Court filing
Joint Proposed Docket-Control Order — Apter v. HHS (S.D. Tex.)
Filed November 28, 2023 in Apter v. Department of Health and Human Services; one of 66 filings from this case.
Record facts
| Court | U.S. District Court for the Southern District of Texas, Galveston Division |
|---|---|
| Filed | 2023-11-28 |
U.S. District Court for the Southern District of Texas, Galveston Division · No. 3:22-cv-00184 · Doc. 54 · 2023-11-28 · Docket on CourtListener
Full text
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
Robert Apter, et al.
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Plaintiffs,
CIVIL ACTION NO. 3:22-cv-184
VS.
U.S. Department of Health and Human
Services, et al.
Defendants.
[JOINT PROPOSED] DOCKET-CONTROL ORDER
This case will be controlled by the following schedule:
DEADLINES
Plaintiffs’ General Position: There is no need for another round of briefing on
whether Plaintiffs have standing. That issue was fully briefed by the parties (Dkts.
25, 27, 42), including whether Plaintiffs’ injuries are traceable to the FDA’s ultra
vires actions, and then argued in-person before the Court, and the Complaint has
not been amended since that time. Throughout these proceedings, the parties, this
Court, and the Fifth Circuit have treated standing as separate and independent
from the sovereign-immunity issues on which this Court and the Fifth Circuit
ruled. The prior briefing is therefore more than sufficient for resolving the matter
under the motion-to-dismiss standard, and the Fifth Circuit’s opinion on sovereign
immunity does not affect whether Plaintiffs have standing. There is no reason for
Defendants’ requested do-over on briefing the issue of standing.
This case has already been pending for almost 18 months. The Court should
determine standing based on the existing briefing, and in the meantime the parties
should proceed with the requirements that Plaintiffs propose below, including
production of an administrative record and a deadline for seeking discovery—
neither of which resolve the merits of the case—and deadlines for summary
judgment. A decision on allowing discovery is premature before Defendants
produce the administrative record, and, in any event, Defendants are wrong that
discovery is categorically barred in ultra vires cases. See, e.g., Nat’l Ass’n of Postal
Supervisors v. USPS, No. 1:19-CV-2236, 2023 WL 5221367, at *1 (D.D.C. Aug. 15,
2023); Texas v. DHS, No. 6:23-CV-00007, 2023 WL 2842760, at *3 (S.D. Tex. Apr.
7, 2023). Contrary to the purpose of a Docket Control Order, Defendants’ proposal
below declines to set any specific deadlines for any of those important mileposts.
Case 3:22-cv-00184 Document 54 Filed on 11/28/23 in TXSD Page 1 of 4
Defendants’ General Position: The Fifth Circuit “remand[ed] for the district
court to address standing and any other jurisdictional issues in the first instance.”
Apter v. Dep’t of Health & Hum. Servs., 80 F.4th 579, 595 (5th Cir. 2023). Because
Defendants’ original motion to dismiss is no longer pending, the appropriate way
to proceed is for Defendants to file a renewed motion to dismiss for lack of subject
matter jurisdiction. See Fed. R. Civ. P. 12(g)(2), (h)(3). That renewed motion would
account for the Fifth Circuit’s opinion, which, contrary to Plaintiffs’ argument,
affects the standing analysis. For example, the Fifth Circuit upheld the dismissal
of Plaintiffs’ Administrative Procedure Act (“APA”) claims, narrowing this case to
Plaintiffs’ ultra vires claim that FDA has authority to “inform” consumers but not
to “recommend consumers ‘stop’ taking medicine.” Apter, 80 F.4th at 587. Thus,
Plaintiffs now must show their injuries are traceable, not to FDA’s statements
about ivermectin generally, but to the recommendations that are allegedly ultra
vires. See, e.g., Elizondo v. Hinote, No. 2:20-CV-00191, 2022 WL 4287646, at *4
(S.D. Tex. May 6, 2022), report and recommendation adopted, No. 2:20-CV-
00191, 2022 WL 3225400 (S.D. Tex. Aug. 9, 2022) (considering a “second motion
to dismiss” for lack of standing based on “a recent Fifth Circuit case”).
The Court should resolve Defendants’ renewed motion to dismiss for lack of
subject matter jurisdiction before proceeding to the merits because of “the well-
established rule that a trial court must determine the existence of subject matter
jurisdiction before reaching the merits of a case.” Getty Oil Corp. v. Ins. Co. of N.
Am., 841 F.2d 1254, 1261 (5th Cir. 1988). Indeed, the Minute Entry for the
September 14, 2022, Initial Conference states that “[d]iscovery is stayed until
Judge Brown issues a ruling the pending Motion to Dismiss” for lack of subject
matter jurisdiction and failure to state a claim and that the “Court will enter a
docket control order if the Motion to Dismiss is denied.” If the Court denies
Defendants’ renewed motion to dismiss, the parties should proceed straight to
cross-motions for summary judgment on the remaining ultra vires claim, which is
“a question of law” that requires no discovery. Jean v. Gonzales, 452 F.3d 392, 396
(5th Cir. 2006) (citing cases).
