Amicus Curiae Brief — Food and Drug Administration, et al., Petitioners v. R.J. Reynolds Vapor Co., et al.
Supreme Court briefDec 20, 2024
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No. 23-1187
In the Supreme Court of the United States
______________
FOOD AND DRUG ADMINISTRATION, ET AL.,
Petitioner,
v.
R.J. REYNOLDS VAPOR CO., ET AL.,
Respondents.
On Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit
BRIEF AMICUS CURIAE OF
THE AMERICAN CENTER FOR LAW AND JUSTICE
IN SUPPORT OF RESPONDENTS
JORDAN SEKULOW
Counsel of Record
DONN PARSONS
BENJAMIN P. SISNEY
NATHAN J. MOELKER
AMERICAN CENTER
FOR LAW & JUSTICE
201 Maryland Ave., NE
Washington, DC 20002
(202) 546-8890
sekulow@aclj.org
Counsel for Amicus
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF AMICUS ........................................... 1
SUMMARY OF ARGUMENT .................................... 1
ARGUMENT............................................................... 5
I.
THE TOBACCO CONTROL ACT’S PLAIN
MEANING IS THAT ANY PERSON ADVERSELY
AFFECTED BY A REGULATION OR DENIAL MAY
CHALLENGE THAT DECISION IN HIS OR HER HOME
CIRCUIT; THAT MEANING IS NOT CHANGED BY
JOINDER................................................................ 5
A. The Tobacco Control Act Expressly Does
Not Limit Its Relief to Manufacturers. ........... 6
1. The “Adversely Affected” Standard Is Not
More Onerous Under the Tobacco Control
Act. ............................................................. 8
2. The Tobacco Control Act’s Broad
Authorization is Evidenced by Its Narrower
Language for Other Remedies. ............... 13
B. If One Party Has Standing Under The
Tobacco Control Act, Then Other Parties May
Properly Join that Party’s Petition. .............. 15
ii
II.
CONGRESS HAS AUTHORITY TO DEFINE THE
JURISDICTION OF THE FEDERAL COURTS AND
RESPECTING THAT AUTHORITY DOES NOT
CONSTITUTE FORUM SHOPPING. ......................... 20
CONCLUSION ......................................................... 25
iii
TABLE OF AUTHORITIES
Cases
Page(s)
Allen v. Wright,
468 U.S. 737 (1984) ................................................. 9
Association of Data Processing Serv. Orgs., Inc. v.
Camp,
397 U.S. 150 (1970) ............................................... 12
Atchison, T. & S. F. Ry. Co. v. United States,
549 F.2d 1186 (8th Cir. 1977)............................... 17
Atlantic Marine Construction Co. v. United States
District Court,
571 U.S. 49 (2013) ................................................. 21
Bank of Am. Corp. v. City of Miami,
581 U.S. 189 (2017) ............................................... 11
Beals v. Virginia Coalition for Immigrant Rights,
No. 24A407 (U.S. filed Oct. 28, 2024) .................... 1
Bennett v. Spear,
520 U.S. 154 (1997) ......................................... 10, 11
Candarini v. Attorney General,
369 F. Supp. 1132 (E.D.N.Y. 1974) ...................... 18
Cannon v. Univ. of Chi.,
441 U.S. 677 (1979) ............................................... 16
iv
Clarke v. Sec. Indus. Ass’n,
479 U.S. 388 (1987). .......................................... 9, 10
Dir. v. Newport News Shipbuilding & Dry Dock Co.,
514 U.S. 122 (1995) ................................................. 8
Exxon Corp. v. FTC,
588 F.2d 895 (3d Cir. 1978) .................................. 18
FDA v. Wages,
No. 23-1038 (U.S. filed Mar. 19, 2024) ................... 1
Ferens v. John Deere Co.,
494 U.S. 516 (1990) ............................................... 21
Fischer v. United States,
144 S. Ct. 2176 (2024)............................................. 1
Flynn v. United States SEC,
877 F.3d 200 (4th Cir. 2017)................................. 23
Global Van Lines, Inc. v. ICC,
691 F.2d 773 (5th Cir. 1982)................................. 17
Heritage Foundation v. Parker,
No. 21A249 (U.S. filed Dec. 18, 2021) ................... 1
Kenyatta v. Kelley,
430 F. Supp. 1328 (E.D.Pa. 1977) ........................ 18
Leroy v. Great W. United Corp.,
443 U.S. 173 (1979) ............................................... 21
v
Lexmark International, Inc. v. Static Control
Components, Inc.,
572 U.S. 118 (2014) .................................... 9, 10, 11
Lujan v. Nat’l Wildlife Fed’n,
497 U.S. 871 (1990) ................................................. 9
Match-E-Be-Nash-She-Wish Band of Pottawatomi
Indians v. Patchak,
567 U.S. 209 (2012) ........................................... 9, 10
McQuiggin v. Perkins,
569 U.S. 383 (2013) ............................................... 16
MedImmune, Inc. v. Genentech, Inc.,
549 U.S. 118 (2007) ................................................. 8
Nken v. Holder,
556 U.S. 418 (2009) ............................................... 14
Owner-Operator Indep. Drivers Ass’n v. Fed. Motor
Carrier Safety Admin.,
656 F.3d 580 (7th Cir. 2011)................................. 17
Parker Drilling Mgmt. Servs. v. Newton,
587 U.S. 601 (2013) .............................................. 16
Pelphrey v. Cobb County,
547 F.3d 1263 (11th Cir. 2008)............................. 19
Pleasant Grove v. Summum,
555 U.S. 460 (2009) ................................................ 1
vi
Pugin v. Garland,
599 U.S. 600 (2023) ............................................... 21
R.J. Reynolds Vapor Co. v. FDA,
2024 U.S. App. LEXIS 10992
(5th Cir. 2024) ........................................... 14, 15, 16
Reiche v. Smythe,
80 U.S. 162 (1871) ................................................. 19
Republican National Committee v. Genser,
No. 24A408 (U.S. filed Oct. 28, 2024) .................... 1
Rumsfeld v. F. for Acad. & Institutional Rts., Inc.,
547 U.S. 47 (2006) ................................................. 18
Russello v. United States,
464 U.S. 16 (1983) ................................................. 14
Sidney Coal Co. v. Soc. Sec. Admin.,
427 F.3d 336 (6th Cir. 2005)........................... 17, 18
Sosa v. Alvarez-Machain,
542 U.S. 692 (2004) ............................................... 14
Steffel v. Thompson,
415 U.S. 452 (1974) ................................................. 8
Trump v. Anderson,
601 U.S. 100 (2024) ................................................. 1
Trump v. United States¸
603 U.S. 593 (2024) ................................................. 1
vii
Village of Arlington Heights v. Metro. Hous. Dev.
