Lawsuit Filed To Overturn Federal Transportation Mask Mandate

A passenger has filed a lawsuit to strike down the federal mask mandate and the CDC requirement for a negative Covid-19 test when entering the country by air in the U.S. District Court for the Middle District of Florida. (Here’s a copy of the complaint as a .pdf.)

The issues are interesting ones, but Lucas Wall who is a “former transportation reporter and editor who has flown more than 1.5 million miles” is proceeding pro se as his own attorney and raises a number of claims that seem to be substantially less persuasive than his best arguments. I’m not sure he’s the best person to litigate this, though I suspect a well-funded and well-represented person in his position might do quite well.

Denied Boarding Without A Mask Despite A Medical Reason Not To Wear One

Mr. Wall says that he suffers from Generalized Anxiety Disorder and reports that this “causes him hyperventiliation and panick attacks” when he wears a mask. He submitted a request for an exemption from the mask requirement to Southwest Airlines (a process required by the federal mask mandate, but that wasn’t available when mask requirements were imposed by the airlines themselves) and this was denied for his June to trip from Orlando to Fort Lauderdale.

I have no knowledge of the specific medical condition of Mr. Wall and so I don’t express an opinion on the validity of his request for exemption. However absent a mask requirement he would have been allowed through the TSA checkpoint and been able to fly.

He might not have been allowed to fly Southwest (which didn’t even honor medical exemptions prior to the federal mandate) however we do not know which airlines would have lifted their mandates already if allowed to do so (their current lobbying in favor of a mandate notwithstanding) and airline policies on masks did vary before the mandate for instance Delta allowed exemptions after consultations with a medical professional they designated and allowed exemptions for young children as well.

Trying To Overturn The Testing Requirement For Air Travel To The U.S.

Wall also wants an injunction against the air travel Covid-19 testing requirement for travel to the U.S. He has a flight back to the U.S. at the end of June (he has not yet left the country). If he isn’t able to travel on his outbound flight due to the mask requirement, he won’t face the return testing requirement. I’d be interested to hear from subject matter experts among readers on the standing issue here.

Good – And Less Good – Arguments Against The Mask Mandate

Wall raises “21 counts of violating the Constitution, laws, and regulations” and isn’t just suing the CDC he also argues that the aviation authority which manages the Orlando airport shouldn’t be able to enforce the mask mandate due to Florida’s prohibition on government agencies requiring masks (although federal law would seem to trump here, and the court’s 10th amendment jurisprudence isn’t likely to be favorable here).

There are actually good level arguments against the federal mask mandate. It was clear that the TSA on its own could not require masks in air travel. That’s why the Biden administration’s CDC promulgated a mask requirement, which was then implemented by TSA. The legality of the mask rule relies on its power in 42 USC 264(a) to “make and enforce such regulations..necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.”

The statute granting the CDC its power specifies examples of what may be required. The power is not unlimited: “inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.”

The strong legal argument here is that in giving examples of what the CDC may do, Congress limited the CDC’s power and ‘other measures’ must be similar in kind to those listed in the statute.

And it’s actually a double-bind, because if a court finds that this isn’t the case then Congress’ delegation of authority is overbroad (running afoul of the non-delegation doctrine: Congress can’t let an agency legislate its own authority).

The argument against the CDC’s authority is basically that either the CDC’s authority is limited and it hasn’t been granted the power to require masks for air travel, or its power isn’t limited and the grant of power is unconstitutional. Either way the law doesn’t support the CDC’s action, and this is basically the argument that’s been made when challenges to the CDC’s eviction moratorium have (sometimes) prevailed.

Earlier in the pandemic a court might have upheld the mask mandate in the face of such a challenge, contending that a mask mandate for transportation is closely related to preventing the “spread of communicable diseases from… from one State or possession into any other State or possession.” However the CDC itself says that vaccinated people no longer need to wear masks based on its own studies showing that they neither get nor spread the virus (and while protection against asymptomatic transmission is not perfect it appears that those who have been vaccinated and are asymptomatically infected are also far less likely to shed the virus).

We May See The Mask Rule End Soon

My suspicion is that the case will be moot, at least with respect to masks, long before it’s adjudicated. The mask rule was extended through September 13 even though it’s no longer needed.

