MEMORANDUM OPINION AND ORDER
DiCARLO, Judge:
Plaintiffs seek a temporary restraining order preventing the United States Customs Service (Customs) “from transferring ... to any Committee of the United States House of Representatives, any representatives of the Republic of the Philippines, or to any other person”
originals or duplicates of property that arrived in the United States with Ferdinand E. Marcos, the former president of the Republic of the Philippines, and his party on February 26, 1986.
Plaintiffs’ motion is denied.
Background
Arriving in the United States at Hickam Air Force Base, Hawaii, on February 26, 1986, Mr. Marcos and his party brought with them currency, documents, jewelry and other property. On March 7, 1986, plaintiff Araneta filed Customs Form 7501
and Entry Summary for certain property as “attorney-in-fact” for Mr. Marcos as importer of record.
On March 10, 1986, plaintiff Azurin executed a Customs Form 4790, Report of International Transportation of Currency or Monetary Instruments, on behalf of Mr. Marcos, covering currency. Neither plaintiff claims an ownership interest in any of the property currently in Customs custody.
Plaintiffs allege that all procedures incidental to Customs inspection and processing of the property were completed on March 12, 1986, but that Customs had received instructions not to release the property.
On March 13, 1986, plaintiffs, uncertain as to which court had jurisdiction, commenced mandamus actions in this Court and in the United States District Court for the District of Hawaii
seeking to compel Customs to release the property to plaintiffs.
In both mandamus actions it is alleged that Customs retention of the property violates section 142.19(b) of the Customs Regulations, 19 C.F.R. § 142.19(b) (1986), and plaintiffs’ rights to freedom from unreasonable search and seizure, due process, and privacy. Plaintiffs invoke this Court’s jurisdiction under 28 U.S.C. § 1581(i)(l) and (4) (1982). The Court finds that it has jurisdiction over the mandamus action.
Simultaneously with the filing of the actions for mandamus, plaintiffs sought temporary restraining orders in both courts to prevent Customs from releasing copies of the documents in Customs possession pursuant to formal requests from the Chairman and Ranking Minority Member of the Subcommittee on Asian and Pacific Affairs of the Foreign Affairs Committee of the United States House of Representatives and the Republic of the Philippines.
Plaintiffs claim a constitutional right to privacy would be violated by release of the documents.
At a conference immediately following the filing of plaintiffs’ complaint and motion for restraining order, the Court directed that briefs be filed by the close of business the following day, and that counsel for both parties appear for oral argument on the motion on March 15, 1986.
On March 14, 1986 the Court was informed by plaintiffs’ counsel that the District Court for the District of Hawaii had issued a temporary restraining order
ex parte
enjoining defendant for ten days from allowing access to the property described in the Customs Form 7501 “except to those persons entitled to access pursuant to lawful subpoena, other legal process compelling production, or pursuant to the laws or treaties of the United States.”
Since the order issued by the district court did not unconditionally prohibit access to the documents, plaintiffs did not withdraw their motion for a restraining order in this Court.
The Temporary Restraining Order
Although the motion before the Court is for a temporary restraining order, plaintiffs in their brief say the criteria for granting a preliminary injunction are appropriately applied to its motion. Since defendants received notice of plaintiffs’ motion, and both parties were afforded an opportunity to be heard orally and in writing, the Court will consider, under an appropriately relaxed evidentiary standard, the criteria for issuance of a preliminary injunction.
Levas & Levas v. Village of Antioch,
684 F.2d 446, 448 (7th Cir.1982);
Ragold, Inc. v. Ferrero, U.S.A., Inc.,
506 F.Supp. 117, 122-23 (N.D.Ill.1980); 11 C. Wright and A. Miller, Federal Practice and Procedure: Civil § 2951,' at 499 (1973). These criteria are: 1) threat of immediate irreparable harm; 2) likelihood of success on the merits; 3) that the public interest
would be better served by issuing rather than by denying the injunction; and 4) whether the balance of hardships on the parties favors issuing the injunction.
See Zenith Radio Corp. v. United States,
1 Fed.Cir. 74, 76, 710 F.2d 806, 809 . (1983);
S.J. Stile Associates, Ltd. v. Snyder,
68 CCPA 27, 30, 646 F.2d 522, 525 (1981).
Irreparable Harm
An injury is irreparable if it cannot be undone through monetary remedies.
S.J. Stile Associates, Ltd. v. Snyder, supra; Spiegel v. City of Houston,
636 F.2d 997 (5th Cir.1981). Plaintiffs allege that their privacy rights will be irreparably injured if the documents are released. The Court agrees that “the right of privacy must be carefully guarded for once an infringement has occurred it cannot be undone by monetary relief.”
