UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JANVIERE CARLIN, et al.,
Plaintiffs,
v. Case No. 22-cv-800 (CRC)
CENTERS FOR DISEASE CONTROL
AND PREVENTION, et al.,
Defendants.
MEMORANDUM OPINION
In February 2020, with COVID-19 about to surge worldwide, the Secretary of the
Department of Health and Human Services (“HHS”) declared a public health emergency aimed
at controlling the spread of the pandemic. See Determination of Public Health Emergency, 85
Fed. Reg. 7316-01 (Feb. 7, 2020). Over the ensuing three years, federal agencies over two
Presidential administrations took numerous measures they thought were necessary to safeguard
the public against the virus. One of those measures, promulgated by the Centers for Disease
Control (“CDC”), was a February 2021 order requiring individuals to wear masks while
“traveling on any conveyance into or within the United States” and while “at any transportation
hub . . . within the United States.” See Requirement for Persons to Wear Masks While on
Conveyances and at Transportation Hubs, 86 Fed. Reg. 8025, 8029 (Feb. 3, 2021).
The plaintiffs in this case are ten commercial airline pilots who object to this mask
mandate. Proceeding pro se, they filed suit in March 2022 challenging the mandate on various
legal grounds. As relief, they seek a declaration of the mandate’s unlawfulness, vacatur of the
CDC’s order, and a permanent injunction against its enforcement. A month after the suit was
filed, Judge Kathryn K. Mizelle in the Middle District of Florida vacated the mask mandate
nationwide. See Health Freedom Def. Fund, Inc. v. Biden, 599 F. Supp. 3d 1144, 1178 (M.D.
Fla. 2022). With the pilots no longer restrained by the mandate and an appeal pending before the
Eleventh Circuit, this Court stayed proceedings in this case pending resolution of the appeal and
denied the pilots’ subsequent motion to lift the stay. See Min. Order (June 24, 2022); Order,
ECF No. 21 (Aug. 4, 2022). Then, in May 2023, the Secretary of HHS declared the end of the
public health emergency. See End of the Federal COVID-19 Public Health Emergency (PHE)
Declaration, Ctrs. for Disease Control & Prevention (May 11, 2023), https://perma.cc/7WRG-
VEZC. Though Judge Mizelle’s decision had already put a stop to the government’s
enforcement of the mandate, the Secretary’s declaration immediately triggered the end of the
mandate itself. See 86 Fed. Reg. at 8030 (“This Order . . . will remain in effect . . . until the
Secretary of Health and Human Services rescinds the determination . . . that a public health
emergency exists.”). Against this backdrop, the Eleventh Circuit vacated Judge Mizelle’s ruling
and instructed her to dismiss the case as moot. See Health Freedom Def. Fund v. Biden, 71 F.4th
888, 894 (11th Cir. 2023).
Litigation thus resumed in this case, and the government proceeded to file a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction,
arguing that the case is now moot for the same reasons cited by the Eleventh Circuit in Health
Freedom. See Defs.’ Mot. Dismiss at 1. The pilots oppose dismissal, contending that they still
face a threat of the mandate’s reinstatement if public health conditions again deteriorate. See
Pls.’ Opp’n at 6–7.
I. Legal Standard
A motion to dismiss as moot “is properly brought under Rule 12(b)(1) because mootness
itself deprives the court of jurisdiction.” Indian River Cnty. v. Rogoff, 254 F. Supp. 3d 15, 18
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(D.D.C. 2017). When considering a 12(b)(1) motion, “the Court must treat the complaint’s
factual allegations as true,” but has “an affirmative obligation to ensure that it is acting within the
scope of its jurisdictional authority.” Delta Air Lines, Inc. v. Exp.-Imp. Bank of United States,
85 F. Supp. 3d 250, 259 (D.D.C. 2015) (cleaned up). A court therefore “may consider materials
outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.”
Id. (quoting Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005)).
