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CJLF Files Brief in Imported Thiopental Case

CJLF has filed an amicus brief in the D.C. Circuit in the case of Cook v. FDA.  This is the case where convicted murderers got an injunction against the FDA allowing any more imports of thiopental, and the judge also order the FDA to "notify" the states that their continued possession and use of the previously imported thiopental is illegal.  The latter holding is remarkable in that it was issued without a single sentence in the opinion to support it and in a case where the entities most affected were not parties.  The Summary of Argument is after the jump.
The states have an interest that is impaired, as a practical matter, by this litigation. They have a responsibility to carry out duly imposed sentences of death, which requires the ability to obtain and use the drugs needed for lethal injection. Obstacles to obtaining the drugs and compelled return of drugs previously obtained impair this interest. A requirement to return property purchased by the state and in its possession impairs a state property interest. The states are necessary and indispensable parties for the purpose of Federal Rule of Civil Procedure 19. A federal court action to deprive a state of property in its possession is barred by sovereign immunity, and hence this action must be dismissed.

Judicial review under the Administrative Procedure Act is available only if a plaintiff has no other remedy in a court. The only threatened injury that gives the plaintiffs standing in this matter is use of the thiopental in a manner that causes extreme pain. The plaintiffs are not injured by importation alone. Litigation regarding lethal injection is ongoing in federal courts under 42 U.S.C. § 1983, as well as in state courts, including suits by some of the plaintiffs in this case. These other forums provide a remedy, making a suit under the Administrative Procedure Act unavailable.

There is no authority whatever stated in the opinion of the District Court for the action ordered against existing stocks of thiopental already released to the states. What little authority there is on imported items that have already been released indicates that action against such items is governed by 21 U.S.C. § 334, not § 381. Heckler v. Cheney, 470 U.S. 821 (1985), unambiguously holds that action under § 334 is discretionary.

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