UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

FAMILY RESEARCH COUNCIL ACTION, INC., 

MATTHEW KRAUSE, DONNA BRAMSON, and S.P., 

a minor, by his next friend and father, Anthony 

Perkins,

Plaintiffs,

v. Civil Action No.: 

22-209

JOSEPH R. BIDEN, JR., in his official capacity 

as President of the United States, U.S. DEPARTMENT 

OF TRANSPORTATION, PETER P. BUTTIGIEG, in 

his official capacity as Secretary of Transportation, 

FEDERAL AVIATION ADMINISTRATION, 

STEPHEN M. DICKSON, in his official capacity as 

Administrator of the FAA, U.S. DEPARTMENT OF 

HEALTH AND HUMAN SERVICES, XAVIER 

BECERRA, in his official capacity as Secretary of 

Health and Human Services, CENTERS FOR 

DISEASE CONTROL AND PREVENTION, 

ROCHELLE P. WALENSKY, in her official capacity 

as Director of the CDC, SHERRI A. BERGER, in her 

official capacity as Chief of Staff of the CDC, U.S. 

DEPARTMENT OF HOMELAND SECURITY, 

ALEJANDRO MAYORKAS, in his official capacity as 

Secretary of Homeland Security, TRANSPORTATION 

SECURITY ADMINISTRATION, DAVID P. 

PEKOSKE, in his official capacity as Administrator 

of the TSA, and the UNITED STATES OF AMERICA, 

Defendants.

COMPLAINT

Plaintiffs Family Research Council Action, Inc., Matthew Krause, Donna 

Bramson, and S.P., a minor, by through his next friend and father, Anthony Perkins

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(collectively “Plaintiffs”), by and through the undersigned attorneys, complain as 

follows against Defendants Joseph R. Biden, Jr., President of the United States; the 

U.S. Department of Transportation and its Secretary, Peter P. Buttigieg; the Federal 

Aviation Administration and its Administrator, Stephen M. Dickson; the U.S. 

Department of Health and Human Services and its Secretary, Xavier Becerra; the 

Centers for Disease Control and Prevention and its Director, Rochelle P. Walensky, 

and its Chief of Staff, Sherri A. Berger; the U.S. Department of Homeland Security 

and its Secretary, Alejandro Mayorkas; the Transportation Security Administration 

and its Administrator, David P. Pekoske; and the United States of America 

(collectively “Defendants”). 

INTRODUCTION

1. President Biden issued Executive Order 13998 the day after he was 

inaugurated as President of the United States, in which he directed the U.S. 

Departments of Transportation, Health and Human Services, and Homeland 

Security, as well as their components the Federal Aviation Administration, Centers 

for Disease Control and Prevention, and Transportation Security Administration, 

respectively, to continue mandating the wearing of masks on commercial airlines in 

the United States to stop the spread of COVID-19. Those agencies and their 

components complied with those orders, giving rise to the policy mandate Plaintiffs 

challenge in this action. 

2. The Administrative Procedure Act requires that a district court must

vacate and set aside agency actions that are arbitrary and capricious. That 

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requirement imposes a standard that is typically easily met, because as a general 

matter an agency engages in reasoned decisionmaking based on substantial evidence. 

Yet the science does not support the FAA’s, CDC’s, and TSA’s mask mandate on 

airplanes. The science shows no significant link between the wearing masks and

slowing the spread of COVID-19, and separately shows that the air passengers 

breathe on a commercial airline is among the cleanest and safest of any environment 

on earth. Furthermore, growing scientific literature documents the harms resulting 

from the wearing of masks, especially on children. The mask mandate is accordingly 

arbitrary and capricious. 

3. More than that, however, the Mask Mandate was scheduled to expire on 

March 18, 2022. However, Defendants have extended the Mask Mandate at least 

until April 18, 2022, and left open the possibility of additional extensions. These 

actions of maintaining and extending the Mask Mandate is arbitrary and capricious, 

and accordingly must be vacated immediately. 

