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US wants lawsuit over execution drug dismissed

By Jeremy Pelofsky

WASHINGTON (Reuters) - The Obama administration on Wednesday urged a federal judge to dismiss a lawsuit that challenged a decision allowing unapproved drugs to be imported from overseas for use in executions of death row inmates.

Six death row inmates in February challenged the U.S. Food and Drug Administration's decision that allowed states to import the drug sodium thiopental, arguing it was illegal because the imported versions were not approved by the FDA.

Sodium thiopental is a sedative and the first in a sequence of three drugs administered in lethal injections to paralyze breathing and stop the heart. A sedative is required in all lethal injections of all U.S. death row inmates.

Hospira Inc said in January that its supply of the drug was running short because of manufacturing problems. It had planned to move production to Italy but the government there objected to the export if it was used in executions.

The Justice Department filed a motion to dismiss the lawsuit, saying that the FDA's decision not to investigate the importation of the drug was not subject to judicial review. Further, the FDA's decision was well within its discretion, the motion said.

"FDA's decisions not to refuse admission to imports of thiopental are 'committed to agency discretion by law,' and therefore are not subject to judicial review," the Justice Department said in its 48-page brief.

One of the individuals listed in the case challenging the FDA's action, Eric King, was executed last month by the state of Arizona. He was convicted of killing two convenience store employees in a 1989 robbery.

A lawyer for the death row inmates, Brad Berenson, declined to comment on the government's motion.

"There is a very real risk that unapproved thiopental will not actually render a condemned prisoner unconscious," the original lawsuit said, noting that rendering the individual unconscious was necessary to carry out a death sentence.

In the wake of the shortage, Ohio last month executed a man convicted for murder using an animal euthanasia drug, known as pentobarbital. Britain has banned the export of three drugs used in lethal injections to the United States.

The case is Donald Edward Beaty et al v. Food and Drug Administration et al, No. 11-cv-00289 in U.S. District Court for the District of Columbia.

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