There has been new activity in two of the three Deeming Regulations challenges 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.), and Rave Salon, Inc. v. Gottlieb, et al., No. 3:18-cv-237 (N.D. Tex.). The cases involve challenges based on the Appointments Clause and the First Amendment of the U.S. Constitution.

Appointments Clause Challenge Moves Forward in Moose Jooce

On June 8, Judge Christopher R. Cooper of the U.S. District Court for the District of Columbia entered an order setting the briefing schedule in Moose Jooce.

With respect to the Appointments Clause claim, Plaintiffs’ motion for summary judgment could be filed as soon as August 13. The parties’ briefing schedule is expected to extend into November. As for the First Amendment claim, the Court has stayed it “pending the D.C. Circuit’s resolution of Nicopure Labs, LLC v. FDA, No. 17-5196.”

Rave Salon Transferred from N.D. Tex. to D.D.C., Stay Now Sought

As previously discussed by this blog, the FDA moved to transfer Rave Salon from the Northern District of Texas to the District for the District of Columbia, for consolidation with Moose Jooce.

On June 4, Judge A. Joe Fish of the U.S. District Court for the Northern District of Texas granted the FDA’s motion. He found that the FDA carried its burden in showing that the transfer would be “in the interest of justice and for the convenience of the witnesses and parties.”

However, right on the heels of Judge Cooper’s scheduling order in Moose Jooce, Plaintiff in Rave Salon moved Judge Fish to stay his transfer order. The motion to stay is premised on allowing Plaintiff “a reasonable period of time, to and including July 6, 2018, to decide whether to seek review of the transfer order in the United States Court of Appeals for the Fifth Circuit.” Judge Cooper’s scheduling order was apparently a cause of concern insofar as it became likely that Plaintiffs’ “First Amendment claim will also be stayed if the case is transferred to the U.S. District Court for the District of Columbia.”

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It will be interesting to see what further action, if any, is taken on Judge Fish’s transfer order in Rave Salon. Meanwhile, a similar motion to transfer has been fully briefed and awaits decision in the other PLF challenge: Hoban, et al. v. Food & Drug Admin., et al., No. 0:18-cv-269 (D. Minn.).

As to the merits of the claims, for now it will be interesting to follow Moose Jooce’s Appointments Clause litigation in tandem with the D.C. Circuit’s hearing of the Nicopure appeal. Of course, depending on whether Rave Salon and Hoban are transferred or decided independently, there could be other merits decisions to follow.