangzhou,

China, 2020, supra.

It is a fact that “’[m]easles, with an attack 90% attack rate, is one of the most

infectious viruses harmful to man, Derek R. MacFadden, MD and Wayne L. Gold, MD

Measles, 186 CMAJ 6, April 1, 2014, see also Staff, “Transmission of Measles,” CDC,

February 5, 2018, https://www.cdc.gov/measles/transmission.html (accessed August

20, 2020), and the “[m]easles virus can remain infectious in the air for up to two hours

after an infected person leaves an area,” Staff, “Measles (Rubeola): For Healthcare

Professionals,” CDC, February 5, 2018, https://www.cdc.gov/measles/hcn/index.html

(accessed September -26,. 2020), see also Jason.Socrates Bardi, “The Gross Science of.

a Cough and a Sneeze,” Live Science, June 14, 200918, creating an infection risk time

period conforming to the exposure risk in the Chinese restaurant study. Jianyun Lu,

“Once airborne, viruses in these tiny droplets can survive for hours. Even if the droplets hit a surface, the viruses

can survive and still spread disease if the droplets become airborne later. When a droplet lands on paper, its virus

particles can survive for hours. On steel or plastic they can survive for days.

---- Once-they are-breathed -in, the droplets settle onto-cells at-the back-of the throat,-wtiere the-v.irus.attempts to.enter these-----cells'and begin'replicating. This may of may not cause an infection. The body’s natural defehses'are'designe'd to

........... ’

__eliminate infections, and whether someone will fall ill depends on how much virus is breathed in an_d whether the

person’s immune system has encountered that virus previously, said Julian Tang, a clinical virologist in Singapore.

When people do get sick, the body tries to deal with the infection by bringing up mucus to help clear it. Some of this

mucus is swallowed, carrying the virus down to be destroyed by stomach acid. Some viruses in the throat, though, will

be expelled when we cough, and this coughing expels the mucus (and new virus) out of the body, thus beginning the

whole process anew.” Id.

■■ io --

et al., COVID-19 Outbreak Associated with Air Conditioning in Restaurant,

Guangzhou, China, 2020, supra, consistent with the standard exposure risk after the

deployment of a standard smoke grenade munition. TM 43-0001-29, Technical

Manual: Army Ammunition Data Sheets for Grenades, supra.

It is a fact that Appellee Northam had assured Virginians that, “[t]he CDC and

Virginia health officials have recommended wearing face cloth face coverings for

many weeks, citing research that shows coronavirus is easily spread person to person

by droplets expelled when someone speaks or coughs,” and, it is well-established that

the largest presentation of a SARS-CoV-2 particle measures 0.14 g, Zvi Bar-Yam &

Yaneer Bar-Yam, “The Potential for Screening and Tracking of COVID-19 Using

Particle Counters, Version 2,” New England Complex Systems Institute, March 29,

2020, while the smallest deployment particle for tear gas, or Corson and Stoughton

(CS) gas, in technical nomenclature, measures almost six times larger. Committee on

Acute Exposure Guideline Levels,.et al., Acute Exposure Guideline Levels forSelected

Airborne Chemicals: Volume 16(7). Washington (DC), National Academies Press

(March 21, 2014).

IV.

Biological Agent

It is a fact that SARS-CoV2 is not listed on the Select Agents and Toxins List,

7CFR Part 331, 9 CFR Part 121, and 42 CFR Part 73, nor is MERS-CoV, while SARSV' CbV. is listed, ^ ’requirement for .charging alcfimihal defendant under 18 U.S.C. §

175b, which makes it “unlawful for a restricted person to. . . (A) ship, transport, or

possess in or affecting interstate or foreign commerce any- biological-agent-or toxin

•• 11 -

described in paragraph (2); or (B) receive any biological agent or toxin described in

paragraph (2) that has been shipped or transported in interstate or foreign

commerce.” See also 18 U.S.C. § 17514

It is a fact that Appellee Northam had conceded that at no point had he ever

considered that the novel coronavirus had potential origins in a laboratory, or the

contingency that the biological agent may have, at some later point, might be

weaponized, as attached at Exhibit K, just as it is a fact that Ms. Marr has failed to

respond to inquiries from Appellant regarding her confirmation of a primary aerosol

transmission for COVID-19 and the potential for weaponization of the biological

agent by adversaries of this nation, as attached at Exhibit L.