  • Infection rates are low enough in the U.S. and continuing to fall. The President could declare victory for the Fourth of July and end the mask mandate early.

  • Summer is likely to have low Covid-19 prevalence such that the justification for extending the mask mandate past September 13 will be weak (even if the virus returns later, and questions about a mask mandate resurface).

  • There’s almost no world in which Democrats go into the midterm elections without declaring victory and thus removing the justification for the mandate.

It’s only in this third scenario where we likely start to see rulings on the matter before the case is mooted at least as to masks.

About Gary Leff

Gary Leff is one of the foremost experts in the field of miles, points, and frequent business travel - a topic he has covered since 2002. Co-founder of frequent flyer community InsideFlyer.com, emcee of the Freddie Awards, and named one of the "World's Top Travel Experts" by Conde' Nast Traveler (2010-Present) Gary has been a guest on most major news media, profiled in several top print publications, and published broadly on the topic of consumer loyalty. More About Gary »

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Comments

  1. If he suffers from anxiety, he will need to justify why he lives in a hellhole like Florida.

  2. Well, if he is representing himself like a moron, we won’t see anything come of the suit other than him wasting his time. They should modify the mandate to reflect that immunized people should be exempt from all COVID protocols. That motivates people to do the right thing and get vaccinated and allows those who have to move on with their lives as they should.

    To those conspiracy theorists that think the vaccine is some evil plot against you, put on a mask and shut the hell up until you decide to seek psychiatric help for your obvious schizo-delusional disorder.

    To those of you that want to whine about having to provide proof of vaccination, you obviously are gaming the system and need to see the previous sentence.

    To those of you whining about how your business that lives off of tourism is going to be hurt by any kind of mandate….Your greed does not trump everyone else’s right to a safe and disease free society and please see the sentence two back.

    It’s simple and fair…..proof of vaccination, enjoy your flight/vacation/trip. None….provide your own proper mask, quarantine, etc. Get vaccinated or deal with the consequences to protect the rest of us from your ignorance.

    To anyone faking proof of vaccination to game the system, they should be forced to take a turn of russian roulette with a 6 chamber pistol and one bullet. If they want to break the law and put the rest of us at risk, they should risk something themselves. It’s a hell of a lot cheaper than putting them through the idiotic and profitably expensive prison system that we all get to pay for.

  3. Maybe he can get his fellow Floridians to sue to allow U.S. borders to be reopened to vaccinated global tourists.
    Just think how hot the Florida economy would be if the world could come to the U.S.

  4. If, as you say, the mandate includes ‘inspection’, ‘decontamination’, and ‘destruction of animals’, that seems to cover it. He can be subjected to inspection (i.e. testing), decontamination (i.e. quarantine), and/or destruction (humans are animals). Or he can just wear a mask and let sleeping dogs lie.

  5. Pro se (being your own lawyer) is a recipe to lose. That’s like being your own doctor without going to medical school and residency.

  6. @Derek

    In 2021, information is available online to the degree that you can know just as much as your doctor does. 1 year spent studying medicine gives you the knowledge a doctor has just graduating from medical school. Being your own doctor certainly makes sense given that you can trust your own judgement more than some drone for the medical establishment. Doctors are only helpful for procedures as they have hands on touch and feel experience doing them and for reading imaging (there is no point in studying how to read an mri/CT scan/ultrasound given you won’t have access to them on your own).

    We’d be better off studying medicine in high school for a year than literature or math we will never use in our lives. It’s ridiculous people go to the doctor if they have a sore throat. The only concern is strep (rheumatic if not treated) that can easily be identified by looking in the mouth. You should know signs and symptoms and statistics of diseases. I need a doctor to do sutures, read an X-ray, or do surgery. I don’t need one to tell me what I already should know if I have ULQ pain. It can only be so many things and I should know if imaging is required based on signs and symptoms that justify the hassle.

    The legal system is purposely designed to be biased against individuals representing themselves because those who are in it aren’t concerned about justice. They are concerned about job security and preserving their power over us. If conservatives smartened up, they would start appointing and electing judges who will solely enforce conservative law and dismantle the leftist legal system. We ourselves can do that through jury nullification. Either there is freedom or there isn’t. Anything that a normal citizen can’t argue, shouldn’t exist. Bureaucracy and legalese on benefit those who abuse us.

