Conflicting mask mandate rulings ‘slightly helpful’ to CDC’s appeal

A federal judge in Florida recently ruled that the Biden administration’s transportation mask mandate is lawful — less than two weeks after another federal judge from the same state had struck it down as government overreach.

But officials at the Centers for Disease Control and Prevention haven’t rushed to reinstate the mask order, and instead are slowly appealing their case at the U.S. Circuit Court of Appeals for the 11th Circuit.

Critics of the mandate have questioned why the administration hasn’t rushed to the appellate court to restore its order on an emergency basis, which was set to expire this week before U.S. District Judge Kathryn Kimball Mizelle lifted the requirement.

“It doesn’t appear the Biden administration wants to bring back that mask mandate,” said Curt Levey, president of the Committee for Justice, a nonprofit constitutional advocacy group. “It is in no hurry.”

Judge Mizelle, a Trump appointee, nixed the mask mandate on April 18, saying the CDC overstepped its authority and did not justify the mask requirement for public transportation systems. 

She said the agency ran afoul of federal law because it did not adhere to the Administrative Procedure Act when issuing the mask order.

“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,” Judge Mizelle wrote in the 59-page order.

The lawsuit was brought by the Health Freedom Defense Fund and two travelers with anxiety who protested wearing the masks.

The federal government had announced an extension of the mask mandate for transportation, which included planes, trains, buses and subways, because of an uptick in COVID-19 cases. The mandate was first issued on Feb. 3, 2021, roughly two weeks after President Biden took office.

The masking requirement provided exceptions for children younger than 2 and for people with certain disabilities. It was set to expire Tuesday, before Judge Mizelle vacated it.

But another judge — also from the Middle District of Florida — issued a ruling Friday saying the mask mandate is lawful. That challenge was brought by a traveler opposing the mask and testing requirements.

U.S. District Judge Paul Byron, an Obama appointee, in his April 29 order said the CDC had “good cause” to issue its mask mandate under the Administrative Procedure Act on an emergency basis.

“The highly contagious character and the devastating effects of the SARS-CoV-1 virus demanded expeditious action by the CDC,” Judge Byron wrote. “Frankly, if battling this elusive enemy does not rise to the level of urgency that qualifies for deviation from normal rule making procedures under the good cause exception, the Court is not sure what does.”

Judge Byron’s ruling didn’t reinstate the mask requirement, but Mr. Levey said it is “slightly helpful” to the administration as it appeals Judge Mizelle’s ruling before the 11th Circuit.

“It does not have a lot of legal authority, but maybe moral authority,” Mr. Levey said.

The Justice Department declined to comment.

The administration’s appeal is pending at the 11th Circuit, and a briefing isn’t ordered until later this month — well after the masking requirement was set to expire Tuesday. The 11th Circuit has a majority of GOP-appointed judges.

The rate of COVID-19 cases has risen since Judge Mizelle’s order lifting the mask mandate, according to The New York Times’ tracker. 

On April 18, when she issued her ruling, the seven-day average showed 38,612 cases. Roughly two weeks later, that number is at 63,224.

• Tom Howell Jr. contributed to this report.

For more information, visit The Washington Times COVID-19 resource page.