Petition for Writ of Certiorari — Aaron Abadi, Petitioner v. Anthony Stephen Fauci, et al.

Supreme Court briefSep 27, 2025

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Supreme Court of tlje ®niteb Stated

Aaron Abadi

Petitioner,

v.

Anthony Stephen Fauci et al

Respondents.

APPENDIX

TO PETITION FOR

WRIT OF CERTIORARI

To The United States Court of Appeals For

The Second Circuit

Filed by:

Aaron Abadi

Petitioner, pro se

82 Nassau Street Apt 140

New York, NY 10038

Tel: 516-639-4100

Email: abadi.rne@gmail.com

APPENDIX TABLE OF CONTENTS

Appendix A - Abadi v. American Airlines District

Court Decision with regards to Airline Defendants

(SDNY).............................................................................. la

Appendix B - Abadi v. American Airlines District

Court Decision with regards to Federal Defendants

(SDNY)........................................................................... 166a

Appendix C - Circuit Court Dismissal (2nd Circuit)

207a

Appendix D - Circuit Court Denial of Rehearing En

Banc.............................................................................. 222a

Appendix E - ACAA - 14 CFR 382 (Relevant

Sections)........................................................................223a

Doc. 346

UNITED STATES

DISTRICT COURT FOR

THE SOUTHERN

DISTRICT OF NEW YORK

USDC SDNY

DOCUMENT

ELECTRONICALLY FILED

DOC #:

DATE FILED: 3/29/2024

X

........

AARON ABADI

23-CV-4033

(LJL)

OPINION

AND ORDER

Plaintiff,

-vAMERICAN AIRLINES,

INC., et al.

Defendants.

LEWIS J. LIMAN, United States District Judge:

This Opinion and Order resolves three motions

pending before the Court: (1) the motion of

Defendants American Airlines, Inc, Delta Airlines,

Inc, JetBlue Airways Corp, Southwest Airlines Co,

United Airlines, Inc, (the “Domestic Airlines”), and

individual employees or agents of the Domestic

Airlines Robert Land, Roy Goldberg, Debbie

1a

Castleton, and Nathalie Simon (the “Domestic

Individuals”) to dismiss the Complaint for lack of

subject matter jurisdiction under Federal Rule of Civil

Procedure 12(b)(1) and for failure to state a claim for

relief under Rule 12(b)(6), Dkt. Nos. 121, 197; (2) the

motion of Defendant Silver Airways, LLC (“Silver,”

and, together with the Domestic Airlines and

Domestic Individuals, “Domestic Defendants”), to

dismiss the Complaint for failure to comply with

federal pleading standards under Federal Rule of

Civil Procedure 8 and for failure to state a claim for

relief pursuant to Rule 12(b)(6); (3) the motion of

Defendants Concesionaria Vuela Compania de

Aviacion, Royal Air Maroc, Aerovias de Mexico S.A. de

C.V., Transportes Aereos Portugueses, S.A., Spirit

Airlines, Inc., Avianca S.A., Singapore Airlines,

LATAM Airlines Group S.A., Iberia Lineas Aereas de

Espana, LOT Polish Airlines, S.A., British Airways

P.L.C. (the “Foreign Airlines”), and ndividual

employee Matthew Roberts (together with the Foreign

Airlines, the “Foreign Defendants,” and collectively,

with the Domestic Defendants and Silver, the

“Moving Defendants”)1 to dismiss the Complaint for,

inter alia, failure to state a claim for relief, Dkt. No.

179. For the following reasons, the motions are

granted.

1 Although Plaintiff alleges that Spirit Airlines is incorporated in

Delaware and headquartered in Florida, Compl. 39, because Spirit

joins the motion to dismiss of several foreign airlines, the Court

includes Spirit when it refers the motion to dismiss by the Foreign

Defendants for ease of reference.

2a

BACKGROUND

The well-pleaded allegations of Plaintiffs Complaint,

see Dkt. Nos. 3, 3-1, 3-2 (“Compl.”), are assumed to be

true for purposes of these motions. In light of

Plaintiffs pro se status, the Court construes the

Complaint liberally and broadly, and interprets it to

state the strongest claims it suggests. See, e.g.,

Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,

475 (2d Cir. 2006).

I.

The Relevant Parties

Plaintiff Aaron Abadi (“Plaintiff’ or “Abadi”),

proceeding pro se, is a resident and citizen of New

York. Compl.

1. He has a sensory processing

disorder that prevents him from wearing a mask. Id.

U 141. He “travels a whole lot,” id. 807, both for his

work and for pleasure, id. TH 174, 806-807. Plaintiff

works in the “waste management and energy

business” and is the owner and Chief Executive

Officer (“CEO”) of the National Environmental Group

(“NEG”), and “needs to travel for his income.” Id.

174, 813, 823. Plaintiff also “loves to travel for

pleasure.” Id. 174.

The Complaint names sixty-one defendants. The

defendants include forty-six airlines (“Airline

Defendants”), 2 several employees of airlines, two

attorneys who have represented airlines, two medical

2 On February 29, 2024, Plaintiff moved to drop his claims against

one airline, FAST Colombia S.A.S. doing business as Viva Air

Colombia, due to the airline’s bankruptcy proceedings. Dkt. No.

335. The Court granted Plaintiff’s request and dismissed

Plaintiff’s claims against that airline. Dkt. No. 336.

3a

advisory groups (MedAire, Inc., and the Center for

Emergency Medicine of Western Pennsylvania, doing

business as “STAT-MD”), and several “Government

Defendants,” including the National Institutes of

Health (“NIH”), the Centers for Disease Control and

Prevention (“CDC”), the United States Department of

Health & Human Services (“HHS”), certain federal

employees, and the President of the United States,3

(collectively, “Defendants”). Id.

2-62. As noted,

this Opinion addresses three motions to dismiss made

by twenty-five of the Defendants.

Domestic Defendants are five airlines and four

individuals, all based in the United States. American

Airlines, Inc. (“American”), Delta Airlines, Inc.

(“Delta”), JetBlue Airways Corp. (“JetBlue”),

Southwest Airlines Co. (“Southwest”), and United

Airlines, Inc. (“United”) are airlines based in the

United States that are alleged to fly through or have

operations in Texas, where the Complaint was first

filed. Id.

2, 15, 24, 38, 45. Roy Goldberg

(“Goldberg”) is an attorney who represents American.

Id. 49. Nathalie Simon (“Simon”) works in Delta’s

Customer Care Department. Id. 51. Robert Land

(“Land”) is the Senior Vice President Government

Affairs and Associate General Counsel of JetBlue. Id.

54.

Debbie Castleton (“Castleton”) works in

customer support for JetBlue. Id. 55.

Foreign Defendants are eleven airlines and one

individual.

Concesionaria Vuela Compania de

Aviacion, S.A.P.I. de C.V. (“Volaris”), Royal Air Maroc,

3 The Court dismissed Plaintiff’s claims against President Biden as

barred by absolute immunity. See Dkt. No. 17.

4a

Ltd. (“Maroc”), Aerovias de Mexico S.A. de C.V. doing

business as Aeromexico Airlines (“Aeromexico”),

Transportes Aereos Portugueses, S.A. (“TAP”),

Avianca S.A. (“Avianca”), Singapore Airlines (“SIA”),

LATAM Airlines Group S.A. (“Latam”), Iberia Lineas

Aereas de Espana, S.A. Operadora, Socieded

Unipoersonal (“Iberia Air”), Lot Polish Airlines, S.A.

(“LOT Air”), and British Airways P.L.C. (“British

Air”), are foreign airlines that fly to and from the

United States. Id.

4, 7, 12, 23, 28, 29, 34, 37, 43.

Spirit Airlines, Inc. (“Spirit”) is a U.S. based airline

but joins the motion to dismiss of the above,

39,

Matthew Roberts (“Roberts”), a British subject, is the

airport manager for British Air at the Washington

Dulles Airport and the Baltimore International

Airport, id. 48.

II. The Federal Government’s Travel Policies in

Response to COVID-19

“As the world well knows,” the COVID-19 pandemic

reached the United States in early 2020. Goldberg v.

Pace Univ., 88 F.4th 204, 208 (2d Cir. 2023). The virus

caused “most of the planet to get sick, and caused the

death [sic] of over 6 million people.” Compl. 92.

On January 21, 2021, the day after his inauguration,

President Biden issued Executive Order 13998,

Promoting COVID-19 Safety in Domestic and

International Travel, 86 Fed. Reg. 7205 (Jan. 21,

2021), in order to slow the spread of the COVID-19

virus. Compl. 95; see Dkt. No. 3-6, (the “Executive

Order”). The Executive Order expressed the following

policy of the United States:

5a

The Centers for Disease Control and Prevention

(CDC), the Surgeon General, and the National

Institutes of Health have concluded that mask­

wearing, physical distancing,

appropriate

ventilation, and timely testing can mitigate the

risk of travelers

spreading

COVID-19.

Accordingly, to save lives and allow all Americans,

including the millions of people employed in the

transportation industry, to travel and work safely,

it is the policy of [the Biden] Administration to

implement these public health measures

consistent with CDC guidelines on public modes of

transportation and at ports of entry to the United

States. Executive Order § 1.

The Executive Order directs the Secretaries of Labor,

HHS, Transportation (including through the

Administrator

of

the

Federal

Aviation

Administration), Homeland Security (including

through the Administrator of the Transportation

Security Administration (“TSA”)), and the heads of

other executive departments and agencies to

“immediately take action, to the extent appropriate

and consistent with applicable law, to require masks

to be worn in compliance with CDC guidelines in or

on,” among other places, airports and commercial

aircrafts. Id. § 2(a).

Pursuant to the Executive Order, the CDC issued

rules regulating masking. On or about January 29,

2021, the CDC issued an order, Dkt. No. 3-7 (the “CDC

Order” or “Mask Mandate”) directing conveyance

operators, including airlines, to use best efforts to

ensure that any person on the conveyance wears a

6a

mask when boarding, disembarking, and for the

duration of travel. Compl. 99.

In pertinent part, the CDC Order states:

(1) Persons must wear masks over the mouth and

nose when traveling on conveyances into and

within the United States. Persons must also wear

masks at transportation hubs as defined in this

Order.

(2) A conveyance operator transporting persons

into and within the United States must require all

persons onboard to wear masks for the duration of

travel.

(3) A conveyance operators [sic] operating a

conveyance arriving at or departing from a U.S.

port of entry must require all persons on board to

wear masks for the duration of travel as a

condition of controlled free pratique.4

(4) Conveyance operators must use best efforts to

ensure that any person on the conveyance wears a

mask when boarding, disembarking, and for the

4 “Pratique” refers to the official permission granted by

authorities to allow a ship to have dealings with a port,

given after a showing of a clean bill of health, or, otherwise,

a period of quarantine. See, e.g., Pan Cargo Shipping Corp,

v. United States, 234 F. Supp. 623, 629 (S.D.N.Y. 1964),

aff’d, 373 F.2d 525 (2d Cir. 1967); see also Am. S.S. Owners

Mut. Prot. &Indem. Ass’n Inc. v. Lafarge N. Am., Inc., 2008

WL 449353, at *4 n.2 (S.D.N.Y. Sept. 29, 2008).

7a

duration of travel. CDC Order at 1—2; see also id.

at 9.

The CDC Order defines “conveyance as including,

among other means of transport, aircrafts, and

defines “conveyance operator” broadly to include any

“individual or organization causing or authorizing the

operation of a conveyance.” Id. at 2. Best efforts

include, among other measures:

• boarding only those persons who wear masks;

• instructing persons that Federal law requires

wearing a mask on the conveyance and failure to

comply constitutes a violation of Federal law;

• monitoring persons onboard the conveyance for

anyone who is not wearing a mask and seeking

compliance from such persons;

• at the earliest opportunity, disembarking any

person who refuses to comply; and

• providing persons with prominent and

adequate notice to facilitate awareness and

compliance of the requirement of this Order to

wear a mask; best practices may include, if

feasible, advance notification on digital platforms,

such as on apps, websites, or email; posted signage

in multiple languages with illustrations; printing

the requirement on transit tickets; or other

methods as appropriate. Id. at 1-2.

With respect to foreign air carriers, the CDC Order

provided:

8a

Conveyance operators must also require all

persons to wear masks while boarding and for the

duration of their travel on board conveyances

departing from the United States until the

conveyances arrives at the foreign destination, if

at any time any of the persons onboard

(passengers, crew, or conveyance operators) will

return to the United States while this Order

remains in effect. Id. at 9.

The CDC Order exempted several categories of

persons from its terms, including “a person with a

disability who cannot wear a mask, or cannot safely

wear a mask, because of the disability as defined by

the Americans with Disabilities Act.” Id. at 5; see

Compl. H 100. Footnote 8 of the CDC Order provided

as follows:

Operators of conveyances or transportation hubs

may impose requirements, or conditions for

carriage, on persons requesting an exemption

from the requirement to wear a mask, including

medical consultation by a third party, medical

documentation by a licensed medical provider,

and/or other information as determined by the

operator, as well as require evidence that the

person does not have COVID-19 such as a negative

result from a SARS-CoV-2 viral test or

documentation of recovery from COVID-19. CDC

definitions for SARS-CoV-2 viral test and

documentation of recovery are available in the

Frequently

Asked

Questions

as

https://www.cdc.gov/coronavirus/2019ncov/travelers/testinginternational-airtravelers.html.

Operators may also impose

9a

additional protective measures that improve the

ability of a person eligible for exemption to

maintain social distance (separation from others

by 6 feet), such as scheduling travel at less

crowded times or on less crowded conveyances, or

seating or otherwise situating the individual in a

less crowded section of the conveyance or

transportation hub.

Operators may further

require that persons seeking exemption from the

requirements to wear a mask request an

accommodation in advance. CDC Order at 4 n.8.

It also exempts children under the age of two years

and those “for whom wearing a mask would create a

risk to workplace health, safety, or job duty as

determined by the relevant workplace safety

guidelines or federal regulations.” Id. at 5. The CDC

Order further directs that the mask requirement shall

not apply under a number of circumstances, including

while eating, drinking, or taking medication, for brief

periods; when communicating with a person who is

hearing impaired and the ability to see the mouth is

essential for communication; and when necessary to

temporarily remove the mask to verify one’s identity.

Id. at 4.

Included in the Order is a declaration of intent from

the Director of the Division of Global Migration and

Quarantine of the CDC, stating that he had

determined that the Mask Mandate was “reasonably

necessary to prevent the further introduction,

transmission, or spread of COVID-19 into the United

States and among the states and territories.” Id. at 8.

The CDC Order recites that as of January 27, 2021,

there had been over ninety-nine million confirmed

10a

cases of COVID-19 globally, resulting in more than

two million deaths; that the virus spreads very easily

and sustainably between people who are in close

contact with one another mainly through respiratory

droplets; that air travel increases a person’s risk of

getting and spreading COVID-19; and that

appropriately worn masks reduce the spread of

COVID-19 especially from those persons who are presymptomatic or asymptomatic. Id. at 5—8.

These findings are disputed by Plaintiff, however, who

alleges that “all of the studies [and] Dr. Fauci’s own

public statements .. . confirm [] that masks are almost

useless in the protection against Covid-19.” Compl.

96; see also id. H 109-112, 116, 118, 122.

On February 5, 2021, the Office of Aviation Consumer

Protection (“OACP”), a subdivision of the Department

of Transportation (“DOT”), issued a Notice of

Enforcement Policy: Accommodation by Carriers of

Persons with Disabilities Who Are Unable to Wear

Masks While on Commercial Aircraft (“DOT

Enforcement Notice”), which clarified the CDC Order,

and reminded airlines of their obligations to

accommodate passengers with disabilities. The DOT

Enforcement Notice stated, inter alia, that,

To ensure that only qualified persons under the

exemption would be able to travel without a mask,

the CDC Order permits operators of

transportation conveyances, such as airlines, to

impose requirements, or conditions for carriage,

on persons requesting an exemption, including

requiring a person seeking an exemption to

request an accommodation in advance, submit to

medical consultation by a third party, provide

11a

medical documentation by a licensed medical

provider, and/or provide other information as

determined by the operator. The CDC Order also

permits operators to require protective measures,

such as a negative result from a SARS-CoV-2 viral

test or documentation of recovery from COVID-19

or seating or otherwise situating the individual in

a less crowded section of the conveyance, e.g.,

aircraft. Dkt. No. 3-20 at 3.5

Although the DOT Enforcement Notice expressly

included airlines, is also reiterated that:

The CDC Order permits airlines to impose

requirements or conditions for carriage on a

person requesting an exemption, including

requiring a person seeking an exemption to

request an accommodation in advance, submit to

medical consultation by a third party, provide

medical documentation by a licensed medical

provider, and/or provide other information as

determined by the airline. Id. at 3—4.

5 Although Plaintiff does not append the DOT Enforcement

Notice to his Complaint because Plaintiffs allegations are

based on the purported unlawfulness of the Airline

Defendants’ mask exemption policies, and many of the

communications between Plaintiff and the Airline

Defendants appended to the Complaint expressly reference

the DOT Enforcement Notice as giving them the power to

fashion mask-exemption policies, the Court deems that the

DOT Enforcement Notice is incorporated into the Complaint

by reference and thus properly considered on a motion to

dismiss. See, e.g., Goelv. Bunge, Ltd., 820 F.3d 554, 559 (2d

Cir. 2016),

12a

“In addition, airlines may impose protective

measures to reduce or prevent the risk to other

passengers. For example, airlines may require

protective measures, such as a negative SARSCoV-2 test, taken at the passenger’s own expense,

during the days immediately prior to the

scheduled flight.” Id. at 4.

Over one year later, on March 23, 2022, an

organization named Airlines for America wrote a

letter to President Biden, Dkt. No. 3-10 (the “Airlines

Letter”), advocating that the President lift the Mask

Mandate, Compl. TfTf 124-125, 128, 130. The Airlines

Letter, signed by the executives of several airlines,

including some airlines named as Defendants in this

suit, noted that the aviation industry had voluntarily

implemented mask mandates prior to the CDC Order

and had supported the CDC’s mandate and other

travel restrictions. Airlines Letter at 1-3. It asserted,

however, that “much ha[d] changed since these

measures were imposed,” and the Mask Mandate was

no longer needed in light of “[t]he high level of

immunity in the U.S., availability of high-quality

masks for those who wish to use them, hospital-grade

cabin air, widespread vaccine availability and newly

available therapeutics.” Id. at 1-2.6

6 Plaintiff frequently uses the Airlines Letter as proof that

“[t]here was no safety concern for the airline[s],” see, e.g.,

Compl. If 1260, but this muddles the timeline of events

giving rise to this litigation. When the government

promulgated the Mask Mandate, in January 2021, airlines

followed it. It was not until more than one year later—

March 2022—that the executives of some airlines

advocated for termination of the Mask Mandate, when

13a

On April 18, 2022, the United States District Court for

the Middle District of Florida issued an opinion

finding that the Mask Mandate exceeded the CDC’s

statutory authority and violated the procedures

required for agency rulemaking under the

Administrative Procedures Act, and accordingly

vacated the Mask Mandate. See Health Freedom Def.

Fund, Inc. v. Biden, 599 F Supp. 3d 1144 (M.D. Fla.

2022); Compl. 104.

The Mask Mandate expired on May 11, 2023, the date

that the HHS Secretary’s declaration of a public

health emergency expired.

