UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

FAMILY RESEARCH COUNCIL 

ACTION, INC., et al.,

 Plaintiffs,

 v. Civil Action No. 4:22-cv-00209-O

JOSEPH R. BIDEN, JR., in his official 

capacity as President of the United States, 

et al.,

 Defendants.

DEFENDANTS’ RESPONSE TO PLAINTIFFS’

BRIEFS REGARDING THE MARCH 24, 2022 ORDER

BRIAN M. BOYNTON

Principal Deputy Assistant Attorney General

CHAD E. MEACHAM

Acting United States Attorney

ERIC B. BECKENHAUER

Assistant Branch Director

STEPHEN M. PEZZI

MICHAEL J. GERARDI

 ANDREW F. FREIDAH

JOHNNY H. WALKER

 Trial Attorneys

United States Department of Justice

Civil Division

Federal Programs Branch

1100 L Street NW

Washington, DC 20005

Telephone: 202-616-0680

Email: michael.j.gerardi@usdoj.gov

Counsel for Defendants

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Defendants respectfully submit this response to Plaintiffs’ briefs on whether Van Duyne v.

Centers for Disease Control & Prevention, No. 4:22-cv-122 (N.D. Tex. filed Feb. 16, 2022), and Family 

Research Council Action v. Biden, No. 4:22-cv-209 (N.D. Tex. filed Mar. 24, 2022) (“FRC”), should be 

consolidated under Federal Rule of Civil Procedure 42. As Defendants explained, because both cases

are already pending before this Court, there may be little practical difference between formal 

consolidation and informal coordination of them. Van Duyne, ECF No. 24; FRC, ECF No. 19. As

between the two options, Defendants’ view is that consolidation would lend itself to a more efficient 

resolution of the two cases and better “promote the administration of justice.” Gentry v. Smith, 487 

F.2d 571, 581 (5th Cir. 1973). The FRC and Van Duyne Plaintiffs staked out divergent views on 

consolidation, which Defendants address below. 

The FRC Plaintiffs took “no position” on whether consolidation would be appropriate if 

“Defendants extend the Mask Mandate beyond April 18, 2022, or because the Mask Mandate is 

terminated in a manner that satisfies an exception to normal principles of mootness.” FRC, ECF No. 

19 (FRC Br.) at 2. Defendants agree with the FRC Plaintiffs (1) that “is unlikely that there will be 

much of a practical difference for this Court” between consolidation and informal coordination, and 

(2) that the Court “might find consolidation desirable” given the similarities between FRC and Van 

Duyne. Id. Although Defendants support formal consolidation, they join the FRC Plaintiffs in 

“deferring to the Court’s determination as to what best conserves judicial resources and benefits the 

Court in resolving these legal challenges.” Id. 

Plaintiffs in Van Duyne, by contrast, oppose consolidation. They first argue that consolidation

would be improper because Van Duyne raises a “purely legal challenge” to the transportation mask 

order, while FRC raises “almost entirely a factual challenge.” Van Duyne, ECF No. 25 (Van Duyne Br.)

2–3. That is mistaken. In fact, “when an agency action is challenged” as arbitrary and capricious

under the Administrative Procedure Act (APA), “[t]he entire case on review is a question of law and 

only a question of law.” Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 

1993). Neither Van Duyne nor FRC requires the resolution of disputed questions of fact. There is no 

sound reason why the Court could not consolidate the statutory authorization and constitutional 

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claims in Van Duyne with the arbitrary and capricious claim in FRC for joint consideration. Such 

claims are routinely considered together in APA cases.

The Van Duyne Plaintiffs next suggest that consolidation would prevent a swift resolution of 

Van Duyne because of “likely lengthy discovery” in FRC. Van Duyne Br. 4–6. That is similarly 

mistaken. “Ordinarily,” when weighing an arbitrary and capricious claim under the APA, the Court 

is “limited to evaluating the agency’s contemporaneous explanation in light of the existing 

administrative record,” and discovery is not allowed unless plaintiffs make a strong showing that 

exceptional circumstances warrant it. Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2573–74 (2020); 

see also Exxon Corp. v. Dept. of Energy, 91 F.R.D. 26, 33 (N.D. Tex. 1981) (Higginbotham, J.) (“Matters 

not considered by the agency . . . are outside the record evaluated [by courts], are legally irrelevant, 

and therefore are not discoverable under Fed. R. Civ. P. 26.”). The Van Duyne Plaintiffs give no reason 

to believe such a showing is likely here—and the FRC Plaintiffs themselves have never suggested 

otherwise.

The Van Duyne Plaintiffs also assert that the two cases “are at different stages of preparedness 

for resolution.” Van Duyne Br. 6. On the contrary, the cases are almost identically situated: As of 

today, both FRC and Van Duyne have fully briefed motions for a preliminary injunction awaiting 

decision, with no answer served in either case. If the Court wishes to proceed to expedited summary 

judgment briefing to resolve these challenges, there is no reason why it could not do so in both cases. 

Defendants have already filed the administrative record in FRC, ECF No. 23, so both Van Duyne and 

FRC are at an equally “appropriate stage for briefing on summary judgment” should the Court direct 

it. Id. at 3.

Finally, the Van Duyne Plaintiffs make much of the presence of other defendants1 in the FRC

case. Van Duyne Br. 3 & 4–5. This difference is largely illusory. The Court has recognized that it “has 

no declaratory or injunctive power against” the President. U.S. Navy SEALs 1–26 v. Biden, No. 4:21-

 1 President Biden, the U.S. Department of Transportation, Secretary of Transportation Peter P. 

Buttigieg, the Federal Aviation Administration (FAA), FAA Administrator Stephen M. Dickson, the 

Department of Homeland Security, Secretary of Homeland Security Alejandro Mayorkas, the 

Transportation Security Administration (TSA), and TSA Administrator David P. Peksoke. 

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cv-01236-O, --- F. Supp. 3d ----, 2022 WL 34443, at *3 (N.D. Tex. Jan. 3, 2022) (O’Connor, J.); accord 

Mississippi v. Johnson, 71 U.S. 475, 501 (1866). And as explained in Defendants’ opposition to the FRC

Plaintiffs’ motions for preliminary relief, the Court lacks jurisdiction over the FRC Plaintiffs’ claims 

against DOT, FAA, DHS, and TSA. FRC, Defs.’ Opp’n to PI and TRO Mots., ECF No. 24, at 7–9. 

The Van Duyne Plaintiffs, who did not sue any of these defendants, do not contend otherwise.

Accordingly, Defendants reiterate their support for formal consolidation of the FRC and Van 

Duyne matters under Rule 42.

Dated: April 15, 2022 Respectfully submitted,

BRIAN M. BOYNTON

Principal Deputy Assistant Attorney General

CHAD E. MEACHAM

Acting United States Attorney

ERIC B. BECKENHAUER

Assistant Branch Director

 By: /s/ Michael J. Gerardi

STEPHEN M. PEZZI

MICHAEL J. GERARDI (D.C. Bar No. 

1017949)

 ANDREW F. FREIDAH

JOHNNY H. WALKER

 Trial Attorneys

United States Department of Justice

Civil Division

Federal Programs Branch

1100 L Street NW

Washington, DC 20005

Telephone: 202-616-0680

E-mail: michael.j.gerardi@usdoj.gov

Counsel for Defendants

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