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NUTRACEUTICAL CORP. v. VON ESCHENBACH

No. 05-4151.

459 F.3d 1033 (2006)

NUTRACEUTICAL CORPORATION; Solaray, Inc., Plaintiffs-Appellees, v. Andrew VON ESCHENBACH, Acting Commissioner, U.S. Food and Drug Administration; United States Food and Drug Administration; Michael O. Leavitt, Secretary of the Department of Health and Human Services; Department of Health And Human Services; United States of America, Defendants-Appellants.

United States Court of Appeals, Tenth Circuit.

August 17, 2006.

Attorney(s) appearing for the Case

Christine N. Kohl, Attorney (Peter D. Keisler, Assistant Attorney General, Paul M. Warner, United States Attorney, Jeffrey Bucholtz, Deputy Assistant Attorney General, and Douglas N. Letter, Attorney, Department of Justice, Washington, D.C., and Paula M. Stannard, Acting General Counsel, Sheldon T. Bradshaw, Associate General Counsel, Eric M. Blumberg, Deputy Chief Counsel, and Claudia J. Zuckerman, Associate Chief Counsel, Office of General Counsel, U.S. Department of Health & Human Services, Food and Drug Division, Rockville, MD, with her on the briefs), for Defendants-Appellants.

Jonathan W. Emord (Andrea G. Ferrenz with him on the brief), Emord & Associates, P.C., Reston, VA, for Plaintiffs-Appellees.

Before KELLY, TYMKOVICH, Circuit Judges and EAGAN, District Judge.

EAGAN, District Judge.

Defendants-appellants, Andrew von Eschenbach, M.D., Acting Commissioner of the U.S. Food and Drug Administration, the United States Food and Drug Administration ("FDA" or "the agency"), Michael O. Leavitt, Secretary of the Department of Health and Human Services, the Department of Health and Human Services, and the United States, appeal from a judgment of the district court denying their motion for...

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