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Swank, Inc. v. Harry Carnes, District Director, United States Custom Service, 856 F.2d 1481, 11th Cir. (1988)
Swank, Inc. v. Harry Carnes, District Director, United States Custom Service, 856 F.2d 1481, 11th Cir. (1988)
2d 1481
10 ITRD 2058, 8 U.S.P.Q.2d 1448
I.
The United States Customs Service appeals a judgment by the district court
ordering it to disclose certain documents to appellee.1 Because the complaint
filed by appellee does not state a claim against the Customs Service, we vacate
the district court's order and remand with instructions to dismiss.
In February 1988 the United States Customs Service informed Swank of a large
shipment of toiletries which allegedly bore the "Royal Copenhagen" trademark
unlawfully. Swank subsequently learned that the shipment was released to the
importer. Because neither Swank nor the trademark owner authorized the
shipment, Swank asked the Customs Service to disclose the importer's name
and to release certain shipping documents. Swank also asked the Customs
Service to allow Swank to examine samples of the goods retained by the
Customs Service. When the Customs Service refused to comply with the
request, Swank instituted this proceeding.
In the complaint Swank alleges that "[i]f such merchandise was not
manufactured in the United States by or on behalf of Swank, such importation
... would violate the Lanham Act ... and would further constitute importations
contrary to law...." To determine whether its rights under the Lanham Act, 15
U.S.C. Secs. 1051-1127, are being violated, Swank asked the court to issue a
preliminary injunction ordering the Customs Service to deliver samples of the
goods and copies of documents indicating the identity and location of the
importer and exporter. After a hearing the district court granted the requested
injunctive relief.
II.
6
The government's principal argument is that Swank should have sought access
to the agency records under the Freedom of Information Act ("FOIA"), 5
U.S.C. Sec. 552. The government contends that FOIA provides the sole basis
for granting Swank a right to obtain the requested information. The government
maintains that Swank's failure to exhaust administrative remedies requires the
court to dismiss the action for lack of subject matter jurisdiction.
7
Swank has failed to identify any statute which gives it a private cause of action
against the United States to obtain the requested information.2 Swank asserts
that it may have causes of action for trademark infringement under the Lanham
Act and for other common law torts. Swank reasons that because the court
would have jurisdiction over any litigation between Swank and those
responsible for the shipment, the district court has the power to order injunctive
relief pursuant to the All Writs Act.
Swank's reliance on the All Writs Act is misplaced. The Act permits a federal
court to issue all "writs necessary to the preservation or exercise of its subject
matter jurisdiction." ITT Community Dev. Corp. v. Barton, 569 F.2d 1351,
1359 (5th Cir.1978); see Pennsylvania Bureau of Correction v. United States
Marshals Serv., 474 U.S. 34, 40-41, 106 S.Ct. 355, 360, 88 L.Ed.2d 189 (1985).
The Act, however, does not create a substantive right of action against the
United States. Absent a substantive right conferred by Congress and
enforceable against the United States, the district court has nothing over which
to exercise its jurisdiction. We therefore hold that the district court did not have
the authority under the All Writs Act to issue the preliminary injunction
ordering the Customs Service to comply with Swank's request. Accordingly,
the district court's decision is
10
Because Harry Carnes, the named defendant in this case, is sued in his official
capacity as the District Director of the United States Customs Service, we will
refer to appellant as either the Customs Service or the government
Both parties refer to the provisions in 19 U.S.C. Sec. 1431 for the public
disclosure of certain shipping information. While this statute permits manifest
information to be available for public disclosure in certain instances, the statute
does not give private parties a right to sue the government for the failure to
disclose the information