The City of New York v. United States Postal Service et al

Filing 38

MEMORANDUM DECISION AND ORDER dated 2/15/21 that defendant's motion to dismiss 20 is granted in part and denied in part. Both the claim for a declaratory judgment that contraband cigarettes are contraband per se and the claim for a writ of mandamus are dismissed. ( Ordered by Judge Brian M. Cogan on 2/15/2021 ) (Guzzi, Roseann)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------- X
:
:
CITY OF NEW YORK, STATE OF
CALIFORNIA, STATE OF ILLINOIS, STATE :
: MEMORANDUM
OF CONNECTICUT, and
COMMONWEALTH OF PENNSYLVANIA, : DECISION AND ORDER
:
: 19-cv-5934 (BMC)
Plaintiffs,
:
:
-against:
UNITED STATES POSTAL SERVICE and
:
:
LOUIS DeJOY, in his official capacity as
:
Postmaster General,
:
:
Defendants.
----------------------------------------------------------- X
COGAN, District Judge.
The Prevent All Cigarette Trafficking Act of 2009, known as the “PACT Act,” seeks to
prevent cigarette traffickers from evading state and federal law by shipping cigarettes through
the mail. It thus provides that the United States Postal Service “shall not accept for delivery or
transmit through the mails any package that it knows or has reasonable cause to believe contains
any cigarettes.” 18 U.S.C. § 1716E(a)(1). Four states and the City of New York (“plaintiffs”)
allege that the Postal Service has not fulfilled that obligation. They have sued the Postal Service
and the Postmaster General (collectively, “defendant”),1 seeking (1) damages and injunctive
relief for violations of the PACT Act, (2) a declaratory judgment that defendant has violated the
Act and that “contraband cigarettes” are “contraband per se” under civil forfeiture statutes, and

1

Having succeeded Megan Brennan as Postmaster General, Louis DeJoy should be substituted under Federal Rule
of Civil Procedure 25(d). The Clerk is directed to amend the docket sheet accordingly.

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(3) a writ of mandamus compelling defendant to comply with the Act. Defendant has moved to
dismiss.
I conclude that plaintiffs have stated a claim under the PACT Act and can seek a
declaratory judgment that defendant has violated the Act. Yet plaintiffs cannot seek a
declaratory judgment that contraband cigarettes are contraband per se. This claim not only lacks
an actual case or controversy; plaintiffs also lack standing to bring it. Finally, I lack jurisdiction
over the mandamus claim because the PACT Act provides an adequate remedy. The motion to
dismiss is granted in part and denied in part.
BACKGROUND
I.

The PACT Act
It seems a truism that wherever there are taxes, there will be tax evaders, and the higher

the tax, the greater the opportunities for evasion. This case reflects an effort by certain high-tax
jurisdictions to prevent low-tax jurisdictions, and less indirectly to prevent third parties who
purchase from these low-tax jurisdictions, from using the Postal Service to profit from the spread
between the higher and lower taxes.
Congress passed the PACT Act to address the “increasing problem” of tobacco
smuggling in the United States. H.R. Rep. No. 111-117, at 18 (2010). With existing laws
inadequate in “the Internet age,” smugglers could circumvent state and federal laws by selling
over the internet and through the mail. Id. Smugglers would purchase cigarettes in a low-tax
state (say, Virginia) and resell them in a high-tax state (here, New York), pocketing the
difference. See, e.g., United States v. Hasan, 718 F.3d 338, 340 (4th Cir. 2013). The practice
spawned “three evils: tobacco sales to minors, illicit cigarette trafficking, and circumvention of
state taxation requirements.” Gordon v. Holder, 721 F.3d 638, 642 (D.C. Cir. 2013) (alteration
adopted) (quotation omitted). To address these problems, Congress imposed new restrictions on
2

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“delivery sales” – i.e., sales that do not involve face-to-face transactions. Pub. L. No. 111-154,
§ 2(a), 124 Stat. 1087, 1088–89 (2010). These sales must now comply with excise taxes,
licensing and tax-stamping requirements, restrictions on sales to minors, and other legal
requirements “as if the delivery sales occurred entirely within the specific state and place” where
the cigarettes are delivered. Id. § 2(b), 124 Stat. at 1091; see also New York v. United Parcel
Serv., Inc., 942 F.3d 554, 565–66 (2d Cir. 2019) (detailing the specific requirements).
The PACT Act also imposed new restrictions on the Postal Service. Now codified in
18 U.S.C. § 1716E, these provisions, subject to exceptions not applicable here, see § 1716E(b),
banned the Postal Service from shipping cigarettes:
All cigarettes and smokeless tobacco (as those terms are defined in section 1 of
the Act of October 19, 1949, commonly referred to as the Jenkins Act) are
nonmailable and shall not be deposited in or carried through the mails. The
United States Postal Service shall not accept for delivery or transmit through the
mails any package that it knows or has reasonable cause to believe contains any
cigarettes or smokeless tobacco made nonmailable by this paragraph.
§ 1716E(a)(1). The Act defines “reasonable cause” as “a statement on a publicly available
website, or an advertisement, by any person that the person will mail matter which is
nonmailable under this section in return for payment” or “the fact that the person is on the list
created under section 2A(e) of the Jenkins Act.” § 1716E(a)(2). Plaintiffs call this list the “NonCompliant List,” for it contains the names of “unregistered or noncompliant delivery sellers.” 15
U.S.C. § 376a(e)(1)(a). The Attorney General compiles the list and distributes it to the Postal
Service. Id.
II.

