Gordon v. Holder
2015 U.S. Dist. LEXIS 38105
D.D.C.2015Background
- Robert Gordon operated a store and mail-order cigarette business and sued to enjoin enforcement of portions of the PACT Act requiring delivery sellers to comply with state/local tax collection requirements (15 U.S.C. § 376a provisions).
- The district court previously entered a preliminary injunction suspending enforcement of those PACT Act provisions; the D.C. Circuit affirmed.
- Gordon’s business closed after the preliminary injunction; the D.C. Circuit held the case was not moot because Gordon’s wife declared intent to reopen if they prevailed.
- Gordon now stipulates he will not reopen the business and is bound by a Southern District of New York consent order barring involvement in cigarette sales, and ATF’s chief declarant said ATF does not intend to seek or recommend PACT Act enforcement against Gordon.
- Defendants moved to dismiss as moot; district court considered Article III mootness and prudential mootness given the speculative risk of future federal or state enforcement and the novel, facial constitutional challenge Gordon pressed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether case remains justiciable or is moot | Gordon: risk of future enforcement for past violations keeps controversy alive; relief would preclude such enforcement | Defs: Gordon has no intent to resume prohibited conduct; ATF declared it will not pursue enforcement; prospective relief would not affect states | Moot — Article III mootness: case dismissed because Gordon won’t resume conduct and federal enforcement risk is speculative given ATF declaration |
| Whether potential state/local enforcement defeats mootness | Gordon: declaratory relief would bar state/local actions and thus keeps case live | Defs: states/localities are not parties; federal court cannot bind them; speculative | Irrelevant — state/local actions do not prevent dismissal for federal mootness |
| Whether prudential mootness bars equitable relief even if Article III satisfied | Gordon: seeks injunction/declaratory relief to block enforcement | Defs: relief would be purely prospective and speculative; facial constitutional ruling is novel | Prudential mootness applies — court declines to exercise equitable power to decide novel facial constitutional questions |
| Whether ATF’s representation is sufficient to show lack of prosecution intent | Gordon: agency statements can be unreliable; Mesa Petroleum suggests such statements may be insufficient | Defs: ATF declaration is authoritative, from the enforcement chief, and ATF has primary enforcement authority | ATF declaration carries weight; distinguishes Mesa Petroleum; supports mootness finding |
Key Cases Cited
- Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67 (Article III mootness requires a live case or controversy)
- County of Los Angeles v. Davis, 440 U.S. 625 (burden of demonstrating mootness is heavy)
- Decker v. Northwest Environmental Defense Center, 133 S. Ct. 1326 (case moot only if no effectual relief can be granted)
- Clarke v. United States, 915 F.2d 699 (D.C. Cir.) (agency representations about prosecution intent may moot a case)
- Mesa Petroleum Co. v. Cities Service Co., 715 F.2d 1425 (10th Cir.) (agency statements about lack of prosecution may be insufficient)
- Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (speculative fears of prosecution are insufficient)
- Parklane Hosiery Co. v. Shore, 439 U.S. 322 (judgments do not bind nonparties)
- Penthouse Int’l, Ltd. v. Meese, 939 F.2d 1011 (D.C. Cir.) (prudential mootness and withholding equitable relief)
- Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (facial challenges are disfavored)