Slip Op. 00 - 34

 UNITED STATES COURT OF INTERNATIONAL TRADE

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WARNER-LAMBERT COMPANY, :

 

 Plaintiff, : 

 

 v. : Court No. 00-01-00001

 

 :

THE UNITED STATES; AMERICAN MOTORISTS 

INSURANCE COMPANY and C.A. SHEA & COM-:

PANY, 

 :

 Defendants. 

 : 

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 Memorandum

[Application(s) for preliminary injunction denied;

 motion of defendant United States to dismiss granted.]

 Decided: April 4, 2000

Rode & Qualey (Patrick D. Gill and Eleanore Kelly-Kobayashi)

for the plaintiff.

David W. Ogden, Acting Assistant Attorney General; Joseph I.

Liebman, Attorney in Charge, International Trade Field Office,

Commercial Litigation Branch, Civil Division, U.S. Department of

Justice (James A. Curley); and Office of Assistant Chief Counsel,

U.S. Customs Service (Jeffrey E. Reim), of counsel, for defendant

United States.

Grunfeld, Desiderio, Lebowitz & Silverman LLP (Edward B. Ackerman, Laurence M. Friedman and Michael T. Cone) for defendant

American Motorists Insurance Company.

Law Offices of Michael P. O'Connor (Michael P. O'Connor) for

defendant C.A. Shea & Company.

AQUILINO, Judge: The plaintiff commenced this action

with the simultaneous filing of a summons and complaint, plus 

an application for a temporary restraining order and preliminary 
Court No. 00-01-00001 Page 2

1 Memorandum in Support of Motion for a Preliminary Injunction, pp. 1-2 (emphasis in original).

injunction, averring, among other things, that the U.S. Customs

Service had recently

threatened to impose sanctions against plaintiff 

which would include, inter alia, the loss of immediate delivery privileges for all merchandise 

imported into the United States. Such action 

would have a detrimental impact on the company, 

one of the largest pharmaceutical manufacturers 

in the United States and the world. As is attested to in . . . the affidavit . . . attached to 

the Application for a Temporary Restraining Order 

and Order to Show Cause . . ., the imposition of 

sanctions is imminent.1

Government counsel were afforded an immediate opportunity to

dispel the actuality of such a threat. When they proved, at

first blush, unable to do so, this court granted the requested

temporary restraining order, which the government then formally moved to extend, pending presentation of all the facts and

circumstances underlying this action and its resolution by the

court.

I

At its commencement, the plaintiff purported to be in

the middle of an "ongoing dispute" with Customs over the proof

necessary to satisfy the Service that pharmaceuticals imported

for clinical and laboratory testing under subheading 9813.00.30

of the Harmonized Tariff Schedule of the United States had been

exported or destroyed so as to satisfy the conditions of the
Court No. 00-01-00001 Page 3

2 Id. at 1. American Motorists Insurance Company ("AMICO")

and C.A. Shea & Company have been alleged to be plaintiff's

surety and its agent, respectively, and to be indispensable 

to maintenance of the status quo herein, ergo their impleading 

as parties defendant and coverage by the requested injunctive 

relief.

bond(s) posted in regard thereto.2 The verified complaint posits

administrative cases 1996-3801-02071401, 1997-3801-00350501,

1998-3801-20027401, 1998-3801-20028001, 1998-3801-20045401, 

1998-3801-20078601, 1998-3801-20102601, 1998-3801-20146601, 

1998-3901-20099101, 1998-3801-20254401, 1998-3801-20222901, 

1998-3801-20289201, 1999-2304-20109801, 1999-4601-20208501, and 

1999-3801-20235801 as involving claims for liquidated damages

against the plaintiff.

At the hearing held in open court on plaintiff's application for a preliminary injunction, the government presented

evidence as to each of the afore-numbered matters, essentially

via Customs Service Fines, Penalties & Forfeitures officers

("FPFO") from the ports of Detroit, Michigan and Laredo, Texas. 

The former considers the cases bearing the eight-digit suffixes

00350501, 20099101, 20254401, 20289201 and 20208501 to be closed. 

See Declaration of Darrell E. Woodard, paras. 10, 34, 17, 19, 

35. With regard to those matters partially numbered 20078601,

20102601, 20222901 and 20235801, it is reported that Customs 

had claimed liquidated damages in each,

alleging a breach of a [Temporary Importation Bond or]

TIB . . . due to Warner-Lambert's failure to 1) export

or destroy the imported merchandise prior to expira-
Court No. 00-01-00001 Page 4

3 Declaration of Darrell E. Woodard, para. 21.

4 See id., para. 9 and U.S. Defendant's Exhibit B-2; para.

11 and U.S. Defendant's Exhibit C; para. 12 and U.S. Defendant's

Exhibit D; para. 13 and U.S. Defendant's Exhibit E.

tion of the bond period, and/or 2) provide timely proof

to Customs [in regard thereto3,]

that the plaintiff importer has filed petitions for relief

therein, and that the Service has yet to resolve any of them. 

