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Gordon v. Holder

United States District Court, D. Columbia.

March 26, 2015

ERIC HOLDER, Attorney General of the United States, et al., Defendants

For Robert Gordon, Plaintiff: Richard P. Sobiecki, LEAD ATTORNEY, Vernon Anthony Andrew Cassin, III, BAKER BOTTS LLP, Washington, DC USA; Aaron M. Streett, PRO HAC VICE, BAKER BOTTS, L.L.P, Houston, TX USA.

For Eric H. Holder, Jr., In his official capacity as Attorney General of the United States, United States Department of Justice, Kenneth Melson, In his official capacity as Acting Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, Bureau of Alcohol, Tobacco, Firearms, And Explosives, John Potter, " JACK," In his official capacity as Postmaster General, United States Postal Service, Defendants: Daniel K Crane-Hirsch, LEAD ATTORNEY, U.S. Department of Justice, Consumer Protection Branch, Washington, DC USA; Gerald Cooper Kell, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Office Of Consumer Litigation, Washington, DC USA.

For National Association of Convenience Stores, New York Association of Convenience Stores, Amicii: John F. O'Connor, Jr., STEPTOE & JOHNSON, L.L.P., Washington, DC USA.

For City of New York, Amicus: Ari Biernoff, Rebecca K. Kagan Sternhell, LEAD ATTORNEYS, NEW YORK CITY LAW DEPARTMENT, New York, N.Y. USA.

For Campaign For Tobacco-Free Kids, American Cancer Society, American Cancer Society Cancer Action Network, American Legacy Foundation, American Lung Association, Amicii: Allison Marcy Zieve, LEAD ATTORNEY, PUBLIC CITIZEN LITIGATION GROUP, Washington, DC USA; Mark E. Greenwold, LEAD ATTORNEY, CAMPAIGN FOR TOBACCO-FREE KIDS, Washington, DC USA.

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Royce C. Lamberth, United States District Judge.

Pending before the Court is plaintiff's application for a permanent injunction and

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declaratory relief. ECF No. 48. After considering this motion, the response and reply thereto, the filings of various amicus curiae, the record, and the relevant authorities, the Court concludes that this case must be dismissed as moot.


Plaintiff Robert Gordon owned a store and mail order business selling cigarettes. Joint Stipulations ¶ ¶ 6, 8--9, ECF No. 47. He filed this lawsuit seeking an injunction to prevent enforcement of many provisions of the Prevent All Cigarette Trafficking Act (" PACT Act" or " the Act" ) and a declaration that those provisions are unconstitutional. The Court previously dismissed all but one of Gordon's claims. Order, Dec. 5, 2011, ECF No. 37. A preliminary injunction was entered, however, staying the enforcement of 15 U.S.C. § 376a(a)(3)(A)--(B), (4), and § 376a(d). Id. That portion of the Act requires delivery sellers, like Gordon, to " comply with 'all State, local, tribal, and other laws generally applicable to sales of cigarettes or smokeless tobacco as if the delivery sales occurred entirely within the specific State,' meaning that they must collect any taxes that state or local laws require in-state retailers to collect." Gordon v. Holder, 721 F.3d 638, 642, 406 U.S.App.D.C. 6 (D.C. Cir. 2013) (quoting 15 U.S.C. § 376a(a)(3)). Gordon argues that this portion of the law runs afoul of the Due Process Clause. The Court concluded that a preliminary injunction was warranted as to this portion of the statute because Gordon demonstrated a sufficient likelihood of success on the merits and he met the other preliminary injunction factors. Gordon v. Holder, 826 F.Supp.2d 279, 297 (D.D.C. 2011). The Court of Appeals affirmed. Gordon, 721 F.3d at 657--58.

Between the Court's entry of the preliminary injunction and the Court of Appeals' decision affirming it, Gordon's business closed. Id. at 643. The Court of Appeals concluded, however, that the case was not mooted by this event because Gordon's wife, Marcia Gordon, " submitted a sworn declaration that she and Gordon intend to reopen their business if they prevail, and that they remain capable of doing so." Id. The Court of Appeals based its conclusion on precedent holding that a party's " uncontroverted intention to operate in the future in ways that would violate" the challenged government restriction maintains a lawsuit's vitality. Unity08 v. FEC, 596 F.3d 861, 864, 389 U.S.App.D.C. 291 (D.C. Cir. 2010).

The Court of Appeals observed that, although its mootness determination was final, it was possible that facts could arise later which would " moot the case in the future, at which point the district court would be required to dismiss Gordon's complaint." Gordon, 721 F.3d at 643 n.3. In fact, the circumstances surrounding this lawsuit have changed significantly in the intervening period. Gordon now stipulates that he has no intention of reopening his business whether or not he prevails in this lawsuit. Joint Stipulations ¶ 11. Additionally, Gordon is party to a consent order in the Southern District of New York stating that he " shall not, directly or indirectly . . . make, participate in, assist, aid or abet, or receive any direct benefit from any sale, shipment or delivery of cigarettes or tobacco products to any person." City of New York v. Gordon, Order on Consent ¶ 1, Civil Action No. 12-cv-4838 (VSB), 2014 WL 4471007 (S.D.N.Y. June 10, 2014).

Defendants have submitted evidence indicating that Gordon is highly unlikely to face federal government initiated repercussions from his past conduct. Before the Court is the declaration of Joseph Fox, Chief of the Alcohol and Tobacco Enforcement Branch, Bureau of Alcohol, Tobacco,

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Firearms and Explosives, U.S. Department of Justice. Joseph Fox Decl. ¶ 1, ECF No. 57-1. Fox has represented to the Court that ATF has no intention, based on all evidence currently known to ATF, to " seek or recommend enforcement action against Gordon under the PACT Act." Id. ¶ 35. As Chief of the Alcohol and Tobacco Enforcement Branch at ATF, Fox is " responsible for overseeing ATF's alcohol and tobacco diversion programs." Id. ¶ 33. His duties include " oversee[ing] and review[ing] investigations and potential enforcement actions, mak[ing] decisions about which ones warrant such actions, and develop[ing] and administer[ing] alcohol and tobacco enforcement priorities for ATF." Id. The Attorney General has " delegated principal enforcement authority for ...

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