“Having concluded that the deadline at issue here was a legislative rule, the trial court was in no position to set a new deadline, thereby assigning the legislative role to itself.”
—Corbin K. Barthold, WLF Senior Litigation Counsel

Click here for WLF’s brief.

(Washington, DC)—Washington Legal Foundation today filed an amicus curiae brief urging the Fourth Circuit to vacate a trial-court order that amounted to a de facto administrative rulemaking.

A 2016 FDA rule ordered e-cigarette companies to apply, by 2018, for permission to continue selling their products. In part to ensure that e-cigarettes remain available to people trying to stop smoking, the FDA in 2017 issued guidance extending the application deadline to 2022. A group of doctors and public-health groups attacked the guidance in court, arguing among other things that the new deadline should have undergone notice and comment. The trial court agreed with this argument and vacated the guidance. But rather than simply remand the matter to the agency, as the law usually requires, the trial court proceeded to set a new deadline—May 2020—itself.

WLF’s brief argues that the trial court had no authority to set a new deadline. A court reviews agency action only as an appellate tribunal. After vacating an agency’s decision, therefore, a court should remand the matter to the agency for further proceedings. The trial court cited deviations from this remand-only rule, but in all of them the agency appeared to be acting in bad faith. That is not this case.

The trial court, WLF’s brief continues, dove headfirst into a policy matter that touches on deep questions of science, economics, statistics, public health, and moral principle. The court co-opted the democratic branches’ policymaking role. The court’s remedy order should be vacated, so that the trial court can remand to the FDA for a notice-and-comment rulemaking that sets a new deadline.

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