Unopposed Joint Motion to Set a Briefing Schedule — America's Frontline Doctors v. Becerra (Dkt. 19)

Summary

Unopposed Joint Motion to Set a Briefing Schedule, Document 19, filed August 20, 2021 in America's Frontline Doctors, et al. v. Xavier Becerra, et al., Civil Action No. 2:21-CV-702-CLM, in the U.S. District Court for the Northern District of Alabama, Southern Division. HHS and Plaintiffs jointly ask for consolidated briefing on Plaintiffs' motion for a preliminary injunction and HHS's anticipated motion to dismiss. The motion states that Plaintiffs filed their Complaint on June 10, 2021 challenging the Emergency Use Authorizations for COVID-19 vaccines. It proposes that HHS file by September 16, 2021 a consolidated brief not to exceed 45 pages, followed by Plaintiffs' response and HHS's reply. It states that the Individual Defendants do not oppose.

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“Unopposed Joint Motion to Set a Briefing Schedule — America's Frontline Doctors v. Becerra (Dkt. 19).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/gov-uscourts-alnd-177186-19-0-2180a0106e/, SHA-256 e14eb0d2d0d0028136aadc94281c45824fd8a4c7fa7d45f85e85d010d308fa2f.

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Case 2:21-cv-00702-CLM Document 19 Filed 08/20/21 Page 1 of 6 FILED
2021 Aug-20 PM 05:38
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

AMERICA’S FRONTLINE
DOCTORS, et al.,

Plaintiffs,
CIVIL ACTION NO.
v. 2:21-CV-702-CLM
UNOPPOSED
XAVIER BECERRA, et al.,

Defendants.

JOINT MOTION TO SET A BRIEFING SCHEDULE

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; the National Institute of Allergy and Infectious Diseases; and,

in their official capacities, Xavier Becerra, Secretary of Health and Human Services;

Dr. Anthony Fauci, Director of the National Institute of Allergy and Infectious

Diseases; and Dr. Janet Woodcock, Acting Commissioner of Food and Drugs

(collectively, “HHS”) and Plaintiffs jointly request that the Court enter the briefing

schedule described below, which provides for consolidated briefing for Plaintiffs’

motion for a preliminary injunction and HHS’s anticipated motion to dismiss.

Secretary Becerra, Dr. Fauci, and Dr. Woodcock in their individual capacities

(collectively, the “Individual Defendants”) do not oppose this motion.
Case 2:21-cv-00702-CLM Document 19 Filed 08/20/21 Page 2 of 6

On June 10, 2021, Plaintiffs filed their 110-page Complaint, which generally

challenges the Emergency Use Authorizations issued for COVID-19 vaccines

manufactured by Pfizer-BioNTech, Moderna, and Johnson & Johnson (Janssen). See

Compl., ECF No. 10. Plaintiffs allege six claims against HHS. See Compl. ¶¶ 257–

85. Plaintiffs also allege a seventh claim, which seeks money damages, against the

Individual Defendants. See id. ¶¶ 286–96.

On June 28, 2021, Plaintiffs effected service on HHS. See Partial Return of

Service, ECF No. 17. HHS’s deadline to respond to the Complaint is August 27,

2021. See Fed. R. Civ. P. 12(a)(2).

On July 19, 2021, Plaintiffs filed a 66-page motion for a preliminary

injunction with 12 exhibits. Pls.’ PI Mot., ECF No. 15. On July 22, 2021, the Court

declined to “enter a briefing schedule for the motion for preliminary injunction [15]

until after all parties have been served and appear.” Text Order, ECF No. 16. On

August 18, 2021, Plaintiffs effected service on the Individual Defendants. The

Individual Defendants’ deadline to respond to the Complaint is October 18, 2021.

See Fed. R. Civ. P. 12(a)(3).

HHS has informed Plaintiffs that it intends to move to dismiss the Complaint

under Federal Rules of Civil Procedure 12(b)(1), 12(b)(3), and 12(b)(6). For these

2
Case 2:21-cv-00702-CLM Document 19 Filed 08/20/21 Page 3 of 6

grounds and others, HHS also intends to oppose Plaintiffs’ motion for a preliminary

injunction.

In light of the overlapping issues presented by Plaintiffs’ pending motion for

a preliminary injunction and HHS’s intended motion to dismiss, Plaintiffs and HHS

believe it would be most efficient to consolidate the briefing on those two motions.

Therefore, Plaintiffs and HHS now jointly move the Court to enter the following

briefing schedule:

Date Event

September 16, 2021 HHS shall file a consolidated motion to
dismiss and opposition to Plaintiffs’
motion for a preliminary injunction
(not to exceed 45 pages)

30 days after HHS files its consolidated Plaintiffs shall file a consolidated
motion to dismiss and opposition to opposition to HHS’s motion to dismiss
Plaintiffs’ motion for a preliminary and reply in support of Plaintiffs’
injunction motion for a preliminary injunction
(not to exceed 45 pages)

21 days after Plaintiffs file their HHS shall file a reply in support of its
consolidated opposition to HHS’s motion to dismiss (not to exceed 25
motion to dismiss and reply in support pages)
of Plaintiffs’ motion for a preliminary
injunction

Consistent with the Court’s sample Initial Order, Plaintiffs’ and HHS’s briefs

shall use 14-point, Times New Roman font in the body and 12-point, Times New

Roman font in footnotes. The text of briefs shall be double-spaced, except for

3
Case 2:21-cv-00702-CLM Document 19 Filed 08/20/21 Page 4 of 6

quotations exceeding 50 words, which may be block indented from the left and right

margins and single-spaced.

