Thus overruling the previous judge, who ruled the FDA's sovereign immunity prohibited lawsuits. The doctor's lawsuit is thus allowed to proceed.
Judge Don Willett wrote for the three person panel that also included Jennifer Walker Elrod and Edith Brown Clement. "FDA is not a physician. It has authority to inform, announce, and apprise—but not to endorse, denounce, or advise. The Doctors have plausibly alleged that FDA’s Posts fell on the wrong side of the line between telling about and telling to. As such, the Doctors can use the APA to assert their ultra vires claims against the Agencies and the Officials."The anti-ivermectin messaging put out by FDA officials also drew the ire of Judge Willett, who wrote that "Left unmentioned in most of that messaging: ivermectin also comes in a human version. And while the human version of ivermectin is not FDA-approved to treat the coronavirus, some people were using it off-label for that purpose."
In the ruling social media posts made by the agency were cited as evidence, citing that "Even tweet-sized doses of personalized medical advice are beyond FDA’s statutory authority," he wrote.
The FDA on Aug. 21, 2021, wrote on Twitter: "You are not a horse. You are not a cow. Seriously, y’all. Stop it."
The ruling comes as a blow to the FDA. The agency had argued that the case should not be allowed to move forward, claiming that the complaints didn’t overcome the FDA’s "sovereign immunity," which protects government entities from many civil lawsuits regarding their responsibilities.
Sovereign immunity does not protect them if they are outside their area of responsibility.