The Alleged Violations
Generally speaking, plaintiffs allege two distinct violations of the PACT Act. First, they

claim that defendant regularly “accept[s] for delivery” and “transmit[s] through the mails”
packages that it knows or has reasonable cause to believe contain cigarettes. Soon after the Act’s
3

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passage, plaintiffs explain, most domestic cigarette sellers ceased delivering cigarettes through
the mail. Yet international sellers continued undeterred. The International Mail Facility at John
F. Kennedy International Airport became a focal point. There, the Postal Service regularly
received shipments from sellers on the Non-Compliant List. The Postal Service received notice
of these shipments after investigations by cigarette manufacturers, state and local governments,
and federal agencies. But the Deputy Postmaster General told field personnel not to
“[i]nvestigate or seek information about the [the Non-Compliant List]” or “[i]nvestigate a
customer’s advertising” to “determin[e] whether the customer is mailing cigarettes.” These tasks
would “be reserved for specially designated personnel.” The Postal Service never designated
any such personnel, plaintiffs allege. Instead, it did “little or nothing when confronted with large
shipments of cigarettes found within the mails.” Plaintiffs allege that the Postal Service
continues to deliver these shipments throughout the country.
For the second violation, plaintiffs point to the “Return to Sender Program.” The Postal
Service’s Inspector General detailed this program in a special report. 2 It describes the Postal
Service’s view that unspecified “laws, regulations, and policies” regarding “prohibited
international mailings” are “ambiguous and open to interpretation – particularly those related to
how these items should be handled.” Instead of seizing these items, the Postal Service returns
them to their country of origin, as this is the “the most cost[-]effective method of disposal.”
The report is somewhat candid about the costs. It states that the program “may not
sufficiently deter mailers from trying to send prohibited items into the U.S.,” which may
“increase the risk that the items will re-enter the mailstream without detection.” That effect

2

Prohibited Inbound International Mailings, Rpt. No. MS-AR-17-008, USPS OFFICE OF THE INSPECTOR GEN.
(July 18, 2017), available at https://www.uspsoig.gov/sites/default/files/document-library-files/2017/MS-AR-17008.pdf.
4

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could “negatively impact the Postal Service’s brand and image.” Plaintiffs agree with these last
few points. They brand the Return to Sender Program as “[i]llegal and [i]neffective,” arguing
that the PACT Act requires the Postal Service to seize and destroy cigarettes.
Plaintiffs contend that these ongoing violations have hampered their efforts to collect
taxes and safeguard public health. They represent several high-tax jurisdictions, and they allege
that the Postal Service has diverted millions of dollars in tax revenue per year to low-tax
jurisdictions. Plaintiffs bring claims for (1) damages and injunctive relief under the PACT Act,
(2) a declaratory judgment that defendant has violated the Act and that so-called “contraband
cigarettes” are “contraband per se” under civil forfeiture statutes, and (3) a writ of mandamus
compelling defendant to comply with the PACT Act and to end the Return to Sender Program.
Defendant wants the complaint dismissed in its entirety. It first contends that the PACT
Act does not provide a cause of action against the Postal Service. Even if plaintiffs have a cause
of action, defendant continues, plaintiffs have not adequately alleged a violation. Next,
defendant argues that plaintiffs lack standing to seek a declaratory judgment that contraband
cigarettes are contraband per se. Last, defendant maintains that plaintiffs have not satisfied the
requirements for the mandamus claim.
DISCUSSION
I.

The PACT Act Claim
A.

The Cause of Action

The Postal Service is an “independent establishment of the executive branch” that enjoys
federal sovereign immunity. Dolan v. USPS, 546 U.S. 481, 483 (2006) (quoting 39 U.S.C.
§ 201). But the immunity is not absolute. FDIC v. Meyer, 510 U.S. 471 (1994), and USPS v.
Flamingo Industries (USA) Ltd., 540 U.S. 736 (2004), outline a two-step framework for
determining when a plaintiff can sue the Postal Service. The first step asks whether the
5

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Government has waived sovereign immunity. Flamingo Indus., 540 U.S. at 743. The parties
seem to agree that it has, and it appears to have done so in almost any case against the Postal
Service. In Flamingo Industries, the Supreme Court held that the Postal Reorganization Act
of 1970 “waives the immunity of the Postal Service from suit by giving it the power ‘to sue and
be sued in its official name.’” 540 U.S. at 741 (quoting 39 U.S.C. § 401). 3
The real dispute is at the second step, which asks whether the “substantive prohibitions”
of the act in question apply to an “independent establishment of the [e]xecutive [b]ranch.” Id.
at 743; see also Meyer, 510 U.S. at 484. “An absence of immunity does not result in liability if
the substantive law in question is not intended to reach the federal entity.” Flamingo Indus., 540
U.S. at 743 (holding that the Sherman Act did not apply to the Postal Service). Therefore, I must
look to the PACT Act’s text, and if not clear, its structure, to determine whether “the substantive
. . . liability defined by the statute” extends to the Postal Service. Id.
The text strongly suggests that it does. Start with § 1716E(a)(1). It bars the Postal
Service from “accept[ing] for delivery or transmit[ting] through the mails any package that it
knows or has reasonable cause to believe contains any cigarettes.” Then, in § 1716E(h)(1), the
Act provides a cause of action “with respect to a violation of this section”:
A State, through its attorney general, or a local government or Indian tribe that
levies an excise tax on tobacco products, through its chief law enforcement
officer, may in a civil action in a United States district court obtain appropriate
relief with respect to a violation of this section. Appropriate relief includes
injunctive and equitable relief and damages equal to the amount of unpaid taxes

