The FDA has advanced in its “procedural maneuvering” in three constitutional challenges to the Deeming Regulations. The challenges – premised on the First Amendment and on the Appointments Clause – were filed by vapor-industry plaintiffs represented by the Pacific Legal Foundation (“PLF”): Moose Jooce, et al. v. Food & Drug Admin., et al., No. 1:18-cv-203 (D.D.C.), Rave Salon, Inc. v. Gottlieb, et al., No. 3:18-cv-237 (N.D. Tex.), and Hoban, et al. v. Food & Drug Admin., et al., No. 0:18-cv-269 (D. Minn.).
The FDA had moved to transfer Rave Salon and Hoban to the U.S. District Court for the District of Columbia for potential consolidation with Moose Jooce in that court.
Transfer of Rave Salon and Potential Consolidation with Moose Jooce
As previously discussed by this blog, Judge A. Joe Fish granted the FDA’s motion to transfer Rave Salon, and the plaintiffs moved to stay his transfer order to allow them time “to decide whether to seek review of the transfer order in the United States Court of Appeals for the Fifth Circuit.”
Judge Fish has denied the plaintiffs’ motion to stay his transfer order, and the case is now open in the U.S. District Court for the District of Columbia. The parties have agreed that Rave Salon should be heard and decided along with Moose Jooce, though consolidation has not yet occurred.
Stayed Transfer Order in Hoban
In the District of Minnesota, Judge Joan N. Ericksen granted the FDA’s motion to transfer Hoban to the U.S. District Court for the District of Columbia. Notable in light of PLF’s apparent cross-circuit strategy, Judge Ericksen’s decision to transfer “prioritize[d] the avoidance of wastefulness over the development of instructive circuit splits.”
The plaintiffs moved to stay the transfer order to allow time to seek reconsideration of the same or appellate review in the U.S. Court of Appeals for the Eighth Circuit. On July 6, Judge Ericksen granted the stay “until July 26, 2018,” or, “[i]f Plaintiffs request relief in this Court or in the Eighth Circuit, . . . until the resolution of Plaintiffs’ request for relief.”
The parties have apparently agreed that, if Hoban is ultimately transferred to the U.S. District Court for the District of Columbia, it should be consolidated with Moose Jooce and Rave Salon.
As of July 27, the plaintiffs have not moved for reconsideration or noticed an appeal.
Temporary Stay of Proceedings in Moose Jooce
Meanwhile, Judge Christopher R. Cooper has temporarily stayed the proceedings in Moose Jooce. The parties jointly sought the stay, given the potential reconsideration or appellate review of the transfer order in Hoban. The temporary stay of Moose Jooce will last through the stay of the transfer order in Hoban, which appears to have expired.
The parties are expected to propose a new briefing schedule for summary-judgment motions on the Appointments Clause claim, the First Amendment claim having been stayed pending the decision in Nicopure Labs, LLC, et al. v. Food & Drug Admin., et al., No. 17-5196 (D.C. Cir.).
Thanks to its procedural maneuvering, it appears that the FDA is well-positioned to mount a single defense against PLF’s cases, instead of fighting on three fronts. And it will only have to deal with one theory of relief (the Appointments Clause) rather than two (with the First Amendment claim stayed).
We will continue to monitor for further developments.