Ammex, Inc. v. Michael A. Cox

*The Honorable Thomas B. Russell, United States District Judge for
the Western District of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0424P (6th Cir.)
File Name: 03a0424p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
AMMEX, INC.,
Plaintiff-Appellant/
Cross-Appellee,
v.
MICHAEL A. COX,
Defendant-Appellee/
Cross-Appellant.
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Nos. 01-2392/2518
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 00-73427—George C. Steeh, District Judge.
Argued: August 8, 2003
Decided and Filed: December 3, 2003
Before: BATCHELDER and ROGERS, Circuit Judges;
RUSSELL, District Judge.*
2 Ammex, Inc. v. Cox Nos. 01-2392/2518
_________________
COUNSEL
ARGUED: Craig L. John, DYKEMA GOSSETT,
Bloomfield Hills, Michigan, for Appellant. Tracy A.
Sonneborn, OFFICE OF THE ATTORNEY GENERAL,
Lansing, Michigan, for Appellee. ON BRIEF: David D.
Smyth III, STEPTOE & JOHNSON, Washington, D.C., for
Appellant. Tracy A. Sonneborn, OFFICE OF THE
ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
_________________
OPINION
_________________
ROGERS, Circuit Judge. The Attorney General of
Michigan issued a Notice of Intended Action (“NIA”) to
Ammex, Inc. informing it that its advertising might result in
the Attorney General filing an enforcement action under the
Michigan Consumer Protection Act (“MCPA”). In response,
Ammex sought a declaratory judgment against the Attorney
General, asserting that the Attorney General could not enforce
the MCPA against it because (1) federal law preempted the
MCPA with respect to Ammex, and (2) any enforcement of
the MCPA against Ammex would abrogate the restrictions
placed upon states by the Commerce Clause. The district
court eventually dismissed the action as moot based upon the
Attorney General’s withdrawal of the NIA. Both Ammex and
the Attorney General appeal the district court’s decision.
Although the action was not technically mooted by events
subsequent to the initiation of the action, we affirm the
judgment of the district court because the action was not ripe.

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Nos. 01-2392/2518 Ammex, Inc. v. Cox 3
1At least ten days prior to the commencement of an action under the
MCPA, the Attorney General must “notify the person of [the] intended
action and give the person an opportunity to cease and desist from the
alleged unlawful metho d, act, or prac tice or to confer with the attorney
FACTS
Ammex is a Michigan corporation that operates a United
States Customs Class 9 bonded warehouse and duty-free store
in Detroit, adjacent to the Ambassador Bridge to Canada.
The Ammex store is “sterile” in that customers leaving
Ammex’s Ambassador Bridge store may only depart by roads
that lead to Canada. In other words, goods sold in the
Ammex store may only reach the United States after they
have first been exported to Canada because the Ammex store
is located beyond the “point-of-no-return” on the United
States-Canadian border. At the Ambassador Bridge store,
Ammex sells a wide array of duty-free merchandise, as well
as gasoline and diesel fuel. At one point, Ammex’s
advertising claimed that its goods could be purchased with
“no state tax, no federal tax.” Ammex’s sales of gasoline and
diesel fuel and its advertising lie at the heart of this action.
Since January 1, 1994, Ammex has paid, under protest,
Michigan state sales taxes and motor fuel taxes on its sales of
motor fuel. Ammex, Inc. v. Dep’t of Treasury, 603 N.W. 2d
308, 311 (Mich. Ct. App. 1999), cert. denied, 534 U.S. 827
(2001). Ammex filed an action seeking a refund of the state
taxes that it paid under protest. Id. On September 14, 1999,
the Michigan Court of Appeals concluded that Ammex was
not entitled to a refund and that Michigan could levy state
taxes on Ammex’s sales of gasoline and diesel fuel. See id.
In addition, the United States Customs Service (“Customs”)
determined in two letter rulings that Ammex could not sell
gasoline or diesel fuel on a duty-free basis. See J.A. at 16E,
16J.
Two months after the state-court ruling, in November 1999,
the Michigan Attorney General issued an NIA1 to Ammex,
4 Ammex, Inc. v. Cox Nos. 01-2392/2518
general in person, by counsel, or by other representative as to the
proposed action before the proposed filing date,” absent a court waiver
upon a showing of good cau se. M ICH . CO M P. LA W S § 445.90 5(2).
alleging that Ammex falsely advertised that its goods could
be purchased at the Ambassador Bridge store free of state and
federal taxes. This claim of false advertisement was based on
statements that Ammex published on its website to the effect
that the “tax-free” nature of goods sold at the Ammex store
resulted in significant savings to Ammex customers. The
NIA pointed out that Ammex continued to publish these
statements after it had learned from the letter rulings and the
Michigan Court of Appeals decision that its sales of gasoline
and diesel fuel were subject to both state and federal taxes.
