NOTE: This order is nonprecedential. 

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

NATURAL RESOURCES DEFENSE COUNCIL INC., 

CENTER FOR BIOLOGICAL DIVERSITY, ANIMAL 

WELFARE INSTITUTE,

Plaintiffs-Appellees

v.

WILBUR L. ROSS, IN HIS OFFICIAL CAPACITY OF 

SECRETARY OF COMMERCE, DEPARTMENT OF 

COMMERCE, CHRIS OLIVER, IN HIS OFFICIAL 

CAPACITY AS ASSISTANT ADMINISTRATOR OF 

THE NATIONAL MARINE FISHERIES SERVICE, 

NATIONAL MARINE FISHERIES SERVICE, 

STEVEN MNUCHIN, IN HIS OFFICIAL CAPACITY

AS SECRETARY OF THE TREASURY, 

DEPARTMENT OF THE TREASURY, KEVIN K. 

MCALEENAN, IN HIS OFFICIAL CAPACITY AS 

ACTING SECRETARY OF HOMELAND SECURITY, 

DEPARTMENT OF HOMELAND SECURITY,

Defendants-Appellants

______________________ 

2018-2325

______________________ 

Appeal from the United States Court of International 

Trade in No. 1:18-cv-00055-GSK, Judge Gary S. 

Katzmann.

______________________ 
2 NATURAL RESOURCES DEFENSE v. ROSS

Before REYNA, BRYSON, and STOLL, Circuit Judges.

PER CURIAM. 

O R D E R

Defendants-Appellants (collectively, the United States 

government, or “Government”), appeal the entry of a preliminary injunction by the U.S. Court of International 

Trade (“CIT”) in favor of the Plaintiffs-Appellees (“Natural 

Resources”). The Government requests that this court reverse the preliminary injunction pending a decision by the 

CIT on the underlying merits of the injunction. Recently, 

the court was made aware of certain changes in factual circumstances related to the basis upon which the CIT relied 

in reaching its decision to impose the preliminary injunction. The court concludes that the alleged factual changes 

are such that the CIT, and not this court, should review 

them in the first instance. For that reason, the court remands to the CIT for further proceedings. At the same 

time, the court concludes that the status quo should be preserved and thus the preliminary injunction shall remain in 

force pending further determination. 

BACKGROUND

On March 21, 2018, Natural Resources filed suit in the 

CIT against the Government for agency action unlawfully 

withheld or unreasonably delayed under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(1), and the Marine Mammal Protection Act (“MMPA”). In relevant part, 

the MMPA provides that the Government “shall ban the 

importation of commercial fish or products from fish which 

have been caught with commercial fishing technology 

which results in the incidental kill or incidental serious injury of ocean mammals in excess of United States standards.” 16 U.S.C. § 1371(a)(2) (“Import Ban”). Natural 

Resources alleged that the vaquita, a small porpoise endemic to certain waters of the Sea of Cortez, is a critically 

endangered mammal whose population is on the verge of 
NATURAL RESOURCES DEFENSE v. ROSS 3

extinction due to gillnet fishing in Mexico. Natural Resources further alleged that the Government’s failure to 

ban imports of gillnet-harvested fish taken from certain 

fisheries in Mexico constituted agency action unlawfully 

withheld or unreasonably delayed under the APA and the 

MMPA. The Government answered the complaint. 

On April 16, 2018, Natural Resources filed a Motion for 

Preliminary Injunction, arguing that the vaquita kill-rate 

in Mexico’s northern Gulf gillnet fisheries exceeded U.S. 

standards, thereby triggering a requirement that Commerce impose the Import Ban. On May 7, 2018, the Government filed its opposition to the Motion for Preliminary 

Injunction and moved to dismiss for lack of jurisdiction. 

On July 26, 2018, the CIT denied the Government’s 

Motion to Dismiss and granted Natural Resources’ Motion 

for Preliminary Injunction. The CIT entered a preliminary 

injunction requiring, among other things, that the Government “ban the importation from Mexico of all shrimp, 

curvina, sierra, and chano fish and their products caught 

with gillnets inside the vaquita’s range.” J.A. 63. On August 24, 2018, the Government filed a notice of appeal, 

challenging the CIT’s preliminary injunction. 

