Tabacos USA, Inc. v. United States Customs & Border Prot.

Slip Op. 19 - 68
UNITED STATES COURT OF INTERNATIONAL TRADE
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TABACOS USA, INC., :
Plaintiff, :
v. : Court No. 18-00221
UNITED STATES CUSTOMS AND BORDER :
PROTECTION,
:
Defendant.
:
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Memorandum & Order
[Defendant’s motion for rehearing or reconsideration denied.]
Decided: June 6, 2019
Shanshan Liang and Neil B. Mooney, Pennington P.A., of
Tallahassee, FL, for the plaintiff.
Joseph H. Hunt, Assistant Attorney General, and Amy M. Rubin,
Assistant Director, International Trade Field Office, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice,
Hardeep K. Josan and Monica P. Triana, Trial Attorneys of New York,
NY; and Paula S. Smith and Benjamin Wastler, Office of Chief
Counsel, U.S. Customs and Border Protection, of counsel, for the
defendant.
AQUILINO, Senior Judge: Judgment entered in this case
pursuant to the court’s slip opinion 18-170, 42 CIT ____ (2018),
familiarity with which is presumed, vacating defendant’s letter
dated September 28, 2018, demanding that the plaintiff terminate
continuous bond number 18C000D1D in the amount of $300,000 and post
Court No. 18-00221 Page 2
a new continuous bond in the amount of $400,000. The defendant has
responded with a motion for rehearing or reconsideration,
withdrawing and vacating slip opinion 18-170 and reinstating
defendant’s demand of September 28, 2018.
The motion alleges that the court committed two errors,
first that it relied on facts adduced at the hearing on plaintiff’s
plea for immediate injunctive relief instead of on the record
developed before the administrative agency and second that it
misapplied the legal standard of review. The court thereupon
ordered the defendant to submit by April 22, 2019 “whatever CBP
administrative record may shed additional light on plaintiff’s
continuous entry bond number 18C000D1D, including the standing
thereof on that terminal date.”
The defendant has complied under certification of April
29, 2019 by its Director of the Revenue Division, Office of
Finance, that eight documents “constitute the administrative record
for the decision challenged in this case.” The court has reviewed
them and finds nothing of moment therein that would have had a
different impact on the trial herein. Defendant’s Director further
declares:
Court No. 18-00221 Page 3
4. Pursuant to the temporary restraining order issued
by this court on October 29, 2018, CBP issued a letter to
Tabacos on October 30, 2018 staying the effectiveness of
its September 28, 2018 bond insufficiency letter until
further notice. Bond No. 18C000D1D became effective on
April 23, 2018, and it currently remains active and valid
at $300,000. Bond No. 18C000D1D will roll over into the
next annual bond period unless terminated by the surety
or the principal. CBP has received no information
regarding this bond from Tabacos or the surety since the
issuance of the October 30, 2018 letter.
Indeed, the court understood at the time of trial, and
understands now, that the underlying “annual bond period” has been
April 23, 2018 to April 22, 2019. This being the case, the
equitable relief granted the plaintiff may have expired, and the
parties may therefore be at liberty to proceed as their current
circumstances and the governing law now dictate. For an injunction
becomes moot when the passage of time or a change in circumstances
undermines its basis. See, e.g., Forbes v. Ark. Educ. Television
Comm’n Network Found., 982 F.2d 289 (8th Cir. 1992).
Ergo, defendant’s motion for rehearing or reconsideration
can be, and it hereby is, denied.
So ordered.
Decided: New York, New York
June 6, 2019
/s Thomas J. Aquilino, Jr.
Senior Judge