3

As the Supreme Court explained in Thacker v. Tennessee Valley Authority, 139 S. Ct. 1435 (2019), a sue-and-besued clause may contain an implied exception. See id. at 1441 (discussing Fed. Hous. Admin. v. Burr, 309 U.S.
242, 245 (1940)). Defendant does not mention any implied exception in its motion to dismiss. In reply, it seems to
make that concession explicit, stating, “[T]he question is not sovereign immunity.” Just two pages later, however,
defendant suggests that it has “retained” immunity under the implied exception for “avoid[ing] grave interference
with the performance of a governmental function.” Id. (quoting Burr, 309 U.S. at 245). I reject this untimely
argument as inconsistent with Thacker and Flamingo Industries. Both cases held that sue-and-be-sued clauses did
not contain an implied exception, and defendant has not pointed to any cases suggesting that one exists here.
6

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on tobacco products mailed in violation of this section to addressees in that State,
locality, or tribal land.
It does not take much to read these sections together. If the Postal Service can violate the Act,
and plaintiffs have a cause of action “with respect to a violation,” then plaintiffs can sue the
Postal Service.
The statutory structure reinforces that conclusion. Crucially, the PACT Act provides not
just one, but two, causes of action. The second appears in 15 U.S.C. § 378(c)(1)(A):
A State, through its attorney general, or a local government or Indian tribe that
levies a tax subject to section 376a(a)(3) of this title, through its chief law
enforcement officer, may bring an action in a United States district court to
prevent and restrain violations of this chapter by any person or to obtain any other
appropriate relief from any person for violations of this chapter, including civil
penalties, money damages, and injunctive or other equitable relief.
In short, § 378(c)(1)(A) provides a cause of action for “violations of this chapter by any person,”
while § 1716E(h)(1) provides a cause of action “with respect to a violation of this section.”
The different language has different effect. The key difference is that § 1716E(h)(1) does
not state who must violate the statute to be subject to suit. It applies only “with respect to a
violation.” When a statute specifies an act, but not the actor, courts have inferred an
“agnosticism” as to the actor’s identity – all that matters is whether the act occurred. Dean v.
United States, 556 U.S. 568, 572 (2009) (quoting Watson v. United States, 552 U.S. 74, 81
(2007)). Section 1716E(h)(1) shares that same agnosticism. It cares only that a violation
occurred, not who committed that violation.
In contrast, § 378(c)(1)(A) does specify who must commit the violation to be subject to
suit: a “person.” That term typically “does not include the sovereign, and statutes employing the
word are ordinarily construed to exclude it.” Int’l Primate Prot. League v. Adm’rs of Tulane
Educ. Fund, 500 U.S. 72, 82–83 (1991) (alterations adopted) (quoting Will v. Mich. Dept. of
State Police, 491 U.S. 58, 64 (1989)). The Postal Service therefore is not a “person” under
7

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various statutes. See Flamingo Indus., 540 U.S. at 745 (Sherman Act); Thompson v. United
States, 795 F. App’x 15, 19 (2d Cir. 2019) (summary order) (Visual Artists Rights Act). So by
using the term “person” in § 378(c)(1)(A), Congress likely did not intend its cause of action to
reach the Postal Service. It follows that by omitting the term in § 1716E(h)(1), Congress likely
intended the opposite result.
Indeed, if § 1716E(h)(1) did not reach the Postal Service, it would reach the same range
of defendants as § 378(c)(1)(A). That reading would all but erase the word “person,” violating
the “so-called surplusage canon – the presumption that each word Congress uses is there for a
reason.” Advoc. Health Care Network v. Stapleton, 137 S. Ct. 1652, 1659 (2017); see also
United Parcel Serv., 942 F.3d at 582 (applying that canon to a different section of the PACT
Act).
All that seems simple enough, yet defendant strenuously resists this interpretation. Quite
tellingly, it avoids the statutory language above. It instead would have me look anywhere else.
It first stresses what the statute does not contain – a passage naming the Postal Service as a
potential defendant. But § 1716E(h)(1) does not explicitly identify any potential defendants. If
the cause of action reaches only those who it expressly names, it would reach no one, a plainly
absurd result. See, e.g., New York v. Mountain Tobacco Co., 942 F.3d 536, 547 (2d Cir. 2019)
(applying that general principle to a different section of the PACT Act).
Defendant nonetheless insists that plaintiffs are seeking an “implied” cause of action.
There is nothing to imply, however – the Act provides an express cause of action. See generally
Alexander v. Sandoval, 532 U.S. 275, 286–87 (2001). The only question is whether that cause of
action reaches the Postal Service. The proper framework for answering that question comes
from Meyer and Flamingo Industries, two cases defendant largely ignores.

