Takeaways of Summary Judgment Decision of the Mask Mandate

After nearly 15 months of an enforced Mask Mandate, the Mandate was declared illegal. Why?

• February 2021, the US Centers for Disease Control and Prevention (CDC) issued a public health order requiring travelers to wear masks on airplanes and public transit.
• July 2021, several government officials, the United States, and the CDC were sued “seeking a declaratory judgment that the Mask Mandate was unlawful and to have it set aside for violating the Administrative Procedure Act (APA)”.
• January 2022, Defendants, “the government” moved for Summary Judgment.
• February 2022, Plaintiffs filed a cross-motion for Summary Judgment.
• April 18, 2022, The Mask Mandate was reversed by U.S. District Judge Kathryn Mizelle, concluding the Mandate “exceeded CDC’s statutory authority and violated procedures required for agency rulemaking under the APA”, effectively voiding the masking requirement.

This blog post will review the details and takeaways of the 59-page summary judgment decision. Everyone is encouraged to read this decision in its entirety.

History of the CDC National Mask Mandate

President Biden issued an Executive Order one day after taking office, requiring executive officials to wear masks in transit hubs and on various modes of transportation. Two weeks later, the CDC followed and imposed the Mask Mandate, requiring a person to wear a mask while traveling, boarding and disembarking on any “aircraft, train, road vehicle, vessel or other means of transport” and any transit hubs. The following exceptions and exclusions to the Mandate were allowed:

• Children under 2 years old and persons with disability that prevented them from safely wearing a mask
• Personal, non-commercial vehicles and commercial vehicles operated by one person
• Persons wearing oxygen masks, actively eating, drinking or taking medication, communicating with someone who is hearing impaired, or if a person felt winded

As flight attendants had announced on flights that the Mandate was required by “federal law,” the plaintiffs sought legal counsel in which they learned there was actually no “federal law” for the Mandate leading to the lawsuit.

Who Were the Parties Involved in the Lawsuit?

• Health Freedom Defense Fund (HFDF): A non-profit organization that “opposes laws and regulations that force individuals to submit to the administration of medical products, procedures, and devices against their will.”
• Plaintiffs: Two women who both suffered from anxiety and/or panic attacks exacerbated or provoked by mask wearing. Even with a medical exemption for anxiety, the government did not recognize this as a basis for an exemption, either prohibiting or limiting travel for the two women.

The Mask Mandate was challenged by the two individuals and the HFDF who alleged the CDC exceeded authority and failed to follow regulatory procedures set forth by the federal Administrative Procedure Act (APA). The APA dictates the necessary procedures the federal government must follow when implementing agency policies.

Basis of the Mandate in the Public Health Services Act

The CDC stated they had authority to impose the Mask Mandate through the Public Health Services Act (PHSA) of 1944. Prior to the Mask Mandate, the PHSA had been “rarely invoked” and had been limited to “quarantining infected individuals and prohibiting the import or sale of animals known to transmit disease.” Over the past two years, the CDC had used the PHSA to justify certain actions aside from the Mask Mandate such as shutting down cruise ships and prohibiting landlords from evicting tenants who had not paid rent during the pandemic.

The CDC Director relied on the following section of the PHSA for authority of the mandate: The CDC “is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States…the CDC may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of contaminated animals or articles.”

Mask Mandate Non-Compliant with the Law

The first part of the judge’s ruling involves the meaning of the term sanitation as described in the PHSA. The court determined wearing a mask does not fall under sanitation. The court used the ordinary meaning of the word sanitation as a measure to clean something, therefore, wearing a mask does not fall under this term as it does not sanitize or clean anything. Even so, masking as sanitation “does not give the CDC power to act on individuals directly.”

The Mandate was found to be non-compliant with the Subsections of the law that “allows for detention of an individual traveling between States only if he is ‘reasonably believed to be infected’ and is actually found ‘upon examination’ to be infected.’” As such, the CDC only has power to directly regulate individuals if traveling from abroad or are reasonably believed to be infected. As the mandate applied to all individuals, not accounting for individual health, and not those entering from a foreign country, this was not in accordance with the law.

CDC Bypassed Public Notice and Comment

The CDC ordered the Mandate without seeking or allowing public participation through the APA as they said it would be “impracticable and contrary to the public’s health” to delay the mandate. The APA requires agencies to provide the public to review and comment for 30 days before a new rule becomes legally binding and must respond to significant public comments received.

The CDC did not allow public participation and used the exception that this does not apply “when the agency for good cause finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest” and applies in emergency situations “where delay could result in serious harm.” In the case of an exception, they must incorporate a brief statement for their reasons.

The CDC’s statement for this exception was one sentence, stating that given “the public health emergency caused by COVID-19 it would be impracticable and contrary to the public’s health, and by extension the public’s interest, to delay the issuance and effective date of this Order.” This statement was deemed insufficient by the court as it did not show specific reason(s). The judgment states the “Mandate makes no effort to explain its reasoning that there was an exceptional circumstance at the time it implemented the rule.”

Ultimately, the CDC did not demonstrate or articulate an effort to show why proceeding without public notice and comment was contrary to the public interest. The court states the existence of COVID-19 or a communicable disease alone is not enough to justify bypassing regulatory processes.

CDC Lacked Explanation and Evidence Behind Decision Making

At the time of the Mandate issuance, the pandemic had been “ongoing for almost a year and COVID-19 case numbers were decreasing. This timing undercuts the CDC’s suggestion that its action was so urgent that a thirty-day comment period was contrary to the public interest.”

The court found this timing undermined the CDC’s position, stating, “The CDC issued the mandate in February 2021, almost two weeks after the President called for a mandate, eleven months after the President had declared COVID-19 a national emergency, and almost thirteen months since the Secretary of Health and Human Services had declared a public health emergency. This history suggests that the CDC itself did not find the passage of time particularly serious.”

The court found the CDC did not articulate “reasoned decision making” by providing “little or no explanation” for their choices. “Specifically, the CDC omits explanation for rejecting alternatives and for its system of exceptions.” It “does not explain why all masks—homemade and medical-grade—are sufficient.”

The Mandate relied on universal masking studies to reduce transmission but the Mandate did not require universal masking as there were exemptions as previously listed. They did not specify why the mandate extended to other age groups such as three-year-olds and not two-year-olds or what evidence supported this decision.

“The mandate makes no effort to explain why its purposes—prevention of transmission and serious illness—allow for such exceptions. Nor why a two-year-old is less likely to transmit COVID-19 than a sixty-two-year-old. The CDC does not ‘articulate a satisfactory explanation’—or any explanation at all—‘for its action’ and fails to include a ‘rational connection between the facts found and the choices made.’”

In conclusion, the court ruled that the CDC
1. acted unlawfully by exceeding statutory authority
2. improperly bypassed notice and comment
3. and ultimately failed to articulate and explain the decision process and supporting evidence behind the Mandate

Have an awesome day! Dr D

https://www.documentcloud.org/documents/21636492-mask-mandate-order