Late Monday evening, following U.S. District Judge Kathryn Kimball Mizelle's ruling that the Centers for Disease Control and Prevention's federal mask mandate for planes and public transit was illegal, hundreds of pilots and flight attendants filed arguments with the U.S. Court of Appeals demanding the Transportation Safety Administration be forbidden from ever reissuing a Federal Transportation Mask Mandate (FTMM).
The amici curiae include 309 airline professionals from 35 states working for 16 airlines, who argue in their 36-page brief that TSA must be permanently enjoined forever from issuing health directives that have nothing to do with transportation safety. JetBlue pilot Janviere Carlin of Uxbridge, Massachusetts—who in March led 10 pilots in a lawsuit to block the CDC's "never-ending" FTMM—coordinated the massive signature undertaking, which was filed in support of 13 airline passengers from nine states and D.C. who have filed six lawsuits challenging the TSA's legal authority. Speaking of Monday's ruling and the reasoning behind the group's friendly filing, Carlin shared:
"It was a wonderful surprise to hear of Judge Mizelle's ruling yesterday that vacated CDC's unlawful Federal Transportation Mask Mandate. Despite this wonderful judgment striking down CDC's ability to force masking, we still filed our brief in the Wall v TSA case because we are not fooled into thinking that this administration will give up so easily."
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The Unconstitutional FTMM and Mask Fatigue
The filing outlines serious concerns about the safety implications of the Mask Mandate, which they note was "rushed into place only 12 days after the inauguration of a new president, who made a national mask dictate a top campaign promise" despite acknowledging it was "likely unconstitutional" to do so.
Additionally, the group points out in its filing that TSA's "pre-eminent goal" is to prevent another Sept. 11, 2001, with its focus limited to security issues, such as preventing an intentional attack on our transportation system. The filing states the agency has never been given authority or funding to execute a general safety mission such as preventing accidents from happening—much less a public health mission. Instead, the FTMM is creating a critical health crisis. Offering a glimpse into the "mask fatigue" experienced by flight crews, the filing explains:
"We are subject to the Mask Mandate every hour we are working, with an exception only for pilots on duty in the cockpit due to safety reasons. While passengers only have to endure forced masking when traveling on public transportation, we are expected to obstruct our oxygen intake nearly all the time while at work. This endangers our health and imperils aviation safety."
Indeed, the 309 pilots and flight attendants maintain in their brief that "as pilots, our health is strictly governed by regulations issued by the Federal Aviation Administration (FAA). We are prohibited from operating an aircraft during any period of medical deficiency. However, we are required to comply with the Mask Mandate, which causes known medical deficiencies." Specifically, the FAA rules assert:
“[N]o person who holds a medical certificate issued under part 67 of this chapter may act as pilot in command, or in any other capacity as a required pilot flight crewmember, while that person: (1) Knows or has reason to know of any medical condition that would make the person unable to meet the requirements for the medical certificate necessary for the pilot operation...” 14CFR § 61.53(a).
Filing to Enjoin TSA Mandate Forges Ahead Despite Mizelle Ruling
Despite yesterday's ruling by Judge Mizelle, the severe situation pilots, flight attendants, and other crew members face from the draconian mandates suggested, coerced, or put in place by the Biden administration during the COVID-19 pandemic cannot be ignored. For this reason, the 13 petitioners filed their opening brief this morning.
The petitioners also filed a letter stating that they do not believe the temporary voluntary repeal of TSA's mask directives moot this case. They explain, "no court has declared the Health Directives and Emergency amendment ultra vires, as yesterday's decision was strictly limited to CDC. Therefore, they intend to continue prosecuting the case, as they are concerned that the agency will try to reimpose [the restrictions] in the future." The letter, from lead petitioner Lucas Wall, states:
"Therefore, this case must proceed to a final resolution on the merits, including on our demand for a permanent injunction prohibiting TSA from ever again issuing Health Directives requiring the wearing of face coverings unless Congress provides clear statutory authority for the agency to do so."
The collaboration to ensure the FTMM is permanently outlawed spreads far and wide. Friendly briefs were also filed by two women with disabilities who were discriminated against by Delta Air Lines for being unable to wear face masks. Likewise, the Advocates for Disabled Americans, a non-profit organization that defends the rights of disabled Americans, veterans, police, firefighters, and families, communicated their support, explaining that the Department of Justice (DOJ) has abandoned its duty to uphold the rights of people with disabilities.
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Airline Professionals' Ongoing Battle Against Illegal Mandates
In addition to the 13 airline passengers' six cases and Carlin's previously mentioned lawsuit consisting of ten pilots, nine flight attendants also filed a lawsuit against the CDC last month. They join 14 active lawsuits challenging the legality of the mask mandate.
Petitioners in the six cases (initially filed around the country but then consolidated into Wall v. Transportation Security Administration, No. 21-1220, U.S. Court of Appeals for the District of Columbia Circuit) asks the court to declare the TSA orders illegal and unconstitutional, vacate them immediately, and permanently enjoin TSA from ever requiring masks in the future.
They argue the FTMM must be struck down because it violates the Air Carrier Access Act; the Fifth Amendment right to due process; the constitutional guarantee of freedom to travel; the 10th Amendment; TSA and CDC's statutory and regulatory authority; the Administrative Procedure Act; the Food, Drug, & Cosmetic Act; and two international treaties. Petitioner Laurie Parke, a Delta flight attendant, remarked:
"We filed this brief because we need to stand up for our rights as human beings. These masks negatively affect our job in so many ways, including our ability to work safely."
Cristina Field, a pilot for PSA Airlines (American Eagle), described the emotional scene of watching flight attendants "break down in tears of celebration" following yesterday's ruling. Field explained that after two years of forced masking and having to police passengers, "the mental health issues from being ordered to enforce this mandate or lose our jobs will take many years to recover from." She added:
"The fact that ours was the last industry that the federal government clung to controlling with a mask mandate will not soon be forgotten. We will continue to fight to ensure nothing like this ever happens again, which is why it was so important for hundreds of us to band together to support the petitioners in the Court of Appeals attacking TSA's legal authority to impose health regulations. After countless times sitting in my car in the employee parking lot, psyching myself up, dreading going into work to only see a sea of faceless, angry people, I finally look forward to seeing smiles again."
Likewise, JetBlue pilot Beth Ellis commented that "after taking a moment to celebrate this exciting news, it is important to make certain this never happens again. Medical decisions are personal and not the concern of the government. We are born with certain unalienable rights, and the government can't take those rights away. It's time to choose liberty over mandates of tyranny. It is important to support the other litigants in their fight against TSA's totalitarian policy that Congress never approved."
A committed Carlin shared that the circumstances in the skies these past two years have been dangerous. She remarked, "As airline workers commandeered by CDC and TSA to be the mask police, resulting in chaos in the sky, we have been closely following the many cases against the Federal Transportation Mask Mandate. We filed this amicus brief because the Court of Appeals case exposes that, in addition to being unsafe and necessary, the mask mandate also discriminates against Americans with disabilities who can't tolerate having their breathing blocked. Carlin added:
"We will continue to fight against illegal mandates and demand accountability in our government and its agencies so that they will never forget that they work for us, we the people, not the other way around.
We all share the same end goal of making sure that an unelected government agency can never do this again."
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