UNITED STATES DISTRICT COURT

FOR THE 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.

PLAINTIFFS’ REPLY TO DEFENDANTS’ RESPONSE TO MAY 13, 2022 ORDER

Plaintiffs respectfully submit this reply to Defendants’ supplemental brief in response to 

the order of this Court issued on May 13, 2022. Plaintiffs agree with Defendants in part, but 

explain here why Defendants are incorrect on other arguments. Bottom line: Plaintiffs have an 

injury-in-fact, the case is not moot, and Plaintiffs are under substantial threat of irreparable harm. 

The first two points in Defendants’ short brief are puzzling. First, Defendants admit this 

case is not moot. ECF No. 41 at 2. But after admitting that, they argue in Janus-like fashion as if 

the Mask Mandate is in the rearview mirror. Id. Second, Defendants seemingly argue Plaintiffs 

have no injury-in-fact presently, see id.—which is incorrect—but once again their brief seems to 

face both ways, as they seem to acknowledge that an injury-in-fact did exist in March 2022. Since 

that is the only injury that is of any jurisdictional significance, that is presumably what this Court 

ordered briefing on. Given the confusion, Plaintiffs will address both of those items together with 

an integrated approach showing the relationship between the two. Plaintiffs will then address 

irreparable harm separately.

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The term injury-in-fact merely refers to satisfying the first prong of the standing analysis. 

Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (SBAL); see also Hotze v. Burwell, 

784 F.3d 984, 992 (5th Cir. 2015) (discussing cases). Suits fall short of this requirement when

injuries are “imaginary or wholly speculative,” SBAL, 573 U.S. at 160 (internal quotation marks 

omitted), which is clearly not the case here. The Supreme Court has rejected the argument that 

even a complaint’s lack of detail does not result in a lack of standing where the court can “presume 

specific facts under which [plaintiffs] will be injured.” Bennett v. Spear, 520 U.S. 154, 168 (1997). 

The Fifth Circuit adds that if the facts necessary for harm to the plaintiffs can be inferred, “the 

injury-in-fact standing requirement is satisfied.” Hotze, 784 F.3d at 992 (brackets omitted). 

Injury-in-fact is assessed at the time the lawsuit is filed. “As with all questions of subject matter 

jurisdiction except mootness, standing is determined as of the date of the filing of the complaint, 

and subsequent events do not deprive the court of jurisdiction.” Carr v. Alta Verde Indus., Inc., 

931 F.2d 1055, 1061 (5th Cir. 1991). The level of requisite detail and evidentiary burden increase

throughout successive stages of litigation, SBAL, 573 U.S. at 158, but injury-in-fact is established 

vel non when the lawsuit commences.

The Supreme Court has clarified doctrinal issues regarding injury-in-fact that Defendants 

seem to confuse in terms of the relationship between injury-in-fact (and standing in general, for 

that matter) and mootness. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 

U.S. 167, 189–92 (2000). “Careful reflection on the long-recognized exceptions to mootness,” 

such as those Plaintiffs claim here, “reveals that the description of mootness as ‘standing set in a 

timeframe’ is not comprehensive.” Id. at 190. Yet that long-rejected concept of ongoing injuryin-fact as a requirement that must be refreshed throughout successive litigation timeframes is what 

Defendants seem to reference in their supplemental brief. 

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For standing at the outset of litigation, “it is the plaintiff’s burden to establish standing by 

demonstrating that, if unchecked by litigation, the defendant’s allegedly wrongful behavior will 

likely occur or continue.” Id. That is to say, the plaintiff must show an injury-in-fact when the 

case is filed. Once standing is established, however, the calculus and burden shift to mootness. 

The collateral consequences Plaintiffs continue to experience might satisfy the burden of standing 

even now if the Court would to conclude they are traceable to the Mask Mandate, but that is not 

what Article III requires in any event once a suit is underway. “The heavy burden of persuading 

the court that the challenged conduct cannot reasonably be expected to start up again lies with the 

party asserting mootness.” Id. at 189 (cleaned up). The Supreme Court added that when a 

defendant begins to voluntarily comply, that defendant “bears the formidable burden of showing 

that it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to 

recur.” Id. at 190 (emphases added). Even more, Defendants must show that it is impossible for 

a court to grant any relief. Knox v. SEIU Local 1000, 567 U.S. 298, 307 (2012). It is far from 

clear that the Mask Mandate will not return in full force, and it is quite possible that this Court can 

grant additional relief, both for this mandate and for additional assertions of the same authority

Defendants could attempt to impose. “As long as the parties have a concrete interest, however 

small, in the outcome of the litigation, the case is not moot.” Chafin v. Chafin, 568 U.S. 165, 172 

(2013) (internal quotation marks omitted). 

CDC’s Mask Mandate would be directly and fully in force right now if not for the April 

18, 2022, decision from the Middle District of Florida. That decision is being appealed and could 

be narrowed or reversed. CDC asserts that the Mask Mandate is necessary for public health and 

makes plain it will resume the moment it can. In the interim, TSA has temporarily paused its 

implementation action, but stands ready to resume enforcement, and could do so at any moment; 

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it need not wait for an appellate reversal. Other actors continue to enforce the Mask Mandate right 

now—including on FRC Action members—and those collateral consequences show no signs of 

abating. Quite the contrary, as noted in Plaintiffs’ May 19, 2022 brief, the airport in Bangor, Maine 

has only recently reimposed the Mask Mandate, so those collateral consequences are worsening. 