See Expired Order:

Wearing of face masks while on conveyances and at

transportation hubs, CDC.gov (May 12, 2023),

https://www.cdc.gov/quarantine/masks/mask-travelguidance.html. The Eleventh Circuit thus vacated as

moot the Florida district court’s decision. See Health

Freedom Def. Fund, Inc. v. President of the United

States, 71 F.4th 888 (11th Cir. 2023).7

vaccines were widely available and infection rates were

down. In any case, nowhere in the Airlines Letter does it

state that the virus posed no safety concern—rather, the

rationale the signatories provided was that the risk of

transmission was substantially lower than it had been

earlier in the pandemic.

7 On a motion to dismiss, the Court may consider “matters

of which judicial notice may be taken, such as legislative

facts, and adjudicative facts, such as publicly filed

decisions of this and other courts.” J.L. v. E. Suffolk Boces,

113 F. Supp. 3d 634, 645 (E.D.N.Y. 2015) (internal

citations and quotation marks omitted); see also Kramer v.

Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991).

14a

III. Restrictions on Plaintiffs Travel

Plaintiff is a New York resident with a sensoryprocessing disorder that prevents him from wearing a

mask. Compl.

1, 141. When he wears anything on

his face, his “senses go into overload.” Id. 141.

Plaintiff carries a letter from his primary care

physician, see Dkt. No. 3-11 (“Doctor’s Note”),

attesting to the fact that he cannot wear a mask.

Compl.

141, 810. The Doctor’s Note recites, in full:

Mr. Aaron Abadi is suffering from extreme

sensitivity to touch, mostly in the area of his head.

For this reason he is unable to wear face mask or

face shield, and should not be required to do so.

He has already recovered from COVID, and is not

contagious. Doctor’s Note at 1.

The letter does not contain the doctor’s license

number, a wet signature, or indicate when Plaintiff

contracted and recovered from the virus, but is on

hospital letterhead.

Id.

Further, Plaintiffs

neurologist has stated, on a different form filed with

the Florida Commission on Human Rights, that his

disability is severe enough that it meets the basic and

typically accepted definition of disability under

federal and state law. Compl. Tf 142; Dkt. No. 3-13.

For purposes of either work or pleasure, Compl. TJ 174,

Plaintiff wanted to fly from Amarillo, Texas to many

other states and countries, but claims he was denied

the ability to do so because of the Mask Mandate. Id.

69. Plaintiff alleges that more than fifty airlines

“refused to allow [him] to fly normally.” Id.

178,

797. The airlines service virtually every area of the

15a

globe, from North America to South America, Europe,

Asia, Africa, and the Middle East.

Plaintiff states in his Complaint that he emailed all or

almost all of the Moving Defendants to ask whether

he could travel maskless while the Mask Mandate was

in effect. But Plaintiffs allegations in his Complaint

often omit the date that Plaintiff submitted his initial

inquiry to each airline.

And many of the

communications between Plaintiff and Moving

Defendants appended to the Complaint lack Plaintiffs

initial email seeking exemption from the Mask

Mandate, and even those documents that do include

Plaintiffs first inquiry often omit the date that

Plaintiff sent the communication.

It appears,

however, from the responses of many Moving

Defendants that Plaintiff submitted most of these

inquiries on September 1, 2, and 3 of 2021. From the

appended documents that do include Plaintiffs initial

inquiry, it appears that he used nearly identical

language in his communication with each airline,

stating that he had a disability, attaching his Doctor’s

Note, and asking whether he would be permitted to fly

maskless.

Plaintiff alleges that “[a] 11 the airline corporation

defendants, airline personnel defendants, and the

attorney defendants refused to allow Plaintiff to

access flights at all, and/or unless he fulfilled unlawful

requirements.” Id.

166. Some airlines required

medical forms to be filled out with a doctor’s approval

to file. Id. K 170. Others required negative COVID19 tests, even though passengers without disabilities

faced no such requirement. Id.

171. Although

Plaintiff booked several flights initially, he stopped

16a

doing so after he learned that the Mask Mandate

would be applied to him. Id. If 178. Very few airlines

allowed Plaintiff to fly on their planes, leaving

Plaintiff “mostly grounded for over two years.” Id.

175.

Plaintiff alleges that the two medical consulting

organizations determined on behalf of certain of the

airlines who could fly and who could not fly. Id. Tf^f

729-757. He names certain airline employees or

representatives who responded to his requests for an

exemption. Id. Tf| 758-783.

Although some airlines did allow Plaintiff to fly

maskless, such as Air France, id. If 818, Plaintiff

claims that he lost business opportunities because

other airlines denied him access to flights, missing out

on projects in Bangalore, India, Sweden, South

Sudan, the Dominican Republic, and Saudi Arabia, id.

If 816, 831. He claims that the guidance issued by the

Government Defendants was “politically driven and

untrue” and discriminatory. Id. Tf 167. Plaintiff

alleges it “would be the Plaintiff s dream come true, if

the CDC took that ruling with the humility it deserves

and packed up their mask mandates and hid them

deep in a basement closet, never to be seen again.

Unfortunately, that dream is nothing more than a

fantasy.” Id. 850.

Plaintiff recites his experience with each of the

airlines that is a Moving Defendant. Many of the

allegations are based on, and are limited to, what

appears from the Complaint to be a form letter that

Plaintiff sent the airlines on or about September 1,

2021, and the responses he received from the airlines.

17a

A. Defendants American and Goldberg

American is an airline based in the United States. Id.

2. American retains as counsel Roy Goldberg, an

attorney of Stinson LLP. Id. 49. Plaintiff alleges

that he was twice barred from boarding American

flights: once on January 24, 2021, 8 and again

November 8, 2021. Id.

180, 185. On the second

occasion, American sent Plaintiff a letter stating that

the documentation he submitted to obtain an

exemption from the Mask Mandate did not meet

American’s qualifications and thus his exemption

request was denied. Id. 185; Dkt. No. 3-18 at 4.

Plaintiff again sought a medical exemption to the

Mask Mandate from American in early 2022 for a

flight to Phoenix, Arizona. Compl. 186; Dkt. No. 319. On February 20, 2022, American wrote Plaintiff

stating that to receive a medical exemption, he was

required to submit an official, dated letter from a

licensed medical provider with the medical provider’s

license number, attesting that Plaintiff had a

medically diagnosed physical or mental disability

qualifying under the Americans with Disabilities Act

which prevented him from safely wearing a mask for

the duration of the flight and explaining why. Dkt.

No. 3-19 at 5—6. Approval of any such request was

conditioned upon proof, presented upon check-in at

the airport, of a negative COVID-19 test taken within

seventy-two hours of departure. Id. Upon receipt of

8 The DOT Investigation Summary Sheet associated with

the incident and attached to the Complaint states the

travel date as January 27, 2021. Dkt. No. 3-16. The

difference is immaterial to this motion.

18a

Plaintiffs documentation, American approved the

exemption but requested an updated doctor’s letterone dated within thirty days of the flight. Dkt. No. 319 at 1; Compl.

186. On March 1, 2022, Plaintiff

emailed American and its counsel, Defendant

Goldberg, accusing American of violating federal law

by requiring the negative test and updated medical

documentation. Dkt. No. 3-19 at 1. On March 4, 2022,

Goldberg responded that American’s requirements

that

Plaintiff

present

adequate

medical

documentation of his condition and a negative

COVID-19 test were authorized by the DOT

Enforcement Notice and consistent with CDC policy.

Dkt. No. 3-20 at 3-4. In further communication,

Plaintiff apparently again accused American and

Goldberg of unlawful discrimination and threatened

legal action. See id. at 1-2; Compl. 187. Plaintiff

also sent immaterial to this motion, Goldberg a copy

of the Airlines Letter urging President Biden to end

the Mask Mandate and noted that American’s

chairman had signed it. Dkt. No. 3-21.

Plaintiff filed a complaint with the DOT after the first

time he was denied access to an American flight in

January 2021, complaining that American failed to

make an exemption to its mask policy despite his

disability. Compl.

181; Dkt. No. 3-16. After

investigation, the DOT found that American had

violated the Air Carriers Access Act of 1986 (“ACAA”)

because its then-applicable mask policy did not allow

for medical exemptions and did not conduct an

individualized assessment of whether Plaintiff could

safely wear a mask due to his disability and, if he

could, whether a reasonable accommodation could be

19a

made. Dkt. No. 3-16 at 3—4. However, the DOT also

found that American had changed its policy effective

February 2, 2021, to begin to allow medical

exemptions, before the DOT Enforcement Notice

reminded air carriers of their obligations to

accommodate the needs of passengers with

disabilities.

Id.

The investigation summary

concluded that DOT would exercise its prosecutorial

discretion and not take action for the ACAA violations

that occurred before the DOT Enforcement Notice was

issued.

Id.

Plaintiff has appealed the DOT

determination. Compl. 183.

Plaintiff brings claims against both American and

Goldberg. Plaintiff alleges that he “frequently flew

with American and would have flown with American”

had the airline exempted him from the Mask

Mandate. Id.

704. Plaintiff alleges Goldberg

“advised [American] to discriminate against him,” id.

*|] 49; see also id.

698, and further that Goldberg

“participated in the discrimination by assisting,

advising, and instructing their clients” to engage in

discrimination, id. T[ 80; see also id. T[ 699.

B.

Defendant Aeromexico

Aeromexico “is a foreign airline with flights to and

from the United States.” Id. 4. Plaintiff alleges that

he provided Aeromexico a copy of his Doctor’s Note

attesting to his inability to wear a mask, but that the

airline emailed him on or about September 1, 2021

refusing to issue an exemption. Id. 201. In April

2022, Plaintiff again sent Aeromexico a copy of his

Doctor’s Note and asked for confirmation that he

would be able to fly without a mask. Dkt. No. 3-24 at

1-2. Aeromexico responded two weeks letter that,

20a

according to “local and international authorities,” the

use of a mask onboard Aeromexico flights was

mandatory absent an exemption. Id. at 1. To obtain

a medical exemption, passengers with health

conditions were required “to provide a medical

certificate proving their condition,” including “the

reason why a face mask cannot be worn during the

flight, as well as the physician’s signature, seal, and

Professional ID Number.”

Id.

The medical

documentation had to “be delivered to [Aeromexico’s]

staff directly at the airport.” Id. Plaintiff alleges,

without explanation, that the medical documentation

that Aeromexico required was “intended for people

who medical conditions [sic] that might not be able to

fly at all.” CompL 205.

Plaintiff does not allege that he ever purchased a

ticket on Aeromexico or was ever denied travel on that

airline. He nevertheless alleges that Aeromexico

discriminated against him by requesting the medical

documentation. Id. And he alleges that, given the

frequency with which he flies, he “would need a Doctor

on payroll” to handle the volume of medical

documentation required by airlines. Id.

205-207.

C.

Defendant Avianca

Avianca “is a foreign airline with flights to and from

the United States.” Id. | 7. Plaintiff emailed Avianca

on September 1, 2021, explaining his disability with

his Doctor’s Note attached to inquire as to whether he

could fly with the airline without a mask, and, when

he did not receive a response, followed up on October

14, 2021. Id.

235-36; Dkt. No. 3-30. Avianca did

not respond until October 3, 2022, Compl.

235-238;

21a

Dkt. No. 3-31,9 at which point it stated that the

Doctor’s Note was insufficient to comply with its mask

exemption policy as it did not include information

about Plaintiff s itinerary to confirm that there was no

local mask mandate regulation that did not exempt

individuals with disabilities. Compl. 239; Dkt. No.

331. Plaintiff does not allege that he ever purchased

a ticket on Avianca or was ever denied travel on that

airline.

D. Defendants British Air and Roberts

British Air is an “airline based in the United

Kingdom” with flights going “to and from the United

States.” Compl. 12. At all relevant times, British

9 Although Plaintiffs Complaint alleges that Avianca

“ignorfed] [his] emails . . . for about a month” by failing to

respond until “on or about October 3, 2021,” Compl. TJ 238

(emphasis added), Avianca’s letter response appended to

the Complaint reflects that it was sent on October 3, 2022,

Dkt. No. 3-31. It is well established that “[w]hile the Court

must accept the facts as alleged in the complaint, ‘when

any allegations contradict the evidence contained in the

documents . . . , the documents control.’” Trahan v. Lazar,

457 F. Supp. 3d 323, 341 (S.D.N.Y. 2020) (quoting Rozsa v.

May David Grp., Inc., 187 F. Supp. 2d 123, 128 (S.D.N.Y.

2002), aff’d sub nom., Rozsa v. SG Cowen Sec. Corp., 165 F.

App’x 892 (2d Cir. 2006) (summary order)); see Chapman

v. Mueller Water Prods., Inc., 466 F. Supp. 3d 382, 402

(S.D.N.Y. 2020); see also Koulkina v. City of New York, 559

F. Supp. 2d 300, 314 (S.D.N.Y. 2008) (explaining that a

court is under no obligation “to reconcile [a pro se]

plaintiffs own pleadings that are contradicted by other

matter asserted or relied upon or incorporated by reference

by a plaintiff in drafting the complaint”).

22a

Air employed individual Matthew Roberts, “the

Airport Manager for British Air at Washington Dulles

Airport and at the Baltimore International Airport.”

Id. H 48. Plaintiff wrote to British Air on December

13, 2020, asking whether he could fly on the airline

without a mask. Id. 294. He attached the Doctor’s

Note and stated that he had tested positive for

COVID-19 in October 2020 and was willing to provide

a recent negative COVID-19 test. Dkt. No. 3-36.

British Air responded the following day, stating that

while it was mandatory for all passengers to wear a

mask, it recognized that not everyone could do so, and

that Plaintiff should be prepared to present his

doctor’s letter at all times, since he would be

“challenged by [a]irport [personnel and [the] [c]abin

[c]rew.” Id.10 Plaintiff purchased a ticket on British

Air on or about January 17, 2021, to fly from New

York to Bangalore, India. Compl. ^[ 297. Plaintiff

ultimately appeared for flights out of New York on

British Air on three separate occasions: January 22,

2021, February 3, 2021, and February 5, 2021, and

was denied boarding each time. Id.

298-303. On

January 22, 2021, Plaintiff, with his Doctor’s Note and

previous correspondence with British Air in hand, was

initially informed by airline personnel that he could

not fly without a mask. Id. 299. Eventually, airline

staff told Plaintiff that he would be able to fly without

10 In his Complaint, Plaintiff states that British Air

emailed him and approved his request to fly without a

mask, and that the email indicated that he did not need

clearance. Compl. TH 295-296. The correspondence that

Plaintiff appended to the Complaint as an exhibit reflects

otherwise, and, as noted, supra note 9, controls.

23a

a mask, but that he nevertheless could not board the

flight because his Indian visa was invalid. Id.

Plaintiff returned home and confirmed with the

Indian Consulate and Bureau of Immigration of India

that his visa was valid. Id. 300. When he returned

to the airport on February 3 to try to board another

flight to India with his email correspondence with

Indian immigration authorities in hand, he had an

identical experience. Id.

301-302. Plaintiff had

the same experience the third time he attempted to fly

from New York to Bangalore on British Air on

February 5. Id. 303.

On or about February 9, 2021, Plaintiff attempted to

fly from Washington Dulles Airport, where he spoke

with Defendant Roberts, the Washington Dulles

Airport manager for British Air. Id. 305. After an

hour of research, Roberts informed Plaintiff that his

visa was valid, and told Plaintiff he would call him in

the coming days to confirm. Id. 306. On February

11, 2021, Plaintiff called Roberts to follow up and was

informed that, although his visa was valid, he would

not be permitted to travel without a mask. Id. 307.

Roberts reiterated this information via email, stating

that British Air had determined that it was “unable to

accept [Plaintiff] for travel according to TSA,

[Customs and Border Protection,] and CDC

regulations.” Dkt. No. 3-37.

After having been denied flights in early 2021,

Plaintiff sent another email to Defendant Roberts on

December 14, 2021, asking whether he could fly on

British Air without a mask, and was told that British

Air’s mask requirement had not changed. Compl. TJTf

310-11; Dkt. No. 3-38.

24a

E. Defendants Delta and Simon

Delta is “one of the major airlines of the United

States.” Compl. 15. At all relevant times, Nathalie

Simon was employed by Delta in their Customer Care

Department. Id.

51. Plaintiff contacted Delta

several times to inquire whether he could travel

without a mask and he was told that Delta determines

eligibility for a medical exemption at the airport on

the day of travel and does not provide advance

clearance. Compl.

335-336.; Dkt. No. 3-41 at 7-8.

Plaintiff wrote to Delta on January 24, 2021, stating

that he had a sensory processing disorder and thus

could not wear a mask, and asking whether he could

fly without a mask. Dkt. No. 3-41 at 8-9. Plaintiff

offered to send his Doctor’s Note and provide a recent

negative COVID-19 test. Id. The following day, Delta

responded that it was aligned with the best practice

guidelines from the CDC and that “[c]ustomers with

medical conditions who are unable to wear a mask

without compromising their personal safety w[ere]

required to complete a Clearance-to-Fly process prior

to departure at the airport,” a process that Delta

assured Plaintiff was conducted quickly and privately.

Id. at 6-7. It appears that Plaintiff received clearance

to fly from Delta, as he emailed Delta in April 2021,

noting that clearance process went “very smooth[ly],”

and thanking them for an “absolutely amazing” flight

from Paris to New York. Id. at 4-6.

Plaintiff later accused Delta of discrimination. On

February 22, 2022, Plaintiff informed Delta that he

had an upcoming flight on April 13, 2022, and, with

his Doctor’s Note attached, requested advance

permission to fly maskless, stating that having to

25a

obtain a mask exemption at the airport on the day of

his flight “creat[ed] a lot of anxiety” and constituted “a

form of discrimination.” Id. at 1-3. Delta responded

that while it “would like to offer special consideration

in [Plaintiffs] case, [it] must have the same process

for all passengers with disabilities that prevent them

from wearing masks,” and the airline’s “Fly Clear

process can only be done at the airport on the day of

departure.” Id. at 1; Compl. *[[ 337. Plaintiffs next

scheduled Delta flight was the Paris to New York leg

of a trip from Bangalore to New York on March 31,

2022. Compl. T[ 338. When Plaintiff arrived in Paris,

however, having completed the Bangalore to Paris leg

of his trip with Air France with “anxiety and fear”

about the Delta clearance process, Delta refused to

allow Plaintiff to travel without a mask. Id.

339343. Ultimately, Plaintiff had to take an Air France

flight to New York. Id. T[ 351.

Plaintiff complained about his experience to both

Delta and the DOT shortly thereafter. Id.

354355; Dkt. No. 3-42. On April 11, Defendant Simon, a

Delta customer care representative, responded that

Plaintiff had been declined a mask waiver because the

third-party provider that oversaw the airline’s

Clearance to Fly program, Stat-MD,11 had concluded

that

Plaintiffs

condition—sensory

processing

disorder—was not a qualifying justification to obtain

a mask waiver. Compl. ^[ 355; Dkt. No. 3-42 at 1—2.

And on April 13, 2022, after being instructed by DOT

to respond to Plaintiffs DOT complaint, Delta wrote

11 Plaintiffs claims against Stat-MD’s agent, the Center for

Emergency Medicine of Western Pennsylvania, Inc.,

Compl. U 53, are not addressed in this Opinion.

