Reaffirming the Absence of a Private Right of Action under the ACAA and Clarifying Post-Pandemic Mootness: Commentary on Abadi v. Fauci, 24-2365-cv (2d Cir. 2025)

Introduction

Abadi v. Fauci is a pro se appeal arising out of the COVID-19 era masking requirements applicable to airports and commercial aircraft. Aaron Abadi sued a sweeping array of defendants—federal agencies and officials, more than forty domestic and international airlines (and some employees), and two medical organizations—alleging disability discrimination, civil-rights violations, and statutory breaches following his inability to fly un-masked during 2020-2022. He also sought to invalidate the federal mask mandates promulgated by Executive Order 13998 (2021) and the Centers for Disease Control and Prevention’s Transportation Mask Order (2021).

The Southern District of New York (Liman, J.) dismissed the 280-page complaint on multiple Rule 12 grounds. The Second Circuit, in a non-precedential Summary Order, affirmed that dismissal (except as to Silver Airways, which remains stayed in bankruptcy). Although the Order does not create binding precedent, it reaffirmed several important doctrinal points—most notably the continued force of Lopez v. JetBlue Airways (no private right under the Air Carrier Access Act) and the application of mootness principles to lapsed pandemic restrictions.

Summary of the Judgment

• Bankruptcy Stay: Appeal remains automatically stayed as to Silver Airways under 11 U.S.C. § 362(a); appeal proceeds against all other appellees.
• Mootness: Challenges to the federal mask mandates are moot because both the CDC Order and Executive Order 13998 have been rescinded. The “capable-of-repetition-yet-evading-review” exception does not apply.
• Air Carrier Access Act: In line with Lopez v. JetBlue Airways, the ACAA contains no express or implied private right of action; claims dismissed.
• §§ 1983, 1985, 1986: Airlines are private actors; conspiracy allegations insufficient; § 1986 fails without a viable § 1985 claim.
• Rehabilitation Act: No individual liability and no plausible causal link between disability and exclusion from flight.
• Right to Travel & State/City Claims: Dismissed for lack of state action, preemption by the Airline Deregulation Act (ADA) and/or ACAA, or sovereign-immunity bars.
• Pro Se Appellate Obligations: Issues not briefed are deemed abandoned.

Analysis

1 – Precedents Cited and Their Influence

1. Lopez v. JetBlue Airways, 662 F.3d 593 (2d Cir. 2011) – Central precedent on the ACAA. The Court faithfully applied its holding that Congress vested exclusive enforcement authority in the Department of Transportation, thereby foreclosing private litigation. Abadi’s policy arguments could not surmount the panel rule that only the en banc court or the Supreme Court can overturn circuit precedent.
2. Queenie Ltd. v. Nygard Int’l, 321 F.3d 282 (2d Cir. 2003) – Guided the Court in determining the scope of the automatic bankruptcy stay. Because no immediate adverse economic consequence to the debtor (Silver Airways) would follow from continuing the appeal against other airlines, the stay remained only as to Silver.
3. Dennin v. Connecticut Interscholastic Athletic Conf., 94 F.3d 96 (2d Cir. 1996) and Russman v. Board of Educ., 260 F.3d 114 (2d Cir. 2001) – Applied to reject the capable-of-repetition exception. Abadi failed to show a reasonable likelihood that the same parties would again litigate over mask mandates.
4. Health Freedom Def. Fund v. President, 71 F.4th 888 (11th Cir. 2023) – Persuasive authority cited to underscore that challenges to the CDC mask order became moot after expiration.
5. Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) – Governed pleading sufficiency across all claims, especially conspiracy theories under §§ 1983/1985.

2 – The Court’s Legal Reasoning

The panel proceeded methodically, mirroring the district court’s layered dismissal:

• Subject-Matter Jurisdiction: Challenges to mask mandates became non-justiciable once the mandates terminated. The Court emphasized that conjecture about potential future pandemics cannot supply an actual case or controversy.
• Automatic Stay Severance: Using Queenie, the Court refined when a § 362 stay extends beyond the debtor, clarifying that mere co-defendant status is insufficient to stall an appeal.
• Statutory Private Rights: Abadi invited the Court to reinterpret the ACAA in light of alleged DOT enforcement inadequacies. The panel reaffirmed textualist constraints: unless Congress expressly or impliedly creates a right, courts may not conjure one.
• State-Action Doctrine: Private airlines do not become state actors by complying with federal directives; mask compliance lacked the “close nexus” required under various state-action tests (public function, entwinement, joint action).
• Conspiracy Allegations: The panel reiterated that even at the pleading stage, a plaintiff must allege more than parallel conduct or conclusory statements; a “meeting of the minds” is indispensable.
• Federal Preemption & Sovereign Immunity: Invoking the ADA’s broad preemption clause and established immunity doctrines, the Court insulated both regulatory space and the federal fisc from patchwork state-law claims.

3 – Potential Impact

Although labeled “non-precedential,” the Order carries practical influence:

• Litigation Finality on Mask Mandates: The Second Circuit aligns with other circuits deeming rescinded COVID-19 directives moot, discouraging further federal mask-mandate litigation unless a new mandate arises.
• ACAA Enforcement Pathways: Air travelers with disabilities must pursue remedies before the DOT; district-court actions remain barred absent congressional amendment.
• Automatic Stay Clarification: Airlines in bankruptcy cannot universally freeze multidefendant appeals; practitioners must analyze debtor–co-defendant relationships before invoking § 362(a).
• Pro Se Appellate Practice: The Court’s reminder that unbriefed issues are forfeited offers guidance to pro se appellants and courts managing sprawling appeals.

Complex Concepts Simplified

• Mootness: A case becomes moot when the underlying dispute disappears (e.g., a regulation is repealed). Courts lose constitutional power to decide abstract questions.
• Capable-of-Repetition Exception: A narrow carve-out allowing review of otherwise-moot cases, but only when (1) the challenged action is too short-lived to be fully litigated and (2) the same parties are likely to face it again.
• Private Right of Action: The ability of an individual to sue directly under a statute. Courts look for congressional intent, usually expressed in explicit language or a tightly-drawn remedial scheme.
• State-Action Doctrine: Constitutional claims generally require governmental—not private—conduct. Courts ask whether a private entity’s behavior is fairly attributable to the state.
• Automatic Bankruptcy Stay (11 U.S.C. § 362): Immediately halts lawsuits against the debtor. It extends to non-debtors only in rare circumstances where the litigation would economically harm the estate (e.g., suits against guarantors).
• Preemption (Airline Deregulation Act): Federal law displaces state laws “related to a price, route, or service” of an air carrier, shielding airlines from disparate state regulation.

Conclusion

Abadi v. Fauci consolidates several strands of post-pandemic and aviation law. The Second Circuit:

1. Confirmed that rescinded COVID-19 measures render associated lawsuits moot, absent concrete prospects of recurrence;
2. Reaffirmed Lopez and the absence of a private right under the ACAA, maintaining the DOT’s exclusive enforcement role;
3. Clarified the limited reach of the automatic bankruptcy stay over co-defendants;
4. Emphasized rigorous pleading standards for conspiracy and state-action allegations;
5. Protected the uniformity of airline regulation through preemption and sovereign immunity principles.

While the Summary Order lacks formal precedential force, its reasoning will guide district courts, litigants, and policymakers confronting residual COVID-19 disputes and future aviation-disability litigation. Unless Congress amends the ACAA to authorize private suits, passengers must continue to channel grievances through administrative enforcement, and plaintiffs considering constitutional challenges face an uphill battle once the contested regulation no longer exists.