Further, the NIA noted that Ammex sold gasoline for prices
as high as or higher than its competitors in the Detroit area,
implying that, contrary to Ammex’s advertising, Ammex
customers were not reaping any savings on gasoline.
Through the NIA the Attorney General provided Ammex with
the opportunity to cease and desist its allegedly unlawful
practices and invited Ammex to confer with the Attorney
General. Finally, the NIA warned Ammex that unless
Ammex submitted a formal assurance that it would
discontinue the allegedly unlawful practice or the Attorney
General determined that there was no cause for action, the
Attorney General would be authorized to file a lawsuit under
the MCPA, which lawsuit might result in an injunction and/or
a $25,000 fine.
In February of 2000, in response to the NIA, Ammex filed
the declaratory judgment action that is the subject of the
present appeal. In its complaint Ammex alleged that the
Attorney General was prevented from enforcing the MCPA
because (1) federal law relating to duty-free stores preempts
the MCPA (Count I); (2) any attempt to enforce the MCPA
against Ammex would exceed the restrictions placed on the
states by the Commerce Clause with regard to foreign
commerce (Count II); and (3) any MCPA action against

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Nos. 01-2392/2518 Ammex, Inc. v. Cox 5
2The complaint also included a fourth count that asked the district
court to enjoin aspects of M ichigan’s sales tax act. The d istrict court
dismissed the fourth count and Ammex has not ap pealed that decisio n.
3Ammex sought to bar the revocation by invoking res judicata
against Customs. See Amm ex II, 334 F.3d at 1055. T he Federal Circuit
Court of Ap peals found that res judicata did no t bar Customs from
concluding, based on different reasoning, that gasoline and diesel fuel
could not be sold d uty-free. See id. at 1055-58. The Fed eral Circuit’s
ruling, which dealt primarily with the res judicata issue, did not address
the underlying merits of Customs’s new rationale, although it did state
that there was “a reasonable basis for Customs’s action.” Id. at 1058. It
is unclear from the Federal Circuit opinion to what extent Ammex may
now challenge the new rationale for prohibiting the sale of gasoline and
diesel fuel duty-free should it so choose.
Ammex based on its Internet advertising would be contrary to
the restrictions placed on the states by the Commerce Clause
with regard to both foreign and interstate commerce (Count
III).2
Meanwhile, Ammex was also challenging the letter rulings
issued by Customs that determined that Ammex could not sell
gasoline and diesel fuel on a duty-free basis. In August of
2000, the Court of International Trade ruled that the letter
rulings were contrary to law and that Customs acted
unlawfully by denying duty-free status to Ammex’s sales of
gasoline and diesel fuel based on the reasoning employed in
the letter rulings. See Ammex, Inc. v. United States, 116 F.
Supp. 2d 1269, 1272-75 (CIT 2000) (“Ammex I”). On
September 5, 2000, Customs authorized Ammex to sell
gasoline and diesel fuel duty-free. Ammex, Inc. v. United
States, 193 F. Supp. 2d 1325, 1327 (CIT 2002), aff’d, 334
F.3d 1052 (Fed. Cir. 2003) (Ammex II). Customs would later
revoke the authorization letter, concluding that gasoline and
diesel fuel could not be sold duty-free based upon a rationale
different from that which supported the earlier letter rulings.
Id. at 1054-55.3
6 Ammex, Inc. v. Cox Nos. 01-2392/2518
The present action by Ammex against the Attorney General
continued with the Attorney General’s answering Ammex’s
complaint and filing a motion to dismiss. The motion to
dismiss alleged that Ammex’s complaint contained a number
of jurisdictional defects. The district court eventually denied
the Attorney General’s motion to dismiss with regard to
Counts I, II, and III.
At the close of discovery, the Attorney General filed with
the district court a withdrawal of the NIA against Ammex.
The withdrawal stated that the Attorney General would not
reinstate the NIA, nor issue a new NIA with regard to
Ammex’s advertising, unless the following “changed
circumstances” occurred:
1. A final judgment is entered in a tax case for tax
periods including, or following, the issuance of the
[Ammex I]decision in which it is determined that:
(a) State sales tax applies in connection with retail
sales of items other than motor fuel by Ammex; OR
(b) State sales tax and/or state motor fuel taxes apply
in connection with retail sales of motor fuel by
Ammex.
