Four groups of airline workers, disabled passengers, industrial hygiene experts, and dual citizens filed friend-of-the-court briefs Monday night asking the U.S. Court of Appeals for the 11th Circuit to reverse a Florida federal judge’s April 29 decision declaring legal the Federal Transportation Mask Mandate and International Traveler Testing Requirement.
The dual citizens argued against the legality of the testing requirement while the other three groups of amicus curiae took issue with the mask mandate.
“While passengers only have to endure forced masking when traveling on public transportation, we are expected to obstruct our oxygen intake nearly all the time while at work. This endangers our health and imperils aviation safety,” wrote 313 airline workers from 35 states employed by 16 air carriers. “Tens of thousands of our colleagues were laid off or placed on long-term unpaid leave due to the economic devastation caused by the ITTR, FTMM, and other government travel restrictions related to COVID-19 that did nothing to stop the virus’ spread.”
The briefs came eight days after appellant Lucas Wall of Washington, D.C., filed his opening arguments June 27, teeing up for review by the 11th Circuit conflicting decisions by judges in Florida regarding the bounds of the Centers for Disease Control & Prevention’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.
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.
“We speak to the Court on behalf of the millions of disabled passengers who were banned from using public transportation in America from February 2021 to April 2022 due to the FTMM – likely the greatest government-driven exclusion of the disabled from public services in this nation’s history,” wrote 16 passengers from nine states “whose disabling medical conditions precluding us from safely wearing a mask resulted in us being blocked from flying or using ground public transportation because of the Federal Transportation Mask Mandate.”
Wall presents 11 questions of law in his appeal, including three that are also an issue in the government’s appeal of Mizelle’s judgment. In addition to CDC, 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.
“We participate in this case to ensure the Court has a true understanding of the science: Face masks do not stop the spread of a respiratory virus but harm human health in many ways,” wrote industrial hygiene experts Tyson Gabriel and David Howard of Arizona and Stephen Petty of Florida. The federal government has “been misleading the public about the efficacy of face coverings as a tool to reduce transmission of coronavirus.”
Uri and Yvonne Marcus of California, dual citizens of the United States and Israel, and Kleanthis Andreadakis of Tennessee, dual citizen of America and Greece, advised the Court of Appeals that the testing requirement should be struck down. CDC voluntarily repealed it June 12, but the agency said it will reimpose it any time it deems necessary.
“As dual citizens who frequently travel between the United States and our other nation of citizenship, we have an especially strong interest in ensuring the Testing Requirement is invalidated and can never come back. There is no statutory authority for CDC/HHS to require virus testing at foreign airports well outside U.S. jurisdiction,” the Marcuses and Andreadakis told the court. “The district court erred in ruling the ITTR is legal and constitutional. This Court should reverse that judgment, declare the ITTR ultra vires, and permanently enjoin CDC and [the Department of Health & Human Services] from ever reissuing it unless Congress enacts specific authorization.”
Read more and download case documents at www.lucas.travel.
