Mask Mandate for U.S. Public Transportation Struck Down by Federal Judge
On Apr. 18, 2022, U.S. District Court Judge Kathryn Kimball Mizelle in the Middle District of Florida struck down the Biden administration’s mask mandate for people traveling on U.S. public transportation, including planes, trains and buses.1 After the ruling, the U.S. Transportation Security Administration (TSA) confirmed that it will no longer enforce the mask mandate nationwide.
This announcement left the airports, airlines and other transportation agencies to decide for themselves whether they will enforce a mask mandate. Most airlines and other transportation agencies including United, American, Alaska, Southwest, Delta, JetBlue, Alaska Airlines, Amtrak, Uber and Lyft changed their policy to make masks optional for travelers.2 Immediately before the ruling, U.S. Centers for Disease Control and Prevention (CDC) officials had extended the mask mandate until May 3.3
In this case, the plaintiffs—Health Freedom Defense Fund, Sarah Pope
and Ana Dazza—sued the government by alleging that the mask mandate
violated the Administrative Procedure Act (APA). Both parties quickly
filed a motion for Summary Judgment. A Motion for Summary Judgment asks
the court to make a determination prior to a trial or even before
pre-trial preparation begins that a party is entitled to judgment as a
matter of law when there are no material facts in dispute.4
The plaintiffs alleged (1) that the mask mandate exceeded the CDC’s
authority; (2) that Congress improperly delegated its legislative power
to the CDC; (3) the notice and comment period was improperly bypassed
when the mask mandate went into effect and (4) The mask mandate is
arbitrary and capricious and, therefore, in violation of the APA.5
Mask Mandate Exceeds the CDC’s Authority
On Feb. 3, 2021, the CDC ignored the APA’s 30-day notice and comment period and issued the mask mandate requiring that “a person must wear a mask while boarding, disembarking, and traveling on any conveyance into or within the United States.” The mask mandate had some exemptions, namely children under two years old and those who have an ADA recognized disability. In addition, all passengers were allowed to remove masks when eating or drinking. Transportation operators were required to police and enforce the mandate, which could include removing unmasked travelers from the premises and filing for criminal penalties.6
For the authority to issue the mask mandate, the CDC relied on the Public Health Services Act of 1944 (PHSA) which allows the CDC to “promulgate regulations aimed at identifying, isolating and destroying diseases.” The PHSA allows the CDC limited power to detain, examine or provide conditions for a person entering the US or traveling between states when the CDC reasonably believes is infected with a communicable disease. While the PHSA was rarely invoked in the past and only used under very limited circumstances, the CDC has relied on it to justify a number of regulations since the start of the coronavirus pandemic in 2020. Two of the regulations that relied on the PHSA – not allowing cruise ship travel and the eviction moratorium – have been struck down by the courts for exceeding the scope of the PHSA.7
In this case, the court analyzed the plain language in Section 264(a) of the PHSA and found that, although the first sentence grants the CDC broad authority to use its judgment when authorizing regulations to prevent communicable diseases, the second sentence greatly
limits this authority. The second sentence narrows the scope of the CDC’s power and scope of making regulations to “inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of contaminated animals and articles and other measures.” Mandating that travelers wear a mask is not included in this list.
The government argued that wearing a mask falls under “sanitation” or “other measures.” The court disagreed and, after conducting a detailed analysis, concluded that because the plain language definition of sanitation refers to cleaning, which is something a mask cannot do, the mask mandate falls outside the scope of the PHSA.8
The historical use of the PHSA also does not support the current justification of the mask mandate. The statute allows the federal government to inspect and quarantine an item or person at a “major port of entry” in order to assist the state’s public health measures. Historically, under their police powers, states have had the right to enact public health measures and the PHSA merely allows the federal government to assist the states in these efforts.9
Therefore, the court found that the federal government exceeded its power under the PHSA:
Though the government once that §264(a) merely “consolidates and codifies” this history, see id, it now finds a power that extends far beyond it to population-wide preventative measures like near-universal mask requirements apply even in settings with little nexus to interstate disease spread, like city buses and Ubers.10
Mandated Mask Wearing Imposes on Individual Liberty Interests
The court determined that, while §264(a) allows the CDC to directly impose on an individual’s property interests, it does not give the CDC the right to impose on an individual’s liberty interests by mandating mask wearing. This is because individuals who are not wearing masks are forcibly removed from transportation. Therefore, the court considered the mandate a form of detention or quarantine, neither of which are covered in §264(a).11
By allowing individuals who may be infected with COVID-19 and could potentially spread the virus to travel with a mask, the court views the mask mandate as a “conditional release,” despite fears the individual could spread the virus. However, the detention of and the conditional release of individuals is limited to international travelers under §264(c) and only applies under §264(d) between the states when an individual is “reasonably believed to be infected” and found to be infected upon examination. While the mask mandate applies to all travelers traveling internationally and between states, there is no examination to determine who may be harboring the virus. Therefore, the mask mandate exceeds the authority granted to the CDC in §264 subsections a through d.12
The CDC Unlawfully Bypassed the Notice and Comment Period
The court took issue with the CDC bypassing the 30-day minimum notice and comment period before enacting the mask mandate. The two exceptions to the notice and comment period that are applicable to the present case occur when the agency action is not a rule and when the agency had good cause to skip the notice and comment period. The court quickly dismissed the government’s initial argument that the mask mandate was not a rule, leaving the question as to whether the CDC had good cause to bypass the notice and comment period.13
The standard to determine whether an agency’s action falls under the good cause exemption is whether the government can show that the 30-day notice and comment period was “impracticable, unnecessary, or contrary to the public opinion.” The agency making the rule must set forth in the rule itself a brief statement of their findings and reasoning as to why the rule should be enforced without the required notice and comment period.14
