Federal Judge Issues Conflicting Decision Declaring Federal Transportation Mask Mandate Legal

Judgment Against D.C. Flyer Issued 11 Days after

Another Judge Vacated the Mandate Worldwide

April 29, 2022

By LUCAS WALL

ORLANDO, Florida – Just 11 days after Judge Kathryn Mizelle of Tampa vacated the Centers for Disease Control & Prevention’s Federal Transportation Mask Mandate worldwide, another federal judge in nearby Orlando ruled today that CDC does have the legal authority to force travelers to wear masks and undergo COVID-19 testing before flying to the United States from abroad.

The stunning 29-page judgment issued by U.S. District Judge Paul Byron, also in the Middle District of Florida, totally conflicts with that handed down by Mizelle on April 18 in a case brought by the Health Freedom Defense Fund.

Plaintiff Lucas Wall of Washington, D.C., said he’s dazed by the 180-degree opposite conclusions reached by Byron compared to those by Mizelle, whose opinion Byron did not mention at all except in a footnote. Wall is founder and chairman of Americans Against Mask Mandates, a coalition of more than 650 passengers and airline employees opposed to the FTMM, 41 of whom are prosecuting 14 lawsuits in numerous federal courts attacking the mandate and airlines’ discriminatory policies of refusing mask exemptions to the disabled.

“Let’s all be thankful Judge Mizelle vacated the Federal Transportation Mask Mandate worldwide so that Judge Byron’s decision today has no immediate impact in terms of travelers being able to move about the nation without being forced to obstruct their breathing by the federal government,” Wall said. “But today’s defeat on the International Traveler Testing Requirement, the first decision in the country on this illicit CDC policy, stings for everyone such as myself who travels abroad – and for the airline industry, who has been lobbying hard to kill the pre-departure testing rule that serves no purpose except to discourage foreign travel by Americans due to the risk of being stranded abroad if one can’t find a rapid test, gets a false positive, or comes down with COVID-19 while in another country.”

Wall, a global nomad who’s been to 134 nations, can’t medically tolerate wearing a face mask because of his Generalized Anxiety Disorder. He was the first person in the United States to file legal challenges to the FTMM and ITTR back on June 7, 2021. He hasn’t been able to fly since June 2020 because of airline mask rules and then the FTMM. Due to the ITTR, he’s also been prevented from visiting his brother, who lives in Germany.

He filed for summary judgment Feb. 16 asking Byron to strike down the FTMM and ITTR ordered by CDC, after which the federal government asked the judge to grant judgment in its favor. Byron did exactly that in today’s shocking decision completely disagreeing with Mizelle’s rationale. Notably Byron did not examine any of Mizelle’s decision, citing only in a footnote that a “district court cannot be said to be bound by a decision of one of its brother or sister judges.”

Unlike Mizelle, Byron concluded that the FTMM and ITTR are valid exercises of CDC’s authority under the Public Health Service Act and that the agency had “good cause” to forgo notice and comment before putting the mandates into place. Byron was appointed by President Barack Obama; Mizelle was tapped for the bench by President Donald Trump.

Byron determined that forced masking and virus testing as conditions of transportation “are not questions of deep economic and political significance that demand explicit congressional delegations of power. … Moreover, the FTMM and the ITTR clearly fall within the CDC’s public health domain.”

The judgment concedes that the Public Health Service Act, a 1944 law that CDC cited as its authority for its mask and testing orders that it has never issued before in the history of the nation, is not clearly written, leaves several possible interpretations, and is “inherently ambiguous.” Unlike Mizelle, Bryon decided to defer to CDC’s determination of its authority rather than conduct an independent judicial inquiry as he is obligated to do.

Although stating that Congress has not directly addressed the issue of whether CDC has the power to require masks and testing, Bryon went on to write that “the Court finds that the CDC’s interpretation of the PHSA is permissible and that it did not act arbitrarily and capriciously in issuing the FTMM and the ITTR. Given the ambiguity of the statutory text, the statutory context, and the legislative history, the CDC’s broad reading of Section 361(a) is certainly reasonable.”

Wall said Byron’s ruling should have stopped as soon as he determined it wasn’t obvious that Congress had authorized masking and testing rules by an administrative agency.

“Congress has had more than 23 months during the COVID-19 pandemic to pass laws requiring face coverings and virus tests for travelers if our lawmakers believe those are wise policies,” Wall said. “Its lack of action is telling that CDC does not possess this authority, nor that the mandates are necessary. The only vote Congress has ever taken on these two subjects is the Senate’s 57-40 decision to kill the FTMM March 15.”

CDC and its parent agency, the Department of Health & Human Services, argued in both cases that masks are conventional “sanitation” measures allowed by the statute. Mizelle concluded a mask is not sanitation because it cleans nothing and the common meaning of sanitation is providing clean water and properly disposing of garbage and human excrement. Byron totally disagreed.

“It is reasonable to categorize the FTMM as a ‘sanitation’ measure,” he wrote. “As a matter of common sense, masks control the number of particles inhaled from the public airspace by the wearer and the number of particles exhaled by the wearer into the public airspace. … In this way, masks (to varying degrees) promote the public health by checking the transmission of airborne viruses, such as SARS-CoV-2, and thus fit within the definitions of ‘sanitation.’”