26a

Plaintiff again and acknowledged that Plaintiff must

have been upset that he was not able to travel as

planned “because STAT-MD would not approve a

mask exemption for his medical condition,” and

apologized for any inconvenience. Dkt. No. 3-42 at 1.

Plaintiff alleges that Delta discriminated against him

by denying his exemption request. CompL

361,

724. Plaintiff also alleges that Simon, an employee of

Delta in their Customer Care Department,

participated in the alleged discrimination on Delta’s

behalf. Id. 51; see also id. 725 (alleging that Simon

was “complicit in [Delta’s] violations of the law” and

can be sued because “[i]f a person works for a company

that violates the law, they must leave, and/or report

them,” and Simon’s failure to do so “makes her equally

responsible”).

F.

Defendant Iberia Air

Iberia Air “is a flagship airline based in Spain with

flights to and from the United States.” Id. Tf 23.

Plaintiff “notified” Iberia Air of his medical disability

with a copy of the doctor’s letter attesting to his

inability to wear a mask. Id. 428. In its September

3, 2021 response, Iberia Air explained that to be

exempt from the mask requirement, Plaintiff had to

complete an attached medical form, have it signed by

his doctor, and submit the form for approval at least

three days before departure. Id. 431; Dkt. No. 3-53.

Plaintiff alleges that the form “is for people that have

medical issues that need a Doctor’s [sic] approval to

fly,” and that his sensory processing disorder “is a

sensory issue, not a medical issue that would affect

[his] ability to fly.” CompL 432. Plaintiff alleges

27a

that Iberia Air uses the form to obstruct his flying. Id.

H 432, 436.

G. Defendants JetBlue, Land, and Castleton

JetBlue “is a mostly domestic airline that flies

throughout the United States” and internationally.

Id. | 24. Robert Land is employed by JetBlue as their

“Senior Vice President of Government Affairs and

Associate General Counsel.” Id.

54.

Debbie

Castleton is employed by JetBlue in their customer

support department. Id. 55.

Plaintiff alleges that he had a flight booked with

JetBlue for December 10, 2020. Id.

439. At the

airport, he presented the JetBlue check-in staff with

his Doctor’s Note, but JetBlue did not permit him to

board the plane without a mask. Id. 440. Plaintiff

ultimately wore a mask during the flight, but alleges

that it was “very painful.” Id. 442. Plaintiff “never

wore a mask on a flight after that experience.” Id.

Plaintiff complained to the DOT. See Dkt. No. 3-16 at

5-8. On January 27, 2021, JetBlue, and specifically

Defendant Land, responded to the complaint, stating

that JetBlue “allow [ed] no exceptions to the face

covering requirement” and “deny[ing] that [the

airline’s] actions were in violation of DOT

regulations.” Dkt. No. 3-55 at 1.

It appears, however, that JetBlue changed its policy

and began accommodating individuals with

disabilities almost immediately thereafter.

On

February 9, 2021, four days after the DOT

Enforcement Notice was issued clarifying that

airlines may exempt from the Mask Mandate those

whose disabilities prevented them from wearing

28a

masks, a JetBlue customer support agent, Defendant

Castleton, responded to Plaintiffs complaint to

JetBlue’s executive office. Dkt. No. 3-54 at 1-2. The

email responding to Plaintiffs complaint stated, in

pertinent part:

Customers with disabilities who cannot wear a

mask, or cannot safely wear a mask because of a

permanent disability as defined by the Americans

with Disabilities Act may contact us via phone or

chat to apply for an exemption from this

requirement. Exemptions will be limited on board

each flight and will require specific documentation

submitted in advance as well as testing and a face

shield worn at all times. Id. at 1; Compl. K 771.

In addition to his claims against JetBlue, Plaintiff

brings claims against Land and Castleton as the

individuals who responded to Plaintiffs inquiries and

complaints. Compl.

54-55. More specifically,

Plaintiff alleges that Land “conspired with others at

JetBlue, other airlines, and others to violate Plaintiffs

civil rights, and did not intervene to prevent these

discriminations [sic], even though he [had] the power

to do [so].” Id. T[ 764. As to Castleton, Plaintiff,

referencing the language in Castleton’s email stating

that JetBlue required individuals exempt from the

Mask Mandate to wear a face shield, asserts that

Castleton made “very clear” that JetBlue would not

accommodate Plaintiff and has “not reach [ed] out to

the Plaintiff since then to correct” that information.

Id. TH 770—772. Like his allegations as to Land,

Plaintiff contends that Castleton “conspired with

others at JetBlue and other airlines to violate

Plaintiffs civil rights, and did not intervene to prevent

29a

these discriminations, even though she [had] the

power to do [so].” Id. 774.

H. Defendant Latam

Latam “is an airline holding company headquartered

in Santiago, Chile.” Id. 28. As he did with numerous

other airlines, Plaintiff notified Latam of his disability

with the Doctor’s Note and inquired as to whether he

could travel maskless. Id. Tf 476. Latam responded

on September 3, 2021. Id. ^[ 477; Dkt. No. 3-59 at 1.

It stated that to obtain a mask exemption, Plaintiffs

“doctor must complete the attached form,” at which

point “the Latam doctors will study it and give you an

answer.” Compl. 479; Dkt. No. 3-59 at 1. Latam

cautioned however, that because the mask mandate

was “an ordinance of the health authorities,” airport

personnel would have the final say as to whether

Plaintiff could fly maskless. Compl. 479; Dkt. No. 359 at 1.

Plaintiff filed a complaint with DOT on the basis of

Latam’s response, Compl. ^[ 492, alleging that Latam

had discriminated against him on the basis of his

disability and told him that he would not be permitted

to fly, see Dkt. No. 3-60 at 2. Latam responded to

Plaintiffs complaint by letter dated November 11,

2021. Compl. T[ 492; Dkt. No. 3-60 at 1. The letter

challenged Plaintiffs discrimination claims, and

stated that “[u]pon a confirmed reservation, persons

with a disability or medical condition who cannot

wear a face mask or cannot wear it safely due to a

disability or medical condition must send a medical

certificate” to Latam’s help center at least forty-eight

hours before a scheduled flight, at which point Latam

30a

would inform the passenger whether he or she could

travel without a mask. Dkt. No. 3-60 at 1.

I. Defendant LOT Air

LOT Air “is a foreign airline based in Poland with

flights to and from and the United States.” Compl.

29. Plaintiff inquired as to whether he would be

permitted to fly maskless with LOT Air, and was

informed on September 8, 2021, that to obtain an

exemption from the mask mandate, Plaintiff had to

submit medical documentation. Dkt. No. 3-61 at 9.

Plaintiff responded approximately one month later, on

October 12, 2021, with a copy of his Doctor’s Note, and

asked for confirmation that he would be permitted to

fly without a mask. Id. at 3; Compl. 497. LOT Air

responded to Plaintiff that same day, stating that “it

was possible” for Plaintiff to fly without a mask, but

that the final decision was left to gate personnel at

the airport. Compl. 498; Dkt. No. 3-61 at 1. Plaintiff

complains that he could not book a flight with LOT Air

to fly to Poland, because if he succeeded in being

permitted to fly maskless to Poland, he might be

unable to leave the country if gate personnel in Poland

would not let him board without a mask. Compl.

500.

J. Defendant Maroc

Maroc “is a foreign airline with flights to and from the

United States.” Id.

34. Plaintiff asked Maroc

multiple times whether he would be permitted to fly

without a mask beginning September 2, 2021. Id.

544—545. Although Maroc acknowledged receipt of

Plaintiffs inquiries through automated emails, Maroc

31a

did not substantively respond to his inquiries. Id. TH

545-46; see Dkt. No. 3-66.

K. Defendant Silver

Silver is a “regional airline” based in the United

States. Compl.

36. Plaintiff emailed Silver on

September 2, 2021, stating that he had “a sensory

integration disorder” that rendered him unable to

wear a mask, and asking whether he would be

permitted to fly without a mask with a copy of his

Doctor’s Note attached. Dkt. No. 3-68 at 1. Silver

responded with an email approximately one week

later, on September 10, 2021. Id.', Compl. U 564. It

stated that a “[l]etter from CDC authorizing will be

needed for domestic and international flights,” and

additionally, for international flights, both “CDC

authorization and approval from the health

department of that specific country,” and, seemingly

for all flights, a “[n]otice letter to TSA,” to consider

Plaintiffs request. Dkt. No. 3-68 at 1; see Compl.

565—566. Plaintiff complains that the CDC does not

provide letters authorizing anyone to fly. Compl.

565.

He alleges that since the demands are

“practically impossible” to meet, Silver has prevented

him from flying on the basis of his disability. Id.

567-568.

L. Defendant SIA

SIA “is the flag carrier airline of Singapore.” Id. 37.

Plaintiff emailed SIA on September 3, 2021, informing

them of his “sensory integration disorder” with his

Doctor’s Note attached and inquiring whether he

could travel on the airline without a mask. Id. 574;

Dkt. No. 3-69. SIA responded on September 6, asking

32a

for Plaintiffs booking information. Dkt. No. 3-69 at

2— 3. Plaintiff responded that he had not yet booked a

flight as he was awaiting an answer from the airline

as to whether he could fly maskless. Id. at 1-2. On

September 8, SIA responded that Plaintiffs Doctor’s

Note did not qualify him for an exemption. Id. at 1;

Compl. H 575-576.

M. Defendant Southwest

Southwest is a U.S.-based airline “that flies

throughout the United States, with several routes to

international destinations.” Compl.

38. Plaintiff

wrote to Southwest asking whether he would be

permitted to fly without a mask. Id. U 582. Southwest

responded on May 24, 2021, describing requisite

documentation needed to obtain a mask exemption: a

form requesting an exemption, a signed letter from a

physician at least seven days prior to travel, and a

negative COVID-19 test within three days of the

departure date. Id.

585; Dkt. No. 3-70 at 1, 3.

Because Plaintiff had not completed the requisite

form, his exemption request was denied. Dkt. No. 370 at 7.

Plaintiff filed a complaint with DOT against

Southwest, alleging discrimination. Compl. 582; see

Dkt. No. 3-70 at 7. Southwest responded, citing the

CDC Order and denying any discrimination. Dkt. No.

3- 70 at 6-7. Southwest invited Plaintiff to reapply for

an exemption with the requisite materials.

Id.

Plaintiff then forwarded Southwest’s response to an

individual at DOT insisting that Southwest was

discriminating against him on the basis of his

disability and requesting that DOT “clarify the laws

33a

and correct these misinterpretations as soon as

possible.” Id. at 5.

Plaintiff alleges that “Southwest runs routes in many

areas where [he] chooses to fly and needs to fly, and

[he] would have flown with Southwest if not for these

discriminations.” Compl. ^[ 591.

N. Defendant Spirit

Spirit is an airline based in the United States. Id. 1]

39.12 Plaintiff wrote to Spirit asking whether he

would be permitted to fly without a mask. Id. 595.

Spirit responded on September 3, 2021 with details

regarding the airline’s requirements to obtain an

exemption to the mask mandate: that the passenger

inform the airline that he would seek a mask

exemption forty-eight hours before his flight, arrive at

the airport three hours before their scheduled

departure time to allow for possible screening by

medical experts, present a negative COVID-19 test

taken within twenty-four hours of the flight’s

departure time, and submit either Spirit’s medical

exemption form completed by a medical professional

or a doctor’s note on the doctor’s official letterhead

acknowledging the passenger’s disability and listing

the doctor’s license number and phone number. Id.

596, 599-602; Dkt. No. 3-71 at 1-2.

12 Although Plaintiff has included in his Complaint claims

against Spirit’s outside counsel, Miguel Morel, Compl. |

50, Morel did not join the Foreign Defendants’ motion to

dismiss with Spirit and has filed his own motion to dismiss,

Dkt. No. 261, which the Court does not address in this

Opinion.

34a

O. Defendant TAP

TAP is “the airline of Portugal” that services “flights

to and from the United States.” Compl. | 43. Plaintiff

reached out to TAP inquiring whether he would be

permitted to travel without a mask multiple times

starting on September 2, 2021.13 Compl. | 638; Dkt.

No. 3-75. Plaintiff followed up on October 12 and

November 11. Dkt. No. 3-75 at 2, 6-7. On November

11, TAP responded, requesting Plaintiffs booking

reference, to which Plaintiff responded that he had

not booked a flight with TAP as he was awaiting an

answer as to whether he could fly maskless. Id. at 5.

On November 12, TAP reiterated that it needed

Plaintiffs booking information, but added that “to

request to be excused for [sic] the use of a face mask

for short periods of time,” Plaintiff had to submit a

Medical Information Form (“MEDIF”) within

seventytwo hours of departure and a negative COVID19 test within forty-eight hours of departure. Id. at 4;

Compl.

639-640. Plaintiff responded that same

day, accusing TAP of disability discrimination in

violation of the ACAA. Dkt. No. 3-75 at 4. TAP

responded on January 11, 2022, stating that

passengers with disabilities requesting a mask

exemption were “required to fill out [the airline’s]

form,” and clarifying that its testing requirement was

not due to Plaintiffs disability but instead

13 Plaintiffs Complaint alleges that he initially wrote to

TAP on September 3, 2021, but Plaintiffs email

correspondence with TAP appended to the Complaint and

incorporated by reference therein reflect that Plaintiff

emailed TAP on September 2, 2021. Dkt. No. 3-75 at 1. As

noted supra note 9, the official documentation controls.

35a

government policy for “[a]ll passengers travelling

to/from Europe.” Id. at 3.

Plaintiff alleges that because any exemption would be

for “short periods of time,” he would not be able to

obtain a mask exemption for the duration of a flight to

or from Portugal. CompL ^[ 639. He also reiterates

that MEDIFs are “used primarily for people that have

medical issues that need a Doctor’s approval to fly,”

and, as Plaintiff has sensory process disorder, which

“is a sensory issue, not a medical issue that would

affect [his] ability to fly,” TAP’s requirement was

discriminatory. Id. 641.

P. Defendant United

United is a U.S.-based airline that services flights

both domestically and abroad. Id. U 45. Plaintiff

alleges that he was denied access to fly by the airline

on or about December 18, 2020 due to his inability to

wear a mask after providing United with a copy of his

Doctor’s Note. Id.

659-660. On December 17,

United stated that it had determined, “based on a

review of current medical knowledge and CDC

guidance,” that “the possibility of asymptomatic

transmission of Covid-19” constituted “a direct threat

to the health and safety of [its] passengers,” a threat

which could only be mitigated if each passengers wore

a face mask. Dkt. No. 3-77 at 2. In response, Plaintiff

informed United that he would file a complaint

against it for disability discrimination. Id. United

replied, reiterating its policy and denying that it had

violated any federal disability laws. Id. at 1; Compl.

If 661.

36a

Plaintiff then filed his complaint with DOT. When

United received notice of the complaint, it emailed

Plaintiff stating that it was adhering to the directives

of the CDC and reiterating that it had not violated

federal disability law. Dkt. No. 3-78.

Plaintiff alleges that he “frequently flew with United,

and would have flown with United” had they

exempted him from the mask requirement. Compl.

667. Plaintiff further alleges that until the Mask

Mandate was lifted, “United continued to refuse

Plaintiff access to fly,” depriving him of business

opportunities. Id. 662.

Q. Defendant Volaris

Volaris “is a Mexican low-cost airline based in Santa

Fe, Alvaro Obregon, Mexico City.” Id. | 47. Plaintiff

notified Volaris of his inability to wear a mask with a

copy of his Doctor’s Note. Id.

678. In its initial

response on October 1, 2021, Volaris informed

Plaintiff that he would be required to wear a mask

during the flight. Id.

679-680; Dkt. No. 3-80 at 1.

However, and although Plaintiff does not mention this

in his Complaint, his correspondence with Volaris

appended to the Complaint reveals that Volaris

changed its policy in the following month.

On

November 9, 2021, Volaris informed Plaintiff that he

could request a mask exemption by submitting a

signed doctor’s letter attesting to Plaintiffs condition

and the “[d]ates of incapacity” on official letterhead.

Dkt. No. 3-80 at 3-4.

IV. Plaintiffs Injuries

As noted above, Plaintiff flies frequently. Compl. Tf

803; see Dkt. No. 3-83 (Plaintiffs flight itineraries for

37a

January through March of 2020). Plaintiff alleges

that each of Defendants, individually and as a group,

denied Plaintiff his right to travel on the basis of his

disability.14 Compl. 810. More specifically, Plaintiff

alleges that he “was banned from traveling, and/or the

process to get permission to travel was so complicated

and/or expensive that it was not an option for

Plaintiff.” Id. If 811.

Plaintiff asserts that he suffered several forms of

injury from Defendants’ alleged conduct.

“Not

allowing [Plaintiffs] business-related travel caused

him severe financial damages” amounting to “billions

of [d]ollars” of losses, due to both Plaintiffs inability

to work due to his inability to travel, and lost lucrative

prospective business opportunities. Id. Ulf 813-814,

825-827.15 He also alleges that his business prospects

14 And, “for the little traveling that he did do,” Plaintiff

“was forced to . . . [spend] thousands of dollars more,” a

total loss amounting in over $10,000. Compl. H 809.

15 Plaintiff appends to his Complaint an unsigned, unsworn

affidavit by the Chief Operating Officer (“COO”) of his

company, Dkt. No. 3-85, which Plaintiff says “attests to the

losses that NEG projects sustained due to [his] inability to

travel,” Compl. 823. Even if the Court were to consider

this affidavit, see, e.g., Meimaris v. Royce, 2018 WL

9960113, at *2 (S.D.N.Y. Nov. 5, 2018) (stating that “[t]he

Court cannot rely on the contents of an unsigned and

unsworn affidavit” and collecting cases to that effect), the

COO’s affidavit does not state that Plaintiff lost out on

billions of dollars due to Defendants’ conduct. The COO

merely avers that while the Mask Mandate was in effect,

Plaintiff entered into a contract with a member of the royal

family of the United Arab Emirates (“UAE”) to provide gasfired turbine generators, but the other party reneged on the

38a

required him to fly domestically to California, Florida,

Texas, and Illinois, and internationally to England,

Switzerland, Israel, India, Saudi Arabia, and the

UAE, as well as many other destinations. Id. 838.

As a result, Plaintiff alleges that he “ran out of money

for basic life expenses.” Id.

833. Plaintiff also

alleges nonmonetary harm from Defendants’ alleged

conduct: Plaintiff contends that “[n]ot allowing him

his leisure travel is a violation of his rights and

discrimination, [sic] and can cause serious anxiety,

depression, and/or mental illness.”

Id.

808.

Moreover, in his pursuit to fly maskless, Plaintiff was

often “shamed publicly, and his personal information

became public.” Id. 812.

Plaintiff asserts that this harm is continuing, id. ^[

814, despite the fact that the Mask Mandate has

terminated. In addition to injunctive and declaratory

deal and Plaintiff was unable to save it because he could

not fly to the UAE to speak with the individual in person.

Dkt. No. 3-85 TH 5, 8—9. The COO states that Middle

Eastern royalty is generally distrustful of video

conferencing technology, and thus Plaintiff had to travel to

the UAE in person, id. U 10; if he had, the COO “is very

confident” that “the outcome would be very different” and

the deal could have been completed as agreed, id. ^[ 9, 11.

