December 18, 2021
Federal Judge Denies CDC’s Request to
Dismiss Challenge to Federal Mask Mandate
Plaintiff Allowed to Proceed with Lawsuit Seeking
to End Masking in Transportation Sector
Dec. 18, 2021
By LUCAS WALL
ORLANDO, Florida – In a victory for the disabled who can’t wear masks and other Americans who believe face coverings should be an individual choice, a federal judge here denied today the Centers for Disease Control & Prevention’s motion to dismiss the nation’s first lawsuit seeking to strike down its Federal Transportation Mask Mandate.
Instead of tossing the entire case as the federal government asked, U.S. District Judge Paul Byron, in a 30-page decision, sustained Plaintiff Lucas Wall’s charges that CDC’s FTMM is illegal and unconstitutional. Byron denied CDC’s motion to dismiss and instead ordered Wall to file a shorter complaint by Jan. 3. Wall said he intends to do so within a couple days.
“Today’s decision is disappointing in that Judge Byron did not reach the merits of whether CDC has violated the law and the Constitution by mandating muzzling on every mode of public transportation nationwide,” said Wall, 44, of Washington, D.C., who’s been stranded in Florida since Southwest Airlines and TSA refused to let him board a flight maskless June 2 at Orlando International Airport. “This is a short-term setback for the disabled such as myself who medically can’t tolerate having our sources of oxygen obstructed, and for all Americans who believe it’s a personal choice whether or not to place a worthless piece of cloth over their nose and mouth. Science has shown for decades that face masks do not reduce the transmission of respiratory viruses but actually cause dozens of harms to human health.”
However, Wall expressed elation that his claims against the CDC mask mandate – first imposed by President Joseph Biden’s administration Feb. 1, 2021, and currently in effect until at least March 18, 2022 – survived a motion to dismiss and will proceed to full adjudication once his shorter complaint is filed in the next few days.
“A federal district judge has recognized there are serious problems with CDC’s order, which has never been approved by Congress and violates at least three provisions of the Constitution,” Wall said. “Although I had hoped Judge Bryon would have struck down the mask mandate today, it’s encouraging he refused to dismiss my claims against CDC. They will get a full hearing on the merits.”
The case, Wall v. CDC, began June 2 when Wall was denied entry to a 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, President Biden, the Transportation Security Administration, and three other federal agencies to end the requirement that all passengers wear masks on all modes of transportation everywhere in the nation – including in the numerous states such as Florida where mandatory muzzling is forbidden by law and/or executive order.
“Once this case reaches the final merits judgment, I’m confident the court will vacate the illegal and unconstitutional Federal Transportation Mask Mandate, which CDC issued without any authority from Congress and in violation of the constitutional right to freedom of travel, to due process of law, and states’ rights under the 10th Amendment,” Wall said.
The 206-page complaint asserts that the FTMM – issued by CDC and enforced by TSA as a result of an executive order signed by Biden – violates a dozen provisions of the Constitution, federal laws, and regulations.
Judge Byron, in today’s order, allows eight of the 12 charges against CDC and its parent agency, the Department of Health & Human Services, to proceed. He dismissed four charges against TSA, the Department of Homeland Security, and the Department of Transportation, ruling claims against the mask mandate directed at those agencies must by law be filed with a U.S. Court of Appeals.
Anticipating this decision, Wall and 13 other disabled Americans filed six lawsuits Oct. 19 against TSA. Wall v. TSA is currently at the U.S. Court of Appeals for the District of Columbia Circuit after U.S. Chief Justice John Roberts denied Dec. 9 an emergency application to stay TSA’s enforcement of the mask mandate. (Wall and his copetitioners, Michael Seklecki Sr. of Sanford, Florida, and his 4-year-old autistic son, plan to resubmit the application next week to another Supreme Court justice in hopes the full court will review it.)
A New York City frequent flyer, Aaron Abadi, has sued the U.S. Department of Transportation in the U.S. Court of Appeals for the Second Circuit for failing to enforce regulations prohibiting discrimination against passengers with disabilities who can’t tolerate wearing a face covering. Wall said he will evaluate whether to bring such a similar lawsuit against DOT in the Court of Appeals.
The CDC case is Wall v. CDC, No. 6:21-cv-975 before the U.S. District Court for the Middle District of Florida in Orlando. The TSA case is Wall v. TSA, No. 21-1220, before the U.S. Court of Appeals for the District of Columbia Circuit.
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I am still praying that the traveler mask mandate will be dropped by Christmas! What a gift that would be!