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Oral Argument in the FDA Execution Thiopental Case

Next Monday, the D.C. Circuit will hear argument in Cook v. FDA, No. 12-5176.  In that case (formerly Beaty v. FDA), the District Court held that the FDA had acted illegally in allowing importation of sodium thiopental for executions.  The court went on to order the FDA to inform the states that use of their existing stocks of thiopental is illegal and to take steps to recover it.  In issuing the latter part of the injunction, the court was untroubled by the fact that not a single word of the briefing or the court's opinion provided a legal basis for the order.  It was also untroubled by the facts that the states with a powerful interest involved were not parties to the action, the plaintiffs had not taken any steps to make them parties, and the plaintiffs had not shown any reason for an exception to the general rule against adjudicating the rights of nonparties in their absence.

In the Court of Appeals, CJLF appeared as amicus pointing out these problems.  The nonparty problem is the subject of Federal Rule of Civil Procedure 19.  The plaintiffs largely ignored the brief, just dropping one footnote about the general rule of not considering issues raised only by amici.  That rule has exceptions that the plaintiffs simply ignored.  Some issues must be considered whether a party raises them or not.  Subject matter jurisdiction is one, and Rule 19 is another.

Today the court issued the following order:

It is ORDERED, on the court's own motion, that the parties be prepared to address at oral argument on March 25, 2013, (1) the standing of the appellees to bring this case, with particular reference to the requirement of redressability; and the (2) Federal Rule of Civil Procedure 19 and remedial issues raised in the brief of the amicus curiae Criminal Justice Legal Foundation.
A prior post with links to multiple earlier posts on this case is here.  CJLF's summary of argument and a link to the full brief are in this post.


I did a little searching on this and it appears there are concerted efforts by the abolitionists to block to sale / importation of various lethal injection drugs to the states. So my somewhat stupid question is, can a drug manufacturer sell its product to hospitals, vetenarians, etc.. but refuse to sell it for another legitimate use?

If I was an abolitionist that is exactly where I'd focus all my energies. Same concept helped Apartheid fall (not comparing in any way to capital punishment), stopped Iceland from whaling for awhile, so it seems like that is the prevalent strategy....

I am hoping to attend the argument, and, if I do, I'll report back on my impressions in this space.

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