PARTIES

4. Plaintiff Family Research Council Action, Inc., (FRC Action) is a 

501(c)(4) nonpartisan, nonprofit organization incorporated and headquartered in 

Washington, D.C. FRC Action has over 1,400 members who reside in Texas, 

including members who reside in the Fort Worth Division of the Northern District of 

Texas.

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5. Plaintiff Matthew Krause serves in the Texas House of Representatives 

from the 93d District. He is a U.S. citizen and a resident of Tarrant County. As such, 

he resides in the Fort Worth Division of the Northern District of Texas. 

6. Plaintiff Donna Bramson is a U.S. citizen and a resident of Tarrant 

County. As such, she resides in the Fort Worth Division of the Northern District of 

Texas.

7. Plaintiff S.P. is a minor child. S.P. is a U.S. citizen who resides in 

Louisiana. He is participating in this litigation through his next friend and father, 

Anthony Perkins. 

8. Defendant Joseph R. Biden, Jr., is the President of the United States of 

America, and issued the Executive Order (EO) giving rise to the mask mandate. He 

is sued in his official capacity only.

9. The U.S. Department of Transportation (DOT) is an agency of the 

United States Government and is partially responsible for implementing the mask 

mandate. 

10. Peter P. Buttigieg is the Secretary of DOT, and is sued in his official 

capacity only.

11. The Federal Aviation Administration (FAA) is an agency of the United 

States Government, and the component of DOT principally responsible for 

implementing the mask mandate EO for that Department. 

12. Stephen M. Dickson is the Administrator of the FAA, and is sued in his 

official capacity only.

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13. The U.S. Department of Health and Human Services (HHS) is an agency 

of the United States Government and is partially responsible for implementing the 

mask mandate.

14. Xavier Becerra is Secretary of HHS, and is sued in his official capacity 

only.

15. The Centers for Disease Control and Prevention (CDC) is an agency of 

the United States Government, and the component of HHS principally responsible 

for implementing the mask mandate EO for that Department. 

16. Rochelle P. Walensky is Director of the CDC, and is sued in her official 

capacity only. 

17. Sherri A. Berger is Chief of Staff of the CDC, and issued that agency’s 

mask mandate. She is sued in her official capacity only. 

18. The U.S. Department of Homeland Security (DHS) is an agency of the 

United States Government and is partially responsible for implementing the mask 

mandate. 

19. Alejandro Mayorkas is Secretary of DHS, and is sued in his official 

capacity only. 

20. The Transportation Security Administration (TSA) is an agency of the 

United States Government, and the component of DHS principally responsible for 

implementing the mask mandate EO for that Department. 

21. David P. Pekoske is the Administrator of the TSA, and is sued in his 

official capacity only.

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22. The United States of America refers to the Departments and agencies of 

the United States Government in its Executive Branch. It includes here all other 

federal agencies and officers named in Executive Order 13998 or implicated in its 

implementation, including, but not limited to, the Secretary of Labor, the Federal 

Transit Administration, and the COVID-19 Response Coordinator. All such officials 

are sued in their official capacities only. 

JURISDICTION AND VENUE 

23. This Court has subject-matter jurisdiction over this case pursuant to 28 

U.S.C. § 1331 because this case raises federal questions under the laws of the United 

States, and 28 U.S.C. § 1346(a)(2) because Plaintiffs sue the United States, its 

agencies and officers, for violating an Act of Congress. Plaintiffs have a cause of 

action pursuant to 5 U.S.C. §§ 702 and 706 because the Plaintiffs are aggrieved by 

the Mask Mandate complained of herein, a mandate comprised of final agency actions 

as defined by 5 U.S.C. § 704, regarding which there is no other adequate remedy in 

court, and for which Plaintiffs seek judicial review. 

24. Plaintiffs’ claims for declaratory and injunctive relief seek remedies 

under 28 U.S.C. §§ 2201–02.

25. Venue is appropriate in this judicial district and division under 5 U.S.C. 

§ 703, under 28 U.S.C. § 1391(e)(1)(B) because the Defendants are agencies of the 

United States or officers thereof acting their official capacities and a substantial part 

of the events complained of herein occurred in this district and division, as well as 

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under 28 U.S.C. § 1391(e)(1)(C) because two of the Plaintiffs reside in this district 

and division. 