Corp.,
429 U.S. 252 (1977) ............................................... 19
Statutes
15 U.S.C. § 1640 ....................................................... 23
21 U.S.C. § 387j .............................................. 3, 13, 14
21 U.S.C. § 387l ......................... 2, 3, 5, 6, 7, 13, 14, 16
26 U.S.C. § 7482 ....................................................... 23
28 U.S.C. § 1391 ....................................................... 17
28 U.S.C. § 2343 ....................................................... 17
All Circuit Review Act of 2018, Pub. L. No. 115-195,
132 Stat. 1510 ....................................................... 24
Family Smoking Prevention and Tobacco Control
Act, Pub. L. No. 111-31, Div. A, 123 Stat. 1776..... 5
H.R. Rep. No. 112–508 (2012) .................................. 24
H.R. Rep. No. 115-337 (2017)................................... 24
S. Rep. No. 112-155 (2012) ....................................... 23
Other Authorities
Thomas M. Cooley, A Treatise on the Constitutional
Limitations Which Rest Upon the Legislative
Power of the States of the American Union (5th Ed.
1883) ...................................................................... 23
viii
James Madison, Notes of Debates in the Federal
Convention of 1787 (Ohio Univ. Press 1985) ....... 22
2A N. Singer, Statutes and Statutory Construction §
46:06, (6th rev. ed. 2000) ...................................... 14
Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts (2012) ...... 14, 19
Fed. R. Civ. P. 20 ...................................................... 18
1
INTEREST OF AMICUS 1
Amicus Curiae, the American Center for Law and
Justice (“ACLJ”), is an organization dedicated to the
defense of constitutional liberties secured by law.
ACLJ attorneys have appeared often before this Court
as counsel for parties, e.g., Trump v. Anderson, 601
U.S. 100 (2024); Heritage Foundation v. Parker, No.
21A249 (U.S. filed Dec. 18, 2021); and Pleasant Grove
v. Summum, 555 U.S. 460 (2009); or for amici, e.g.,
Republican National Committee v. Genser, No.
24A408 (U.S. filed Oct. 28, 2024); Beals v. Virginia
Coalition for Immigrant Rights, No. 24A407 (U.S.
filed Oct. 28, 2024); FDA v. Wages, No. 23-1038 (U.S.
filed Mar. 19, 2024); Trump v. United States, 603 U.S.
593 (2024); Fischer v. United States, 144 S. Ct. 2176
(2024); addressing various constitutional and
statutory issues, including those related to standing,
government accountability, and federal jurisdiction.
SUMMARY OF ARGUMENT
Congress has chosen to create a generous venue
statute through the Tobacco Control Act. The FDA’s
arguments against the scope of that statute are
ultimately policy arguments to be addressed to
1 Pursuant to Supreme Court Rule 37.6, amicus curiae state that
no counsel for any party authored this brief in whole or in part,
and no entity or person, aside from amicus curiae, its members,
and its counsel, made any monetary contribution toward the
preparation or submission of this brief.
2
Congress. Federal law provides that if the FDA denies
an application related to a tobacco product, any
person adversely affected by the denial of such an
application “may file a petition for judicial review of
such regulation or denial with the United States
Court of Appeals for the District of Columbia or for
the circuit in which such person resides or has their
principal place of business.” 21 U.S.C. § 387l(a)(1).
Congress thereby empowered parties, when seeking
review, with a choice among circuit courts.
Respondent exercised this choice by petitioning for
review of a product denial in the Fifth Circuit.
The FDA attempts to evade this review by, on the
one hand, trying to limit those who are “adversely
affected” and, on the other hand, by trying to prohibit
joinder. Both arguments are inconsistent not just with
the statute’s plain meaning, but also with the tools of
interpretation and this Court’s precedent in
interpreting similar statutes.
The Tobacco Control Act’s plain language permits
a wide variety of parties, not just manufacturers, to
challenge FDA decisions. The statute uses the phrase
“any person adversely affected,” a term that this
Court has regularly emphasized should be interpreted
generously
and
expansively.
Retailers
are
undoubtedly affected by a marketing denial order that
prevents them from selling a product. Nothing in the
Tobacco Control Act limits those who may sue based
on a denial order only to the “applicants” for approval,
or only to those who manufacture the product. There
are two key flaws with the FDA’s argument for
3
limiting those who can seek review under the Tobacco
Control Act.
