Interestingly, despite the fact that two of the judges on the panel wanted to deny the alphabet soup groups leave to participate, these groups were granted this privilege… only for the judges to immediately order that the FDA’s petition for a rehearing en banc be denied. So rather fun that the anti groups were granted permission to participate in the FDA’s failure, really!
In the second order, the Alphabet Antis were again granted leave to participate… just in time for the panel of judges to order that the FDA’s motion to reinstate the stay of the preliminary injunction pending the decision on the petition for rehearing and rehearing en banc be denied and further, that the FDA’s attempt to reinstate the stay of the preliminary injunction be dismissed as moot.
In other words, the FDA has been told 3 times by the US Courts that they do NOT have the regulatory authority to impede the free trade of electronic cigarette products. I wonder if they will actually start treating the Court’s orders with the respect they deserve now, or whether their egregious contempt of any higher authority will continue unabashed?
In case anyone is interested, the full details of both Court Orders are reproduced below.
Case: 10-5032 Document: 1289458 Filed: 01/24/2011 Page: 1
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 10-5032
September Term 2010
1:09-cv-00771-RJL
Filed On: January 24, 2011
Sottera, Inc., doing business as Njoy,
Appellees
v.
Food & Drug Administration, et al.,
Appellants
BEFORE: Sentelle*, Chief Judge, and Ginsburg, Henderson*, Rogers, Tatel, Garland, Brown, Griffith, and Kavanaugh, Circuit Judges, and Williams, Senior Circuit Judge
O R D E R
Upon consideration of appellants’ petition for rehearing en banc, and the absence of a request by any member of the court for a vote; and the motion of amici curiae American Academy of Pediatrics, et al. for leave to participate as amici curiae in support of appellants’ petition for rehearing en banc, and the lodged brief, it is
ORDERED that the motion of amici curiae for leave to participate be granted.
The Clerk is directed to file the lodged brief. It is
FURTHER ORDERED that the petition for rehearing en banc be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Jennifer M. Clark
Deputy Clerk
* Chief Judge Sentelle and Circuit Judge Henderson would deny the motion of amici curiae American Academy of Pediatrics, et al. for leave to participate.
Case: 10-5032 Document: 1289462 Filed: 01/24/2011 Page: 1
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 10-5032
September Term 2010
1:09-cv-00771-RJL
Filed On: January 24, 2011
Sottera, Inc., doing business as Njoy,
Appellees
v.
Food & Drug Administration, et al.,
Appellants
BEFORE: Garland and Kavanaugh, Circuit Judges, and Williams, Senior Circuit Judge
O R D E R
Upon consideration of appellants’ petition for panel rehearing filed on December 20, 2010; appellants’ motion to reinstate stay of preliminary injunction pending disposition of petition for rehearing and rehearing en banc, and the opposition thereto;
and the motion of amici curiae American Academy of Pediatrics, et al. for leave to participate as amici curiae in support of appellants’ petition for rehearing, and the lodged brief, it is
ORDERED that the motion of amici curiae for leave to participate be granted.
The Clerk is directed to file the lodged brief. It is
FURTHER ORDERED that the petition be denied. It is
FURTHER ORDERED that the motion to reinstate stay of preliminary injunction be dismissed as moot.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Jennifer M. Clark
Deputy Clerk