FACTUAL ALLEGATIONS

26. On January 21, 2021, President Biden issued Executive Order 13998, 

ordering the agencies named as co-defendants here to issue renewed Mask Mandates 

on commercial airlines and in airports. Exec. Order 13998, Promoting COVID-19 

Safety in Domestic and International Travel, 86 Fed. Reg. 7205 (Jan. 26, 2021). The 

EO directs HHS (including CDC), DOT (including FAA), DHS (including TSA), and 

other agencies to mandate wearing masks in, inter alia, airports and commercial 

aircraft. Id. § 2(a). 

27. On January 27, 2021, Acting Secretary of Homeland Security David P. 

Pekoske—who is now the TSA Administrator—determined that a national emergency 

existed regarded COVID-19, and that consequently masks must be mandated in 

various forms of public transportation, including commercial aircraft and airports. 

Determination of a National Emergency Requiring Actions to Protect the Safety of 

Americans Using and Employed by the Transportation System, 86 Fed. Reg. 8217 

(Feb. 4, 2021). The Acting Secretary invoked his statutory authorities under 49 

U.S.C. §§ 106(m) and 114(f), (g), (l), and (m) to direct TSA to implement the EO. Id.

at 8218–19. 

28. On January 29, 2021, CDC issued a Notice and Order, Requirement for 

Persons to Wear Masks While on Conveyances and at Transportation Hubs, 86 Fed. 

Reg. 8025 (Feb. 3, 2021) (“CDC Order”). CDC invoked its authority under 42 U.S.C. 

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§ 264(a) and 42 C.F.R. §§ 70.2, 71.31(b), and 71.32(b), requiring the wearing of masks 

on airplanes and in airports. Id. at 8026, 8029. 

29. The CDC Order invokes 42 U.S.C. § 264(a) as its statutory authority. 

That provision empowers CDC—in the place of the Surgeon General, with the 

approval of the Secretary of HHS—to “make and enforce such regulations as in his 

judgment are necessary to prevent the introduction, transmission, or spread of 

communicable diseases ....” Id.

30. The CDC Order explains that it shall be interpreted and implemented 

“to achieve the following objectives: Preservation of human life; Maintaining a safe 

and secure operating transportation system; Mitigating the further introduction, 

transmission, and spread of COVID-19 ...; and Supporting response efforts to COVID19 at the Federal, state, local, territorial, and tribal levels.” 86 Fed. Reg. at 8027. 

31. The CDC Order includes exemptions. It specifies that it does not apply 

during certain events, such as while a person is eating or drinking, when a person 

speaking with someone who is hearing-impaired, or when an authorized person is 

seeking to confirm one’s identity during a photo identification check. Id. It also 

exempts certain categories of person, such as children under the age of two. Id. 

32. The CDC Order continues, “Masks help prevent people who have 

COVID-19, including those who are pre-symptomatic or asymptomatic, from 

spreading the virus to others.” Id. at 8028. It also asserts, “Appropriately worn masks 

reduce the spread of COVID-19—particularly given the evidence of pre-symptomatic 

and asymptomatic transmission of COVID-19.” Id. at 8028. Consequently, CDC 

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claims “that the mask-wearing requirements in this Order are reasonably necessary 

to prevent the further introduction, transmission, or spread of COVID-19.” Id. at 

8029. 

33. The CDC Order does not include consideration of individuals who have 

previously contracted COVID-19, which generates antibodies that confer “natural 

immunity.” It does not discuss how much less risk such individuals are from COVID19, or explain why such individuals need to wear a mask to stop the spread of COVID19.

34. The CDC Order cites to various sources assuring readers that wearing 

masks slows the spread of COVID-19, but does not provide scientific evidence 

demonstrating these supposed benefits. 

35. The CDC Order remains in effect until further action by the Secretary 

of HHS. Id. at 8026. 