First, this Court has made clear that the standard
to show that a party is adversely affected is not
especially demanding, erring on the side of
recognizing standing, and there need be no specific
indication of congressional purpose to benefit the
would-be plaintiff. The zone-of-interests test for
judicial review must be interpreted generously, with
the benefit of the doubt given to plaintiffs. The FDA
has argued that this generous standard only applies
in Administrative Procedure Act (“APA”) cases, but
this Court has taken the opposite position and
regularly applied this principle to all kinds of
statutes. That presumption is crucial, whether a case
is being reviewed specifically through the APA or not.
If Congress gives a cause of action to anyone adversely
affected, it does so knowing that this language means
what it says and that, like the APA, such language
will apply broadly. Congress chose to allow any one
adversely affected to sue.
Second, Congress deliberately chose broad
language in this portion of the Tobacco Control Act,
knowing full well how to use language that would
limit judicial review when desired. In this provision of
the Tobacco Control Act, in 21 U.S.C. § 387l(a)(1),
Congress used the terminology “any person adversely
affected.” That broad and generous language, giving
rights to many parties, compares sharply with
language used elsewhere in the Tobacco Control Act
that only the “holder of an application” may obtain
review of a withdrawal order “in accordance with” the
statute. Id. § 387j(d)(2). Congress knew exactly how to
4
limit the right to obtain review of an FDA decision to
just the holder or maker of an application and did so,
for example, for the withdrawal of an application. But
Congress chose more expansive language, with no
such limitation, for the review of product denials.
The FDA also argues that the Tobacco Control Act
does not allow joint petitions when at least one
petitioner “resides or has their principal place of
business” in the circuit where the petition is filed.
This argument fails as well. Congress adopted
terminology in the Tobacco Control Act’s venue
provision against a backdrop in which courts have
uniformly construed similar language in venue
provisions—including the general federal venue
provision—to allow multi-party actions so long as at
least one party satisfies venue. It is well-established
that it is not, in fact, necessary to look at the standing
of each joined party, and if one party has standing,
that alone suffices. See infra Section I(B).
Venue against the federal government is
regularly and ordinarily proper where any party
resides. Congress enacted the Tobacco Control Act
against this backdrop. There is thus no reason to
think that Congress intended each and every
petitioner to have to establish venue individually
under the Tobacco Control Act. If Congress had
wanted to create such an onerous requirement, and to
deviate from the established rule, it would have so
specified.
Finally, the FDA’s argument is fundamentally a
policy argument against what it views to be forum
shopping and the so-called gamesmanship of litigants
being able to litigate their cases in multiple circuits.
But when Congress does authorize the use of a chosen
5
forum, there should be no presumption against
following Congress’s dictates. If Congress chooses to
enact a statute that permits petitioners to have
certain choices in the courts they select, then
Congress has thereby made the relevant policy choice.
Congress has the ability to define the venue for
federal actions and may well give litigants these
options to ensure that one circuit does not decide
federal questions for the nation.
ARGUMENT
I. THE TOBACCO CONTROL ACT’S PLAIN
MEANING IS THAT ANY PERSON ADVERSELY
AFFECTED BY A REGULATION OR DENIAL MAY
CHALLENGE THAT DECISION IN HIS OR HER
HOME CIRCUIT; THAT MEANING IS NOT
CHANGED BY JOINDER.
This case presents a straightforward question of
venue. Federal law, the Family Smoking Prevention
and Tobacco Control Act, Pub. L. No. 111-31, Div. A,
123 Stat. 1776 (“Tobacco Control Act”), provides that
if the FDA denies an application related to a tobacco
product, “any person adversely affected by such
regulation or denial may file a petition for judicial
review of such regulation or denial with the United
States Court of Appeals for the District of Columbia
or for the circuit in which such person resides or has
their principal place of business.” 21 U.S.C. §
387l(a)(1). The statute’s meaning is plain; any person
that has been adversely affected by the denial of a
product authorization can bring a challenge to that
denial, inter alia, in that person’s home circuit.
6
Here, the FDA denied authorization for a product
and several affected entities joined together,
including retailers of the product domiciled in the
Fifth Circuit, to file a petition for review in the United
States Court of Appeals for the Fifth Circuit. Entirely
consistent with the statute’s plain language, these
retailers, adversely affected by an FDA order,
petitioned for review of that order in their home
circuit. The relevant venue provision, 21 U.S.C. §
387l(a)(1), accordingly gives the Fifth Circuit
authority to review that order.
The FDA proffers two novel theories to try to
evade this review. First, the FDA attempts to limit
petitions for review only those who manufacture
tobacco products, despite Congress’s omission of any
such limitation in the statute. Second, the FDA
argues that even if retailers of products may properly
bring cases in their home circuits, no party from
outside that circuit can join in an otherwise properly
brought petition, despite the fact that the other
statutes allowing suit against the federal government
are universally understood to allow for such joinder.
Both of the FDA’s novel arguments disregard the
statute’s clear language and the principles of
statutory interpretation.
A. The Tobacco Control Act Expressly Does
Not Limit Its Relief to Manufacturers.
Two parties, Avail Vapor Texas, LLC; and the
Mississippi Petroleum Marketers and Convenience
Stores Association, both headquartered in the Fifth
Circuit, joined respondent Reynolds’ Fifth Circuit
petition regarding its e-cigarette product. Both
7
entities are retailers that sell the product. These two
entities, as residents of the Fifth Circuit, undoubtedly
had the ability to bring a case in the Fifth Circuit, if
they have standing to challenge the FDA’s decision.
