SE, NJoy vs FDA -- Discussion

[yvilla]

Time to petition for a rehearing, or a rehearing En Banc in the federal Court of Appeals, has not run out yet. Rules 35 and 40 of the Federal Rules of Appellate Procedure set that time period to be within 14 days of the entry of judgment for regular parties, but within 45 days if the "United States or its officer or agency" is a party, as of course the FDA is, unless the Court itself issues an order shortening or extending the time.

Federal Rules of Appellate Procedure

Time to petition to the US Supreme Court for a Writ of Certiorari (permission to appeal essentially) is within 90 days (and that would actually be after any petition for rehearing, if submitted, is denied).

SUPREME COURT RULES - Rule 13

Edit to add a PS: The Order that the Clerk "withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing or petition for rehearing en banc" was simply routine, allowing the losing party time to decide whether to file further petitions before jurisdiction is handed back to the District Court. And that order itself was subject to any party's right "to move for expedited issuance of the mandate for good cause shown". The "mandate" is simply the Court's formal issuance of its judgment on appeal, and the case cannot be further acted on by the court below until it is issued. See, Rule 41, Federal Rules cited above.

For example, here is a case where a party is moving for expedited issuance of the mandate, after winning against the FDA. http://www.fdalawblog.net/files/losartan---teva-emerg-mandate-motion.pdf

 

[JerryRM]

Forty five days for a rehearing and 90 days for an appeal to the Supreme Court. Thanks, Yvilla.

 

[thephoenix]

Well here's some good news that will work against the FDA if they do decide for a rehearing:
New research says e-cigarettes are safer than real ones, no cigarettes safer still -- Engadget

Done by an independent research crew @ Boston University School of Public Health.

 

[JerryRM]

Well here's some good news that will work against the FDA if they do decide for a rehearing:
New research says e-cigarettes are safer than real ones, no cigarettes safer still -- Engadget

Done by an independent research crew @ Boston University School of Public Health.

That's some good and positive news about e-cigarettes. I wonder if the FDA and the anti's will ignore this too and continue to spout their anti e-cig propaganda.

 

[mpetva]

More time to wait for final results......sighs.....

 

[CES]

That's some good and positive news about e-cigarettes. I wonder if the FDA and the anti's will ignore this too and continue to spout their anti e-cig propaganda.

It is great news and of course they'll ignore it...they've been ignoring anything contrary to what they've already decided upon for quite some time now. sigh.

 

[mwahle1]

Well here's some good news that will work against the FDA if they do decide for a rehearing:
New research says e-cigarettes are safer than real ones, no cigarettes safer still -- Engadget

Done by an independent research crew @ Boston University School of Public Health.

Good find, thanks!

 

[MoonRose]

That's some good and positive news about e-cigarettes. I wonder if the FDA and the anti's will ignore this too and continue to spout their anti e-cig propaganda.

You know they will, they refuse to give up all that money they're getting from BT and BP.

 

[JustJulie]

FDA has asked for a rehearing and rehearing en banc and also filed a motion asking that the stay be reinstated pending a rehearing.

 

[JerryRM]

Thanks Julie. What a bunch of .

 

[jj2]

Grrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
But does not surprise me.

 

[JustJulie]

Thanks Julie. What a bunch of .

Ditto.

Grrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
But does not surprise me.

No, it doesn't surprise me, either.

Frustrating to see how our tax dollars are being spent.

 

[JerryRM]

Jan, the nerve of the FDA wanting the stay to be reinstated does surprise me a bit. It reinforces my suspicion that the FDA would like to drive njoy out of this case and therefore win by default.

 

[D103]

Is it just me or are their arguments the very same as before? I read through both documents and to me, they seem to be making the same arguments, merely reworded and moved around a bit - with the exception of stating that the appeals court justices were in error and misinterpreted the Brown vs. Williamson case (that should go over really well) I felt like the justices did a very thorough job of explaining their findings and I fail to see any rationale for rehearing (although I am not an attorney) what do you think Yvilla?

 

[kai kane]

Apologies if this has already been asked and answered: Is a 'rehearing' by the same exact judges?

I see the meaning of "En Banc. Definition: (French) by the full court."

mahalos

 

[yvilla]

D103, I tend to agree with you. According to the Federal Rules of Appellate Procedure, the party requesting a rehearing en banc must "assert that a proceeding presents a question of exceptional importance". But beyond just "asserting" that, they have to back it up, and I don't think the FDA has met that burden. The Rules themselves give an example of what an issue of "exceptional importance" might be, such as "an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue". This case certainly presents no such conflict with other decisions.

And kai, yes a rehearing would be only by the same panel that heard and decided the appeal.

See, Rule 35. http://www.law.cornell.edu/rules/frap/rules.html#Rule40

 

[MoonRose]

Does the FDA not realize just how stupid they are really making themselves look by basically telling the judges that have already ruled on this that they (the judges) don't know what they are talking about?

 

[mpetva]

Jan, the nerve of the FDA wanting the stay to be reinstated does surprise me a bit. It reinforces my suspicion that the FDA would like to drive njoy out of this case and therefore win by default.

Yup, I firmly believe that they are hoping that NJoy will run out of money, especially since the FDA has UNLIMITED funds and can keep going until Doomsday.

 

[MoonRose]

It's past time that we, the vapers of the world, became proactive. I encourage everyone of us to get out there and blanket this world with all the positives about e-cigs. I refuse to let the Nicotine Nazis of this world take away any more of my freedoms. Today it's nicotine, tomorrow it's caffiene, sugar, sodas, hamburgers, french fries or any one of a million other things that they suddenly decide aren't good for us. This Nanny State mentality has got to end and if we don't stand up for our rights now we won't have any rights left to stand up for.

 

[jj2]

Of course this is a delay tactic. The longer this drags on, the better chance of what Jerry said happening, Njoy dropping out.
My question is, and I know it's pretty much unanswerable, how long will the court keep granting the FDA stays?
If they do this time, it's idiotic.