II. Analysis
“Federal courts lack jurisdiction to decide moot cases because their constitutional
authority extends only to actual cases or controversies.” Iron Arrow Honor Soc’y v. Heckler,
464 U.S. 67, 70 (1983). A case becomes moot “when the issues presented are no longer live or
the parties lack a legally cognizable interest in the outcome.” Larsen v. U.S. Navy, 525 F.3d 1, 3
(D.C. Cir. 2008) (quoting Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). A party
may lack a legally cognizable interest in the outcome when “intervening events make it
impossible to grant the prevailing party effective relief.” See Lemon v. Geren, 514 F.3d 1312,
1315 (D.C. Cir. 2008) (quoting Burlington N. R.R. Co. v. Surface Transp. Bd., 75 F.3d 685, 688
(D.C. Cir. 1996)). That is the case here.
As the Eleventh Circuit explained in Health Freedom, the expiration of the challenged
mandate has mooted this case. Even accepting the pilots’ complaints about masking as true, it is
no longer required. Because the mandate has already expired on its own terms, finding it lawful
would not reinstate it and finding it unlawful would not enable the Court to vacate it. See Health
Freedom, 71 F.4th at 892. Since Health Freedom, the Supreme Court has also summarily
vacated and remanded three Court of Appeals decisions on COVID vaccine requirements based
on mootness. See Defs.’ Notice of Supplemental Authority, ECF No. 32 (citing Payne v. Biden,
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No. 22-1225, 2023 WL 8531836 (U.S. Dec. 11, 2023); Biden v. Feds for Med. Freedom, No. 23-
60, 2023 WL 8531839 (U.S. Dec. 11, 2023); and Kendall v. Doster, No. 23-154, 2023 WL
8531840 (U.S. Dec. 11, 2023)). Likewise, here, there is “nothing for [the Court] to remedy,” and
the case is presumptively moot unless an exception to mootness applies. See Spencer v. Kemna,
523 U.S. 1, 18 (1998).
The pilots press two mootness exceptions: (1) the government’s voluntary cessation of
the challenged practice and (2) that an emergency measure of this sort is capable of repetition yet
evading judicial review. See Pls.’ Opp’n at 2, 4. Finding neither exception applies, the Court
will dismiss the case as moot.
A. Voluntary Cessation
The pilots first suggest the Secretary’s decision to end the public health emergency
constitutes voluntary cessation. Id. at 2. Under the voluntary cessation doctrine, a defendant’s
own decision to stop the challenged conduct will not deprive a court of the power to hear the
case unless “(1) there is no reasonable expectation . . . that the alleged violation will recur, and
(2) interim relief or events have completely and irrevocably eradicated the effects of the alleged
violation.” Larsen, 525 F.3d at 4 (cleaned up). This exception prevents defendants from evading
accountability by ceasing challenged conduct during litigation only to “return to [their] old
ways” after the case is declared moot. See People for the Ethical Treatment of Animals v.
USDA, 918 F.3d 151, 157 (D.C. Cir. 2019) (quoting United States v. Concentrated Phosphate
Exp. Ass’n, 393 U.S. 199, 203 (1968)). The defendant shoulders a “heavy burden” of showing
that there is no reasonable expectation that its conduct will recur. Id. (citation omitted).
Though the pilots do not refute that the end of the public health emergency triggered the
expiration of the mandate, and thereby eradicated its effects, they identify several factors which
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they believe demonstrate the federal government’s clear intention to reinstitute the mandate.
Pls.’ Opp’n at 5–8. They point to current CDC recommendations which still encourage the use
of masks in transportation. Id. at 5. They emphasize the government’s defense of the mandate’s
legality in other cases, especially Health Freedom. Id. at 8. And they highlight statements of
prominent public officials, such as President Biden and Dr. Anthony Fauci, cautioning the public
about the possibility of another pandemic in the future. Id. at 7, 8. Taken together, the pilots
contend, this evidence shows the government’s clear intention to reimpose the mandate. The
Court disagrees.