As retailers of this product, they are “adversely
affected by” the denial of marketing authorization for
products they wish to sell. 21 U.S.C. § 387l(a)(1).
Nonetheless, the FDA seeks to deny these
retailers’ ability to file a petition for review. But no
relevant limitation exists in the statute. Under the
Tobacco Control Act, “any person adversely affected”
may seek judicial review of an FDA order denying an
application for marketing authorization. Id. A retailer
that is forbidden from selling a product that the
retailer otherwise would sell is undoubtedly affected,
and affected adversely, by the FDA’s order. The plain
text of the Tobacco Control Act’s judicial-review
provision leaves no alternative.
As a matter of common sense and ordinary
meaning, a retailer of a product is adversely affected
by an order that that product may not be sold.
Nothing in the Tobacco Control Act limits those who
may sue based on a denial order to only
manufacturers or applicants. Congress used limiting
language elsewhere, but here, Congress chose
broader, all-encompassing terminology, expressly
granting anyone who has been adversely affected by
the FDA’s decision the ability to challenge the order.
Subject, of course, to the limits of Article III, Congress
may and has chosen to specify that all persons (so long
as they are adversely affected by the FDA’s order) are
entitled to bring legal challenges to those orders.
Accordingly, these retailers clearly fall within the
category of “any person.”
8
The FDA argues at length why retailers and
manufacturers are closely aligned and why the
manufacturers are the primary participants in the
administrative process. To the extent this is accurate,
it is irrelevant; Congress imposed no “unaligned”
requirement to seek review. The FDA also raises a
parade of supposed horribles; it expresses concern
about “judicial review at the behest of a retailer that
has never sold the product but would like to do so once
the
product
is
authorized,”
among
other
hypotheticals. Pet. Br. 17. But that is no different
than the case of someone who would like to picket but
does not for fear of arrest. Steffel v. Thompson, 415
U.S. 452 (1974). “[W]here threatened action by
government is concerned, we do not require a plaintiff
to expose himself to liability before bringing suit to
challenge the basis for the threat.” MedImmune, Inc.
v. Genentech, Inc., 549 U.S. 118, 128-29 (2007). A
thwarted desire to act suffices under Article III and is
not a “horrible.” Congress has made the explicit policy
choice to give anyone adversely affected by an FDA
order the right to petition for relief therefrom.
1. The “Adversely Affected” Standard
is Not More Onerous under the
Tobacco Control Act.
The FDA responds to the straightforward
statutory language by relying on this Court’s
emphasis that “[t]he terms ‘adversely affected’ and
‘aggrieved,’ alone or in combination, have a long
history in federal administrative law.” Dir. v. Newport
News Shipbuilding & Dry Dock Co., 514 U.S. 122, 126
(1995). This Court has held many times that a
9
plaintiff is adversely affected if his or her interests
“fall within the zone of interests protected by the law
invoked.” Lexmark International, Inc. v. Static
Control Components, Inc., 572 U.S. 118, 129 (2014)
(quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). In
other words, to be adversely affected a plaintiff must
show that his injury is within the “‘zone of interests’
sought to be protected by the statutory provision
whose violation forms the legal basis for his
complaint.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S.
871, 883 (1990).
That precedent is certainly relevant here. But this
“zone of interests” is an additional overlay in
administrative cases on top of the already-existing
requirements for Article III standing. In other words,
it is a “prudential standing test.” Match-E-Be-NashShe-Wish Band of Pottawatomi Indians v. Patchak,
567 U.S. 209, 225 (2012). This Court has made clear
that this prudential requirement is not “especially
demanding[]” and “there need be no indication of
congressional purpose to benefit the would-be
plaintiff.” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388,
399-400 (1987). The right to review is only denied “if
the plaintiff’s interests are so marginally related to or
inconsistent with the purposes implicit in the statute
that it cannot reasonably be assumed that Congress
intended to permit the suit.” Id. at 399. In short, when
reviewing zones of interest, “the benefit of any doubt
goes to the plaintiff.” Match-E-Be-Nash-She-Wish,
567 U.S. at 225.
This standard favors those who are challenging
government action. This Court has emphasized the
need to apply this test in the context of “Congress’
evident intent to make agency action presumptively
10
reviewable.” Clarke, 479 U.S. at 399. This Court has
“often ‘conspicuously included the word “arguably” in
the test to indicate that the benefit of any doubt goes
to the plaintiff[.]’” Lexmark Int’l, Inc., 572 U.S. at 130
(quoting Match-E-Be-Nash-She-Wish, 567 U.S. at
225).
The FDA relies on and invokes the zone-ofinterests test, but simultaneously seeks to avoid this
Court’s repeated recognition that the test is not
difficult and there is a presumption in favor of the
plaintiff’s access to court. The FDA is right that the
Tobacco Control Act brings in language about the
zones of interest from the APA and other statutes. But
by doing so, it therefore also includes this Court’s
regular emphasis that the zone of interest test is easy
to satisfy.
