Case 1:16-cv-01460-APM Document 27 Filed 03/21/17 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CIGAR ASSOCIATION OF AMERICA,

et al.,

Plaintiffs,

v. Civil Action No. 16-1460 (APM)

UNITED STATES FOOD AND DRUG

ADMINISTRATION; UNITED STATES
DEPARTMENT OF HEALTH AND
HUMAN SERVICES; THOMAS E. PRICE,
M.D., in his official capacity as Secretary of
Health and Human Services; and STEPHEN
OSTROFF, M.D., in his official capacity as
Acting Commissioner of Food and Drugs,1

Defendants.

JOINT MOTION TO AMEND SCHEDULING ORDER

The parties jointly move the Court for a 30-day extension of all pending deadlines to allow

new leadership personnel at the Department of Health and Human Services to more fully consider

the issues raised in this case and determine how best to proceed. In support of this motion, the

parties state as follows:

1. Plaintiffs challenge a U.S. Food and Drug Administration (FDA) rule that deems

cigars to be tobacco products subject to FDA regulation. See FDA, Deeming Tobacco Products

To Be Subject to the Federal Food, Drug, and Cosmetic Act, as Amended by the Family Smoking

Prevention and Tobacco Control Act; Restrictions on the Sale and Distribution of Tobacco

1
Pursuant to Fed. R. Civ. P. 25(d), Dr. Thomas Price and Dr. Stephen Ostroff are substituted for
their predecessors in office.
 Case 1:16-cv-01460-APM Document 27 Filed 03/21/17 Page 2 of 3

Products and Required Warning Statements for Tobacco Products, No. FDA-2014-N-0189, 81

Fed. Reg. 28,973 (May 10, 2016) (the deeming rule).

2. Plaintiffs filed their motion for summary judgment on February 13, 2017. See ECF

No. 22. Under the current briefing schedule, Defendants opposition and cross-motion are due on

March 30; Plaintiffs reply and opposition are due on May 15; and Defendants reply is due on

June 14. See ECF No. 17. Oral argument is currently scheduled for July 28. See id.

3. Due to the recent change in administrations, new leadership personnel at the

Department of Health and Human Services seek additional time to more fully consider the issues

raised in this case and determine how best to proceed, and therefore respectfully request a 30-day

extension of all pending deadlines.

4. Defendants previously moved for a 60-day extension of all pending deadlines, to

which the parties were unable to agree. See ECF No. 26. After conferring further, the parties have

agreed to and jointly request the 30-day extension sought here. Accordingly, Defendants

respectfully withdraw their prior motion. See ECF No. 26.

5. Plaintiffs note that they are concerned about certain compliance deadlines under the

Final Rule at issue, which they took into consideration in agreeing to the current briefing schedule.

Thus, while Plaintiffs have agreed to a 30-day extension to accommodate Defendants, they have

informed Defendants that they will not consent to any further extension of the litigation deadlines

without a day-for-day extension of compliance deadlines under the Final Rule.

WHEREFORE, the parties respectfully request that the Court grant a 30-day extension of

all pending deadlines in this case. A proposed order is attached.

Dated: March 21, 2017 Respectfully submitted,

/s/ Mark A. Heller . CHAD A. READLER

Mark A. Heller, DC Bar No. 357046 Acting Assistant Attorney General
Mark S. Raffman, DC Bar No. 414578

2
 Case 1:16-cv-01460-APM Document 27 Filed 03/21/17 Page 3 of 3

GOODWIN PROCTER LLP SHEILA LIEBER

901 New York Avenue, N.W.
Washington, DC 20001
Telephone: (202) 346-4000
mheller@goodwinprocter.com
Attorneys for Plaintiff Cigar Association of
America
/s/ Michael James Edney
Michael James Edney
Caroline M. Mew
NORTON, ROSE, FULBRIGHT US, LLP
799 9th Street, NW, Suite 1000
Washington, DC 20001
(202) 662-0410
Fax: (202) 662-4643
michael.edney@nortonrosefulbright.com
Deputy Director
/s/ Eric Beckenhauer .
ERIC B. BECKENHAUER
Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave. NW
r Washington, DC 20530
Tel: (202) 514-3338
Fax: (202) 616-8470
E-mail: Eric.Beckenhauer@usdoj.gov
Counsel for Defendants

Attorneys for Plaintiffs International Premium

Cigar and Pipe Retailers Association and Cigar
Rights of America

3
 Case 1:16-cv-01460-APM Document 27-1 Filed 03/21/17 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CIGAR ASSOCIATION OF AMERICA,

et al.,

Plaintiffs,

v. Civil Action No. 16-1460 (APM)

UNITED STATES FOOD AND DRUG

ADMINISTRATION; UNITED STATES
DEPARTMENT OF HEALTH AND
HUMAN SERVICES; THOMAS E. PRICE,
M.D., in his official capacity as Secretary of
Health and Human Services; and STEPHEN
OSTROFF, M.D., in his official capacity as
Acting Commissioner of Food and Drugs,1

Defendants.

[PROPOSED] ORDER

Upon consideration of the parties joint motion to amend the scheduling order, it is hereby

ORDERED that the motion is GRANTED; and it is

FURTHER ORDERED that the [17] scheduling order in this case is amended as follows:

Defendants opposition to Plaintiffs motion for summary judgment and cross-motion

for summary judgment shall be filed by: May 1, 2017

Briefs of any amici granted leave to file in support of Defendants shall be filed by:
May 8, 2017

Plaintiffs reply in support of its motion for summary judgment and opposition to
Defendants cross-motion for summary judgment shall be filed by: June 14, 2017

Defendants reply in support of their cross-motion for summary judgment shall be filed
by: July 14, 2017

1
Pursuant to Fed. R. Civ. P. 25(d), Dr. Thomas Price and Dr. Stephen Ostroff are substituted for
their predecessors in office.
 Case 1:16-cv-01460-APM Document 27-1 Filed 03/21/17 Page 2 of 2

Plaintiffs shall file the appendix of excerpts of the administrative record by: July 28,
2017

Oral argument shall be rescheduled for a date and time that suits the Court.

SO ORDERED.

Dated: ______________________________ ___________________________________

AMIT P. MEHTA
United States District Judge