Forsher v. The J.M. Smucker Co.

Filing 38

MEMORANDUM AND ORDER: for the reasons stated, we will continue to wait, hopeful that the agency will act or at a minimum assure us that responsive agency action is forthcoming. SO Ordered by Judge Raymond J. Dearie on 9/27/2017. (Ramesar, Thameera)

FILED

IN CLERK'S OFFICE

US DISTRICT COURT E.D.N.Y
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

ik

SEP 2 7 2017

^

GRAHAM FORSHER,on behalf of himself

BROOKLYN OFFICE

and all others similarly situated,
Plaintiff,
MEMORANDUM & ORDER

- against 15 CV 7180(RJD)(MDG)
THE J.M. SMUCKER CO.,
Defendant.
X

DEARIE, District Judge:

The Court has reviewed and considered the parties' correspondence addressing plaintiffs

renewed request that I now vacate the stay of these proceedings in favor of agency action given
the presumed expertise ofthose authorized to make informed judgments about the subject matter
at hand. I certainly understand plaintiffs frustration, particularly when there is no assurance that
the FDA will act and no proposed schedule that might suggest that this unfortunate delay will not
be in vain. And defense counsel's observations that the FDA "is presumably reviewing and

considering the 7,600 comments," and that comments by Congress "suggest that the agency is

actively engaged in the rulemaking process," hardly inform the discussion or this Court. Despite
such "developments," as defense counsel chooses to characterize them, the Court is not
optimistic that a resolution by the FDA is imminent.
Judicial deference to administrative expertise is a prudent concept assuming the relevant

agency or department acts with reasonable dispatch. Agency inaction, particularly when coupled
with silence from the agency on the progress of its determination without commitment to act
eventually, does not provide comfort to the Court that agency deference is working other than to
freeze the Court from addressing as best it can the issues that are properly before it.

That said, and with increasing discomfort, we will continue to wait, hopeful that the

agency will act or at a minimum assure us that responsive agency action is forthcoming.
SO ORDERED.

Dated: Brooklyn, New York
September
17

s/ RJD
E

United

t Judge