Leonard v. Ala. State Bd. of Pharmacy
| Docket Number | CIVIL ACT. NO. 3:21-cv-596-ECM |
| Decision Date | 10 March 2022 |
| Citation | 591 F.Supp.3d 1155 |
| Parties | Lisa Hill LEONARD, et al., Plaintiffs, v. The ALABAMA STATE BOARD OF PHARMACY, et al., Defendants. |
| Court | U.S. District Court — Middle District of Alabama |
Richard Eldon Davis, Tabor Robert Novak, III, Alicia Medders Harrison, John Joseph Geer, III, Starnes Davis Florie LLP, Birmingham, AL, for Plaintiffs.
James Stephen Ward, Ward & Wilson LLC, Birmingham, AL, Laura Elizabeth Howell, Tara S. Hetzel, State of Alabama Alabama Attorney General's Office, Montgomery, AL, for Defendants The Alabama State Board of Pharmacy, Brenda Denson, Christy K. Garmon.
Laura Elizabeth Howell, Tara S. Hetzel, State of Alabama Alabama Attorney General's Office, Montgomery, AL, for Defendants Chris Phung, Robert Colburn, Gary Mount.
Now pending before the Court are Plaintiffs’ amended motion for preliminary injunction (doc. 33) and Defendants’ motion to dismiss the amended complaint (doc. 39). Plaintiffs Lisa Hill Leonard and Leonard Drugs Inc. d/b/a The Drug Store's (collectively, "Plaintiffs") seek to enjoin the Alabama State Board of Pharmacy (the "Board") and the Board's members—Brenda Denson, Chris Phung, Robert Colburn, Christy K. Harmon, and Gary Mount—in their official and individual capacities (collectively, "Defendants"), from commencing a disciplinary hearing before the Board,1 and from "taking any adverse action against Lisa Leonard's [pharmacy] license and The Drug Store's permit" until a trial on the merits can be held, (doc. 33 at 6). The disciplinary hearing is for charges brought by the Board concerning, among other things, the manner in which the Plaintiffs administered COVID-19 antibody tests to The Drug Store's patients. The Defendants seek to dismiss the amended complaint in its entirety.
The Plaintiffs filed this lawsuit on September 8, 2021. (Doc. 1). In their corrected amended complaint (hereinafter "amended complaint"), (doc. 45),2 the Plaintiffs allege that the Defendants’ efforts to hold the aforementioned disciplinary hearing violates the Plaintiffs’ constitutional and statutory rights. Specifically, the Plaintiffs bring claims pursuant to 42 U.S.C. § 1983 and 15 U.S.C. § 1 (the "Sherman Act"), alleging that the Defendants’ actions are illegal, ultra vires , and/or contrary to and/or preempted by federal law, specifically the Public Readiness and Emergency Preparedness Act, 42 U.S.C. § 243 et seq. (the "PREP Act") (Count 1); the Defendants violated federal antitrust laws (Count 2); the Defendants violated the Dormant Commerce Clause (Count 3); the Defendants deprived the Plaintiffs of procedural and substantive due process in violation of the Fourteenth Amendment (Count 4); the Defendants violated the Equal Protection Clause of the Fourteenth Amendment (Count 5); and the Defendants have engaged in predatory and retaliatory enforcement (Count 6). The Plaintiffs seek a declaratory judgment, injunctive relief, damages, and attorney's fees.
Both motions are fully briefed, and the Court held a hearing on the amended motion for preliminary injunction on December 15, 2021. For the reasons that follow, the Defendants’ motion to dismiss (doc. 39) is due to be GRANTED, and the Plaintiffs’ amended motion for preliminary injunction (doc. 33) is due to be DENIED.
The Court has original subject matter jurisdiction pursuant to 28 U.S.C. § 1331. Personal jurisdiction and venue are uncontested, and the Court concludes that venue properly lies in the Middle District of Alabama. See 28 U.S.C. § 1391.
A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against the legal standard set forth in Rule 8: "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).
