DOJ Will Appeal Ruling that Vacated Mask Mandate on Airlines

Despite sending mixed signals this week, the U.S. Department of Justice will mount an appeal of Monday's ruling by a federal court in Florida that struck down the Biden Administration's mandate that travelers inside airports and on planes, trains and public transportation must wear masks covering their nose and mouth to prevent spread of the Covid-19 virus. U.S. District Judge Kathryn Kimball Mizelle for the Middle District of Florida on Monday determined the policy was "unlawful" and that the mandate "violates the procedures required for agency rulemaking," according to her ruling.

The presence of an appeal itself will not change the enforcement of the current ruling, which saw all major U.S. airlines, Amtrak and companies like Lyft and Uber move immediately to lift masking requirements. However, the administration could move to request a stay on that ruling while the appeal proceeds, in which case masking could return on planes and trains. It is not clear if the Biden Administration will make such a move during the appeals process—or whether such a request would be granted.

The case is set to be heard by the U.S. Court of Appeals for the 11th Circuit in Atlanta, which leans conservative since 2018 when the bench was "flipped" in favor of Republican-appointed judges. Currently, the 11th Circuit has four Democrat-appointed judges and seven Republican-appointed judges, with a vacancy currently awaiting confirmation for a Biden appointee. Such political alignments are not a guarantee of the position a judge will take on a particular issue but could be considered an indication of how certain politically-charged issues like masking will fare in the circuit.

The DOJ delayed an immediate decision on whether to appeal the ruling, deferring to advice from the U.S. Centers for Disease Control and Prevention. The health agency in a statement Wednesday made its position clear.

"C.D.C. believes this is a lawful order, well within C.D.C.'s legal authority to protect public health," the agency said in a statement, adding that it "continues to recommend that people wear masks in all indoor public transportation settings."

At stake in the legal battle is not just the current mask mandate. A ruling against the CDC in this case ultimately could limit the power of the agency to implement future health and disease prevention policies at the federal level and its ability to respond to urgent public health threats.

Twenty-one states led by Florida filed the lawsuit after the Biden Administration on advice of the CDC. extended a March expiration date for the federal mask mandate to April 18. Just before the extended deadline, the administration again extended the mandate to May 3, as Covid-19 cases began to rise in the United States pushed by the BA. 2 variant and other subvariants.

According to the New York Times Covid-19 tracker, which considers data from state and local health agencies as well as U.S. Department of Health and Human Services, virus cases in the U.S. are up 49 percent over the last seven days, but hospitalizations and deaths are slightly down.

The U.S. Travel Association weighed in on the issue, with the following statement issued by EVP of public affairs Tori Emerson Barnes: “With low hospitalization rates and multiple effective health tools now widely available, from boosters to therapies to high-quality air ventilation aboard aircraft, required masking on public transportation is simply out of step with the current public health landscape."