The mask mandate sets forth…
there [was] good cause to dispense with prior public notice and comment” because-given “the public health emergency caused by COVID-19, it would be impracticable and contrary to the public’s health, and by extension the public’s interest, to delay the issuance and effective date of this Order.15
Judge Mizelle found that this one sentence explanation did not satisfy the agency’s burden to state their findings and reasoning behind invoking the good cause exception. Simply stating that the rule is necessary and in the public’s interest is not enough to invoke the good cause exception. Instead, specific detailed reasons why the notice and comment period must be skipped are required to rely on the good cause exception. The CDC’s reasoning that the mask mandate needed to go into effect immediately did not hold much weight with the court as the agency waited about a year into the pandemic to issue the rule.16
The Rule of Prejudicial Error Cannot Save the Mask Mandate
The Rule of Prejudicial Error (“The Rule”) provides that courts should only set aside an agency action in cases where that error was harmful. However, the rule is not applicable and an agency rule must be sustained when the error “had no bearing on the procedure used or the substance of the decision reached.”17
The court finding that the agency’s omission of the notice and comment period affected the “procedure used,” together with the fact that public comment would not have been inconsequential considering the mask mandate directly regulates individual’s behavior, rendered the agency’s error of bypassing the notice and comment period harmful.18
Court Rules Mask Mandate is Arbitrary and Capricious
Federal agencies have a duty to engage in reasoned “decision making” and laws that are not the product of such reasoned decision making will be set aside by courts for bring arbitrary and capricious. It is the agencies responsibility to look at relevant data and explain a “a rational connection between the facts found and the choices made” and the agency “must consider and explain its rejection of “reasonably obvious” or “significant and viable” alternatives.”19
Judge Mizelle concluded that the mask mandate failed the reasoned-explanation standard because (1) the CDC does not explain why it rejected alternatives to masking; or (2) why CDC allows any mask to suffice whether home-made or medical grade; and (3) there is no good explanation for the basis that exceptions to the mask mandate are granted. At issue are the numerous exceptions the CDC allows to the mask mandate, such as children under the age of two, and people who experience difficulty breathing or have an ADA recognized disability, and the fact that masks may be removed when eating or drinking without providing an explanation as to why these exemptions exist and why those exemptions don’t block the benefits of the mask mandate in the first place.20
The CDC does not “articulate a satisfactory explanation”-or any explanation at all-“for its action” and fails to include a “rational connection between the facts found and the choices made… In sum, irrespective of whether the CDC made a good or accurate decision, it needed to explain why it acted as it did… Since the CDC did not explain its decision to compromise the effectiveness of its Mandate by including exceptions or its decision to limit those exceptions, the Court cannot conclude that the CDC “articulated a ‘rational connection between the facts found and the choices made… And so, the decision is arbitrary and capricious and sue to be “set aside” and remanded to the agency.21
For the above reasons, the court vacated the mask mandate for exceeding the APA’s authority and made it applicable to the entire country.
The court thoughtfully concluded:
It is undisputed that the public has a strong interest in combating the spread of [COVID-19]… In pursuant of that end, the CDC issued the Mask Mandate. But the Mandate exceeded the CDC’s statutory authority, improperly invoked the good cause exception to notice and comment rulemaking, and failed to adequately explain its decisions. Because “our system, does not permit agencies to act unlawfully even in pursuit of desirable ends,”… the Court declares unlawful and vacates the Mask Mandate.22
Travel Industry Applauds Court Rejection of Federal Mask Mandate While Government Appeals Ruling
The government has already appealed the decision per the CDC’s request.23
It is CDC’s continuing assessment that at this time an order requiring masking in the indoor transportation corridor remains necessary for the public health. CDC will continue to monitor public health conditions to determine whether such an order remains necessary. CDC believes this is a lawful order, well within CDC’s legal authority to protect public health.24
The government’s decision to appeal the lower court order repealing mask mandates comes as a surprise since many public transportation systems and airlines have changed their policy to make masks optional for travelers. The fact that the government didn’t ask for an immediate stay of the repeal of the mask mandate gives the impression that the CDC is prolonging this battle to establish the CDC’s authority to issue mandates in the future, rather than fighting the current order repealing the mask mandate.25
The Flight Attendants Union, which has taken a neutral stand on the issue, promoted a calm and consistent reaction to the ruling stating:
We urge focus on clear communication so that Flight Attendants and other frontline workers are not subject to more violence created by uncertainty and confusion.26
Airlines for America, a trade association for a number of airlines was encouraged by the ruling and said:
U.S. airlines have been strong advocates for eliminating pandemic-era policies and are encouraged by the lifting of the federal transportation mask mandate.27
Scott Kirby, CEO of United Airlines cautioned that it was “very unlikely that a mask requirement is going to come back anytime in the foreseeable future.”28
On May 3, the CDC reinstated their recommendation that all travelers wear masks and that public transportation operators support mask wearing by travelers and employees.29
Public Health Officials Want Broad Powers
The 11th circuit Court of Appeals that will be hearing the appeal covers the entire Southeast. Therefore, a decision by the court would be binding on a large part of the country. A failed appeal to the Supreme Court would make the Florida court’s decision applicable to the entire country and could limit the CDC’s power to make such mandates in the future in the future.30
According to Georgetown law professor Lawrence Gostin:
If CDC can’t impose an unintrusive requirement to wear a mask to prevent a virus from going state to state, then it literally has no power to do anything.31
Professor Gostin is a longtime proponent of mandatory vaccination and the architect of the Model State Emergency Health Powers Act (MSEHPA) that was introduced in states within six weeks of Sept.11, 2001 to significantly expand the authority that can be wielded by state governors and public health officials during declared public health emergencies.32 33
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