OR
2. It is conclusively determined, whether by final
administrative order (including appeal), judicial order
(including appeal), or by federal legislation or treaty, or
in any other conclusive manner, that Ammex may not
sell motor fuel free of duty, notwithstanding the
[Ammex I] decision) [sic].
J.A. at 330-31. Based on the withdrawal, the Attorney
General then filed a motion that asserted, inter alia, that the
action was moot. A magistrate judge recommended that the
court deny the motion to dismiss, but the Attorney General
did not file objections to the recommendation.
After the magistrate judge issued his recommendation,
Ammex and the Attorney General filed cross-motions for

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Nos. 01-2392/2518 Ammex, Inc. v. Cox 7
summary judgment, each addressing Counts I, II, and III of
Ammex’s complaint. At the hearing regarding the motions
for summary judgment, the district court raised the mootness
issue sua sponte. The district court determined that the
Attorney General’s withdrawal of the NIA mooted the action,
and ordered the case dismissed. Both the Attorney General
and Ammex have appealed the district court’s decision to this
court.
I. Ammex’s Complaint Established the Existence of Subject
Matter Jurisdiction.
Before we reach the issue of mootness, the Attorney
General claims that this court does not have subject matter
jurisdiction over Ammex’s preemption claim. Although the
Attorney General did not raise this question below, “the
existence of federal jurisdiction may be questioned at any
point in the course of litigation and . . . parties cannot waive
the requirement of subject matter jurisdiction.” Riggs v.
Island Creek Coal Co., 542 F.2d 339, 343 (6th Cir. 1976).
Contrary to the Attorney General’s position, the district court
did have federal subject matter jurisdiction over Ammex’s
claims. We review the existence of subject matter jurisdiction
de novo. Ullmo ex rel. Ullmo v. Gilmour Acad., 273 F.3d
671, 680 (6th Cir. 2001).
The Supreme Court’s decision in Shaw v. Delta Air Lines,
Inc. makes clear that a federal court has subject matter
jurisdiction when a person seeks to enjoin state officials from
enforcing a state regulation against the person on the ground
that the regulation violates federal rights. See Shaw v. Delta
Air Lines, Inc., 463 U.S. 85, 96 n. 14 (1983); see also Verizon
Md. Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 642
(2002) (stating, with respect to an action for declaratory and
injunctive relief against a state commission order on
preemption grounds, “[w]e have no doubt that federal courts
have jurisdiction under [28 U.S.C.] § 1331 to entertain such
a suit”); Alltel Tenn., Inc. v. Tenn. Pub. Serv. Comm’n, 913
8 Ammex, Inc. v. Cox Nos. 01-2392/2518
4W hether federal subject ma tter jurisdiction exists when the plaintiff
seeks merely declaratory relief from state regulation on enforcement
grounds, however, is not as clear. See Fleet Bank, Nat’l Ass’n v. Burke,
160 F.3d 883, 888 -889 (2d Cir. 1998 ) (discussing Lawrence County v.
Lead Dead wood School D istrict No. 40-1, 469 U.S. 256, 259 n.6 (1985)
and the doubtful continued significance of language in Public Service
Co mm ission v. Wycoff Co., 344 U.S. 237 (1952)). This suit, however,
doe s not see k merely declaratory relief.
F.2d 305, 308 (6th Cir. 1990).4 Here, Ammex’s complaint
alleged that federal law preempts the MCPA “with respect to
Foreign Trade Zones, duty-free stores and their business
activities.” R. 1, Complaint, ¶ 26, J.A. at 26. Ammex also
alleged that the MCPA as applied to Ammex’s advertising
violated the Commerce Clause. Id., ¶¶ 34, 38, J.A at 28.
Finally, Ammex asked that the Attorney General be enjoined
from enforcing the MCPA against Ammex based on these
violations of its federal rights. Id., ¶1, J.A. at 31. Ammex’s
complaint, therefore, properly invokes federal subject matter
jurisdiction.
The Attorney General asks this court, however, to consider
the Second Circuit’s opinion in Fleet Bank, National
Association v. Burke, 160 F.3d 883 (2d Cir. 1998), in
analyzing whether subject matter jurisdiction exists in this
case. In Fleet Bank, the plaintiff, Fleet Bank, National
Association (“Fleet”), filed a complaint that alleged that the
Connecticut Commissioner of Banking (the “Commissioner”)
had “adopted an arbitrary, capricious, and erroneous view” of
Connecticut statutes dealing with the imposition of ATM
surcharges and, alternatively, that the relevant Connecticut
statutes were preempted by federal law. Id. at 885. On these
grounds, Fleet sought a declaratory judgment that it could
impose the contested surcharge and an injunction to enjoin
the Commissioner from interfering with the imposition of the
surcharges. Id. On appeal, the Commissioner questioned
whether the Second Circuit had subject matter jurisdiction
over the case, arguing that Fleet was trying to skirt the well-
pleaded complaint rule and invoke federal jurisdiction by

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Nos. 01-2392/2518 Ammex, Inc. v. Cox 9
anticipating a federal defense through a declaratory judgment
action. See id. at 885-86.
