June 16, 2022
13 Travelers Ask Court of Appeals to Prohibit
TSA from Ever Reissuing Mask Requirement
April Decision Vacating CDC’s Federal
Transportation Mask Mandate Doesn’t Apply to TSA
June 16, 2022
By LUCAS WALL
WASHINGTON – A group of 13 flyers from nine states and the District of Columbia who brought six lawsuits challenging the Transportation Security Administration’s legal authority to require that all public-transportation passengers don face masks filed a 45-page brief Thursday evening urging the Court of Appeals to enjoin the agency from ever reissuing the Federal Transportation Mask Mandate.
A federal judge April 18 vacated the Centers for Disease Control & Prevention’s mask mandate, declaring the agency issued it without authorization from Congress, failed to allow public comments, and did not reasonably explain the need for travelers to don face coverings. That decision does not apply to TSA, however, which issued its own mask requirements in support of the CDC order.
The 13 petitioners argue that even though TSA voluntarily withdrew its health directives immediately after the April 18 decision in Health Freedom Defense Fund v. Biden, the U.S. Court of Appeals for the District of Columbia Circuit must enjoin the agency from following through on its threat to reinstitute the mask requirement at any time it deems it necessary. The six cases were filed around the country last October but then consolidated in Washington.
“Further extensions [are] likely given the Biden Administration’s continued false belief that masks are effective in reducing the spread of respiratory viruses such as COVID-19 and that Congress gave it authority to dictate that all transportation passengers and workers using any mode of transit across the entire nation cover their faces – an impossibility for millions of Americans such ourselves with various medical disabilities who can’t safely tolerate wearing masks,” according to the petitioners’ closing brief. “TSA in no uncertain terms told this Court it will reimpose the Mask Mandate … This is why we demand that the agency be permanently enjoined from ever issuing future mask mandates without clear, unambiguous authorization from Congress. A permanent injunction is the only way to stop TSA’s unlawful conduct.”
In the 70-page brief TSA filed May 26, the agency told the court that “Because the COVID-19 pandemic remains ongoing, however, TSA may elect to promulgate new directives related to the wearing of masks should it determine that such measures are necessary to prevent an ongoing threat to transportation security.”
Petitioners argue TSA lacks legal authority to regulate health matters that have nothing to do with preventing crimes and terrorist attacks on the nation’s transportation system and the FTMM violates the Air Carrier Access Act; the Fifth Amendment right to due process; the constitutional guarantee of freedom to travel; the 10th Amendment; the Administrative Procedure Act; the Food, Drug, & Cosmetic Act; and two international treaties.
“We continue to prosecute these six cases because TSA has said it could require masks again at any time, therefore it’s critical the Court of Appeals prevent this possibility,” said lead petitioner Lucas Wall of Washington, D.C., who was stranded at his mother’s house in Florida for more than 14 months because airlines and TSA refused to accept his physician’s letter stating he medically can’t wear a mask.
After the April 18 decision, Wall was finally allowed to visit his father in New Mexico and then return home to the nation’s capital. “We have to ensure the disabled may never be banned from using all modes of public transportation ever again. This is a shameful period of American history the court needs to put behind us.”
TSA refused to let Wall through its checkpoint June 2, 2021, at Orlando International Airport because of his medical disability. He then founded Americans Against Mask Mandates to fight the FTMM. The coalition has more than 600 members and 13 active lawsuits attacking the mandate’s legality, including those filed by 10 pilots and nine flight attendants.
Michael Faris of Elizabethtown, Kentucky, has to fly every 12 days for work as a helicopter maintenance supervisor. He is medically exempt by his doctor from wearing a mask, but numerous airlines refused to grant him an exception to the FTMM. Faris has been injured twice after fainting while masked on planes, and American Airlines banned him merely for requesting a medical waiver.
“We must continue to fight these mandates that the TSA illegally implemented at the direction of CDC,” he said. “Not only are their actions illegal, none of these mandates were backed by any sound decisionmaking or scientific fact. Tens of millions of Americans have been flying around the country maskless during the past two months, but there’s no evidence that COVID-19 transmission in the aviation system has increased. This gives the court enormous evidence that the mask mandate never worked.”
Petitioners wrote that “There has been no documented change in coronavirus infections attributed to the transport sector after TSA’s enforcement of the Mask Mandate ended. TSA admits this by offering nothing in its brief on this topic.”
They point out that “Just yesterday (June 15), the nation’s most prominent mask advocate and wearer, Dr. Anthony Fauci, tested positive for COVID-19. The poster boy for masks is now infected with coronavirus. This sums up the worthlessness of masks. They do not stop the spread of an airborne respiratory virus – no matter how many layers of them a person dons like Dr. Fauci.”
Faris said continuing to press the lawsuits “is about protecting the rights of the American people, especially a protected class such as the disabled, from a tyrannical government.”
Petitioner Leonardo McDonnell of Aventura, Florida, who was barred from using buses in Melbourne, Florida, when he lived there earlier in the pandemic because he medically can’t wear a mask, described the FTMM as an “oppressive encroachment upon our rights that represents a great danger to American civil liberties.”
He said he’s continuing the case even though the mask mandate is not currently being enforced because “it is not about the mask itself. It is about drawing the line once it has gone too far. People ask how past deprivations of civil rights were allowed to happen. It’s because people didn’t stand up as this group is doing today. This should never happen again.”
Petitioner Kleanthis Andreadakis of Henrico County, Virginia, said one issue brought to light by the group’s fighting the mask mandate “is how dysfunctional the U.S. Department of Transportation is in responding to disability discrimination complaints and how deficient the Air Carrier Access Act is in truly providing protections for the civil rights of the disabled. The law needs to be amended.” That is a task Congress must take on beyond the litigation, he noted.
The group of petitioners also includes a Texas man (formerly a Florida resident) and his 5-year-old autistic son who need to fly often to Massachusetts for specialized medical care; a Missouri veteran who was removed from a Southwest Airlines flight for removing his mask to breathe and then had his TSA Pre-Check status revoked; an Ohio couple who were unable to use public transportation because of their health problems; and an Allegiant Air flight attendant from North Carolina who quit over moral objections to forcing passengers to obstruct their breathing.
Petitioners are supported by four friend-of-the-court briefs filed by 309 pilots and flight attendants, Advocates for Disabled Americans, two disabled women discriminated against by Delta Air Lines, and three industrial hygiene experts.
The consolidated case is Wall v. Transportation Security Administration, No. 21-1220, U.S. Court of Appeals for the District of Columbia Circuit.
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