8

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In truth, defendant wants an implied exception. It reads the statute as saying, “A State,
. . . or a local government . . . may in a civil action in a United States district court obtain
appropriate relief with respect to a violation of this section, except against the Postal Service.”
That reading runs afoul of the general rule that a court “may not narrow a provision’s reach by
inserting words Congress chose to omit.” Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1725
(2020). There is no “such thing as a ‘canon of donut holes,’ in which Congress’s failure to speak
directly to a specific case that falls within a more general statutory rule creates a tacit exception.
Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the
broad rule.” Bostock v. Clayton Cty., 140 S. Ct. 1731, 1747 (2020). Here, Congress provided a
broad rule “with respect to a violation.” There is no textual basis for an exception.
At this point, defendant offers only diversions. The first is § 1716E(g). That subsection
requires the Postmaster General to “cooperate and coordinate efforts to enforce this section with
related enforcement activities of any other Federal agency or agency of any State, local, or tribal
government, whenever appropriate.” If the PACT Act requires cooperation with state and local
governments, defendant argues, it could not possibly allow those governments to sue the Postal
Service. But this section merely requires the Postal Service to cooperate with local governments,
not the other way around. It says nothing about what plaintiffs can and cannot do by way of
litigation.
Defendant’s next argument abandons this section altogether. Defendant suggests that a
statute in Title 18 could not contain a cause of action against the Postal Service, because that title
addresses “Crimes and Criminal Procedure.” But Congress made clear that “all provisions of
[T]itle 18 dealing with the Postal Service” apply to the Postal Service. 39 U.S.C. § 410(b)(2)
(emphasis added). And Title 18 contains several causes of action, some of which expressly

9

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exclude the United States. See, e.g., 18 U.S.C. § 2520(a). If Congress had intended this cause of
action to have a similar exception, it knew how to do so and could have done so expressly. See
Touche Ross & Co. v. Redington, 442 U.S. 560, 572 (1979).
Finally, defendant makes a halfhearted gesture toward legislative history. Quoting a
House committee report, it asserts that § 1716E(h)(1) only makes a “delivery seller who violates
[the mailing] prohibition . . . subject . . . to any unpaid taxes.” H.R. Rep. No. 111-117, at 26
(2010) (alteration and omissions in defendant’s filing). Putting aside the hazard of relying on
legislative history when the text and context of a statute are clear, see Lamie v. U.S. Tr., 540
U.S. 526, 539 (2004), the entire quote tells a different story:
Sec. 3. Treatment of Cigarettes and Smokeless Tobacco as Nonmailable Matter.
Section 3 of the bill amends 18 U.S.C. [§] 1716 to add cigarettes and smokeless
tobacco to the list of materials, including alcohol, poisons, weapons, and other
materials, that are non-mailable matter. This would make it illegal for delivery
sellers to deposit tobacco products in the U.S. mails, and it would prohibit the
U.S. Postal Service from accepting for delivery, or delivering, packages its
employees know or have reason to believe contain cigarettes or smokeless
tobacco. A delivery seller who violates this prohibition is subject to a fine of as
much as ten times the retail value of the cigarettes or smokeless tobacco in
question, in addition to any unpaid taxes, as well as imprisonment of up to 1 year.
There is an exception for mailing cigarettes for purposes of consumer testing.
Id.
As the full quote shows, defendant makes too much of too little. True, the committee
report does not explicitly mention a cause of action against the Postal Service, but it does not
mention several other forms of relief that the text of the statute makes available. For instance,
the report says nothing about injunctive relief against a delivery seller, but no one could dispute
that the Act allows that relief. So too here. The committee report cannot narrow the text of the
statute. See Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 621 (1991) (Scalia, J., concurring in
the judgment) (“[W]e are a Government of laws, not of committee reports.”).

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In fact, relief against the Postal Service is consistent with the legislative history. As other
courts have observed, the legislative record “shows that in light of the commitments made by
UPS, Federal Express and DHL prior to the PACT Act’s enactment, the statute was aimed
primarily at eliminating deliveries of illegal, untaxed cigarettes by the U.S. Postal Service.” New
York v. United Parcel Serv., Inc., 131 F. Supp. 3d 132, 142 (S.D.N.Y. 2015) (quoting 156 Cong.
Rec. H1526-01, 2010 WL 956208, at *27 (March 17, 2010) (statement of Rep. Weiner, House
sponsor of the PACT Act) (“There’s only one common carrier that today still delivers tobacco
through the mail – the United States Postal Service.”)).
In the end, defendant is left with the vague, unsupported contention that Congress could
not possibly have foreseen that plaintiffs could sue the Postal Service. The text of the statute
compels the rejection of this argument. And even if defendant were correct, “it is ultimately the
provisions of our laws rather than the principal concerns of our legislators by which we are
governed.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998). Therefore,
§ 1716E(h)(1) provides a cause of action against the Postal Service.
B.

