Red Earth LLC et al v. United States of America et al

Filing 26

TEMPORARY RESTRAINING ORDER. Signed by Hon. Richard J. Arcara on 7/2/2010. Associated Cases: 1:10-cv-00530-RJA, 1:10-cv-00550-RJA(JMB)

Red Earth LLC et al v. United States of America et al

Doc. 26

UNITED STATES DISTRICT COURT W ESTERN DISTRICT OF NEW YORK

RED EARTH LLC d/b/a SENECA SMOKESHOP and AARON J. PIERCE, Plaintiffs, TEMPORARY RESTRAINING ORDER v. 10-CV-530A UNITED STATES OF AMERICA and ERIC H. HOLDER, JR., in his Official Capacity as Attorney General of the United States, Defendant. --------------------------------------------------------------

SENECA FREE TRADE ASSOCIATION, Plaintiff, v. ERIC H. HOLDER, JR., in his Official Capacity as Attorney General of the United States; UNITED STATES DEPARTMENT OF JUSTICE; JOHN E. POTTER, in his official capacity as Postmaster General and Chie Executive Officer of the UnIted States Postal Service; and UNITED STATES POSTAL SERVICE; Defendants. 10-CV-550A

Plaintiffs have made application pursuant to Fed. R. Civ. P. 65 for a temporary

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restraining order and preliminary injunction against the defendants, enjoining and restraining defendants from enforcing the Prevent All Cigarette Trafficking Act ("PACT Act") of 2009. Pub. L. No. 111-154, 124 Stat. 1087, during the pendency of this action. Upon plaintiffs' motions for a temporary restraining order, and upon the Complaints filed in these actions, the supporting affidavits and Memorandum of Law, and upon hearing argument from counsel on July 2, 2010, the Court finds: (1) that plaintiffs have demonstrated that they will suffer irreparable injury absent injunctive relief; (2) that, at this juncture, plaintiffs have demonstrated a likelihood of success on the merits of their claim that the PACT Act violates various provisions of the United States Constitution, including the Commerce Clause, the Tenth Amendment, the Due Process Clause, the Equal Protection Clause and principles of federalism and have demonstrated that the balance of hardships tips decidedly in their favor; and (3) that a temporary restraining order restraining the enforcement of the PACT Act pending a further hearing on these complex constitutional issues is in the public interest because the public interest favors restraining enforcement of statutes that appear to violate provisions of the Constitution. Accordingly, it hereby is ORDERED that pending the earlier of a determination upon plaintiffs' motions for a preliminary injunction, or the expiration of 14 days from the date of this Order (unless otherwise extended an additional 14 days under Fed. R. Civ. P. 65), defendants are hereby restrained from enforcing the PACT Act as against plaintiffs Red Earth LLC d/b/a/ Seneca Smokeshop and Aaron J. Pierce, and members of plaintiff Seneca Free Trade Association; and further ORDERED that with respect to enforcement of § 3 of the PACT Act (declaring 2

cigarettes and smokeless tobacco to be nonmailable matter), defendant United States Postal Service is enjoined from rejecting packages presented by plaintiffs for mailing on the basis that such packages violate § 3 of the PACT Act, provided however that: (1) the package or packages to be mailed contain the name and return address of the sender; (2) that the sender is a member of plaintiff Seneca Free Trade Association ("SFTA") and is identified as such in a list to be provided by the SFTA to defendants; and (3) that the package or packages are mailed from one of three mailing locations in the Western District of New York designated by the United States Postal Service to accept delivery of such packages; and further ORDERED that any response or reply papers in support or against the pending motion for a preliminary injunction shall be filed by July 6, 2010, at noon; and further. ORDERED that the parties shall appear for a hearing on the preliminary injunction in this Court on July 7, 2010, at 10:00 a.m.; and further ORDERED that this Temporary Restraining Order supersedes the Court's Temporary Restraining Order issued on June 28, 2010.

SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE DATED: July 2, 2010

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