MOTION FOR A PRELIMINARY INJUNCTION
OR, ALTERNATIVELY, FOR CONSOLIDATION
AND EXPEDITED CONSIDERATION OF THE MERITS
Plaintiff, the National Foreign Trade Council ("NFTC"), hereby moves this Court for a preliminary injunction enjoining defendants from enforcing the Act of June 25, 1996, chapter 130, § 1, 1996 Mass. Acts 210, codified at 7 Mass. Gen. Laws §§ 22G-22M (hereinafter "the Massachusetts Burma Law") pending this Court's disposition of this case and any appeal therefrom.
Plaintiff alternatively moves, pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure, that this Court advance the trial on the merits, consolidate it with the hearing on the preliminary injunction, and expedite the trial on the merits. If the trial on the merits is expedited, plaintiff asks the Court to treat the accompanying Memorandum of Points and Authorities as its opening brief.
This motion is supported by the attached declarations of Frank Kittredge, President of the NFTC (Attachment 1), and Linda Bernis, a court reporter who has transcribed the legislative debates over the Massachusetts Burma Law (Attachment 2).
The grounds for this Motion, as more fully set forth in the accompanying Memorandum of Points and Authorities, are as follows:
1. The Massachusetts Burma Law requires defendant Charles Baker to maintain a restricted purchase list, naming companies that do business in the Union of Myanmar (formerly the Nation of Burma), and to distribute it to the Commonwealth's procurement authorities. (Attachment 3 is the most recent version of the restricted purchase list.) Massachusetts procuring agencies are then prohibited from contracting with companies on the restricted purchase list, except in a few limited circumstances. In general, the Massachusetts Burma Law effectively prohibits companies that do business in Myanmar from providing goods and services to the Commonwealth. The purpose for this measure is to pressure the government of Myanmar to change its domestic policies. The law has no other purpose. In particular, it is not designed to serve and does not serve an economic interest of the Commonwealth, its agencies, or its citizens. The law's purposes and effects are an exercise of the Commonwealth's purported soverign powers and are exclusively regulatory and not proprietary.
2. The plaintiff in this suit is the National Foreign Trade Council ("NFTC"), which has long represented the interests of its approximately 580 members in free international trade. The NFTC is representing its members' interests in pursuing this litigation, as it was specifically authorized to do in a Resolution adopted by the NFTC's Board of Directors on February 17, 1998.
3. The defendants named in this suit are Charles Baker, the Commonwealth's Secretary of Administration and Finance, and Philmore Anderson, III, the State Purchasing Agent for the Commonwealth.
4. The Massachusetts Burma Law is plainly unconstitutional for three reasons: (a) it impermissibly intrudes into the federal government's exclusive authority to conduct foreign relations; (b) it burdens and discriminates against foreign commerce, and impedes the federal government's ability to speak with one voice on matters of foreign trade, in violation of the Foreign Commerce Clause; and (c) it conflicts with - and is therefore preempted by - sanctions that the federal government has enacted to control United States interaction with Myanmar.
5. If preliminary relief is not granted, members of the NFTC will suffer irreparable injury. Plaintiff's membership includes companies which have altered their business operations because of the Massachusetts Burma Law. For as long as the Massachusetts Burma Law is enforced, they must continue to structure their business decisions based on this law. These injuries are not compensable through money damages because of the Commonwealth's immunity from liability for such damages.
6. Enjoining further enforcement of this unconstitutional law will not cause any irreparable injury to the Commonwealth. Indeed, the Massachusetts Burma Law likely imposes additional costs on the people of Massachusetts. Since the law generally requires the Commonwealth to reject the lowest contract bid if the bidder does business in Myanmar, the Massachusetts Burma Law likely requires the people of the Commonwealth to pay more for goods and services than they otherwise would. And, even putting to one side the law's effect upon any particular bid, the law discourages competition generally, and thus potentially increases the cost of all contracts.
7. The public interest favors entry of a preliminary injunction, since preventing the enforcement of unconstitutional laws is always in the public interest.
WHEREFORE, plaintiff respectfully requests that this Court enter a preliminary injunction pending this Court's decision on the merits and any appeal therefrom. Attachment 4 is a proposed order granting this preliminary relief. Plaintiff recognizes that the issues raised by this suit are complex and serious, and that no injunction should be entered until the court has had a full opportunity to consider these issues. Accordingly, plaintiff has attached a proposed scheduling order as well (Attachment 5).
As an alternative to preliminary relief, plaintiff respectfully requests that the court consolidate the hearing on this motion with the trial on the merits and expedite the trial on the merits, treating the attached Memorandum of Points and Authorities as plaintiff's opening brief. Attachment 6 is a proposed order to that effect.
Plaintiff's counsel certifies, pursuant to Local Rule 7.1(A), that it has conferred with defendants' counsel and has attempted in good faith to resolve or narrow the issues presented by this motion.
REQUEST FOR ORAL ARGUMENT
Pursuant to Local Rule 7.1(D), plaintiff requests that this Court set this motion for oral argument. The issues presented here are complex, and oral argument would assist the Court in
considering the motion. Plaintiff respectfully requests that the motion be set for hearing as soon as practicable.
Dated: April 30, 1998
Respectfully submitted,
/s/ Michael A. Collora
Michael A. Collora
Dwyer & Collora
Federal Reserve Plaza
600 Atlantic Avenue
Boston, MA 02210-2211
(617) 371-1000
/s/ Timothy B. Dyk
Timothy B. Dyk
Robert H. Klonoff
Gregory A. Castanias
Melissa Hart*
JONES, DAY, REAVIS & POGUE
1450 G Street, N.W.
Washington, D.C. 20005-2088
(202) 879-3939
Attorneys for Plaintiff
National Foreign Trade Council
* Admitted in Maryland; not admitted in the District of Columbia
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