July 6, 2022
Ban CDC Mask & Testing Orders, 335 Airline
Workers, Disabled Passengers, Industrial
Hygienists, & Dual Citizens Tell Court
4 Friend-of-the-Court Briefs Filed with 11th
Circuit Court of Appeals as Judges Consider Mandates
July 6, 2022
By LUCAS WALL
ATLANTA, Georgia – Four groups of airline workers, disabled passengers, industrial hygiene experts, and dual citizens filed friend-of-the-court briefs Monday night asking the U.S. Court of Appeals for the 11th Circuit to reverse a Florida federal judge’s April 29 decision declaring legal the Federal Transportation Mask Mandate and International Traveler Testing Requirement.
The dual citizens argued against the legality of the testing requirement while the other three groups of amicus curiae took issue with the mask mandate.
“While passengers only have to endure forced masking when traveling on public transportation, we are expected to obstruct our oxygen intake nearly all the time while at work. This endangers our health and imperils aviation safety,” wrote 313 airline workers from 35 states employed by 16 air carriers. “Tens of thousands of our colleagues were laid off or placed on long-term unpaid leave due to the economic devastation caused by the ITTR, FTMM, and other government travel restrictions related to COVID-19 that did nothing to stop the virus’ spread.”
The briefs came eight days after appellant Lucas Wall of Washington, D.C., filed his opening arguments June 27, teeing up for review by the 11th Circuit conflicting decisions by judges in Florida regarding the bounds of the Centers for Disease Control & Prevention’s legal authority to issue worldwide COVID-19 restrictions. U.S. District Judge Kathryn Mizelle of Tampa vacated the mask mandate April 18, ruling CDC issued it without congressional authority, did not offer a chance for the public to comment, and did not reasonably explain its decisionmaking.
But 11 days later, U.S. 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 (which only addressed the FTMM) with the 11th Circuit on April 20 and its opening brief May 31. 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.
“We speak to the Court on behalf of the millions of disabled passengers who were banned from using public transportation in America from February 2021 to April 2022 due to the FTMM – likely the greatest government-driven exclusion of the disabled from public services in this nation’s history,” wrote 16 passengers from nine states “whose disabling medical conditions precluding us from safely wearing a mask resulted in us being blocked from flying or using ground public transportation because of the Federal Transportation Mask Mandate.”
Wall presents 11 questions of law in his appeal, including three that are also an issue in the government’s appeal of Mizelle’s judgment. In addition to CDC, he attacks mask directives issued by the Transportation Security Administration, a unit of the Department of Homeland Security, as well as the Department of Transportation. These agencies are not defendants in the HFDF case.
“We participate in this case to ensure the Court has a true understanding of the science: Face masks do not stop the spread of a respiratory virus but harm human health in many ways,” wrote industrial hygiene experts Tyson Gabriel and David Howard of Arizona and Stephen Petty of Florida. The federal government has “been misleading the public about the efficacy of face coverings as a tool to reduce transmission of coronavirus.”
Uri and Yvonne Marcus of California, dual citizens of the United States and Israel, and Kleanthis Andreadakis of Tennessee, dual citizen of America and Greece, advised the Court of Appeals that the testing requirement should be struck down. CDC voluntarily repealed it June 12, but the agency said it will reimpose it any time it deems necessary.
“As dual citizens who frequently travel between the United States and our other nation of citizenship, we have an especially strong interest in ensuring the Testing Requirement is invalidated and can never come back. There is no statutory authority for CDC/HHS to require virus testing at foreign airports well outside U.S. jurisdiction,” the Marcuses and Andreadakis told the court. “The district court erred in ruling the ITTR is legal and constitutional. This Court should reverse that judgment, declare the ITTR ultra vires, and permanently enjoin CDC and [the Department of Health & Human Services] from ever reissuing it unless Congress enacts specific authorization.”
Wall said he continues vigorously prosecuting his appeal despite the FTMM currently being unenforceable (due to Mizelle’s decision) because CDC continues urging forced masking in the transportation system and, although it repealed the ITTR last month, claims it will reimpose the testing requirement at any time. His brief rebuts CDC’s false claims about the efficacy of face masks, which have been thoroughly debunked by hundreds of scientific and medical studies across the globe.
“The federal government has constantly lied to the American public about masks being a critical tool to slow down COVID-19 infections,” the industrial hygiene experts wrote. “In this case, the administrative record is virtually nonexistent when it comes to being supported by science. CDC and HHS cited only seven deeply flawed studies to come to the conclusion that masking everyone in the transport sector would ‘slow the spread.’ … Government agencies are forcing people to wear a mask because of purported safety and health concerns. So, the logical starting point should be to use established science related to the safety and health professions to build from. Therefore, it is important for professionals in our industry to be engaged in this debate to ensure the bar for safety and health sciences is not lowered by the unqualified.”
CDC and its parent agency, HHS, argued in both cases that masks are conventional “sanitation” measures allowed by 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.
“There’s nothing ambiguous about the language Congress used in this section. ‘Inspection’ only applies to animals and articles,” the dual citizens argued. “The Court should focus on how the terms are used in our society. A coroner, for example, is also called a ‘medical examiner,’ not a ‘medical inspector.’ We don’t schedule an ‘annual inspection’ with our doctor. We go for an ‘annual exam.’”
The aviation workers noted “The airline industry was perhaps the #1 sector of the economy hardest hit by COVID-19 panic and the ensuing crippling travel restrictions imposed by the federal government including the FTMM, ITTR, and bans on foreign travelers entering the United States. … CDC and TSA failed to consider the enormous harms these two policies would impose on our industry, including that we as crew members would be on the frontlines of enforcement. We never signed up to be the mask police or to verify virus test results before allowing passengers to board a plane. The federal government unlawfully commandeered us to become its enforcers.”
Disabled passengers took issue with the purported exemption for them in the mask mandate, noting that in reality nearly every airline and mass-transit operator denied all requests for medical waivers even when supported by doctors’ letters. They described in great detail all the exemption rejections they received and the devastating effects on their lives of being unable to fly or use public transportation for more than a year while the FTMM was in effect.
“The Mask Mandate caused us incredible harm, all because of our medical conditions that make it unsafe for us to wear a mask. CDC’s FTMM Order and TSA’s Health Directives and Emergency Amendment all proclaimed the disabled who can’t safely cover their faces are exempt, but then DOT put out guidance to the airlines it regulates that they are free to break the law in at least eight ways,” they wrote. “Some of us were totally banned from flying for 14½ months because airlines refused repeatedly our medical waivers despite documentation from our physicians that we can’t safely wear masks. Thankfully the FTMM is not currently in effect, but it’s critical this Court ensure it can never be brought back.”
The case is Wall v. Centers for Disease Control & Prevention, No. 22-11532 in the U.S. Court of Appeals for the 11th Circuit in Atlanta.
Documents filed in the case so far:
- Amicus Curiae Brief of 313 Airline Workers
- Amicus Curiae Brief of 16 Disabled Passengers
- Amicus Curiae Brief of 3 Industrial Hygiene Experts
- Amicus Curiae Brief of 3 Dual Citizens
- Wall’s Opening Brief
- Apppendix Volume 1
- Appendix Volume 2
- Appendix Volume 3
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After wearing an Oximeter during flights I found my oxygen saturation as low as 85% at cruise altitude. This is extremely dangerous in a rapid or slow decompression.