It is a fact that the aerosol transmission risk as the primary means of

transmission for COVID-19 prior to Labor Day 2020, with no revision in guidance,

Governor of Virginia, “Governor Northam COVID-19 Briefing: September 1, 2020,”

Facebook,

"•••

September

2020,

ht.tns://www.facebook.com/watch/live/?v-345338893318066&ref=watch permalink

(accessed September 1, 2020), and it is a fact that a car transmission study for

COVID-19, examining an infected patient, in her 20s, who was directed to drive

around for hours in an automobile equipped with an impacting filter air sampler,

equipped with five separate apertures, to collect air samples, that would be routed

14 “Whoever knowingly develops, produces, stockpiles, transfers, acquires, retains, or possesses any biological agent,

toxin, or delivery system for use as a weapon, or knowingly assists a foreign state or any organization to do so, or

attempts, threatens,'or'co'nsp'ires to do the same.'shall-be fined undeFthTs title or imprisoned ToFlife or’any term of

years, or both. There is extraterritorial Federal jurisdiction over an offense under this section committed by or against

a national of the United States." Id.

" 12 --

through four chambers, designed to render any viable agent nonviable, but that study

found, to its surprise that 2019-nCoV viriols, measuring 0.25 to 0.50 microns, not only

appeared to prefer collection in one aperture, completely avoiding one, which may

reflect air currents and ventilation, but also found surviving viable viriols in the

chamber the particle had randomly selected for mass proliferation, a journey it should

not have survived, in nature, John A. Lednicky, Isolation of SARS-CoV-2 from the air

in a car driven by a COVID patient with mild illness, MedRJV, January 15, 2020,

doi: https://doi.org/10.1101/2021.01.12.212496Q3. the genomic equivalent of a “Cop

Killer” Winchester Black Talon, Teflon coated bullet, which would be then capable to

render medical grade protection wholly ineffective, which turns zoonotic evolution

theory on its head.

This study also suggests that the author not only in this study, but also in a

previous November study, was fully aware of the infectious dose for COVID-19; yet,

to date, official, public guidance states_.that .“[t.]he infectious dose of SARS-CoV-2

needed to transmit infection has not been established.” Staff, “Scientific Brief: SARSCoV-2 Transmission,” supra, a metric required to determine the proper correlates of

protection to develop an effective vaccine, without the requirement for large stage

three clinical trials, Shuo Feng, et al., Correlates of protection against symptomatic

and

asymptomatic

SARS-CoV-2

infection,

MedRix,

June

24,

2021

doi:

—https://doi.org/10.-il0i/-2021.d6.21.21258528.- a- metric not even discussed by Dr.

Anthony Fauci in a White House Briefing until the same day that the Pfizer vaccine

—was-rushed-to approval-at the Food & Drug-Administration- -

-- 13 --

It is a fact that, in related litigation, see Webb v. Fauci, et al., Civil Action No.

3:21CV432 (E.D.Va. 2021); In Re: Major Mike Webb, Record No. 21-A.

(U.S. 2021),

brought by Appellee, the White House has neglected to provide responsive documents

under the Freedom of Information Act (FOIA), regarding an inquiry as to whether the

infectious dose and/or secondary attack rate for COVID-19 is classified information,

which could only be the case if the causative agent for COVID-19 was the property of

the United States government. Executive Order 12,958, Classified National Security

Information, April 17, 199515. See also Executive Order No. 12,356, National Security

Information, Section 6.1(b)16; Association for Molecular Pathology v. Myriad Genetics,

Docket No. 12-398, 566 U.S.

(2013); Diamond v. Chakrabarty, 447 U. S. 303

(1980).

It is a fact that, with regard to CS gas, “[exposures above 14 mg/m3 for 1 hour

produced extreme irritation, erythema, and vesication of the skin of volunteers

[Weigand 1969]”, Staff, “NI.OSH Publications.&.Products: Immediately Dangerous

To Life or Health (IDLH) Values: Table of IDLH Values: o-Chlorobenzylidene

malononitrile: Immediately Dangerous to Life or Health Concentrations (IDLH),”

CDC, October 8, 2019 htt,ns://www.cdc.gov/niosh/idlh/intridi4.html (accessed October

31, 2021), and, while not indicated by national or world public authorities, there have

been reported incidence of COVID-19 related conjunctivitis. Olivana Lathouris, “Red

15 “Information"’ means any knowledge that can be communicated or documentary material, regardless

of its physical form or characteristics, that is owned by, produced- by or for, or is under the control of

...the~Uniled States Government:: Id., Part I; Sectio'irr:l(b)r(e'm'phasis added)'

“’Information’ means mayhhformatlon or material, regardless of its physical form or characteristics,

that is owned, by, produced by or for, or is under the control of the United- States GovernmentId.

" 14 ••

eyes and conjunctivitis new symptoms of COVID-19,” 9 News (Au), August 21, 2020.

See also Staff, “COVID-19 and Your Eyes,” WebMD, https://www.webmd.com/evehealth/covid-19-and-vour-eves#l (accessed September 26, 2020).

Moreover, it is of at least some significance, in view of evidence that COVID19 has been associated with complications that have baffled treating physicians, but

see Martin J Tobin, Why COVID-19 Silent Hypoxemia Is Baffling to Physicians, 202

Am.

