My Vape Order, Inc. v. FDA
| MY VAPE ORDER, INC. |
| U.S. FOOD & DRUG ADMINISTRATION |
| 37 NATIONAL AND STATE ELECTRONIC NICOTINE DELIVERY SYSTEM PRODUCT ADVOCACY ASSOCIATIONS, DR. DAVID B. ABRAMS, CLIVE D. BATES and DAVID T. SWEANOR, J.D. |
| 21-71302 |
| September 30, 2021 |
| U.S. Court of Appeals, Ninth Circuit |
| Other |
Docket Report
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| Filing 54 Filed order (MICHAEL DALY HAWKINS, RYAN D. NELSON and DANIELLE J. FORREST): In their July 19, 2022, joint status report (Dkt. [ # 53 ]), the parties requested that the court continue to hold this case in abeyance pending completion of the respondents re-review of the applications of petitioners collaborators and re-review of the petitioners application. The respondent estimated that it will complete its re-review of petitioners collaborators applications in or about January 2024, and that it will complete its re-review of petitioners application in or about January 2025. We will continue to defer submission. This case will be held in abeyance until January 31, 2024, on which date the parties are required to submit a status update to the court. The status report should indicate whether the respondent has finished its re-review of the applications of petitioners collaborators and provide an updated estimate for when the respondent believes it will finish its re-review of the petitioners application. [12499904] (AF) [Entered: 07/22/2022 10:32 AM] |
| Filing 53 Filed (ECF) Petitioner My Vape Order, Inc. status report (as required by Court order dated 04/20/2022). Date of service: 07/19/2022 [12497314] [21-71302] (Heyer, Eric) [Entered: 07/19/2022 12:23 PM] |
| Filing 52 Filed clerk order (Deputy Clerk: AF): In their April 5, 2022, joint status report (Dkt. [ # 51 ]), the parties requested that the court continue to hold this case in abeyance pending completion of the respondents re-review. We will continue to defer submission. This case will be held in abeyance for another 90 days from the date of this order, until July 19, 2022, on which date the parties are required to submit a status update to the court. The status report should give a time frame for when the respondent believes it will finish review of the applications of petitioners collaborators and finish its re-review of the petitioners application. [12427083] (AF) [Entered: 04/20/2022 05:12 PM] |
| Filing 51 Filed (ECF) Petitioner My Vape Order, Inc. status report (as required by Court order dated 01/05/2022). Date of service: 04/05/2022 [12413103] [21-71302] (Heyer, Eric) [Entered: 04/05/2022 02:06 PM] |
| Filing 50 Received 6 paper copies of Answering Brief [ # 44 ] filed by FDA. (Sent to panel). [12334896] (CPA) [Entered: 01/07/2022 04:18 PM] |
| Filing 49 Case came on for submission - SUBMISSION DEFERRED. [12332503] (KS) [Entered: 01/05/2022 04:02 PM] |
| Filing 48 Filed clerk order (Deputy Clerk: AF): The parties joint motion to hold this case in abeyance pending completion of the FDAs re-review (Dkt. [ # 45 ]) is GRANTED. This case will be held in abeyance for 90 days, by which time the parties are required to submit a status update to the court. This case is removed from the February 15, 2022, Honolulu calendar, and submission is deferred. [12331787] (AF) [Entered: 01/05/2022 10:52 AM] |
| Filing 47 Filed clerk order: The answering brief [ # 44 ] submitted by FDA is filed. Within 7 days of the filing of this order, filer is ordered to file 6 copies of the brief in paper format, accompanied by certification (attached to the end of each copy of the brief) that the brief is identical to the version submitted electronically. Cover color: red. The paper copies shall be submitted to the principal office of the Clerk. [12330166] (KWG) [Entered: 01/04/2022 08:23 AM] |
| Filing 46 Filed (ECF) Respondent FDA Motion to supplement record on appeal. Date of service: 01/03/2022. [12329707] [21-71302] (Talmor, Kate) [Entered: 01/03/2022 03:59 PM] |
| Filing 45 Filed (ECF) Respondent FDA Joint Motion for miscellaneous relief [Motion to Hold Proceedings in Abeyance Pending Agency Review]. Date of service: 12/30/2021. [12327984] [21-71302] (Talmor, Kate) [Entered: 12/30/2021 01:29 PM] |
