Motion for Preliminary Injunction — AAPS v. FDA (W.D. Mich.)

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IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF MICHIGAN  
SOUTHERN DIVISION 
ASSOCIATION OF AMERICAN  
PHYSICIANS & SURGEONS, 
Plaintiff, 
 
 
v. 
FOOD & DRUG ADMINISTRATION; DR. 
STEPHEN M. HAHN, Commissioner of Food & 
Drugs, in his official capacity; BIOMEDICAL 
ADVANCED RESEARCH & DEVELOPMENT 
AUTHORITY; GARY L. DISBROW, Ph.D., 
Acting Director, Biomedical Advanced Research & 
Development Authority, in his official capacity; 
DEPARTMENT OF HEALTH & HUMAN 
SERVICES; and ALEX AZAR, Secretary of 
Health & Human Services, in his official capacity, 
 Defendants. 
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No. 1:20-cv-00493-RJJ-SJB 
 
Hon. Robert J. Jonker 
 
Mag. Sally J. Berens 
 
Oral Argument Requested  
MOTION FOR A PRELIMINARY INJUNCTION 
Pursuant to Federal Rule of Civil Procedure 65(a) and W.D. Mich. L. Civ. R. 7.2, the 
Association of American Physicians & Surgeons (“AAPS” or “Plaintiff”) moves for a preliminary 
injunction against the federal Department of Health & Human Services (“HHS”), two of its 
constituent agencies – the Food and Drug Administration (“FDA”) and the Biomedical Advanced 
Research & Development Authority (“BARDA”) – and their respective lead officers (collectively, 
“Defendants”), based on the following:  
1. 
Through the accompanying memorandum of law, declarations, and exhibits, 
Plaintiff demonstrates a likelihood of success on the merits of its claims with respect to the Equal 
Protection Clause (Count I) and the First Amendment (Count III), and the Administrative 
Procedure Act (Count II).  
2.  
Absent injunctive relief, Plaintiff and its members will suffer irreparable harm in 
Case 1:20-cv-00493-RJJ-SJB   ECF No. 8 filed 06/22/20   PageID.66   Page 1 of 3

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the form of deprivation of constitutional and statutory rights. 
3.
The requested injunction is in the public interest. By denying access to a safe
medication for prophylactic and early treatment of COVID-19, Defendants increase suffering and 
the loss of life, and exacerbate public fear resulting in an infringement on associative rights such 
as AAPS’s and national political parties’ conventions. It is in the public interest to eliminate 
arbitrary barriers to early access to safe medication for illness, and to reduce hoarding and wasting 
of such medication by government during this time of need. 
4.
The balance of the equities favors Plaintiff, whose members serve victims of
COVID-19 with individualized medical care. Defendants are not even using the vast majority of 
donated hydroxychloroquine (HCQ), which degrades over time, and thus Defendants cannot 
credibly argue that it would be injured by an injunction against wasting the donated medication by 
arbitrarily limiting its use.
5. Pursuant to Local Civil Rule 7(d), Plaintiff contacted the named defendants via email to
seek concurrence and determined that Defendants oppose Plaintiff’s motion. Oral argument is 
requested on this motion because of the complex legal and factual issues involved in this case. 
Therefore, Plaintiff respectfully requests that the Court enter an order:
1.
Enjoining all Defendants from enforcing the restrictions on the use of HCQ in the
Strategic National Stockpile (SNS);
2.
Ordering all Defendants to make available and distribute promptly without any
interference, for the benefit of the public holding valid prescriptions, the HCQ 
being stored in the SNS; 
3.
Ordering Defendants HHS and FDA to retract their unsupported disparaging
statements made on June 16, 2020, concerning use of HCQ; and
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4.
Enjoining all Defendants from impeding the distribution, sale or purchase of HCQ
by adult members of the public during the COVID-19 pandemic.
Dated: June 22, 2020
Respectfully submitted,
Andrew L. Schlafly
General Counsel
Association of American Physicians & Surgeons
939 Old Chester Rd.
Far Hills, NJ 07931
Tel: 908-719-8608
Fax: 908-934-9207
Email: aschlafly@aol.com
____________________________________
Lawrence J. Joseph, DC Bar No. 464777
Law Office of Lawrence J. Joseph
1250 Connecticut Ave, NW, Suite 700-1A
Washington, DC 20036
Tel: 202-355-9452
Fax: 202-318-2254
Email: ljoseph@larryjoseph.com
Counsel for Plaintiff
/s/ Lawrence J. Joseph
Case 1:20-cv-00493-RJJ-SJB   ECF No. 8 filed 06/22/20   PageID.68   Page 3 of 3

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