Respir.

Crit.

Care

Med.

pp.

356-360,

August

2020,

doi:

10.1164/rccm.202006-2157CP (noting that “[t]he Wall Street Journal considers it a

medical mystery as to why ‘large numbers of Covid-19 patients arrive at hospitals

with blood-oxygen levels so low they should be unconscious or on the verge of organ

failure”, which respiratory specialists find not surprising, at all)), while some also

suggest that long term complications may arise, see Craig A. Spencer, “‘Long-haul’

covid-19 complications are real. I faced similar problems after surviving Ebola,”

Washington.Post,..September 19,.2020., see also.Mike Baker & Sherri Fink, “Covid-19 .

Arrived in Seattle. Where It Went from There Stunned the Scientists,” New York

Times, April 22, 2020, updated May 6, 2020, that

Chinese CS[17 18] grenades burn at a higher temperature than those made in

Western countries. When the grenade is fired, the compounds inside, which

include chlorine and organic matter, can turn into highly toxic dioxins.

Dioxins pose a serious health threat. According to the WHO, they can cause

problems wit'h'reproductio'n and=development, and'charige the immune system1. "=-T

They-can also disrupt hormones and lead to cancer. Joanne Ma, “What effects—

17 “CS" is an abbreviation for “Corson and Stoughton". Committee on Acute Exposure Guideline Levels, et ai, Acute

Exposure Guideline Levels for Selected Airborne Chemicals: Volume 16(7). Washington (DC), National Academies

^ ■ Press (March 21,2014). V ' '

— IS Joseph J. Hout, et at., o-Ch/orobenzylidene MalononilrUe (CS Riot Control Agent) Associated Acute Respiratory

Illnesses in a J.S. Army Basic Combat Training Cohort, 179 Military Medicine, pp. 793-798 (July 2014).

- 15 -

can tear gas have on your health and the environment?” YP, November 20,

2019.

Dioxins are highly toxic, cannot be easily extracted from the body and, therefore,

persist and accumulate and are produced “when organic matter burns at a very high

temperature with chlorine present”. Id. World public health authorities suggest that

“they last a long time because of their chemical stability- and their ability to be

absorbed by fat tissue, where they are then stored in the body”, with an associated

“half-life in the body... estimated to be 7 to 11 years.” Staff, “Dioxins and their effects

on human health,” WHO, October 24, 2016, https://www.who.int/news-room/factsheets/detail/dioxins-and-their-effects-on-human-health

(accessed September 26,

2020).

Moreover, the presence of HIV inserts in the novel coronavirus raised concerns

amongst some who early questioned its zoonotic evolution, See Prashant Pradhan, et

a!.. Uncanny si?nilarity of unique inserts in the 2019-nCoV spike protein to HIV-1

gpl20 and Gag,

bioRxiv, February 2, 202019 2,);

Joshua Philipp, “COVID 19

Documentary - Epoch Times/ 1st Documentary Movie on the Origin of CCP Crisis:

Media Isn’t Showing You this via Epoch Times,” YouTube, April 13, 2020. See also

Holly Secon, “The coronavirus' crown-like spikes give the virus family its name —

19 «

This paper has been'with'drawnrby its authors! They intend”fo revise it iiTfesponse to comments

-received from the research community on their technical approach and their-interpretation of the

results. If you have any questions, please contact the corresponding author.” Id.

20 Jenna Luche-Thayer, “Suppressed Science Indicates Covid-19 Is Man Made,” Linkedlnt March

14. 2020 (“[bioRxiv preprint first posted online Jan. 31,2020 first posted online Jan. 31, 2020;

-doi: http://dx.doi.Org/J.0.l 10J/2020.01.30.927874-.-The-copyright4iolder.for this preprint (which ^was not peer-reviewed) is the author/funder, who-has granted-bioRxiwa license to display the —’

preprint in perpetuity. It is made available under a CC-BY-NC-ND 4.0 International license.]”).

-- 16 "

here's what it looks like,” Business Insider, January 28, 2020 (updated with removal

of mention regarding HIV inserts, without attribution), and it is well-known that

dioxins also degrade the human immune system, Staff, “Dioxins and their effects on

human health,” supra, weakening the body’s natural defenses against infection.

Similarly, there have been reports regarding children experiencing multisytem

inflammatory syndrome, which include amongst the list of symptoms: “[r]ash or

bilateral non-purulent conjunctivitis or muco-cutaneous inflammation signs (oral,

hands or feet).” Staff, “Multisystem inflammatory syndrome in children and

adolescents temporally related to COVID-19: Scientific Brief,” WHO, May 15, 2020.

