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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’ REPLY TO PLAINTIFFS’ RESPONSE 

TO THE COURT’S MAY 13, 2022 ORDER

On May 13, the Court asked the parties to file briefs addressing (1) mootness, (2) injury-infact, and (3) irreparable harm in light of the expiration of the Transportation Security Administration 

(“TSA”) orders assisting with the enforcement of the U.S. Centers for Disease Control and 

Prevention’s (“CDC”) transportation masking requirement. Defendants and Plaintiffs submitted 

response briefs on May 19. See ECF No. 41 (Defs.’ Br.); ECF No. 42 (Pls.’ Br.). Defendants 

respectfully submit the following reply. 

Mootness. Plaintiffs contend that this case remains a live dispute over which this Court may 

exercise its jurisdiction. Pls.’ Br. 3–4. On that bottom line, the parties appear to be in agreement at 

this juncture, as Defendants “do not contend that this case is moot.” Defs.’ Br. 2. While this renders 

much of Plaintiffs’ extended discussion beside the point, Pls.’ Br. 4–12, their misplaced reliance on 

the “collateral consequences” doctrine bears mention, Pls.’ Br. 9–11.

As Plaintiffs acknowledge, the “collateral consequences” doctrine is primarily a criminal law 

rule that allows courts to continue to exercise jurisdiction over an appeal after the defendant has served 

his sentence if there are “any collateral legal consequences [that] will be imposed on the basis of the 

challenged conviction.” Sibron v. New York, 392 U.S. 40, 57 (1968). The Fifth Circuit has applied the 

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rule in civil cases where “the plaintiff’s primary injury . . . has ceased . . . if the challenged conduct 

continues to cause other harm . . . that the court is capable of preventing.” Allied Home Morg. Corp. v. 

U.S. Dep’t of Housing & Urban Dev., 618 F. App’x 781, 787 (5th Cir. 2015) (finding case moot after 

defendant agency withdrew the challenged agency actions and rejecting plaintiff’s argument that the 

collateral consequences doctrine permitted the court to retain jurisdiction); see also Dailey v. Vought 

Aircraft Co., 141 F.3d 224, 227 (5th Cir.1998). Plaintiffs assert that “[t]here are collateral consequences 

to the CDC’s policy that FRC Action members are dealing with,” namely, masking requirements 

imposed by airports in a handful of jurisdictions across the country. Pls.’ Br. 10–11. 

As Defendants previously explained, these unrelated masking requirements are not “collateral 

consequences” of the masking order. Defs.’ Reply Re. Court’s Apr. 18, 2022 Order, ECF No. 32, at 

5–6. First, local mask requirements are not “caused” by the masking order. Rather, they are a result 

of the independent decisions of other entities—state and local governments, and private firms—

choosing to follow CDC’s expert guidance about indoor masking, which, outside the context of the 

transportation masking order, is non-binding. Second, the Court is not capable of preventing entities 

from imposing these requirements. Plaintiffs have not sued any entity, such as New York City or Los 

Angeles, that requires mask-wearing at their airports. They have never asserted a legal basis for 

preventing CDC from issuing non-binding recommendations on masking, and they have never 

claimed that the Court can prevent other entities from imposing masking requirements that take those 

recommendations into account. Plaintiffs speculate that “a second court injunction could persuade 

non-CDC actors to conclude that the Mask Mandate is no more, and thus that they should drop their 

mandates” as well, Pls.’ Br. 3, but local and private requirements would likely remain regardless of 

whether the masking order “exists” or not. Indeed, the persistence of masking requirements after the

Health Freedom decision underscores just how improbable Plaintiffs’ suggestion is. While there is no 

need for the Court to reach this question in light of the parties’ agreement that the case is not now 

moot, it certainly should not ground any exercise of jurisdiction on the imagined “collateral 

consequences” of an order that is no longer in effect and is not being enforced.