  7. A noble cause – but if he’s representing himself this is doomed to failure.

    Getting a covid test before entering the US is pointless, especially if you’re vaccinated. I have had to do it numerous times and although all the countries I have visited have made it pretty easy, it’s just a waste of effort. Lets just flash the vaccine card and get on the plane. Simple.

  8. Maybe someone should explain to snowflake dude needs to take his meds rather than suing.

  9. How bout this. It’s a virus stupid. There is no mask made that will stop a virus. If U R so frightened of this virus, which if U contract it U have a 99.7% chance of overcoming it. So
    If U R so frightened maybe U should stay locked up in UR home or where ever U quarantine. Whether I have or have not been vaccinated is none of anyone’s business but mine and my Dr’s. As for the airlines and transport industry, they should be more concerned about developing planes, trains and automobiles that won’t fall out of the skies derail or uncontrollably xcelerate or catch fire inexplicably.

    Put UR big boy pants on and mind you are own business and not that of people simply trying to get fm point “A” to point “B”.if U want to worry about something in a flt worry about some goofball attempting to use UR aircraft for a missile to reak havoc on a nation.

    As to requiring all carry vaccination cards/passports. What makes anyone think that could be the answer if we can’t even require an ID to be able to vote? This is all Progressive Liberal Socialist fear propaganda to attempt to control every facet of the citizenry.

    And on a more personal note. How dare anyone, be it a person or corporate entity presume they have the legal or moral right to question me or attempt stop me from using any method of transport convince while thousands of people cross our borders and are transported via aircraft, train and bus to the interior all without a worry about whether they are COVID-19 negative or positive or whether they have been vaccinated or not.

  10. The best argument for eliminating masks on airplanes is that there are 100% completely ineffective against Covid.

    Another good reason is that Covid doesn’t seem to spread much on airplanes (likely due to air flow).

    We all know this. The science is overwhelming. The problem is that prominent scientists and officials went “all in” on masks for various reasons — even those who knew they likely wouldn’t work (including Fauci). But the truth is emerging, helped by the fact that Covid is receding so people are less fearful. Mask requirements will therefore be gone fairly soon.

  11. Seems like a bunch of B.S. He can drive from Orlando to Ft. Lauderdale quicker than flying. Takes 2.5 hours to drive. If flying, you need to drive to the airport and be there at least 1 to 1.5 hours before the flight. Than the flight itself is 45 minutes. Than get your luggage and then drive or take a taxi to your destination. He obviously is full of it.

    @CHOPSTICKS- Covid spreads very well on airplanes. There have been hundreds of cases where they experienced multiple numbers of cases on individual flights. So not just 1 or 2 per flight but 10-15 per flight. So much for your theory.

  12. @DW: you are immediately wrong at “ If U R so frightened of this virus, which if U contract it U have a 99.7% chance of overcoming it.” since the death rate varies by age so you can’t put everyone into your “U”. The last paragraph I gave up trying to translate it. WTF, you go to school in Texas or Florida?

  13. @Ray

    Your last sentence is written out of ignorance. Public universities in Texas and Florida outrank most Blue State public universities. California has the best public university system, but they seemed determined to wreck it.

    @Derek

    “Pro se (being your own lawyer) is a recipe to lose. That’s like being your own doctor without going to medical school and residency.”

    Just because the system demands you have a lawyer doesn’t mean that you should have to. This case is obviously way too complex for just about anyone to file on their own, even most lawyers couldn’t do it, but the ability to pay for an expensive lawyer shouldn’t be a barrier to justice for the average citizen. There are small claims courts for civil disputes, but I, as a local citizen, should be able to go into a court, representing myself, and get a judge to get my local government to do their jobs. For example, I requested documents from my local school district under my state’s FOIA law. They didn’t outright refuse, but they told me it would be $4000 to produce 300 key pages. Should I have to hire a lawyer to get them to produce, at minimal cost, what the law clearly says they should? They know I’m not going to hire a lawyer to force them to do so, it would cost more that $4000, so basically they’re ignoring the law and daring me to sue. Your average citizen shouldn’t have to do that.

  14. @C_M: you are the ignorant F here, who said he went to college? I was talking elementary school so GFY.

