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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