The Alleged Violation

Defendant also argues that plaintiffs have not adequately alleged a PACT Act violation.
To recall, there are two separate allegations: (1) that defendant delivers large international
shipments of cigarettes across the United States and (2) that defendant follows the Return to
Sender Program instead of seizing and destroying cigarette shipments.
Defendant largely ignores the first theory, opting to emphasize its successes. In
defendant’s telling, the Postal Service “has undertaken significant measures to enforce the PACT
Act,” intercepting “thousands of cigarette packages” per year. With such “significant and
successful enforcement efforts,” the argument goes, plaintiffs cannot plausibly allege a violation.

11

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But beneath these empty phrases is simply an issue of fact. The complaint contains
numerous, detailed allegations as to how the Postal Service accepts for delivery and transmits
through the mails packages that it knows or has reasonable cause to believe contain nonmailable
cigarettes. I must accept those well-pleaded factual allegations as true. See, e.g., United Parcel
Serv., 131 F. Supp. 3d at 136–37. The first theory adequately alleges a violation of
§ 1716E(a)(1).
The harder question is whether the Return to Sender Program also violates § 1716E.
Both sides point to paragraph (c), which provides:
Any cigarettes or smokeless tobacco made nonmailable by this subsection that are
deposited in the mails shall be subject to seizure and forfeiture, pursuant to the
procedures set forth in chapter 46 of this title. Any tobacco products seized and
forfeited under this subsection shall be destroyed or retained by the Federal
Government for the detection or prosecution of crimes or related investigations
and then destroyed.
18 U.S.C. § 1716E(c). The contested question is whether this language is mandatory. Plaintiffs
contend that it requires the Postal Service to seize cigarettes. Defendant insists that the duty is
merely discretionary.
Contrary to the parties’ contentions, the text does not speak for itself. It melds the
mandatory-sounding “shall” with the more permissive-sounding “subject to.” Similar language
in other statutes has led courts to conflicting conclusions. 4 Even putting aside those conflicts,
the cases are of limited value, for phrases do not inevitably share a meaning across statutes. See,
e.g., A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 172–73 (2012). I

4

Compare Leslie Salt Co. v. United States, 55 F.3d 1388, 1397 (9th Cir. 1995) (“shall be subject to a civil penalty”
is mandatory) and Beardsly v. Chicago & Nw. Transp. Co., 850 F.2d 1255, 1264 (8th Cir. 1988) (“shall be subject to
resolution in accordance with the following procedures” is mandatory) with Leslie Salt, 55 F.3d at 1398 (9th Cir.
1995) (O’Scannlain, J., dissenting) (collecting district court cases concluding that “shall be subject to a civil
penalty” is discretionary), United States v. Currency Totaling $48,318.08, 609 F.2d 210, 213 (5th Cir. 1980)
(“subject to seizure” is permissive), and D.C. v. Miss Dallas Trucking, LLC, 240 A.3d 355, 361 (D.C. 2020) (“shall
be subject to a civil penalty” is permissive).
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must therefore look to the remainder of the PACT Act. See United States v. Brummer, 598 F.3d
1248, 1250 (11th Cir. 2010) (looking to other sections of a statute to determine whether “shall be
subject to seizure and forfeiture” was mandatory). After all, I “must (as usual) interpret the
relevant words not in a vacuum, but with reference to the statutory context, structure, history,
and purpose.” Abramski v. United States, 573 U.S. 169, 179 (2014) (quotation omitted).
These sources stop short of suggesting that the Postal Service must seize and destroy
cigarette shipments. Critically, § 1716E(c) does not specify who must conduct the seizure. It
instead provides that cigarettes are “subject to seizure and forfeiture” and that “[a]ny tobacco
products seized and forfeited . . . shall be destroyed or retained by the Federal Government for
the detection or prosecution of crimes or related investigations and then destroyed.” 18 U.S.C.
§ 1716E(c). This phrasing suggests that another arm of the federal government could conduct
the seizure. Thus, when the Postal Service knows or has “reasonable cause” to believe that a
package contains cigarettes, the PACT Act gives the Postal Service two options: it may (A) seize
the cigarettes itself or (B) take another action consistent with the Act.
Yet I cannot accept defendant’s contention that the Return to Sender Program is
consistent with the Act. Once again, the key section is § 1716E(a)(1). It bars the Postal Service
from “accept[ing] for delivery or transmit[ting] through the mails any package that it knows or
has reasonable cause to believe contains any cigarettes.” To “transmit” means “[t]o send or
transfer (a thing) from one person or place to another.” Transmit, Black’s Law Dictionary (11th
ed. 2019). By sending these packages back to cigarette sellers, the Postal Service is
“transmitting” cigarettes through the mails.
Defendant goes to great lengths to avoid this commonsense conclusion. Defendant first
claims that “returning” a package does not amount to “accepting” that package for delivery.