36. The TSA issues Security Directives for airplanes and airports, as 

authorized by 49 U.S.C. §§ 114 and 44903, and issued in accordance with the 

provisions of 49 C.F.R. § 1542.303, and Emergency Amendments authorized by 49 

U.S.C. §§ 114 and 44902, and issued in accordance with the provisions of 49 C.F.R. § 

1546.105(d). 

37. The latest TSA mask mandate prior to the extension at issue here is SD 

1542-21-01C and EA 1546-21-01C, which was set to expire March 18, 2022. But TSA 

announced it was extending this requirement through April 18, 2022, with no 

assurance that the mandate will expire at that time. Statement regarding face mask 

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use on public transportation, TSA (Mar. 10, 2022), 

https://www.tsa.gov/news/press/statements/2022/03/10/statement-regarding-facemask-use-public-transportation. TSA explained, “During that time, CDC will work 

with government agencies to help inform a revised policy framework for when, and 

under what circumstances, masks should be required in the public transportation 

corridor. This revised framework will be based on the COVID-19 community levels, 

risks of new variants, national data, and the latest science.” Id. The mandate now 

in effect is presumptively codified as SD 1542-21-01D and EA 1546-21-01D. The 

TSA’s mandate covers airport operators, aircraft crewmembers, and aircraft 

passengers. 

38. DOT has mirrored this language from TSA, announcing, “During this 

time, [CDC] will work with [DOT] regarding when and under what circumstances 

masks should be required for public transportation in the future. Any changes will 

be based on the COVID-19 community levels, risks of new variants, national data, 

and the latest science.” Federal Mask Requirement for Transit, FED. TRANSIT ADMIN., 

https://www.transit.dot.gov/TransitMaskUp. DOT has incorporated CDC’s masking 

determinations into the Federal Transit Administration’s Master Agreement. See

Fed. Transit Admin., Dep’t of Transp., FTA MA(28) § 49 (Feb. 9, 2021), 

https://www.transit.dot.gov/sites/fta.dot.gov/files/2021-02/FTA-Master-Agreementv28-2021-02-09.pdf. 

39. As a component agency of DOT, FAA likewise continues to enforce a 

mask mandate both in airports and on airplanes. See FAA Statement on Wearing 

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Masks in Airports and On Planes, FAA (May 14, 2021), 

https://www.faa.gov/newsroom/faa-statement-wearing-masks-airports-and-planes. 

40. Dallas Fort Worth International Airport (“DFW”) is located in the City 

of Fort Worth, which is in Tarrant County, in the State of Texas. 

41. Representative Krause resides in Haslet, which is in Tarrant County, 

Texas. As a resident of Tarrant County, he generally travels through DFW Airport. 

42. The Mask Mandate requires Representative Krause to wear a mask on 

commercial aircraft.

43. Ever since Defendants imposed the Mask Mandate, each time 

Representative Krause has flown on a commercial airplane, he was required to wear 

a face mask on each one.

44. But for the Mask Mandate, Representative Krause would not wear a 

mask when flying on an airplane.

45. Representative Krause is currently booked for flights through DFW on 

April 13, April 14, and April 16 of 2022, and plans to also travel by air through DFW 

in June 2022 and later in the year.

46. Mr. Anthony (“Tony”) Perkins is President of both the Family Research 

Council as its political action affiliate, FRC Action (both described below). As such, 

he travels extensively across the United States. 

47. The Mask Mandate requires Mr. Perkins to wear a mask on commercial 

aircraft. 

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48. Mr. Perkins has flown on numerous flights on commercial airplanes

since Defendants imposed the Mask Mandate, and was required to wear a face mask 

on each one. 

49. But for the Mask Mandate, Mr. Perkins would not wear a mask when 

flying on an airplane.

50. Mr. Perkins is scheduled to travel by air during April 2022, and 

subsequent months in 2022, including flights through DFW.

51. S.P. is the minor son of Mr. Perkins. S.P. sometimes travels with his 

father. When he has travelled by commercial air in 2022, S.P. has worn a mask as 

required on each flight.

52. The Mask Mandate requires S.P. to wear a mask on commercial aircraft 

because, although he is a minor, he is over the age of two. 

