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NEAL-COOPER GRAIN CO. v. KISSINGER

October 11, 1974

NEAL-COOPER GRAIN COMPANY, and ALBERT LOUIS HASTINGS, Plaintiffs,
v.
HENRY A. KISSINGER, Individually and As Secretary of State of the United States; and WILLIAM E. SIMON, Individually and as Secretary of the Treasury of the United States; and VERNON D. ACREE, Individually and as Commissioner of Customs of the United States, Defendants



The opinion of the court was delivered by: GASCH

 This is an action seeking mandamus and injunctive relief against Henry A. Kissinger, individually and as Secretary of State; William E. Simon, individually and as Secretary of the Treasury; and Vernon D. Acree, individually and as Commissioner of Customs of the United States. It seeks to prevent disclosure by the Customs Service of certain information to the Mexican Government. The matter is now before the Court on plaintiffs' motion for a preliminary injunction. Plaintiffs' motion for a temporary restraining order was previously denied by the Motions Judge of this Court. *fn1"

 THE FACTS

 Plaintiffs assert that the information provided to the Customs Service is confidential because it contains commercial or financial information or relates to trade secrets, processes, operations, style of work, identity, confidential statistical data, amount or source of income and profit, loss and expenditure. Plaintiffs contend that this data is protected from disclosure by 18 U.S.C. § 1905 (1970) *fn3" and by 19 C.F.R. § 103.10(c), (d), (g). *fn4" They claim that dissemination of this information to other persons or organizations is prohibited.

 The Customs Service, however, has released some of this information to officers or agents of the Government of Mexico. *fn5" The Government states that this disclosure was undertaken in response to a request from Mexican authorities made pursuant to an informal information-exchange agreement concluded at meetings between high officials of the Customs Services of the United States and Mexico. *fn6" At the hearing it developed that this agreement was not embodied in a formal treaty or other international agreement, although it may have been reduced to written form. *fn7"

 In response to the motion for preliminary injunction, the Government filed an opposition and a motion to dismiss the action, asserting a three-fold attack upon the claim. First, the Government says that the disclosure of the documents and information is not prohibited by law but is in fact authorized by the Freedom of Information Act. Second, it says that this release of information lies beyond the review of this Court since it occurs under an informal international agreement. The matter is thus one of foreign relations, and the foreign relations of the United States are entrusted solely to the Executive Branch. Third, the Government raises the defense of unclean hands, and alleges that it operates to bar all relief herein.

 THE MOTION TO DISMISS

 The Government motion to dismiss was filed and served upon the plaintiffs on the date of the hearing in this case. Plaintiffs were of course not prepared to respond to the motion at the hearing. The time specified by our Rules as that in which to file opposition to a motion has not yet elapsed. *fn8" In these circumstances, the Court would normally be unwilling to consider the motion to dismiss. *fn9" At argument the Government acceded to this position but pointed out that the Court could dismiss the matter sua sponte if it found that it had no subject matter jurisdiction owing to the involvement of foreign relations.

 It is true beyond peradventure that the conduct of our foreign relations is solely in the hands of the President. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319, 81 L. Ed. 255, 57 S. Ct. 216 (1936). This power extends, of course, to the making of treaties with the advice and consent of the Senate; *fn10" but it also extends to the making of international agreements which do not constitute treaties in the constitutional sense. *fn11" This agreement, however, was not made by the President but by representatives of the Customs Service. The question arises whether these representatives had the appropriate authority, delegated from the President, to conclude such an agreement. If they did not, then the accord in question may not constitute an international agreement in the legal sense. *fn12" Hence the situation here may not rise to the level of "foreign relations." In any event, the Court will reserve on the motion to dismiss in order to permit plaintiffs an opportunity to reply thereto.

 THE PRELIMINARY INJUNCTION

 A. Standard for a Preliminary Injunction.

 The Court comes now to the preliminary injunction. In considering this, the Court is guided by the standards set forth in Virginia Petroleum Jobbers Assoc. v. Federal Power Comm., 104 U.S.App.D.C. 106, 259 F.2d 921 (1958). There the Court of Appeals stated the four factors which should influence a court's determination of the propriety of extraordinary relief. These are: 1) whether the petitioner has made a strong showing that it is likely to prevail on the merits; 2) whether the petitioner has shown that irreparable harm would follow the denial of the relief requested; 3) whether the issuance of an injunction would substantially harm other parties interested in the proceedings; and 4) where lies the public interest. *fn13"

 B. Chance of Prevailing on the Merits.

 (1) The Freedom of Information Act.

 Turning first to the likelihood of plaintiffs' prevailing on the merits, it is the contention of plaintiffs that 18 U.S.C. § 1905 (1970) prohibits disclosure of information such as was furnished by them to the Customs Service unless such disclosure is otherwise authorized by law. They further contend that disclosure is prohibited by 19 C.F.R. § 103.10(c), (d), (g). *fn14" The Government contravenes this, saying that the Freedom of Information Act *fn15" ...


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