Injury-in-Fact. Plaintiffs’ response initially focuses on the question of whether they had an 

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injury-in-fact at the time they filed suit, the relevant point in time at which the Court determines the 

existence of Article III standing. Pls.’ Br. 12–16. But Defendants have not contested Plaintiffs’ Article 

III standing in this case. And even if the Court assumes that Plaintiffs properly pled standing when 

they filed suit, it does not ineluctably follow that Plaintiffs are suffering an injury-in-fact today as a 

result of the masking order. In truth, no such present injury exists.

Plaintiffs briefly address this problem by insisting that that they continue to be threatened with 

the injuries that gave rise to their standing. Arguing that the masking order “can be reimposed at any 

time” and “agency actors are prepared to reengage when able to do so,” Plaintiffs analogize their suit 

to “a pre-enforcement challenge” to a statute. Pls.’ Br. 17–18. The premise of this analogy is false.

The transportation masking order cannot be enforced unless and until Defendants obtain relief on 

appeal in Health Freedom, and by that time, the public health situation may be very different. 

Threatened harms “‘must be certainly impending to constitute injury in fact’”; mere “‘allegations of possible

future injury’ are not sufficient.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (emphasis 

original) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)). 

Irreparable Harm. Plaintiffs argue that they still “face a substantial threat of irreparable 

harm.” Pls.’ Br. 18–19. But as explained elsewhere, see Defs.’ P.I. Opp’n, ECF No. 24, at 10–15, 

Plaintiffs have never been able to establish irreparable harm in this case. That is even more true today: 

Courts elsewhere have recognized that “the current state of the Mask Order likely renders Plaintiff 

incapable of demonstrating irreparable harm” because Defendants are not requiring any public 

transportation passenger to wear a mask, and there is no imminent risk of Defendants doing so simply 

because an appeal is pending. Andreadakis v. CDC, No. 3:22-cv-52, 2022 WL 1204771, at *6 (E.D. Va. 

Apr. 22, 2022); see also Seklecki v. CDC, Hr’g Tr. at 5:24–6:18 (Apr. 26, 2022), ECF No. 37-1 (“[T]here’s

no irreparable harm after the ruling of the judge in the Middle District of Florida.”). Other entities 

may be imposing what Plaintiffs characterize as “nonrecoverable compliance costs” by continuing to 

require the wearing of masks, Pls.’ Br. 18 (quotation omitted), but an injunction against Defendants 

would do nothing to prevent those costs from being incurred.

Next Steps. Plaintiffs assert that the Court has “three alternative routes forward”: (1) grant 

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Plaintiffs’ motions for a preliminary injunction, (2) hold the motions for preliminary injunction in 

abeyance while the parties proceed to file dispositive motions, or (3) render final judgment on the 

extensive filings currently before the Court. Pls.’ Br. 19–20. Option (1) would be improper for all the

reasons Defendants gave in their opposition to Plaintiffs’ motions for preliminary relief and in their 

supplemental filings, but particularly because Plaintiffs have failed to demonstrate irreparable harm. 

If the Court decides to rule on Plaintiffs’ motions, it should deny them. Option (3) would also be in

error; as explained elsewhere, the Court cannot, consistent with Federal Rule of Civil Procedure 56,

enter summary judgment based solely on the preliminary injunction papers. Van Duyne v. CDC, No. 

4:22-cv-00122-O, Defs.’ Resp. to Pl. Van Duyne’s Mar. 30, 2022 Br., ECF No. 21, at 2–5. Option (2), 

by contrast, tracks Defendants’ own suggestion in prior filings that the Court hold the motions for 

preliminary relief in abeyance. Defs.’ Br. 2–3; Defs.’ Reply Re. Health Freedom, ECF No. 32, at 1. 

Adopting this path in no way prejudices Plaintiffs. Should CDC obtain relief on appeal in Health 

Freedom, and determine that a mask-wearing requirement is necessary to protect public health at that 

time, the Court could then act on the pending motions for preliminary relief. 

Accordingly, Defendants respectfully urge the Court to hold Plaintiffs’ motions in abeyance, 

pending further proceedings in the Health Freedom case, or deny them.

Dated: May 23, 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

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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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