Plaintiff sued for breach of contract in federal court in

Connecticut and received a judgment in the amount of

$140 million. Id. T[ 14. The COO also avers that the owners

of other companies that Plaintiff had contracted with also

reneged on their contractual obligations when they did not

“see [Plaintiff] in Saudi Arabia in person,” and Plaintiff

seeks to sue those individuals for breach of contract as well.

Id. H 15, 17.

39a

relief, he seeks actual, nominal, and punitive damages

for the alleged discrimination he suffered.

See

generally id.

PROCEDURAL HISTORY

Plaintiff filed this Complaint on May 1, 2023, in the

United States District Court for the Northern District

of Texas. Dkt. No. 3. By order of May 8, 2023, the

District Court for the Northern District of Texas sua

sponte transferred the case to this Court. Dkt. No. 10.

Plaintiff brings thirty-eight claims. Several counts

concern only the Government Defendants or other

non-moving Defendants, and thus are not addressed

here. Counts One, Compl. TH 867-880, Two, id. TH

881-887, and Three, id. TH 888-896 allege various

violations of the Administrative Procedure Act, 5

U.S.C. §§ 551 et seq. against the CDC and HHS;

Counts Four, id. TH 897-903, and Five, id.

904910, allege unconstitutional delegation of legislative

power in violation of Article I of the United States

Constitution against the CDC and HHS and against

the President of the United States in connection with

the Executive Order; and Count Six, id. Ulf 911-917,

alleges violation of the separation of powers doctrine

and the Tenth Amendment in connection with the

President’s Executive Order. Count Thirty-Eight

alleges violations of the non-delegation doctrine

against the Government Defendants. Id.

13491363. One count, Count Thirty-Five, id.

13101318, asserts medical malpractice by what Plaintiff

calls the

“medical defendants”—the private

40a

companies that some airlines contracted with to

administer their mask exemption policies.

This Opinion is addressed to the remaining claims—

asserted under both federal and state law—insofar as

they are brought against the Moving Defendants.16

Count Seven, id.

918- 931, alleges violations of 42

U.S.C. § 1983; Count Eight, id.

932—998, alleges

violations of 42 U.S.C. § 1985; and Count Nine, id.

986-1002, alleges violations of 42 U.S.C. § 1986.

Counts Ten through Eighteen allege violations of

various provisions of the ACAA, see id.

1003— 1124,

and Count Nineteen, id.

1125-1150, alleges

violations of the Rehabilitation Act, 29 U.S.C. §§ 720

et seq. Counts Twenty through Twenty-Six allege

violations of various state and city anti-discrimination

laws. Id. TH 1151-1227. Counts Twenty-Seven

through Twenty-Nine, id.

1228-1248, and Counts

Thirty-Three, id.

1285-1295, and Thirty-Six, id.

1319-1328, allege various torts each arising from the

laws of four different states: New York, New Jersey,

California, and Texas. 17 Counts Thirty through

16 In many instances, Plaintiff does not specify which

Defendants he asserts various claims against. The Court

construes the Complaint broadly to allege discrimination

by all Defendants unless otherwise pled, but in this

Opinion only addresses the validity of each claim as to the

Moving Defendants.

17 It is clear that the conduct of each of the Moving

Defendants does not fall within the reach of all four states

whose law Plaintiff invokes. Nor is it clear which state law

would address the conduct of which of the Moving

Defendants. In this Opinion, for purposes of simplicity,

and because Plaintiffs claims against each Moving

41a

Thirty-Two allege contract or quasi-contract claims

arising from the laws of those same four states. Id.

1249—1284. Count Thirty-Four alleges violation of

Plaintiffs right to privacy under the United States

Constitution, the constitutions of various states, and

state law. Id.

1296—1309. Finally, Count ThirtySeven

alleges

infringement

of

Plaintiffs

constitutional right to travel. Id.

1329-1348.

In late 2023, Moving Defendants filed their motions to

dismiss. The Domestic Defendants filed their motion

to dismiss for failure to state a claim under Federal

Rule of Civil Procedure 12(b)(6), along with a

memorandum of law in support on October 30. Dkt.

Nos. 121- 22.18 Plaintiff filed his opposition to the

motion to dismiss on November 16. Dkt. No. 172. The

Domestic Defendants filed a reply brief in further

support of their motion on November 28. Dkt. No.

199.

Silver moved to dismiss the Complaint for failure to

comport with Rule 8 and for failure to state a claim

Defendant fail under the law of all four states, the Court

assumes without deciding that the law of each of the four

states applies to each Moving Defendant. However, the

Court has not concluded that the conduct of any of the

Moving Defendants can be reached by the law of any

particular state.

18 In their opening motion to dismiss, Domestic Defendants

did not address Plaintiffs Section 1983 claims. They

instead filed another motion to dismiss and accompanying

memorandum of law specifically seeking dismissal of the

1983 claims on November 28, 2023. Dkt. No. 197. Plaintiff

filed his response on December 24, 2023. Dkt. No. 240.

42a

under Rule 12(b)(6) on November 1, 2023, along with

a memorandum of law in support of its motion. Dkt.

Nos. 130, 132. But in its briefing, Silver did not make

any arguments regarding Plaintiffs failure to state

claims, contending only that the Complaint failed to

comport with Rule 8’s requirements as to form. Dkt.

No. 132. Instead, it sought to join the Domestic

Airlines’

and Domestic Individuals’

12(b)(6)

arguments. Dkt. No. 220. The Court accordingly

treats Silver as having joined the Domestic

Defendants’ motion to dismiss. Plaintiff filed his

opposition to Silver’s motion on November 16. Dkt.

No. 170. Silver filed a reply in support of dismissal on

November 27. Dkt. No. 189.

The Foreign Defendants moved to dismiss the

Complaint for failure to state a claim under Rule

12(b)(6) and, as to Defendant Roberts, lack of personal

jurisdiction under Rule 12(b)(2) on November 20. Dkt.

Nos. 179-180.

Plaintiff opposed the motion on

November 22. Dkt No. 194. The Foreign Defendants

filed a reply memorandum on December 12. Dkt. No.

228.

LEGAL STANDARD

Moving Defendants challenge every cause of action

Plaintiff levels against them principally on grounds

that the Complaint fails to state a claim for relief

under Rule 12(b)(6). One Defendant argues that the

Complaint fails to comport with the form

43a

requirements of Rule 8.19 In addition, Domestic

Defendants challenge Plaintiffs standing.20

19 Silver argues that the Complaint should be dismissed for

failure to follow the requirement of Federal Rule of Civil

Procedure 8(a)(2) that the complaint contain “a short and

plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2). “When a

complaint does not comply with the requirement that it be

short and plain, the court has the power, on its own

initiative or in response to a motion by the defendant, to

strike any portions that are redundant or immaterial, see

Fed.R.Civ.P. 12(f), or to dismiss the complaint. Dismissal,

however, is usually reserved for those cases in which the

complaint is so confused, ambiguous, vague, or otherwise

unintelligible that its true substance, if any, is well

disguised.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.

1988); Harnage v. Lightner, 916 F.3d 138, 141 (2d Cir.

2019); Collins v. Pearson Educ., Inc., 2024 WL 895316, at

*5 (S.D.N.Y. Mar. 1, 2024). If the court dismisses a

complaint under Rule 8, “it should generally give the

plaintiff leave to amend.” Simmons v. Abruzzo, 49 F.3d 83,

87 (2d Cir. 1995). The length of Plaintiffs complaint is, in

part, a function of the number of defendants he has sued.

5 Charles A. Wright & Arthur R. Miller, Federal Practice

6 Procedure § 1217 (4th ed.) (“[I]n the context of a

multiparty, multiclaim complaint each claim should be

stated as succinctly and plainly as possible even though the

entire pleading may prove to be long and complicated by

virtue of the number of parties and claims.”). The

complaint here is not so confused, ambiguous, vague or

unintelligible to require dismissal.

20 Domestic Defendants halfheartedly argue that Plaintiff

lacks standing to bring their claims against him, see Dkt.

No. 122 at 41-43, and that the claims are moot, id. at 4346. Foreign Defendants do not share this view. See Dkt.

44a

No. 180. To establish standing, a plaintiff must allege (1)

an injury in fact that is actual or imminent, not conjectural

or hypothetical; (2) that is fairly traceable to the conduct of

the defendant; and (3) that is likely to be redressed by a

favorable decision. See Lujan v. Defs. of Wildlife, 504 U.S.

555, 560-61 (1992). At the pleading stage, “general factual

allegations of injury resulting from defendant’s conduct

may suffice” to establish standing. Id. Plaintiff here has

alleged sufficient facts against at least some of the Moving

Defendants to establish standing by claiming (1) that he

was denied access to their flights, see, e.g., Compl.

ISO85, 343, 493, 660; (2) that he suffered injuries that were

actual and fairly traceable to the conduct of the airlines,

e.g., id. U 442 (alleging pain and suffering from flight on

JetBlue); id. 662 (alleging that he needed to fly on United

for his business but was denied access); and (3) that he

suffered injury in the form of increased travel spending for

alternate travel and lost business opportunities, id.

809,

814, that can be remediated by an award of money

damages. Moreover, the allegations against each of the

Moving Defendants are nearly identical. Accordingly, at

this stage, the Court is seized with jurisdiction and need

not make an individualized review as to whether, with

respect to each of the Moving Defendants, Plaintiff has

made sufficient allegations of standing. See Massachusetts

v. EPA, 549 U.S. 497,

518 (2007) (only one petitioner needs to have standing for

court to have Article III jurisdiction); Rumsfeld v. F. for

Acad. & Institutional Rights, Inc., 547 U.S. 47, 53 n.2

(2006) (“[T]he presence of one party with standing is

sufficient to satisfy Article Ill’s case-or-controversy

requirement.”); Kachalsky v. County of Westchester, 701

F.3d 81, 84 n.2 (2d Cir. 2012), cert, denied, 569 U.S. 918

(2013), abrogated on other grounds by N.Y. State Rifle &

Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) (holding that where

45a

In considering a motion to dismiss pursuant to Rule

12(b)(6), a “court must accept the material facts as

alleged in the complaint as true and construe all

reasonable inferences in the plaintiffs favor.” Phelps

v. Kapnolas, 308 F.3d 180, 184 (2d Cir. 2002) (quoting

Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.),

cert, denied, 513 U.S. 836 (1994)). However, “[t]o

survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A

complaint must offer more than “labels and

conclusions,” “a formulaic recitation of the elements of

a cause of action,” or “naked assertion[s]” devoid of

“further factual enhancement” in order to survive

dismissal. Twombly, 550 U.S. at 555, 557. The

ultimate question is whether “[a] claim has facial

plausibility, [i.e.,] the plaintiff pleads factual content

that allows the court to draw the reasonable inference

“at least one plaintiff has standing, jurisdiction is secure

and we can adjudicate the case whether the additional

plaintiff has standing or not” and declining to address issue

of whether an additional defendant was a proper party to

the case).

Because Plaintiff has asserted a claim for

damages, including nominal damages, his claims against

the Moving Defendants are not moot. See, e.g., Van Wie v.

Pataki, 267 F.3d 109, 115 n.4 (2d Cir. 2001) (noting that a

claim for damages, even nominal in nature, prevents a case

from becoming moot even if the allegedly unlawful conduct

has ceased); see also Marin v. Town of Southeast, 136 F:

Supp. 3d 548, 562-63 (S.D.N.Y. 2015).

46a

that the defendant is liable for the misconduct

alleged.”

Iqbal, 556 U.S. at 678. “Determining

whether a complaint states a plausible claim for relief

will ... be a contextspecific task that requires the

reviewing court to draw on its judicial experience and

common sense.” Id. at 679. Put another way, the

plausibility requirement “calls for enough fact to raise

a reasonable expectation that discovery will reveal

evidence [supporting the claim].” Twombly, 550 U.S.

at 556; see also Matrixx Initiatives, Inc. v. Siracusano,

563 U.S. 27, 46 (2011).

When adjudicating a motion to dismiss under Rule

12(b)(6), the court considers not only the well-pleaded

allegations of the complaint but documents

incorporated by reference and “matters of which

judicial notice may be taken.” Chambers v. Time

Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); see

Gray v. Wesco Aircraft Holdings, Inc., 454 F. Supp. 3d

366, 382-83 (S.D.N.Y. 2020), aff’d, 847 F. App’x 35 (2d

Cir. 2021) (summary order).

The Court ordinarily construes pro se pleadings

broadly and liberally, interpreting them so as to raise

the strongest arguments they suggest. See McLeod v.

Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir.

2017) (per curiam); Abbas v. Dixon, 480 F.3d 636, 639

(2d Cir. 2007); Cruz u. Gomez, 202 F.3d 593, 597 (2d

Cir. 2000). And this obligation rings “especially true

when dealing with pro se complaints alleging civil

rights violations.” Weixel v. Bd. of Educ. of City of

N.Y., 287 F.3d 138, 146 (2d Cir. 2002); see also

Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001)

(same). However, while the Court construes pro se

47a

pleadings liberally, pro se plaintiffs are not relieved of

the requirement that they plead facts that raise a

right to relief above a speculative level. See Saidin v.

N.Y.C. Dep’t of Educ., 498 F. Supp. 2d 683, 687

(S.D.N.Y. 2007) (“[P]ro se status does not relieve a

plaintiff of the pleading standards otherwise

prescribed by the Federal Rules of Civil Procedure.”).

And, in this case, Plaintiff is entitled to somewhat

lesser solicitude because of his extensive experience

with and schooling in the law as it applied to motions

to dismiss and mask mandates and other public

health measures taken to slow the spread of COVID19. See Sledge v. Kooi, 564 F.3d 105, 109-110 (2d Cir.

2009) (discussing circumstances where frequent pro se

litigant may be charged with knowledge of particular

legal requirements); Tracy v. Freshwater, 623 F.3d 90

(2d Cir. 2010).21

21 Plaintiff has brought numerous actions challenging

mask mandates and other COVID-19related restrictions

under federal and state disability law. These claims have

almost uniformly been rejected. See, e.g., Abadi v. New

York, 2022 WL 347632 (S.D.N.Y. Feb. 4, 2022), aff’d sub

nom., Abadi v. City of New York, 2023 WL 3295949 (2d Cir.

May 8, 2023) (summary order), cert, denied, 144 S. Ct. 260

(2023) (denying Plaintiff injunctive relief enjoining

enforcement of some of New York City’s COVID-19-related

restrictions, including the requirement that individuals be

vaccinated against the virus to enter indoor dining,

entertainment, recreation, and fitness venues, and the

requirement that employees of the City and City

contractors be vaccinated or take weekly COVID-19 tests);

Abadi v. Target Corp., 2023 WL 4045373, at *1 (3d Cir.

June 16, 2023) (per curiam), cert, denied, 144 S. Ct. 235

48a

(2023) (rejecting Plaintiff s federal claims of discrimination

on the basis of disability against Target and unnamed

Target employees on the basis of the store’s mask policy for

lack of subject matter jurisdiction and failure to state a

claim); Abadi v. Target Corp., 2023 WL 6796558 (E.D. Pa.

Oct. 13, 2023) (dismissing Plaintiffs state law claim

against Target for lack of jurisdiction and failure to state a

claim); Abadi v. Walmart, Inc., 2022 WL 9822322 (D. Me.

Oct. 17, 2022), report and recommendation adopted, 2022

WL 16552955 (D. Me. Oct. 31, 2022), aff’d, see CM-ECF 22cv-00228-GZS, Dkt. No. 17 (D. Me. Sept. 29, 2023)

(dismissing Plaintiffs claims of disability discrimination

due to masking requirement under the Americans with

Disabilities Act, Rehabilitation Act, Supremacy Clause, 42

U.S.C. §§ 1983, 1985, 1986, and state law for failure to

state a claim); Abadi v. Quick Check Corp., 2023 WL

3983879 (D.N.J. June 13, 2023) (denying Plaintiffs motion

for leave to amend his complaint alleging disability

discrimination claims under the Americans with

Disabilities Act and the Rehabilitation Act complaint to (1)

name as defendants seven individuals employed by the

convenience store, which the district court denied; and (2)

to bring a state law discrimination claim against the

convenience store, which the court granted); see also CMECF 3:21-cv-20272MAS-RLS, Dkt. No. 44 (D.N.J. Jan. 4,

2024), appealed to Third Circuit, CM-ECF 3:21-cv20272MAS-RLS, Dkt. No. 46 (D.N.J. Jan. 26, 2024) (denying

Plaintiff s motion for reconsideration of the court’s decision

on his motion to amend). Plaintiff also brought challenges

to DOT decisions regarding his allegations of disability

discrimination against various airlines in two different

circuit courts, but was rejected in both, with the Supreme

Court again declining to grant certiorari in both actions.

See In re Abadi, 2022 WL 2541249, at *1 (D.C. Cir. Apr. 14,

2022) (per curiam), cert, denied sub nom. Abadi v. Dep’t of

49a

DISCUSSION

Plaintiff brings a series of claims under both federal

and state law. Moving Defendants contend that the

Plaintiff fails to state a claim for each. Dkt. Nos. 122,

180, 197. Moving Defendants also contend that the

state law claims are preempted by several federal

laws. The Court addresses each of Plaintiffs claims in

seriatim, breaking briefly between the federal and state

law claims to discuss general preemption principles.

I.

42 U.S.C. § 1983 Claim

Count Seven of the Complaint22 alleges that the

Airline Defendants and their employees, among

others,23 violated 42 U.S.C. § 1983 by discriminating

against him on the basis of his disability. CompL

918-931. Section 1983 “provides a mechanism for

enforcing individual rights ‘secured’ elsewhere, i.e.,

rights independently ‘secured by the Constitution and

laws’ of the United States.” Gonzaga Univ. v. Doe, 536

Transp., 143 S. Ct. 220 (2022) (denying Plaintiffs appeal of

DOT’s order); Abadi v. Dep’t of Transp., 2021 WL 7500325,

at *1 (2d Cir. Dec. 29, 2021), cert, denied, 142 S. Ct. 1694

(2022) (same).

22 As noted, Counts One through Six allege claims against

the Federal Defendants, and thus are not addressed in this

Opinion.

23 In many instances, Plaintiff does not specify which

Defendants he asserts various claims against. The Court

construes the Complaint broadly to allege discrimination

by all Defendants unless otherwise pled, but in this

Opinion only addresses the merits as to the Moving

Defendants.

50a

U.S. 273, 285 (2002). It was enacted “to deter state

actors from using the badge of their authority to

deprive individuals of their federally guaranteed

rights and to provide relief to victims if such

deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161

(1992). Plaintiff claims that the Airline Defendants

acted under color of law, Compl.

922-924, because

they were recruited by the Government to enforce the

Mask Mandate, id. *|| 924, and because flight crews

utilized “quasi police power,” protected by federal

statutory law, while on the plane, id.

925-926.

Moving Defendants contend that Plaintiffs claim fails

as a matter of law because he has not demonstrated

state action sufficient to trigger 1983, see Dkt. Nos.

180, 198.

Section 1983 provides that an action may be

maintained against a “person” who has deprived

another of rights independently secured by the

“Constitution and laws.” 42 U.S.C. § 1983. To

successfully plead a § 1983 claim, a plaintiff must

allege two elements. First, “the conduct complained

of must have been committed by a person acting under

color of state law.” Pitchell v. Callan, 13 F.3d 545, 547

(2d Cir. 1994). Second, “the conduct complained of

must have deprived a person of rights, privileges or

immunities secured by the Constitution or laws of the

United States.” Id. It is well established that airlines

and their staff “are private, not state, actors.” Blythe

v. Southwest Airlines Co., 383 F. App’x 766 (10th Cir.