In concluding that the district court did not have subject
matter jurisdiction over the action, the Second Circuit noted
that, unlike the case before it, none of the Shaw plaintiffs, or
the plaintiffs in the cases upon which Shaw relied, raised
issues that required the interpretation of state law. Id. at 889.
The court found that this distinction mattered, reasoning that
the interpretation of state law would implicate complicated
abstention doctrines and Eleventh Amendment concerns,
while also risking “a major and unwarranted incursion on the
authority of state courts to construe state statutes.” Id. at 891-
92. Consequently, the Fleet Bank court refused to extend
Shaw “beyond instances where the plaintiff, seeking an
injunction on the ground of preemption, does not dispute the
meaning and application of state law.” Id. at 893. The
Attorney General asserts that this case falls within the holding
of the Fleet Bank decision.
Fleet Bank, however, is distinguishable from this case.
Here Ammex did not seek a declaratory judgment that its
advertising does not violate the MCPA, nor did it ask the
district court to interpret Michigan law. Rather Ammex’s
complaint only asked the court to determine if the MCPA
violated its federal rights and, if so, to enjoin the Attorney
General from enforcing the MCPA against Ammex. In short,
in Ammex’s federal pleading, it did not dispute the meaning
or application of state law. The Attorney General, however,
urges us to consider what Ammex would have pleaded had it
waited for the commencement of a state enforcement action.
The Attorney General contends that it is unimaginable in such
circumstances that Ammex would have pleaded only a
preemption defense.
Accepting such an argument would expand Fleet Bank to
such an extent that it would render meaningless the Supreme
Court’s repeated holdings that federal jurisdiction extends to
suits to enjoin state enforcement on federal preemption and
10 Ammex, Inc. v. Cox Nos. 01-2392/2518
comparable grounds. See Verizon Md., Inc., 535 U.S. at 642
(“We have no doubt that federal courts have jurisdiction
under [28 U.S.C.] § 1331 to entertain such suit.”); Shaw, 463
U.S. at 96 n. 14. Subject matter jurisdiction exists in those
cases despite the fact that if one were to examine closely the
nature of the complaint in such a case, the asserted
preemption claim would often be remarkably similar to an
anticipation of a federal defense through a declaratory action,
which generally does not create subject matter jurisdiction
under the well-pleaded complaint rule. See Public Serv.
Comm'n v. Wycoff Co., 344 U.S. 237, 248 (1952); see also
Playboy Enters., Inc. v. Pub. Serv. Comm’n, 906 F.2d 25, 30
(1st Cir.1990) (noting that in Shaw the Supreme Court limited
the Wycoff rule “[w]ithout explaining exactly why”).
Assuming that Fleet Bank was correctly decided, we decline
to read it so broadly as to preclude subject matter jurisdiction
over Ammex’s claims.
II. The Attorney General’s Withdrawal of the NIA Did Not
Moot Ammex’s Claim.
The district court dismissed this action on the ground that
it was mooted by the Attorney General’s withdrawal of the
NIA. While the district court properly dismissed on
justiciability grounds, as we explain in part III, it was not
proper for the district court to rely on the mootness doctrine,
inasmuch as the Attorney General’s withdrawal did not make
it absolutely clear that the allegedly wrongful conduct could
not be reasonably expected to recur. We review de novo a
district court’s decision that an action has been mooted.
NAACP v. City of Parma, 263 F.3d 513, 530 (6th Cir. 2001),
cert. denied, 535 U.S. 971 (2002).
“Under Article III of the Constitution, [a federal court’s]
jurisdiction extends only to actual cases and controversies.
[A federal court has] no power to adjudicate disputes which
are moot.” McPherson v. Mich. High Sch. Athletic Ass'n,
Inc., 119 F.3d 453, 458 (6th Cir.1997) (en banc) (quotation
omitted). “It is well settled that ‘a defendant’s voluntary

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Nos. 01-2392/2518 Ammex, Inc. v. Cox 11
cessation of a challenged practice does not deprive a federal
court of its power to determine the legality of the practice.’
