Robert Gordon v. Loretta E. Lynch
2016 U.S. App. LEXIS 6175
D.C. Cir.2016Background
- Robert Gordon, a member of the Seneca tribe, sold tobacco from the Allegany Indian Territories across state lines and challenged parts of the federal PACT Act that condition remote cigarette sales on advance payment of state taxes.
- The PACT Act authorizes federal civil and criminal penalties against sellers for unpaid state cigarette taxes and allows states to sue sellers in federal court.
- Gordon sought and obtained a preliminary injunction from the D.D.C. after the district court found likely due-process problems with applying out-of-state tax enforcement to him; this court affirmed the injunction in earlier appeals.
- Gordon later sought declaratory relief and a permanent injunction; during that renewed litigation he stipulated he had no intent to re-enter the cigarette business due to health and financial problems.
- The BATFE head submitted a declaration that the Bureau had no intention to seek enforcement against Gordon under the PACT Act, and government counsel represented at oral argument the U.S. would not pursue civil or criminal liability against Gordon for past conduct so long as he remained out of the market.
- The district court concluded these developments rendered the case moot and vacated the preliminary injunction; the D.C. Circuit affirmed for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness: whether the case remains justiciable | Gordon: injunction needed to remove risk of federal civil/criminal penalties and state civil suits for past PACT Act violations | Government: BATFE declaration and counsel representation eliminate any realistic enforcement threat; Gordon disclaimed intent to re-enter business | Case is moot; vacatur of preliminary injunction affirmed |
| Continuing risk of federal prosecution or civil penalties | Gordon: declaratory relief/permanent injunction required to prevent prosecution for past conduct | Government: representation not equivocal; will not pursue enforcement while Gordon stays out of market | Risk is remote and comparable to Clarke; cannot save case from mootness |
| Collateral consequences from state civil actions | Gordon: vacatur would expose him to state suits for unpaid taxes; permanent injunction would protect him | Government: no sales in D.C.; injunction elsewhere would be only persuasive; persuasive effect insufficient to avoid mootness | Potential state enforcement outside D.C. is speculative and insufficient to preserve case |
| Scope of precedential/persuasive effect from a permanent injunction | Gordon: making injunction permanent would increase persuasive weight in other jurisdictions | Government: affirmed but vacated preliminary injunction and opinions already provide persuasive value; incremental effect is minimal | Persuasive effect alone cannot prevent mootness; analogue to American Family Life supports dismissal |
Key Cases Cited
- Decker v. Northwest Environmental Defense Ctr., 133 S. Ct. 1326 (2013) (mootness standard: court cannot grant effectual relief)
- Clarke v. United States, 915 F.2d 699 (D.C. Cir. 1990) (government representations can moot prosecution risk and estop inconsistent enforcement)
- Farmland Indus. v. Grain Bd. of Iraq, 904 F.2d 732 (D.C. Cir. 1990) (judicial reliance on defendant representations may estop later contrary positions)
- American Family Life Assur. Co. v. FCC, 129 F.3d 625 (D.C. Cir. 1997) (agency order’s persuasive effect in state court insufficient to avoid mootness)
- Sibron v. New York, 392 U.S. 40 (1968) (mere possibility of collateral consequences preserves some criminal challenges)
- Spencer v. Kemna, 523 U.S. 1 (1998) (limits on extending collateral-consequences mootness doctrine)
- Justin v. Jacobs, 449 F.2d 1017 (D.C. Cir. 1971) (post-commitment collateral disabilities may preserve challenge when later jurisdictions automatically infer status)
- Gordon v. Holder, 85 F. Supp. 3d 78 (D.D.C. 2015) (district court vacating preliminary injunction as moot)
- Gordon v. Holder, 826 F. Supp. 2d 279 (D.D.C. 2011) (district court granting preliminary injunction)
- Gordon v. Holder, 632 F.3d 722 (D.C. Cir. 2011) (earlier appellate disposition on preliminary injunction)
- Gordon v. Holder, 721 F.3d 638 (D.C. Cir. 2013) (affirming preliminary injunction; noting potential future mootness developments)