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That tells only half the story. The Postal Service may not “accept for delivery or transmit
through the mails” packages with cigarettes. 18 U.S.C. § 1716E(a)(1) (emphasis added).
Defendant cannot explain how it could return a package without transmitting it. 5
Next, defendant casts the Postal Service as a “law enforcement” agency, cloaked with
“law enforcement discretion.” It notes that “an agency’s decision not to undertake certain
enforcement actions” is presumptively unreviewable under the Administrative Procedure Act
(“APA”). See Heckler v. Chaney, 470 U.S. 821, 831 (1985). It also invokes the more general
notion that courts are “ill-equipped” to review these non-enforcement decisions. See Leland v.
Moran, 80 F. App’x 133, 135 (2d Cir. 2003) (summary order) (collecting cases); see also Sewald
v. Pyatt & Silvestri, Chtd., 161 F. Supp. 2d 1074, 1077 (N.D. Cal. 2001) (holding that the Postal
Service had discretion to investigate certain matters).
Defendant’s problem is that the Postal Service does not “enforce” § 1716E(a)(1) – it
complies with it. The section commands that the Postal Service “shall not” transmit cigarettes
through the mails, using “shall” in “the mandatory sense that drafters typically intend and that
courts typically uphold.” Shall, Black’s Law Dictionary (11th ed 2019). “[U]se of a mandatory
‘shall’ . . . impose[s] discretionless obligations.” Lopez v. Davis, 531 U.S. 230, 241 (2001).
Here, that lack of discretion reflects Congress’s view that the Postal Service was not the means
of fixing the problem, but part of it. See United Parcel Serv., 131 F. Supp. 3d at 142. Thus, the
Postal Service cannot claim to “enforce” § 1716E(a)(1) by not mailing cigarettes. It no more
enforces this section than a driver enforces the speed limit.

5

Defendant has not argued that transmitting packages internationally does not amount to transmitting packages
“through the mails.” Cf. 18 U.S.C. § 1692 (“Every foreign mail, while being transported across the territory of the
United States under authority of law, is mail of the United States, and any depredation thereon, or offense in respect
thereto, shall be punishable as though it were United States mail.”).
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The allusion to administrative law is yet another diversion. This case does not arise
under the APA, but the PACT Act, a very different statute. The APA provides a cause of action
for those “adversely affected or aggrieved by agency action,’ 5 U.S.C. § 702, but the APA
withdraws it for actions “committed to agency discretion by law,” § 701(a)(2). The PACT Act
has no such limitation. Its cause of action applies “with respect to a violation.” 18 U.S.C.
§ 1716E(h)(1). Thus, the only question is whether the Return to Sender Program constitutes a
violation. For all the reasons above, it does. 6
Therefore, plaintiffs have adequately alleged two violations of the PACT Act. Because
the Act provides a cause of action to redress those violations, plaintiffs have stated a claim.
II.

The Declaratory Judgment Claims
A.

Contraband Cigarettes and Contraband Per Se

The Declaratory Judgment Act provides that “[i]n a case of actual controversy within its
jurisdiction . . . any court of the United States . . . may declare the rights and other legal relations
of any interested party seeking such declaration, whether or not further relief is or could be
sought.” 28 U.S.C. § 2201. Plaintiffs seek two such declarations. First, they seek a declaratory
judgment that defendant has violated the PACT Act. Plaintiffs can seek that relief for the
reasons set forth above. Second, plaintiffs seek a declaratory judgment that “contraband
cigarettes” are “contraband per se.” This claim cannot go forward.

6

Although defendant claims that the administrative law cases “resonate” in those addressing the PACT Act, the
cases it cites do not stand for this proposition. One does not even involve PACT Act claims. See City of New York
v. Fedex Ground Package Sys., Inc., 314 F.R.D. 348, 353 n.2 (S.D.N.Y. 2016). Although Fedex did discuss
“executive discretion” more generally, id. at 356, the actual holding addressed whether a private party could assert
certain defenses in a state enforcement action, not whether the Postal Service could assert those same defenses to
defeat a cause of action, see id. at 357-60. The other case defendant cites involves that same irrelevant issue. See
New York v. United Parcel Serv., Inc., 160 F. Supp. 3d 629, 644 (S.D.N.Y. 2016), vacated in part on
reconsideration, No. 15-cv-1136, 2016 WL 10672074 (S.D.N.Y. June 21, 2016).
15

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Plaintiffs borrow the term “contraband cigarettes” from the Contraband Cigarette
Trafficking Act (“CCTA”), 18 U.S.C. § 2341 et seq. It defines the term as
a quantity in excess of 10,000 cigarettes, which bear no evidence of the payment
of applicable State or local cigarette taxes in the State or locality where such
cigarettes are found, if the State or local government requires a stamp, impression,
or other indication to be placed on packages or other containers of cigarettes to
evidence payment of cigarette taxes.
§ 2341(2). The CCTA lists certain exceptions not applicable here. See § 2341(2)(A)-(D). Thus,
as far as this case is concerned, “contraband cigarettes” are cigarettes without the requisite tax
stamps.
An item is “contraband per se” if “its possession, without more, constitutes a crime; or in
other words, if there is no legal purpose to which the object could be put.” Sash v. United States,
No. 09-cv-450, 2009 WL 3007379, at *4 (S.D.N.Y. Sept. 22, 2009). “[C]ourts will not entertain
a claim contesting the confiscation of contraband per se because one cannot have a property right
in that which is not subject to legal possession.” Id. (quoting Cooper v. Greenwood, 904 F.2d
302, 305 (5th Cir. 1990)). In a civil forfeiture proceeding, the government need not return that
item to “the person from whom [it] was seized,” 18 U.S.C. § 983(a)(1)(F), nor may that person
assert an ownership interest in or seek the release of that item, § 983(d)(4), (f)(8)(A). 7
Contraband status can also affect the amount of forfeiture. For example, when the Fourth
Circuit concluded that contraband cigarettes were contraband per se, it held that the cigarettes
were “unlawful goods” within the meaning of a civil forfeiture statute, 18 U.S.C. § 981(a)(2)(A).
See Hasan, 718 F.3d at 346-47. That holding ensured that the defendant would forfeit the gross
proceeds, not just the profits, that he earned through illegal cigarette trafficking. See id. at 347.