| Filing 44 Submitted (ECF) Answering Brief for review. Submitted by Respondent FDA. Date of service: 12/30/2021. [12327972] [21-71302]--[COURT UPDATE: Attached corrected PDF of the brief. Removed PDF of exhibit, filed correctly in [ # 46 ]. Attached PDF with case number. 01/04/2022 by KWG] (Talmor, Kate) [Entered: 12/30/2021 01:14 PM] |
| Filing 43 Filed text clerk order (Deputy Clerk: AF): Petitioner's Unopposed Motion (Dkt. [ # 42 ]) to Extend Time is GRANTED. Respondents Answering Brief is December 30, 2021, and the Optional Reply Brief is January 20, 2022. No further extension requests will be entertained. [12320093] (AF) [Entered: 12/20/2021 09:07 AM] |
| Filing 42 Filed (ECF) Respondent FDA Joint Motion to extend time to file Answering brief until 12/30/2021. Date of service: 12/16/2021. [12318377] [21-71302] (Talmor, Kate) [Entered: 12/16/2021 03:16 PM] |
| Filing 41 Received 6 paper copies of Amicus Brief [ # 32 ] filed by Doctor David B. Abrams, Clive D. Bates and David T. Sweanor, J.D. (sent to panel) [12308284] (SD) [Entered: 12/07/2021 11:16 AM] |
| Filing 40 Notice of Oral Argument on Tuesday, February 15, 2022 - 09:00 A.M. - Hawaii Bkcy Courtroom 250L - Scheduled Location: Honolulu HI. The hearing time is the local time zone at the scheduled hearing location. View the Oral Argument Calendar for your case # here . NOTE: Although your case is currently scheduled for oral argument, the panel may decide to submit the case on the briefs instead. See Fed. R. App. P. 34. Absent further order of the court, if the court does determine that oral argument is required in this case, you may have the option to appear in person at the Courthouse or remotely by video. Check # here for updates on the status of reopening as the hearing date approaches. At this time, even when in person hearings resume, an election to appear remotely by video will not require a motion, and any attorney wishing to appear in person must provide proof of vaccination . The court expects and supports the fact that some attorneys and some judges will continue to appear remotely. If the panel determines that it will hold oral argument in your case, the Clerk's Office will contact you directly at least two weeks before the set argument date to review any requirements for in person appearance or to make any necessary arrangements for remote appearance. Please note however that if you do elect to appear remotely, the court strongly prefers video over telephone appearance. Therefore, if you wish to appear remotely by telephone you will need to file a motion requesting permission to do so. Be sure to review the # GUIDELINES for important information about your hearing, including when to be available (30 minutes before the hearing time) and when and how to submit additional citations (filing electronically as far in advance of the hearing as possible). If you are the specific attorney or self-represented party who will be arguing, use the # ACKNOWLEDGMENT OF HEARING NOTICE filing type in CM/ECF no later than 28 days before Tuesday, February 15, 2022. No form or other attachment is required. If you will not be arguing, do not file an acknowledgment of hearing notice.[12305744]. [21-71302] (KS) [Entered: 12/05/2021 06:08 AM] |
| Filing 39 Filed (ECF) notice of appearance of Mary G. Bielaska (Zanicorn Legal PLLC 845 Third Avenue, 6th Floor, New York, New York 10022) for Amici Curiae Doctor David B. Abrams, Clive D. Bates and David T. Sweanor. Date of service: 11/22/2021. (Party was previously proceeding pro se.) [12304943] [21-71302] (Bielaska, Mary) [Entered: 12/03/2021 11:39 AM] |
| Filing 38 Added Attorney(s) Jodi Krystyn Swick for party(s) Amicus Curiae David T. Sweanor Amicus Curiae Clive D. Bates Amicus Curiae David B. Abrams, in case 21-71302. [12300217] (RR) [Entered: 11/29/2021 03:25 PM] |
| Filing 37 Filed (ECF) notice of appearance of Jodi K. Swick (McDowell Hetherington LLP 1 Kaiser Plaza, Suite 340, Oakland, California 94612) for Amici Curiae Doctor David B. Abrams, Clive D. Bates and David T. Sweanor. Date of service: 11/29/2021. (Party was previously proceeding with counsel.) [12299648] [21-71302] (Swick, Jodi) [Entered: 11/29/2021 12:14 PM] |
