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BEHRING INTL., INC. v. MILLER

December 24, 1980

BEHRING INTERNATIONAL, INC., Plaintiff,
v.
G. William MILLER, Secretary of the Treasury of the United States of America, The Broad Street National Bank of Trenton, New Jersey, Richard P. Brown, Jr., Colonel A. Zarrabi, Robert W. Delventhal, and George A. Murphy, Co-Trustees, Defendants



The opinion of the court was delivered by: SAROKIN

This is an action in which plaintiff seeks a declaratory judgment and a writ of mandamus for the immediate release of $ 503,000.00. Plaintiff, Behring International, Inc. ("Behring"), is a Texas corporation authorized to do business in New Jersey. Defendant G. William Miller, the Secretary of the Treasury ("Secretary"), is authorized to carry out the provisions of the Iranian Assets Control Regulations. Included as defendants in this action are the Broad Street National Bank of Trenton and the individual trustees *fn1" of the account in which the subject money is being held.

FACTUAL BACKGROUND

 In August 1975, plaintiff Behring entered into a written agreement with the Imperial Iranian Air Force ("I.I.A.F."), presently known as the Islamic Republic Iranian Air Force ("I.R.I.A.F."). In that agreement Behring agreed to provide the I.I.A.F. with personnel and warehouse space at Behring's Edison, New Jersey warehouse facility to be used for receiving, repacking, palletizing, containerizing and storing I.I.A.F."s shipments. In September 1977, Behring entered into a second and separate agreement with the Iran Aircraft Industries ("I.A.C.I."), whereby plaintiff agreed to provide I.A.C.I. with substantially the same services provided for the I.I.A.F.

 As of January 31, 1979, I.I.A.F. owed Behring the sum of $ 390,474, and $ 631,744 was due Behring from I.A.C.I. for authorized warehousing services rendered and costs incurred and paid by Behring on behalf of I.I.A.F. to carriers for shipment of freight. On February 28, 1979, Behring filed a complaint and sought a temporary restraining order and order to show cause why a writ of attachment should not issue in federal district court. Behring alleged that the I.I.A.F. and I.A.C.I. had breached their respective agreements with Behring and sought compensatory, consequential and punitive damages, as well as an order restraining the I.I.A.F. and I.A.C.I. from removing any property from the jurisdiction of the court or the United States, or from cancelling a certain letter of credit issued in Behring's favor.

 After extensive litigation, including an appeal to the Third Circuit Court of Appeals, the parties entered into settlement negotiations and reached an agreement on November 7, 1979. The Settlement Agreement was designed to settle all claims between the parties arising out of the execution and performance of the agreement for freight forwarding services between the I.I.A.F., I.R.I.A.F. and Behring and any claims arising out of the execution and performance of the agreement for freight forwarding services between I.A.C.I. and Behring entered into in September 1977.

 The agreement provided that all materials were to be removed from the Edison warehouse prior to December 15, 1979; "if said materials (had) not been removed from the Edison warehouse prior to December 15, 1979, Behring (would) nevertheless receive all payments to which it (was) entitled under the Settlement Agreement unless such inability to remove them (was) caused or contributed to by the conduct of Behring." The agreement also provided that when the conditions of settlement had been either fulfilled, waived or satisfied,

 
and all I.R.I.A.F. and I.A.C.I. goods presently in the Edison warehouse have arrived at McGuire AFB on or before December 15, 1979, whichever is earlier (provided that the failure of the goods to reach McGuire AFB has not been caused or contributed to by the conduct of Behring), I.R.I.A.F. and Behring will join in a request for a consent order directed to the District Court to order such sum to be paid to Behring out of the Trust Account as is necessary to complete payment of the amounts owed by I.R.I.A.F., I.A.C.I. and the Iranian Navy to Behring, plus $ 1,000,000 and any additional amount remaining in the Trust Account is to be returned to I.R.I.A.F., exclusive of interest which accrues after the execution of this Agreement on all sums to which Behring is entitled pursuant to the terms hereof, which accrued interest shall be paid to Behring.

 The above sums were to be deposited in an interest-bearing Trust Account established with the defendant bank pursuant to an order of the district court. *fn2"

 An additional sum of $ 865,000 was deposited to the aforesaid trust account pursuant to the terms of the settlement agreement on or after November 9, 1979, and prior to November 14, 1979. *fn3" On that same date, the sum of $ 635,000 was withdrawn from the account and paid to Behring pursuant to the Agreement. On November 9, 1979 a consent order was entered by the court incorporating by reference the terms of the agreement of the parties. *fn4"

 On November 4, 1979, a number of Americans were taken hostage in Iran. Responding to that action, on November 14, 1979, President Carter imposed Executive Order 12170, declaring a national emergency, and stating that "the situation in Iran constitutes an unusual and extraordinary threat to the national security, foreign policy and economy of the United States." The President then ordered blocked all property and interests in property of the Government of Iran, its instrumentalities and controlled entities and the Central Bank of Iran which are or come within the possession or control of persons subject to the jurisdiction of the United States. Regulations were enacted by the Treasury in order to carry out said executive order. Said regulations provide that no transactions may take place in the absence of a license from the United States Treasury Department. *fn5"

 On December 11, 1979, the defendant bank advised Behring that the Treasury Department had notified the bank that the funds held by it were blocked and that a special license was required from the Office of Foreign Asset Control (OFAC) in order to make a transfer. Behring then prepared an application for a license in accordance with the regulations. Behring also submitted an application to OFAC for an additional license on January 24, 1980 which would enable Behring to move certain I.R.I.A.F. and I.A.C.I. goods to McGuire Air Force Base (AFB) in order to free the warehouse and place the goods under United States government control. On April 29, 1980, a partial license was granted in the amount of $ 500,000. Simultaneously, the goods from the Edison, New Jersey warehouse were transferred to McGuire AFB.

 A verified complaint was filed by Behring on September 2, 1980, seeking a declaratory judgment and writ of mandamus for the immediate release of $ 503,000 on the following grounds: first, Behring claimed that the funds were not blocked by the regulations because neither Iran nor its instrumentalities or controlled entities had any interest therein; second, assuming the transfer of the funds after the effective date, that said transfer, if any, constituted a transfer solely for the purpose of payment of an obligation of an Iranian entity owed to plaintiff and authorized under § 535.904 of the regulations; third, assuming the funds were otherwise blocked or frozen, that neither Iran nor any Iranian entity had any interest therein as of December 15, 1979; or fourth, a judgment of mandamus that the defendant Secretary's failure and/or refusal to issue a license pursuant to the Regulations unblocking the balance of the funds in question was and is arbitrary, capricious, unlawful, unconstitutional and contrary to the applicable law and regulations, including but not limited to, the International Emergency Economic Powers Act, thereby entitling the plaintiff to an order in the nature of mandamus compelling defendant Secretary to grant plaintiff's application for a specific license pursuant to the regulations.

 Plaintiff Behring bases federal jurisdiction over any action in the nature of mandamus to compel an officer or employee of the United States, or any agency thereof, to perform a duty owed to the plaintiff. Alternatively, jurisdiction is founded upon the Declaratory Judgment Act, 28 U.S.C. §§ ...


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