53. But for the Mask Mandate, S.P. would not wear a mask when flying on 

an airplane.

54. S.P. is currently scheduled to be on flights in April prior to April 18. 

55. Donna Bramson is a member of FRC Action, is scheduled to fly on 

commercial airplanes on April 6, April 12, and April 14, 2022, and plans to travel on 

additional flights during 2022. 

56. The Mask Mandate requires Mrs. Bramson to wear a mask on 

commercial aircraft.

57. But for the Mask Mandate, Mrs. Bramson would not wear a mask when 

flying on an airplane.

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58. The Family Research Council (FRC) is a nonpartisan, nonprofit 501(c)(3) 

organization incorporated in Washington, D.C., where its corporate offices are

located. FRC’s mission is to advance faith, family, and freedom in public policy and 

the culture from a biblical worldview. As part of that mission, FRC opposes 

government overreach and illegal government mandates such as the Mask Mandate. 

As relevant here, J. Kenneth Blackwell is FRC’s Senior Fellow for Human Rights and 

Constitutional Governance, and his portfolio includes opposing the Mask Mandate as 

an illegal overreach by the Federal Government. 

59. FRC Action is the political action affiliate of FRC, organized under 

501(c)(4) of the Internal Revenue Code. FRC Action advocates for legislation and 

regulations that advance the mission of FRC, including opposition to the Mask 

Mandate. As of March 21, 2022, FRC Action currently has 26,163 members. This 

includes 1,493 members in the State of Texas. Representative Krause and Mrs. 

Bramson are two such members of FRC Action who reside in the Fort Worth Division 

of the Northern District of Texas. 

60. Many FRC Action members travel on commercial airplanes, and there 

is no reason to doubt whether they comply with the Mask Mandate. Representative 

Krause and Mrs. Bramson are two such members who act in accordance with the 

Mask Mandate. 

61. But for the Mask Mandate, many FRC Action members would not wear 

a mask when flying on an airplane. Representative Krause and Mrs. Bramson are 

two such members. 

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62. As researchers have now had ample opportunity to test the effectiveness 

of wearing masks as part of combating the spread of COVID-19, studies show that 

masks are actually ineffective, particularly the cloth masks and surgical masks 

commonly worn. Sam Raskin, Study finds N95 masks more effective than surgical, 

cloth coverings against COVID-19, N.Y. POST (Aug. 22, 2021) (discussing study), 

https://nypost.com/2021/08/22/study-finds-n95-masks-more-effective-than-surgicalcloth-masks/. Given that wearing cloth or surgical masks satisfy the Mask Mandate, 

it is not effective at stopping COVID-19 in airports or on airplanes. 

63. The Mask Mandate is harmful to children. Forcing children to wear 

masks comes with a variety of health risks: skin issues, carbon dioxide in the blood, 

anxiety and depression, which outweighs the mild benefits for children. See Marty 

Makary & H. Cody Meissner, The Case Against Masks for Children, WALL ST. J. (Aug. 

8, 2021), https://www.wsj.com/articles/masks-children-parenting-schools-mandatescovid-19-coronavirus-pandemic-biden-administration-cdc-11628432716. 

64. Some of the data regarding children does not specify whether the harm 

to children is specifically due to the wearing of masks, but is relevant to assessing the 

potential impact of the Mask Mandate. 

65. For example, comparing Virginia school students in middle and high 

school in the 2019–2020 school year versus the 2020–2021 school year, lowperforming students saw “an explosion of C’s, D’s, and F’s,” with the number “earning 

F’s in at least two classes jumped by 83 percent” in the fall 2020 semester. Hannah 

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Natanson, Failing grades spike in Virginia’s largest school system as online earning 

gap emerges nationwide, WASH. POST (Nov. 24, 2020). 

66. These harms appear more pronounced the younger the children are. In 

the analysis referenced above, the “percentage of middle-schoolers receiving at least 

two F’s quadrupled, while the percentage of high-schoolers scoring at least two F’s 

increased by 50 percent.” Id. 

