complicated issue so we may add a little extra time here and there but we're also not i've been here all day with that mr guiding you could start your art to me please the court  because those amendments because those that of the the new version of the did not address the on lawful conduct or the alleged unlawful conduct on appeal the original case could and that is our challenge on appeal we are saying that any that that because america decision in judge graham how that any across the border categorical that line must have or must lawful conduct corrupted by the two thousand and twenty guys in aren't our position is that it is no and therefore i have a question on that yes even accepting that dr and if it's not as though it's an ordinance that has the same provisions the same unlawful conduct is continuing it said they had new guidance they went through new procedures which seems like a if it's a problem a new problem that has to be challenged in a new lawsuit i think it's different than the examples you're giving us and that you know the actually the case in the northeastern the supreme court in the northeastern case and this court in green faced the same exact by which the new ordinance was adopted or was it a challenge to the substance of the four events in those would be the substance but i don't see anything in those cases that it would be would make a difference the relief  you wouldn't have to make that ruling but as a practical matter it would be because it didn't go through formal notice in common maybe and i think it's a simple d as that so if we were to disagree if you  that as far as your pipes the case was really would there be any reason for us to look at the merits of the case as far as your clients are concerned i think the answer would be no is there anything else that you want to tell us about the root of this issue i think that is it except maybe just the point that both northeastern ing green also hall that the the new the attempted moodiness can be different it doesn't need to be exactly the same is long as it doesn't solve the original problem the problem that's on appeal if there is no movement in the original case p his own deadline particularly where the this deadline is just not a simple deadline that some of these cases talk about like this no willy on a social security finally  entails complicated issues science technique technical issues ministry of issues and policy issues and we shouldn't have judges making those decisions they should go through formal notice and comment so that our stakeholder interests  we know they even consider we know f d a has an obligation to address them and write about them and explain its decision and ultimately if we just agree it's subject to sure b and so i think i'll  intervention the district court committed legal error when it denied a cigar counts intervention motion as untimely without ever asking whether the motion was filed within a reasonable time after the government had ceased to adequately represent cigar appellants interests the cases are unanimous the fattest the legal standards that the court was bound to apply the chronology shows the cigar appellants intervene shortly after events st suggested that the government might cease adequately representing their interests before the merits order in may of two thousand and nineteen the government was vigorously defending the two thousand and seventeen guidance and indeed as the plaintiffs have pointed out twenty nine of their brief we have no opportunity to intervene as of may two thousand and nineteen we sought to intervene at the st sign that the government might not appeal that it might not adequately represent our interests that was after the remedial order when the government filed a motion to clarify rather than immediately appealing that order we contacted the government about a fee an appeal the government did not file an appeal as the time was running we filed our intervention motion on september the th which is well before the time to appeal had run that was the time when we should file a motion if you compare our intervention with the vase associations motion you'll see there's no functional difference between them the vase association filed a motion to intervene on august the th we filed our since september th absolutely nothing happened in the case in those intervening few weeks that would make the timely and ours not the district court found the basis o c a since could not as a practical matter successfully intervene earlier and that their motion would not have been granted before d the remedial order issue that this one hundred and twenty of the appendix if you prioritizing enforcement with regard to flavored cigars how does that impact your argument with respect to the district court's abuse of discretion motion to even as the government was suggesting it was considering tweaking the two thousand and seventeen guidance it was vigorously defending its own authority and discretion to decide on deadlines for substantial equivalence reports and pre market tobacco applications the government continued to defend the two thousand and seventeen guidance in the maryland case with the full throat i want to add here that the changes that the government was considering for  absolutely no interest whatsoever in what the government might do with respect to flavored cigars so the march two hundred one thousand announcement was an irrelevancy had nothing to do with any i want to add one more point on the intervention that we're intervening for purposes of appeal not to effect the district court's you know anything that happened in the district court the merino case in the smoke case make clear that the time to intervene for purposes of appeal is after a judgment even is fine as long as guidance if the court does not reverse the intervention decision on flav a question yes the district court seemed to rely on not just the timing but also concern about prejudice to the parties because your intervention motion seem to suggest that you are going to be arguing about the impact of this case had on that your c c say and the court was concerned that that had not been raised you hadn't situation can you address that yes your honor our motion made very clear that we were intervening for purposes of appeal only the district court suggested that well we're making a new argument and that's not going to be accepted on appeal the smoke additional