0.1. Plaintiffs’ Position: N/A; Defendants’ Position: January 26, 2024.
DEADLINE FOR DEFENDANTS’ RENEWED MOTION TO
DISMISS
FOR
LACK
OF
SUBJECT
MATTER
JURISDICTION. Defendants will file a renewed motion to
dismiss for lack of subject matter jurisdiction by January 26, 2024.
Plaintiffs’ opposition will be due February 23, 2024, and
Defendants’ reply will be due March 22, 2024.
1. __N/A__ [Plaintiffs will not amend] DEADLINE TO AMEND THE
PLEADINGS. Parties may amend pleadings by this date without
leave of court, but only in compliance with Rule 6 in Judge
Brown’s procedures. If the plaintiff(s) file(s) an amended
complaint by this date, the defendant(s) may file a responsive
pleading in accordance with Fed. R. Civ. P. 15(a)(3). After
Case 3:22-cv-00184 Document 54 Filed on 11/28/23 in TXSD Page 2 of 4
expiration of this deadline, a party seeking to amend a pleading
must file a motion for leave demonstrating both good cause and
excusable neglect in accordance with Fed. R. Civ. P. 6(b)(1)(B).
2. __N/A__ [No parties will be added] DEADLINE TO ADD NEW
PARTIES. Unless a case has been removed from state court, new
parties may be added by this date without leave of court. After the
expiration of this deadline, a party seeking to add a new party
must file a motion for leave demonstrating both good cause and
excusable neglect in accordance with Fed. R. Civ. P. 6(b)(1)(B).
The attorney causing the addition of new parties will provide
copies of this order and all orders previously entered in the case to
new parties. Note: If a case has been removed from state court, a
motion for leave must be filed seeking permission to add new
parties.
3. __N/A__ [The parties do not anticipate any experts] Identification of
plaintiffs’ experts and production of experts’ reports in the
form required by Fed. R. Civ. P. 26(a)(2)(B).
4. __N/A__ [The parties do not anticipate any experts] Identification of
defendants’ experts and production of experts’ reports in the
form required by Fed. R. Civ. P. 26(a)(2)(B).
4.1. Plaintiffs’ Position: December 11, 2023; Defendants’ Position: N/A1
DEADLINE TO PRODUCE ADMINISTRATIVE RECORD.
4.2. Plaintiffs’ Position: January 12, 2024; Defendants’ position: N/A
DEADLINE
FOR
PLAINTIFFS
TO
MOVE
FOR
DISCOVERY. Plaintiffs maintain that in the event the
administrative record is not sufficient for resolution of the
disputes in this case, discovery may be appropriate. See, e.g., City
of Dallas, Tex. v. Hall, No. 3:07-cv-60, 2007 WL 3257188, at *5
(N.D. Tex. Oct. 29, 2007).
1 Defendants’ Position: As discussed above, the Minute Entry for the September
14, 2022, Initial Conference states that “[d]iscovery is stayed until Judge Brown
issues a ruling the pending Motion to Dismiss” for lack of standing, among other
grounds, ECF No. 25, and that the “Court will enter a docket control order if the
Motion to Dismiss is denied.” The Court has not yet ruled on Defendants’
argument that Plaintiffs lack standing. If the Court concludes that Plaintiffs have
standing, then within fourteen (14) days of the Court’s decision, the Parties will
submit a new Joint Proposed Docket-Control Order with proposed deadlines for
the remaining proceedings in this case. As discussed above, the remaining ultra
vires claim is “a question of law” that requires no discovery. Jean, 452 F.3d at
396.
Case 3:22-cv-00184 Document 54 Filed on 11/28/23 in TXSD Page 3 of 4
5. Plaintiffs’ Position: May 10, 2024; Defendants’ Position: N/A
COMPLETION OF DISCOVERY, IF ALLOWED. Written
discovery requests are not timely if they are filed so close to this
deadline that the recipient would not be required under the
Federal Rules of Civil Procedure to respond until after the
deadline.
6. Plaintiffs’ Position: June 10, 2024; Defendants’ Position: N/A
DISPOSITIVE
MOTIONS,
IF
DISCOVERY
WAS
ALLOWED.
6.1. Plaintiffs’ Position: March 8, 2024; Defendants’ Position: N/A
DISPOSITIVE MOTIONS, IF NO DISCOVERY WAS
ALLOWED.
7. __N/A__ [This case will almost certainly be resolved on cross-motions]
ALL OTHER PRETRIAL MOTIONS.
8. __N/A__ [This case will almost certainly be resolved on cross-motions]
EXCHANGE PRETRIAL MATERIALS. Parties should
exchange and begin to confer on motions in limine, exhibit lists,
and deposition designations.
9. __N/A__ [This case will almost certainly be resolved on cross-motions]
DOCKET CALL is set at 9:30 a.m. All Pretrial Filings (exhibit
list, witness list, etc.) required under Rule 11 of the Galveston
District Court Rules of Practice must be filed at least one day
before this date. At docket call, the court may announce rulings on
any pending matters, the case will be set for trial on a date
certain within the next 60 days, and further pretrial orders
may be issued.
Estimated Trial Time: ___N/A______ days.
SIGNED on Galveston Island this ____ day of _______________, 20_____.
___________________________
JEFFREY VINCENT BROWN
UNITED STATES DISTRICT JUDGE
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