July 28, 2018

Weekly litigation update — July 28, 2016

By James S. Burling Vice President for Litigation

Appeal filed to rescue vaping lawsuit from being sucked into the Swamp

When PLF first developed its litigation strategy to challenge unconstitutionally promulgated rules, a core component of that strategy was filing three simultaneous lawsuits in three district courts challenging the FDA’s vaping regulation. But the federal government would prefer to have just one fight in its own backyard, and so it quickly moved to transfer two of those suits to DC, where the third was filed. Both district courts unfortunately granted the motions to transfer. But on Thursday, we filed an appeal (technically called a writ of mandamus) in the Eighth Circuit Court of Appeals, asking that court to overturn the decision of the District of Minnesota to transfer our case. As we explain in our petition, the district court misinterpreted Supreme Court precedent, believing that the Supreme Court values efficiency over the value of developing questions of constitutional law in multiple courts. In fact, the Supreme Court has expressed just the opposite view. While multiple cases raising identical factual disputes should certainly be consolidated to preserve judicial resources, multiple cases raising the same constitutional question (as our cases do) serve only to help flesh out that question before potential Supreme Court review. You can read our prior blog post explaining the stakes of this transfer fight here. The case is Hoban et. al. v. FDA et al.

Minnesota must let boys dance

Dmitri Moua and Zachary Greenwald are rising high school juniors who love dance. Dmitri participates in a summer and fall recreational dance program and serves as the manager for his school’s competitive dance team. Zachary has danced competitively through private studios since the fifth grade. Despite their experience and passion for dance, the Minnesota State High School League will not allow them to join their school dance teams solely because of their sex. This outdated rule violates the Constitution’s guarantee of equal protection under the law, and is a misapplication of federal anti-discrimination law. As a result, this week, we filed a lawsuit in federal court challenging Minnesota’s discriminatory rule. The League now faces a heavy burden to justify its exclusionary policy, and we look forward to having our clients’ rights vindicated in court. The case name is D.M. & Z.G. v. Minnesota State High School League, and more details can be found on our website.

City opposes complaint against unlawful searches

Last Friday, July 20, the City of Santa Barbara filed a motion to dismiss our first amended complaint in Santa Barbara Board of Realtors v. City of Santa Barbara.  We allege that the City violates the Fourth Amendment to the U.S. Constitution by requiring warrantless inspections of single-family homes when they are sold. Our response to the City’s motion is due on August 14th, and a hearing is scheduled for August 27th.   Blog post is here.

PLF steps in to represent federal wetlands victim at Supreme Court

This week PLF became counsel of record for Joe Robertson, a Montana veteran and property owner who is appealing his criminal conviction for violation of the Clean Water Act. Mr. Robertson was sent to federal prison for 18 months after a judge and jury agreed that an 18 inch wide, 6 inch deep, rivulet with 2-3 garden hoses worth of flow, many miles from the nearest river that actually floats boats in commerce, is a federal protected navigable water. Joe built some ponds in and around the rivulet to protect his nearby property from fire, which seems an understandable thing to do for someone living in and around today’s fire prone National Forests. But thanks to the EPA and the federal courts’ extensive and unreasonable reading of “navigable waters,” he has served a prison sentence, and been stripped of his right to vote and to bear arms under the Second Amendment. PLF will be taking Joe’s case to the Supreme Court of the United States. It is high time that federal agencies and courts stopped using absurd readings of the Clean Water Act to penalize and even criminalize ordinary activities taking place miles and miles from actually navigable waters

Ivy League student takes home top prize in PLF’s writing competition

This week we announced the winners of this year’s PLF law school writing competition. We received entries from some of the top law schools in the country on a variety of topics near and dear to PLF’s heart, including the “democracy voucher” anti-American concept last seen in Seattle, economic liberty, and due process. The winner of the competition overall, Brandon Wong, attends Penn Law in Philadelphia, Pennsylvania, while second place went to Valerie Hammel of St. John’s Law in Queens, New York, and third place to Dustin Romney of the Sandra Day O’Connor College of Law at Arizona State.  To read more about the winners, click here.

 

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Vaping Litigation

Electronic nicotine delivery systems—vaping devices and e-cigarettes—first hit U.S. stores in 2007. It didn’t take long for vaping to jump from zero to a $5 billion domestic industry, as entrepreneurs quickly recognized a market hungry for an alternative to traditional cigarettes. In 2016, just as the burgeoning vaping industry was getting off the ground, the Food and Drug Administration (FDA) stepped in with a rule that deems e-cigarettes as tobacco products, and brand new, severe regulations that will only harm the industry and perhaps overall public health—contrary to the agency’s very mission. Using a unique legal theory, Pacific Legal Foundation is suing the FDA in three separate federal courtrooms—at the same time—on behalf of vape store owners and a harm reduction organization in several states who want to promote a more healthy alternative to smoking. The unconstitutional rule burdens these individuals and organizations in unique ways, but all are united in opposition to its continued enforcement. The FDA’s regulations are not only expensive and onerous, and prevent vaping entrepreneurs from fulfilling what they believe is a humanitarian mission of helping people, but the rule was illegal the second it hit the Federal Register.

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