Likewise Byron found that the ITTR qualifies as “inspection” even though Mizelle noted inspection is targeted at objects and animals, not humans, because the statute’s term “examination” applies to people.

“It is reasonable to categorize the ITTR as an ‘inspection’ measure,” Byron wrote. “Logically, these tests are critical examinations of patients’ samples to uncover the presence of the SARS-CoV-2 virus and therefore qualify as ‘inspections’ of those patients.”

Without referring to Mizelle by name, Byron expressed concern that “The narrow reading of the PHSA constrains the CDC’s ability to expediently address health crises, such as the COVID-19 pandemic, to the detriment of the public health.”

In supporting his decision confirming CDC’s argument that the mask mandate is “necessary,” Byron relied on seven flawed studies the agency presented, but did not comment on a single one of the 228 scientific studies, medical articles, and videos Wall put into evidence showing that masks are totally ineffective at reducing COVID-19 spread but harm human health in at least 68 ways.

“Judge Byron’s decision reads like it was written by one of President Biden’s CDC appointees, not by an independent member of the Judicial Branch,” Wall lamented. “It’s nothing but old, disproved propaganda trying to convince us that masks are effective when they are not – something all 50 states have recognized by repealing their mandates. And 14 states now have laws prohibiting mandatory masking. It’s a shame Judge Byron did not examine a single piece of evidence that I presented and disregarded almost all of my arguments made during the nearly 11-month history of this case.”

Finally, again in contrast to Mizelle, Byron determined that CDC had “good cause” to skip the mandatory note-and-comment procedures required by law when agencies issue new regulations and mandates.

“The highly contagious character and the devastating effects of the SARS-CoV-2 virus demanded expeditious action by the CDC,” according to the judgment. “Frankly, if battling this elusive enemy does not rise to the level of urgency that qualifies for deviation from normal rulemaking procedures under the good cause exception, the Court is not sure what does.”

Wall said he will immediately appeal to the U.S. Court of Appeals for the 11th Circuit, where the government’s challenge to Mizelle’s decision vacating the FTMM was filed April 20. This sets up the possibility the two cases could be consolidated as the same appeals court reviews two completely different judgments issued by judges in the same federal judicial district.

In his complaint, Wall argued CDC’s mask mandate is illegal and unconstitutional. He charged CDC and HHS with eight counts of violating the Constitution and federal law by imposing a requirement that all passengers and employees throughout the nation’s entire public-transportation system obstruct their oxygen intake. Wall also charged the agencies with four constitutional and statutory violations for the ITTR, which mandates that all airline passengers flying to the United States – but not travelers entering the country by land or sea – submit a negative COVID-19 test within one day of departure.

“The Court should vacate the Federal Transportation Mask Mandate and International Traveler Testing Requirement as well as permanently enjoin CDC and HHS from issuing any future orders mandating transportation passengers and workers don face masks as well as that passengers flying to the United States present a negative COVID-19 test prior to check-in,” Wall argued in asking for summary judgment two months ago. “The Biden Administration has issued numerous mandates related to the COVID-19 pandemic attempting to coerce Americans to wear masks, get vaccinated, and/or endure regular virus testing. … Every significant Executive Branch pandemic mandate has been blocked in the courts except for three: The FTMM, ITTR, and HHS’ requirement that all healthcare workers at facilities accepting Medicare and Medicaid get inoculated.”

Wall lodged an amended complaint Dec. 26 after Byron ruled Dec. 18 that his claims against CDC, HHS, the Central Florida Regional Transportation Authority, and the Greater Orlando Aviation Authority could proceed to a final determination, refusing to dismiss those charges. He has been stranded at his mother’s in Florida since June 2021. He plans to return home to Washington in early June now that the mask mandate was vacated by Mizelle after first flying to New Mexico soon to see his father.

Wall contended CDC failed to take into account that the mask mandate discriminates against passengers with medical conditions who can’t tolerate having their breathing blocked, the voluminous scientific and medical research showing masks have proven to be totally ineffective in reducing COVID-19 spread and deaths, and that masks pose serious health risks to humans forced to wear them.

He had asked Byron to declare both the FTMM and ITTR contrary to statute and unconstitutional, vacate the orders, and permanently enjoin their enforcement worldwide.

The case began June 2, 2021, when Wall was denied entry to a TSA security checkpoint at Orlando International Airport to catch a Southwest Airlines flight because he can’t wear a mask due to his Generalized Anxiety Disorder.

Wall filed suit June 7 against CDC, HHS, President Biden, TSA, and two other federal agencies to end the requirement that all passengers wear masks on all modes of transportation everywhere in the nation – including in the 14 states such as Florida where mandatory muzzling is forbidden by law and/or executive order.

The case is Wall v. Centers for Disease Control & Prevention, No. 6:21-cv-975 in the U.S. District Court for the Middle District of Florida in Orlando.

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View: 228 Studies, Articles, & Videos Describe How Masks Don’t Reduce COVID-19 Spread But Harm Human Health