2010); see Sanchez-Naek v. Tap Port., Inc., 260 F.

Supp. 3d 185, 192 n.l (D. Conn. 2017); see also Berlin

v. JetBlue Airways Corp., 436 F. Supp. 3d 550, 563-64

(E.D.N.Y. 2020); Mapp-Leslie v. Norwegian Airlines,

51a

2020 WL 264919, at *2 (E.D.N.Y. Jan. 17, 2020).

Accordingly, Plaintiff must thus show that the

defendants were nonetheless acting “under color of

state law,” and thus are subject to liability under §

1983. Importantly, “a private entity does not become

a state actor for purposes of § 1983 merely on the basis

of ‘the private entity’s creation, funding, licensing, or

regulation by the government.’” Fabrikant v. French,

691 F.3d 193 (2d Cir. 2012) (quoting Cranley v. Nat’l

Life Ins. Co. of Vt., 318 F.3d 105, 112 (2d Cir. 2003)).

“Rather, ‘there must be such a close nexus between

the state and the challenged action’ that the state is

‘responsible for the specific conduct of which the

plaintiff complains.’” Id. (quoting Cranley, 318 F.3d

at 111).

As the Second Circuit has explained,

Hollander v. Copacabana Nightclub, 624 F.3d 30, 34

(2d Cir. 2010) (per curiam), the actions of nominally

private entities are attributable to the state when

those actions meet one of three tests:

(l)the entity acts pursuant to the “coercive power”

of the state or is “controlled” by the state (“the

compulsion test”); (2) when the state provides

“significant encouragement” to the entity, the

entity is a “willful participant in joint activity with

the [s]tate,” or the entity’s functions are

“entwined” with state policies (“the joint action

test” or “close nexus test”); or (3) when the entity

“has been delegated a public function by the

[s]tate,” (“the public function test”). Sybalski v.

Indep. Grp. Home Living Program, Inc., 546 F.3d

255, 257 (2d Cir. 2008) (alterations in original)

(quoting Brentwood Acad. v. Tenn. Secondary Sch.

Ath. Ass’n, 531 U.S. 288, 296 (2001)).

52a

“The fundamental question under each test is whether

the private entity’s challenged actions are ‘fairly

attributable’ to the state.” McGugan v. AldanaBernier, 752 F.3d 224, 229 (2d Cir. 2014). The Court

“begin [s] the fair attribution inquiry by identifying

‘the specific conduct of which the plaintiff complains,

rather than the general characteristics of the entity.’”

Grogan v. Blooming Grove Volunteer Ambulance

Corps, 768 F.3d 259, 264 (2d Cir. 2014) (quoting

Fabrikant, 691 F.3d at 207). Importantly, “even

extensive regulation by the government does not

transform the actions of the regulated entity into

those of the government.” S.F. Arts & Athletics, Inc.

v. U.S. Olympic Comm., 483 U.S. 522, 542 (1987).

Here, Plaintiff alleges that the airlines discriminated

against him by not permitting him to fly maskless

upon presentation of his Doctor’s Note, in violation of

his constitutional rights and federal law. Thus, the

ultimate issue that the Court addresses is whether

the decisions of Moving Defendants to require him to

wear a mask or otherwise comply with their policies is

fairly attributable to the state so as to subject Moving

Defendants to the strictures of the Constitution.

The Complaint fails to satisfy any of the three tests.

To satisfy the compulsion test, “plaintiff must allege

‘actual coercion’ by a state actor that impacts upon the

private actor's decision-making.” OBrien v. Carrier

Coach, Inc., 2006 WL 692409, at *3 (W.D.N.Y. Mar. 6,

2006) (collecting cases) (rejecting a Section 1983 claim

even though the plaintiff alleged that the defendant’s

business “depend [s] upon a certain amount of

governmental aid,” and is “conducted according to

policies which ‘are greatly influenced and/or shaped

53a

by state and/or federal statutes and regulations.’”

(citations omitted)). “A private entity ... is not a state

actor where its conduct is not compelled by the state

but is merely permitted by . . . law.” Dawkins v.

Biondi Educ. Ctr., 164 F. Supp. 3d 518, 526 (S.D.N.Y.

2016). “[T]he state must be involved . . . with the

activity that caused the injury. Putting the point

another way, the state action, not the private action

must be the subject of the complaint.” Powe v. Miles,

407 F.2d 73, 81 (1968).

The state must have

“exercised coercive power or . . . provided such

significant encouragement, either overt or covert, that

the choice must in law be deemed to be that of the

State.” Hernandez v. City of New York, 2022 WL

316938, at *5 (S.D.N.Y. Feb. 2, 2022) (quoting Doe v.

Rosenberg, 996 F. Supp. 343, 348-49 (S.D.N.Y. 1998)).

Even if a private entity is funded by the state and

subject to extensive state regulation, its decision does

not become state action. See, e.g., Jackson v. Metro.

Edison Co., 419 U.S. 345, 350 (1974); McGugan, 752

F.3d at 229-31. This rule has been applied to airlines

specifically. See Anderson v. USAir, Inc., 812 F.2d 49,

56 (D.C. Cir. 1987) (“USAir is not transformed into a

government actor by regulation.”).

Plaintiff does not allege compulsion here. Plaintiff

does not allege that the state had any involvement in

the decision of any of the Moving Defendants to apply

their mask policies to him or provided any

encouragement to the Moving Defendants to do so.

From the Complaint and appended documents, each

airline’s unique mask exemption policy was a function

of its individual interpretation of the CDC Order and

the DOT Enforcement Order and generalized

54a

decision-making. Each of the Moving Defendants

acted autonomously with respect to his requests,

setting forth their own requirements and policies for

exemptions to the Mask Mandate. Cf. McGugan, 752

F.3d at 239; Doe v. Harrison, 254 F. Supp. 2d 338, 342

(S.D.N.Y. 2003).24

Plaintiff also does not allege the type of “pervasive

entanglement” necessary to satisfy the joint action or

close nexus test.25 To “assure that constitutional

24 Indeed, Plaintiff alleges that the DOT on occasion found

that the Moving Defendants had violated federal law in

their application of the Mask Mandate to him. See, e.g.,

Compl. HU 155, 182, 215. Those allegations undermine,

rather than support, any claim of state compulsion.

25 Over sixty years ago, in Burton, v. Wilmington Parking

Authority, 365 U.S. 715 (1961), the Supreme Court

fashioned a “symbiotic relationship” test—a concept

“closely related to the [entwinement] concept,” Forbes v.

City of New York, 2008 WL 3539936, at *7 (Aug. 12, 2008),

but slightly broader—to determine whether a private

entity acted under color of law. In Burton, the Supreme

Court considered whether the state “has so far insinuated

itself into a position of interdependence with [the private

entity] that it must be recognized as a joint participant in

the challenged activity.” 365 U.S. at 725. “Thus, in

contrast to the nexus inquiry, this avenue of approach

ousts the challenged conduct from center stage and

concentrates instead on the nature of the overall

relationship between the State and the private entity.”

Perkins v. Londonderry Basketball Club, 196 F.3d 13, 21

(1st Cir. 1999). Under the symbiotic relationship test,

courts considered the extent to which the private entity

was independent in the conduct of its day-to-day affairs

and whether the state knowingly shared in the profits

55a

standards are invoked only when it can be said that

the [s]tate is responsible for specific conduct of which

the plaintiff complains,” see, e.g., Blum v. Yaretsky,

457 U.S. 991, 1004 (1982), “[i]t is not enough . . . for a

accrued from complained of conduct of the private entities.

To the extent this test remains good law, and even

applicable here, see, e.g., Island Online, Inc. v. Network

Sols., Inc., 119 F. Supp. 2d 289, 306-07 (E.D.N.Y. 2000)

(noting that the symbiotic relationship test is “limited to

cases involving leases of public property” and “cases where

the State benefits financially from a private entity’s

discriminatory conduct”), the allegations fail that test as

well. The airlines are independent in conducting their dayto-day affairs, and Plaintiff does not plead otherwise. Nor

did the state knowingly share in any profits accrued from

the allegedly discriminatory conduct—a key element to

finding a symbiotic relationship. See Rendell-Baker v.

Kohn, 457 U.S. 830, 843 (1982); Hadges v. Yonkers Racing

Corp., 918 F.2d 1079 (2d Cir. 1990). Plaintiff does not

allege that the government, or, for that matter, the Moving

Defendants, financially profited at all from the

discrimination. See, e.g., Barrios-Velazquez v. Asociacion

de Empleados del Estado Libre Asociado de Puerto Rico, 84

F.3d 487, 494 (1st Cir. 1996) (finding no symbiotic

relationship where the plaintiff failed “to link the alleged

[legal violation] to some financial gain to the government”).

In fact, Plaintiff himself indicates that the airlines lost

money by allegedly discriminating against individuals

with disabilities and not permitting them to fly. For

example, Plaintiff did not book flights with several airlines,

including SIA, see Dkt. No. 3-69 at 1-2, and TAP Air, see

Dkt. No. 3-75 at 2, 5-7, because he was awaiting a

determination as to whether he could fly maskless.

56a

plaintiff to plead state involvement in ‘some activity of

the institution alleged to have inflicted injury upon a

plaintiff,... [r]ather, the plaintiff must allege that the

state was involved ‘with the activity that caused the

injury’ giving rise to the action,” Sybalski, 546 F.3d at

257-58 (emphasis in original) (quoting Schlein v.

Milford Hosp., Inc., 561 F.2d 427, 428 (2d Cir. 1977)). “A

private actor can only be a willful participant in joint

activity with the [s]tate or its agents if the two share

some common goal to violate the plaintiffs rights.”

Betts v. Shearman, 751 F.3d 78, 85 (2d Cir. 2014)

(internal quotation marks omitted). “The touchstone

of joint action is often a ‘plan, prearrangement,

conspiracy, custom, or policy’ shared by the private

actor and the [state].” Forbes, 2008 WL 3539936, at

*5(quoting Ginsberg v. Healey Car & Truck Leasing, Inc.,

189 F.3d 268, 272 (2d Cir. 1999)). The existence of

governmental regulations, standing alone, does not

create the requisite entwinement. See, e.g., Blum, 457

U.S. at 1004. Similarly, the fact that a private entity

contracts with the government or receives

governmental funds or other kinds of governmental

assistance does not automatically transform the

conduct of that entity into state action. Rendell-Baker,

457 U.S. at 840—42; see S.F. Arts & Athletics, 483 U.S. at

544 (“The Government may subsidize private entities

without assuming constitutional responsibility for

their actions.”); Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d

Cir. 2009); Fabrikant v. French, 691 F.3d at 207 (“[A]

private entity does not become a state actor ... merely

on the basis of the private entity’s creation, funding,

licensing, or regulation by the overnment.”). Nor is a

private entity’s “undertaking] to perform a service for

57a

the government” sufficient. Andersonv. USAir, 818 F.2d

49, 56 (D.C. Cir. 1987).

Here, not only is there no allegation that the Airline

Defendants contracted with the government, Plaintiff

alleges no facts that could support a finding of largely

overlapping identity between the state and the

defendant entities that Plaintiff contends acted under

color of law. Plaintiffs allegations that flight crews

exercise a “quasi police power,” Compl. ^[ 925, fail

because courts have consistently held that “[t]he

provision of information to or summoning of police

officers, even if that information . . . results in the

officers taking affirmative action, is not sufficient to

constitute joint action with state actors for purposes

of § 1983,” Young v. Suffolk County, 705 F.2d 183, 196

(E.D.N.Y. 2010) (Bianco, J.); see also Ginsberg, 189

F.3d at 272; Butler v. Goldblatt Bros., Inc., 589 F.2d

323, 325-26 (7th Cir. 1978), cert, denied, 444 U.S. 841

(1979).

Finally, Plaintiff does not satisfy the public function

test.

To satisfy the public function test, “the

government must have traditionally and exclusively

performed the function.” Manhattan Cmty. Access

Corp. v. Halleck, 587 U.S. 802, 809 (2019); see

Jacobson v. Kings Cnty. Democratic Cnty. Comm., 788

F. App’x 770 (2d Cir. 2019) (summary order);

SteeleWarrick v. Microgenics Corp., 2023 WL

3959100, at *5 (E.D.N.Y. June 12, 2023). “The fact

‘[t]hat a private entity performs a function which

serves the public does not make its acts

[governmental] action.’” S.F. Arts & Athletics, 483

U.S. at 545 (quoting Rendell-Baker, 457 U.S. at 842).

“[A] private entity may be considered a state court

58a

[only] when it exercises a function ‘traditionally

exclusively reserved to the State.’” Manhattan, Crnty.

Access Corp., 587 U.S. at 804 (quoting Jackson, 419

U.S. at 352). “It is not enough that the federal, state,

or local government exercised the function in the past,

or still does. And it is not enough that the function

serves the public good or the public interest in some

way.” Id. at 810. The Plaintiff does not allege, nor

could he, that the operation of airlines in the United

States has been traditionally and exclusively reserved

to the government.26

Plaintiff alleges that “flight crew[s] believe that they

have ... a quasi police power while on the plane,” and

that, if violations of airline policy occur on a flight,

“[t]he people enforcing the law until the police [arrive]

and the ones calling the police [] are the flight

attendants and the pilots. Compl.

925, 928.

However, “the mere fact that a private actor

[requested and] received police assistance is not

sufficient to transform that private actor’s conduct

into state action for § 1983 purposes.” See, e.g.,

Meadows v. United Servs., Inc., 963 F.3d 240, 243 (2d

Cir. 2020) (citing Ginsberg, 189 F.3d at 272); see also

Anderson, 818 F.2d at 190 (airline not transformed

into government actor by intervention of Federal

26 Plaintiff alleges that he “experience multiple situations

during Covid-19, where the flight attendants barked

commands, expecting Plaintiff to follow orders, or else.”

Compl. If 930. That conclusory allegation does not support

a claim that the airlines acted with the power of the state

and, in doing so, deprived Plaintiff of his constitutional

rights.

59a

Aviation Administration police to remove party from

plane). Insofar as Plaintiff alleges that flight crews

themselves act as police, see Compl.

925-929,

“courts have consistently held that the mere fact that

an individual’s job involves the investigation of crime

does not transform him into a government actor,”

Gallagher v. Neil Young Freedom Concert, 49 F.3d

1442, 1457 (10th Cir. 1995) (quoting United States v.

Garlock, 19 F.3d 441, 443—44 (8th Cir. 1994)); see also

Ginsberg, 189 F.3d at 272. “This is true even when

the government requires that certain security

measures be taken.” Gallagher, 49 F.3d at 1457.

Plaintiff also implies that the flight crews had

discriminatory motive, Compl.

924, but “one’s

motivation is irrelevant to the determination of

whether one is a state actor,” Young v. Suffolk County,

705 F. Supp. 2d 183, 196 (E.D.N.Y. 2010) (citing Kash

v. Honey, 38 F. App’x 73, 75-76 (2d Cir. 2002)

(summary order)).

In conclusion, the Court finds that Plaintiff has failed

to plausibly allege that Moving Defendants are state

actors, and thus his 1983 claim fails as a matter of

law. See, e.g., Lugar v. Edmondson Oil Co., Inc., 457

U.S. 922, 939 (1982) (“Action by a private party

pursuant to [1983], without something more, was not

sufficient to justify a characterization of that party as

a ‘state actor.’”). The Court thus need not consider

whether Plaintiff adequately pled a deprivation of

rights, the second element necessary to plead a 1983

claim.

60a

II. 42 U.S.C. § 1985 Claim

In Count Eight, Plaintiff alleges that all Defendants

engaged in a conspiracy with one another to interfere

with his civil rights by depriving him of his right to fly

in violation of 42 U.S.C. § 1985. Compl.

932-985.

In particular, Plaintiff alleges he was discriminated

against based on his membership in the class of “those

with disabilities towards masks,” id. 940; see also id.

If 945, analogizing to “[m]entally disabled people, a

sub-category of disabled people,” id. 939, a group he

alleges constitutes a protected class. He claims that

he “expect [s] to prove through discovery that the

Airline Defendants conspired—with each other, other

air carriers, and within their own companies—to ban

disabled flyers because of a discriminatory motive.”

Id. T] 961. He also claims that the conspiracy involved

“the constitutional right to travel.” Id.

969. He

alleges that the parties all “had a clear understanding

between all of them that they will together not allow

passengers to fly without a mask, even though they

are disabled and cannot wear a mask.” Id. 971.

Section 1985(3) provides, in pertinent part, as follows:

If two or more persons in any State or Territory

conspire or go in disguise on the highway or on the

premises of another, for the purpose of depriving,

either directly or indirectly, any person or class of

persons of the equal protection of the laws, or of

equal privileges and immunities under the laws

[those persons shall be liable for damages to a

person who is] injured in his person or property, or

deprived of having and exercising any right or

privilege of a citizen of the United States. 42

U.S.C. § 1985(3).

61a

To make out a claim under Section 1985(3), the

plaintiff must adequately allege “(1) a conspiracy; (2)

for the purpose of depriving, either directly or

indirectly, any person or class of persons of equal

protection of the laws, or of equal privileges and

immunities under the laws; (3) an act in furtherance

of the conspiracy; (4) whereby a person is either

injured in his person or property or deprived of any

right of a citizen of the United States.” Mian v.

Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085,

1087 (2d Cir. 1993) (per curiam). In adopting the

predecessor to Section 1985(3), Congress’s “central

concern” was to “combat[] the violent and other efforts

of the [Ku Klux] Klan and its allies to resist and to

frustrate the intended affects of the Thirteenth,

Fourteenth, and Fifteenth Amendments.” United

Bhd. of Carpenters & Joiners of Am., Loe. 610 v. Scott,

463 U.S. 825, 837 (1983). The statutory “language

requiring intent to deprive of equal protection, or

equal privileges and immunities, means that there

must be some racial, or perhaps otherwise class­

based, invidiously discriminatory animus behind the

conspirators’ action.” Griffin v. Breckenridge, 403

U.S. 88, 102 (1971). Thus, the conspiracy must “be

motivated by ‘some racial or ... [other] discriminatory

animus.’” Mian, 7 F.3d at 1087—88 (quoting Scott, 463

U.S. at 829); see also Mira v. Kingston, 715 F. App’x

28, 30 (2d Cir. 2017) (summary order), cert, denied,

139 S. Ct. 126 (2018); Grillo u. N.Y.C. Transit Auth.,

291 F.3d 231, 234 (2d Cir. 2002) (Section 1985(3)

requires evidence “that the actions of the individual

[defendants] were motivated by racial animus or illwill”); Thomas v. DeCastro, 2019 WL 1428365, at *7

(S.D.N.Y. Mar. 29, 2019) (“Under [Section 1985], [a

62a

p]laintiff must make ‘a showing of class-based

invidiously discriminatory animus’ on the part of the

conspiring parties, as well as provide ‘some factual

basis supporting a meeting of the minds, such that

[the] defendants entered into an agreement, express

or tacit, to achieve the unlawful end.’” (citations

omitted)); Gong v. Sarnoff, 2023 WL 4561800, at *10

(S.D.N.Y. July 17, 2023). In order to allege a claim

under Section 1985(3), plaintiff must allege the

existence of a qualifying class and that the alleged co­

conspirators were animated by a “class-based,

invidiously discriminatory animus,” i.e., that the co­

conspirators committed to their course of conduct “at

least in part ‘because of,’ not merely ‘in spite of,’ its

adverse effects upon an identifiable group.” Bray v.