The FDA tries to have its cake and eat it too,
arguing for the application of a zone-of-interest test
here but one that lacks the generosity of this Court’s
traditional “adversely affected” standard. This zoneof-interest test would provide all the benefits to the
government of the traditional test but none of the
boons for the plaintiff. Instead, this Court has
consistently clearly “recognized the presumption in
favor of judicial review of agency action.” Clarke, 479
U.S. at 399. That presumption is crucial, whether a
case is being reviewed specifically through the APA or
not. It is of course true that “what comes within the
zone of interests of a statute for purposes of obtaining
judicial review of administrative action under the
‘generous review provisions’ of the APA may not do so
for other purposes.” Bennett v. Spear, 520 U.S. 154,
163 (1997) (quoting Clarke, 479 U.S. at 400, n.16). But
when Congress creates similar generous review
11
provisions, they likewise should be reviewed against
the background and precedent of the APA. This Court
has never suggested that broad language for review in
other statutes, echoing the APA, should be
interpreted more narrowly than the APA itself.
On the contrary, such a circumstance requires the
application of the principle that “Congress legislates
against the background of our prudential standing
doctrine.” Bennett, 520 U.S. at 163. That background
is the source of the presumption in favor of judicial
review of agency decisions; Congress is presumed to
know that the zone-of-interest test is generous,
allowing anyone to sue that has been arguably
affected by the administrative action. If Congress
gives a right of action to anyone adversely affected, it
does so knowing that this language means what it
says.
The FDA makes a fatal error in its brief,
contending that in “non-APA cases, a court should
generally ask whether the interest asserted by the
plaintiff actually (rather than just arguably) falls
within the zone protected by the statute.” Pet. Br. 13.
No version of this statement appears in Lexmark Int’l,
Inc. v. Static Control Components, Inc., 572 U.S. 118
(2014), which the FDA cites for its claim; in fact, the
word “actually” never even appears in that decision.
On the contrary, this Court has never changed the
standard in such a way; the zone-of-interest test
always asks whether the interest arguably falls
within the statute’s protection. Bank of Am. Corp. v.
City of Miami, 581 U.S. 189, 197 (2017) (holding that
City’s claimed injury was “arguably” within the zone
of interests protected by the FHA); Bennett, 520 U.S.
at 176 (holding that plaintiff’s claimed interest was
12
“arguably” within the zone of interests protected by
the Endangered Species Act); Association of Data
Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150,
151 (1970) (holding that “the test as to the plaintiffs’
interest was satisfied, since 4 of the Bank Service
Corporation Act of 1962, providing that no bank
service corporation may engage in any activity other
than the performance of bank services for banks,
arguably brought a competitor within the zone of
interest protected by it.”) (emphasis added). The
FDA’s claim, in other words, that in non-APA cases
the “arguably” standard does not apply is clearly
wrong. A long line of precedent from this Court has
taken the opposite position and applied the “arguably”
standard to all manner of non-APA cases.
That basic presumption in favor of a right to
challenge administrative actions applies to all
manner of administrative cases, APA or not, and it
certainly applies here. Retailers who would otherwise
sell products cannot do so because of the FDA’s
conduct, having their business threatened. The
statute does not limit standing to applicants, a
limitation that Congress certainly could have
included if it wished. Instead, Congress allowed any
one adversely affected to sue. And “[i]f a manufacturer
lack authorization to sell a product, retailers cannot
lawfully obtain and resell it.” Pet. Br. 14. Those
retailers are thus adversely affected.
13
2. The Tobacco Control Act’s Broad
Authorization is Evidenced by Its
Narrower Language for Other
Remedies.
Congress intentionally chose language in 21
U.S.C. § 387l(a)(1), “any person adversely affected,”
that necessarily adopted a broad and generous
meaning giving rights to many parties. This is
evidenced by contrasting its language with that of
another provision in the Tobacco Control Act. Another
section empowers the FDA to withdraw a grant of
marketing authorization in some circumstances—for
instance, if it finds that “the continued marketing of
[the] tobacco product no longer is appropriate for the
protection of the public health.” 21 U.S.C. §
387j(d)(1)(A). The Tobacco Control Act provides that
only the “holder of an application” may obtain review
of such a withdrawal order. Id. § 387j(d)(2). In other
words, Congress knows exactly how to limit the right
to obtain review of an FDA decision to just the holder
or maker of an application and did just that
concerning the withdrawal of an application. It
created no such limitation for challenging product
denials.
The FDA’s position is that when Congress used in
its statute “any person adversely affected,” it meant
the exact same thing as the term “holder of an
application” used elsewhere in the same statute. Such
a reading simply makes no linguistic sense and
conflicts with basic principles of statutory
interpretation. The Fifth Circuit rightly contrasted
the provision at issue here—under which an
“adversely affected” person may challenge a denial
14
order, 21 U.S.C. § 387l(a)(1)—with the provision
under which the “holder of an application” may
challenge a withdrawal order, 21 U.S.C. § 387j(d)(2).
“Where Congress includes particular language in one
section of a statute but omits it in another section of
the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate
inclusion or exclusion.” R.J. Reynolds Vapor Co. v.
FDA, 2024 U.S. App. LEXIS 10992, *6 (5th Cir. 2024)
(quoting Russello v. United States, 464 U.S. 16, 23
(1983)).
“[W]here the document has used one term in one
place, and a materially different term in another, the
presumption is that the different term denotes a
different idea.” Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 170
(2012); see Nken v. Holder, 556 U.S. 418, 430 (2009).
Different words mean different things and “when the
legislature uses certain language in one part of the
statute and different language in another, the court
assumes different meanings were intended.” Sosa v.
Alvarez-Machain, 542 U.S. 692, 711 (2004) (quoting
2A N. Singer, Statutes and Statutory Construction §
46:06, p. 194 (6th rev. ed. 2000)).
That basic principle is evidenced here: Congress
chose carefully to use different language for two
separate routes to challenge the FDA’s decisions.
