Tabacos USA, Inc. v. United States Customs and Border Protection

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
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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:
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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
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