Although not indicated in national nor world public health guidance, there have

been rare reports, particularly amongst younger patients presenting with “COVID

toes,” associated with the appearance of the asymptomatic sign of a “painful red rash

that spreads across the toes.” Staff, “COVID Toes: What to Know About This Rare

Symptom-of Infection,-” Healthline,-May T5, 2020.

Further, it is known that related health effects from some dioxins, beyond being a

carcinogenic, “has been linked to a number of other diseases, including type 2

diabetes, ischemic heart disease, and an acne-like skin disease called chloracne, a

hallmark of dioxin exposure” and “can cause developmental problems in children, lead

to.reproductive and infertility problemsdn adults, result in-miscarriages, damage the

immune system, and interfere with hormones.” Staff, “Dioxins,” N1H, August 28,

2017,

https://www.niehs.nih.gov/health/topics/agents/dioxms/index.cfm

..... .^.September 25, 2020); -....

- 17 --

(accessed

Moreover, “[p]eople who have beenunintentionallyexposed to large amounts of

these chemicals have developed a skin condition called chloracne, liver problems, and

elevated blood lipids (fats)”, Staff, “Dioxins, Furans and Dioxin-Like Polychlorinated

Biphenyls

Factsheet,”

April

2017,

https://www.cdc.gov/biomonitoring/DioxinLikeChemicals FactSheet.html

(accessed

September 25, 2020), and COVID-19 has been associated with liver complications, see

generally James Kingsland, “COVID-19 liver damage may be more common than

previously thought,” Medical News Today, August 12, 2020; see also Staff, “What to

Know

About

Liver

Disease

and

COVID-19,”

CDC,

May

2020,

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/liverdisease.html (accessed September 25, 2020), as well as conditions arising from

elevated blood lipids. See generally Ashley Yeager, “Could Statins Reduce the Severity

of COVID-19?” The Scientist, June 12, 2020; Austin R. Morrison, et al., Acute

hypertriglyceridemia in patients with COVID-19 receiving tocilizumab, J. Med Virol.,

pp. 1791-1792 (2020).

Moreover, “[p]eople who have been unintentionally exposed to large amounts of

these chemicals have developed a skin condition called chloracne, liver problems, and

elevated blood lipids (fats)”, Staff, “Dioxins, Furans and Dioxin-Like Polychlorinated

Biphenyls

Factsheet

April

2017,

ht-t-os://w-w-w.cde.gov/biomonitori-ng/Dioxi-n-LikeChemicals- Fact'SheetJitm-L- (accessed

September 25, 2020), and COVID-19 has been associated with liver complications, see

-—— generally-James Kingsland, “COVID-19 liver damage-may be more common than

-- 18 -

previously thought,” Medical News Today2_August 12, 2020; see also Staff, “What to

Know . About

Liver

Disease

and

COVID-19,”

CDC,

May

2020,

httns://www.cdc.gov/coronavirus/2019-neov/need-extra-precautions/liverdisease.html (accessed September 25, 2020), as well as conditions arising from

elevated blood lipids. See generally Ashley Yeager, “Could Statins Reduce the Severity

of COVID-19?” The Scientist, June 12, 2020; Austin R. Morrison, et al., Acute

hypertriglyceridemia in patients with COVID-19 receiving tocilizumab, J. Med Virol.

pp. 1791-1792 (2020).

Evasion

It is a fact that 18 U.S.C. § 1512(b) creates a felony, punishable by fine and/or

imprisonment up to 20 years, for “[w]hoever corruptly persuades another person, or

attempts to do so, or engages in misleading conduct toward another person, with

intent to. . . (1) influence, delay, or prevent the testimony of any person in an official

proceeding; (2) cause or induce any person to. . . (A) withhold testimony, or withhold

a record, document, or other object, from an official proceeding; (B) alter, destroy,

mutilate, or conceal an object with intent to impair the object’s integrity or availability

for use in an official proceeding; (C) evade legal process summoning that person to

appear as a witness, or to produce a record, document, or other object, in an official

proceeding; or (D) be absent from an official proceeding to which such person has been

•summoned-by legal-process” (emphasis added), has-failed to make an appearance or

waive-service of process in this matter, nor, in compliance with Fed.R.Crim.Pro. 6(a),

has the TriM Court convened a grand jury

-- 19 "

It is a fact that Appellees, evidence of flight may be used to infer consciousness of

guilt, see U.S. v. Pungitore, 910 F.2d 1084 (3d Cir. 1990)21; U.S. v. Clitnico, No. S2 11

CR. 974-08 CM, 2014 WL 4230320, at *1-7 (S.D.N.Y. Aug. 7, 2014)22.See also Sherry

Gaba, “Understanding Fight, Flight, Freeze and the Fawn Response,” Psychology

Today, August 22, 2020-5, and, like the White House and other Respondents in Webb

u. Fauci, supra, have demonstrated a consistent pattern of attempting to evade service

of process in federal courts, despite a duly filed praecipe to perfect service of process,

directing the Court to compel the United States Marshal to perform the same, in the

present matter, as well as in state court actions, see Webb v. Northam, Case No.

