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DIAPULSE CORP. OF AM. v. FOOD & D. ADMIN. OF DEPT. OF H. E. W.

No. 620, Docket 73-2593.

500 F.2d 75 (1974)

DIAPULSE CORPORATION OF AMERICA, also known as the Diapulse Manufacturing Corporation of America, a corporation, Plaintiff-Appellant, v. FOOD AND DRUG ADMINISTRATION OF the DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, Defendant-Appellee.

United States Court of Appeals, Second Circuit.

Decided May 9, 1974.

Supplemental Opinion June 18, 1974.

Attorney(s) appearing for the Case

Copal Mintz, New York City, for plaintiff-appellant.

Donald Etra, Dept. of Justice, Washington, D. C. (Irving Jaffe, Acting Asst. Atty. Gen., Edward J. Boyd, U. S. Atty., Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., on the brief), for defendant-appellee.

Before LUMBARD, HAYS, and OAKES, Circuit Judges.

LUMBARD, Circuit Judge:

Claiming that the Food and Drug Administration (FDA) was unlawfully withholding material to which it was entitled under the Freedom of Information Act, 5 U.S.C. § 552, by charging unlawful fees, Diapulse Corporation of America instituted this action in the Eastern District of New York on September 4, 1973. On September 17, Judge Dooling granted the FDA's motion for summary judgment on the ground that there had

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