. . . ‘[I]f it did, the courts would be compelled to leave [t]he
defendant . . . free to return to his old ways.’” Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 189 (2000) (alteration in original) (quoting City of
Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 & n.10
(1982)). Here the district court concluded that the Attorney
General’s withdrawal of the NIA mooted Ammex’s
declaratory judgment action. A case may be mooted by a
defendant’s voluntary conduct only “if subsequent events
made it absolutely clear that the allegedly wrongful behavior
could not reasonably be expected to recur,” Friends of the
Earth, 528 U.S. at 189 (quoting United States v. Concentrated
Phosphate Export Ass’n, Inc., 393 U.S. 199, 203 (1968), and
“interim relief or events have completely and irrevocably
eradicated the effects of the alleged violation.” County of Los
Angeles v. Davis, 440 U.S. 625, 631 (1979). The heavy
burden of demonstrating mootness rests on the party claiming
mootness. Friends of the Earth, 528 U.S. at 189. On the
other hand, we have noted that “‘cessation of the allegedly
illegal conduct by government officials has been treated with
more solicitude by the courts than similar action by private
parties.’” Mosley v. Hairston, 920 F.2d 409, 415 (6th
Cir.1990) (quoting Ragsdale v. Turncock, 841 F.2d 1358,
1365 (7th Cir. 1988)).
Against this legal backdrop, the district court, principally
relying on Picrin-Peron v. Rison, 930 F.2d 773, 775-76 (9th
Cir. 1991), held that the Attorney General’s withdrawal of the
NIA was sufficient to moot this action. In Picrin-Peron, the
Ninth Circuit considered the habeas corpus petition of an
excludable Cuban alien who, during the pendency of his
habeas appeal, had been placed on immigration parole. See
id. at 774-75. The Ninth Circuit found that, due to the limited
relief courts may grant under the writ of habeas corpus, it was
without power to grant relief beyond the freedom from
confinement that had already been effected. Id. at 775-76.
This led the court to conclude that the case was mooted. Id.
12 Ammex, Inc. v. Cox Nos. 01-2392/2518
The court also concluded that the confinement of the
immigrant was not reasonably likely to recur based on the
sworn statement of an INS official that “[a]bsent Picrin’s
reinvolvement with the criminal justice system, a change in
the Cuban government enabling him to return to Cuba, or the
willingness of a third country to accept him, he will be
paroled for another year.” Id. at 776 (alteration in original)
(quoting government dismissal motion). Thus, having found
the voluntary cessation test satisfied, the Ninth Circuit
dismissed the case as moot.
We are reluctant to rely upon Picrin-Peron here because it
is different in some important respects. The instant case is of
course not a habeas corpus case, and Ammex arguably does
not enjoy all of the relief that the court could enter.
Moreover, the Attorney General’s withdrawal of the NIA here
is different from the sworn statement in Picrin-Peron in a
significant way. In Picrin-Peron there was no indication that
the INS knew at the time of its statement that any of the
“changed circumstances” were reasonably likely to occur.
Here, the Attorney General’s withdrawal acknowledges that
related litigation is ongoing and might reasonably be expected
to lead to the “changed circumstances” articulated in the
withdrawal. See J.A. at 330 (stating that the Attorney General
would “forbear from issuing similar notices of intended action
or filing suit on the basis of the matters raised in the [NIA]
under the [MCPA] until the effect of [Ammex I’s] ruling on
tax matters has been conclusively resolved” (emphasis
supplied)). The Attorney General’s withdrawal thus does not
make it absolutely clear that the enforcement action is not
reasonably likely to recur. Consequently, the mootness
doctrine, without more, does not provide a sufficient basis for
dismissing this case.
III. Ammex’s Claims Are Not Ripe.
Although Ammex’s claims were not technically mooted by
the Attorney General’s withdrawal of the NIA, Ammex’s
claims are not ripe. Accordingly, we affirm the district

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Nos. 01-2392/2518 Ammex, Inc. v. Cox 13
court’s judgment on ripeness grounds. We review issues of
justiciablity, such as ripeness, de novo. NRA of Am. v.
Magaw, 132 F.3d 272, 278 (6th Cir. 1997).
The ripeness inquiry arises most clearly when litigants seek
to enjoin the enforcement of statutes, regulations, or policies
that have not yet been enforced against them. Recent
holdings of the Supreme Court make clear the continuing
validity in that context of the three-part test for ripeness in the
companion cases of Abbott Laboratories v. Gardner, 387 U.S.
136 (1967) and Toilet Goods v. Gardner, 387 U.S. 158
(1967). See Nat’l Park Hospitality Ass’n v. Dept. of the
Interior, 123 S.Ct. 2026, 2030-2032 (2003); Ohio Forestry
Ass’n v. Sierra Club, 523 U.S. 726, 732-33 (1998). Where,
as in this case, the statute at issue has not been enforced
against Ammex, and indeed where a notice of intent to
enforce has been explicitly withdrawn, the ripeness doctrine
provides the appropriate analysis for determining whether this
case should be heard at this time.