CL20001624, (Alexandria Cir. 2020), on appeal Webb v. Northam, Record Number

210536 (Va. 2021), prompting Appellee to seek relief through a petition for writ of

mandamus to compel the Commonwealth Attorney for Alexandria to proffer charges.

See In Re: Major Mike Webb, CL21001829 (Alexandria Cir. 2021), which would

reasonably present a challenge for a licensed and practicing attorney, but a duty that

Evidence of a defendant's flight after a crime has been committed is admissible to prove his

consciousness of guilt. United States v. Eggleton, 799 F.2d 378, 380-81 (8th Cir.1986); United. States u.

De Parias, 805 F.2d 3447, 1454 (3 3th Cir. 1986), cert, denied, 482 U.S. 916, 107 S.Ct. 3189, 96 L.Ed.2d

678 (1987); United. States v. Miles, 468 F.2d 482, 489-90 (3d Cir. 1972). As the district court recognized,

the admissibility of flight evidence does not depend on whether the flight was triggered by an actual

indictment, as u ‘it is the act of departure that is itself evidential.’ ” Miles, 468 F.2d at 490 (quoting 2

Wigmore on Evidence § 276 (3d ed. 1970)). See 711 F.Supp. at 1321.”

22 “The Government niav prove. the_defendant’s. knowing participation in a conspiracyjthrqugh

circumstantial evidence, including: (1) the defendant's association with conspirators in furtherance of

---- the conspiracy; (2)-his or her presence-at-critical-stages of the conspiracy that cannot be explained by

happenstance’; (3) his or her ‘possession of items that are of essential significance to the conspiracy’;

aiid' (4)“act‘s that show a consciousness of guilt!' including false exculpatory statements.” Id. (quoting

U.S. v. Anderson, 747 J?.3d 51, 60 (2d Cir.2014).”

2:3 Medical science has determined that “[t]he most well-known responses to trauma are the fight,

’flight","or freeze responses”, and”science~ha‘s“evolved to recognize “a fourth possible response, the socalled fawn response.” Id.’Moreover. “lf]liglit ihcludes’funning or fleeing the situation, fight is to

become aggressive, and freeze is to literally become incapable of moving or making a choice.” Id.

21 “

-- 20 -

the pro se litigant has borne, pursuant to an oath to whichjie remains obligated as a

. military officer, albeit in retirement status. See 5 U.S.C. § 333124.

VI.

Not an Infectious Disease

It is a fact that the largest sample size tracer contacts before the statewide

lockdown order in the Commonwealth, Ralph Northam, Executive Order Number 51

(2020), Declaration of a State of Emergency Due to Novel Coronavirus (COVID-19),

March 12, 2020, amended May 26, 2020; Ralph Northam & Norman Oliver, Order of

Governor and State Health Commissioner: Declaration of Public Health Emergency,

March 17, 2020; Ralph Northam & Kelly Thomasson, Executive Order Number FiftyThree,

Temporary Restrictions on Restaurants, Recreational, Entertainment,

Gatherings, Non-Essential Retail Businesses, and Closure of K-12 Schools Due to

Novel Coronavirus (COVID-19), March 23, 2020, amended April 15, 2020, amended

May 4, 2020, a robust examination conducted by 1,800 teams of at least five

epidemiologists of of 55,924, and their close tracer contacts, the recommended method

for case identification, see (“Contact tracing. . . [was] a key part of this outbreak” and

“success stories from Mali, Nigeria, and Senegal have shown how effective contact

tracing can be in containing outbreaks.”) Staff, “Ebola Report: Introduction,” CDC,

July 9, 2015, https://www.cdc.gov/about/ebola/introductlon.htmI (accessed February

2, 2021); see also Principles of Epidemiology in Public Health Practice, Third Edition:

2.1

An individual, except the President, elected or appointed to an office of honor or profit in the civil service or

uniformed services, shall take the following oath: ‘I, AB, do solemnly .swear (or affirm) that I will support and defend

the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and

’ "'allegiance'lolhe same; that I take this obligation'freely, without any mental reservation or purpose of evasionfand that

' I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God." This

section does not affect other oaths required by law.’" Id.