7

Contraband per se stands in contrast to the “more expansive” category of “derivative contraband.” Awan v. United
States, No. 12-cv-3844, 2014 WL 1343129, at *3 (E.D.N.Y. March 31, 2014) (quotation omitted). That category
“includes things that are not ordinarily illegal, like guns, automobiles, ships, and currency, that become forfeitable
because of their relationship with a criminal act.” Sash, 2009 WL 3007379, at *4 (quotation omitted).
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Although plaintiffs have cited these cases and statutes, they have not clearly articulated
how they apply to this case. The closest they come is to suggest that declaring contraband
cigarettes to be contraband per se would “remove the costs and administrative burdens” of
seizing cigarettes. Because those costs are the basis for the Return to Sender Program, plaintiffs
seem to assume, a declaratory judgment would make the Postal Service more likely to seize
cigarettes and less likely to continue the Return to Sender Program. And that change would
remedy the alleged injuries – lost tax revenue and the flow of illegal cigarettes into plaintiffs’
jurisdictions. This theory has two fatal flaws.
B.

Actual Case or Controversy

First, the claim lacks an actual case or controversy. As the Supreme Court has explained:
The difference between an abstract question and a “controversy” contemplated by
the Declaratory Judgment Act is necessarily one of degree . . . . Basically, the
question in each case is whether the facts alleged, under all the circumstances,
show that there is a substantial controversy, between parties having adverse legal
interests, of sufficient immediacy and reality to warrant the issuance of a
declaratory judgment.
Golden v. Zwickler, 394 U.S. 103, 108 (1969) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312
U.S. 270, 273 (1941)). This standard “require[s] that the dispute be definite and concrete,
touching the legal relations of parties having adverse legal interests; and that it be real and
substantial and admit of specific relief through a decree of a conclusive character.”
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007) (colatus).
This claim lacks that definite and concrete dispute. By plaintiffs’ own account, declaring
contraband cigarettes to be contraband per se would benefit defendant, for it would alleviate the
“costs and administrative burdens” of civil forfeiture proceedings. Defendant has no incentive to
oppose that result. Unsurprisingly, then, it has not argued that contraband cigarettes are not

17

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contraband per se. Nor have plaintiffs alleged that, in practice, defendant has failed to treat
contraband cigarettes as contraband per se in civil forfeiture proceedings.
Indeed, defendant does not dispute how it could conduct a seizure, but whether it must
conduct that seizure in the first place. That dispute does not depend on whether contraband
cigarettes are contraband per se. Plaintiffs have not alleged that a declaratory judgment to this
effect would require the Postal Service to seize cigarettes any more than the PACT Act already
requires it to do so. The same goes for shipping cigarettes. Thus, the declaratory judgment
would not resolve a “substantial controversy between or among the parties.” Niagara Mohawk
Power Corp. v. Tonawanda Band of Seneca Indians, 94 F.3d 747, 752 (2d Cir. 1996). Without
that controversy, I could offer only “an opinion advising what the law would be upon a
hypothetical state of facts,” not the “specific relief” that the law requires. MedImmune, 549 U.S.
at 127; see also 10B C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 2757 (4th
ed 2020).
C.

Standing

Plaintiffs also lack standing to bring this claim. In a declaratory judgment action, a
plaintiff must establish the familiar elements of Article III standing: (1) an “injury in fact” that is
“concrete and particularized” and “actual or imminent”; (2) “a causal relationship between the
injury and the challenged conduct”; and (3) a “likelihood that the injury will be redressed by a
favorable decision.” MGM Resorts Int’l Global Gaming Dev., LLC v. Malloy, 861 F.3d 40, 44
(2d Cir. 2017) (quoting Ne. Fla. Chapter of Assoc. Gen. Contractors of Am. v. City of
Jacksonville, 508 U.S. 656, 663–64 (1993)). This claim runs aground on the last two elements. 8

8

Plaintiffs skip over Article III standing and focus exclusively on “prudential” standing. See generally Bank of Am.
Corp. v. City of Miami, 137 S. Ct. 1296, 1302–03 (2017) (explaining the difference). Plaintiffs also cite a series of
factors that the Second Circuit has used to assess whether a district court may decline to exercise jurisdiction over a
18

