USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1332

STARLIGHT SUGAR, INC., ET AL.,

Plaintiffs - Appellees,

v.

NEFTALI SOTO, INDIVIDUALLY AND

AS SECRETARY OF THE DEPARTMENT
OF AGRICULTURE OF THE
COMMONWEALTH OF PUERTO RICO,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. P rez-Gim nez, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Coffin, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________

_____________________

Edgardo Rodr guez-Quilichini, Assistant

_____________________________
Department

of

Justice,

with whom

Solicitor General,

Carlos Lugo-Fiol, Solicitor

_________________

General, and Edda Serrano-Blasini, Deputy Solicitor General, were

____________________
on brief for appellant.

Marcos A. Ram rez-Lavandero,

____________________________
Ram rez,
_______

with

Janice M. Guti rrez-Lacourt

_____________________________

whom Eduardo A. Vera__________________

and

Marcos A. Ram rez

___________________

Lavandero & Associates were on brief for appellees.

______________________

____________________

May 30, 1997

____________________

TORRUELLA, Chief Judge.

TORRUELLA, Chief Judge.

The Department of Agriculture

___________

of

the

Commonwealth

of

Puerto

Rico

urges

us

to

vacate

preliminary injunction issued on December 21, 1995 that

bars the

enforcement of Section Six of its Market Regulation 13.1

Section

Six prohibits the importation into

intended

for consumer sale that

five pounds or less.

Puerto Rico of refined

is not prepackaged

sugar

in units of

The district court held that the regulation

violated the Commerce Clause in its "dormant" state and the Equal

Protection

Clause

importers had

and

also

found

that

met all of the grounds

the

plaintiff

sugar

for preliminary injunctive

relief.

Under our

grant or denial of

four-part test for

determining whether

the

preliminary injunctive relief is appropriate,

the district court must consider:

(1)

the

likelihood

of success

on

the

merits; (2) the potential for irreparable

harm if the injunction is denied; (3) the
balance

of

relevant impositions,

i.e.,

the hardship to the nonmovant if enjoined

as

contrasted with

movant if

the hardship

no injunction issues;

to the
and (4)

____________________

Section VI of

Regulation 13 of the Puerto Rico

Department of

Agriculture provides in pertinent part:

A.
Rico

Refined sugar
shall

to be imported

come in

consumer

in Puerto

size packages

inside the corresponding shipping containers.

For

the

purposes

consumer

size

of

package

this
is

Regulation
one

whose

a
net

content does not exceed five (5) pounds.

B.

industrial

Imported

use

shall

consumer-size

packages

the consumers.

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refined
not

be

sugar

for

repacked

in

for direct

sales to

the effect (if any) of the court's ruling

on the public interest.

Ross-Simons of Warwick, Inc.

____________________________

(1st

Cir.

1996).

On

v. Baccarat, Inc., 102 F.3d

______________

appeal,

the

standard

of

12, 15

review

is

deferential, and we have said that "unless the appellant can show

that

the lower

palpable

court

abuse of

misapprehended

discretion,

the

the court

law or

of

committed

appeals will

not

intervene." Id. at 16.

___

Upon careful consideration of the briefs, arguments

counsel, and

the

record

in this

discretion and no error of law,

the

sound

opinion.

reasons provided

See
___

in

case,

we find

no

abuse

of

of

and therefore affirm in light of

affirm
______

the

Starlight Sugar, Inc.

_____________________

district court's

v. Soto, 909
____

thorough

F. Supp. 853

(D.P.R. 1995).

