September 29, 2022

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Judge voids national mask mandate for airplanes, other transportation settings

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Federal officials stopped enforcement of a federal mask mandate Monday in transportation settings after a federal judge struck down the requirement, raising public health concerns and prompting several airlines to announce that face coverings are optional on domestic flights.

U.S. District Judge Kathryn Kimball Mizelle of the Middle District of Florida said the mandate exceeds the statutory authority of the Centers for Disease Control and Prevention. Federal officials last week had extended the mask mandate for commercial flights and in other settings, including on buses, ferries and subways, until at least May 3.

The transportation mandate has been among the highest-profile mask requirements in the country, persisting after most school districts and other jurisdictions have allowed similar mandates to expire. Conflicts over masks have been particularly acute on airplanes, where some flight attendants have been physically attacked and verbally abused for enforcing mask rules.

On April 18, a federal judge in Florida struck down the federal mask requirement on airplanes, trains, buses and other public transportation. (Video: Reuters)

The decision comes as coronavirus cases are again climbing in the Northeast as the BA.2 omicron subvariant, which is more contagious than its predecessor, becomes the predominant strain in the United States. Health officials say it’s not clear whether the rise is the start of a larger surge.

The CDC’s masking order has been enforced through directives issued by the Transportation Security Administration. A Biden administration official, who shared guidance with reporters on the condition of anonymity, said Monday evening that the court decision means the CDC’s order is “not in effect at this time. Therefore, the TSA will not enforce its Security Directives” requiring the face coverings.

Airlines began announcing they were dropping the requirement, with some caveats for international destinations. In a statement, United Airlines said that “effective immediately, masks are no longer required at United on domestic flights, select international flights (dependent upon the arrival country’s mask requirements) or at U.S. airports.”

In the Washington region, Metro announced late Monday that masks are optional on its rail and bus systems for customers and Metro employees.

Mask mandate extended for air travel and public transit through May 3

In her decision Monday, Mizelle, who was appointed by President Donald Trump and clerked for Supreme Court Justice Clarence Thomas, said the CDC had relied on a 1944 law, the Public Health Service Act, to impose the mandate. But the government’s argument that it put the mask requirement in place for the purpose of “sanitation” falls short, Mizelle argued.

“Wearing a mask cleans nothing. At most, it traps virus droplets. But it neither ‘sanitizes’ the person wearing the mask nor ‘sanitizes’ the conveyance,” Mizelle wrote.

N95 masks are now the preferred face covering to protect yourself and others from the coronavirus. Here is what you need to know. (Video: The Washington Post)

The case was brought on behalf of a legal group known as Health Freedom Defense Fund and airline passengers, including Ana Daza, who said she has anxiety aggravated by wearing a mask.

Mizelle found for the plaintiffs on three key issues, ruling that the CDC had exceeded its legal authority, that it had improperly avoided notice and comment procedures, and that its mandate was “arbitrary and capricious.” In her ruling, Mizelle argued that the mask mandate wrongly curtailed passengers’ freedom of movement.

“Anyone who refuses to comply with the condition of mask wearing is — in a sense — detained or partially quarantined by exclusion” from their means of transportation, she wrote.

Industry trade group Airlines for America said U.S. airlines “have been strong advocates for eliminating pandemic-era policies and are encouraged by the lifting of the federal transportation mask mandate.” The group said high U.S. immunity levels and widespread vaccine accessibility, plus hospital grade cabin-air filtration, should give travelers confidence.

The CDC said Monday it doesn’t comment on pending litigation.

In a legal filing last month defending the mandate, Justice Department lawyers said the plaintiffs in this case had relied on an “unduly narrow and grammatically incorrect” interpretation of the public health law. They noted that Congress had authorized health officials to make and enforce regulations “necessary to prevent the introduction, transmission, or spread of communicable diseases” from outside the country, or within it, using “sanitation” and “other measures.” They also noted that the Supreme Court, in a case last year, said those measures relate directly to preventing the interstate spread of disease “by identifying, isolating, and destroying the disease itself.”

Masking requirements have generally been made after considering emerging epidemiology on restricting the spread of the virus, and not on an “arbitrary or capricious” basis, Jeanne Marrazzo, director of the Division of Infectious Diseases at the University of Alabama at Birmingham, said in an email while quoting the words Mizelle used in her ruling.