Alexandria Women’s Health Clinic, 506 U.S. 263, 272

(1993) (quoting Pers. Adm’r of Mass. v. Feeney, 442

U.S. 256, 279 (1979)). The plaintiff must also allege

“that the conspiracy ‘aimed at inferring with rights’

that are ‘protected against private, as well as official,

encroachment,”’ id. (quoting Scott, 463 U.S. at 833),

i.e., the right must be “consciously targeted and not

just incidentally affected,” Spencer v. Casavilla, 44

F.3d 74, 78 (2d Cir. 1994); see also id. at 79

(impairment of the right must be the conscious

objective of the conspiracy).

At the outset, Domestic Defendants argue that

Plaintiff cannot plead a claim under Section 1985(3)

because “disability discrimination claims by disabled

airline passengers are exclusively governed” by a

separate federal statute, the ACAA. Dkt. No. 122 at

8. In Great American Federal Savings & Loan Ass’n

v. Novotny, 442 U.S. 366 (1979), the Supreme Court

63a

held that Section 1985(3) could not be used to enforce

rights created solely by Title VII of the Civil Rights

Act of 1964. Id. at 378. The Court observed that

recognition of a plaintiffs ability to enforce through

Section 1985(3) a right created by Title VII would

permit a plaintiff to circumvent the “detailed

administrative and judicial process designed to prove

an opportunity for nonjudicial and nonadversary

resolution of claims.” Id. at 372-73; see id. at 375-76

(“If a violation of Title VII could be asserted through §

1985(3), a complainant could avoid most if not all of

these detailed and specific provisions of the law.”). In

Sherlock v. Montefiore Medical Center, 84 F.3d 522 (2d

Cir. 1996), the Second Circuit extended Novotny to

claims brought under the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Id.

at 527. The court stated that the existence of a

“similar mechanism for enforcement and conciliation

of claims under the ADEA [as under Title VII]

persuades us that a violation of the ADEA likewise

cannot be the basis for a claim under § 1985(3).” Id.-,

see also Sauter v. Nevada, 142 F.3d 445 (9th Cir. 1998)

(deeming Section 1985(3) unavailable to enforce

statutory rights under ADA and ADEA “when the

statute in question has its own remedial structure”).

Defendants’ argument is not persuasive.27 The Court

did not base its decision in Novotny solely on the fact

that an alternative administrative remedy was

available for the complainant. It based its decision on

27 The Court recognizes that the United States District

Court for the District of Massachusetts reached a contrary

conclusion. See Seklecki v. Ctr. for Disease Control &

Prevention, 635 F. Supp. 3d 15, 22 (D. Mass. 2022).

64a

the fact that the right asserted to be enforced through

Section 1985(3) did not exist independently of Title

VII. 442 U.S. at 378; see also id. at 376 (“The right

[the plaintiff] claims under § 704(a) did not even

arguably exist before the passage of Title VII.”). Thus,

the case did not involve any claim of “implied repeal.”

Id. at 377. In effect, the right created by Title VII was

part-and-parcel of the remedial regime Congress

created to enforce it. A plaintiff could not assert that

congressionally created right without following the

congressionally created process for enforcing it.

In this case, however, Plaintiff does not rest his

Section 1985(3) claim solely on a congressionallycreated right to be free from discrimination in airline

travel. He asserts a constitutionally-protected right

to be able to travel interstate, a right that the

Supreme Court has stated is “secured against

interference from any source whatever, whether

governmental or private.” United States v. Guest, 383

U.S. 745, 759 n.17 (1966); see Saenz v. Roe, 526 U.S.

489, 498 (1999) (the right to interstate travel “is so

important that it is ‘assertable against private

interference as well as governmental action ... a

virtually unconditional personal right, guaranteed by

the Constitution to us all’” (quoting Shapiro v.

Thompson, 394 U.S. 618, 643 (1969) (Stewart, J.,

concurring))).28 His claim is thus analogous to those

28 This is not to say that Plaintiff has asserted a wellfounded claim for infringement of his right to travel. As

discussed below, see infra, the right to interstate travel is

not “virtually unqualified,” rather it is subject to

“reasonable government regulation.” Aptheker v. Sec’y of

State, 378 U.S. 500, 508 (1964).

65a

where courts have held that a plaintiff can bring

independently a claim under Section 1985(3) for a

right protected by the Constitution.

See, e.g.,

Stevenson v. N.Y. State Dep’t of Corr. & Cmty.

Supervision, 2022 WL 179768, at *15 (W.D.N.Y. Jan.

20, 2022) (citing cases). It may be that Congress

created an administrative process for Plaintiff to

enforce his rights under the ACAA. There is no

indication that, in passing the ACAA, Congress

intended to foreclose a plaintiff from asserting an

independent claim for conspiracy to violate his right

to interstate travel because of his membership in a

protected class. Cf. Gardner-Alfred v. Fed. Rsrv. Bank

of N.Y., 651 F. Supp. 3d 695, 706-07 (S.D.N.Y. 2023)

(holding that a plaintiff may pursue remedies under

RFRA and Title VII simultaneously).29

Plaintiffs claim under Section 1985(3) fails for a

different reason—because he is unable to plead the

29 The Seventh Circuit’s decision in D’Amato v. Wis. Gas

Co., 760 F.2d 1474 (7th Cir. 1985), is not to the contrary.

There, the Seventh Circuit affirmed the dismissal of

Plaintiffs claim that the defendants had violated Section

1985(3) by terminating his employment on the basis of his

disability. In part, the court reasoned that allowing the

plaintiff to pursue his claim for employment discrimination

“through the mechanism of Section 1985(3) would

impermissibly intrude on the statutory scheme of both [the

Rehabilitation Act] and 1985(3).” Id. at 1487. But, as the

court observed, “the right to employment that [the

plaintiff] claims did not exist prior to the enactment of

Section 503.” Id. Thus, as with Title VII, the right did not

exist independent of the remedial regime Congress created

to enforce it.

66a

On the other hand, the Third Circuit has held that

individuals with mental disabilities are a qualifying

class under Section 1985(3), see Farber v. City of

Paterson, 440 F.3d 131, 137 (3d Cir. 2006); Lake v.

Arnold, 112 F.3d 682, 686 (3d Cir. 1997), and the

Eighth Circuit has stated that “§ 1985(3)’s protection

extends to the handicapped as a class as well as to

females,” Larson by Larson v. Miller, 55 F.3d 1343,

1352 (8th Cir.), reh’g granted, judgment vacated sub

nom. Larson v. Miller, 67 F.3d 148 (8th Cir. 1995), and

on reh’g, 76 F.3d 1446 (8th Cir. 1996).

The Second Circuit stated in 1982 that the claim that

the “mentally retarded”30 were a class protected by

section 1985(3) was “colorable.” See People by Abrams

v. 11 Cornwell Co., 695 F.2d 34, 42 (2d Cir. 1982),

vacated on other grounds sub nom. People of State of

N.Y. by Abrams v. 11 Cornwell Co., 718 F.2d 22 (2d

Cir. 1983). The decision has never been overruled or

questioned by the Second Circuit. A number of

district courts in this Circuit subsequently held that

disabled individuals are a class falling within the

protection of Section 1985(3). See Lalonde v. City of

Ogdensburg, 2023 WL 2537626, at *16 (N.D.N.Y. Mar.

16, 2023); Doe v. Yorkville Plaza Assocs., 1994 WL

509903, at *9 (S.D.N.Y. Sept. 19, 1994); Trautz v.

Weisman, 819 F. Supp. 282, 290 (S.D.N.Y. 1993); cf.

B.D.S. v. Southold Union Free Sch. Dist., 2009 WL

30 The Court notes that the medical community no longer

uses the term “mentally retarded.”

Change in

Terminology: “Mental Retardation” to “Intellectual

Disability,” 78 Fed. Reg. 46,499 (Aug. 1, 2013). By quoting

the Second Circuit, the Court does not mean to endorse the

continued use of this language.

68a

1875942, at *20 n.8 (E.D.N.Y. June 24, 2009) (stating

in dicta that “the Second Circuit has recognized

mental disability as a class protected by Section 1985,

and, thus, it logically follows that persons with other

types of disabilities, i.e., learning and developmental

disabilities, would also be part of a class protected by

Section 1985”) (internal citations omitted). However,

other circuits have disagreed. See, e.g., Fitzpatrick v.

Town of Falmouth, 321 F. Supp. 2d 119, 124 (D. Me.

2004) (stating that there is a disagreement among the

Circuits whether Section 1985 covers disability

discrimination and holding that it does).

The Second Circuit has resisted an interpretation of

Section 1985(3) that would limit it to “protecting only

[African-Americans] and other analogously oppressed

minorities [as] untenable in light of the history of the

Act.” Dolan v. Connolly, 794 F.3d 290, 296 (2d Cir.

2015) (quoting Keating v. Carey, 706 F.2d 377, 387 (2d

Cir. 1983)). At the same time, it has held that a class

must possess “inherited or immutable characteristics”

for it to be “sufficient to satisfy the classbased animus

requirement.” Id.

The Court need not decide in this case whether the

disabled are a qualifying class under Section 1985(3).

See, e.g., Griffin, 403 U.S. at 103 n.9; Andreadakis,

2022 WL 2674194, at *8. The Complaint contains no

well-pleaded allegations to support the conclusion of

conspiracy, or an agreement to violate a federal right,

or invidious discrimination. “A conspiracy is an

agreement between two or more individuals where

one acts in further of the objection of the conspiracy

and each member has knowledge of the nature and

scope of

69a

the agreement.” Morpurgo v. Incorporated Village of

Sag Harbor, 697 F. Supp. 2d 309, 339 (E.D.N.Y. 2010),

aff’d, 417 F. App’x 96 (2d Cir. 2011) (summary order).

“In order to maintain an action under Section 1985, a

plaintiff ‘must provide some factual basis supporting

a meeting of the minds, such that defendants entered

into an agreement, express or tacit, to achieve the

unlawful end.’” Webb v. Goord, 340 F.3d 105, 110-11

(2d Cir. 2003), cert, denied, 54 U.S. 1110 (2004)

(quoting Romer v. Morgenthau, 119 F. Supp. 2d 346,

363 (S.D.N.Y. 2000)); see Ziglar v. Abbasi, 582 U.S.

120, 154 (2017) (“To state a claim under § 1985(3), a

plaintiff must first show that the defendants

conspired—that is, reached an agreement—with one

another”). A plaintiff must allege “specific facts

relating to the purported conspiracies.” K.D. ex rel.

Duncan v. White Plains Sch. Dist., 921 F. Supp. 2d

197, 308 (S.D.N.Y. 2013). “It is well settled that

claims of conspiracy ‘containing only conclusory,

vague, or general allegations of conspiracy to deprive

a person of constitutional rights cannot withstand a

motion to dismiss.’” Gallop v. Cheney, 642 F.3d 364,

369 (2d Cir. 2011) (quoting Leon v. Murphy, 988 F.2d

303, 311 (2d Cir. 1993)); see San Filippo v. U.S. Tr. Co.

of N.Y., Inc., 737 F.2d 246, 256 (2d Cir. 1984), cert,

denied, 470 U.S. 1035 (1985) (“[C]onclusory

allegations of conspiracy are insufficient to survive . .

. a 12(b)(6) motion for dismissal.”); see also Taranto v.

Putnam County, 2023 WL 6318280, at *12 (S.D.N.Y.

Sept. 28, 2023) (dismissing complaint for failure to

sufficiently plead conspiracy); Gropper v. Fine Arts

Hous., Inc., 12 F. Supp. 3d 664, 671-72 (S.D.N.Y.

2014) (same); Brooks v. County of Nassau, 54 F. Supp.

3d 254, 259 (E.D.N.Y. 2014) (same); Roffman v. City

70a

of New York, 2002 WL 31760245, at *5-6 (S.D.N.Y.

Dec. 10, 2002) (same); ArroyoHorne v. City of New

York, 2019 WL 3428577, at *5 (E.D.N.Y. July 30,

2019), aff’d, 831 F. App’x 536 (2d Cir. 2020) (summary

order) (dismissing 1985 conspiracy claim where the

complaint did “not provide any allegations or include

any facts from which the Court could conclude that

any individual(s) conspired to deprive Plaintiff of

equal protection of the laws or equal privileges and

immunities under the laws”); Friends of Falun Gong

v. Pac. Cultural Enter., Inc., 288 F. Supp. 2d 273, 279

(E.D.N.Y. 2003), aff’d sub nom., Friends of Gong v.

Pac. Culture, 109 F. App’x 442 (2d Cir. 2004)

(summary order) (finding that the plaintiff failed to

adequately plead a 1985(3) claim because “the

complaint [did] not include any facts that could

support an inference of a conspiracy among the

various defendants” and because the plaintiff “cite[d]

no facts from which a meeting of the minds could be

inferred”).

Plaintiff alleges that “the Airline Defendants

conspired—with each other, other carriers, and within

their own companies—to ban disabled flyers because

of a discriminatory motive.” Compl. 961. He further

alleges that “[t]he airline defendants that

discriminated against Plaintiff, the federal agencies

and lawyers, that encouraged, instigated, and/or

aided and abetted and the others were all conspiring

with others to deprive this Plaintiff of his civil rights,

in violation of his section.” Id. If 966. But as these

assertions lack any factual foundation, they are

merely conclusory allegations “masquerading as

factual conclusions.” Kirch v. Liberty Media Corp.,

71a

449 F.3d 388, 398 (2d Cir. 2006) (quoting Smith v. Loc.

819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir.

2002)); see also O’Handley v. Padilla, 579 F. Supp. 3d

1163,1184 (N.D. Cal. 2022), aff’d sub nom., O’Handley

v. Weber, 62 F.4th 1145 (9th Cir. 2023) (finding that

“generalized statements about [a private entity and

the government] working together ... do not support

an inference of an illegal conspiracy”). “Although

Plaintiff makes some allegations of relationships

between the alleged co-conspirators, [he] has done so

by way of freewheeling and speculative allegations

which fail to raise a reasonable inference of a

conspiracy.” Morpurgo, 697 F. Supp. 2d at 340. There

are forty-six Airline Defendants, domestic and

foreign, covering virtually every flight route in the

world. It is implausible that each of them conspired

with the other.

There are “no specific factual

allegations respecting a meeting of the minds, specific

communications between the [alleged conspirators],

or even concerted activities or coordinated efforts

between them.” Johnson v. City of New York, 669 F.

Supp. 2d 444, 451 (S.D.N.Y. 2009).

Construing the complaint liberally, as the Court must

do for a pro se litigant, the most that Plaintiff is able

to plead is that all, or virtually all, of the Airline

Defendants applied their Mask Mandate policies to

him at approximately the same time.

But the

Supreme Court has instructed that parallel conduct

alone, “without some further factual enhancement,” is

insufficient to establish a meeting of the minds or to

state a claim for conspiracy. Twombly, 550 U.S. at

556; Seklecki, 635 F. Supp. 3d at 23; Adreadakis, 2022

WL 2674194, at *9. “[L]awful parallel conduct fails to

72a

bespeak unlawful agreement.” Twombly, 550 U.S. at

556. And here, it would have been “natural” and

“rational” for each of the airlines, acting alone, to

adopt the policies each of them adopted. Id. at 566.

The President of the United States had issued an

Executive Order advising that masking while

traveling could mitigate the spread of COVID-19, Dkt.

No. 3-6 § 1, and the CDC had adopted the Mask

Mandate, applicable to each of the airlines—foreign

and domestic—requiring them to use their “best

efforts to ensure” that any person on their flights wear

a mask when boarding, disembarking, and for the

duration of travel. Compl.

99; CDC Order at 9.

Although the Mask Mandate exempted individuals

with disabilities, CDC Order at 5, it also permitted

airlines to take other measures to ensure passenger

safety, including requiring the person requesting an

exemption to obtain a negative COVID-19 test, to

obtain medical documentation by a licensed medical

provider, and to request an accommodation in

advance, CDC Order at 4 n.8. In those circumstances,

it would be surprising if any individual airline did not

impose the requirements that the Airline Defendants

imposed on any person requesting an exemption.

There also is nothing suspicious, or supportive of

conspiracy, in that many of the Airline Defendants

responded to Plaintiff approximately around the same

date.

From the Complaint and the documents

appended thereto, it appears that Plaintiff sent

requests for mask exemptions to most of the Airline

Defendants on or around September 1, 2021. The

timing of the responses he received were a function of

the timing of his requests, and not a function of any

pre-existing agreement among the Defendants, or a

73a

reflection of the time each airline formulated its

specific policy. Indeed, the Complaint’s allegations

strongly suggest independent action.

Although

certain of the airlines followed the same policies,

many did not. Compare Delta Mask Exemption

Policy, Compl. TH 335-337 (requiring same-day

clearance determined at the airport); with Spirit Mask

Exemption Policy, id.

595-602 (requiring

fortyeight-hour notice before flight of intent to request

mask exemption before arriving at airport for

screening). The Complaint therefore does not allege a

conspiracy.31

Next, even if Plaintiff sufficiently pleaded the

existence of a conspiracy, he has failed to allege that

the conspiracy was “motivated by some . . . invidious

discriminatory motive.” Cine SK8, Inc. v. Town of

Henrietta, 507 F.3d 778, 791 (2d Cir. 2007) (quoting

Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999)).

Plaintiff states that “[t]here is no doubt that

conspiring to prevent all disabled passengers from

flying who medically can’t safely wear a mask,

constitutes an invidious discrimination against a

protected minority.” Compl. 970. “Discriminatory

31 The only allegation of concerted action made by Plaintiff

is that in March 2022, certain of the airlines agreed

amongst themselves, through an organization named

Airlines for America, to urge the federal government to

drop the Mask Mandate. See generally Airlines Letter.

But that some of the airlines agreed amongst themselves

that the Mask Mandate should be relaxed— which would

serve their economic interests—hardly suggests that all of

the airlines agreed to discriminate against persons with

disabilities a year earlier.

74a

purpose . . . implies more than intent as volition or

intent as awareness of consequences. It implies that

the decisionmaker . . . selected or reaffirmed a

particular course of action at least in part ‘because of

not merely ‘in spite of,’ its adverse effects upon an

identifiable group.” Bray, 506 U.S. at 271-72. But

Plaintiff offers no “proof that the defendants’ impetus”

in creating and enforcing mask exemption policies

was motivated by animus against the disabled. See

LeBlanc Sternberg v. Fletcher, 67 F.3d 412, 427 (2d

Cir. 1995). To the contrary, the natural inference

from the facts that Plaintiff alleges are that each

airline adopted its policies as a reasoned response to

government regulations during a deadly global

pandemic. The airlines were not motivated by animus

to those who for medical reasons could not wear a

mask. They adopted the policies for medical reasons,

notwithstanding that the policies might have some

incidental effect on those who, for medical reasons,

might have challenges in wearing a mask.

Finally, Plaintiff fails to allege that the conspiracy

violated a federal right.

Plaintiff alleges that

Defendants’ actions deprived Plaintiff of his

constitutional right to interstate travel. “Because

‘Section 1985(3) provides no substantive rights itself,’

a deprivation of a constitutional right is a required

object of a conspiracy under 1985(3).” Ochoa v.

