Case 1:23-cv-03026-TOR ECF No. 80 filed 04/07/23 PageID.2188 Page 27 of 31
status quo would eliminate the ability of pharmacies to provide the drug, thereby reducing its availability. This runs directly counter to Plaintiffs’ request.
Second, the relief Plaintiffs seek by enjoining FDA from reducing mifepristone’s availability does not exceed the permissible scope of relief. In preserving the status quo, it is fair and equitable for FDA to not act with respect to the Mifepristone REMS Program until a determination is made on the merits. See Boardman v. Pac. Seafood Grp., 822 F.3d 1011, 1024 (9th Cir. 2016) (finding court’s prohibition on taking any further action “effectively preserved the parties’ last uncontested status”); Bracco Diagnostics, Inc. v. Shalala, 963 F. Supp. 20, 30 (D.D.C. 1997) (enjoining “FDA from proceeding with any approval or review proceedings”). This is consistent with the APA authorizing courts to stay agency action “to preserve status or rights pending conclusion of the review proceedings.” 5 U.S.C. § 705.
Accordingly, Defendants are preliminary enjoined from altering the status or rights of the parties under the operative Mifepristone REMS Program until a determination on the merits.
- 2. Scope of Relief
As a final matter, the Court notes Plaintiffs appear to seek a nationwide injunction. See ECF No. 3-1.
ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR
PRELIMINARY INJUNCTION ~ 27
