                          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
