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CHEMICALS FOR RESEARCH & INDUS. v. THORNBURGH

April 26, 1991

CHEMICALS FOR RESEARCH AND INDUSTRY, a California Corporation, Plaintiff,
v.
RICHARD THORNBURGH, Attorney General of the United States, ROBERT C. BONNER, Administrator, Drug Enforcement Administration, RONALD J. CAFFREY, Deputy Assistant Administrator for Operations, Drug Enforcement Administration, Defendants



The opinion of the court was delivered by: LYNCH

 EUGENE F. LYNCH, UNITED STATES DISTRICT JUDGE

 Plaintiff, Chemicals for Research and Industry, Inc. ("CFRI"), has initiated the above-captioned action challenging the constitutionality of certain actions taken by defendants *fn1" as well as challenging the constitutionality of a 1988 amendment to section 310 of the Chemical Diversion and Trafficking Act ("the CDTA"), 21 U.S.C. ยง 830(b), or in the alternative, the constitutionality of defendants' interpretation and application thereof. Plaintiff, in its complaint, prays for declaratory and injunctive relief.

 On April 12, 1991, plaintiff moved the Court for a preliminary injunction that would rescind certain actions taken by defendants and enjoin defendants from repeating or taking certain actions in the future. For the reasons stated below, the Court grants plaintiff's motion for preliminary injunction and orders preliminary injunctive relief as set forth below.

 I. FACTUAL BACKGROUND

 Plaintiff is a corporation in the business of distributing new and surplus chemicals as well as new and used laboratory equipment. Defendants' agents suspect that chemicals sold by plaintiff have been diverted to use at illegal methamphetamine manufacturing laboratories. Defendants have notified five chemical suppliers who have sold chemicals to plaintiff in the past that they may no longer sell certain chemicals to plaintiff. *fn2" The chemicals that the five suppliers may no longer sell to plaintiff ("the listed chemicals") are, for the most part, relatively common chemicals that have many legitimate uses but may also be used to manufacture illegal drugs. *fn3" Defendants cite 21 U.S.C. section 830(b) as authority for their action. Defendants have not afforded plaintiff a formal hearing regarding defendants' actions or any type of procedural due process. *fn4"

 II. STANDARDS FOR ISSUANCE OF PRELIMINARY INJUNCTION

 In order to determine whether a preliminary injunction shall issue, the Court must make two inquiries. First, the Court must inquire as to whether plaintiff might suffer irreparable injury if the Court fails to issue a preliminary injunction. United States v. Odessa Union Warehouse Co-op., 833 F.2d 172, 174 (9th Cir. 1987). Second, the Court must inquire as to whether plaintiff will probably succeed on the merits. Id. If the Court determines that plaintiff might suffer irreparable injury if the Court fails to issue a preliminary injunction and the Court determines that plaintiff will probably succeed on the merits, the Court shall issue a preliminary injunction. *fn5" The Court addresses each of these inquiries in turn.

 III. DISCUSSION

 A. Possibility of Irreparable Injury

 The Court finds that there is a good possibility that plaintiff will suffer irreparable injury if a preliminary injunction does not issue. Plaintiff has submitted evidence from which one may infer that plaintiff will lose sales if a preliminary injunction does not issue. *fn6" Moreover, plaintiff contends that it is barred by applicable case law from seeking monetary damages. Defendants, without conceding that plaintiff has suffered or will suffer damages, agrees that if plaintiff has suffered or were to suffer damages, plaintiff would be barred from seeking monetary damages. Since monetary damages do not appear to be a remedy that is available to plaintiff, the Court has little difficulty in finding that plaintiff might suffer irreparable injury if an injunction does not issue.

 B. Probability of Success on the Merits

 For the reasons stated below, the Court also finds that plaintiff will probably succeed on the merits. First, defendants' actions do not appear to be authorized by statute. Second, if the statute were interpreted in such a manner as to authorize defendants' actions, the statute would not appear to comport with the requirements of the due process clause of the fifth amendment. At best, it would appear to the Court, at this juncture, that it would be necessary to add judicial gloss to the statute ...


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