See id., paras. 14, 15, 18, 20, 25. In matter 20146601, involving a claim for $4,080.00, a petition was filed, which led 

to reduction of that amount to $100, albeit as yet unpaid by 

the plaintiff and thereby deemed delinquent by Customs. See

id., para. 16. Petitions were also filed in cases 02071401,

20027401, 20028001 and 20045401. Each was denied, and the

Service takes the position that liquidated damages are due and

owing.4 

Finally, according to the Laredo FPFO, the bond period 

in matter 20109801

expired on January 19, 1999. Warner-Lambert and AMICO

have submitted no documentation to Customs to cancel

this bond nor . . . petitioned for relief. This claim

is now considered delinquent.

Declaration of Charles E. Dickinson, para. 8. Nonetheless, this

declarant further swears as follows:

10. The claim referenced in paragraph 8 above has not

been referred to the Department of Justice for initiation of collection actions.

* * *

12. To date, importer sanction proceedings have not

been initiated by Customs in connection with this de-
Court No. 00-01-00001 Page 5

5 Id., para. 33. Nevertheless, the plaintiff has brought 

to the court's attention that, just prior to this declaration 

and its submission at the hearing, a Customs Notice of Penalty 

or Liquidated Damages Incurred and Demand for Payment had indeed

issued to AMICO on Form 5955A in the amount of $28,912.96 for 

case 1998-3801-20102601. On the other hand, letters from government counsel and Mr. Woodard dated March 3 and 6, 2000, respectively, advise that the aforesaid demand in the latter's name had

been "sent in error" and thus been rescinded. Cf. Defendant AMICO's Answer and Counterclaim, para. 44 and Exhibit C. 

linquent claim. In that regard, notification of proposed sanctions has not been issued to Warner-Lambert. 

In addition, importer sanctions will not be initiated

in the future in connection with this claim.

13. As FPFO for the Port of Laredo, I have not initiated surety sanction procedures against AMICO in

connection with the delinquent claim referenced in

paragraph 8 above. Specifically, a "Preliminary Show

Cause" notification has not been issued to AMICO in

connection with this delinquent claim.

Id., paras. 10, 12, 13. 

The Detroit FPFO makes similar representations with

regard to the five numbered claims, supra, deemed now delinquent

by him, e.g.:

To date, importer sanction proceedings have not been

initiated by Customs in connection with these five

claims. In that regard, notification of proposed

sanctions . . . has not been issued to Warner-Lambert.

In addition, importer sanctions will not be initiated

in the future in connection with these five claims.

Declaration of Darrell E. Woodard, para. 30(f). As for the

surety, he declares:

. . . I have not initiated [] surety sanction procedures against AMICO . . . in connection with the five

delinquent claims referenced . . . above. Specifically,

a "Preliminary Show Cause" notification . . . has not

been issued to AMICO in connection with these five delinquint claims.5
Court No. 00-01-00001 Page 6

6 The court notes in passing that defendant AMICO has interposed an answer to plaintiff's complaint alleging, among other 

things:

50. It is beyond dispute that Customs has demanded payment from AMICO on the bonds.

51. It is beyond dispute that Warner-Lambert

executed [an] indemnification agreement whereby it

promised to post collateral security upon proof of a

demand by Customs.

52. Warner-Lambert's challenge to Customs' demand

has no bearing on determining Warner-Lambert's obligation to place sufficient funds with AMICO, as it is 

irrelevant whether Warner-Lambert believes AMICO will

ultimately be liable for the demands asserted by Customs. In fact, it is this very uncertainty which the

collateral security clause is meant to address.

* * *

56. The language of the indemnity agreement is

clear and unequivocal: Warner-Lambert is required to

indemnify AMICO for "any and all liability, claim, demand, loss, damage, expense, cost and attorney's fees

which it shall at any time incur by reason of its execution of any bond or its payment of or its liability

to pay any claim . . ." (emphasis added).

Whereupon AMICO prays for entry of judgment in its favor, while

at the same time joining in plaintiff's application for a pre-

(footnote continued)

Given these representations on the record, the court 

no longer can discern the kind of threat of immediate, irreparable injury necessary to grant or to sustain the extraordinary

equitable relief that is a temporary restraining order or preliminary injunction. And this and other courts have long held

that failure to show such threat is ground itself to deny that

relief, whatever an applicant's showing with regard to likelihood of success on the merits, the public interest, and the

balance of harm among the parties6. See, e.g., American Steve-
Court No. 00-01-00001 Page 7

liminary injunction against Customs -- drawn to protect its interests as surety. It states, in part, that this

measure is warranted because it will relieve AMICO of

the threat of irreparable economic harm if it is sanctioned, as well as the threat of a lengthy and costly

administrative proceeding, the existence and outcome 

of which could be highly prejudicial to the company's

business and reputation.

