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DOE v. SULLIVAN

No. 91-5019.

938 F.2d 1370 (1991)

John DOE, et al., Appellants, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, et al., Appellees.

United States Court of Appeals, District of Columbia Circuit.

Decided July 16, 1991.

As Amended July 16, 1991.

Attorney(s) appearing for the Case

Daniel J. Popeo, Utica, N.Y., Paul D. Kamenar and Richard A. Samp were on the brief, Washington, D.C., for amici curiae urging affirmance.

Michael Tankersley, with whom Alan B. Morrison was on the brief, Washington, D.C., for appellants.

Scott R. McIntosh, Atty., Dept. of Justice with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty. and Douglas N. Letter, Atty., Dept. of Justice were on the brief, Washington, D.C., for appellees.

Before WALD, RUTH BADER GINSBURG and CLARENCE THOMAS, Circuit Judges.

Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.

Dissenting opinion filed by Circuit Judge CLARENCE THOMAS.

RUTH BADER GINSBURG, Circuit Judge:

This appeal concerns an interim regulation promulgated in urgent circumstances under the Food, Drug and Cosmetic Act, 21 U.S.C. §§ 301 et seq. ("FDC Act"). The regulation provides that the Food and Drug Administration ("FDA") may permit Department of Defense ("DOD") use of...

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