Congress did not limit access to the
courts for those challenging a denial
order in the same way it did for those
challenging a withdrawal order. If the
FDA disagrees with Congress’s policy
choice in so drafting the Tobacco Control
15
Act, its concerns are better directed to
Congress than to this court.
R.J. Reynolds Vapor Co. v. FDA, 2024 U.S. App.
LEXIS 10992, *6-7.
Congress has made a careful policy judgment,
limiting the availability of a remedy in some contexts
but not others. It chose language that would not limit
those who can challenge Tobacco Control Act
decisions to applicants. Instead, operating from a
principle that the people should be able to seek
accountability for the actions of government officials,
it has allowed all those who have been adversely
affected to challenge an order. The FDA’s dispute with
that judgment is one of policy, and that policy dispute
does not change the statute’s meaning.
B. If One Party Has Standing Under the
Tobacco Control Act, then Other Parties Can
Properly Join that Party’s Petition.
It is well-established that if one participant in an
action has standing, that will suffice to establish a
Court’s jurisdiction. Venue must be proper for just one
party in multi-party cases challenging government
action. The FDA tries to avoid this principle to argue
that, even if one party in a case can properly bring a
case in his or her home circuit, other parties may not
join that proceeding. But Congress enacted the
Tobacco Control Act’s venue provision in light of
similar venue provisions, which have all been
regularly interpreted to mean that venue needs to be
proper for only one petitioner or plaintiff to bring
action against the federal government in a particular
16
venue.
Under the statute, a group of petitioners may file
a petition for review in a circuit so long as “a
petitioner” resides or maintains its principal place of
business within that circuit. R.J. Reynolds Vapor Co.
v. FDA, 65 F.4th 182, 188 (5th Cir. 2023) (emphasis
added). Because the retailers have standing, their
petition can be brought in the Fifth Circuit. The
parties from Texas and Mississippi undisputedly
meet the requirement that the petition be brought by
a person who “resides or has their principal place of
business” in the circuit where the petition was filed.
21 U.S.C. § 387l(a)(1). Reynolds’ participation in the
case does not somehow change or defeat that fact. The
FDA, by contrast, would import into the Tobacco
Control Act a requirement that every petitioner that
joins in the petition reside in the same circuit for the
statute to apply. Such a statutory change, if desirable,
would be the responsibility of Congress, not the FDA.
Congress does not legislate in a vacuum. When
Congress utilizes pre-existing terms and provisions,
“[i]t is a commonplace of statutory interpretation that
‘Congress legislates against the backdrop of existing
law.’” Parker Drilling Mgmt. Servs. v. Newton, 587
U.S. 601, 611 (2013) (quoting McQuiggin v. Perkins,
569 U.S. 383, 398, n.3 (2013)); see Cannon v. Univ. of
Chi., 441 U.S. 677, 696 (1979) (“It is always
appropriate
to
assume
that
our
elected
representatives, like other citizens, know the law.”).
The FDA’s claim that “courts must evaluate venue
party by party, and venue must be proper as to each
party,” Pet. Br. 27, is flatly contradicted by precedent.
Congress adopted language in the Tobacco Control
Act’s venue provision against a backdrop in which
17
courts had for decades uniformly construed similar
language in venue provisions to allow multi-party
actions so long as at least one party satisfies venue.
One statute for federal venue of review of agency
decisions is 28 U.S.C. § 2343. That statute, enacted in
1966, provides that venue “is in the judicial circuit in
which the petitioner resides or has its principal office,
or in the United States Court of Appeals for the
District of Columbia Circuit.” The FDA ignores this
statute and the cases construing it. But those cases all
hold this language to mean that, if any one petitioner
resides or has its principal place of business within
the relevant circuit, venue is proper for all petitioners.
Atchison, T. & S. F. Ry. Co. v. United States, 549 F.2d
1186, 1187 n.1 (8th Cir. 1977) (“Venue is proper in this
court in that several of the petitioning railroads have
their principal offices in this circuit.”) (emphasis
added); Global Van Lines, Inc. v. ICC, 691 F.2d 773,
774 n.1 (5th Cir. 1982) (“Because one of the petitioners
is a corporation organized and existing under the laws
of the state of Texas, venue is properly in this court.”)
(emphasis added); Owner-Operator Indep. Drivers
Ass’n v. Fed. Motor Carrier Safety Admin., 656 F.3d
580, 585 (7th Cir. 2011).
But more strikingly, the general venue statute
authorizes suits against the federal government “in
any judicial district in which . . . the plaintiff resides.”
28 U.S.C. § 1391(e)(1)(C). That statute, enacted in
1962, has been uniformly understood to allow multiparty actions to be brought in any home venue. In
Sidney Coal Co. v. Soc. Sec. Admin., 427 F.3d 336,
344–45 (6th Cir. 2005), the court emphasized this
point at length; “[e]ach court faced with the same
issue has interpreted ‘the plaintiff’ to mean ‘any
18
plaintiff,’ finding that Congress intended to broaden
the number of districts in which suits could be
brought against government entities.” Id. The court
there went so far as to conclude that the broad
interpretation “is not only the majority view -- it is the
only view adopted by the federal courts since 1971.”
Id. at 345 (citation omitted) (see cases cited therein).
Likewise, Exxon Corp. v. FTC, 588 F.2d 895, 89899 (3d Cir. 1978), emphasized this principle: an
obligation that each “plaintiff in an action against the
federal government or an agent thereof to
independently meet section 1391(e)’s standards would
result in an unnecessary multiplicity of litigation. The
language of the statute itself mandates no such
narrow construction. There is no requirement that all
plaintiffs reside in the forum district.” Id. (citing
Kenyatta v. Kelley, 430 F. Supp. 1328, 1330 n.7
(E.D.Pa. 1977); Candarini v. Attorney General, 369 F.