Bratton, 2017 WL 5900552, at *9 (S.D.N.Y. Nov. 28,

2017) (quoting Novotny, 442 U.S. at 372). To implicate

the right to interstate travel, a § 1985(3) conspiracy

must have as its “predominant purpose ... to impede

or prevent the exercise of the right of interstate travel,

or to oppress a person because of his exercise of that

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right.” Bray, 506 U.S. at 275 (quoting Guest, 383 U.S.

at 760). In this case, the right to travel was affected

only incidentally. “A conspiracy is not ‘for the

purpose’ of denying equal protection simply because it

has an effect upon a protected right.” Id. Rather,

“[t]he right must be aimed at; its impairment must be

a conscious objective of the enterprise.” Id. (internal

alterations, citations, and quotation marks omitted).

Here, although Plaintiff claims that the goal of the

conspiracy was to prevent individuals with

disabilities from flying, Plaintiff alleges no facts to

support that conclusion, even on the most generous

reading of the Complaint. The policies were enacted

in the midst of a global pandemic where masks—

whether or not Plaintiff believes in their efficacy—

were thought to reduce the spread of the virus. The

fact that the pandemic was the predominant purpose

behind Defendants’ masking policies is reflected by

the date they were put in place—during the pandemic

and in the aftermath of the President’s Executive

Order. And, as health conditions improved years

later, as Plaintiff repeatedly reminds the Court, the

executives of several airlines signed onto a letter

stating that the Mask Mandate was no longer needed.

The facts that Plaintiff alleges thus undercut the

inference he would have the Court draw. The policies

were not adopted because they would impede travel

but notwithstanding that they would impact travel.

III. 42 U.S.C. § 1986 Claim

Plaintiff next alleges that Moving Defendants, among

others, violated 42 U.S.C. § 1986 because they “were

aware of the conspiracy to interfere with the civil

76a

rights of the disabled by banning Plaintiff and

similarly disabled from flights, or requiring unlawful

and discriminatory demands, but did nothing to stop

it.” Compl. 988. Plaintiff alleges “[i]f each airline

defendant would have conveyed to each other that this

is illegal, immoral, and wrong, then the conspiracy

would have ended.” Id. 1001.

Section 1986 of Title 42 provides:

Every person who, having knowledge that any of

the wrongs conspired to be done, and mentioned in

section 1985 of this title, are about to be

committed, and having power to prevent or aid in

preventing the commission of the same, neglects

or refuses so to do, if such wrongful act be

committed, shall be liable to the party injured, or

his legal representatives, for all damages caused

by such wrongful act, which such person by

reasonable diligence could have prevented; and

such damages may be recovered in an action on

the case; and any number of persons guilty of such

wrongful neglect or refusal may be joined as

defendants in the action. 42 U.S.C. § 1986.

In short, it “provides a cause of action against anyone

who having knowledge that any of the wrongs

conspired to be done and mentioned in section 1985

are about to be committed and having power to

prevent or aid, neglects to do so.” Mian, 7 F.3d at 1088

(internal quotation marks omitted).

Moving Defendants argue that Plaintiffs Section 1986

claim should be dismissed because: (1) he fails to

allege a viable claim under Section 1985; and (2) the

claim is time-barred because it was filed more than

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one year after the challenged conduct. Dkt. No. 122

at 12-13; Dkt. No. 199 at 3-4.

Section 1986 provides “a remedy against individuals

who share responsibility for conspiratorial wrongs

under § 1985 by failing to make reasonable use of their

power to prevent the perpetration of such wrongs.”

Adickes v. S.H. Kress & Co., 398 U.S. 144, 222 n.28

(1970) (Brennan, J., concurring). “A § 1986 claim

must be predicated upon a valid § 1985 claim.” Mian,

1 F.3d at 1088; see Thomas, 165 F.3d at 147

(dismissing 1986 claim where 1985 claim failed

because 1986 claims are “predicated upon a valid §

1983 claim”); Brown v. City of Oneonta, N.Y., Police

Dep’t, 106 F.3d 1125, 1133 (2d Cir. 1997), abrogated

on other grounds by Gonzaga Univ., 536 U.S. 273

(same); Schlosser v. Droughn, 2021 WL 4263374, at *7

(D. Conn. Sept. 20, 2021). Because Plaintiff has failed

to allege a valid Section 1985 claim, Plaintiff also has

failed to allege a claim under Section 1986.

Independent of the failure as a matter of law,

Plaintiffs Section 1986 claim also fails because it is

time-barred. An action under Section 1986 must be

“commenced within one year after the cause of action

has accrued.” 42 U.S.C. § 1986; see Paige v. Police

Dep’t of City of Schenectady, 264 F.3d 197, 199 n.2 (2d

Cir. 2001); Farmer v. County of Westchester, 2022 WL

3902729, at *4 (S.D.N.Y. Aug. 30, 2022), appeal

dismissed, 2023 WL 2563753 (2d Cir. Mar. 16, 2023).

“Under federal law, the claim accrues when the

plaintiff knows or has reason to know of the harm or

injury that is the basis of his action.” Farmer, 2022

WL 3902729, at *4; see Rozz v. Town of Hempstead,

2023 WL 2731691, at *4 (E.D.N.Y. Mar. 31, 2023);

78a

Rich v. New York, 2022 WL 992885, at *9 (S.D.N.Y.

Mar. 31, 2022); Young v. Lord & Taylor, LLC, 937 F.

Supp. 2d 346, 354 (E.D.N.Y. 2013). Plaintiffs claims

against the Airline Defendants all accrued no later

than April 18, 2022, the date that the United States

District Court for the Middle District of Florida

vacated the Mask Mandate. See Health Freedom Def.

Fund, Inc., 599 F. Supp. 3d 1144; Compl. | 104. But,

the Complaint was filed more than one year later, on

May 1, 2023. See generally Compl. Plaintiffs Section

1986 claims are therefore untimely.

A. Constitutional Claims as to Defendant

Lawyers

Domestic Defendants correctly argue that the claims

against Land and Goldberg under Sections 1985(3)

and 1986 should be dismissed for the additional and

independent reason that those statutes may not be

used to sue an airline attorney for his or her work in

providing legal services to an airline client. Dkt. No.

122 at 14—15; Dkt. No. 199 at 4—5.

Construing Plaintiffs allegations broadly “to raise the

strongest arguments that they suggest,” Cruz, 202

F.3d at 597 (quoting Graham v. Henderson, 89 F.3d

75, 79 (2d Cir. 1996)), the Complaint could be read to

allege 1985(2) claims against Land and Goldberg. Cf.

Levy v. City of New York, 726 F. Supp. 1446, 1453

(S.D.N.Y. 1989). The first clause of that statute

makes it unlawful for “two or more persons ... to

deter, by force, intimidation, or threat, any party or

witness in any court of the United States from

attending such court, or from testifying to any matter

pending therein.” 42 U.S.C. § 1985(2).

79a

“The gist of the wrong at which § 1985(2) is directed is

. . . intimidation or retaliation against witnesses in

federal-court proceedings.” Haddle v. Garrison, 525

U.S. 121, 125 (1998). Congress did not “impose a

requirement of class-based animus on persons seeking

to prove a violation of their rights under the first

clause of § 1985(2).” Kush v. Rutledge, 460 U.S. 719,

726 (1983). The Second Circuit appears never to have

addressed the question whether the first clause of

Section 1985(2) applies to “a conspiracy to deter a

party from filing a suit in federal court.” Keating, 706

F.2d at 386 n.13.32 However, the weight of authority

holds that only witnesses and parties to a pending

matter in federal court can bring suit under Section

1985(2). See Bell v. N.Y. State Dep’t of Corr. & Cmty.

Supervision, 2019 WL 1305809, at *11 (N.D.N.Y. Mar.

22, 2019); Ruggiero v. City of Cortland, 2018 WL

5983505, at *9 n.6 (N.D.N.Y. Nov. 14, 2018); Empire

Merchs., LLC v. Reliable Churchill LLP, 2017 WL

7512900, at *10-12 (E.D.N.Y. Jan. 30, 2017)

(collecting cases). While the Complaint on its face

does not make reference to the language used by

Goldberg in responding to Plaintiffs grievances,

correspondence between Plaintiff and Goldberg

appended to the Complaint indicates that after

32 After Keating, the Second Circuit held that “[t]he

essential allegations of a § 1985(2) claim of witness

intimidation are (1) a conspiracy between two or more

persons, (2) to deter a witness by force, intimidation, or

threat from attending court or testifying freely in any

pending matter, which (3) results in injury to the plaintiff.”

Chahal v. Paine Webber Inc., 725 F.2d 20, 23 (2d Cir. 1984)

(emphasis added).

80a

Goldberg, outside counsel for American, Compl. 49,

refuted Plaintiffs accusation that his client had

violated the law, he stated that Plaintiff did “not have

the right to threaten and pursue baseless claims,” and

“advised that there will be a significant financial cost

for doing so,” based on a fee-shifting provision and

Federal Rule of Civil Procedure 11, Dkt. No. 3-20 at 1.

Plaintiff alleges that Land, an executive and associate

general counsel of JetBlue, conspired with JetBlue “to

violate Plaintiff s civil rights, and did not intervene to

prevent these discriminations, even though he did

have the power to do that.” Compl. 764.

The most that Plaintiffs allegations support is that

each of Goldberg and Land conspired with the

corporation by which they were employed and on

behalf of which they acted as agent. As Plaintiff has

been made aware by the Third Circuit in a decision

rejecting his 1985 claims against a private company’s

mask policy, see Abadi v. Target Corp., 2023 WL

4045373, at *1 (3d Cir. June 16, 2023) (per curiam),

cert, denied, 144 S. Ct. 235 (2023), under the

intracorporate conspiracy doctrine, “the officers,

employees, and agents of the same corporate entity

acting within their scope of employment,” including

outside counsel, “along with the corporate entity itself,

are considered a single entity and are legally

incapable of conspiring with each other,” Savarese v.

City of New York, 547 F. Supp. 3d 305, 343-44

(S.D.N.Y. 2021) (quoting Biswas v. City of New York,

973 F. Supp. 2d 504, 534 (S.D.N.Y. 2013)); see also

Hartline v. Gallo, 546 F.3d 95, 99 n.3 (2d Cir. 2008),

abrogation on other grounds recognized by Murphy v.

Hughson, 82 F.4th 177 (2d Cir. 2023). That doctrine

81a

applies to cases under Section 1985.

See, e.g.,

Herrmann v. Moore, 576 F.2d 453 (2d Cir. 1978); see

also Chance v. Cook, 50 F.4th 48, 52 (11th Cir. 2022);

Heffernan v. Hunter, 189 F.3d 405, 413-14 (3d Cir.

1999); Frierson-Harris v. Hough, 2006 WL 298658, at

*5 (S.D.N.Y. Feb. 7, 2006), aff’d, 328 F. App’x 753 (2d

Cir. 2009) (summary order). There is an exception to

the intracorporate conspiracy doctrine where

individuals within a single entity could be found liable

if they were pursuing personal interests wholly

separate and apart from the entity. See, e.g., Girard

v. 94th St. & Fifth Ave. Corp., 530 F.2d 66, 71—72 (2d

Cir.), cert, denied, 425 U.S. 974 (1976). But that

exception does not apply here. By communicating

their respective employer’s policies to Plaintiff,

Goldberg, as American’s counsel, and Land, as a

JetBlue executive and general counsel, were acting

within the scope of their responsibilities in their

correspondence with Plaintiff, rather than pursuing

any independent goal of discrimination, and thus

Plaintiffs claims fail. See, e.g., Farese v. Scherer, 342

F.3d 1223, 1231 (11th Cir. 2003); Johnson v. Nyack

Hosp., 954 F. Supp. 717, 723 (S.D.N.Y. 1997).

IV. Air Carrier Access Act

In Counts Ten through Eighteen, Plaintiff recites

causes of action under the ACAA and its

implementing regulations. The ACAA prohibits both

domestic and foreign air carriers from discriminating

against individuals with disabilities. 49 U.S.C. §

41705(a)(1). Count Ten alleges that all Defendants

violated the general nondiscrimination requirements

of the ACAA, as clarified by 14 C.F.R. § 382.11, by

82a

discriminating against him due to his disability in

their provision of air transportation. Compl.

10031057. In Count Eleven, id.

1058-1065, Plaintiff

alleges that the Airline Defendants violated the

regulation under the ACAA that requires air carriers

to have and update their policies to ensure

nondiscrimination, 14 C.F.R. § 382.13, by not

modifying their mask policies “to properly

accommodate Plaintiff and his disability,” Compl.

1062. Count Twelve, Compl.

1066-1073, alleges

that Airline Defendants violated the ACAA, and

specifically 14 C.F.R. § 382.15, “by not making sure

that their contractors were aware of the requirements

to properly accommodate Plaintiff and his disability,”

Compl.

1070. Count Thirteen, Compl.

10741082, alleges that “many of the Airline Defendants,”

and specifically JetBlue, violated the ACAA and 14

C.F.R. § 382.17 by limiting the number of persons who

were disabled on each flight, Compl. U 1078. Count

Fourteen, id.

1083-1092, alleges that the Airline

Defendants violated the ACAA and 14 C.F.R. § 382.19

by refusing to provide transportation on the basis of

his disability, Compl.

1087, and “[a]ll other

defendants assisted, aided and abetted, and

facilitated those violations,” id. U 1090.

Count

Fifteen, id.

1093-1100, alleges that the Airline

Defendants violated the ACAA and 14 C.F.R. § 382.21

by limiting access to transportation on the grounds of

his disability or on the grounds that he may have a

communicable disease, and the other defendants

assisted or facilitated these violations, Compl.

1097-1098. Count Sixteen, id.

1101-1108, alleges

that certain of the Airline Defendants violated the

ACAA and 14 C.F.R. § 382.23 by requiring him to

83a

produce a medical certificate, and some of the other

defendants “assisted, aided and abetted, and

facilitated” the discrimination, Compl.

1105-1106.

Count Seventeen, id.

1109-1116, alleges that the

Airline Defendants violated the ACAA and 14 C.F.R.

§ 382.25 by requiring him, as a disabled person, to

provide advance notice that he was traveling on a

flight, and that the remaining defendants assisted or

facilitated those violations, Compl.

1113-1114.

Count Eighteen, id.

1117-1124, alleges that the

Airline Defendants violated the ACAA and 14 C.F.R.

382.33 by imposing restrictions on him as a disabled

person that were not imposed on other passengers and

that all other defendants assisted or facilitated those

violations, Compl.

1121-1122.

Both Domestic and Foreign Defendants respond that

each of these claims fail because the ACAA does not,

expressly or impliedly, confer a private right of action

permitting enforcement by aggrieved individuals.

Dkt. No. 122 at 16-17; Dkt. No. 180 at 17-18.

The ACAA was passed by Congress in direct response

to the Supreme Court’s decision in U.S. Department of

Transportation v. Paralyzed Veterans of America, 477

U.S. 597, 605 (1986), which held that commercial

airlines were not subject to the nondiscrimination

provisions of the Rehabilitation Act by virtue of their

receipt of federal financial assistance. See S. Rep. No.

99-400 (1986), as reprinted in 1986 U.S.C.C.A.N.

2398, 2329.

Subsection 41705(a) of the ACAA

provides that an air carrier “[m]ay not discriminate

against an otherwise qualified individual on the

following grounds: (1) the individual has a physical or

mental impairment that substantially limits one or

84a

more major life activities; (2) the individual has a

record of such an impairment; (3) the individual is

regarded as having such an impairment.” 49 U.S.C. §

41705(a). A separate violation occurs “for each

individual act of discrimination prohibited by

subsection (a).”

Id. § 41705(b).

An aggrieved

passenger may file a written complaint alleging a

violation of federal statutes regulating air travel, see

id. §§ 40101—46507, including the ACAA, id. §

46101(a)(1). Under subsection 41705(c) of the ACAA,

the Secretary of Transportation is required to

investigate each complaint of discrimination made to

it under the ACAA, publish disability-related

complaint data in a manner comparable to other

consumer complaint data, and regularly review all

complaints received by air carriers alleging disability

discrimination, and report annually to Congress on

the results of such review. Id. § 41705(c)(1), (2), (3).

The ACAA also provides a limited right of access to

the federal courts by permitting an individual with a

“substantial interest” in an administrative decision of

the DOT to file a petition for review in a federal

appellate court, but provides that, in that proceeding,

DOT’s factual findings, “if supported by substantial

evidence, are conclusive.” Id. § 46110(a), (c).

In the first fifteen years after the ACAA’s enactment,

courts held that the law implied a private right of

action for injured passengers to seek damages against

the commercial airlines that discriminated against

them. See, e.g., Shinault v. Am. Airlines, Inc., 936

F.2d 796 (5th Cir. 1991), abrogation recognized by

Stokes v. Sw. Airlines, 887 F.3d 199 (5th Cir. 2018);

Tallarico v. Trans World Airlines, Inc., 881 F.2d 566,

85a

568-69 (8th Cir. 1989). But following the Supreme

Court’s 2001 decision in Alexander v. Sandoval, 532

U.S. 275 (2001), which held that a private right of

action could be found in a statute only when “the text

and structure” of the law required it, id. at 288, courts

shifted course. As the Second Circuit explained in

Lopez v. Jet Blue Airways, 662 F.3d 593 (2d Cir. 2011),

Sandoval required that “a review of the text and

structure of a statute yield a clear manifestation of

congressional intent to create a private cause of

action.” Id. at 596. After undertaking the analysis

required by Sandoval, the Second Circuit held that

that the ACAA did not create an implied private right

of action for passengers injured by the discriminatory

acts of a commercial airline. Id. at 597-98; see also

Boswell v. Skywest Airlines, Inc., 361 F.3d 1263,

1269—71 (10th Cir. 2004) (same); Love v. Delta

Airlines, Inc., 310 F.3d 1347, 1354-60 (11th Cir. 2002)

(same); Ruta v. Delta Airlines, Inc., 322 F. Supp. 2d

391 (S.D.N.Y. 2004) (same). The Second Circuit

determined that “although the ACAA is intended to

protect the passengers of air carriers against

discrimination on the basis of disability, the text and

structure of the statute show that Congress chose to

accomplish this goal through means other than

private enforcement actions in the district courts.”

Lopez, 662 F.3d at 598. The court concluded that

“[t]he statute does not expressly provide a right to sue

the air carrier, and that right should not be implied

because the statute provides an administrative

enforcement scheme designed to vindicate fully the

rights of disabled passengers.” Id.

86a

Plaintiff acknowledges that the Second Circuit has

held that there is no private right of action under the

ACAA. Compl. H 1012, 1016-1017, 1023, 1035. But

he argues that the Court should not follow Lopez and

should imply a private cause of action because “DOT

is not enforcing the ACAA, but rather ignoring

everything,” and in fact is itself “participating directly

in the violations of the laws.” Id. 1027; see also id.

H 1044 (“Considering these facts, being that there is

no real DOT enforcement, and certainly not robust nor

comprehensive nor elaborate, but Congress certainly

wanted them to be enforced. That means that the

Courts all need to acknowledge and correct their

mistakes. The Courts need to allow for a private right

of action, as is certainly the will of Congress when it

wrote these laws.”). Plaintiff asserts “in this case

where the Department of Transportation (‘DOT’)

completely refuses to act, and on the contrary, they

encourage the airlines to violate the laws, . . . there

must therefore be an implied private right of action.”