arguments and materials into a very narrow review of agency action that had already perceive that the legally relevant purpose of their motion as ours was simply to enable them to prosecute and appeal policing the limit upon what the parents may argue on appeal is properly left to the appeals court and we're not raising any new arguments we're not and there's no need for us to make a few time motion i do need to address the maris very briefly the the the the opinions below are all about the cigarettes and not cigars there are about an epidemic of youth baiting especially the january two thousand and twenty guidance takes the cigarettes off the ta at this point this quarter these orders the merits order and the remedial order are about cigars and pipe tobacco and the district court never said never held that these were justified these extraordinary remedies were justified as to have to and this is all that's left i want one more point the government says is content now to have the the remand without  government says the eager to have their injunction remain in place even if we're allowed to intervene and even if there are changed circumstances this is remarkable it's unprecedented the government cites the bomber of all line of cases those cases say you don't vacate if the party is seeking the panel if there are any further questions from the panel now all right thank you very much  original now superseded action was i found that we found no cases that suggested the voluntary cessation doctrine has any application in that sort of context and to the contrary the only one that we've found where  junction was notwithstanding the fact that the defendant had made clear it would resume the challenge action and the court denied that argument rather than the voluntary association doctrine that they're now pointing to the center for science in the public interest be read in from the d c circuit and valero from this score as we explained in our brief are directly on point and make clear that the proper course of action in a case such as this is to dismiss the appeal is moot and in particular center for science in the public interest dealt with the same sort of context where interviewers were saying hey we have arguments against the new rule that have superseded the want to think of challenge and the d c spent circuit said that's all well and good but that's another case and that's the proper course of action here there's been no challenge to to the courts of appeals over a challenge such as this and therefore the case must be brought in the district or in the st instance and as judge agency asked as far as we're aware no cases been brok challenging and twenty guidance it's quite striking st challenge by tobacco manufacturers against the demon rule was brought the same day that the demon rule was issued we're about ten weeks out from the two thousand and twenty guidance by ten not be any sort of credible challenge to the two thousand and twenty guidance as the as counsel from the government said that guidance is not before this court there's no need to get deeply into you know its merits down on but the only argument that the easier associations have even an earth to against it is that it required notice of comment and somehow was if you without it assuming for the moment that those arguments are relevant in some way they have no beari of the requirements of by fifty three b are that i've noticed the place for the in the federal register which was the case here i'm sorry that i don't have that citation of my fingertips but notice replacing the in the federal register both in march twenty nine thousand and one the guidance issued under five hundred and fifty three b one that notice must give a statement of the time place the nature of the rule making proceedings it did exactly that it said what the nature was it gave a time for comments  places it must have a reference to the legal authority under which the rules proposed it did that citing that happens for all act and it must give either the terms or substance of the proposed rule or description of the subjects and issues involved and it did exactly that and orders in a case they have brought in the district of columbia that's the only argument they raise that's the only argument the judge brinn passed on they don't dispute that on that argument judge greg was correct or even that he abused court looking at a motion to intervene in the district court looks at what was said in the complaint intervention and whether the interests raised when the proposed intervene or move for intervention are the address that its intervention motion lives or dies and that here those interests were ones that had been obvious to the cigar associations since at least august of two thousand and eighteen more than a year before they filed  appellants you know complained that the o j was not moving the transfer our case to the district of columbia they said nothing about that the judge read then they filed an amicus brief in which they said that the government had raised all the legal reasons government announced in two thousand and eighteen and then issued draft guidance in march two thousand and nineteen that said that it was planning on revoking large parts of the guidance which would cover about fifty percent of our market  ultimate objective the government quite clearly did not share at least as early as march th team when it made clear that as soon as possible it plans to issue a new guidance that we don't do that and then of here again the cigars o c a sions or completely silent instead they chose as counsel for the government said to make a collateral attack in another court it's unclear how it could be that it was timely for them to make a challenge there that it was clear at that point that their interests and diverge such that they needed to seek this extraordinary relief in a poor nick or at trying to hold the judge dreams opinion didn't lie to them but it wasn't yet right for them to raise any issue before judge graham and so you know i think it's quite clear that their argument was entirely untimely and in terms of prejudice as as judge rushing construe the motion of or the district court on one ground is emotional for this war on completely different grounds as councils are else our question i'm happy to discuss further on the intervention issue of the court not neither of them involve this kind of general statement that