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How a single judge’s ruling upended national covid policy

A rider at D.C.'s Metro Center station on April 19. (Matt McClain/The Washington Post)
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For more than a year, a little-known group called the Health Freedom Defense Fund has been working to roll back vaccine and mask mandates all over the country, often filing lawsuits one community at a time — from a tiny town in Idaho to the Los Angeles Unified School District and beyond.

The group, created last year by a former Wall Street executive turned anti-vaccine activist to advocate for “bodily autonomy,” saw mixed results, with some local officials bending under the pressure and others winning efforts to dismiss lawsuits they viewed as coming from a fringe organization.

Until this week.

The decision Monday by a federal judge in Florida to invalidate the government-imposed mask mandate on public transportation handed the group a major legal victory, instantly upending national policy and setting off a cascade of reactions that reflected the impact on millions of Americans.

Within hours of the decision, airline passengers were flooding social media with videos of joyously maskless travelers, surprised government officials were offering conflicting guidance, and businesses and other members of the public were struggling to make sense of what it all meant.

“Nothing makes me happier than to see all those videos and photographs of smiling faces,” the Health Freedom Defense Fund’s president and founder, Leslie Manookian, told a fellow vaccine skeptic, former Newsmax reporter Emerald Robinson, in an interview on Robinson’s online show, “The Absolute Truth.” Manookian called the decision “an important line in the sand to draw in order to ensure that the federal government stays within its bounds.”

The political and legal earthquake that emanated Monday from the Tampa chambers of U.S. District Judge Kathryn Kimball Mizelle provided the latest example of how an individual jurist — and a single lawsuit, seemingly filed in the right place at the right time — can alter the course of public policy. It is a practice that became more common at the end of the Obama administration and accelerated during Donald Trump’s presidency.

It is not clear whether the Health Freedom Defense Fund, a nonprofit group based in Idaho that was suing on behalf of two Florida plaintiffs, was aiming for a potentially friendly judge when it filed its initial July 2021 challenge in Tampa, where three of the six district court judges were nominated by Trump.

The group, part of a growing and vocal anti-vaccine movement that has gained resonance on the political right during the coronavirus pandemic, found a receptive audience in Mizelle. The judge rejected an effort by Biden administration lawyers to transfer and consolidate the case with another similar challenge before an Orlando judge appointed by President Barack Obama.

Mizelle, nominated by Trump at age 33 and rated “not qualified” by the American Bar Association because of her relatively brief time practicing law, took what some legal experts saw as an exceptionally narrow view of the government’s authority under a 1944 public health law to impose the mandate. She argued that the government’s contention that it put the mask requirement in place for the purpose of “sanitation” fell short.

A federal judge struck down the federal transportation mask mandate on April 18, but that doesn't mean masking doesn't still offer protection. (Video: John Farrell, Joshua Carroll/The Washington Post)

Analysis: The judge who nixed the transit mask mandate and her logic, explained

Legal scholars disagree about the authority of individual federal judges to issue orders that apply nationally and prevent the federal government from enforcing policies or regulations, and Mizelle’s ruling resurrected that debate. But the consequences of her decision were far-reaching.

Biden aides were caught by surprise — “it came out of left field,” one senior administration official said — and it put the administration in a difficult position as it debated whether to appeal the decision. The Justice Department filed notice Wednesday of its plans to appeal after the Centers for Disease Control and Prevention said the mandate is still necessary to protect public health.

Biden administration to appeal ruling striking down transit mask mandate

Polls show a narrow majority of Americans still support a mandate on planes and other forms of transportation, but the issue has become more politically difficult for the administration as airline carriers and even some Democratic lawmakers have pressed for the mandate to be lifted.

And appealing carries added legal risks, said current and former senior administration officials and health experts.

If the ruling were upheld by the U.S. Court of Appeals for the 11th Circuit, where a majority of active judges were appointed by Trump and which reviews cases from Florida, Georgia and Alabama, the administration could risk limiting its power to respond to future public health crises.

Scott Gottlieb, a former Food and Drug Administration commissioner who is now on vaccine producer Pfizer’s board, placed some of the blame on the CDC, saying a sloppy process by the agency gave its critics room to maneuver.

“This ruling takes a very narrow view of CDC’s authority, and sets a challenging precedent for future crises, by arguing that CDC has stretched powers that the court says were only intended to promote sanitation and hold back sick travelers,” Gottlieb said. “But the outcome is partly CDC’s own fault because the agency has failed to develop a transparent record to support its actions and hasn’t engaged in rulemaking that might solidify its authorities.”

The CDC on Wednesday said it still believed a mask mandate was necessary to protect public health and believed the travel mask mandate was “well within CDC’s legal authority to protect public health.”

The moment also sent pangs of fear through many Americans — particularly those with children too young to get vaccinated and millions of others who are immunocompromised or otherwise at high risk of severe covid-19 — who worry they will now be far less protected.

