Court Revives Seneca Suit Over Tobacco Sales

     (CN) – The D.C. Circuit ordered a federal judge to reconsider whether banning the sale of cigarettes through the mail and online violates the U.S. Constitution.




     The Prevent All Cigarette Trafficking (PACT) Act took effect last summer after being passed by Congress to combat illegal trafficking and cigarette sales to minors. The law prohibits the post office from delivering cigarettes sold on the Internet and forces Native American vendors to pay excise taxes to local and state governments.
     Robert Gordon, a member of the Seneca Nation of Indians who sells tobacco products online and by mail from upstate New York, claimed that the act cost him nearly all his business. Before the law was enacted, Gordon said Internet and phone sales accounted for 95 percent of his business.
     Gordon filed a suit in Washington, D.C., one day before the PACT Act was to go into effect, citing constitutional violations and infringement on tribal sovereignty.
     A federal judge denied Gordon’s motion for a restraining order and preliminary injunction, finding that the Seneca Nation member filed the motion at the 11th hour and that stopping congressional regulations went against public interest
     On appeal, a three-judge panel found Friday that the District Court had abused its discretion and revived Gordon’s suit and remanded the case for further proceedings.
     “First, the District Court erred by relying on the late hour of the filing,” Circuit Judge Janice Rogers Brown wrote for the court. “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.”
     Brown went on to say that even if the filing was untimely, it still would not have been a proper basis to deny the injunction.
     The appeals court also found that the District Court failed to meaningfully weigh certain factors involved in deciding whether to issue an injunction, and wrongly based its decision on a vague claim of acting in public 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,” the ruling states. “Consequently, we cannot be sure the District Court’s analysis of the public interest was complete.”
     The Seneca Free Trade Association estimated that more than 140 businesses like Gordon’s on the Seneca territory were going to be affected by the law, according to his lawsuit. And one-eighth of 8,000 enrolled Seneca Nation members will lose their jobs as a result.
     The Seneca Nation said the PACT Act legislation materialized after substantial lobbying efforts from Big Tobacco and the National Association of Convenience Stores.
     Those found to be in violation of the act are currently subject to civil fines or felony charges that carry three-year prison sentences.

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