| Filing 36 Received 6 paper copies of Opening Brief [ # 23 ] filed by My Vape Order, Inc.. (sent to panel) [12298529] (SD) [Entered: 11/26/2021 11:41 AM] |
| Filing 35 Received 3 paper copies of excerpts of record [ # 24 ] in 1 volume(s) filed by Petitioner My Vape Order, Inc. (sent to panel) [12298510] (LA) [Entered: 11/26/2021 11:26 AM] |
| Filing 34 Filed clerk order: The amicus brief [ # 32 ] submitted by Dr. David B. Abrams, Clive D. Bates, and David T. Sweanor, J.D. is filed. Within 7 days of the filing of this order, filer is ordered to file 6 copies of the brief in paper format, accompanied by certification (attached to the end of each copy of the brief) that the brief is identical to the version submitted electronically. Cover color: green. The paper copies shall be submitted to the principal office of the Clerk. [12298431] (LA) [Entered: 11/26/2021 09:40 AM] |
| Filing 33 Entered appearance of Amici Curiae Dr. David B. Abrams, Clive D. Bates, and David T. Sweanor, J.D. [12298430] (LA) [Entered: 11/26/2021 09:37 AM] |
| Filing 32 Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by UNOPPOSED BRIEF OF DR. DAVID B. ABRAMS, CLIVE D. BATES, AND DAVID T. SWEANOR, J.D. AS AMICI CURIAE IN SUPPORT OF PETITIONER. Date of service: 11/24/2021. [12298322] [21-71302] (Swick, Jodi) [Entered: 11/24/2021 11:19 PM] |
| Filing 31 Received 24 paper copies of Amicus Brief [ # 25 ] filed by 37 National and State Electronic Nicotine Delivery System Product Advocacy Associations. (sent to panel) [12297644] (SD) [Entered: 11/24/2021 11:06 AM] |
| Filing 30 Filed clerk order: The amicus brief [ # 25 ] submitted by 37 National and State Electronic Nicotine Delivery System Product Advocacy Associations is filed. Within 7 days of the filing of this order, filer is ordered to file 6 copies of the brief in paper format, accompanied by certification (attached to the end of each copy of the brief) that the brief is identical to the version submitted electronically. Cover color: green. The paper copies shall be submitted to the principal office of the Clerk. [12294835] (KWG) [Entered: 11/22/2021 11:30 AM] |
| Filing 29 Filed (ECF) notice of appearance of J. Gregory Trotuman (Troutman Law Office, PLLC., 4205 Springhurst Boulevard, Suite 201, Louisville, KY 40241) for Amicus Curiae 37 National and State Electronic Nicotine Delivery System Product Advocacy Associations. Substitution for Attorney Mr. J. Gregory Troutman for Amicus Curiae 37 National and State Electronic Nicotine Delivery System Product Advocacy Associations. Date of service: 11/22/2021. (Party was previously proceeding with counsel.) [12294820] [21-71302] (Troutman, J.) [Entered: 11/22/2021 11:24 AM] |
| Filing 28 Entered appearance of Amicus Curiae 37 National and State Electronic Nicotine Delivery System Product Advocacy Associations. [12294799] (KWG) [Entered: 11/22/2021 11:18 AM] |
| Filing 27 COURT DELETED DUPLICATE ENTRY. Notice about deletion sent to case participants registered for electronic filing. Correct Entry: [ # 25 ]. Original Text: Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by 37 National and State Electronic Nicotine Delivery System Product Advocacy Associations as Amici Curiae in Support of Petitioner. Date of service: 11/22/2021. [12294555] [21-71302] (Troutman, J.) [Entered: 11/22/2021 09:48 AM] |
| Filing 26 Filed clerk order: The opening brief [ # 23 ] submitted by My Vape Order, Inc. is filed. Within 7 days of the filing of this order, filer is ordered to file 6 copies of the brief in paper format, accompanied by certification (attached to the end of each copy of the brief) that the brief is identical to the version submitted electronically. Cover color: blue. The excerpts of record [ # 24 ] submitted by My Vape Order, Inc. are filed. Within 7 days of this order, filer is ordered to file 3 copies of the excerpts in paper format securely bound on the left side, with white covers. The paper copies shall be submitted to the principal office of the Clerk. [12294403] (KWG) [Entered: 11/22/2021 08:50 AM] |