“I want to be able to make choices and take my own calculated risks,” said Kimberlee Howley, 31, who was at Nashville International Airport on Monday, heading home to San Francisco after a visit with family, when she first heard that the mandate was gone. “I just felt totally deprived of that.”

Howley, recalling “a lot of cheering” after an announcement that masks were no longer required, kept her mask on for the five-hour flight, turned the air-conditioning nozzle toward her face and hoped for the best as people around her sat mask-free.

The battle over the federal mask mandate has been underway since January 2021, when a newly inaugurated President Biden moved quickly to enact pandemic policies that were stricter than those Trump had imposed.

The CDC has extended the mandate several times without issue.

In July, the nascent Health Freedom Defense Fund filed its most ambitious lawsuit, challenging the CDC’s authority to impose the mandate.

The group was founded last year by Manookian, a former investment banker, and has found support from some Republican lawmakers who have vehemently opposed federal action to impose vaccine and mask mandates. Its website says that “bodily autonomy” is “the most sacred and precious of human rights and must be fervently guarded.” The site also includes a video of an interview with Manookian in which she says she has suffered severe vaccine injury and calls vaccines “poison.”

Manookian did not respond to requests for comment. The Health Freedom Defense Fund did not respond to several requests for comment. Two lawyers for the group hung up when reached by a reporter via telephone.

In its news release announcing the July anti-mask-mandate lawsuit, the group falsely said that “recent studies have shown that masks do more harm than good,” including by exposing those wearing them to high levels of carbon dioxide — both statements that have been repeatedly debunked.

As coronavirus cases had dropped in recent weeks, airlines had been pressuring the administration to drop the mandate. Throughout the pandemic, there have been numerous incidents of flight attendants being screamed at or harassed by belligerent passengers not wanting to comply with the mandate.

But the CDC said it wanted another couple of weeks to assess the situation as officials anxiously watched coronavirus cases climb again, driven by the highly transmissible omicron subvariant BA.2. The most recent extension was set to expire on May 3, and the agency probably would have dropped the mandate if cases held steady and hospitalizations did not rise, two senior administration officials said.

Most of the country no longer has an indoor mask mandate in place, and the CDC changed its guidelines in February to weigh hospitalizations more heavily in determining whether indoor mandate are needed. Most of the country is in the “green” zone, meaning the agency does not recommend a mask mandate.

But Biden administration officials saw transportation differently. It is one of the few areas in which the federal government has the power to impose a mask mandate, and officials were cognizant that many people need to travel for their jobs or for other reasons, including medical care. While people have the option to avoid indoor settings such as restaurants or movie theaters, officials reasoned, they did not have that same option when it came to transportation — especially on trains and buses, where ventilation often is not adequate, a senior administration official said.

Oral arguments in the Tampa lawsuit had been scheduled for the end of April.

But Mizelle had previously told the parties she might cancel the hearing if she determined based on the court filings that it was unnecessary. Her ruling came days before arguments were scheduled to take place. The decision renewed a long-simmering debate about the power of individual judges over broad national policies.

The increase in such universal orders or nationwide injunctions during Trump’s tenure sparked debate about whether judges were abusing the practice or whether it was the president’s actions that provoked it.

The orders have covered a wide range of executive policies, most often related to immigration and border security, but also to the environment and civil rights.

Steve Vladeck, a University of Texas law professor who has closely tracked the practice, said that while the orders may be “unwise in a lot of cases, that’s not the same as saying they are lawless.”

Vladeck said the broader problem is not the national scope of the injunctions but the “power we are giving to individual judges, especially in a day and age in which we are seeing increasing polarization on the bench.”

The power of Mizelle’s order finding the mandate unlawful was almost instantly apparent.

Rennie Cook, 47, a consultant based in Norman, Okla., heard people chatting about the judge’s ruling at the gate before his United Airlines flight Monday from Houston to Oklahoma City. The gate agent said there was no update from the airline yet, so everyone boarded in masks. When a couple of people removed their face coverings, flight attendants asked them to put them back on, Cook said.

Just before takeoff, around 6:30 p.m. Central time, one of the crew members said they had just gotten word from United that the mandate was no longer in effect and people could remove their masks.

People didn’t go crazy, said Cook, who was traveling alone for work. He said one person sitting near him checked with their neighbor first before removing their mask. People were cordial, he said, and no one shamed anyone else for whatever they decided to do.

“But there were claps. People were happy. We heard some people go, ‘Yay!’” he said. “I took off my mask and I said, ‘Hey guys, let’s take a picture.’”

He tweeted the photo before taking off. When he landed, he saw the tweet itself had taken off. By Thursday, it had more than 169,000 likes.

Among those who shared it: the Health Freedom Defense Fund.

“All of the effort involved to file our lawsuit was worth this moment!” the group wrote in a tweet sharing Cook’s picture.

Alice Crites, Tyler Pager and Scott Clement contributed to this report.

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