there would be no one forced me against anybody and crucially that the manufacturers that therefore wring their products to market and continue to market them without deadline extension for some number of years that arguably is as brawlers what happened in this particular case with respect to the  sodium i believe a kidney treatment and that the court had said that the three year you know permission to market while drunk stevens application was being reviewed of for other many factors would continue for three years now it did give a period of years but that's quite distinct and to very significant ways the st is of course that it was about one specific drug it having been made by mu just gave a forty year grace period and freedom from any potential prosecution why ability for cigars and five years for easy carets it then created an indefinite grace period and an immunity from the law thereafter unlike the deeming rule the twenty seven dollars team guide said any manufacturer that's admits navigation is then free to market without receiving a marketing order not discretion to be the nature of the challenge agency action what's much more a point is public citizen be a cost which no party has suggested is in accurate on the war but only stated doesn't accurately describe what the twenty do not need to file the applications that the the in that case a regulation in this case statute requires and you can continue to go by your business without having to worry about facing any sanctions question that this was after his final statement until it intil it possibly would have reconsidered in a later date which of course out when it did but the case law is clear that the possibility that an agency may one day plate language of course the government can't shield the legislative rule of final agency action and others rights by simply claiming you know including a disclaimer that says this is not a legislative rule or finally the action here for example some of the language that you referred to says the use of the word should in agency guidances mean that something is suggested or recommended but not quired the word should never appears in the twenty seven team guidance to the contrary it says that this is something that in that forty three dollars it says f d a is providing further instruction extension there will be a continued compliance period it was making clear that what it said in the guidance was the case intil if they making in this case we would get no judicial review which is the whole point of five hundred and fifty three nd voluntary sation there are many are alternatives d are exceptions to the mutinous argument and we argue another one which is northeastern in green there's no evidence in those cases that those eason cs or those cities were trying to you just move the case they were trying to solve the problem the problem was they didn't solve the problem and so the original challenge informal notice and comment through guidance not a formal rule making that is what we are challenging here we're saying that judge grimm got it wrong and he can't have it both ways you can't have a legislative rule on the one hand for two thousand and seventeen and then for his date after an informal non substantive rule making f d a says it might not do making on remand we don't need to show that this is the sugar king case we only need to thank you oh my and the right spot a little to your left a little to yeah your goods right re c a a with respect to the argument about what we told the district court i want to invite the panel to look at it's not in the joint appendix but it's in the record in the district court record but we have heard today about things we were supposed to have said to the district court and i think it's important that the panel get a look at what we said to the district court about intervention in that reply brief given what's been said today it's been said today that we were playing games that district of columbia when we should have been in maryland in the fact the matter is we thought the government was going to support us in the district of columbia based on discussions we had with them we were surprised when they didn't but regardless the government was adequately representing us representing our interests in maryland the hall time there was no adversity of interest no collusion with the plaintiffs no nonfeasance that is what stewart versus huff teaches we must show and there was no chance that we could and twenty guidance even now doesn't say they would do this independently they're saying that it's compelled by the district court order if they want to regulate flavored cigars they ought to do it on their own instead of hiding under the skirts of this record sport or flavored cigars are not fifty percent of the market and two of our associations don't make those cigars and our associations those two associations are the ones who are going to bear the greatest burden of this order because they make the largest number of stock even units their f d a is lowest priority and yet they're the ones who are going to have to spend millions of dollars for the may two thousand and twenty deadline that the agency doesn't even think is appropriate for those cigars last point if this case is moot as to vapors as mr didden or suggests the court should vacate the injunction because it's moot as to them so that it doesn't have an effect on other parties given that the government is is asking the court to allow it to hide behind the injunction that's all i have thank you ron all right thank you  it's hard for me to understand how training would be different as to that category versus the category of being products on the market as of august th two thousand and sixteen and certainly i'm not aware of any case that drugs that distinction cancer for the plaintiffs also suggested put the argument together we understand that there are some time sensitivity here so the court will endeavor to act promptly so the weekend gets to a decision and the parties can move on from there as most of you know it's our tradition in the th circuit to come down from the bench if we can also that's not something we can do today so if you'll just consider this your audio video  greeting from the court and we hope you all stay healthy wash your hands and we hope to see you in person when things return to normal so with that i will ask the clerk to adjourn court states in its own accord