67. Planes are a very low-risk environment for contracting or spreading 

COVID-19. According to a survey of epidemiologists, planes are safer than bars, 

theaters, gyms, and restaurants. See Full Results: COVID-19 Survey of 

Epidemiologists on Reopening Risks and Data Quality, CIVIC METER (2020), 

https://civicmeter.com/full-results-covid-19-survey-of-epidemiologists-on-reopeningrisks-and-data-quality/. As a consequence, regarding COVID-19, an airplane is “one 

of the most secure conditions you can be in.” Sophie Bushwick, et al., Evaluating 

COVID Risk on Planes, Trains and Automobiles, SCI. AM. (Nov. 19, 2020), 

https://www.scientificamerican.com/article/evaluating-covid-risk-on-planes-trainsand-automobiles2/ (quoting Sebastian Hoehl from the Institute for Medical Virology 

at Goethe University).

COUNT I 

Administrative Procedure Act, 5 U.S.C. § 706(2)(A)

Arbitrary and Capricious

68. Plaintiffs restate the foregoing paragraphs as if set forth fully herein.

69. A district court must “hold unlawful and set aside agency action” that is 

“arbitrary and capricious.” 5 U.S.C. § 706(2)(A). An agency action is arbitrary and 

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capricious if it does not “examine the relevant data and articulate a satisfactory 

explanation for its action including a rational connection between the facts found and 

the choices made.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. 

Ins. Co., 463 U.S. 29, 43 (1983) (internal quotation marks omitted). The APA 

“requires that agency action be reasonable and reasonably explained.” FCC v. 

Prometheus Radio Project, 141 S. Ct. 1150, 1158 (2021). 

70. A court must “not defer to the agency’s conclusory or unsupported 

suppositions.” Texas v. Biden, 10 F.4th 538, 555 (5th Cir. 2021) (citing United Techs. 

Corp. v. U.S. Dep’t of Def., 601 F.3d 557, 562 (D.C. Cir. 2010)). The court must 

determine “whether the decision was based on a consideration of the relevant factors 

and whether there has been a clear error of judgment.” State Farm, 463 U.S. at 43. 

Such an error is one where the agency “entirely failed to consider an important aspect 

of the problem [or] offered an explanation for its decision that runs counter to the 

evidence before the agency.” Id. 

71. Defendants did not consider natural immunity when they imposed the 

Mask Mandate in 2021. Nor have these ongoing agency actions been updated to 

include any discussion of the emerging medical science regarding children’s lower 

risk from COVID-19, and heightened risks from wearing masks, both of which 

together should have led to consideration of at minimum increasing age exemption 

range of the Mask Mandate. Defendants likewise failed to consider the U.S. 

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19 on a commercial aircraft. These facts alone should result in a holding of arbitrary 

and capricious. 

72. But neither did Defendants publish any such consideration or rationale 

of the latest data and the growing understanding of these facts when Defendants

extended the Mask Mandate after March 18, 2022. That extension was therefore 

arbitrary and capricious. 

73. Plaintiffs have no adequate remedy at law. 

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs request that the Court:

a. Declare that the agency actions implementing the Mask Mandate 

imposed by Executive Order 13998 are arbitrary and capricious; 

b. Declare that the agency actions extending the Mask Mandate imposed 

by Executive Order 13998 beyond March 18, 2022, are arbitrary and capricious;

c. Hold unlawful and set aside those agency actions; 

d. Preliminarily and permanently enjoin actions by the Defendants 

resulting from Executive Order 13998; 

e. Award Plaintiffs the costs of this suit and reasonable attorneys’ fees; 

and

f. Grant any other relief that the Court deems just, proper, and equitable.

March 23, 2022 

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Respectfully submitted,

/s/ Kenneth A. Klukowski

Mark R. Paoletta* 

D.C. Bar No. 422746

Kenneth A. Klukowski

D.C. Bar No. 1046093

SCHAERR | JAFFE LLP

1717 K Street NW, Suite 900

Washington, DC 20006

Tel: (202) 787-1060

Facsimile: (202) 776-0136

kklukowski@schaerr-jaffe.com

*Pro hac vice application forthcoming

Counsel for Plaintiffs 

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