Case 2:21-cv-00702-CLM Document 15 Filed 07/19/21 Page 54 of 67
Drug Administration, 783 F.Supp. 4, 5 (D. D.C. 1992) (“Allowing ‘interested parties’ to bypass the administrative remedies would undermine the entire regulatory process. Drug manufacturers could circumvent the FDA’s procedures by soliciting private citizens to sue for judicial approval new medications.”). Plaintiffs are not attempting to circumvent the substantive provisions of § 360bbb–3 in order to force the approval and release of a new experimental drug, rather they are trying to force the FDA, its officials riddled with serious conflicts of interests, to comply with these provisions in order prevent widespread personal injury and death and egregious violations of the constitutionally protected rights to personal autonomy and bodily integrity. Count VI of the Complaint seeks mandamus, since there is “‘practically no other remedy.’” Collin v. Berryhill, 2017 U.S. Dist. LEXIS 78222 at *9 (quoting Helstoski v. Meanor, 442 U.S. 500, 505 (1979). Courts have held that the perceived medical urgencies created by COVID-19 itself, and also those created by the decisions, orders and actions of authorities responding to COVID-19, can make it impractical and inappropriate to force a plaintiff seeking mandamus to wait for alternative processes to run their course: Moreover, given the broader context of the COVID-19 pandemic, we agree with the Fifth Circuit that “[i]n mill-run cases, it might be a sufficient remedy to simply wait for the expiration of the TRO, and then appeal an adverse preliminary injunction. In other cases, a surety bond may ensure that a party wrongfully enjoined can be compensated for any injury caused. Those methods would be woefully inadequate here.” In re Rutledge, 956 F.3d 1018, 1026 (8th Cir. 2020), quoting In re Abbott, 2020 U.S. App. LEXIS 10893 at *14. 50
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The Supreme Court subsequently vacated the judgment in In re Abbott, and remanded to the Fifth Circuit with instructions to dismiss the case as moot, following the Texas Governor’s relaxation of his order restricting abortion as a non-essential surgical procedure, however the decision did not turn on an analysis of mandamus. See, Planned Parenthood Ctr. for Choice v. Abbott, 2021 U.S. LEXIS 647.
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