On October 12, 2018, the Government filed with this 

court an Emergency Motion to Stay Injunction Pending Appeal. On November 28, 2018, this court denied the motion 

for a stay upon concluding that the Government had not 

established that a stay was warranted. Oral argument was 

subsequently scheduled for May 9, 2019. 

On March 29, 2019, the Government filed a letter with 

the court under Federal Rule of Appellate Procedure 28(j). 

The letter informed the court that on November 27, 2018, 

the Government moved the CIT to dismiss the underlying 

action as moot. The Government also informed the court

that its motion to dismiss was fully briefed and pending 

before the CIT. 
4 NATURAL RESOURCES DEFENSE v. ROSS

On May 6, 2019, the Government filed a second letter 

with this court, noting that the CIT held a hearing on the 

Government’s pending motion to dismiss as moot. According to the Government, the CIT ordered supplemental 

briefing. After the supplemental briefing was filed, the CIT 

stayed further action pending resolution of the appeal before this court. 

In both aforementioned letters, the Government provided electronic links to various documents that it claimed 

to have submitted to the CIT in support of its motion to 

dismiss. The Government asserts that the letters demonstrate a factual change in circumstances underlying the 

preliminary injunction because it has now undertaken final agency action obviating Natural Resources’ contention 

that agency action had been unlawfully withheld or unreasonably delayed under § 706(1).1 Specifically, the Government states that on November 9, 2018, the Mexican 

government requested that the National Marine Fisheries 

Service (“NMFS”) make comparability findings as to the 

Mexican fisheries in the Upper Gulf of California. The 

Government also claims that on November 27, 2018, the 

NMFS issued a final determination as to the Mexican fisheries and whether they should remain subject to an Import 

 

1 For example, the Government references: (a) actions taken by the Mexican government; (b) a Federal Register notice that it claims reflects that the Government 

conducted comparability findings and determined that an 

Import Ban is warranted for curvina fish and fish products 

in the gillnet fishery in the Upper Gulf of California; (c) removal of alleged illegal fisheries from the list of foreign 

fisheries; and (d) a declaration from Nina M. Young—an 

employee of the National Marine Fisheries Service—detailing numerous factual developments about vaquita conservation efforts, among other things. See Oral Arg. at 4:43–

5:10; 6:45–6:58; 10:10–10:56; 15:55–17:27. 
NATURAL RESOURCES DEFENSE v. ROSS 5

Ban under the MMPA. The Government claims that the 

final determination constitutes a final agency action, and 

that as a result, the preliminary injunction is no longer sustainable. 

The court heard oral arguments on May 9, 2019. A significant portion of the argument was devoted to the information referenced in the pleadings cited in the 

aforementioned letters of March 29 and May 6, 2019, and 

the impact that the information may have on the sustainability of the preliminary injunction. 

The pleadings cited in the March 29 and May 6 letters 

have not been filed before this court. The court determines 

that the CIT, and not this court, should review in the first 

instance the factual circumstances laid out in the letters to 

determine if they constitute a change in circumstances that 

alters the basis for the preliminary injunction. See Atl. 

Thermoplastics Co. v. Faytex Corp., 5 F.3d 1477, 1479 (Fed. 

Cir. 1993) (stating that fact-finding by the appellate court

“is simply not permitted.”); see also IGT v. Aristocrat 

Techs., Inc., 646 F. App’x 1015, 1019 (Fed. Cir. 2016) (per 

curiam) (declining to consider the changed circumstances 

in evaluating the propriety of a preliminary injunction and 

remanding to the district court for consideration of their 

impact). 

For the foregoing reasons, we remand to the CIT for

review and fact-finding consistent with this order. We are 

not convinced by the Government that the factual circumstances have changed so much as to warrant our dismissal 

of the preliminary injunction before reconsideration by the 

CIT. In order to preserve the status quo, the preliminary 

injunction shall remain in force pending further determination.

Accordingly,

 IT IS ORDERED THAT: 
6 NATURAL RESOURCES DEFENSE v. ROSS

(1) The case is remanded to the CIT for further consideration. 

(2) The preliminary injunction shall remain in force

pending further determination by the CIT. 

 FOR THE COURT

 May 20, 2019 /s/ Peter R. Marksteiner

 Date Peter R. Marksteiner

 Clerk of Court