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Causation and redressability are “substantially more difficult to establish” where, as here,
“the plaintiff is not himself the object of the government action or inaction he challenges.”
Lujan v. Defs. of Wildlife, 504 U.S. 555, 562 (1992) (quotation omitted). “In that circumstance,
causation and redressability ordinarily hinge on the response of the regulated (or regulable) third
party to the government action or inaction – and perhaps on the response of others as well.” Id.
For instance, a plaintiff could show that government regulation would cause the third party to
cease the conduct causing the plaintiff’s injury. See, e.g., Nat. Res. Def. Council v. Nat’l
Highway Traffic Safety Admin., 894 F.3d 95, 104–05 (2d Cir. 2018) (environmental groups had
standing to challenge an agency’s failure to strengthen automobile emissions standards because
the standards caused manufacturers to cause environmental harm). In these cases, it “becomes
the burden of the plaintiff to adduce facts showing that those choices have been or will be made
in such manner as to produce causation and permit redressability of injury.” Lujan, 504 U.S. at
562. The plaintiff “need not prove a cause-and-effect relationship with absolute certainty;
substantial likelihood of the alleged causality meets the test.” Nat. Res. Def. Council, 894 F.3d
at 104.
This claim presents these issues in an unusual context. Plaintiffs do not claim that a
declaratory judgment would cause the third parties – cigarette smugglers – to cease their harmful
conduct. Rather, plaintiffs argue that changing how the government treats those third parties’
property would lead the government to reconsider a separate program that produces the alleged
injury. Specifically, the declaratory judgment would decrease the costs of forfeiture
proceedings, incentivizing the Postal Service to abandon the Return to Sender Program.

declaratory judgment action. See New York v. Solvent Chem. Co., 664 F.3d 22, 26 (2d Cir. 2011). Because
plaintiffs lack Article III standing, I need not address these issues.
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This theory is too attenuated to establish causation or redressability. True, like some
viable theories, it relies on economic incentives. For instance, a plaintiff can establish standing
by showing that a favorable decision will increase the cost of the harmful conduct. See, e.g., id.
at 104–05. But it does not quite follow that making alternative conduct less expensive will
produce the same result. Even if a declaratory judgment lowered the cost of forfeiture
proceedings, defendant might nevertheless maintain the Return to Sender Program. Perhaps the
program would still be the most cost-effective strategy. Perhaps defendant would have other
policy reasons to continue the program. Amid such uncertainty, I cannot find a substantial
likelihood that defendant will abandon the Return to Sender Policy. Cf. Simon v. E. Ky. Welfare
Rights Org., 426 U.S. 26, 42–43 (1976) (indigent plaintiffs lacked standing to challenge an IRS
ruling that gave favorable tax treatment to hospitals that offered only emergency room service to
indigent patients, reasoning “[i]t [was] purely speculative whether the denials of service . . .
fairly can be traced to . . . ‘encouragement’ [from the favorable tax ruling] or instead result from
decisions made by the hospitals without regard to the tax implications”). Therefore, plaintiffs
lack standing to bring this claim.
III.

The Mandamus Claim
The mandamus statute gives the district courts “original jurisdiction of any action in the

nature of mandamus to compel an officer or employee of the United States or any agency thereof
to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. A writ of mandamus requires “(1) a
clear right in the plaintiff to the relief sought; (2) a plainly defined and peremptory duty on the
part of the defendant to do the act in question; and (3) no other adequate remedy available.”
Anderson v. Bowen, 881 F.2d 1, 5 (2d Cir. 1989). Plaintiffs cannot meet the third element
because the PACT Act provides an adequate remedy. See, e.g., Benzman v. Whitman, No. 04cv-1888, 2006 WL 250527, at *27 (S.D.N.Y. Feb. 2, 2006) (holding that a cause of action under
20

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another statute provided an adequate remedy), aff’d in relevant part, rev’d in part on other
grounds, 523 F.3d 119 (2d Cir. 2008). Defendant's motion to dismiss is therefore granted as to
that claim. 9
CONCLUSION
For the reasons set forth above, defendant’s motion to dismiss [20] is granted in part and
denied in part. Both the claim for a declaratory judgment that contraband cigarettes are
contraband per se and the claim for a writ of mandamus are dismissed.
SO ORDERED.

Digitally signed by Brian
____________________________________
M. Cogan U.S.D.J.

Dated: Brooklyn, New York
February 15, 2021

9

It is not always clear whether a failure to satisfy the elements of a mandamus claim under § 1361 warrants
dismissal for lack of jurisdiction or for failure to state a claim. See 14 C. Wright, A. Miller & H. Hershkoff, Federal
Practice & Procedure § 3655 (4th ed. 2020) (addressing this recurring issue); The Second Circuit has not decided
the issue, although it has affirmed district court decisions that dismissed for lack of jurisdiction. See, e.g., H.M.G. v.
Johnson, 599 F. App’x 396, 399 (2d Cir. 2015). I think the better and more modern view is that I have subject
matter jurisdiction over the alleged claim, but plaintiffs have failed to adequately state it. See e.g. Sebelius v.
Auburn Regional Medical Center, 568 U.S. 145 (2013); Arbaugh v. Y & H Corp., 546 U.S. 500 (2006); Lotes Co.,
Ltd. v. Hon Hai Precision Industry Co., 753 F.3d 395 (2d Cir. 2014).
21