Defendants’ Motion to Dismiss for Lack of Jurisdiction

Summary

Opposed Defendants' Motion to Dismiss for Lack of Jurisdiction, Improper Venue, and Failure to State a Claim, filed September 16, 2021 as Document 23 in America's Frontline Doctors, et al. v. Xavier Becerra, et al., Civil Action No. 2:21-cv-702-CLM, U.S. District Court for the Northern District of Alabama, Southern Division. The defendants, including Xavier Becerra, Dr. Anthony Fauci and Dr. Janet Woodcock in their official capacities, the Food and Drug Administration and the Centers for Disease Control and Prevention, move under Rules 12(b)(1), 12(b)(3) and 12(b)(6). The motion argues the plaintiffs lack standing, the challenged actions are unreviewable under the APA, venue is improper because each of the eight Alabama plaintiffs lacks standing, and the complaint fails to state a claim. Isaac C. Belfer and James W. Harlow of the Consumer Protection Branch signed /s/.

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

AMERICA’S FRONTLINE
DOCTORS, et al.,

Plaintiffs,

v.

XAVIER BECERRA, et al.,

Defendants.

CIVIL ACTION NO.
2:21-CV-702-CLM
OPPOSED

DEFENDANTS’ MOTION TO DISMISS FOR LACK OF JURISDICTION,
IMPROPER VENUE, AND FAILURE TO STATE A CLAIM
COMES NOW Defendants Xavier Becerra, Secretary of Health and Human
Services, in his official capacity only; Dr. Anthony Fauci, Director of the National
Institute of Allergy and Infectious Diseases, in his official capacity only; Dr. Janet
Woodcock, Acting Commissioner of Food and Drugs, in her official capacity only;1
the U.S. Department of Health and Human Services; the Food and Drug
Administration; the Centers for Disease Control and Prevention; the National
Institutes of Health; and the National Institute of Allergy and Infectious Diseases
(collectively, “HHS”), by and through Isaac C. Belfer, Trial Attorney, and James W.
Harlow, Senior Trial Attorney, Consumer Protection Branch, Civil Division, U.S.

1 This Motion to Dismiss is not being submitted on behalf of Secretary Becerra, Dr. Fauci, or Dr.
Woodcock in their individual capacities.
FILED
 2021 Sep-16  AM 10:59
U.S. DISTRICT COURT
N.D. OF ALABAMA
Case 2:21-cv-00702-CLM   Document 23   Filed 09/16/21   Page 1 of 5

2

Department of Justice, and file this Motion to Dismiss pursuant to Federal Rules of
Civil Procedure 12(b)(1), 12(b)(3), and 12(b)(6).2
The Complaint should be dismissed for lack of subject matter jurisdiction
because Plaintiffs lack standing; the challenged actions are unreviewable under the
Administrative Procedure Act (“APA”); and the Court lacks jurisdiction over
Plaintiffs’ mandamus claim. The Complaint should be dismissed for improper venue
because the only potential bases for venue in this District are the claims by the eight
Plaintiffs who reside in Alabama, and each of these Plaintiffs lacks standing. Finally,
the Complaint should be dismissed for failure to state a claim upon which relief can
be granted because it fails to state a claim that the challenged actions are unlawful
under the APA; it fails to state a claim under customary international law or 45 C.F.R.
Part 46; and it fails to state a mandamus claim. The grounds for this Motion to
Dismiss are more fully set forth in the concurrently filed Memorandum of Law, the
Declaration of Suzann Burk, and the exhibits attached thereto.

Dated: September 16, 2021

OF COUNSEL:
DANIEL BARRY
Acting General Counsel
U.S. Department of Health and Human
Services
Respectfully submitted,

BRIAN M. BOYNTON
Acting Assistant Attorney General

ARUN G. RAO
Deputy Assistant Attorney General
GUSTAV W. EYLER
Director

2 Pursuant to the Court’s Order (ECF No. 20), HHS is filing a consolidated memorandum of law
in support of its Motion to Dismiss and in opposition to Plaintiffs’ Motion for a Preliminary
Injunction (ECF No. 15).
Case 2:21-cv-00702-CLM   Document 23   Filed 09/16/21   Page 2 of 5

3

PERHAM GORJI
Deputy Chief Counsel, Litigation
JAMES ALLRED
Associate Chief Counsel
Office of the Chief Counsel
U.S. Food and Drug Administration
10903 New Hampshire Avenue
White Oak 31
Silver Spring, MD 20993-0002

HILARY K. PERKINS
Assistant Director
/s/ Isaac C. Belfer

ISAAC C. BELFER
Trial Attorney
/s/ James W. Harlow

JAMES W. HARLOW
Senior Trial Attorney
Consumer Protection Branch
Civil Division
U.S. Department of Justice
P.O. Box 386
Washington, DC 20044-0386
Tel: (202) 305-7134 (Belfer)
Tel: (202) 514-6786 (Harlow)
Fax: (202) 514-8742
Email: Isaac.C.Belfer@usdoj.gov
Email: James.W.Harlow@usdoj.gov

PRIM F. ESCALONA
United States Attorney
DON B. LONG, III
Assistant United States Attorney
United States Attorney’s Office
Northern District of Alabama
1801 Fourth Avenue North
Birmingham, Alabama 35203
Tel: (205) 244-2106
Fax: (204) 244-2171
Email: Don.Long2@usdoj.Gov

Counsel for Defendants Xavier Becerra,
Secretary of Health and Human
Services, in his official capacity only;
Dr. Anthony Fauci, Director of the
National Institute of Allergy and
Case 2:21-cv-00702-CLM   Document 23   Filed 09/16/21   Page 3 of 5

4

Infectious Diseases, in his official
capacity only; Dr. Janet Woodcock,
Acting Commissioner of Food and
Drugs, in her official capacity only; the
U.S. Department of Health and Human
Services; the Food and Drug
Administration; the Centers for Disease
Control and Prevention; the National
Institutes of Health; and the National
Institute of Allergy and Infectious
Diseases
Case 2:21-cv-00702-CLM   Document 23   Filed 09/16/21   Page 4 of 5

CERTIFICATE OF SERVICE
I hereby certify that on September 16, 2021, I electronically filed the
foregoing with the Clerk of the Court using the CM/ECF system, which will send
notification of such filing to counsel of record.

/s/ James W. Harlow

JAMES W. HARLOW
Senior Trial Attorney

Case 2:21-cv-00702-CLM   Document 23   Filed 09/16/21   Page 5 of 5

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