holding that while a delay in filing cannot be the sole basis for denial of a preliminary injunction, delay can “support a conclusion that the plaintiff cannot satisfy the irreparable harm prong”
How later courts described this case
- holding that while a delay in filing cannot be the sole basis for denial of a preliminary injunction, delay can “support a conclusion that the plaintiff cannot satisfy the irreparable harm prong”
- applying the preliminary injunction standard to a district court decision denying a motion for TRO and preliminary 10 injunction
- applying preliminary injunction standard to a district court decision denying motion for TRO and preliminary injunction
- applying preliminary injunction standard to district court decision denying motion for TRO and preliminary injunction
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 16, 2010 Decided February 18, 2011
No. 10-5227
ROBERT GORDON,
APPELLANT
v.
ERIC H. HOLDER, JR., IN HIS OFFICIAL CAPACITY AS ATTORNEY
GENERAL OF THE UNITED STATES, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-01092)
Aaron M. Streett argued the cause for appellant. With him
on the briefs were R. Stan Mortenson, Sara E. Kropf, and
Richard P. Sobiecki.
Michael P. Abate, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Ronald C. Machen Jr., U.S. Attorney, and Mark B. Stern and
Alisa B. Klein, Attorneys. R. Craig Lawrence, Assistant U.S.
Attorney, entered an appearance.
Lawrence G. Wasden, Attorney General, Office of the
Attorney General for the State of Idaho, and Brett T. DeLange,
2
Deputy Attorney General, were on the brief for amicus curiae
State of Idaho.
John F. O'Connor and Scott A. Sinder were on the brief for
amici curiae National Association of Convenience Stores and
New York Association of Convenience Stores in support of
appellees.
Allison M. Zieve and Adina H. Rosenbaum were on the
brief for amici curiae American Cancer Society, et al. in
support of appellees.
Linda Singer was on the brief for amicus curiae City of
New York in support of appellees.
Before: ROGERS, BROWN and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge BROWN.
I
BROWN, Circuit Judge: 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),
3
(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 order 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.
4
Council, 129 S. Ct. 365, 374 (2008). In considering whether
the ―extraordinary remedy‖ of a preliminary injunction is
warranted, id. at 376, a district court must set forth its
consideration of the factors and its attendant conclusions of
law, Fed. R. Civ. P. 52(a); see also Mayo v. Lakeland
Highlands Canning Co., 309 U.S. 310, 316 (1940) (―It is of the
highest importance to a proper review of the action of a court in
granting or refusing a preliminary injunction that there should
be fair compliance with Rule 52(a) . . . .‖). If a district court
fails to explicate its analysis of the injunction factors, a
reviewing court will be unable to determine ―whether the
district court properly carried out‖ its charge to weigh the
factors with one another. Chaplaincy of Full Gospel Churches
v. England, 454 F.3d 290, 305 (D.C. Cir. 2006).
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., 571 F.3d 1288, 1291
(D.C. Cir. 2009). Applying this standard, we conclude the
district court abused its discretion.
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, 596 F.3d
861, 865 (D.C. Cir. 2010) (clarifying that pre-enforcement
challenges to the Commission’s legal position fall under the
rubric of the ripeness doctrine); Sabre, Inc. v. Dep’t of Transp.,
429 F.3d 1113, 1119–21 (D.C. Cir. 2005) (examining a
pre-enforcement challenge to an agency’s regulatory authority
5
under the ripeness doctrine), but we have yet to find a case
where they present tardiness concerns.
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, 593 F.3d 950, 965 (9th
Cir. 2010) (―Delay by itself is not a determinative factor in
whether the grant of interim relief is just and proper.‖
(alteration and internal quotation marks omitted)); Fund for
Animals v. Frizzell, 530 F.2d 982, 987 (D.C. Cir. 1975)
(reviewing the district court’s analysis of the four factors, and
finding the court’s ultimate conclusion ―bolstered‖ by the
plaintiff’s delay). Rather, they demonstrate only that untimely
filings may support a conclusion that the plaintiff cannot
satisfy the irreparable harm prong. See, e.g., McDermott, 593
F.3d at 965 (―The factor of delay is only significant if the harm
has occurred and the parties cannot be returned to the status
quo . . . .‖ (internal quotation marks omitted)); RoDa Drilling
Co. v. Siegal, 552 F.3d 1203, 1211 (10th Cir. 2009) (―[D]elay
is but one factor in the irreparable harm analysis.‖); Quince
Orchard Valley Citizens Ass’n, Inc. v. Hodel, 872 F.2d 75, 80
(4th Cir. 1989) (explaining that delay is relevant in considering
one’s entitlement to injunctive relief because delay indicates a
lack of irreparable harm). But because the district court did not
consider in the first instance whether Gordon would suffer
irreparable harm, any reliance on the timeliness of the filing
would have been improper even if the filing were untimely.
6
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. 454 F.3d at 305. Nonetheless, we explained that
―without any conclusions of law as to the . . . remaining
factors, [a reviewing court is] unable to determine whether the
district court properly [exercised its discretion].‖ Id. This is
precisely the situation presented by this case. Even were we to
conduct a de novo review of the legal findings, we are unable to
proceed because we do not have before us the district court’s
weighing of the injunctive factors—in fact, we do not have
before us any indication the district court attempted to perform
its discretionary function. Therefore, we must remand to allow
the district court the opportunity to weigh the factors in
determining whether a preliminary injunction is warranted.
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, 129 S. Ct. at 378 (―Despite the importance of assessing
the balance of equities and the public interest in determining
whether to grant a preliminary injunction, the District Court
addressed these considerations in only a cursory fashion.‖); see
also Kickapoo Tribe of Indians of the Kickapoo Reservation in
Kan. v. Babbitt, 43 F.3d 1491, 1497 (D.C. Cir. 1995)
(explaining that in reviewing for abuse of discretion, the
appellate court should ―consider whether the decision maker
7
failed to consider a relevant factor‖ (internal quotation marks
omitted)).
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, 504 U.S. 298, 305 (1992)
(―[W]hile Congress has plenary power to regulate commerce
among the States and thus may authorize state actions that
burden interstate commerce, it does not similarly have the
power to authorize violations of the Due Process Clause.‖
(citation omitted)) .
Even national legislation—which can permissibly
sanction burdens on interstate commerce—cannot violate the
Due Process principles of ―fair play and substantial justice.‖
Quill, 504 U.S. at 307 (quoting Int’l Shoe Co. v. Washington,
326 U.S. 310, 316 (1945)). Although Quill did not deal with
excise taxes, there remains an open question whether a national
authorization of disparate state levies on e-commerce renders
concerns about presence and burden obsolete; Quill’s
analytical approach is instructive.
Second, there is a potential standing issue with respect to
Gordon’s Tenth Amendment claim. Lomont v. O’Neill, 285
F.3d 9, 13 n.3 (D.C. Cir. 2002). Because standing is a
prerequisite to jurisdiction, Fla. Audubon Soc’y v. Bentsen, 94
8
F.3d 658, 661 (D.C. Cir. 1996), the district court will need to
resolve the question.
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., 293 F.3d 506, 512 (D.C. Cir.
2002).
Because we are remanding for appropriate consideration
of the factors, we deem it prudent not to address these issues in
the abstract.
III
The case is remanded for further proceedings consistent
with this opinion.
So ordered.