The ripeness doctrine “is drawn both from Article III
limitations on judicial power and from prudential reasons for
refusing to exercise jurisdiction.” Reno v. Catholic Soc.
Servs., Inc., 509 U.S. 43, 57 n. 18 (1993). The prudential
discretion to decline jurisdiction over unripe cases derives
from the discretionary nature of injunctive and declaratory
remedies. Abbott Labs., 387 U.S. at 148. The “basic
rationale” of the ripeness doctrine is
to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract
disagreements over administrative policies, and also to
protect the agencies from judicial interference until an
administrative decision has been formalized and its
effects felt in a concrete way by the challenging parties.
Abbott Labs., 387 U.S. at 148-49; see also Nat’l Park
Hospitality Ass’n, 123 S.Ct. at 2030. In determining whether
a pre-enforcement challenge is ripe, three considerations must
14 Ammex, Inc. v. Cox Nos. 01-2392/2518
be weighed. The first two deal with the “fitness of the issues
for judicial determination.” One aspect of the “judicial fitness
of the issues” is the extent to which the legal analysis would
benefit from having a concrete factual context. The second
aspect of the “judicial fitness of the issues” is the extent to
which the enforcement authority’s legal position is subject to
change before enforcement. The third consideration deals
with the “hardship to the parties of withholding court
consideration.” See Abbott Labs., 387 U.S. at 148-49; see
also Ohio Forestry Ass’n, 523 U.S. at 733. Together these
considerations weigh against ripeness in this case.
A. Judicial fitness: the benefit to the court of a concrete
factual context.
Ammex’s legal contention is that the MCPA does not apply
to its activities because it is preempted by federal statutes and
by the negative implications of the Commerce Clause.
Analysis of both issues would be significantly benefitted by
the concrete context that would be afforded by an
enforcement action against a specific action by Ammex.
The issue in Abbott Laboratories was whether a particular
regulation (requiring the generic name of a drug to
accompany the brand name every time on drug labelling) was
consistent with the Federal Drug and Cosmetic Act. 387 U.S.
at 137-39. Supporting its conclusion that the pre-enforcement
challenge was ripe, the Court found that the issue was purely
legal, and moreover that “both sides have approached this
case as one purely of congressional intent, and . . . the
Government made no effort to justify the regulation in factual
terms.” Id. at 149. In contrast, in the Toilet Goods
companion case, the issue was whether it was statutorily
permitted for the Food and Drug Administration to provide by
regulation that the FDA could have access to manufacturing
facilities on pain of suspending certification of the
manufacturer. 387 U.S. at 161-62. Although the issue was a
purely legal one, the Court found that the case was not ripe in
part because the validity of the regulation depended not only

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Nos. 01-2392/2518 Ammex, Inc. v. Cox 15
upon specific legislative intent, but also on “an understanding
of what types of enforcement problems are encountered by
the FDA, the need for various sorts of supervision in order to
effectuate the goals of the Act, and the safeguards devised to
protect legitimate trade secrets.” Id. at 163-64.
Similarly, in Ohio Forestry Ass’n, the Supreme Court,
unanimously reversing this court, held that a challenge to a
U.S. Forest Service management plan was not ripe. 523 U.S.
at 732, 739. The plan set logging goals, selected the areas
suited to timber production, and determined which probable
methods of timber harvest were appropriate, but did not itself
authorized the cutting of any trees. Id. at 729. With respect
to the “judicial fitness” question of whether the a court’s legal
analysis would benefit from having a concrete factual context,
the Court stated:
[R]eview of the Sierra Club’s claims regarding logging
and clearcutting now would require time-consuming
judicial consideration of the details of an elaborate,
technically based plan, which predicts consequences that
may affect many different parcels of land in a variety of
ways, and which effects themselves may change over
time. That review would have to take place without
benefit of the focus that a particular logging proposal
could provide. Thus, for example, the court below in
evaluating the Sierra Club’s claims had to focus upon
whether the Plan as a whole was “improperly skewed,”
rather than focus upon whether the decision to allow
clearcutting on a particular site was improper, say,
because the site was better suited to another use or
logging there would cumulatively result in too many
trees’ being cut.
523 U.S. at 736-37; see also Nat’l Park Hospitality Ass’n,
123 S.Ct. at 2032 (concluding that judicial resolution of issue
at hand should be deferred until Court was presented with
concrete dispute).