"Determining whether a complaint states a plausible claim for relief [is] ... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937 (citation omitted). The plausibility standard requires "more than a sheer possibility that a defendant has acted unlawfully." Id. at 678, 129 S.Ct. 1937. Conclusory allegations that are merely "conceivable" and fail to rise "above the speculative level" are insufficient to meet the plausibility standard. Twombly , 550 U.S. at 555–56, 127 S.Ct. 1955. This pleading standard "does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citation omitted). Indeed, "[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ " Id. (citation omitted).
A motion to dismiss for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, may be a factual or facial attack on subject matter jurisdiction. Barnett v. Okeechobee Hosp. , 283 F.3d 1232, 1238 (11th Cir. 2002). A factual attack permits the district court to weigh evidence outside the pleadings to satisfy itself of the existence of subject matter jurisdiction in fact. Id. at 1237. However, a facial attack merely questions the sufficiency of the pleading. Id. Under a facial attack, as here, the district court accepts the plaintiff's allegations as true and need not look beyond the face of the complaint to determine whether the court has subject matter jurisdiction. Id.
"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The Plaintiffs are entitled to a preliminary injunction if they demonstrate: (1) a substantial likelihood of success on the merits; (2) a likelihood of suffering irreparable injury without the injunction; (3) that the threatened injury to them outweighs the harm the injunction would cause the Defendants; and (4) that the injunction would not be adverse to the public interest. Brown v. Sec'y, U.S. Dep't of Health & Hum. Servs. , 4 F.4th 1220, 1224 (11th Cir. 2021). A preliminary injunction is " ‘not to be granted unless the movant clearly established the "burden of persuasion" ’ for each prong of the analysis." America's Health Ins. Plans v. Hudgens , 742 F.3d 1319, 1329 (11th Cir. 2014) (citation omitted). The Plaintiffs, as the movants, must satisfy their burden on all four elements "by a clear showing." Mazurek v. Armstrong , 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam).
The Alabama Legislature has declared that "[t]he practice of pharmacy and the management and operation of pharmacies ... affect[s] the public health, safety, and welfare of the people of Alabama, and thereby [are] subject to regulation and control in the public interest." Ala. Code § 34-23-2. It is also "a matter of public interest and concern ... that pharmacies be managed in such a manner as to protect the public, and all provisions of this chapter shall be liberally construed to carry out these objects and purposes." Id. The Legislature vests the Alabama State Board of Pharmacy "with the authority to carry out the purposes of and enforce this chapter [concerning pharmacists and pharmacies]." Id. § 34-23-90(a). The Legislature further requires that Board members "be licensed pharmacists who have been licensed in this state for a minimum of five years and who are actively engaged in the practice of pharmacy or pharmacy administration, or both." Id.
The Board has the power and duty "[t]o investigate violations of this chapter or any other law pertaining to the practice of pharmacy that may come to the knowledge of the board and institute or cause to be instituted before the board or in a proper court appropriate proceedings in connection therewith." Id. § 34-23-92(7). The Board also has the power and duty "[t]o investigate alleged violations of this chapter or any rule or regulation published by the board and conduct hearings to revoke, suspend, or probate any license or permit granted by the board under this chapter." Id. § 34-23-92(12).
The PREP Act authorizes the Secretary of Health and Human Services ("HHS") to "make[ ] a determination that a disease or other health condition or other threat to health constitutes a public emergency." 42 U.S.C. § 247d-6d(b)(1). If the Secretary makes such a determination, the Secretary "may make a declaration ... recommending, under conditions as the Secretary may specify, the manufacture, testing, development, distribution, administration, or use of one or more covered countermeasures." Id. If the Secretary issues a declaration, then a "covered person," as defined by the statute, "shall be immune from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure." Id. § 247d-6d(a)(1). "Covered countermeasure" is defined as a "qualified pandemic or epidemic product"; "security countermeasure"; drug, biological product, or device; or "respiratory protective device." Id. § 247d-6d(i)(1).
The PREP Act also contains the following preemption provision:
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