-- 21 --

An Introduction to Applied Epidemiology and Biostatistics, “Lesson 3: Measures of

Risk: Section 2: Morbidity Frequency Measures,” CDC, May 18, 2012; WHO, Novel

Coronavirus(2019-nCoV) Situation Report - 11, January 31, 2020 (“it is still possible

to interrupt virus spread, provided that countries put in place strong measures to

detect disease early, isolate and treat cases, trace contacts, and promote social

distancing measures commensurate with the risk”); but see Benjamin Lesser, et al.,

“Local governments ‘overwhelmed’ in race to trace U.S. COVID contacts,” Reuters,

August 4, 2020; Mel Leonor, “Virginia’s health department is looking for 1,300

COVID-19 contact tracers. So far, it’s hired 168,” Richmond Times-Dispatch, June 5,

2020, it was determined that “it is not clear whether this correlates with the presence

of infectious virus”, finding a secondary attack rate of less than five percent, a clinical

metric that was revalidated in the largest sample size tracer contacts study to date,

examining over three million laboratory confirmed cases, but validating a secondary

attack rate 4.6%, Ramanan Laxminaraya, Epidemiology and transmission dynamics

of COVID-19 in two Indian states, pp. 691-697, Science 370 (2020), four times too low

to validate the existence of a communicable disease being transmitted from personto-person, Julia Belluz, “China’s cases of Covid-19 are finally declining. A WHO expert

explains why,” Vox, March 2, 2020, updated March 3, 2020, and 12 times too low to

set off a superspreader event. Martin J. Blaser & Lee S. Newman, A Review of Human

;Salmonellosis: Irlnfective Dose, 4 Reviews'of Infectious Diseases-6; pp__l096-1106T"

(November 1982). But see Stephen Nelson, “Anthony Fauci calls Rose Garden Amy

Coney .Barrett event a ‘super spreader’,” New York Post, . October_9, 2020; see_also_..

Staff,

“Faith

Based

- 22 --

Organizations,”

VDH,

https://www.vdh.virginia.gov/coronavirus/schools-workplaces-communitvlocations/faith-based-organizations/ (accessed August 29, 2021) (“Singing and playing

wind instruments are considered to be high risk activities for unvaccinated

individuals due to the increased amount of respiratory droplets and aerosols that may

contain the COVID-19 virus if a person is infected”).

Appellees, evidence of flight may be used to infer consciousness of guilt, see U.S.

u. Pungitore, 910 F.2d 1084 (3d Cir. 1990)25; U.S. v. Climico, No. S2 11 CR. 974-08

CM, 2014 WL 4230320, at *1-7 (S.D.N.Y. Aug. 7, 2014)26.See also Sherry Gaba,

“Understanding Fight, Flight, Freeze and the Fawn Response,” Psychology Today,

August 22, 202027, and, like the White House and other Respondents in Webb v. Fauci,

supra, have demonstrated a consistent pattern of attempting to evade service of

process in federal courts, despite a duly filed praecipe to perfect service of process,

directing the Court to compel the United States Marshal to perform the same, in the

-present matter, as. well..as in state court .actions, see. Webb v. Northam, Case No.

25 “Evidence of a defendant’s flight after a crime has been committed is admissible to prove his

consciousness of guilt. United States v. Eggleton, 799 F.2d 378, 380-81 (8th Cir.1986); United. States v..

Be Parias, 805 F.2d 1447, 1454 (11th Cir.1986), cert, denied, 482 U.S. 916, 107 S.Ct. 3189, 96 L.Ed.2d

678 (1987); United, States u. Miles, 468 F.2d 482, 489-90 (3d Cir.1972). As the district court recognized,

the admissibility of flight evidence does not depend on whether the flight was triggered by an actual

indictment, as “ ‘it is the act of departure that is itself evidential.’ ” Miles, 468 F.2d at 490 (quoting 2

Wigmore on Evidence § 276 (3d ed. 1970)). See 711 F.Supp. at 1321.”

20 “The Government may prove the defendant’s-knowing participation in a conspiracy through

circumstantial evidence, including: (1) the defendant’s association with conspirators in_furtherance of

- —the conspiracy; (2) his or her presence at-critical-stages of-the conspiracy that-c-annot be explained by

happenstance’; (3) his or her ‘possession of items that are of essential significance to the conspiracy’:

" and (4) acts that show a consciousness' of guilt, includirig'false exculpatory statements'.” 7c/. (quoting'U.S. v. Anderson, 747 F.3d 51. 60 (2d Cir.2014).”

27 Medical science has determined that “[tjhe most well-known responses to trauma are the fight,

'flight,'or freeze‘responses ’, and science has‘evolve"d'to ‘recognize‘“a fourth possible response, the so’ Called fawn response”’ Id. Moreover) “[f]ligKt includes running or fleeing the'situation,Tight is to

become aggressive, and freeze is to literally become incapable of moving or making a choice.” Id.

■■ 23 -

__ CL20001624, (Alexandria Cir. 2020), on appeal Webb u. NortJiam, Record Number

210536 (Va. 2021), prompting Appellee to seek relief through a petition for writ of

mandamus to compel the Commonwealth Attorney for Alexandria to proffer charges.

