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Government Files Perfunctory Appeal Brief In Mask Mandate Case

Government Files Perfunctory Appeal Brief In Mask Mandate Case

Does the Biden administration even really want to win this case, and force travelers back behind the mask, prior to the 2022 midterms? That could explain why they are slow-walking the appeal.

On April 18, 2022, U.S. District Court Judge Kathryn Kimball Mizelle [Featured Image above] threw out the CDC’s transportation mask mandate.

Judge Mizell’s Order concluded:

The Court concludes that the Mask Mandate exceeds the CDC’s statutory authority and violates the procedures required for agency rulemaking under the APA. Accordingly, the Court vacates the Mandate and remands it to the CDC.

* * *

“It is indisputable that the public has a strong interest in combating the spread of [COVID-19].” Ala. Ass’n of Realtors, 141 S. Ct. at 2490. In pursuit 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,” id., the Court declares unlawful and vacates the Mask Mandate.

The reaction was in part predictable, in part not. The predictable part was the that Democrats and left wing activists launched a smear campaign against the Trum-appointed Judge. The less predictable part was that the Biden administration did not seek immediate relief in the 11th Circuit appeals court. We covered the juxtaposition and basis for the Judge’s decision in Smear Campaign Mounts Against Trump-Appointed Judge Who Struck Down CDC Mask Mandate, But DOJ Will Not Seek Emergency Stay

Eventually, slowly, at the CDC’s urging, the administration filed a Notice of Appeal. Still, there was no sense of urgency.  There is no indication on the docket that the government has sought expedited consideration of the case.

According to the court electronic docket, May 31, 2022, was the deadline for the government to file its brief. The government waited to the very last day, and files an Opening Brief.

You can read it at the link. It’s perfunctory. It just has the feel of being filler, something draft because it had to be done, like a term paper submitted on the very last day because it was a course requirement and a certain number of pages needed to be filled.

Here is the Introduction:

The Centers for Disease Control and Prevention (CDC) order at issue here generally requires people to wear masks when traveling on public transportation (such as airplanes, buses, and trains) and at transportation hubs to prevent the spread of COVID-19. Requirement for Persons To Wear Masks While on Conveyances and at Transportation Hubs, 86 Fed. Reg. 8025, 8026 (Feb. 3, 2021). This order falls easily within the CDC’s statutory authority.

As the Supreme Court recently explained, Section 361(a) of the Public Health Service Act authorizes the CDC to require measures that “directly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself.” Alabama Ass’n of Realtors v. Department of Health & Human Servs., 141 S. Ct. 2485, 2488 (2021) (per curiam). That is precisely what the transportation mask order does: masks isolate the disease itself by trapping viral particles exhaled by infected travelers and preventing non-infected travelers from inhaling viral particles. The CDC’s statutory authority explicitly encompasses “sanitation” measures and “other” similar measures and—as the district court recognized—a mask is a conventional sanitation measure. Dkt. No. 53, at 12-13. The plain text of Section 361(a) and longstanding agency practice foreclose the district court’s ruling that Section 361(a) does not allow “preventative” measures, id. at 15, and its ruling that measures authorized by Section 361(a) must be directed toward property rather than toward individuals, id. at 20-25.

The district court’s additional rulings that the CDC order is arbitrary and capricious and procedurally invalid echo the claims that the Supreme Court rejected in Biden v. Missouri, 142 S. Ct. 647 (2022) (per curiam), and should be reversed for the same reasons. There, the Supreme Court emphasized that “the role of courts in reviewing arbitrary and capricious challenges is to simply ensure that the agency has acted within a zone of reasonableness.” Id. at 654 (alteration and quotation marks omitted). The CDC order plainly meets that standard. For example, although the districtcourt suggested that the CDC should have considered “social distancing” or “frequent handwashing” instead of masks, Dkt. No. 53, at 48 (quoting 86 Fed. Reg. at 8026), the CDC explained that “[s]ocial distancing may be difficult if not impossible” under the crowded conditions of air travel and other public transportation, 86 Fed. Reg. at 8029, and the CDC’s findings showed that handwashing alone does not prevent the spread of an airborne pathogen. As in Biden v. Missouri, the agency’s findings also demonstrated good cause to make the order effective without delay, rather than allow preventable infections and deaths during a period of notice and comment.