| Filing 25 Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by 37 National and State Electronic Nicotine Delivery System Product Advocacy Associations as Amici Curiae in Support of Petitioner. Date of service: 11/20/2021. [12294169] [21-71302]--[COURT UPDATE: Attached corrected PDF of the brief. 11/22/2021 by KWG] (Troutman, J.) [Entered: 11/20/2021 10:29 AM] |
| Filing 24 Submitted (ECF) excerpts of record. Submitted by Petitioner My Vape Order, Inc.. Date of service: 11/19/2021. [12294079] [21-71302] (Heyer, Eric) [Entered: 11/19/2021 05:10 PM] |
| Filing 23 Submitted (ECF) Opening Brief for review. Submitted by Petitioner My Vape Order, Inc.. Date of service: 11/19/2021. [12294075] [21-71302] (Heyer, Eric) [Entered: 11/19/2021 05:07 PM] |
| Filing 22 Filed text clerk order (Deputy Clerk: AF): Petitioner's Unopposed Motion (Dkt. [ # 21 ]) to Extend Time is GRANTED. Petitioner's Opening Brief is November 19, 2021; Respondents Answering Brief is December 20, 2021; and the Optional Reply Brief is January 5, 2022. [12287637] (AF) [Entered: 11/15/2021 02:58 PM] |
| Filing 21 Filed (ECF) Petitioner My Vape Order, Inc. Joint Motion to extend time to file Opening brief until 11/19/2021. Date of service: 11/12/2021. [12285494] [21-71302] (Heyer, Eric) [Entered: 11/12/2021 10:44 AM] |
| Filing 20 Filed (ECF) Respondent FDA agency certified list. Date of service: 11/05/2021 [12279358] [21-71302] (Talmor, Kate) [Entered: 11/05/2021 10:02 AM] |
| Filing 19 This case is being considered for an upcoming oral argument calendar in Honolulu. Please review the Honolulu sitting dates for February 2022 in that location at # http://www.ca9.uscourts.gov/court_sessions . If you have an unavoidable conflict on any of the dates, please file # Form 32 immediately using the CM/ECF filing type Response to Case Being Considered for Oral Argument . Please follow the form's # instructions carefully. When setting your argument date, the court will try to work around unavoidable conflicts; the court is not able to accommodate mere scheduling preferences. You will receive notice that your case has been assigned to a calendar approximately 10 weeks before the scheduled oral argument date. If the parties wish to discuss settlement before an argument date is set, they should jointly request referral to the mediation unit by filing a letter immediately , using CM/ECF ( Type of Document : Correspondence to Court; Subject : request for mediation). [12274771] (MEC) [Entered: 11/01/2021 03:49 PM] |
| Filing 18 Filed order (WILLIAM A. FLETCHER and JAY S. BYBEE): Petitioners opposed emergency motion for a stay pending review (Docket Entry No. [ # 11 ]) is denied. See Nken v. Holder, 556 U.S. 418 (2009). The unopposed request for an expedited briefing schedule (included in Docket Entry No. [ # 11 ]) is granted. The opening brief is due November 15, 2021; the answering brief is due December 15, 2021; the optional reply brief is due within 21 days after service of the answering brief. [12271371] (AF) [Entered: 10/28/2021 09:42 AM] |
| Filing 17 Filed (ECF) Petitioner My Vape Order, Inc. reply to response (motion to stay lower court action, motion to expedite case). Date of service: 10/27/2021. [12269893] [21-71302] (Heyer, Eric) [Entered: 10/27/2021 08:41 AM] |
| Filing 16 MEDIATION ORDER FILED: This case is RELEASED from the Mediation Program. Counsel are requested to contact the Circuit Mediator should circumstances develop that warrant settlement discussions while the appeal is pending. [12269661] (CL) [Entered: 10/26/2021 04:37 PM] |
| Filing 15 Filed (ECF) Respondent FDA response opposing motion ([ # 11 ] Motion (ECF Filing), [ # 11 ] Motion (ECF Filing) motion to stay lower court action, [ # 11 ] Motion (ECF Filing) motion to expedite case). Date of service: 10/25/2021. [12266946] [21-71302] (Talmor, Kate) [Entered: 10/25/2021 08:28 AM] |
| Filing 14 Added Attorney Kate Talmor for party Respondent FDA, in case 21-71302. [12263754] (HH) [Entered: 10/20/2021 04:54 PM] |