Plaintiffs reserve their right to file an amended complaint pursuant to Federal

Rule of Civil Procedure 15. If Plaintiffs file an amended complaint, Defendants

agree that they may withdraw their motion for a preliminary injunction without

prejudice and file a new one concurrently with the amended complaint that conforms

to the changes therein, and the parties will request that the Court enter a new briefing

schedule.

For good cause shown, Plaintiffs and HHS jointly request that the Court enter

this briefing schedule.

Dated: August 20, 2021 Respectfully submitted,

/s/ Lowell H. Becraft Jr. (with PRIM F. ESCALONA
permission) United States Attorney
LOWELL H. BECRAFT, JR.
ASB 5005-F66L BRIAN M. BOYNTON
403C Andrew Jackson Way Acting Assistant Attorney General
Huntsville, AL 35801
(256) 533-2535 /s/ Don B. Long III
becraft@hiwaay.net DON B. LONG, III
Assistant United States Attorney
THOMAS RENZ United States Attorney's Office
(Ohio Bar ID: 98645) Northern District of Alabama
1907 W. State St. #162 1801 Fourth Avenue North
Fremont, OH 43420 Birmingham, Alabama 35203
(419) 351-4248 Tel: (205) 244-2106
renzlawllc@gmail.com Fax: (204) 244-2171
(Pro Hac Vice) Email: Don.Long2@usdoj.Gov

4
Case 2:21-cv-00702-CLM Document 19 Filed 08/20/21 Page 5 of 6

F. R. JENKINS ARUN G. RAO
(Maine Bar No. 004667) Deputy Assistant Attorney General
Meridian 361 International Law
Group, PLLC GUSTAV W. EYLER
97A Exchange Street, Ste 202 Director
Portland, ME 04101
(866) 338-7087 HILARY K. PERKINS
jenkins@meridian361.com Assistant Director
(Pro Hac Vice)
ISAAC C. BELFER
MICHAEL A. HAMILTON JAMES W. HARLOW
(KY Bar No. 89471) Trial Attorneys
CORNERSTONE ATTORNEY Consumer Protection Branch
1067 N. Main St, PMB 224 Civil Division
Nicholasville, KY 40356 U.S. Department of Justice
(859) 655-5455 P.O. Box 386
michael@cornerstoneattorney.com Washington, DC 20044-0386
(Pro Hac Vice) Tel: (202) 305-7134
Fax: (202) 514-8742
ROBERT J. GARGASZ Email: Isaac.C.Belfer@usdoj.gov
(Ohio Bar ID: 0007136)
1670 Cooper Foster Park Rd. OF COUNSEL:
Lorain, Ohio 44053
(440) 960-1670 DANIEL BARRY
rjgargasz@gmail.com Acting General Counsel
(Pro Hac Vice) U.S. Department of Health and Human
Services
N. ANA GARNER
Garner Law Firm PERHAM GORJI
1000 Cordova Place #644 Deputy Chief Counsel, Litigation
Santa Fe, NM 87505
(505) 930-5170 JAMES ALLRED
garnerlaw@yahoo.com Associate Chief Counsel
(Pro Hac Vice) Office of the Chief Counsel
U.S. Food and Drug Administration
JONATHAN DIENER 10903 New Hampshire Avenue
P.O. Box 27 White Oak 31

5
Case 2:21-cv-00702-CLM Document 19 Filed 08/20/21 Page 6 of 6

Mule Creek, NM 88051 Silver Spring, MD 20993-0002
(575) 388-1754
jonmdiener@gmail.com Counsel for Defendants Xavier Becerra,
(Admission Pending Pro Hac Vice) Secretary of Health and Human
Services, in his official capacity only;
JOSEPH S. GILBERT Dr. Anthony Fauci, Director of the
(Nevada Bar No. 9033) National Institute of Allergy and
Joey Gilbert & Associates Infectious Diseases, in his official
D/B/A Joey Gilbert Law capacity only; Dr. Janet Woodcock,
405 Marsh Avenue Acting Commissioner of Food and
Reno, Nevada 89509 Drugs, in her official capacity only; the
(775) 284-7700 U.S. Department of Health and Human
joey@joeygilbertlaw.com Services; the Food and Drug
(Pro Hac Vice) Administration; the Centers for Disease
Control and Prevention; the National
Counsel for Plaintiffs Institutes of Health; and the National
Institute of Allergy and Infectious
Diseases

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