16 Ammex, Inc. v. Cox Nos. 01-2392/2518
With regard to the need for more factual development, this
case is more like Toilet Goods and Ohio Forestry Ass’n than
like Abbott Laboratories. The court’s need for more factual
development consideration thus weighs against ripeness in
this case. Ammex is not challenging a specific rule or finding
of the Michigan Attorney General, but rather the general
applicability of a statutory scheme to its conduct. Analysis of
any preemption or Commerce Clause issue would benefit
from knowledge of just what was forbidden by the MCPA,
and what the effects of the state’s regulation would be on the
policies underlying the Interstate and Foreign Commerce
Clauses and the federal statutes relied upon by Ammex.
Unlike the claims that this court found to be ripe in NRA of
America v. Magaw, this is not a situation where “[n]o factual
development can change what the statute bans and what it
protects.” 132 F.3d at 291. Like the Supreme Court in Toilet
Goods, “[w]e believe that judicial appraisal of these factors is
likely to stand on a much surer footing in the context of a
specific application of this [statute] than could be the case in
the framework of the generalized challenge made here.” 387
U.S. at 164.
B. Judicial Fitness: Permitting an Agency to Refine Its
Policies
The second aspect of the judicial fitness inquiry is perhaps
the strongest against ripeness in this case. Courts should
avoid pre-enforcement challenges that do not permit
enforcement agencies to refine their policies. In Abbott
Laboratories the case was ripe where the challenge was to a
final regulation that the FDA was unlikely to change. There
was “no hint” that the regulation was tentative. 387 U.S. at
151. In contrast, although the regulation in Toilet Goods was
technically a “final agency action” for purposes of the
Administrative Procedure Act, the challenge there was not
ripe in part because
[t]he regulation serves notice only that the Commissioner
may under certain circumstances order inspection of

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Nos. 01-2392/2518 Ammex, Inc. v. Cox 17
certain facilities and data, and that further certification of
additives may be refused to those who decline to permit
a duly authorized inspection until they have complied in
that regard. At this juncture we have no idea whether or
when such an inspection will be ordered and what
reasons the Commissioner will give to justify his order.
387 U.S. at 163.
Similarly, in finding that the challenge to the forestry
management plan in Ohio Forestry Ass’n was not ripe, the
Court relied upon several post-plan administrative actions to
conclude that “the possibility that further consideration will
actually occur before the Plan is implemented is not
theoretical, but real.” 523 U.S. at 735.
The possibility that the agency will modify its position is
far stronger here than it was in Toilet Goods or Ohio Forestry
Ass’n. There is not even the “final agency action” that there
was in Toilet Goods. The NIA was at most an initiation of
proceedings, and a permissively worded one at that, allowing
that “unless an Assurance of Discontinuance is accepted, or
it is determined that there is no cause for action, the Attorney
General will be authorized to file a lawsuit against AMMEX,
INC.” J.A. at 15 (emphasis supplied). Cf. FTC v. Standard
Oil of Cal., 449 U.S. 232, 241-42 (1980) (holding that
initiation of an administrative complaint was not “final
agency action”). Moreover, the record shows that the NIA
was subsequently withdrawn, albeit with a reservation of the
possibility of reissuance on certain conditions. The Attorney
General’s enforcement decision was, at least in part, based on
whether Ammex could sell its gasoline on a duty-free basis,
because if Ammex’s sales of gasoline and diesel fuel were
made duty-free, then the tendency of its advertising to be
misleading would seem to be significantly less. At the time
this action was filed, on February 15, 2000, Ammex had
already filed suit in the Court of International Trade to
challenge the Customs letter rulings that determined that
Ammex could not sell gasoline or diesel fuel on a duty-free
18 Ammex, Inc. v. Cox Nos. 01-2392/2518
basis. See Ammex I, 116 F. Supp. 2d at 1271. Ammex would
later prevail in this suit, id. at 1275-76, and would be issued
a letter granting its request to expand its duty-free operations
to the sale of gasoline and diesel fuel, Ammex II, 334 F.3d at
1054. As long as Ammex can sell gas tax-free, there is no
basis for assuming that the Attorney General will enforce the
MCPA against Ammex. And if Ammex is ultimately
forbidden from selling gasoline tax-free, it is still far from
clear what the Attorney General’s policy would be with
respect to enforcement of the MCPA against Ammex.
Enforcement of the MCPA against Ammex is thus more
obviously tentative and subject to agency reconsideration than
the challenged regulation in Toilet Goods or the challenged
forestry management plan in Ohio Forestry Ass’n. This
consideration strongly weighs against ripeness.