Defendant AMICO's Response to Plaintiff's Motion for a Preliminary Injunction, p. 4. But economic injury is not necessarily

"irreparable". See, e.g., American Stevedoring, Inc. v. U.S.

Customs Service, 18 CIT 331, 335, 852 F.Supp. 1067, 1071 (1994),

citing Sampson v. Murray, 415 U.S. 61 (1974); Wisconsin Gas Co.

v. Federal Energy Regulatory Comm'n, 758 F.2d 669 (D.C. Cir.

1985); Arbor Foods, Inc. v. United States, 8 CIT 355, 600 F.Supp.

217 (1984).

The answer filed on behalf of defendant C.A. Shea & Company

avers that the plaintiff has failed to state a claim upon which

relief can be granted since the company is not a proper party to

this action. That is, the company's executive vice-president attests that, contrary to plaintiff's pleadings, C.A. Shea is not

an agent of AMICO and "does not sign, execute or bind and bond 

on behalf of any surety company." Affidavit of Lee V. Barther,

paras. 3, 4. See Defendant AMICO's Response to Plaintiff's Motion for a Preliminary Injunction, p. 9 ("AMICO has no objection

to C.A. Shea & Company being dismissed from the instant action").

doring, Inc. v. U.S. Customs Service, 18 CIT 331, 335, 852 F.

Supp. 1067, 1071 (1994), and cases cited therein.

II

In addition to opposing injunctive relief, the government has interposed a motion to dismiss the complaint on the

grounds of lack of subject-matter jurisdiction, mootness, and

failure to exhaust administrative remedies. 

Of course, matters that are moot do not entail any live

case or controversy within the meaning of Article III of the U.S.

Constitution, leaving federal courts organized thereunder with no
Court No. 00-01-00001 Page 8

7 See, e.g., Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d

1573, 1580 (Fed.Cir. 1993), cert. denied, 512 U.S. 1235 (1994). 

Administrative case 1998-3801-20146601, mitigated to the as-yetunpaid $100, implicates another well-established principle, namely, de minimis non curat lex. See, e.g., Wisconsin Dep't of Revenue v. Wm. Wrigley, Jr., Co., 505 U.S. 214, 231-32 (1992); United States v. Cavalier Shipping Co., 60 CCPA 152, C.A.D. 1103,

478 F.2d 1256 (1973).

authority to act in regard thereto. See generally Warth v. Seldin, 422 U.S. 490 (1975), and cases cited therein. According to

the record now developed herein, the administrative cases numbered 1997-3801-00350501, 1998-3901-20099101, 1998-3801-20254401,

1998-3801-20289201, and 1999-4601-20208501 are apparently closed

and thus moot.

On the other hand, the report of Customs at bar is 

that the matters numbered 1998-3801-20078601, 1998-3801-20102601, 

1998-3801-20222901, and 1999-3801-20235801 involve petitions

still under active agency consideration, which status implicates 

the constitutional doctrine of ripeness under Article III. That

is, in general, only ripe matters should be heard and decided 

by federal courts.7 Indeed, Congress, in the exercise of its

authority under that article, has provided in its Customs Courts

Act of 1980 that, in an unspecified action like this, "the Court

of International Trade shall, where appropriate, require the 

exhaustion of administrative remedies." 28 U.S.C. §2637(d). As

has been pointed out, the purpose of this authority

is to protect courts from premature involvement in

administrative proceedings, and to protect agencies

"from judicial interference until an administrative

decision has been formalized and its effects felt in 

a concrete way by the challenging parties."
Court No. 00-01-00001 Page 9

Intercargo Ins. Co. v. United States, 19 CIT 1435, 1437, 912 F.

Supp. 544, 546 (1995), aff'd, 129 F.3d 135 (Fed.Cir. 1997), quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49 (1967).

In light of the record now established, the court 

finds it appropriate that the plaintiff be required to exhaust

fully its administrative remedies. The finding applies to all

those aforenumbered matters not administratively moot or judicially ripe, which leaves only cases numbered 1996-3801-02071401,

1998-3801-20027401, 1998-3801-20028001, 1998-3801-20045401, and

1999-2304-20109801 open for any further discussion, given the

representations, supra, that Customs considers the claims therein due and owing. In fact, plaintiff's application for injunctive relief itself

concedes that the claim made in . . . Case No. 1999-

2304-20109801[] was properly made because the material

was not exported or destroyed within the required time. 

The liquidated damages in the amount of $11,046.58 is

[sic] being tendered to Customs.