The district court compounded its errors by issuing nationwide relief. Another judge in the same district recently upheld the CDC’s transportation mask order. See Wall v. CDC, No. 21-975, 2022 WL 1619516 (M.D. Fla. Apr. 29, 2022), appeal pending, No. 22-11532 (11th Cir.). There was no sound reason for the judge in this case to preempt that ruling or the similar cases that are pending within other circuits.1 Bedrock principles of standing, equity, comity, and judicial restraint should have led the district court to confine any relief to the five individuals who identified themselves in this case.

Grade: B. No increase for class participation.

Does the Biden administration even really want to win this case, and force travelers back behind the mask, prior to the 2022 midterms? That could explain why they are slow-walking the appeal.


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Sickening psychopathic control freaks are infesting our government. It’s scarier and more deadly than any physical disease.

I’m hopeful it also means the administration is reeling from the people’s resistance and playing wack-a-mole for the last year and a half.

rabid wombat | June 1, 2022 at 10:01 pm

I read elsewhere…more about maintaining the power to mask, rather than the specific mask mandate…makes some sense…

Joe and the gang are about to get flattened via midterm elections.

    The Gentle Grizzly in reply to scooterjay. | June 2, 2022 at 6:37 am

    May. There are still a lot of voting machines in use. Same with mail-in balllots, provisional ballots, and tyrants in black dresses overriding voting laws.

      Lucifer Morningstar in reply to The Gentle Grizzly. | June 2, 2022 at 10:14 am

      And this kind of thing doesn’t make me feel any more confident in those electronic voting machines:

      Cyber agency: Voting software vulnerable in some states

      So if state election officials are forced to update those Dominion Voting Machines prior to the upcoming 2022 midterm election to mitigate any vulnerabilities will the updated voting machines have to undergo another round of state verification and certification or will these “updates” simply be applied to all the voting machines without regard to what they actually do.

      And never, NEVER, discount the ability and proclivity for Congressional Republicans & candidates to snatch defeat from the jaws of victory, fold like cheap suits, etc.

    Frank Hammond in reply to scooterjay. | June 2, 2022 at 8:30 pm

    GOP turnout for the 2022 Primaries has been dismal – 20% in Ohio – 14% in Kentucky and 11% in Indiana – Many conservatives stayed home because of 2020. November depends on who shows up to vote.

Vaccine effectiveness

It should be noted that since early February 2022 (now 5 months) , the per capita infection rates, per capita hospitalization rates and the per capita death rates of the vaccinated, vaxed and boosted, and the unvaccinated are virtually the same.

in other words in the early days, vaccination provided reasonably strong benefit for 4-6 months, that is no longer the case.

How about simply requiring the govt to demonstrate the efficacy of each type of mask, % of each type in use and whether the average member of the public is using, storing, maintaining and disposing of these masks. The n make them walk through the cost benefit analysis.

The CDC and govts don’t get to simply say ‘public heath emergency’ as if it’s a magical incantation that grants them power to enact measures that don’t in fact provide a public health benefit. They can’t require people to perform 50 squat thrusts before boarding a public conveyance as an example. Though given the obesity level many would benefit from more exercise.

The pre Rona data on masks and the consensus view was masks have zero benefit outside a clinical setting. The post Rona data shows the same. If there is zero or practically zero benefit to public heath then that action can’t be mandatory.

    number crunch in reply to CommoChief. | June 2, 2022 at 10:09 am

    From personal experience in Federal Government, I doubt that the CDC in general and Fauci in particular could do such an analysis. I read CDC papers referenced on their website to justify their policies; they were at best described as cherry picked opinion pieces. The CDC’s ability is laughable as is their credibility.

      Joe-dallas in reply to number crunch. | June 2, 2022 at 10:22 am

      I have to concur with your comment – a significant portion of covid policies / studies posted on the CDC lack scientific credibility

      One in particular was the Kentucky study showing 3x increased chance of reinfection if not vaxed vs vaxed. That study had A) invalid denominator, B) bogus control and C) a basic math error on the computation of the probability. I emailed the CDC, and the principal author with to response, I then emailed the principal author via linkedin and did not get a response.

