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  • Writer's pictureThe San Juan Daily Star

Who ended the travel mask mandate? A vaccine critic, a Florida judge and 2 anxious travelers

Maskless travelers wait to board a plane at Miami International Airport in Miami, Fla., on April 22. The decision to lift the federal transportation mask mandate is being appealed by the Biden administration.

By Heather Murphy and Charlie Savage

When the federal mandate requiring masks to be worn on planes and other public transportation crumbled last week, it was not because of lobbying by established trade organizations, or the strident calls of Republican lawmakers, or even a determination by the Centers for Disease Control and Prevention that masks were no longer necessary.

Instead, the mask mandate’s demise was brought about by an unlikely confluence of individuals: Leslie Manookian, a former Wall Street analyst living in Idaho who had founded an anti-COVID-regulation nonprofit; two Florida women who said their anxiety prevented them from wearing masks and, therefore, traveling; and a Trump-appointed federal judge whom the American Bar Association said was too inexperienced to be appointed to the bench.

Within 24 hours of Judge Kathryn Kimball Mizelle’s ruling on April 18 that the federal government had overstepped its authority by requiring masks, which the Justice Department has since appealed, flight attendants, pilots and passengers were free to fly without masks, and public transit systems across the country were no longer requiring them. Even people who had been closely watching efforts to overturn the rule were surprised.

“It was a shocking event,” said Zane Kerby, the president of the American Society of Travel Advisors, which represents more than 14,000 people who work in the travel industry.

Dr. Georges C. Benjamin, the executive director of the American Public Health Association, called the ruling “unimaginable,” not only because of the abrupt way it ended the mandate — prompting announcements mid-flight — but because the judge’s interpretation of the law could permanently diminish the government’s ability to respond in public health emergencies.

The peculiar back story of Mizelle’s decision offers a window into the sometimes capricious way public health policy in the United States gets made, in which a lawsuit filed by a little-known organization that opposes masks and vaccine mandates can upend a rule crafted by doctors and scientists.

“I think we’re in a perilous moment for public health,” said Anne Sosin, a public health policy fellow at Dartmouth College. “Anti-vaccine and anti-masking groups are filling a leadership vacuum.”

The plaintiffs

In addition to Manookian’s organization, the other plaintiffs in the case are two women in Florida. Anxiety caused by wearing a mask and a distrust of vaccines seem to be the ties that bind them.

Plaintiff one, Ana Carolina Daza, who lives in the Tampa Bay area, was hoping to visit her family in Colombia last August, but could not imagine doing so if she had to wear a mask, according to the complaint, which was filed last July.

According to the complaint, “Ms. Daza suffers from anxiety when wearing a mask, feels like she cannot breathe.”

Plaintiff two, Sarah Pope, who also lives in the Tampa Bay area, had a similar concern. She decided not to join her family on a trip to Hawaii “because the thought of wearing a mask for such a long flight gave her anxiety,” her lawyers wrote in the court documents.

Neither Daza nor Pope responded to requests for interviews, but, according to an interview with Manookian, they are two of the approximately 10,000 people who paid $10 to join her organization over the past two years.

On its website, the Health Freedom Defense Fund says “we stand for choice, and we stand for the most basic of human rights, bodily autonomy.” An example of “standing up for freedom,” the website says, is “deciding to forgo a mask in places and situations where you are not absolutely forced to wear one.”

The transportation mask mandate, which Manookian called “the tip of the spear” in an alarming sea of “legislative creep” was one of the first measures she decided that her organization should challenge. The group has been involved in more than a dozen lawsuits against mask and vaccine mandates across the country.

Manookian said that her legal team advised filing in the conservative-leaning Tampa division of the U.S. District Court for the Middle District of Florida. This was a shrewd choice, legal experts say, given that five of the six active district court judges in that division were appointed by Republican presidents.

Brant C. Hadaway, a litigation and arbitration attorney based in Miami, who is also a specialist in drone law, led the team, according to court documents. He was joined by George Robinson Wentz, a lawyer based in New Orleans who worked for the Federal Trade Commission in the Reagan era, and who sometimes represents America’s Frontline Doctors, an activist group known for spreading misinformation about COVID vaccines. Both declined to comment.

In order to file in Mizelle’s district, the team needed at least one plaintiff who lived there.

Manookian hung up when asked for details about how she came to learn about Daza’s and Pope’s mask woes. But earlier in the interview, she explained that they were members of her organization. “We have many, many members in Florida,” she said.

The right judge

On July 12, 2021, when Pope and Daza filed their lawsuit, the Tampa division randomly assigned it to its newest judge, Mizelle, a conservative jurist appointed by President Donald Trump in November 2020. It was a boon for the plaintiffs.

“They got lucky with a judge that was sympathetic to their ideology,” said Lawrence O. Gostin, a Georgetown University professor of global health law.

Once their team had the winning ticket, they fought to keep it. On Oct. 15, lawyers representing the CDC and the White House pushed to transfer the case to a different judge in the same district, Paul G. Byron, to “avoid the probability of inefficiency.” Byron, who was appointed by President Barack Obama in 2014, was already handling a similar case against the CDC involving a man who said his anxiety made it impossible for him to wear a mask, preventing him from flying. The plaintiffs argued that the cases were quite different, and Mizelle denied the motion to transfer.

On April 18, the day the mask mandate had been scheduled to expire — five days earlier, the CDC had extended it by two weeks — Mizelle issued her ruling. She focused, in part, on the Public Health Service Act, a law created in 1944 that gives federal officials the authority to make and enforce regulations to prevent the introduction of a communicable disease from foreign countries and its spread between states. Those regulations could include “inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals,” the law states, “and other measures” that the authorities judge “may be necessary.”

In deciding whether or not the CDC had overstepped, Mizelle focused in part on the word “sanitation,” ultimately ruling that mask-wearing didn’t meet a definition she found in several dictionaries and other sources. Sanitation refers to “measures that clean something,” she wrote. “Wearing a mask cleans nothing,” she concluded.

A different judge might have skipped the focus on sanitation altogether given that the law also allows for “other measures,” Gostin said. Or that judge might have taken a broader view of the word sanitation.

“She interprets sanitation in its narrowest way, even though that’s not consistent with the way that it’s been used in public health law for centuries,” said Lindsay Wiley, an expert on public health law at UCLA School of Law.

On April 20, the Biden administration appealed the ruling, saying it needed to protect and preserve the CDC’s powers to take necessary actions in a public-health crisis. The case will be heard by the 11th U.S. Circuit Court of Appeals, where a majority of judges are also Trump appointees.

A ruling by the appeals court backing Mizelle’s interpretation of the Public Health Service Act of 1944 would, unlike her district court opinion, be a binding precedent. But there are signs that the Justice Department may be biding its time until May 3, when the mandate was set to expire anyway, after which it could ask the appeals court to instead deem the dispute moot and dismiss it, while erasing Mizelle’s ruling.

“If it stands, there would be no ability for federal administrative agencies to regulate interstate transit in other ways in a public health emergency,” Wiley said. Even in another pandemic or an Ebola outbreak, requiring travelers to quarantine would need congressional action first, she said, adding that shrinking administrative agencies’ ability to issue rules “was exactly the kind of result the Trump administration was hoping to lock into place.”

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