The pilots’ evidence does not create a reasonable expectation that the mask mandate will
be reinstated. First, CDC recommendations are just that—recommendations. As the government
points out, there is nothing currently stopping the CDC from turning its recommendations into a
mandate, yet it has not done so. Defs.’ Reply at 3. Second, the government’s arguments in other
cases in favor of the mandate’s legality do not indicate a desire to reimpose it. As other courts
have held, the government’s interest in establishing its authority to enact certain measures is
insufficient to skirt mootness when a measure is no longer in effect. See, e.g., Calvary Chapel of
Bangor v. Mills, 52 F.4th 40, 49–50 (1st Cir. 2022). Finally, President Biden and Dr. Fauci’s
statements encouraging safe behavior and promoting public preparedness in the event of a future
outbreak should be expected from responsible public health officials and do not evince any
present intent to reinstate this specific mask mandate. Because there is no reasonable
expectation that the mandate will be reissued, and its expiration has eradicated its effects, the
voluntary cessation exception does not apply.
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B. Capable of Repetition Yet Evading Review
The pilots also invoke the exception to mootness where challenged conduct is capable of
repetition yet evading review. Pls.’ Opp’n at 4. This narrow exception arises where “(1) the
challenged action is in its duration too short to be fully litigated prior to its cessation or
expiration, and (2) there is a reasonable expectation that the same complaining party would be
subjected to the same action again.” Clarke v. United States, 915 F.2d 699, 704 (D.C. Cir. 1990)
(en banc) (cleaned up). To satisfy this standard, “there must be a reasonable expectation that the
same complaining party would be subjected to the same action again” such that “the same
parties will engage in litigation over the same issues in the future.” Pharmachemie B.V. v. Barr
Laboratories, Inc., 276 F.3d 627, 633 (D.C. Cir. 2002) (cleaned up) (emphasis in original). A
“mere physical or theoretical” possibility of recurrence is not enough to invoke the exception.
Murphy v. Hunt, 455 U.S. 478, 482 (1982).
Though it is possible that another mask mandate could be imposed for too short a time to
reach full judicial review, the pilots’ assertion that they themselves will be subject to the same
mask mandate in the future is entirely theoretical. As the Eleventh Circuit recognized in Health
Freedom, “since the Public Health Services Act’s enactment in 1944, no government authority
has ever invoked the law to require masking for common respiratory diseases.” 71 F.4th at 893.
Therefore, the pilots cannot reasonably expect the CDC to promulgate mask requirements in the
absence of a new pandemic on the scale of COVID-19. And while “a legal degree confers many
advantages,” it does not equip the Court “to accurately predict if or when another global
respiratory pandemic will infect our shared world.” Id. Moreover, in such a scenario, the same
dispute may not arise between the same parties as “there is no guarantee that . . . such a mandate
would come from the CDC as opposed to another agency.” Id. at 894. Accordingly, there is no
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“reasonable expectation” that the CDC’s mask mandate will once again affect these particular
pilots.
The pilots cite a number of cases where courts have found various pandemic mandates
not moot. Pls.’ Opp’n at 10–26. But none of them were decided after the end of the public
health emergency, and thus they are of no help to the pilots. The D.C. Circuit’s unpublished
decision in Wall v. TSA, No. 21-1220, 2023 WL 1830810 (D.C. Cir. Feb. 9, 2023), is no
different. Wall held that a challenge to the expired masking orders of the Transportation
Security Administration (“TSA”) was not moot because “it [was] not ‘absolutely clear’ that the
TSA will not reinstitute its masking directives.” 2023 WL 1830810 at *2. However, as the
government observes, “Wall was both briefed and decided while the COVID-19 public-health
emergency declaration remained in full effect.” Defs.’ Reply at 2. Given that timing, the
government acknowledged in Wall that there was a “‘more-than-speculative chance that TSA
will invoke the same authorities’ to readopt another masking directive in the future.” 2023 WL
1830810 at *2 (citing TSA’s supplemental briefing on mootness). No such likelihood exists here
given the expiration of the public health emergency. Accordingly, neither exception to mootness
applies and the Court lacks jurisdiction over this case.
III. Conclusion
For the foregoing reasons, the Court will grant Defendants’ Motion to Dismiss. A
separate Order will follow.
CHRISTOPHER R. COOPER
United States District Judge
Date: December 22, 2023
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