“I believe the CDC was simply erring on the side of caution given the extraordinary mixing opportunities afforded by airports and mingling that occurs there,” she said. “On the plane, while it’s flying, as I have said before, air exchange is good, but we still don’t know HOW good it is with this much more contagious new variant.”

The Biden administration announced the mandate quickly after President Biden came into office, following the Trump administration’s resistance. Airline policies at the time had required that masks be worn.

“This is obviously a disappointing decision,” White House press secretary Jen Psaki said Monday, adding that the CDC and White House continue to recommend wearing masks in public transportation settings.

She said the Department of Homeland Security — which includes the TSA — was reviewing the decision. The Justice Department will “make any determinations about litigation,” Psaki said. A Justice Department spokeswoman said the agency is reviewing the decision and declined to comment further.

Airline CEOs call for end to federal mask mandate in letter to Biden

Sara Nelson, president of the Association of Flight Attendants-CWA, which represents nearly 50,000 flight attendants at 17 airlines, said many legal uncertainties remained on Monday. In a statement, she urged “calm and consistency in the airports and on planes.”

“The last thing we need for workers on the frontlines or passengers traveling today is confusion and chaos,” she said.

Nelson urged travelers to check with airlines for their masking requirements. She said clear communication would help flight attendants and other front-line workers avoid problems that could stem from the confusion over changing rules.

“In aviation operations, it is impossible to simply flip a switch from one minute to the next. It takes a minimum of 24-48 hours to implement new procedures and communicate this throughout the entire network,” she said.

A March poll by the health group KFF found Americans were roughly divided on whether the federal government should extend the mask requirement for airplanes, trains and other public transportation (48 percent) or let it expire (51 percent). More than 7 in 10 Democrats said it should be extended, while 76 percent of Republicans supported letting it expire.

Fliers on Monday had mixed reactions.

Stephanie Dexter, her husband, Brad, and their daughter, Eva, wore surgical masks and cone-shaped K95 masks as they walked out of Reagan National Airport on Monday afternoon. They had flown Eva from Omaha to D.C. for a spring vacation, where they planned to visit monuments and museums. The mask mandate did not weigh heavily on their minds.

“We were fine wearing them today,” said Stephanie Dexter. “I’m an asthmatic. I’m fine not getting sick.”

Phil Delin, 67, of Prince George’s County, Md., said he had heard “a sprinkle” about the judge’s ruling before he arrived at the airport with his golf clubs for a trip to Las Vegas.

“I still don’t understand a Florida judge reversing a federal mandate when the mandate is backed by as much science as it is,” he said. He had no second thoughts about wearing a mask aboard his Monday night flight.

Some passengers cheered as JetBlue Airways staff announced that the transportation mask mandate had been struck down by a federal judge in Florida on April 18. (Video: Storyful)

Simon Rojas, 29, who had flown back into Reagan National from Las Vegas in shorts, stood outside while waiting for his ride as a chilly wind forced others waiting for a ride back into the terminal. He said he was pleased the judge ruled against the mandate, saying it made no sense to wear a mask on a plane when people are so close and are lifting masks to drink and eat.

“Just take them off,” Rojas, of Laurel, Md., said of mask regulations. “In the news, they’ve been saying the death rate is going down, right? Also, I think if you’re in such a closed space like a plane, that mask isn’t doing anything.”

21 states sue Biden administration to end transportation mask mandate

The Biden administration has faced growing pressure to lift the mask requirement for air travel and public transit. Earlier this month, Republican leaders on the House and Senate transportation committees reiterated their call for Biden to “rescind or decline to extend the mask mandate.”

In late March, 21 mostly Republican-led states sued the government, seeking to immediately end the mask requirement.

Last month, executives from 10 airlines, including American, United and Delta, sent a letter to Biden urging him to end pandemic-related travel policies, including the mask mandate.

Airlines, airports hope a spring travel boom extends into summer

The ruling comes as airlines are seeing a surge in spring travel — one the industry anticipates will extend through the summer and beyond. Transportation Security Administration officials have reported an increase in the number of people screened at airport checkpoints, with many days routinely topping the 2 million mark, as they had before the pandemic.

Scott Clement and Matt Zapotosky contributed to this report.