Justice Department will appeal mask mandate ruling if CDC finds requirement still ‘necessary’

Biden administration weighing response after federal judge voided public transit requirement

The US Department of Justice will appeal a federal judge’s ruling that strikes down mask requirements on public transit if the US Centers for Disease Control and Prevention determines that the order “remains necessary for public health” during the Covid-19 pandemic.

A statement from Justice Department spokesperson Anthony Coley on 19 April said both federal agencies disagree with the US District Court decision and intend to appeal – if the CDC believes it is still necessary beyond its current order.

Last week, the CDC extended the mandate through at least 3 May as infections spike across the US, fuelled by the spread of the more-contagious BA.2 variant.

The CDC explained that the renewed order “would remain in effect while it assessed current public health conditions, and that the Transportation Security Administration would extend its directive implementing the order until May 3 to facilitate [the] CDC’s assessment,” according to the Justice Department.

“If CDC concludes that a mandatory order remains necessary for the public’s health after that assessment, the Department of Justice will appeal the district court’s decision.”

The announcement comes after President Joe Biden’s administration and Justice Department officials weighed next steps for the federal order covering all public transit, one of the last pieces of pandemic-era public health protections as states and cities began dropping mask requirements and proof of vaccination to help curb infections that have killed nearly 1 million Americans.

The order requires travellers to wear masks on airplanes and on subway trains, buses, taxis, app-based rides and at transit hubs like airports, ferry terminals, subway stations and ports, with enforcement through the TSA.

On 18 April, US District Judge Kathryn Kimball Mizelle voided the mandate.

Within hours of the ruling, several major US airlines – including American, Delta, Southwest, United and Alaska Air – announced that masks will no longer be required to board their flights.

Transit systems than move millions of Americans in trains and buses across the US have also dropped mask requirements, from the New Orleans Regional Transit Authority to the Chicago Transit Authority.

The Metropolitan Transit Authority – the agency that oversees New York City’s bus and subway system, the largest in the country, with more than 3 million daily passengers – has not lifted its mask requirements.

New York City taxis as well as app-based ride services like Uber and Lyft that operate in the city also will continue to require masks, though the ride-share companies announced masks would be optional in other jurisdictions.

The CDC continues to recommend that people traveling on public transit wear face coverings to reduce the risk of transmission, regardless of the mandate.

Earlier on Tuesday, Mr Biden said he was not sure whether the CDC was moving to appeal the ruling, which appeared to have caught the administration off guard.

“We’re following the science,” the president said.

US Health and Human Services Secretary Xavier Becerra also said on Tuesday that the administration is “in the process of deciding, and we likely will appeal that ruling.”