Del Monte Fresh Produce Co. v. United States

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 9, 2009 Decided June 26, 2009

No. 08-5398

DEL MONTE FRESH PRODUCE COMPANY
AND DEL MONTE FOODS U.A.E. FZE,
APPELLANTS

v.

UNITED STATES OF AMERICA, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cv-02143)

Daniel G. Jarcho argued the cause and filed the briefs for
appellants.

Anisha S. Dasgupta, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief were
Michael F. Hertz, Acting Assistant Attorney General, and
Douglas N. Letter, Litigation Counsel. R. Craig Lawrence,
Assistant U.S. Attorney, entered an appearance.

Before: SENTELLE, Chief Judge, ROGERS and GRIFFITH,
Circuit Judges.
 2

Opinion for the Court by Circuit Judge ROGERS.

Dissenting opinion by Chief Judge SENTELLE.

ROGERS, Circuit Judge: The only question on appeal is
whether the district court erred in dismissing as moot a
complaint seeking a declaratory judgment. We hold that it did.

I.

The Trade Sanctions Reform and Export Enhancement Act
of 2000 (the “TSRA”), 22 U.S.C. §§ 7201-7211, limits
restrictions imposed unilaterally by the President on exports of
food, medicine, and other agricultural products to Iran, Libya,
North Korea, Sudan, and Cuba. Aimed at lifting embargoes to
expand export opportunities particularly for agricultural
products, see 146 Cong. Rec. 23,110-11 (2000) (drafters’
statement of Sens. Hagel and Ashcroft), the TSRA provides that
“the President may not impose a unilateral agricultural sanction
or unilateral medical sanction against a foreign country or
foreign entity” without the prior approval of Congress. 22
U.S.C. § 7202(a).1 As relevant here, § 906 of the TSRA

1
A “unilateral agricultural sanction” is defined as:

any prohibition, restriction, or condition on carrying out an
agricultural program with respect to a foreign country or
foreign entity that is imposed by the United States for reasons
of foreign policy or national security, except in a case in
which the United States imposes the measure pursuant to–

(A) a multilateral regime and the other member
countries of that regime have agreed to impose
substantially equivalent measures; or

(B) a mandatory decision of the United Nations
 3

authorizes limited restrictions on exports of agricultural products
to countries that the State Department has determined “to have
repeatedly provided support for acts of international terrorism.”
Id. § 7205(a)(1).2 Such exports require a one-year license,
which will authorize exports pursuant to contracts entered into
during the license period so long as the products are shipped
within one year of the signing of the covered contract. The

Security Council.

22 U.S.C. § 7201(6).
2
Section 906(a)(1) provides:

Notwithstanding any other provision of this chapter (other
than section 7203 of this title), the export of agricultural
commodities, medicine, or medical devices to Cuba, the
Taliban or the territory of Afghanistan controlled by the
Taliban, or to the government of a country that has been
determined by the Secretary of State to have repeatedly
provided support for acts of international terrorism under
section 2371 of this title, section 2405(j)(1) of Title 50,
Appendix, or section 2780(d) of this title, or to any other
entity in such a country, shall only be made pursuant to 1-year
licenses issued by the United States Government for contracts
entered into during the one-year period of the license and
shipped within the 12-month period beginning on the date of
the signing of the contract, except that the requirements of
such 1-year licenses shall be no more restrictive than license
exceptions administered by the Department of Commerce or
general licenses administered by the Department of the
Treasury, except that procedures shall be in place to deny
licenses for exports to any entity within such country, or in
the territory of Afghanistan controlled by the Taliban,
promoting international terrorism.

22 U.S.C. § 7205(a)(1) (emphasis added).
 4

licensing requirements “shall be no more restrictive than license
exceptions administered by the Department of Commerce or
general licenses administered by the Department of the
Treasury,”3 except for procedures involving export licenses to
an entity in such country, or in the Taliban-controlled area of
Afghanistan, “promoting international terrorism.” Id.

The Treasury Department, through the Office of Foreign
Assets Control (“OFAC”), published an interim rule on July 12,
2001 to carry out TSRA § 906 with regard to exports to Iran and
other countries, stating in the preamble it was adopting an
expedited licensing process, with deadlines for agency action
that in material respects are the same as those of the Commerce

3
A Commerce Department license exception under the
Export Administration Act of 1979, 50 App. U.S.C. §§ 2401-20, is
defined as an “authorization . . . that allows [an exporter] to export or
reexport under stated conditions, items . . . that would otherwise
require a[n individual] license.” 15 C.F.R. § 740.1(a). Commerce
regulations governing agricultural commodities prevented overseas
shipments to an entity on the lists of Specially Designated Terrorists
or Foreign Terrorist Organizations, 15 C.F.R. § 740.18(b)(1), or where
another federal agency objects on grounds the recipient “may promote
international terrorism,” as long as the objection is lodged within nine
business days of the referral and within eleven business days after
receipt of notice of application for license, id. § 740.18(c)(4). When
the TSRA was enacted, Treasury regulations authorized general
licenses for exporters of agricultural products to Iran to enter into
executory contracts, but required specific licenses “issued on a case-
by-case basis to permit the performance” of such executory contracts.
See Sudanese Sanctions Regulations; Libyan Sanctions Regulations;
Iranian Transactions Regulations: Licensing of Commercial Sales of
Agricultural Commodities and Products, Medicine, and Medical
Equipment, 64 Fed. Reg. 41,784, 41,792 (Aug. 2, 1999) (codified at
31 C.F.R. § 560.530) (amended Nov. 1, 1999; repealed July 12, 2001).
 5