    Tionico in reply to CommoChief. | June 2, 2022 at 2:09 pm

    My thought exactly. The average and range of size of the viral particles is well known. So are the e=sizes of the various types of openings and passages in the different types of masks. Simple masths will destroy their ohoney argument stated in this brief of how the masks are necessary.. “they trap viral particles and prevent them from being exhaled or inhaled, thus stopping the transmission of the disease.”. I’ve also seen pieces on issues like fitment, freauency of changing, mandated rest periiods/new masks, etc, NONE of which are known or followed “out there”.
    I have used N95 masks for years to REDUCE the amount of dust from paint, body filler, metal, wood, soot, ash, sandblasting, etc as I go about my work duties. Half an hour with the N 95 mask whilst grinding old paint and body filler prepping for metal work and respray, I have to stop, take the thing off, rest, and am always amazed at the amount of contaminated snot, black/green/red dust all overthe covered part of y face, I can feel the grit in my mouth which is millions of times bigger than the supid virus.. NO WAY are even “the best” masks capable of stoping that organism. Not hard at all to prove.
    They are blowing smoke.. speaking of which, cigarette smoke is known to easil pass through the much-vaunted N 95’s and those particles are thousands of times larger than any viralparticle that might be airborne.

Yet the manufacturers of masks clearly state their product does not prevent the transmission of viruses.

The law is an amazing thing: it can simultaneously protect one party from lawsuits when their product is mandated by law on the basis it does what that party states it can’t do and sanctions another party for endangering the public health.

DelightLaw1 | June 2, 2022 at 9:56 am

It seems the Govt, while perhaps not all that keen to reinstate the mask mandate right at this time (hence the slow walk), but most definitely is not gonna let one of their totalitarian rules get whacked, as they FOR SURE are gonna want to bring back all that misery at their very first opportunity! They had a good thing going with the lockdowns and myriad orders and mandates. They’re not about to let that get taken from them if they can help it.
What’s sad is, even in the blue-paranoid state I love in the maskless FINALLY outnumber the masked, though there are still plenty of diehards around. So-called sanity has been gradually creeping back in, but it wouldn’t take much to ignite the “craziness” once again.

    CommoChief in reply to DelightLaw1. | June 2, 2022 at 11:47 am

    One solution is to enforce State anti kkk laws which in many States prohibit masks…..

    Eventually there will be a pendulum swing hard in the opposite direction. Instead of mask karens hectoring and in some cases assaulting those who choose not to mask it will be the reverse. That day is coming and the howls of outrage will be deafening. The longer and harder the pendulum is pushed in one direction the harder the swing in the opposite direction.

      Tionico in reply to CommoChief. | June 2, 2022 at 2:14 pm

      I do not see any signficant backlash against those who for whatever reason, will continue to use the mug nappies. I look t them and shake my head. Silly people, you trade KNOWN adverse effects resulting from WEARING the dangerous things, and do NOTHING to prevent the spread of disease either way, inbound or outbound.

      I only care about those knuckleheads who insist on wielding power over tohers, forcing us to slap those horrid things across all our faces. I simpy refused never did. I did not care what anyone else thought.

number crunch | June 2, 2022 at 10:05 am

Masking was a simple political Kabuki dance to calm a panicked population without any basis in fact. I still see people masked up at the grocery stores and out in public with very low reported infections. People are stupid and this administration reflects that fact.

Aside from planned parent/hood in several Democrat districts; denial of early, effective, safe, affordable treatments; and the masked contagion amplifier (e.g. petri dish, collector); Covid-19, 20, 21, and 22 did not cause excess deaths, but Covax-21 and 22 did in progress with a forward-looking outlook. We’ll see if the cargo cult is equal and inclusive through seasonal pathogenic progressions.

Now let’s get rid of the requirement for testing before flying to the U.S.

This is the kind of brief you file when you think victory is fait accompli.