Supp. 1132, 1135 (E.D.N.Y. 1974)).
Moreover, the FDA concedes that joinder in a
complaint is an analogous situation to joinder in a
petition. Pet. Br. 29 (“The Federal Rules of Civil
Procedure similarly allow multiple plaintiffs to join in
one complaint. See Fed. R. Civ. P. 20(a)(1).”). The FDA
misses, however, the crucial import of that
comparison. It is also well recognized that one
plaintiff alone may be sufficient to establish standing,
and when at least one plaintiff has demonstrated
standing, the court need not consider whether the
other plaintiffs also have standing. Rumsfeld v. F. for
Acad. & Institutional Rts., Inc., 547 U.S. 47, 52 n.2
(2006) (“[T]he presence of one party with standing is
sufficient to satisfy Article III’s case-or-controversy
requirement.”); Village of Arlington Heights v. Metro.
19
Hous. Dev. Corp., 429 U.S. 252, 264 (1977) (“Because
of the presence of this plaintiff, we need not consider
whether the other individual and corporate plaintiffs
have standing to maintain the suit.”); Pelphrey v.
Cobb County, 547 F.3d 1263, 1280 (11th Cir. 2008)
(“Because one plaintiff has standing, we need not
consider whether the other plaintiffs had sufficient
contact with the offensive practice to establish
standing.”). In other words, it is well-established that
it is not, in fact, necessary to look at the standing of
each joined party, and if one party has standing, that
alone suffices.
The Tobacco Control Act was enacted in 2009 with
this long history of allowing joinder as its foundation.
Congress enacted the statute in the light of how
multiparty litigation functions. “Congress having,
therefore, defined the word in one act, so as to limit
its application, how can it be contended that the
definition shall be enlarged in the next act on the
same subject, when there is no language used
indicating an intention to produce such a result?”
Reiche v. Smythe, 80 U.S. 162, 165 (1871); see also
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 322 (2012).
Congress enacted the Tobacco Control Act in a
context where venue against the federal government
is regularly and ordinarily proper where any party
resides. There is no indication that Congress intended
for each and every petitioner to have to establish
venue individually under the Tobacco Control Act.
Such a reading would render the Tobacco Control Act
a radically different statute, with a radically different
venue provision, then the other statutes that provide
for the challenge of government agency action. Such a
20
radical, unanticipated revision without explanation is
an interpretation fundamentally inconsistent with
how this Court interprets statutes. That is not how
Congress enacts new laws.
Under such an interpretation, different
petitioners would have to file separate lawsuits in
different courts challenging the same agency action
and the FDA’s argument would create a tremendous
amount of work for itself (and the courts), requiring
multi-circuit litigation of the same issues by
prohibiting parties from joining together in the same
petitions, regardless of the fact that other
administrative petitions can engage in precisely the
same joinder. The FDA’s proposed reading would
create costly and duplicative litigation and burden all
parties with unnecessary costs, costs that could
eventually become even more wasteful if cases are
ultimately consolidated in one circuit anyway.
Federal courts have long allowed other petitioners
to join properly venued petitioners in bringing
administrative challenges, and there is simply no
reason to read this statute differently. Against this
backdrop, the FDA bears a heavy burden to show that
Congress intended to redefine venue under the
Tobacco Control Act in a way radically inconsistent
with all other methods for challenging government
decisions. It has identified no such evidence.
II. CONGRESS HAS AUTHORITY TO DEFINE THE
JURISDICTION OF THE FEDERAL COURTS AND
RESPECTING THAT AUTHORITY DOES NOT
CONSTITUTE FORUM SHOPPING.
The central tenor of the FDA’s argument is an
21
argument from policy, warning against the dangers of
forum shopping and the supposed gamesmanship of
litigants being able to litigate their cases in multiple
circuits. It cites this Court’s statements that this
Court has resisted reading venue statutes in a way
that would, in practice, “give the plaintiff an
unrestrained choice of venues.” Leroy v. Great W.
United Corp., 443 U.S. 173, 187 n.23 (1979). The
Court has likewise avoided interpretations that would
“encourage gamesmanship” or “‘create or multiply
opportunities for forum shopping.’” Atlantic Marine
Construction Co. v. United States District Court, 571
U.S. 49, 65 (2013) (quoting Ferens v. John Deere Co.,
494 U.S. 516, 523 (1990)).
The FDA’s policy argument misses the crucial
point of this Court’s warning against interpretations
that “create” or “multiply” forum shopping. This Court
is appropriately cautious of creating new
opportunities for choosing a forum that Congress does
not authorize. But when Congress does authorize the
use of a chosen forum, there is no presumption against
following Congress’s dictates. If Congress passes a
statute that does allow petitioners to have certain
choices in the courts they select, then no policy
considerations would justify interfering with
Congress’s authority. “[U]nchecked forum shopping”
and various other attendant slurs are not appropriate,
if Congress’s statute gives litigants the option of
choosing the court. And allowing litigants to go to
multiple circuits by no means would result in a “selfdefeating statute.” Pugin v. Garland, 599 U.S. 600,
607 (2023) (citation omitted), if those options among
circuits are what Congress chose to give to parties.