Deerfield Medical Center v. City of Deerfield Beach,
661 F.2d 328, 338 (5th Cir.1981). But, for reasons stated in the following section of this opinion, the Court believes that plaintiffs have stated no privacy rights in this action, and, therefore, will suffer no irreparable injury if their motion is denied.
Likelihood of Success
“It is unnecessary for plaintiffs to establish likelihood of success on the merits with ‘mathematical probability’.
Committee to Preserve American Color Television and Imports Committee v. United States, 4
CIT 202, 204, 551 F.Supp. 1142, 1144 (1982).”
American Institute for Imported Steel, Inc. v. United States,
8 CIT —, —, 600 F.Supp. 204, 209 (1984).
Plaintiffs make two claims: that Customs is unlawfully holding their property, and should return it to them, and that Customs is about to release unlawfully copies of the property to third parties.
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM OPINION AND ORDER
DiCARLO, Judge:
Plaintiffs seek a temporary restraining order preventing the United States Customs Service (Customs) “from transferring ... to any Committee of the United States House of Representatives, any representatives of the Republic of the Philippines, or to any other person”
originals or duplicates of property that arrived in the United States with Ferdinand E. Marcos, the former president of the Republic of the Philippines, and his party on February 26, 1986.
Plaintiffs’ motion is denied.
Background
Arriving in the United States at Hickam Air Force Base, Hawaii, on February 26, 1986, Mr. Marcos and his party brought with them currency, documents, jewelry and other property. On March 7, 1986, plaintiff Araneta filed Customs Form 7501
and Entry Summary for certain property as “attorney-in-fact” for Mr. Marcos as importer of record.
On March 10, 1986, plaintiff Azurin executed a Customs Form 4790, Report of International Transportation of Currency or Monetary Instruments, on behalf of Mr. Marcos, covering currency. Neither plaintiff claims an ownership interest in any of the property currently in Customs custody.
Plaintiffs allege that all procedures incidental to Customs inspection and processing of the property were completed on March 12, 1986, but that Customs had received instructions not to release the property.
On March 13, 1986, plaintiffs, uncertain as to which court had jurisdiction, commenced mandamus actions in this Court and in the United States District Court for the District of Hawaii
seeking to compel Customs to release the property to plaintiffs.
In both mandamus actions it is alleged that Customs retention of the property violates section 142.19(b) of the Customs Regulations, 19 C.F.R. § 142.19(b) (1986), and plaintiffs’ rights to freedom from unreasonable search and seizure, due process, and privacy. Plaintiffs invoke this Court’s jurisdiction under 28 U.S.C. § 1581(i)(l) and (4) (1982). The Court finds that it has jurisdiction over the mandamus action.
Simultaneously with the filing of the actions for mandamus, plaintiffs sought temporary restraining orders in both courts to prevent Customs from releasing copies of the documents in Customs possession pursuant to formal requests from the Chairman and Ranking Minority Member of the Subcommittee on Asian and Pacific Affairs of the Foreign Affairs Committee of the United States House of Representatives and the Republic of the Philippines.
Plaintiffs claim a constitutional right to privacy would be violated by release of the documents.
At a conference immediately following the filing of plaintiffs’ complaint and motion for restraining order, the Court directed that briefs be filed by the close of business the following day, and that counsel for both parties appear for oral argument on the motion on March 15, 1986.
On March 14, 1986 the Court was informed by plaintiffs’ counsel that the District Court for the District of Hawaii had issued a temporary restraining order
ex parte
enjoining defendant for ten days from allowing access to the property described in the Customs Form 7501 “except to those persons entitled to access pursuant to lawful subpoena, other legal process compelling production, or pursuant to the laws or treaties of the United States.”
Since the order issued by the district court did not unconditionally prohibit access to the documents, plaintiffs did not withdraw their motion for a restraining order in this Court.
The Temporary Restraining Order
Although the motion before the Court is for a temporary restraining order, plaintiffs in their brief say the criteria for granting a preliminary injunction are appropriately applied to its motion. Since defendants received notice of plaintiffs’ motion, and both parties were afforded an opportunity to be heard orally and in writing, the Court will consider, under an appropriately relaxed evidentiary standard, the criteria for issuance of a preliminary injunction.
Levas & Levas v. Village of Antioch,
684 F.2d 446, 448 (7th Cir.1982);
Ragold, Inc. v. Ferrero, U.S.A., Inc.,
506 F.Supp. 117, 122-23 (N.D.Ill.1980); 11 C. Wright and A. Miller, Federal Practice and Procedure: Civil § 2951,' at 499 (1973). These criteria are: 1) threat of immediate irreparable harm; 2) likelihood of success on the merits; 3) that the public interest
would be better served by issuing rather than by denying the injunction; and 4) whether the balance of hardships on the parties favors issuing the injunction.