  15. @Ray

    Got it. So clearly, you went to a university just outside of Boston with that sort of contempt for your inferiors. Or maybe you were slumming it in New Haven? Did grandfather have his name on a library or two? Bet you like to complain about how all those Asians don’t even know which fork to use and they keep ruining the curve.

  16. @C_M: nope, just a poor kid from Calif that worked his way through the system. But my education isn’t at question. BTW you can check the stats on your FL and TX education system here:

    https://smartasset.com/student-loans/top-states-higher-education

    You have to go a ways before finding those two states you are so proud to support.

    While we are in the assumption game, you must be a blue blood that daddy paid off his Congressman to keep you enrolled.

  17. It has long been said that one who represents himself as an attorney has an ass for a client. Sure does apply here.

  18. For everyone calling the apparent lawsuit filer an idiot, or demeaning him as selfish I have a simple question: have you actually read Dr, Fauci’s emails released under a Freedom of Information Act request and published by Buzzfeed and the New York Times? They’re frightening.

    Fauci basically admits that masks are next to useless since their mesh or thread count is too course to stop the an airborne virus like Covid 19 from going through. In other words, he knew they were all but useless and unnecessary around March of 2020. Yet, he persists with the mask wearing mandates. The nation’s top disease control specialist basically said that they weren’t needed. If Fauci says they aren’t needed, then why do we need to wear one? I keep hearing from Covid alarmists that we should follow the science. Fine. The science said over a year ago that masks mostly didn’t work against Covid 19. Let’s follow Fauci’s own words.

    Seriously, read the emails. They’re damning, and a major reason that even Democrats in Congress are reportedly privately preparing for Fauci’s exit. The tell-all book he was writing about his “leadership” during the crisis was pulled from Amazon”s preorder list right after the emails dropped. One must wonder why?

    To quote Fauci:

    …”Masks are really for infected people to prevent them from spreading infection to people who are not infected rather than protecting uninfected people from acquiring infection.

    … “The typical mask you buy in the drug store is not really effective in keeping out virus, which is small enough to pass through material. It might, however, provide some slight benefit in keep out gross droplets if someone coughs or sneezes on you.”

    That pretty much says it all. That being the case, the idea of not being forced to wear a mask becomes more compelling. And, those quotes were not taken out of context. Again, read the emails. There are several where Fauci essentially repeats the same statements to different people via different emails. Its a pretty massive email and document dump so you really need to time to read through it all, but the information is there if you take a few hours to really read.

  19. In case you missed it, on June 2, Senator Rick Scott introduced the Freedom to Fly Act, which protects the privacy of personal health information and would prohibit the Transportation Security Administration (TSA) from requiring Americans to show proof of vaccination or produce a vaccine passport for domestic flights.

    The next logical step for Senator Scott’s proposed Act, is to end all mandatory face masks on commercial travel. Lucas Wall might have more, and faster, success getting all those who support him, in principle, to bombard Senator Scott’s office with email requesting the immediate end to required face masks on all commercial flights as well as all forms of public transportation.

  20. I agree that by the Mid-term elections (think prior to in Oct)the Democrat party in charge will have us all back to normal–sans masks!!LOLOLOL

  21. The US government insanely does not honor documents provided by the US government. The US should honor the US CDC vaccination card and not require testing upon entry to the US of anyone holding a CDC vax card.

    The entire European Union, Ecuador, Guatemala and other countries honor the US CDC Covid vax card. They must think we are brain dead for not honoring our own federal government documents.

  22. I agree that the way 42 USC 264 is written either doesn’t allow it to be used to issue a mask mandate or eviction moratorium, or the statute would be too broad of a delegation of authority.
    I don’t understand why there’s so much arguing in the comments when this is about the legality of the order.

  23. Why has there been a surge in incidence of egocentric, spiteful, defiant people bringing frivolous lawsuits? Oh, Florida-man – duh. But then there’s the nurse in Texas that sued because she viewed the requirement – at the height of the pandemic – for hospital staff to be vaccinated as akin to experimentation on Jews during the Holocaust. Well, at least to her credit, she doesn’t deny that the Holocaust or 9-11 attacks occurred. Just get over your narcissistic self and wear a d… mask when indoors in crowded settings in red (sparsely vaccinated) states!

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