Appeals Court Questions Issue of Mootness in Lawsuit Challenging Biden’s COVID-Era Travel Mask Mandate

Travelers walk through Ronald Reagan Washington National Airport in Arlington, Va., on April 19, 2022. Stefani Reynolds/AFP via Getty Images

A U.S. court has ordered parties in the Biden administration’s appeal of a lawsuit challenging the legality of its travel mask mandate during the pandemic to file briefs on whether or not the appeal is now “moot” due to the termination of the COVID-19 state of emergency.

The order comes after a Florida federal judge in April 2022 blocked the Centers for Disease Control and Prevention’s (CDC) requirement that passengers on planes, trains, and other forms of public transportation wear masks amid the COVID-19 pandemic.

The mandate was originally issued in 2021.

Judge Kathryn Kimball Mizelle, a Trump appointee, ruled at the time that the CDC exceeded its authority with the mandate and inappropriately did not seek public comment before imposing the order.

The Biden administration, including the president, the secretary of Health and Human Services, the CDC and its Director Rochelle Walensky, and the Department of Health and Human Services subsequently appealed the ruling, arguing that the mask mandate should be reinstated.

The original lawsuit challenging the Biden administration’s travel mask mandate was bought by the Health Freedom Defense Fund, a Wyoming Not-for-Profit Corporation, and two Florida residents who had argued that the CDC exceeded its statutory authority and failed to abide by the federal Administrative Procedure Act (APA) which governs the process by which federal agencies develop and issue regulations.

However, Biden on Tuesday signed a bipartisan congressional resolution to bring the national COVID-19 state of emergency to an end after three years, meaning that the government’s response to the virus will be overhauled.

Issue of Mootness

That now throws into question whether the lawsuit and appeal have any practical relevance as there is no longer controversy surrounding the issue, meaning they could possibly be dismissed.

In an April 11 court order (pdf), Clerk of the United States Court of Appeals for the Eleventh Circuit, David Smith, noted that the parties in the CDC’s appeal of the original lawsuit and ruling now have 21 days to submit a brief on the issue of mootness, which should be no longer than 10 pages.

Leslie Manookian, president of the Health Freedom Defense Fund, said on Twitter that the nonprofit believes the case is not moot, citing comments made by U.S. Circuit Judge Adalberto Jordan in January of this year during an appeal hearing on the matter.

“As Judge Jordan commented during oral arguments on Jan 17, 2023, CDC obviously appealed it wants the power to do something similar in the future,” she wrote.

“We believe removal of the mask order does not moot the consequential issue of whether CDC has the power and authority to force millions of healthy Americans to don a medical device, or as CDC’s reading of its authority would have it, mandate ANY other sort of medical intervention,” Manookian said.

CDC Recommends Masks

“As we successfully argued in the district court, & as we have maintained during CDC’s appeal, 42 U.S.C. § 264(a) [Public Health Service Act of 1944,]—a statute that was enacted in 1944 to authorize certain measures in aid of quarantine—did not confer & was never intended to confer such sweeping authority over the lives of individuals,” she added.

The government has argued that it had the authority to implement the travel mask mandate under the Public Health Service Act of 1944, which allows federal officials to enforce regulations “necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.”

Such regulations can include “inspection, fumigation, disinfection, sanitation,” among others that are deemed necessary.

Despite the travel mask mandate being blocked last year, the CDC still recommends that individuals in “medium” or “high” community levels of COVID-19 wear a high-quality mask or respirator, particularly if they are at higher risk for severe illness.

The health agency also states on its website that, “wearing a high-quality mask while you travel can help protect you and others.”

“This public health recommendation is based on the currently available data, including an understanding of domestic and global epidemiology, circulating variants and their impact on disease severity and vaccine effectiveness, current trends in COVID-19 Community Levels within the United States, and projections of COVID-19 trends in the coming months,” the CDC website states.

The Epoch Times has contacted the White House for comment.