I
On March 31, 2010, the President signed into law the Prevent All Cigarette Trafficking Act (“PACT Act”), Pub.L. No. 111— 154, 124 Stat. 1087 (2010). The Act, which significantly amended its predecessor, the Jenkins Act, was aimed primarily at combating three evils: tobacco sales to minors, cigarette trafficking, and circumvention of state taxation requirements. Pub.L. No. 111-154, § 1(b), reprinted in 15 U.S.C. § 375 note (findings 1-10). The means Congress selected to achieve these ends are the subject of the litigation in this case. Congress reasoned that by requiring delivery sellers to ensure all applicable taxes are pre-paid, it could prevent purchasers from skirting state taxation through online purchases. 15 U.S.C. § 376a(a)(3)(D), (d)(1). And to prevent both sales to minors and cigarette trafficking, Congress decided to ban all shipments of cigarettes via the U.S. mails. 18 U.S.C. § 1716E(a).
Plaintiff-Appellant Robert Gordon is a Seneca Indian and a delivery seller of tobacco products. As a delivery seller, Gordon distributes his products by mail, rather than through a brick-and-mortar retail store. See 15 U.S.C. § 375(5)-(6). Prior to the PACT Act, ninety-five percent of Gordon’s business came from the sale of tobacco by internet and phone. But since the Act’s passage, Gordon claims he has lost almost all of his business due to the remedial measures Congress enacted.
On June 28, 2010 — the day before the PACT Act was to go into effect — Gordon filed suit in the district court challenging the Act’s constitutionality under both the Due Process and Equal Protection Clauses. In conjunction with his complaint, Gordon sought a temporary restraining or *724 der and a preliminary injunction. The district court denied Gordon’s motion, basing its decision on the “lateness of the hour in which plaintiff [sought] this relief,” and the court’s conclusion that it was not in the public’s interest to “stop in its tracks a legislative enactment of ... Congress.” Dist. Ct. Docket No. 6, at 1, 2. Gordon appeals, arguing that unless this court enjoins enforcement of the mailing ban and the taxation provision, his business will suffer irreparable harm.
II
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”
Winter v. Natural Res. Def. Council,
In examining the district court’s decision, our review of the district court’s denial of a preliminary injunction is for abuse of discretion, but our review of legal issues is
de novo. Davis v. Pension Benefit Guaranty Corp.,
First, the district court erred by relying on the late hour of the filing. At the time of Gordon’s filing, the statute had yet to go into effect. A motion seeking to enjoin a statute’s enforcement before the statute may legally be enforced is timely— or at least not late — by definition. Of course, in some cases, pre-enforcement challenges may present ripeness concerns,
see, e.g., Unity08 v. Fed. Election Comm’n,
Moreover, even if the filing was untimely (which it was not), a delay in filing is not a proper basis for denial of a preliminary injunction. Although federal courts have at times bolstered their denials of preliminary injunctions by referring to the late hour of a filing, those cases in no way stand for the proposition that a late filing, on its own, is a permissible basis for denying a preliminary injunction.
See, e.g., McDermott ex rel. NLRB v. Ampersand Pub., LLC,
Second, the district court erred by failing to consider meaningfully the preliminary injunction factors. Our decision in
Chaplaincy of Full Gospel Churches v. England
explained that because an appellate court reviews
de novo
the legal findings underlying an injunction determination, the absence of legal findings does not necessarily preclude appellate review.
Third, the district court erred by addressing in conclusory fashion the fourth factor — the public’s interest. By summarily citing to the public’s interest without elaboration, the district court abdicated its responsibility to fully analyze the one factor on which it did rely. Consequently, we cannot be sure the district court’s analysis of the public interest was complete.
See Winter,
Consequently, we must remand the case so the district court can address each of the factors. We make three further observations. First, the district court will need to separate its analysis of Gordon’s likelihood of success on each of his constitutional claims. The government’s suggestion that there can be no Due Process violation when Congress authorizes state levies based on minimum contacts collapses the Due Process and Commerce Clause aspects of Gordon’s claims. As the Supreme Court has explained, the inquiries are analytically distinct and should not be treated as if they were synonymous.
Quill Corp. v. North Dakota,
Even national legislation — which can permissibly sanction burdens on interstate commerce — cannot violate the Due Process principles of “fair play and substantial justice.”
Quill,
Second, there is a potential standing issue with respect to Gordon’s Tenth Amendment claim.
Lomont v. O’Neill,
Third, to the extent Gordon’s Due Process argument turns on his minimum contacts with the states, the rules governing minimum contacts may need to be addressed.
See Gorman v. Ameritrade Holding Corp.,
Because we are remanding for appropriate consideration of the factors, we deem it prudent not to address these issues in the abstract.
Ill
The case is remanded for further proceedings consistent with this opinion.
So ordered.