A federal appeals court in Washington today revived a businessman's suit challenging regulations that restrict the online sale of tobacco products.
The plaintiff, Robert Gordon, a member of the Seneca tribe in upstate New York who sold tobacco across the country via an Internet site, filed suit last year in Washington’s federal trial court against the enforcement of the “Preventing All Cigarette Trafficking Act.” More background on the case here.
Gordon’s suit, seeking an injunction, was filed a day before the new law was set to take effect. U.S. District Judge Henry Kennedy Jr. in Washington dismissed the suit, noting, among other things, the “lateness of the hour” in which Gordon was seeking relief from the courts. Kennedy said in his ruling that it wasn’t in the public’s interest to stop the legislation in its tracks.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit today vacated the dismissal of the suit and sent it back to the trial court for further proceedings.
Judge Janice Rogers Brown, writing for the appeals court panel, said Kennedy should not have relied on the timing of Gordon’s suit in dismissing it. “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,” said Brown, who heard the case with Judges Judith Rogers and Thomas Griffith.
The appeals court said that even if the suit were untimely, a delay in filing it is not a proper basis on which to reject a preliminary injunction request. The D.C. Circuit also said Kennedy addressed the public interest in a “conclusory fashion,” leaving the appeals court to wonder whether the analysis was complete.
“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,” Brown wrote.
A lawyer for Gordon, Aaron Streett, an associate with Baker Botts in Houston, was not immediately reached for comment this afternoon. Streett argued for Gordon in the D.C. Circuit. Baker senior counsel R. Stan Mortenson in Washington also was not immediately reached for comment on the ruling.
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