The Department of Justice is filing an appeal seeking to overturn a judge’s order that voided the federal mask mandate on planes and trains and in travel hubs, officials said Wednesday.
The notice came minutes after the Centers for Disease Control and Prevention (CDC) asked the justice department to appeal the decision handed down by a federal judge in Florida earlier this week.
A notice of appeal was filed in federal court in Tampa.
A federal judge in Florida on Monday had voided the national mask mandate covering planes and other public transportation, ruling that the Covid-19 mitigation measure exceeded the authority of federal health officials.
In her decision, Judge Kathryn Kimball Mizelle had also said the CDC failed to justify its decision and did not follow proper rule-making procedures.
The CDC said in a statement on Wednesday that its “continuing assessment” was that “at this time an order requiring masking in the indoor transportation corridor remains necessary for the public health”.
Joe Biden’s administration has offered mixed messages in the wake of the Monday ruling. While officials said Americans should heed the CDC’s guidance even if it was no longer a requirement, Biden himself suggested they had more flexibility on masking up during transit.
“That’s up to them,” Biden declared during a Tuesday visit to Portsmouth, New Hampshire. The White House nevertheless continues to require face coverings for those traveling with him on Air Force One, citing guidance from the CDC.
The White House press secretary, Jen Psaki, said Wednesday that Biden still is encouraging Americans to wear masks when traveling and that he had been “answering the question quite literally” a day before.
“People are not legally bound to wear masks,” she said, after the court order. “So, it is a point in time where it is up to people. It is their choice, in that regard.”
Most airlines and airports, many public transit systems and even ride-sharing company Uber lifted their mask-wearing requirements in the hours following Monday’s ruling.
The Transportation Security Administration said on Monday that it would no longer enforce the mask requirement.
Mizelle, who judged the rule as exceeding the authority of US health officials in the coronavirus pandemic, overturned the mask mandate on Monday.
She added that the CDC had failed to justify its decision and did not follow proper rule-making procedures.
In the 59-page ruling, Mizelle said the only remedy was to vacate the rule entirely because it would be impossible to end it for the limited group who objected to it in the lawsuit.
She added the court had the full authority to make the decision to end the mask mandate, even if the CDC was attempting to handle the virus in the most spirited way.
“Because our system does not permit agencies to act unlawfully even in pursuit of desirable ends, the court declares unlawful and vacates the mask mandate,” Mizelle wrote.
The CDC had recently extended the mask mandate, which was set to expire Monday, until 3 May to allow more time to study the BA.2 omicron subvariant, which is now responsible for the vast majority of US cases. But the court ruling Monday put that decision on hold.
The CDC said on Wednesday that it would continue to monitor public health conditions to determine if a mandate would remain necessary. He said he believed the mandate was “a lawful order, well within CDC’s legal authority to protect public health”.
Justice department spokesman Anthony Coley said on Wednesday night that the department was filing the appeal “in light of today’s assessment by the CDC that an order requiring masking in the transportation corridor remains necessary to protect the public health”.
After a winter surge fueled by the omicron variant that prompted record hospitalizations, the US has seen a significant drop in virus spread in recent months, leading most states and cities to drop mask mandates.
But several north-east cities have seen a rise in hospitalizations in recent weeks, leading Philadelphia to bring back its mask mandate.
The appeal drew criticism from the US Travel Association, which, along with other industry groups, had been pressing the Biden administration for months to end the mask mandate for travel.
“Masks were critically important during the height of the pandemic,” said Tori Emerson Barnes, the group’s executive vice-president of public affairs and policy, “but 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.”