December 28, 2021
4-Year-Old Autistic Boy Asks Justice Gorsuch to Enjoin Federal Transportation Mask Mandate
TSA Rule Returns to Supreme Court as It Nears
Arguments on Biden Vaccine Requirements
Dec. 28, 2021
By LUCAS WALL
WASHINGTON – A 4-year-old Florida boy who suffers from Autism Spectrum Disorder and can’t medically wear a face covering is asking U.S. Supreme Court Justice Neil Gorsuch to block the Transportation Security Administration’s ability to enforce the Federal Transportation Mask Mandate, which is in effect until at least March 18.
In an emergency application resubmitted Dec. 21 and placed back on the docket today, Michael Seklecki Jr. of Sanford, Florida, his father Michael Sr., and Lucas Wall of Washington, D.C., request Gorsuch stays enforcement of the mandate pending final disposition of their petition for review in the U.S. Court of Appeals.
Chief Justice John Roberts denied the application Dec. 9 without comment or referring the matter to the entire court. Supreme Court rules permit an application rejected by a single justice to be resubmitted to any other justice for reconsideration.
“Justice Gorsuch has been a beacon for liberty, voting to strike down CDC’s Eviction Moratorium and several state COVID-19 restrictions against houses of worship,” Michael Sr. said. “He has also dissented in multiple cases recently where the court failed to block state vaccine mandates. We’re hoping he will take a second look at our application and either enjoin TSA’s illegal mask mandate or refer the matter to the full court for adjudication.”
The Sekleckis must fly often between their home near Orlando and Boston for Michael Jr.’s specialty medical care. Their next flight to Boston is planned for the weekend of Jan. 8-9. Wall has a ticket booked to visit his brother in Germany on Jan. 10, a trip that has been postponed numerous times since June because of the FTMM. The three ask Justice Gorsuch for a ruling by Jan. 7 – the same day the court is holding emergency oral arguments on numerous petitions to stop the Biden Administration from enforcing coronavirus vaccine mandates for companies with 100+ employees as well as all healthcare workers.
“Although we are not permitted to modify the original brief and appendix, we would like to inform the Court of important developments since Chief Justice Roberts denied our original application Dec. 9,” the applicants wrote in a cover letter. “That same day, Mr. Seklecki and M.S. flew home after M.S.’s stay at Boston Children’s Hospital … At the check-in counter, Delta Air Lines again refused to grant Mr. Seklecki a mask exemption due to Respondent Transportation Security Administration’s enforcement of the Federal Transportation Mask Mandate … Delta granted M.S. a mask exemption. However, aboard the airplane, flight attendants harassed M.S. for not wearing a face covering and demanded Mr. Seklecki place a muzzle on his autistic child or deboard the aircraft.”
Michael Sr. explained several times that his son had been granted a mask exemption by Delta’s check-in agents, refused to place a mask on his son, and declined to exit the plane.
“The captain of the flight and a Delta customer-service supervisor came into the cabin to speak with the flight attendants,” the letter states. “After a delay, the captain confirmed M.S. had received a mask exception and flight was then allowed to depart. This incident further demonstrates the need for a stay of the Federal Transportation Mask Mandate as requested in our emergency application.”
The Sekleckis and Wall complain that “TSA gives airlines, which are private corporations, complete discretion whether or not to grant an exemption to the mask mandate for medical reasons in violation of the Air Carrier Access Act. Every time Mr. Seklecki and M.S. fly for the boy’s critical out-of-state medical care, they must receive clearance from the airline.”
The Sekleckis have been banned by Frontier Airlines and harassed by Spirit Airlines because Michael Jr. can’t wear a mask. Wall, who has been battling the FTMM and seven airlines’ illegal discriminatory mask policies in court since June, was banned by JetBlue Airways for suing it.
The 83-page application accompanied by 234 pages of exhibits notes the high court “has issued at least six emergency injunctive orders in the past year or so unequivocally holding that governments may not restrict constitutional rights or disregard clear statutory terms even in the name of fighting a pandemic. Because TSA issued the challenged orders without constitutional, statutory, or regulatory authority, this Court must immediately block TSA’s enforcement of the FTMM, as numerous tribunals have done in halting similar pandemic measures.”
The Sekleckis and Wall present a dozen legal arguments for why the FTMM is illegal and unconstitutional. They are among a group of 14 flyers from nine other states and the District of Columbia who filed six lawsuits Oct. 19 charging TSA with exceeding its authority by continuing to extend the FTMM. The Sekleckis and Wall are among four petitioners in the case first filed with the U.S. Court of Appeals for the 11th Circuit in Atlanta, then transferred to the District of Columbia Circuit. That court, in a one-paragraph order, denied Nov. 10 their emergency motion to stay the TSA orders until the case is decided.
“TSA doesn’t have any authority from Congress to mandate what travelers must place on our faces,” the Sekleckis and Wall argue. “TSA isn’t assigned the job of health inspector or disease preventer. Its mission is transportation security, period. Congress named respondent the Transportation Security Administration, not the Transportation Health & Disease Control Administration. TSA, trying to become THDCA, has massively exceeded its statutory authority by, for the first time, claiming authority to regulate nonsecurity matters such as face masks.”
The application argues TSA issued the mask mandate: 1) in excess of its statutory and regulatory authority; 2) based solely on a CDC order that the agency issued in excess of its statutory and regulatory authority under the Public Health Service Act; 3) in violation of the 10th Amendment; 4) in violation the constitutional guarantee of freedom to travel; 5) in violation of the Fifth Amendment right to due process; 6) in violation of the Air Carrier Access Act; 7) without notice and comment required by the Administrative Procedure Act; 8) in an arbitrary and capricious manner; 9) in violation of the Food, Drug, & Cosmetic Act; 10) in violation of Occupational Health & Safety Administration regulations; 11) in violation of several international treaties the United States has ratified; and 12) in a way that can’t survive strict scrutiny.
“In recent months, numerous federal courts have struck down unlawful COVID-19 orders issued by the Biden Administration including the eviction moratorium, restrictions on cruiseships resuming sailing, and several vaccine mandates,” Wall said. “It’s time the Supreme Court adds the mask mandate to that list. TSA has no business ignoring its duties to ensure transportation security by policing whether travelers and transportation workers put a worthless piece of cloth over their nose and mouth.”
The application cites 223 scientific studies, medical articles, and videos showing masks don’t reduce the spread of respiratory viruses but cause dozens of harms to human health. It also discusses how the mask mandate restricts the disabled who can’t have their oxygen sources obstructed from using any form of public transportation nationwide.
“TSA’s mask mandate blatantly discriminates against Americans with medical conditions who can’t wear masks,” the applicants assert. “TSA’s discrimination against the disabled is extremely difficult to write about for us, and its numerous false claims below that the FTMM doesn’t unlawfully bar those with medical conditions who can’t wear masks from traveling are insulting. The Health Directives purport to allow the disabled to get mask exemptions, but the reality is TSA and the airlines have made it nearly impossible. We have qualified disabilities but can’t get exemptions. TSA failed in the Court of Appeals to contradict that the FTMM violates the [Air Carrier Access Act] in at least eight ways.”
The case is Wall v. Transportation Security Administration, No. 21A198.
DOCKET: https://bit.ly/21A198
COVER LETTER: https://bit.ly/122101cl
EMERGENCY APPLICATION: https://bit.ly/21A198appl
APPENDIX OF EXHIBITS: https://bit.ly/21A198appx
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