Affidavit of Thomas Czubak, para. 13. See Plaintiff's Complaint,

para. 15. With regard to the other four matters, the primary concern, as sworn to by the plaintiff in its complaint, is stated to

be as follows:

30. The imposition of sanctions on plaintiff

while the challenge to the liquidated damages asessments are [sic] pending in the Court of International

Trade would have a severe disruptive effect on plaintiff's importing operations and testing facilities.

31. Plaintiff is one of the largest pharmaceutical manufacturers in the United States, and the world, 
Court No. 00-01-00001 Page 10

8 The court notes in passing that one of plaintiff's ethical pharmaceutical products singled out in its motion papers 

as possibly threatened by the government, namely, Rezulin® (troglitazone), is now being removed from the market, albeit on

grounds not related hereto. See F.D.A. Withdraws Drug for Diabetics, Citing Health Risks, N.Y. Times, March 22, 2000, at A1,

col. 1.

and must be able to promptly and efficiently test experimental drugs on a continuing basis; the imposition

of sanctions would have a detrimental impact on all of

plaintiff's entries, which number in the thousands annually.

32. The imposition of sanctions against plaintiff

would interrupt the continuing manufacturing and supply

of its pharmaceutical and non-prescription drug products and potentially limit or prevent their availability to patients and consumers who use them.

See Affidavit of Thomas Czubak, paras. 26-28. See also id.,

paras. 5, 16; Plaintiff's Complaint, paras. 5, 6. But Customs

now denies any intent to seek sanctions8 as to the claims deemed 

delinquent. See Declaration of Darrell E. Woodard, para. 30(f),

supra.

This disclaimer thus raises the necessary question as

to what, if any, actionable injury is being suffered by the

plaintiff, which like any other federal complainant, must allege

"personal injury fairly traceable to the defendant's allegedly

unlawful conduct and likely to be redressed by the requested

relief." Allen v. Wright, 468 U.S. 737, 751 (1984), citing Valley Forge Christian College v. Americans United for Separation

of Church and State, Inc., 454 U.S. 464, 472 (1982). See Friends

of the Earth, Inc. v. Laidlaw Environmental Servs. (TOC), Inc.,

120 S.Ct. 693, 704 (2000):
Court No. 00-01-00001 Page 11

In Lujan v. Defenders of Wildlife, 504 U.S. 555,

560-561 . . . (1992), we held that, to satisfy Article

III's standing requirements, a plaintiff must show (1)

it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent,

not conjectural or hypothetical; (2) the injury is

fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely

speculative, that the injury will be redressed by a

favorable decision.

Here, this court cannot, and therefore does not, conclude that

the plaintiff now satisfies these requirements for proceeding

with this action. Cf. Intercargo Ins. Co. v. United States, 19

CIT 1435, 912 F.Supp. 544 (1995), aff'd, 129 F.3d 135 (Fed.Cir.

1997).

Of course, this conclusion does not leave WarnerLambert without any judicial remedy. Indeed, as the plaintiff

itself points out, in United States v. Utex Int'l Inc., 857 F.2d

1408, 1414 (Fed.Cir. 1988), the court held that it was unnecessary for a surety to pay liquidated damages and then file a protest thereof under 19 U.S.C. §1514 before defending itself in a

collection action brought against it by Customs pursuant to 28

U.S.C. §1582. That is, as subsequently explained in United

States v. Toshoku America, Inc., 879 F.2d 815, 818 (Fed.Cir.

1989), proof that an importer has complied with the terms and

conditions of its bond "has traditionally been and still remains

a complete defense to a collection suit brought on the bond",

with the court of appeals professing to have held in Utex that

"an assessment of liquidated damages is not a 'charge or exac-
Court No. 00-01-00001 Page 12

9 The court notes in passing that, while this dismissal 

is not based upon lack of subject-matter jurisdiction under 28

U.S.C. §1581(i), which issue the court has not found necessary 

to reach herein, when a main action is dismissed, ancillary

claims without an independent basis of jurisdiction, which is 

the case here, also fail. See, e.g., Old Republic Ins. Co. v.

United States, 14 CIT 377, 741 F.Supp. 1570 (1990). Cf. 6 Wright

& Miller, Federal Practice §1433 (1990).

tion' that must be challenged by protest under 19 U.S.C. § 

1514". 

III

Whether or not the grant of temporary equitable relief

to date has aided in sorting out the parties' differences, or

allayed genuine concerns the plaintiff may have had with regard

to its enumerated experimental cases and its worldwide business, 

the court in the light of the foregoing facts and circumstances

is required now to deny the application(s) for a preliminary

injunction and to grant the U.S. defendant's motion to dismiss

plaintiff's complaint. Judgment will enter, dismissing this

action in its entirety.9

Decided: New York, New York

 April 4, 2000

 ________________________________

Judge