Id.

1009; see also Dkt. No. 172 at 12 (“The Circuit

Court cannot say that they cannot require the DOT to

enforce the law and simultaneously say that there is

a robust enforcement scheme”). However, the Second

Circuit has held that the ACAA’s administrative

enforcement scheme is “designed to vindicate fully the

rights of disabled passengers” and contains “no

implied private right of action.” Lopez, 662 F.3d at

597, 600. Contrary to Plaintiffs contentions, Dkt. No.

172 at 11—12, Dkt. No. 194 at 28-29, this Court is

bound by Second Circuit precedent “unless and until

it is overruled ... by the Second Circuit itself or unless

a subsequent decision of the Supreme Court so

undermines it that it will almost inevitably be

87a

overruled by the Second Circuit,” Grytsyk v. Morales,

527 F. Supp. 3d 639, 653 (S.D.N.Y. 2021) (quoting

United States v. Diaz, 122 F. Supp. 3d 165, 179

(S.D.N.Y. 2015), aff’d, 854 F.3d 197 (2d Cir. 2017));

Jones v. Coughlin, 45 F.3d 677, 679 (2d Cir. 1995) (per

curiam) (“A decision of a panel of [the Second Circuit]

is binding unless and until it is overruled by the

[Circuit sitting] en banc or by the Supreme Court.”);

see also In re Arab Bank, PLC Alien Tort Stat. Litig.,

808 F.3d 144,154 (2d Cir. 2015), aff’d sub nom., Jesner

v. Arab Bank, PLC, 584 U.S. 241 (2018); Cartica

Mgmt., LLC v. Corpbanca, S.A., 50 F. Supp. 3d 477,

486 (S.D.N.Y. 2014) (“[District courts and other

inferior courts are bound by decisions of the Court of

Appeals in the appropriate circuit unless overruled by

an intervening Supreme Court decision or other

change in law.” (quoting United States v. Moreno,

2000 WL 1843232, at *5 (S.D.N.Y. Dec. 14, 2000)

(Sotomayor, J.))).

Plaintiffs discontent with the DOT’s enforcement

decisions following his complaints to the agency does

not mean that this Court must or can create an

alternative remedy for him any more than it did for

the plaintiff in Lopez, who also did not prevail at the

administrative stage. See 662 F.3d at 595; see also

Marcus v. Ctrs. for Disease Control & Prevention, 2023

WL 3044614, at *9 (C.D. Cal. Feb. 21, 2023) (declining

the plaintiffs’ request to imply a private right of action

from a federal statute on the grounds that “the Court

is not at liberty to rewrite statutes or create rights of

action where none exist”). Plaintiff asserts that he

pursued administrative claims against airlines under

the ACAA and that he “won against many airlines at

88a

the DOT disability complaint division.” Dkt. No. 172

at 7; see also Compl.

182 (DOT found American

violated the law); 1028 (discussing DOT complaints

against JetBlue and American Airlines). To the

extent Plaintiff had a complaint with DOT’s

administration of the ACAA, his remedy lay with a

petition to review to the United States Court of

Appeals pursuant to 49 U.S.C. § 46110(a), and not

with an independent action under the ACAA in this

Court. Plaintiff in fact recognized this, explaining

that he sought review of DOT’s enforcement decisions

in two circuit courts.

Compl.

1029, 1033.

Plaintiffs petition to the United States Court of

Appeals for the District of Columbia Circuit was

dismissed for lack of jurisdiction on the grounds that

Plaintiff had not identified any legally required act

that DOT was required to take as required by the

Administrative Procedure Act. In re Abadi, 2022 WL

2541249, at *1 (D.C. Cir. Apr. 14, 2022) (per curiam),

cert, denied sub nom. Abadi v. Dep’t of Transp., 143 S.

Ct. 220 (2022). The Second Circuit also denied relief

to Plaintiff. Abadi v. Dep’t of Transp., 2021 WL

7500325, at *1 (2d Cir. Dec. 29, 2021), cert, denied, 142

S. Ct. 1694 (2022). 33 “Like the administrative-

33 Contrary to Plaintiffs contention, the circuit courts did

not hold that they could not “require the DOT to enforce

the ACAA laws,” Compl. 1036, they stated that the ACAA

does not require DOT to enforce the law in the way that

Plaintiff has decided is proper. See, e.g., In re Abadi, 2022

WL 2541249, at *1 (“A claim under the Administrative

Procedure Act for [an agency’s] failure to act ‘can proceed

only where a plaintiff asserts that an agency failed to take

89a

enforcement scheme, this limited right of [judicial]

review of an administrative decision suggests that

Congress did not intend to otherwise allow access to

federal courts under the statute.” Lopez, 662 F.2d at

597-98. Accordingly, all of Plaintiffs claims arising

out of the ACAA fail as a matter of law.

V. Rehabilitation Act

In Count Nineteen, Plaintiff alleges that the Airline

Defendants based in the United States violated

Section 504 of the Rehabilitation Act of 1973, 29

U.S.C. § 701 et seq., by discriminating against him on

the basis of his disability, and that some of the other

Defendants, including the U.S. airlines’ employees

and counsel, facilitated this discrimination. Compl.

H 1125-1150.

As a threshold matter, because “the Rehabilitation

Act does not provide for individual liability,” Goe v.

Zucker, 43 F.4th 19, 35 (2d Cir. 2022), Plaintiffs

Rehabilitation Act claims against any individuals fail

as a matter of law. Plaintiffs claims against the

Airline Defendants require further analysis.

The

Rehabilitation Act

of

1973

prohibits

discrimination against handicapped or disabled

persons in any program or activity receiving Federal

financial assistance. Section 504 of the Rehabilitation

Act provides in pertinent part:

No otherwise qualified individual with a disability

in the United States, as defined in section 705(2)

of this Title, shall, solely by reason of her or his

a discrete agency action that it is required to take.” (quoting

Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004))).

90a

disability, be excluded from the participation in,

be denied the benefits of, or be subjected to

discrimination under any program or activity

receiving Federal financial assistance. 29 U.S.C. §

794(a).

“To establish a prima facie case under the

Rehabilitation Act, a plaintiff must allege: [1] that he

or she is a person with disabilities under the

Rehabilitation Act, [2] who has been denied benefits

of or excluded from participating in a federally funded

program or [activity], [3] solely because of his or her

disability.” Bryant v. N.Y. State Educ. Dep’t, 692 F.3d

202, 216 (2d Cir. 2012), cert, denied, 569 U.S. 958

(2013); see Hogan u. Mahabir, 2023 WL 3628554, at

*4 (E.D.N.Y. May 24, 2023). There is no dispute that

Plaintiff has a disability as defined by the

Rehabilitation Act. Moving Defendants do, however,

dispute whether the second and third elements are

satisfied.

A. Denial of Benefits or Exclusion from

Participation in a Federally Funded

Program or Activity

Plaintiff alleges that he has sufficiently alleged

discrimination in a program or activity receiving

federal financial assistance because the U.S.-based

Airline Defendants “banned ... all passengers with

disabilities that cause them not to be able to wear a

mask” while receiving “federal contracts and/or

funding,” and accepting “federal financial assistance

during the COVID-19 pandemic,” and thus were

subject to the Rehabilitation Act. Compl. ^T[ 1129,

91a

1133. Plaintiffs claim is premised specifically on the

funding disbursed through the Payroll Support

Program (“PSP”) authorized under the Coronavirus

Aid, Relief, and Economic Security Act (“CARES Act”),

Pub. L. 116-136, 134 Stat. 281 (2020). Compl. 1147.

The U.S.-based airlines do not contest that Plaintiff is

disabled within the meaning of the Act, but dispute

whether, by denying him access to their flights, they

excluded him from a “program or activity receiving

Federal financial assistance” within the meaning of

the Rehabilitation Act, and even if they did, whether

Plaintiff was excluded on the basis of his disability.

See Dkt. No. 122 at 17- 21; Dkt. No. 180 at 18-22.

The question thus is whether carriage on the airlines

became a “program or activity” receiving federal

financial assistance by virtue of the PSP funding. The

phrase “program or activity” is defined by the

Rehabilitation Act to mean, inter alia, all of the

operations of an entire corporation “(i) if assistance is

extended to such corporation ... as a whole; or (ii)

which is principally engaged in the business of

providing education, health care, housing, social

services^ or parks and recreation.” 29 U.S.C. §

794(b)(3)(A).

Plaintiff has not alleged that the COVID-19-related

assistance funded the corporation as a whole within

the meaning of Section 504, nor could he. The airline

recipients were not “engaged in the business of

providing education, health care, housing, social

services, or parks and recreation.” The funding also

was not appropriated to each airline “as a whole.”

Rather, it was designated for the particular purpose

of “the continuation of payment of Wages, Salaries,

92a

and Benefits to the Employees of the Recipient,

including the payment of lost wages, Salaries, and

Benefits to Returning Employees.” OMB 1505-0263

at 5. As other courts have explained, “the phrase ‘as

a whole’ means that federal assistance is extended to

the organization otherwise than for some specific

purpose—put differently, that the recipient of federal

funds received those funds as general assistance.”

Collins v. Giving Back Fund, 2019 WL 3564578, at

*11 (S.D.N.Y. Aug. 6, 2019) (citing S. Rep. No. 100-64,

at 17 (1987), as reprinted in 1988 U.S.C.C.A.N. 3, 19).

The legislative history of Section 504 reveals that

money distributed to an entity “‘as a whole’ refers to

situations where the corporation receives general

assistance that is not designated for a particular

purpose.” S. Rep. No. 100-64 (1987). For example,

federal financial assistance to a company “for the

purpose of preventing the company from going

bankrupt” constitutes “assistance to a corporation ‘as

a whole,”’ whereas aid “which is limited in purpose,”

such as funding for job training, “is not considered aid

to the corporation as a whole, even if it is used at

several facilities and the corporation has the

discretion to determine which of its facilities

participate in the program.” Id. Similarly, aid to

support “one among a number of activities” of an

entity would “not be assistance ... as a whole.” Id.

Here, the program limited the purposes for which

recipients could use payments. The CARES Act was

“aimed at helping businesses make payroll and pay

operating expenses in order to keep people employed

through the economic downturn.” Lucius v. Fort Taco,

LLC, 2022 WL 335491, at *2 (S.D. Fla. Jan. 5, 2022)

(quoting In re Gateway Radiology Consultants, P.A.,

93a

983 F.3d 1239, 1247 (11th Cir. 2020)). The PSP

agreements were a means through which the CARES

Act met that end.

Plaintiff recognizes that many courts have held that

the funds that the Airline Defendants received did not

constitute a subsidy or federal financial assistance

sufficient to bring them generally within the coverage

of the Rehabilitation Act. Compl. 1147. He argues,

however, that those decisions are mistaken because

each U.S.-based Airline Defendant, in connection with

the receipt of CARES Act funds, signed the “Payroll

Support Program 3 Agreement and Extension” with

the government, agreeing that they would comply

with Section 504 of the Rehabilitation Act. Id.

1130, 1147-1150.

The PSP agreements that the U.S.-based Airline

Defendants signed do not give rise to a claim by

Plaintiff under Section 504. The agreements do not

suggest that funding is being extended to each of the

U.S.-based Airline Defendants as whole entities.

Rather, the agreements extend funding for a limited

purpose and, at most, obligate the airlines to comply

with Section 504 in connection with that limited

purpose or program or activity. They do not and

cannot expand the scope of Section 504. See, e.g.,

Ladzinski v. Sperling S.S. & Trading Corp., 300

F.Supp. 947, 954 (S.D.N.Y. 1969) (parties cannot by

agreement expand the scope of law passed by

Congress).

The PSP agreements are made in

connection with the provision of financial assistance

for the payment of employees. To the extent that the

federal government extended funding in connection

with a program or activity, it may follow then that the

94a

airlines are obliged to comply with Section 504 with

respect to that program or activity. It does not follow

that the airlines are required to comply with Section

504 in connection with all of their activities. 34 Cf.

Ruiz v. City of Rockland, 609 F.3d 486, 491 (2d Cir.

2010) (allegations of employment discrimination

under the Rehabilitation Act are treated differently

from other allegations of discrimination).

The Complaint may also be read to suggest that the

Court should recognize a right that Plaintiff has

under the PSP contracts directly, in breach of

contract. But that theory also does not help Plaintiff.

Plaintiff is not a party to the PSP contracts and

therefore has no right to enforce them, even if it could

be said that the U.S.-based Airline Defendants

breached them. See, e.g., England u. United Airlines,

Inc., 627 F. Supp. 3d 963, 968 (N.D. Ill. 2022); see

Suffolk County v. Long Island Lighting Co., 728 F.2d

52, 63 (2d Cir. 1984) (“[A]bsent a contractual

relationship there can be no contractual remedy.”).

Plaintiff does not allege that he is a third-party

beneficiary to the contract, nor could he. See, e.g.,

34 Plaintiff relies heavily on these contracts to make his

Rehabilitation Act claims, and quotes selectively from the

contracts, see Compl.

1149, but does not append the

complete, executed contracts to his Complaint. However,

the Court finds that these public documents are

incorporated by reference into the Complaint because the

Complaint makes “a clear, definite and substantial

reference to the documents.” Helprin v. Harcourt, Inc., 277

F. Supp. 2d 327, 330-31 (S.D.N.Y. 2003); see also Lateral

Recovery, LLC v. Cap. Merch. Servs., LLC, 632 F. Supp. 3d

402, 436 (S.D.N.Y. 2022).

95a

Thomas v. UBS AG, 7QQ F.3d 846, 852 (7th Cir. 2013)

(“[A] government contract that involves no negotiable

terms but merely brings the other party to the

contract under a statute (or, we can assume, a

regulation) does not confer thirdparty beneficiary

status on anyone.”); see also Caires v. JP Morgan

Chase Bank, N.A., 880 F. Supp. 2d 288, 302 (D. Conn.

2012) ([C]ourts have rejected the contention that a

member of the public can be considered a third party

beneficiary of a government contract on the sole basis

that [the] contract was intended to benefit the public

absent clear intent indicating the public’s right to

enforce the contract as a third party beneficiary.”). At

the very most, Plaintiff is an incidental, rather than

an intended third-party beneficiary. Grand Manor

Health Related Facility, Inc. v. Hamilton Equities Inc.,

941 F. Supp. 2d 406, 418 (S.D.N.Y. 2013). But under

federal common law, which governs a court’s

interpretation of federal government contracts,

Hillside Metro Assocs., LLC v. JPMorgan Chase Bank,

Nat. Assn, 747 F.3d 44, 49 (2d Cir. 2014), “a third

party must be an intended, rather than incidental,

beneficiary in order to enforce a contract,” Kinek v.

Gulf& W., Inc., 720 F. Supp. 275, 280 (S.D.N.Y. 1989),

aff’d sub nom., Kinek v. Paramount Commc’ns, Inc.,

22 F.3d 503 (2d Cir. 1994).35 In general, “the contract

35 Federal common law directs courts, in interpreting

federal government contracts, to look to “general principles

of contract law,” Dobson v. Hartford Fin. Servs. Grp., Inc.,

389 F.3d 386, 399 (2d Cir. 2004), and, with respect to

whether a third-party beneficiary may sue to enforce a

contract, “look[] to the same considerations as does the

Restatement of Contracts,” Grand Manor Health Related

96a

terms [must] ‘clearly evidence an intent to permit

enforcement by the third party in question.’” Hillside

Metro, 747 F.3d at 49 (quoting Premium Mortg. Corp,

v. Equifax, 583 F.3d 103, 108 (2d Cir. 2009)); see also

McNeill v. N.Y.C. Hous. Auth., 719 F. Supp. 233, 24849 (S.D.N.Y. 1989) (Walker, J.) (“Under . . . federal

common law . . . , a third party may have enforceable

rights under a contract if the contract was made for

her direct benefit.”). Moreover, to the extent that

Circuit precedent directs the Court to follow the

Restatement’s rule as to whether a third-party

beneficiary may sue to enforce a contract, see Hillside

Metro, 747 F.3d at 49, “[t]he Restatement sets forth a

heightened standard for evaluating intended third

party beneficiary status where a government agency

is a party to the contract,” Fero v. Excellus Health

Plan, Inc., 236 F. Supp. 3d 735, 767 (W.D.N.Y. 2017);

see also Granite Partners, L.P. v. Bear, Stearns & Co.

Inc., 58 F. Supp. 2d 228 (S.D.N.Y. 1999). “In the case

of government contracts, ‘individual members of the

public are treated as incidental beneficiaries unless a

different intention is manifested.’” Fero, 236 F. Supp.

3d at 767 (quoting Restatement (Second) of Contracts

§ 313 cmt. a (1981)).

The PSP agreements do not clearly manifest an intent

to benefit or permit enforcement by any private party,

nor does Plaintiff so allege. See, e.g., Abu Dhabi Com.

Bank v. Morgan Stanley & Co., Inc., 651 F. Supp. 2d

155, 185 (S.D.N.Y. 2009) (dismissing claim by alleged

third-party beneficiary where the plaintiffs “failed to

Facility, 941 F. Supp. 2d at 418 (quoting Rivera v. Bank of

Am. Home Loans, 2011 WL 1533474, at *4 (E.D.N.Y. Apr.

21, 2011)).

97a

allege contract language or other facts sufficient to

give rise to a plausible inference that any of these

contracts clearly evidence an intent to permit

enforcement by [the] plaintiffs” (internal quotation

marks omitted)); see also England, 627 F. Supp. 3d at

971-72.

B. Exclusion on the Basis of Disability

Finally, even if Plaintiff did sufficiently allege that the

U.S.-based Airline Defendants received funds that

sufficed to subject them to the Rehabilitation Act, he

has not satisfied the third element necessary to state

a claim: exclusion on the basis of\ds disability. “The

third element is satisfied if a plaintiff plausibly pleads

that defendants failed to ‘mak[e] reasonable

accommodations to the known physical or mental

limitations of an ... individual with a disability.’” Doe

v. U.S. Sec’y of Transp., 2018 WL 6411277, at *7

(S.D.N.Y. Dec. 4, 2018) (alterations in original)

(quoting 42 U.S.C. § 12112(b)(5)(A)). Each airline, as

permitted by federal law, instituted their own mask

exemption policies for individuals who could not safely

wear a mask due to their disabilities. That Plaintiff

himself believes these exemption policies to be

unreasonable does not make them so. The airlines’

decisions to deny Plaintiff air transport was “not

based upon [Plaintiffs] classification” as an individual

with a disability, “but rather upon the type of

modification that he requested.” Flight v. Gloeckler,

68 F.3d 61, 64 (2d Cir. 1995) (per curiam). Merely

failing to accept Plaintiffs three-line Doctor’s Note as

a basis for establishing Plaintiffs disability does not

constitute discrimination, because, “[although a

public

entity

must

make

‘reasonable

98a

accommodations,’ it does not have to provide a

disabled individual with every accommodation he

requests or the accommodation of his choice.”

McElwee v. County of Orange, 700 F.3d 635, 641 (2d

Cir. 2012) (citing Fink u. N.Y.C. Dep’t of

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Petition for Writ of Certiorari — Aaron Abadi, Petitioner v. Anthony Stephen Fauci, et al. | Frix