See Zenith Radio Corp. v. United States,
1 Fed.Cir. 74, 76, 710 F.2d 806, 809 . (1983);
S.J. Stile Associates, Ltd. v. Snyder,
68 CCPA 27, 30, 646 F.2d 522, 525 (1981).
Irreparable Harm
An injury is irreparable if it cannot be undone through monetary remedies.
S.J. Stile Associates, Ltd. v. Snyder, supra; Spiegel v. City of Houston,
636 F.2d 997 (5th Cir.1981). Plaintiffs allege that their privacy rights will be irreparably injured if the documents are released. The Court agrees that “the right of privacy must be carefully guarded for once an infringement has occurred it cannot be undone by monetary relief.”
Deerfield Medical Center v. City of Deerfield Beach,
661 F.2d 328, 338 (5th Cir.1981). But, for reasons stated in the following section of this opinion, the Court believes that plaintiffs have stated no privacy rights in this action, and, therefore, will suffer no irreparable injury if their motion is denied.
Likelihood of Success
“It is unnecessary for plaintiffs to establish likelihood of success on the merits with ‘mathematical probability’.
Committee to Preserve American Color Television and Imports Committee v. United States, 4
CIT 202, 204, 551 F.Supp. 1142, 1144 (1982).”
American Institute for Imported Steel, Inc. v. United States,
8 CIT —, —, 600 F.Supp. 204, 209 (1984).
Plaintiffs make two claims: that Customs is unlawfully holding their property, and should return it to them, and that Customs is about to release unlawfully copies of the property to third parties.
The Court will consider the likelihood of success of each of these claims.
1. The Mandamus Claim to Compel Customs to Release the Property to Plaintiffs
Plaintiffs claim that Customs refusal to release the property to them violates section 142.19(b) of the Customs Regulations, 19 C.F.R. § 142.19(b), and violates plaintiffs’ constitutional rights to be free from unreasonable search and seizure, to due process, and to privacy.
Plaintiffs’ contention that 19 C.F.R. § 142.19(b)
requires Customs to release property that it has reason to believe may have been imported in violation of the laws or treaties of the United States cannot withstand scrutiny. Section 142.19(b) does not compel Customs to release imported merchandise, but recites the conditions upon which merchandise may be released. Indeed, section 142.19(b)(2) says that merchandise “shall not be released” unless
Customs “determines that the merchandise may be admitted into the commerce of the United States.”
Section 499 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1499 (1982), provides in part:
Imported merchandise,
required by law or regulations made in pursuance thereof to be inspected, examined, or appraised,
shall not be delivered from customs custody,
except under such bond or other security as may be prescribed by the Secretary of the Treasury to assure compliance with all applicable laws, regulations, and instructions which the Secretary of the Treasury or the Customs Service is authorized to enforce
until it has been inspected, examined, or appraised and is reported by the appropriate customs officer to have been truly and correctly invoiced and found to comply with the requirements of the laws of the United States
[emphasis added].
See United States v. Garber,
626 F.2d 1144, 1155 (3d Cir.1980) (“customs custody of imported goods continues until the merchandise has been inspected, found to be correctly invoiced, and found to otherwise comply with the laws of the United States”). Customs regulations require that Customs hold imported merchandise until it has been examined.. 19 C.F.R. §§ 142.3, 142.7 (1986).
Defendants allege that Customs has not completed its inspection of the merchandise, and that there are conflicting claims to the imported property. The Central Bank of the Philippines has commenced an action in the United States District Court for the District of Hawaii seeking return of the currency.
Republic of the Philippines v. Marcos,
Civ. No. 86-0155 (D.Haw.). On March 14, 1986, the United States filed a motion to intervene, to file an answer, and a counterclaim in the nature of an inter-pleader in that action, in which the United States requests the District Court to determine the lawful owner of the currency and other merchandise currently in the possession of Customs. The Republic of the Philippines and the Asian and Pacific Affairs Subcommittee of the Foreign Affairs Committee of the House of Representatives have formally requested copies of all documents brought into the United States by Mr. Marcos and his party.
The purpose of both these requests is, in part, to investigate conflicting claims with respect to the ownership of the property claimed by plaintiffs.
Plaintiffs claim that
Fonseca v. Regan,
734 F.2d 944 (2d Cir.1984), supports their position that Customs must relinquish the property to them. In that case, plaintiff Fonseca sought to recover possession of a suitcase containing $250,000 misdirected to a New York airport from Bogota, Colombia. Plaintiff had no intent to enter the merchandise into the United States, nor did the United States “demonstrate any color-able claim adverse to that of Fonseca, or
even the presence of a legitimate individual claimant.”
