May 4, 2022
Globetrotter Appeals Decision Upholding CDC’s Transportation Mask & Testing Requirements
11th Circuit Must Now Determine Which Florida
Judge Ruled Correctly on Mask Mandate
May 4, 2022
By LUCAS WALL
ORLANDO, Florida – A travel blogger who was the first person in the country to sue to stop the Centers for Disease Control & Prevention’s Federal Transportation Mask Mandate and International Traveler Testing Requirement lodged an appeal today of an Orlando federal judge’s April 29 judgment declaring both rules legal.
Today’s appeal tees up for review by the U.S. Court of Appeals for the 11th Circuit conflicting decisions by judges in Orlando and Tampa regarding the bounds of CDC’s legal authority to issue worldwide COVID-19 and other public-health mandates. District Judge Kathryn Mizelle of Tampa vacated the mask mandate April 18, ruling CDC issued it without congressional authority, did not offer notice and a chance for the public to comment, and did not reasonably explain its decisionmaking (known in the law as an “arbitrary and capricious” rule). But 11 days later, District Judge Paul Byron of Orlando found in Wall’s case that CDC does have statutory authority to issue such broad-sweeping mandates and it had “good cause” to forego notice and comment because of the pandemic. Both judges sit in the Middle District of Florida.
The Department of Justice, at the behest of CDC, filed an appeal of Mizelle’s decision with the 11th Circuit on April 20. That case was brought by the Health Freedom Defense Fund. Byron was appointed by President Barack Obama; Mizelle was tapped for the bench by President Donald Trump.
“Judge Mizelle got it right. Judge Byron got it wrong. It’s that simple,” said appellant Lucas Wall of Washington, D.C., who founded last August 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. “We can’t have 180-degree opposite conclusions reached by federal judges in courthouses only 85 miles apart. The 11th Circuit must reconcile these polar judgments and affirm Judge Mizelle’s decision that CDC lacks the power to force all transportation passengers and workers nationwide to obstruct our oxygen intake, not to mention detaining American citizens abroad if they don’t present a negative virus test when checking in for a flight home to the United States.”
Wall said he filed the appeal despite the FTMM currently being unenforceable (due to Mizelle’s decision) because CDC continues urging forced masking in the transportation system and, if permitted, would ask the Transportation Security Administration to continue indefinitely extending its health directives enforcing the mask mandate.
“CDC made it clear with a statement yesterday, when the fifth extension of TSA’s health directives were scheduled to expire, that it still desperately wants to muzzle all travelers and employees nationwide, even though all 50 states have long ago acknowledged the ineffectiveness of face coverings by abolishing their mask mandates,” Wall said. “CDC also claims extraordinary power to require masks on planes and ships far outside U.S. airspace and territorial waters. And if you can’t present a negative COVID-19 test taken the day before you try to fly home to America, CDC detains you in a foreign nation. Congress has never given one government agency this staggering amount of power.”
CDC said yesterday that it “recommends that everyone aged 2 and older – including passengers and workers – properly wear a well-fitting mask or respirator over the nose and mouth in indoor areas of public transportation (such as airplanes, trains, etc.) and transportation hubs (such as airports, stations, etc.). When people properly wear a well-fitting mask or respirator, they protect themselves and those around them, and help keep travel and public transportation safer for everyone.”
Dr. Rochelle Walensky, CDC director, added that “it is important for all of us to protect not only ourselves, but also to be considerate of others at increased risk for severe COVID-19 and those who are not yet able to be vaccinated. Wearing a mask in indoor public transportation settings will provide protection for the individual and the community.”
Wall calls Walensky’s statement “thumbing her nose at the Judicial Branch and again repeating her false claims about the efficacy of face masks, which have been thoroughly debunked by hundreds of scientific and medical studies across the globe.” Wall and dozens of others are planning a separate lawsuit against Walensky personally for her role in ordering the illegal mask mandate.
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 next week to see his father.
“Let’s all be thankful Judge Mizelle vacated the Federal Transportation Mask Mandate worldwide so that Judge Byron’s April 29 decision 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 Friday’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.
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.”
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 26 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.
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.
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.”
Wall contends 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.
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. The 11th Circuit will assign a new number once the case is transferred there later this week.
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