June 27, 2022
Disabled Nomad Urges Court of Appeals to Block
Any Future Transportation Mask & Testing Orders
11th Circuit Must Determine Which Florida
Judge Ruled Correctly on Mask Mandate
June 27, 2022
By LUCAS WALL
ATLANTA, Georgia – 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 filed his opening arguments Monday night asking the U.S. Court of Appeals for the 11th Circuit to reverse a Florida federal judge’s April 29 decision declaring both rules legal.
Monday’s 146-page brief filed by Lucas Wall of Washington, D.C., tees up for review by the 11th Circuit conflicting decisions by judges in Florida regarding the bounds of CDC’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 (known in the law as an “arbitrary and capricious” rule).
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.
Wall presents 11 questions of law in his brief, including three that are also an issue in the government’s appeal of Mizelle’s judgment. 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.
“This Court faces a conundrum: Within 11 days of each other, one judge in the Middle District of Florida (Judge Mizelle in Tampa) vacated worldwide the FTMM, declaring CDC and HHS issued it in excess of their statutory authority under the [Public Health Service Act], failed to give notice and comment, and were arbitrary and capricious,” Wall wrote. “But another judge in the same judicial district (Judge Byron in Orlando) came to the polar opposite conclusion in this case, declaring CDC and HHS have authority under the PHSA to mandate masks in the transportation sector and properly exercised ‘good cause’ to forgo notice and comment. … So who got it right? Judge Mizelle or Judge Byron? I urge the Court to conclude Judge Mizelle’s ruling should be affirmed while Judge Bryon’s should be reversed.”
Wall describes himself as “a global nomad whose #1 passion in life is exploring the world. I have been to all 50 states, 134 countries, and 22 U.S. and foreign territories.” He was banned from flying out of Orlando International Airport on June 2, 2021, because of a medical disability that precludes him from safely wearing a mask. Despite a doctor’s letter indicating Wall should not don a mask, seven airlines continued to deny Wall’s numerous exemption demands submitted throughout the remainder of 2021, leaving him stranded at his mother’s house in The Villages, Florida. He was unable to visit family in New Mexico and Germany, among numerous other trips he had planned.
“CDC and HHS have no authority from Congress to mandate masks in the nation’s entire public-transportation system, more than 90% of which involves trips that never cross state lines and have no nexus to interstate commerce,” Wall argues. “The FTMM and ITTR were issued without notice and comment as required by the [Administrative Procedure Act] and are arbitrary and capricious. They also violate the Constitution, international law, and other federal statutes and regulations.”
Last August he founded Americans Against Mask Mandates, a coalition of more than 650 passengers and airline employees opposed to the FTMM, 40 of whom are prosecuting 14 lawsuits in numerous federal courts attacking the mandate and airlines’ discriminatory policies of refusing mask exemptions to the disabled.
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 earlier this month, claims it will reimpose the testing requirement at any time it deems necessary. 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.
After the April 18 decision in the Health Freedom case terminating the mask mandate, Wall was finally able to visit his dad in New Mexico in May and return home to Washington in early June. He soon plans to see his brother in Germany.
“Thanks to Judge Mizelle’s decision in HFDF, the country now knows the FTMM was never ‘necessary’ nor grounded in science,” he wrote. “It was a purely political decision by a newly elected president who wanted to fulfill a campaign pledge, one he acknowledged multiple times was likely unconstitutional. … We all are now aware the government appellees are guilty of crying wolf. Masks never stopped the spread of COVID-19 in the transportation sector. Nor did the Testing Requirement stop the entry of coronavirus variants into the United States. Both policies were miserable failures.”
He continued, “The American people and the transportation industry are euphoric that they are no longer in effect. People are voting with their faces – the vast majority of which are now uncovered on transportation conveyances across the nation. This Court must ensure these restrictions on our liberty to travel may never be reimposed.”
Wall filed his case June 7, 2021, in the U.S. District Court in Orlando. Monday’s brief in the 11th Circuit described the exuberance of April 18: “Tens of thousands of elated airplane pilots, flight attendants, bus drivers, train conductors, subway operators, taxi and rideshare drivers, and ferry captains got on their intercoms to inform passengers they may remove their masks. These announcements were met by loud cheers and applause by a supermajority of passengers and employees. Videos went viral of flight attendants – giant smiles on their faces visible for the first time in two years – walking down airplane aisles midflight with a trash bag for customers to discard their masks.”
He expressed to the Court of Appeals that “The jubilation was also strongly felt by America’s disabled community, many of whom (including myself) have medical conditions that preclude us from, inter alia, obstructing our breathing and/or having objects placed on our faces. Despite the appellees’ disingenuous arguments to the contrary, millions of us had been banned from using all forms of public transportation nationwide for nearly two years.”
CDC and its parent agency, the Department of Health & Human Services, 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.
“No one can seriously argue that placing a mask on your face is ‘sanitation’ nor that being forced to undergo virus testing in a foreign country is ‘inspection,’” Wall contends. “The Court also has to defer to common sense and English language use. Nobody has ever said in donning a mask that ‘I am putting on my sanitation device’ nor ‘I’m sanitizing my face by covering it with a piece of cloth.’ We do not visit the doctor for an ‘inspection,’ we go for an ‘examination.’ A place in a medical clinic where tests are performed on patients is not labeled an ‘inspection room,’ it is called an ‘exam room.’”
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 Monday night:
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