It’s unclear what the backstory is here. Either the administration assumes victory is a slam-dunk on the merits, or the appeal is nothing more than a place-holder attempt to maintain control over—and instill fear into— the populace. I am in the midst of reading RFK Jr’s “The Real Anthony Fauci”, which leads me to conclude that this latter is the explanation. for the appeal. I recommend this book BTW, since it reveals even more of the dire shenanigans than most of us were ever aware of these past 2+ years. And I an NOT a conspiracy theorist.

In the unlikely event that the administration wins their appeal, it would be a total disaster for the dems. They are looking at 30+ House seats lost, reinstating the mask mandate could make it 60 or 70.

    The_Mew_Cat in reply to jim_m. | June 2, 2022 at 6:15 pm

    They probably don’t want the decision to come down until the election is over. That is why they are slow walking it.

Bruce Hayden | June 2, 2022 at 2:05 pm

It was sloppy. I think intentionally so. They almost totally skipped over the APA prong of the rejection, likely because they had no answer to why, two years in, they hadn’t even begun the required Notice and Comment process. That was one of the judge’s points – they could have, and probably should have, issued a temporary, emergency order, then started the APA Notice and Comment process. Instead, they just declared it to be an emergency, and issued a permanent order.

Compounding that – her vacatur of the regulation was based on her ADA rejection. It isn’t equitable relief, but rather essentially a determination that the regulation is legally invalid. She didn’t issue a nationwide injunction (which the government spent several pages arguing against) at all, but just voided the regulation. All of the blather about nationwide injunctions by District Courts was completely off point. She rejected the regulation, as a matter of law, and not equity, and all of the rambling about equitable rules is completely irrelevant.

The maddening thing was their insistence that masking helps prevent transmission of COVID-19. It’s all BS, even if it is the basis of the judicial record. What they obviously were referencing were studies, using models, that showed that surgical masks, and better, could limit the spread of droplets containing the virus. But that implicitly assumes that those infected and traveling were coughing, and spread it through the vapor spread by coughing. But that isn’t how it mostly spreads – rather, it mostly spreads, in public, through aerosols (single virons exhaled) from presymptomatic or asymptomatic carriers. Everywhere you go, you are told don’t go there if you are coughing, running a temperature, etc – essentially when you are symptomatic. The various alphabet public health agencies have not, yet, show a single valid study showing that masks have actually reduced transmission one little bit in this country, because they don’t. Instead, they use models and flawed assumptions (just like they do with Climate Change).

    Tionico in reply to Bruce Hayden. | June 2, 2022 at 2:22 pm

    Don’t know how much virology you’ve got under your belt, ir immunology or epidemiology, but you state some patently untruths.

    IF a given subject is carrying a viral load sufficient to transmit an airborne viral disease, he WILL be symptomatic. The mechainsm by which this virus infects makes this solid fact.
    IF a given subject does not have symptoms, the rival oad carried by that subject is too low to enable transmission, AND that stage of the disease is sich that the lngs are not releasing viral particles into the subject’s exhalant.

    No symptoms no spread, No spread no symptoms. Simple.

    So let’s have done with this asymptomatic spread fable. Mail ti back to Phautchee. I’m sure hes getting little enough fan ail these days, he neeeds something to ponder……. besides all the millions he’s made so far off this scam.

      Bruce Hayden in reply to Tionico. | June 2, 2022 at 4:36 pm

      So, you are claiming that there wasn’t any presymptomatic or asymptomatic spread of the virus through aerosols, instead of droplets. That should be easy for you to prove. Just cite the studies showing that. Also, some studies showing that masks, including the sorts of cloth masks, neck gaiters, neckerchiefs, etc, allowed by the TSA, etc actually prevented (as opposed to should have prevented) the spread of the virus in public situations.

      I don’t think that you are going to find them, simply because there has been way too much asymptomatic and presymptomatic spread of the virus. But, fire away. I can be convinced to the contrary.

      The_Mew_Cat in reply to Tionico. | June 2, 2022 at 6:14 pm

      Symptoms span a wide range. Someone could easily be infected with high viral loads and not notice any symptoms. Doesn’t mean there aren’t any symptoms, but too slight to notice, particularly if the person has allergies or other regular conditions.