Justin Mahwikizi v. Centers for Disease Control and Prevention

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 13, 2022 *
Decided December 19, 2022
Before
FRANK H. EASTERBROOK, Circuit Judge
DIANE P. WOOD, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 22-1776
JUSTIN MAHWIKIZI,
Plaintiff-Appellant,
v.
CENTERS FOR DISEASE CONTROL
AND PREVENTION, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 21 CV 3467
Manish S. Shah,
Judge.
O R D E R
Justin Mahwikizi sued federal agencies and state officials, alleging that a federal
mask mandate covering his rideshare business violated his First Amendment rights.
The district court dismissed the suit for lack of standing and for failure to state a claim.
Reviewing this dismissal de novo and treating the factual allegations in the complaint
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 22-1776 Page 2
as true, see St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir.
2007), we affirm. The mandate is a neutral rule, generally applicable to commercial
transporters, it only incidentally affects Mahwikizi’s religious practices, and it regulates
conduct, not speech.
Mahwikizi works for a rideshare business. As a Catholic, he practices the “Good
Samaritan Principle,” which instructs him to help those in need. He says that doing so
became difficult when, in 2021, the Centers for Disease Control and Prevention issued a
pandemic-mitigation order, the federal mask mandate. The mandate required that
people wear masks during commercial transit, including rideshare use. Requirement for
Persons to Wear Masks While on Conveyances and at Transportation Hubs, 86 Fed. Reg. 8025,
8026–27 (Feb. 3, 2021). As a result, he had to cancel orders from customers who ordered
rides but refused to wear a mask. (He still received payment from his company for the
rides.) The mandate left him free to drive these people noncommercially. Id. at 8028.
Mahwikizi sued the U.S. Department of Health and Human Services, the CDC,
the Governor of Illinois, and the Illinois Department of Public Health. Seeking to enjoin
the mandate, he contended that he cannot drive maskless people who need rides; thus,
he says, it violates his First Amendment rights of religion and speech. In dismissing the
case, the district court ruled that Mahwikizi lacked standing to sue the state defendants
because they did not enforce the federal mandate. It also ruled that Mahwikizi had no
claim against the federal defendants under the First Amendment. The mandate, the
court reasoned, was a neutral, generally applicable, and rational response to a public
health problem; it thus did not violate his right to exercise his religion. It also did not
violate his free-speech rights because it regulated the conduct of driving maskless
customers, not speech. Finally, the court ruled alternatively, if speech was affected, it
was commercial only and the restriction permissibly furthered the government’s
substantial interest in public health. The court dismissed the case and did not enjoin the
mandate, although an injunction is under review elsewhere as the Eleventh Circuit
considers whether the mandate is compatible with the CDC’s statutory authority and
the Administrative Procedure Act. See Health Freedom Def. Fund, Inc. v. Biden, No. 22-
11287 (11th Cir. Docketed Apr. 21, 2022); Wall v. CDC, No. 22-11532 (11th Cir. Docketed
May 4, 2022).
On appeal, Mahwikizi raises arguments that he has waived. Echoing the
Eleventh Circuit’s cases, he now argues that the mask mandate was “not within the
CDC’s statutory authority.” Although he referred to the CDC’s statutory authority in
his complaint, when he responded to the motions to dismiss, he argued only that the

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No. 22-1776 Page 3
mandate violated his First Amendment rights. By failing to develop an argument about
statutory authority in district court, Mahwikizi forfeited the contention. See Wheeler v.
Hronopoulus, 891 F.3d 1072, 1073 (7th Cir. 2018). Likewise, he never argued before the
district court that the mask mandate was a “Bill of Attainder”; thus he cannot raise that
argument on appeal either. See United States v. Ritz, 721 F.3d 825, 826 (7th Cir. 2013).
As for arguments that Mahwikizi preserved, we begin with his belief that the
mask mandate violates his free-speech rights. He contends that his desired “speech” of
driving paying, maskless customers is not commercial: if he denies a customer a ride for
refusing to wear a mask, he is paid anyway and thus, he concludes, he lacks a
commercial incentive to drive that passenger. But the district court’s ruling that driving
paying customers is commercial activity was an alternative to its primary ruling that
driving them is conduct, not speech. “[A] message may be delivered by conduct that is
intended to be communicative and that, in context, would reasonably be understood by
the viewer to be communicative.” Clark v. Community for Creative Non-Violence, 468 U.S.
288, 294 (1984). But “[s]ymbolic expression of this kind may be forbidden or regulated if
the conduct itself may constitutionally be regulated, if the regulation is narrowly drawn
to further a substantial government interest, and if the interest is unrelated to the
suppression of free speech.” Id. (citing United States v. O’Brien, 391 U.S. 367 (1968)). The
government “may not, however, proscribe particular conduct because it has expressive
elements.” Texas v. Johnson, 491 U.S. 397, 406 (1989).
Based on these principles, Mahwikizi’s free-speech claim fails for two reasons.
First, Mahwikizi does not plausibly allege that passengers reasonably understood that,
by charging them for rides, he was practicing the Good Samaritan Principle, so his
conduct was not expressive. Second, even if his conduct were expressive, Mahwikizi
does not plausibly allege that the government imposed the mask mandate because of his
expressive content. Rather, the regulation is narrowly drawn to focus on the perceived
risk to health. See O’Brien, 391 U.S. at 376–77, 383. Thus, wherever the line may be
between expressive conduct that the government may regulate as in Community for
Creative Non-Violence, and expressive conduct that the government may not regulate as
in Johnson, this case falls on the side of permissible regulation.
That brings us to Mahwikizi’s free-exercise claim. A generally applicable, neutral
restriction that only incidentally affects religion is permissible. See Emp. Div., Dep’t of
Human Res. v. Smith, 494 U.S. 872, 877–80 (1990). The mask mandate is generally
applicable because it contains no reference to religion and applies to all rideshare
drivers regardless of religion. See St. John’s United Church of Christ, 502 F.3d at 633.

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No. 22-1776 Page 4
Mahwikizi insists, though, that the mandate affects Christians like him observing the
Good Samaritan Principle more harshly than others. That is not true: Mahwikizi gets
paid regardless of whether he drives a maskless passenger who orders a ride. And the
mandate allows him to drive for free (that is, noncommercially) maskless passengers
who need rides. Therefore, the mandate does not adversely restrict his religious practice
of helping people in need. See Ill. Bible Colleges Ass’n v. Anderson, 870 F.3d 631, 640
(7th Cir. 2017). And we know that “[w]hether or not the Supreme Court continues to
adhere to Employment Division v. Smith … there is no problem with application of a law
that leaves people free to put their own religious beliefs into practice.” Doe v. Rokita,
— F.4th —, No. 22-2748, 2022 WL 17249016, at *2 (7th Cir. Nov. 28, 2022).
We address three final points. First, Mahwikizi argues that the mask mandate is
not rational because the virus can spread around masks through airborne aerosols and
the mandate does not apply to noncommercial passengers. But even if the mandate
does not eliminate all virus spread, it is still rational because it mitigates the spread.
Second, Mahwikizi contests the ruling that he lacked standing to sue the state
defendants, arguing that the federal mask mandate “caused” the state mask mandate.
But in this suit he challenges enforcement of only the federal mask mandate. Because
the state defendants did not cause the injuries that he attributes to the federal mandate,
he lacks standing to sue them. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). Third,
Mahwikizi argues that the district court wrongly denied his requests for a temporary
restraining order. But we need not address that argument because none of his claims
survives. St. John’s United Church of Christ, 502 F.3d at 642.
AFFIRMED

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