Defendants have not addressed them, acting as if they are truly independent actions. But as the 

materials cited by Plaintiffs make clear, these actors are implementing the Mask Mandate because

they regard the CDC policy as authoritative, and are ignoring the conclusion of Health Freedom 

Defense Fund, Inc. v. Biden, No. 8:21-cv-1693, 2022 WL 1134138 (M.D. Fla. Apr. 18, 2022) 

(HFDF), appeal docketed, No. 22-11287-AA (11th Cir. Apr. 21, 2022), that the Mask Mandate is 

not supported by current data and medical science. 

Additionally, some of Plaintiffs’ injuries-in-fact currently persist. The compliance costs 

of FRC Action members have not been reimbursed, so that financial injury is as real today as on 

March 23, 2022. And FRC Action’s expenditures against the Mask Mandate likewise cannot be 

monetarily remedied. Beyond that, Plaintiffs are unaware of any precedent that precludes this 

Court from regarding the collateral consequences Plaintiffs continue to face as an injury-in-fact. 

Both sides can present plausible arguments about traceability and redressability, but the fact that 

those consequences are an injury inflicted by CDC’s Mask Mandate cannot seriously be contested.

In addition to the individual injuries inflicted both directly and indirectly by the Mask 

Mandate, FRC Action continues to expend resources opposing the Mask Mandate to advance its 

mission of combatting illegal federal overreach and interference with parental authority. It is 

distinctly possible that a clear declaratory opinion from a second court—this Court—forcefully 

explaining why CDC’s policy is arbitrary and capricious may persuade these actors that Judge 

Mizelle’s opinion is not an anomaly those actors can write off. Instead, they might cease and 

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desist. But even if this Court’s opinion does not persuade them, as this issue percolates it will 

accelerate appellate resolution—even Supreme Court resolution if necessary—that will end this 

unlawful policy. It is true that these actors might disregard even a Supreme Court opinion that 

CDC is not “following the science.” But these are political actors, and as judicial scrutiny 

intensifies on the arbitrariness of CDC’s actions, there is a substantial likelihood that these 

democratically accountable officials will disassociate themselves from unlawful actions. 

“However small that concrete interest may be due to potential difficulties in enforcement, it is not 

simply a matter of academic debate, and is enough to save this case from mootness.” Id. at 176 

(internal quotation marks omitted).

As an example of this approach, if the Supreme Court could hold that a labor dispute that 

had already been resolved was still fit for adjudication because a court opinion on a then-past 

dispute would impact and inform assessments of future labor disputes, see Super Tire Eng’g Co. 

v. McCorkle, 416 U.S. 115, 124–25 (1974), then an opinion on the legality of a Mask Mandate that 

is not yet been resolved—still on the books in the Federal Register—will certainly impact what 

sort of mandates CDC can impose in the future. FRC Action has a mission interest in that outcome.

Given that injury-in-fact has been established, the question for this Court at this point in 

litigation is one of mootness, not of standing. The distinction is that “there are circumstances in 

which the prospect that a defendant will engage in (or resume) harmful conduct may be too 

speculative to support standing, but not too speculative to overcome mootness.” Laidlaw, 528 

U.S. at 190. And as explained in Plaintiffs’ May 19, 2022 brief, there are no fewer than three 

mootness exceptions that apply here. Defendants have not carried their burden to prove otherwise.

While the threat of irreparable harm is admittedly a closer question under these 

circumstances, the threat is sufficient to place the matter of a preliminary injunction squarely 

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within this Court’s discretion. While additional harm is not certain, these facts show there is a 

substantial threat that Plaintiffs will suffer such harm. That is all the analysis requires. 

Both the Ninth Circuit and the Eleventh Circuit believed the irreparable-harm factor of the 

injunction test was satisfied in the cases Plaintiffs have previously discussed—twice. Defendants 

still have never explained why those appeals courts were wrong, or how to square Defendants’ 

position with those courts’ reasoning that the Supreme Court encourages percolation of nationwide 

controversies like the Mask Mandate to set the stage for potential nationwide resolution. Neither 

do Defendants admit that if their argument were correct no two courts could ever weigh in 

concurrently with preliminary injunctions. The Supreme Court’s practice of welcoming such 

cases, as discussed in previous briefs, cannot be reconciled with Defendants’ arguments. 

Looking to those situations—both similar to this case as APA challenges involving 

executive action imposing nationwide policy—one inference is that the appellate courts concluded 

that one district court’s granting an injunction was such a thin reed—one out-of-circuit decision—

provided so little protection that the second court concluded that the plaintiffs in the second case 

still faced a substantial threat of irreparable harm. This Court should do the same here. 

But again, Plaintiffs acknowledge that irreparable harm is a closer call than the other two 

briefing questions. If this Court does not believe the threat of additional harm suffices to meet the 

preliminary injunction standard, then Plaintiffs suggest holding that motion in abeyance so that the 

parties can proceed to file motions for summary judgment. 

May 23, 2022 Respectfully submitted,

/s/ Kenneth A. Klukowski 

Mark R. Paoletta*

D.C. Bar No. 422746 

Gene C. Schaerr*

D.C. Bar No. 416368 

Kenneth A. Klukowski 

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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

CERTIFICATE OF SERVICE

On May 23, 2022, I filed the foregoing document with the clerk of court for the United 

States District Court, Northern District of Texas, by using the Court’s CM/ECF filing system. I 

hereby certify that I have served the document on all counsel of record by a manner authorized by 

Federal Rule of Civil Procedure 5(b)(2).

 /s/ Kenneth A. Klukowski

 Kenneth A. Klukowski 

Attorney for Plaintiffs

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