FDA v. R.J. Reynolds Vapor Co. (23-1187)

argument 23-1187

FDA v. R.J. Reynolds Vapor Co.

Supreme Court of the United States 1h 12m 8 speakers 8 chapters transcribed 1 month ago official recording ↗

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What is the central dispute over venue in the FDA v. R.J. Reynolds case?

John G. Roberts 0:00

We will hear argument first this morning in case twenty three eleven eighty seven, the Food and Drug Administration versus RJ Reynolds Vapor Company.

0:07

Mr.

John G. Roberts 0:08

Surrey?

Adam Surrey 0:09

Mr Chief Justice, and may it please the Court The Court of Appeals has effectively nullified the Tobacco Control Act's restrictions on venue. Under the Act, an adversely affected person may challenge the denial of an application only in its home circuit or the DC circuit. But under the decision below, an applicant may challenge a denial in any circuit anywhere in the country so long as it can enlist a local retailer willing to join its petition. That decision is wrong in two different ways. First. The only person entitled to challenge the denial of an application is the applicant itself, not the applicant's retailers. Retailers are bystanders to the application process. They don't submit information to the agency, don't participate in the agency's review process, don't receive the order issued by the agency at the end of that process, and don't even get to see the full contents of the application or administrative record.

Adam Surrey 1:11

Their interests lie outside the zone that Congress sought to protect. Second, Even if the retailers could sue, applicants don't get to ride in on their coattails. Venue must be established separately for each party and an applicant, the manufacturer is here. may not lay venue based on the retailers' residence. The judgment of the Fifth Circuit should be reversed.

Clarence Thomas 1:37

So if if your argument is that only applicants uh are covered. What do you do with the language uh any person adversely affected?

Adam Surrey 1:49

The language any person adversely affected requires the Court to infer the class of appropriate plaintiffs from the structure of the statute. And the language was used by Congress with respect to two classes of actions, regulations and denials. With respect to regulations, the class of adversely affected persons won't refer to applicants because there is no application process there. But with respect to the remote, the remote. the only person properly regarded as adversely affected is the applicant itself. And the main reason for that is the structure of the statute. It is implausible that Congress set up a system in which someone, the retailers, would have a right to challenge an agency order, but wouldn't have a right to be notified of the order in the first place.

Adam Surrey 2:35

It is simply unlikely that Congress would have expected such a person to be able to challenge the order within thirty days after it is issued. They don't even know that it has been issued in the first place.

John G. Roberts 2:45

But just I think they probably do uh uh in terms of what they're following. I think it's a bit much to call them bystanders. I mean their business depends upon uh uh this or in other circumstances, whatever the retailers are. And the whole purpose um of the proceeding um is is uh to uh either overturn a decision preventing retailers from doing what retailers do with respect to the uh the particular uh product. I mean if that's the whole point of it, uh uh from the government's point of view, the regulatory point of view, uh, and what's harmful uh to the public, that's whether or not these uh products are going to be sold, I don't know why the uh retailers aren't the most likely people to uh Bring in action.

John G. Roberts 3:30

A ch A

Adam Surrey 3:31

challenge

John G. Roberts 3:31

to the

Adam Surrey 3:33

The most likely people to bring in action are the applicants themselves. We are not aware of a single case where a retailer has brought a freestanding challenge unaccompanied by the applicant. That is because it is simply practically implausible that the retailer would be able to do so. Again, the retailer isn't notified that the order has been issued and doesn't get to see the contents of the application. So, as a practical matter, what is going on is that the retailer is simply a prop being used by the manufacturer to enable the retailer. enable them to get into the circuit they prefer. They're not adding any value to the case itself.

Elena Kagan 4:07

What you suggested, Mr Surrey, about the structure of the statute, I I mean I would think