See In Re: Major Mike Webb, CL21001829 (Alexandria Cir. 2021), which would

reasonably present a challenge for a licensed and practicing attorney, but a duty that

the pro se litigant has borne, pursuant to an oath to which he remains obligated as a

military officer, albeit in retirement status. See 5 U.S.C. § 333128.

REASONS FOR GRANTING CERTIORARI

Whether the Trial Court had improperly dismissed Appellant’s case, raising

claims under the Free Exercise and Establishment Clauses in error.

As noted above, Appellant has presented to the Courts a justiciable issue,

regarding nonmedical grade facial coverings not reasonably calculated to address the

harm, and in furtherance of an illegitimate State Interest, in derogation of religious

liberties guaranteed under the First Amendment for religious liberty. In mere

pretext, the Trial Court dismissedAppellant’saver'ments as “mere criticisms”, while

Appellees, over the course of litigation that has spanned over a year, have failed to

make an appearance to present even an argument in litigation not even mentioned in

the press, raising a reasonable suspicion of an unlawful and nefarious purpose,

established by clear and convincing evidence.

28 “An individual, except the President, elected or appointed to an office of honor or profit in the civil service or

uniformed services, shall take the following oath: ‘1, AB, do solemnly swear (or affirm) that 1 will support and defend

. the Constitution of the United Slates against all enemies, foreign and domestic: that I will bear true faith and

allegiance to the same;’that ITake this’bbliga’tioh freely7w'fhout any mental reservatioh’or purpose of evasion; and that

I will well and faithfully discharge tlie duties of the office on which I am about to enter. So help me Go'd." This

section does not affect other oaths required by law.”’ Id.

-• 24 -

Accordingly, a grant of certiorari would be competent and the duty of this

Honorable Court.

“An issue may be said to be fairly debatable when, measured by both

quantitative and qualitative tests, the evidence offered in support of the opposing

views would lead objective and reasonable persons to reach different conclusions.” Id.

(citing Fairfax Cnty. v. Williams, 216 Va. 49, 58 (1975)). And, in Bd. ofSupervisors v.

Snell Corp., 214 Va. 655 (1974), the Virginia Supreme Court established the following

test to determine whether the presumption of reasonableness should prevail or has

been overcome:

Where presumptive reasonableness is challenged by probative evidence of

unreasonableness, the challenge must be met by some evidence of

reasonableness. If evidence of reasonableness is sufficient to make the question

fairly debatable, the ordinance ‘must be sustained.’ If not, the evidence of

unreasonableness defeats the presumption of reasonableness and the

ordinance cannot be sustained.

However, for a finding of that which was clearly erroneous, a “reviewing court

on the entire evidence. . . [would be] left with the definite and firm conviction that a

mistake has been committed,” Anderson v. City ofBessemer City, N.C., 470 U.S. 564,

564-82, 105 S. Ct. 1504, 1506-16, 84 L. Ed. 2d 518 (U.S. 1985) (quoting US. v.

United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948)).

As averred in the Original Complaint, researchers had determined that the SARSCoV*2-particle is suspended in medium-to large sized water droplets, measuring 5 to

10 microns (p) which science has long determined, possess no aerosol, or “airborne”

capability and, therefore, find their trajectory quickly subjected to gravity, and

-quickly fall to the-groundor on nearby objects after it’s expelled,” limiting the

-- 25 -

^distances the particle will travel. Sarah Gibbens, “See how a sneeze can launch

germs much farther than six feet.” National Geographic, April 17, 2020.

An N95 medical grade mask has added protection against these water droplets

because they are, by design, hydrophobic, and work to repel the droplet, while a

surgical mask or homemade substitute is hydrophilic, and will absorb the moisture

from the droplet, Onur Aydin, et al., “Performance of fabrics for home-made masks

against spread of respiratory infection through droplets- a quantitative mechanistic

study,” medRxiv preprint doi; httns://doi.org/10.1101/2020.04.19.20071779 (April 24,

2020),29 creating, essentially a “COVID-19 Catcher” on a person’s face, if it happens

to be found down range of a projectile droplet.

In addition to droplet size, medical masks must also create a barrier against the

particulate mass of the microbe, and scientists validate that the SARS-CoV-2 virus

particle measures 0.060-0.14p (“microns,” or “pm,”) (60 to 140 nm (nanometers)). Zvi

Bar-Yam & Yaneer Bar-Yam, “The Potential for Screening and Tracking of COVID19 Using Particle Counters, Version 2,” New England Complex Systems Institute,

March 29, 2020, but, in contemporary context, the smallest presentation of the active

ingredient for tear gas measures 0.6 microns, or six times larger than the largest

This_study served.as the basis for.all of the. assumptions in,a recent facial mask study, based ._

_upon projection inode 11 i ng_pf“R_Val uys,.^Richard O.J.J4. Stutt, et cil._.A modelling framework to

'"assess the likely effectiveness offacemasks'in'combination with ‘lock-down' in managing the

COVID-19 pandemic. Proc. R.Soc. A 476: 20200376. http://dx.doi.oro/10.1098/rspa.2020.0376 „

(June 10, 2020), publicized by the New York Times, heralding “R Values.” “Widespread Mask- Wearing Could Prevent COVID-19 Second ...” ATT, June 10, 2020 (deleted). See also Jeremy R.