C. The Hardship to Ammex in Waiting for Enforcement.
Finally, whatever hardship Ammex incurs by waiting for
enforcement is not enough to outweigh the above-considered
factors weighing against ripeness here. In Abbott
Laboratories, the claim was ripe in part because the
challenged regulation had a direct and immediate impact on
the day-to-day operations of the plaintiff drug company. The
drug companies either had to incur the enormous cost of
changing all their labels and promotional materials, or “risk
serious criminal and civil penalties for the unlawful
distribution of ‘misbranded’ drugs.” Abbott Labs., 387 U.S.
at 153. The government counsel, moreover, had represented
in court that immediate compliance with the regulation was
expected. Id. at 152. This immediate impact was
distinguished in Toilet Goods, which held that a challenge to
regulations permitting FDA access to manufacturing facilities
did not have any immediate direct effect until the FDA sought
to enforce it, at which time it could be promptly challenged.
387 U.S. at 164-65; see also Ohio Forestry Ass’n, 523 U.S. at
733-35 (holding challenge to forestry management plan not
ripe in part because plaintiff had not shown how plan would
“force [plaintiff] to modify its behavior in order to avoid

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Nos. 01-2392/2518 Ammex, Inc. v. Cox 19
future adverse consequences, as, for example, agency
regulations can sometimes force immediate compliance
through fear of future sanctions”).
The Supreme Court recently focused on the hardship factor
in finding that a challenge to a National Park Service
regulation was not ripe. Nat’l Park Hospitality Ass’n, 123
S.Ct. at 2030-32. The regulation stated that National Park
concession contracts were not covered by the federal
Contracts Disputes Act (CDA). Id. at 2029. The Supreme
Court found that because the Park Service does not administer
the CDA, the regulation merely informed the public of its
view of CDA coverage, and did not “create ‘adverse effects
of a strictly legal kind.’” Id. at 2031 (quoting Ohio Forestry
Ass’n, 523 U.S. at 733). There was thus even less hardship
than in Toilet Goods, where “the FDA regulation was more
onerous than [the Park Service regulation] because failure to
comply with it resulted in the suspension of the producer’s
certification and, consequently, could affect production.”
Nat’l Park Hospitality Ass’n, 123 S.Ct. at 2031.
The hardship to Ammex in this case appears to fall between
the situations in Abbott Laboratories and Toilet Goods.
Unlike in Abbott Laboratories, there are no allegations of
huge immediate expense in temporarily complying with the
requirements of the MCPA. There is also no asserted threat
of criminal liability. And while the possibility of $25,000 in
fines is referred to in the (now-withdrawn) NIA, it is not clear
that such fines would be imposed for actions prior to a valid
NIA. In Abbott Laboratories, in contrast, the agency
affirmatively took the position that immediate compliance
was required. 387 U.S. at 152. Moreover, unlike in Abbott
Laboratories, an external uncertainty affects Ammex’s
current advertising conduct as much as the possibility of
MCPA enforcement. The underlying taxability of gasoline
products here is an issue that does not appear finally resolved,
and would not be affected, much less resolved, by permitting
this case to go forward. If Ammex ultimately can sell gas on
a tax-free basis, it is very unlikely that Ammex’s primary
20 Ammex, Inc. v. Cox Nos. 01-2392/2518
advertising conduct will be affected in a way that confronts
Ammex with a dilemma like that in Abbott Laboratories.
On the other hand, if Ammex is ultimately not permitted to
sell gas on a tax-free basis, it may then be on the horns of a
dilemma as to the extent to which it may advertise that it is a
“tax-free” facility without subjecting itself to significant fines.
In that event, Ammex may undergo some uncertainty as to
just how far it can go in publicizing its tax-free status without
risking penalties under a Michigan statute that Ammex claims
is not applicable to it. And while the Attorney General has
not asserted that he will seek the imposition of fines for
activity preceding the issuance of an NIA, neither has the
Attorney General’s counsel assured us that the Attorney
General will not.
While this factor presents a closer question than the other
two relevant factors, a weighing of the three factors together
leads to the conclusion that this case is not ripe. At this stage
the Attorney General has indicated in a very tentative way, in
a notice that has been withdrawn, that a general consumer
protection statute applies to Ammex, but indicated that under
certain conditions the Attorney General will not seek to
enforce the statute. The uncertainty that Ammex may
(perhaps) face is not significantly different from that faced by
any regulated party claiming that it is immune from an entire
scheme of regulation.
CONCLUSION
Because Ammex’s pre-enforcement challenge to the
applicability of the MCPA is not ripe, we AFFIRM the
judgment of the district court.

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