| Filing 13 Filed (ECF) notice of appearance of Kate Talmor (U.S. Department of Justice, Civil Division, Federal Programs Branch; 1100 L St, NW, Washington DC 20005) for Respondent FDA. Date of service: 10/20/2021. (Party was previously proceeding with counsel.) [12263684] [21-71302] (Talmor, Kate) [Entered: 10/20/2021 04:40 PM] |
| Filing 12 Filed clerk order (Deputy Clerk: MK-S): The court has received petitioners emergency motion for a stay pending review and for expedited consideration (Docket Entry No. [ # 11 ]). The response is due October 25, 2021, by 9:00 a.m. PDT. Any reply is due October 27, 2021, by 9:00 a.m. PDT. [12263559] (AF) [Entered: 10/20/2021 03:56 PM] |
| Filing 11 Filed (ECF) Petitioner My Vape Order, Inc. EMERGENCY Motion to stay lower court action, Motion to expedite case. Date of service: 10/20/2021. [12262999] [21-71302] (Heyer, Eric) [Entered: 10/20/2021 12:25 PM] |
| Filing 10 Added Attorney(s) Eric B. Beckenhauer for party(s) Respondent FDA, in case 21-71302. [12260874] (DJV) [Entered: 10/19/2021 07:21 AM] |
| Filing 9 Filed (ECF) notice of appearance of Eric Boone Beckenhauer (U.S. Department of Justice, Civil Division, Federal Programs Branch, 1100 L St. NW, Washington, DC 20530) for Respondent FDA. Date of service: 10/18/2021. (Party was previously proceeding with counsel.) [12260807] [21-71302] (Beckenhauer, Eric) [Entered: 10/18/2021 09:50 PM] |
| Filing 8 MEDIATION ORDER FILED: By 10/26/2021, counsel to email Circuit Mediator regarding settlement potential. Include Ninth Circuit case name and number in subject line. This communication will be kept confidential, if requested, and should not be filed with the court. The existing briefing schedule remains in effect. SEE ORDER FOR DETAILS. [12254142] (CL) [Entered: 10/12/2021 01:47 PM] |
| Filing 7 The Mediation Questionnaire for this case was filed on 10/07/2021. To submit pertinent confidential information directly to the Circuit Mediators, please use the following # link . Confidential submissions may include any information relevant to mediation of the case and settlement potential, including, but not limited to, settlement history, ongoing or potential settlement discussions, non-litigated party related issues, other pending actions, and timing considerations that may impact mediation efforts.[12251561]. [21-71302] (AD) [Entered: 10/07/2021 06:44 PM] |
| Filing 6 Filed (ECF) Petitioner My Vape Order, Inc. Mediation Questionnaire. Date of service: 10/07/2021. [12251413] [21-71302] (Heyer, Eric) [Entered: 10/07/2021 04:24 PM] |
| Filing 5 Added Attorney Alisa Beth Klein for Respondent FDA, in case 21-71302. [12246982] (HH) [Entered: 10/04/2021 03:57 PM] |
| Filing 4 Filed (ECF) notice of appearance of Alisa Beth Klein (U.S. Department of Justice, Civil Division, Appellate Staff, 950 Pennsylvania Ave., NW, Washington DC 20530) for Respondent FDA. Date of service: 10/04/2021. (Party was previously proceeding with counsel.) [12246405] [21-71302] (Klein, Alisa) [Entered: 10/04/2021 12:21 PM] |
| Filing 3 Attorney Mark Raza in 21-71302 substituted by Attorney Lindsey Powell in 21-71302 [12245044] (RR) [Entered: 10/01/2021 12:59 PM] |
| Filing 2 Filed (ECF) notice of appearance of Lindsey Powell (U.S. Department of Justice, Civil Division, Appellate Staff, 950 Pennsylvania Ave., NW, Washington, DC 20530) for Respondent FDA. Substitution for Attorney Mark Raza, Esquire for Respondent FDA. Date of service: 10/01/2021. (Party was previously proceeding with counsel.) [12244636] [21-71302] (Powell, Lindsey) [Entered: 10/01/2021 09:01 AM] |
| Filing 1 FILED PETITION FOR REVIEW. DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. NOTIFIED RESPONDENTS OF FILING. SEND MQ: Yes. Petitioner My Vape Order, Inc. Mediation Questionnaire due on 10/07/2021. Petitioner brief due 12/20/2021 for My Vape Order, Inc.. Respondent brief due 01/18/2022 for U.S. Food & Drug Administration. Petitioner's optional reply brief is due 21 days after service of the answering brief. [12244416]--[Resend NDA with docketing letter attached; Edited 10/01/2021 by JMR] (JMR) [Entered: 09/30/2021 04:18 PM] |
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