We

likelihood

only note

of success

the

on

following.

the merits,

strongly supports the position

The

Department of

Clause

Agriculture

With respect

Commerce Clause

to

the

caselaw

of the plaintiff sugar importers.

asks that

the dormant

Commerce

balancing test put forward in Pike v. Bruce Church, Inc.,

____
__________________

397 U.S. 137, 142 (1970), be applied to Section Six, and it seems

to

acknowledge

Section

that for

Six as

Pike
____

an evenhanded

to apply,

it

regulation

that imposes

incidental burden on interstate commerce.

not such a creature.

state

law

or

purpose

the

only an

Section Six is plainly

As the district court properly found, where

regulation,

discriminates against

must characterize

such

as

Section

interstate commerce,

protection of

local

-3-

economic

Six,

facially

and has as

its very

interests, it

must

withstand the most stringent form of scrutiny under the

Clause.

See, e.g.,
___ ____

114 S. Ct.

West Lynn Creamery v.

__________________

2205, 2211-13

(1994).

Under

Commerce

Healy, ___ U.S.

_____

such strict

___,

scrutiny,

facially discriminatory regulations are presumptively invalid and

are "routinely struck

down," unless

serve

local

legitimate

protectionism"

served

through

-- an

it can be

interest

interest,

shown that

"unrelated

furthermore,

non-discriminatory means.

to

restriction as

appellants

can

(1986) (upholding

necessary to

only justify

economic

that cannot

be

New Energy Co.

_______________

v.

Limbach, 486 U.S. 269, 274 (1988); see also Maine v.

_______
________ _____

U.S. 131, 138

they

Taylor, 477
______

facially discriminatory

import

protect in-state wildlife).

Here,

their

restriction

of bulk

sugar

importation and subsequent packaging for consumer sale by listing

the various

itself.2

local benefits

attendant to economic

"[W]here simple economic protectionism

protectionism

is effected by

state legislation, a virtually per se rule of invalidity has been

______

erected."

City of Philadelphia v. New Jersey, 437

____________________
__________

U.S. 617, 624

(1978).

The district court also did not abuse its discretion in

finding the potential for irreparable harm.

861-62.

The

district

court found

that

See 909 F.
___

Supp. at

irreparable harm

was

____________________

Appellants concede that Section Six has provided a competitive

advantage

to the Puerto

only existing refinery

Six, appellants

Rico sugar corporation,

in Puerto

cite such local

Rico.

In

which owns the

support of

interests as the

Section

protection of

jobs in the Puerto Rico sugar industry, the preservation of rural

culture associated
certain

with sugar production, and

demographic changes

workers from rural

areas to

(the movement

the prevention of

of unemployed

urban areas) that

sugar

may result

were

unfettered interstate competition allowed.

-4-

threatened by

the inability of the plaintiff

sugar importers to

take advantage of an impending shortage of sugar supply in Puerto

Rico.

The Department of Agriculture argues that a potential harm

cannot be deemed

"irreparable" if it

is of a

kind that can

be

later compensated through money

injunctive

damages.

While it is

true that

relief is generally inappropriate where money damages

can make a plaintiff whole, we have recognized that the loss of a

unique

or

fleeting

irreparable injury.

837,

853 (1st

business

opportunity

constitute

See Hyde Park Partners v. Connolly, 839 F.2d

___ __________________
________

Cir. 1988) (injunction

timing, in tender offer context,

102 F.3d at 18-19

can

may be

appropriate where

is crucial); see also Baccarat,

________ ________

("[A] plaintiff need not demonstrate

that the

denial of injunctive relief will be fatal to its business.

If [it]

suffers

measurable
__________

or

irreparable

harm

(emphasis added).

a substantial

adequately

is

injury

that is not accurately

________________________

compensable

a natural

. . .

sequel.")

by

money

(citations

damages,

omitted)

The concern in the present situation is clear:

although we

context

remain in the domain

in

which

compensation

preferred,

as

a practical

evanescent

business opportunity

measure, after the

of economic profit

fact.

through

matter

the

may be

The district

legal

or loss, a

remedies

potential value

extremely

of

is

an

difficult to

court did not abuse

its

discretion, therefore, in finding that plaintiffs were threatened

with irreparable harm through

the ongoing enforcement of Section

Six.

Affirmed.
Affirmed
________

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