22
On the contrary, Congress has the ability to, and
does, give parties options among the federal circuits
and may “spread[] out the work of reviewing denial
orders across all the regional circuits.” Pet. Br. 35. In
fact, here, regardless of which interpretation is
chosen, litigants have been given options; under any
option they can choose the D.C. Circuit or their own
home court. The FDA expresses concern about cases
that have “flocked” to the Fifth Circuit, but all parties
agree that the statute allows litigants to choose the
D.C. Circuit; cases could just as easily flock there.
Congress did not set up a system where parties could
only appeal within their own regional circuits but
chose expressly to allow parties to have at least some
choice in their forum. That choice is nothing to be
feared when it is the choice Congress authorized.
The edifice of standing and judicial restraint
originates in James Madison’s warning that the
power given to federal courts should “be limited to
cases of a Judiciary Nature. The right of expounding
the Constitution in cases not of this nature ought not
to be given to” the federal judiciary. James Madison,
Notes of Debates in the Federal Convention of 1787 539
(Ohio Univ. Press 1985). But the determination of
what cases are of a judiciary nature, or in the
Constitution’s language, a suit within Article III of
the Constitution, is wholly distinct from the question
of which court should hear a given case. That latter
decision belongs to Congress.
Congress possesses broad authority to determine
which court shall hear a given case. As Justice Cooley
emphasized, “[t]he power to distribute the judicial
power, except so far as it has been done by the
constitution, rests with the legislature[.]” Thomas M.
23
Cooley, A Treatise on the Constitutional Limitations
Which Rest Upon the Legislative Power of the States of
the American Union 108 n.4 (5th Ed. 1883).
Judicial restraint does not mean refusing to allow
a day in a particular federal court to those who have
been given that day by Congress. So called forum
shopping is no evil if Congress authorizes it. Congress
can and does authorize litigants to choose practically
any court; some federal statutes, for example,
authorize suit in “any United States district court,” 15
U.S.C. § 1640(e), or by stipulation to “any United
States Court of Appeals,” 26 U.S.C. § 7482(b)(2).
Another useful example of Congress’s willingness
to provide multiple avenues to litigants is the aptly
named All Circuit Review Act, a statute for the review
of agency employment decisions. 5 U.S.C. §
7703(b)(1)(B). Congress created § 7703(b)(1)(B) to
allow whistleblower cases—in contrast to ordinary
appeals by federal employees which may be filed only
in the Federal Circuit—to be filed in any “court of
appeals of competent jurisdiction,” as long as the
petitioning party raises no challenges to the MSPB’s
decision other than an argument based on
whistleblower activity. Id. The All Circuit Review Act
was first enacted in 2012 “due to displeasure with how
the Federal Circuit handled whistleblower cases.”
Flynn v. United States SEC, 877 F.3d 200, 203 (4th
Cir. 2017); S. Rep. No. 112-155, at 1-2 (2012)
(“Unfortunately, federal whistleblowers have seen
their protections diminish in recent years, largely as
a result of a series of decisions by the United States
Court of Appeals for the Federal Circuit.”).
Congress specifically chose to enable litigants to
choose their forums, based on a conclusion that “the
24
Federal Circuit has often times misinterpreted
Congressional
intent
when
it
comes
to
whistleblowers.” H.R. Rep. No. 112-508, at 6 (2012).
Section 7703(B)(1)(b) was originally enacted as a
temporary right of petition set to expire after a brief
trial period. In 2018, however, because of an ongoing
desire to give litigants options among circuits
Congress made Section 7703(B)(1)(b) permanent. All
Circuit Review Act of 2018, Pub. L. No. 115-195, §
2(a), (b), 132 Stat. 1510. It did so with the explicit
intent to eliminate “the Federal Circuit’s monopoly on
whistleblower cases” and to accordingly “make[] it
possible for more courts to hear these important
issues and for the Supreme Court to consider
provisions of the [Whistleblower Protection Act] in the
event of a circuit split.” H.R. Rep. No. 115-337, at 4
(2017). In other words, Congress made a policy
judgment to enable litigants to choose their forum.
The House Committee Report emphasized that
“Congress has repeatedly criticized both the MSPB
and the Federal Circuit’s interpretation of []
whistleblower protections” and has reversed MSPB
and Federal Circuit actions by legislative
amendments to the Whistleblower Protection Act. Id.
Accordingly, the All Circuit Review Act, which
provides the broadest possible right to go to any court
of competent jurisdiction, was specifically created by
Congress to allow “forum shopping,” and interpreting
it otherwise would be a rejection of congressional
intent.
Likewise here, the FDA assumes that seeking
favorable circuit precedent constitutes “forum
shopping” that should be prevented. But joining a
lawsuit in a venue with a properly venued petitioner
25
is not impermissible; rather, that is how the statute is
designed to function. Congress may, if it chooses, give
litigants multiple options to pursue legal challenges
to agency decisions. Those options may well even
enable what could be called forum shopping, if
Congress wishes to enable litigants to select their
reviewing court rather than being directed to only one
option. If Congress chooses to do so, then no policy
considerations should interfere with Congress’s
authority. Congress alone has the constitutional
authority to define the venue of the federal courts.
CONCLUSION
For these reasons, amicus curiae respectfully
urges this Court to affirm the Fifth Circuit’s decision.
Respectfully submitted,
JORDAN SEKULOW
Counsel of Record
DONN PARSONS
BENJAMIN P. SISNEY
NATHAN J. MOELKER
AMERICAN CENTER
FOR LAW & JUSTICE
201 Maryland Ave., NE
Washington, DC 20002
(202) 546-8890
sekulow@aclj.org
Counsel for Amicus
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.