—Hammond, “New-YorkTimes Laughably Lies That the Mask-Debate Is ‘Settled’,” Jeremy R.

'"Hammond.’Kme 572020.’- "

.......

................

- 26 ”

configuration for a SARS-CoV-2 particle. National Research Council,Acute _

Exposure Guideline Levels for Selected Airborne Chemicals1 Volume 16,” National

Academies Press (2014).

Hence, it is not even fairly debatable that a nonmedical grade facial covering that

could provide an inadequate “extra level of protection” against even riot agent

particles six times larger than the largest configuration of the 2019-nCoV particle

would be an impervious barrier against nanoparticles and microbial infection, a

clearly erroneous conclusion. Nonetheless, as averred in the Original Complaint,

Northam has taken the extreme position that even a bandana would provide

protection against microbial infection30, ” Lowell Feld, “Live Video, Highlights^ Gov.

Ralph Northam’s Tuesday (5/26) Virginia COVID-19 Briefing,” Blue Virginia, May

26, 2020, a proposition that even the New York Times has rejected. Tara Parker*

Pope, “What’s the Best Material for a Mask? Scientists are testing everyday items to

find the best protection from coronavirus,” NYT, April 20, 2020.

It is expressly clear that under “[t]he Religious Freedom Restoration Act, codified

at 42 U.S.C. § 2000bb-l et seq., . . . that laws that substantially burden a person’s

exercise of religion are only permissible if they are the least restrictive means of

furthering a compelling governmental interest.” Little Sisters of the Poor Home for

the Aged, Denver, Colo. v. Burwell, 794 F.3d 1151 (10th Cir. 2015), vacated and

remanded'sub nom. Zubiky: Burwell; l;S6 S. Ct. 1557, 194 L. Ed.;2d 696 (201:6), just'

as'“'a statute is valid evenif it impinges upon First Amendment freedoms if it

.3.0 >4

They don’t need to be medical grade: you can make your own. All you need is a piece of cloth

and some rubber bands. You can even grab a bandana." Id.

-- 27 --

‘further(s) some vital government en<^by a means that is least restrictive of freedom

of belief and association in achieving that end.’” Gavett v. Alexander, All F. Supp.

1035 (D.D.C. 1979) (citing Gavett v. Alexander, All F. Supp. 1035 (D.D.C. 1979).

A nonmedical grade, hydrophilic, cloth facial covering are only “a simple barrier to

help prevent respiratory droplets from traveling into the air and onto other people

when the person wearing the mask coughs, sneezes, talks, or raises their voice” and

“[t]his is called source control.” Staff, “Considerations for Wearing Masks- Evidence

for Effectiveness of Masks,” CDC, July 16, 2020,

httns://www, cdc.gov/coronavirus/2019-ncov/nrevent-getting-sick/cloth~face~coverguidance.html (accessed July 20, 2020).

II.

Whether, in dismissal of Appellant’s case, the Trial and Appellate Courts had

acted with a discriminatory motive, in derogation of Appellant’s religious

liberties, his suspect class or in stifling his free speech.

Clear and convincing evidence, as noted above, establishes a credible inference

that Appellant’s case was dismissed, in suppression of free speech on the facial

coverings issue, and, under strict scrutiny, as both a member of a suspect class and a

litigant raising the issue of a substantive right, the facts in the record raise a credible

issue for a trier of fact, regarding a discriminatory purpose.

CONCLUSION

For the reasons stated above, Appellant, Webb respectfully requests the Court

---- to -grant-certiorari to determine- whether the-decision by-the Trial Court,-affirmed on—

appeal, should be reversed and remanded for-trial-on the merits, as-well as such-other

equitable relief that the Court may deem proper, under the circumstances.

•• 28 "

CERTIFICATION

I declare under penalty of perjury that the foregoing is true and correct.

Name of Party (Print or Type): Major Mike Webb, 955 S. Columbus Street, Unit #

426, Arlington, Virginia 22204, GiveFaithATry@gmail.com, 856-220-1354.

Signature of Party

Executed on:

(Date)

Subscribed, acknowledged and sworn to before me, the undersigned Notary

Public in the County of

Virginia, this

the

Commonwealth

day of

, 20:2a

NOTARY PUiUG

JS Commonwealth of Virginia

Expires: 08/31/2022

ID #:7056724

Cs-

NOTARY PUBLIC

My commission expires:

Registration Number:

Major ML

•• 29 **

, Pro Se

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.