Free Notice of Additional Authority - District Court of Federal Claims - federal

Case 1:05-cv-00396-MCW

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Filed 02/17/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS THOMAS L. REMPFER and RUSSELL E. DINGLE, Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) )

No. 05-396C (Judge Mary Ellen Coster Williams)

DEFENDANT'S NOTICE OF SUPPLEMENTAL AUTHORITY On December 9, 2005, pursuant to the Court's Order dated November 27, 2005, plaintiffs provided the Court with a supplemental response that set forth the plaintiffs' position regarding why it was in the "interests of justice" to transfer their case to the United States District Court for the District of Columbia. At footnote one of their supplemental response, plaintiffs informed the Court that the United States Court of Appeals for the Distrcit of Columbia heard oral argument in the case of John Doe # 1 et al. v. Rumsfeld et. al. on December 1, 2005, and that a decision in that case would "significantly impact (if not control) the plaintiffs' case" filed in district court. On February 9, 2006, the United States Court of Appeals for the District of Columbia issued its judgment in John Doe # 1, and remanded that challenge to the Department of Defense's use of Anthrax Vaccine Adsorbed ("AVA") because the Food and Drug Administration had issued an order on December 19, 2005 that classified AVA as "safe and effective and not misbranded." Thus, the Court of Appeals for the District of Columbia found that the district court's permanent injunction that prohibited inoculation of military members

Case 1:05-cv-00396-MCW

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without their consent is now moot, and that the John Doe # 1 case "no longer presents a live case in controversy." A copy of that order is attached to this motion as an appendix. Respectfully submitted, PETER D. KEISLER Assistant Attorney General

DAVID M. COHEN Director

s/James M. Kinsella JAMES M. KINSELLA Deputy Director

Of Counsel: LT COL P. CHRISTOPHER CLARK Air Force Legal Services Agency General Litigation Division 1501 Wilson Blvd., 7th Floor Arlington, VA 22209-2403

s/Douglas K. Mickle DOUGLAS K. MICKLE Trial Attorney Commercial Litigation Branch Civil Division U.S. Department of Justice Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 307-0383 Facsimile: (202) 353-7988 Attorneys for Defendant

February 17, 2006

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Case 1:05-cv-00396-MCW

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CERTIFICATE OF SERVICE I hereby certify under penalty of perjury that on February 17, 2006, a copy of the foregoing "DEFENDANT'S NOTICE OF SUPPLEMENTAL AUTHORITY" with is appendix was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/Douglas K. Mickle Douglas K. Mickle