SJ Stile Assoc. Ltd. v. Snyder

• Decision Date: 02 April 1981
• Docket Number: Appeal No. 81-9.
• Citation: 646 F.2d 522
• Parties: S. J. STILE ASSOCIATES LTD., et al., Appellants, v. Dennis SNYDER et al., Appellees.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

646 F.2d 522

S. J. STILE ASSOCIATES LTD., et al., Appellants, v. Dennis SNYDER et al., Appellees.

Appeal No. 81-9.

United States Court of Customs and Patent Appeals.

April 2, 1981.

Mandel & Grunfeld, New York City, for appellants; Robert B. Silverman, New York City, of counsel.

Thomas S. Martin, Acting Asst. Atty. Gen., Washington, D. C., David M. Cohen, Director, New York City, Joseph I. Liebman, New York City, Atty. in charge, Sidney N. Weiss, New York City, attorneys for appellees.

Before MARKEY, Chief Judge, and RICH, BALDWIN, MILLER and NIES, Judges.

MARKEY, Chief Judge.

This interlocutory appeal is from the denial of a preliminary injunction. S. J. Stile Associates Ltd., et al. (Brokers), who have their sole places of business in the immediate vicinity of the Customhouse at J.F.K. Airport, sought to restrain New York Regional Commissioner of Customs Dennis Snyder and his superiors (Commissioner) from discontinuing the practice of permitting a filing of "cross-over" entries in the New York City Customs District. The Court of International Trade, per Judge Boe, denied the Brokers' application for injunctive relief from the bench and subsequently issued a written order to that effect. S. J. Stile Associates Ltd., et al. v. Snyder, et al., 505 F.Supp. 1122, 1123, 2 CIT ___ (1981). We affirm.

Background

The New York City Customs District is coextensive with the New York City Customs Region. The latter is divided into three geographical Areas; viz., J.F.K. Airport (JFK), New York Seaport (Seaport) and Newark. 19 C.F.R. 101.1(a), 101.3(b) Each Area has a Customhouse located therein for transaction of Customs business.

The term "cross-over" refers to the filing of entry documents, and obtaining release of merchandise, at a Customhouse located in one Area within the District, for merchandise unladen or placed in a bonded warehouse in another Area.

On November 7, 1980, the Commissioner issued "Pipeline 524",¹ to become effective on January 12, 1981. After the effective date, Customs entry documentation, and the resulting release of merchandise from Customs custody, for merchandise unladen or warehoused at Seaport or Newark, could not be filed and obtained at JFK and would have to be filed and obtained at the Customhouse at either Seaport or Newark.²

The cross-over entry procedure, described by appellants as in existence for 13 years, has remained in effect to this day throughout the New York Customs District. Although the trial court denied application for a preliminary injunction, appellees agreed, at the suggestion of Judge Boe, to postpone implementation of Pipeline 524 until April 1, 1981, pending decision in this appeal.

The purpose of Pipeline 524 as declared in its text is: "To adjust administrative policy to eliminate many of the errors and delays in entry and liquidation caused by inter-area processing at J.F.K., and to provide more accountable entry service and control of merchandise entered and stored in bonded warehouses."

The Commissioner says Pipeline 524 is one step in a program intended to ameliorate an integrity and management problem, developed over years in the New York Region, in which a dishonest importer might effectively elect the customs officer (import commodity specialist) who would process his documentation.³

The Commissioner, having determined that elimination of cross-over filing was essential for effective integrity and management control, directed as a first step its elimination at JFK. Statistical surveys indicated that ninety-seven percent of the brokerage business at JFK would be unaffected by application of Pipeline 524.⁴

The Brokers claim that substantial time delays in filing documents and obtaining release of merchandise unladen at Seaport-Newark would not be tolerated by their clients, who would purportedly turn to competing brokers with offices at Seaport-Newark. The Brokers allege an inability to pass on to their customers the increased business expenses incurred in opening offices at Seaport-Newark or in otherwise coping with travel delays between JFK and Seaport-Newark.

Between the issuance of Pipeline 524 on November 7, 1980 and its January 12, 1981 effective date, the Commissioner actively solicited comments on the prospective change in procedure and conducted meetings on at least five occasions with brokers having offices at or near JFK, at which the foregoing objections were asserted and considered. Remaining convinced of the necessity of eliminating cross-over entries at JFK as a first step in solving what was viewed as an integrity and management problem, the Commissioner adhered thereto and the Brokers brought this action below on December 19, 1980.⁵

Opinion

In an interlocutory appeal from a denial of preliminary injunctive relief, the scope of review is narrow. Application for a preliminary injunction is addressed to the discretion of the trial court, not to that of the appellate court. A-Copy, Inc. v. Michaelson, 599 F.2d 450, 452 (CA1 1978). One denied a preliminary injunction must meet the heavy burden of establishing an abuse of the trial court's discretion or a clear error of law. Brown v. Chote, 411 U.S. 452, 93 S.Ct. 1732, 36 L.Ed.2d 420 (1973); Fifteen Thousand Eight Hundred and Forty-Four Welfare Recipients v. King, 610 F.2d 32, 34 (CA1 1979).

The trial court must be upheld if it examined the appropriate factors and properly concluded that any one of these requisites for a preliminary injunction had not been established by the appellant: (1) a threat of immediate irreparable harm; (2) that the public interest would be better served by issuing than by denying the injunction; (3) a likelihood of success on the merits; and (4) that the balance of hardship on the parties favored appellant. Grimard v. Carlston, 567 F.2d 1171, 1173 (CA1 1978); 11 C. Wright and A. Miller, Federal Practice and Procedure § 2948 (1973); See generally, Developments in the Law — Injunctions, 78 Harv.L.Rev. 944 (1965).

Irreparable Harm

Only a viable threat of serious harm which cannot be undone authorizes exercise of a court's equitable power to enjoin before the merits are fully determined. Parks v. Dunlop, 517 F.2d 785 (CA5 1975). A preliminary injunction will not issue simply to prevent a mere possibility of injury, even where prospective injury is great. A presently existing, actual threat must be shown. 11 C. Wright and A. Miller Federal Practice and Procedure § 2948 (1973); See, State of New York v. Nuclear Regulatory Commission, 550 F.2d 745 (CA2 1977); Crowther v. Seaborg, 415 F.2d 437 (CA10 1969).

The Brokers presented general testimony that their business expenses would increase as a result of Pipeline 524. Concerning loss of business, no customer testified that it would transfer its business from any of the Brokers.⁶ In essence, the Brokers invoke the equitable powers of the court to stop an action of the Customs Service on the sole ground that the action would cause some increase in their business expenses. Though the Secretary of the Treasury, and thus the Customs Service, is required to facilitate the commerce of the United States and equal protection of consignees, 19 U.S.C. § 1484(a)(2)(C), nothing in the law requires that the Secretary or the Customs Service insure against an increase of business expenses of customs brokers. Thus solid proof that increased expenses would be certain, had the same been addressed, would not alone justify the injunction sought.⁷

The trial judge noted:

Except for testimony presented that increased costs in business operations would result in the event Pipeline 524 is implemented, minimal and insufficient proof, other than speculations, has been presented that a loss of business or other irreparable damage would result.

Recognizing that implementation of Pipeline 524 could...