Id.
at 950. In this action the property was submitted to Customs custody for entry into the United States, and there are claims adverse to plaintiffs.
Plaintiffs say Customs would be without authority to hold property even in a case where it believed the property was stolen outside the United States and entered in violation of 18 U.S.C. § 2314 (1982).
For the reasons stated above, the Court finds no support for this view.
Plaintiffs also contend that Customs refusal to return the property to plaintiffs violates their rights under the fourth and fifth amendments to the Constitution, and to privacy.
The Court finds there is little likelihood of success with respect to plaintiffs’ fourth amendment claim. There is no fourth amendment interest with respect to information voluntarily given to a government agency; such information cannot be subject to unreasonable search and seizure.
See Couch v. United States,
409 U.S. 322, 335, 93 S.Ct. 611, 619, 34 L.Ed.2d 548 (1973).
Plaintiffs’ claim of deprivation of property without due process in violation of the Fifth Amendment is premature. Plaintiff cites as authority
United States v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in United States Currency,
461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983). In that case the Supreme Court applied a four-part test to determine if the length of time between seizure of property at the border and the initiation of legal process to determine rights in the property violated due process: length of delay, the reason for the delay, assertion of the claimant’s right to recover the property, and prejudice to the claimant.
Here, the government has held the property less than three weeks. .As stated
supra,
Customs says it has not finished inspecting the property, and that there are substantial indications of conflicting claims to the property. Plaintiffs have made only the barest allegation of prejudice in being deprived of use of the property.
See United States v. Von Neumann,
— U.S. -, 106 S.Ct. 610, 88 L.Ed.2d 587 (1986).
Plaintiffs present no authority, and the Court finds none, which compels Customs to release the imported merchandise to plaintiffs. The Court holds that plaintiffs have no likelihood of success, at the present time, on their mandamus claim.
2. The Privacy Claim to Enjoin Customs from Releasing Copies of the Property to Third Parties
Turning to plaintiffs’ claims that their constitutional privacy rights are violated if Customs releases copies of the property to third parties, the question before the Court is whether plaintiffs assert a constitutionally protected interest in the property. Plaintiff Azurin asserts only that he executed a currency declaration form. Plaintiff Araneta alleges that he executed the entry as an “attorney-in-fact.”
“Ordinarily, one may not claim standing ... to vindicate the constitutional rights of
some third party.”
Barrows v. Jackson,
346 U.S. 249, 255, 73 S.Ct. 1031, 1034, 97 L.Ed. 1586 (1952). Plaintiffs make no claim that there is some “genuine obstacle” to the third party’s assertion of its own rights,
Singleton v. Wulff,
428 U.S. 106, 114-16, 96 S.Ct. 2868, 2874-75, 49 L.Ed.2d 826 (1976), or that the privacy rights of the third party would be “diluted or adversely affected” should that party appear.
Cf. Griswold v. Connecticut,
381 U.S. 479, 481, 85 S.Ct. 1678, 1680, 14 L.Ed.2d 510 (1962).
Plaintiffs do not provide any reason other than “convenience” why the party-in-interest, Mr. Marcos, is not a plaintiff in this action.
The Court holds that since the plaintiffs have not asserted any ownership in the property or that they have any personal privacy right that is threatened with violation by Customs, and since they have not shown that they are entitled to assert the constitutional rights of third parties,
there is little likelihood that they will succeed on their claim seeking to enjoin release of copies or originals of documents.
The Public Interest and the Balance of Hardships
Defendants argue that “[i]f the United States reneges on its promise to the new Philippine Government of President Aquino to release to a specially established Philippine commission copies of thése documents for purposes of their examination. and investigation, the foreign relations of this country with an important and strategically critical Far Eastern nation may be adversely affected.”
In support of that claim defendants submitted an affidavit by Michael H. Armacost, Under Secretary of State for Political Affairs, describing the importance and extent of the relationship between the Philippines and the United States, the profound changes which have recently occurred in the Philippines, and the importance to the foreign policy of the United States to fulfill the nation’s pledge to assist the Aquino government in its investigation of the Marcos assets.
Inherent in plaintiffs’ argument is the claim that the public interest is better served by protecting their asserted constitutional privacy rights than by disclosing copies of the documents to third parties.
The Court recognizes that there may be circumstances in which the public interest requires that constitutional rights of individuals outweigh foreign policy concerns. However, since the Court finds that plaintiffs’ constitutional rights are not threat
ened and that plaintiffs may not assert the constitutional rights of a third party, the Court holds that the public interest would be best served by denying the motion.
In view of the Court’s- finding that each of the above factors favors denial of the motion, the balance of the equities weighs in favor of defendants.
The motion is denied. So ordered.