CareToLive vs. FDA Update
December 16th, 2008 | Posted by Kerry Donahue
CareToLive vs. FDA update
No. 08-584
Title: CareToLive, Petitioner
v.
Andrew von Eschenbach, Commissioner, Food and Drug Administration
Docketed: November 3, 2008
Lower Ct: United States Court of Appeals for the Sixth Circuit
Case Nos.: (07-4465)
Decision Date: August 28, 2008
~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Oct 30 2008 Petition for a writ of certiorari filed. (Response due December 3, 2008)
Dec 3 2008 Waiver of right of respondent Andrew von Eschenbach, FDA Commissioner, to respond filed.
Dec 10 2008 DISTRIBUTED for Conference of January 9, 2009.
Certiorari is granted at the court’s discretion, with most applications refused. It may be used to review the constitutional decisions of state courts of last resort and federal decisions on any important matter, especially when the inferior courts are in disagreement.
In this case the inferior courts are not in agreement on whether the finality requirement of the Administrative Procedures Act (APA) is a jurisdictional requirement. The D.C Court says “no”, the Sixth Circuit Court of Appeals says “yes”.
The Supreme Court SHOULD decide who is right, the D.C Circuit or the Sixth Circuit on the question as to whether it’s a jurisdictional issue. Since the two courts are currently in conflict it makes Federal law unclear, something the Supreme Court can remedy by reviewing the case and deciding which Court is correct.
We believe the Sixth Circuits Court of Appeals decision affirming the Southern District of Ohio decision was legally incorrect. That is the heart of the matter.
As to timing of an answer whether they will grant cert this is the Supreme Courts site statement:
“Generally, if a case is considered at a Conference, viewers can expect that the disposition of a case will be announced on an Orders List that will be released at 10:00 a.m. the following Monday.”
The Conference date is January 9th so that makes a likely decision date of January 12th.
Is the DC case on appeal to the DC Circuit? If so, is it likely that the Supreme Court will wait for that decision to see if the DC circuit resolves the conflict?
No, the cases were already appealed and they found that the finality requirement of the APA was not jurisdictional and one case said that some discovery was allowed on the issue of finality.
Check out the writ here (http://caretolive.com/CareToLiveWrit1025.pdf) as it sets forth the arguments.
The two inferior circuits are in conflict.
Popularity: 59%
Tags: andy von eschenbach, Care To Live, CareToLive, FDA, Kerry Donahue, Prostate Cancer, provenge, supreme court, Writ of Certiorari
December 16th, 2008 at 12:07 pm
[…] askmenhealth.org: Recent news and info related to conditions and diseases that could influence men&a… wrote an interesting post today onHere’s a quick excerpt CareToLive vs. FDA update No. 08-584 Title: CareToLive, Petitioner v. Andrew von Eschenbach, Commissioner, Food and Drug Administration Docketed: November 3, 2008 Lower Ct: United States Court of Appeals for the Sixth Circuit Case Nos.: (07-4465) Decision Date: August 28, 2008 ~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~ Oct 30 2008 Petition for a writ of certiorari filed. (Response due December 3, 2008) Dec 3 2008 Waiver of right of respondent Andrew von Eschenbac […]