Department.4 Under this expedited process, OFAC would refer
the application to other agencies, and, provided the license
application met the requirements set forth in the regulations,
OFAC would issue the license so long as no objection was
received within nine business days. However, on March 20,
2007, OFAC announced that the events of September 11, 2001

4
See Exports of Agricultural Products, Medicines, and
Medical Devices to Cuba, Sudan, Libya, and Iran; Cuba
Travel-Related Transactions, 66 Fed. Reg. 36,683 (July 12, 2001).
The preamble to the interim rule stated that OFAC had “endeavored
to implement the TSRA in a way that is consistent with both the
statutory language and the intent of its drafters and in a manner that
also provides exporters with an efficient and expedited process for
engaging in authorized exports of agricultural commodities, medicine,
and medical devices.” Id. at 36,684. Specifically, OFAC stated:

The expedited process will include, when appropriate, referral
of the one-year license request to other government agencies
for guidance in evaluating the request. If no government
agency raises an objection to or concern with the application
within nine business days from the date of any such referral,
OFAC will issue the one-year license, provided that the
request otherwise meets the requirements set forth in this rule.
If any government agency raises an objection to the request
within nine business days from the date of referral, OFAC
will deny the request for the one-year license. If any
government agency raises a concern short of an objection with
the request within nine business days from the date of referral,
OFAC will delay its response to the license request for no
more than thirty additional days to allow for further review of
the request.

Id. at 36,684-85 (emphasis added). The TSRA drafters’ statement of
purpose stated: “We expect that regulations to implement [the TSRA]
will promptly liberalize the current administrative procedures for the
export of agriculture and medicine.” 146 Cong. Rec. at 23,110.
 6

had “magnified concerns about international terrorism,” that
“the volume of license requests has increased substantially since
the inception of the TSRA program, and [that] applications are
now much more complicated than the earlier ones.” Sudanese
Sanctions Regulations; Iranian Sanctions Regulations, 72 Fed.
Reg. 12,980, 12,981 (Mar. 20, 2007) (“OFAC March 2007
Regulations”). Although confirming it would continue to
conduct a review of license applications “consistent with the
requirements of section 906 of TSRA,” OFAC stated, however,
that “OFAC’s processing . . . may take longer than the time
periods suggested at the inception of the TSRA program.” Id.

Del Monte Fresh Produce Company is a vertically
integrated producer, marketer, and distributor of fresh fruits and
vegetables, and facilitates sales abroad by its foreign affiliates,
such as Del Monte Foods (U.A.E.) FZE (together “Del Monte”).
On August 8, 2007, Del Monte submitted an application to
OFAC for a one-year license (the “August 2007 license”) to
export agricultural commodities to ten entities in Iran, none of
which were listed on either of the two terrorists lists identified
in Commerce Department regulations. Del Monte alleges that
because the August 2007 license application contained all of the
information specified in OFAC regulations, OFAC referred the
application to the State Department on August 17, 2007, and that
the State Department responded on September 13, 2007 without
raising an objection to issuance of the license. Still, OFAC did
not issue the license. Del Monte’s repeated inquiries to OFAC
about the status of the license revealed only that its application
was pending. On November 27, 2007 Del Monte was advised
by OFAC’s “help desk” that its August 2007 license application
was still pending.

On November 28, 2007 Del Monte filed suit. It had been
more than 110 days since OFAC had received the August 2007
license application, more than 100 days since OFAC referred the
 7

application to the State Department, and more than 75 days
since the State Department’s response. On November 29 Del
Monte filed a motion for a preliminary injunction, the district
court scheduled a status conference on that motion, and OFAC
issued the August 2007 license to Del Monte.

Del Monte filed an amended complaint on January 10, 2008
seeking a declaratory judgment that OFAC’s failure to issue the
August 2007 license until November 29, 2007 constituted
agency action that was both unlawfully withheld and
unreasonably delayed under the Administrative Procedure Act
(“APA”), 5 U.S.C. § 706(1). In addition to alleging facts
relating to OFAC’s unlawful delay in issuing the August 2007
license, Del Monte alleged that OFAC’s “licensing inaction
and/or action at issue in this case is in its duration too short to be
fully litigated prior to its cessation or expiration,” because the
time required to litigate the case was longer than the mandatory
deadlines and the time necessary for the government to review
the application. Am. Compl. ¶ 32. Further it alleged, “[b]ecause
facilitating sales of, and selling, food products to Iran is, and has
been, a part of Del Monte’s ongoing business plan, Del Monte
will continue to apply for OFAC licences in the future on a
continuing basis,” id. ¶ 33, and “[t]here is a reasonable
expectation that Del Monte will be subject to the same inaction
and/or action by OFAC again in the future with respect to future
license applications,” id.

The district court granted the government’s motion to
dismiss the complaint for lack of subject matter jurisdiction on
grounds of mootness pursuant to Federal Rule of Civil
Procedure 12(b)(1). Del Monte Fresh Produce Co. v. United
States, 565 F. Supp. 2d 106 (D.D.C. 2008). The district court
observed that where a plaintiff seeks only declaratory relief as
a remedy for a defendant’s past conduct, the action will be moot
unless one of two exceptions to mootness applies. With regard
 8

to the capable of repetition yet evading review exception, the
district court concluded that because Del Monte’s amended
complaint only sought relief for the handling of the August 2007
license application, and OFAC had already issued that license,
“it is impossible for delay of that application to reoccur.” Id. at
113. With regard to the voluntary cessation exception, the
district court credited the representations of OFAC and
concluded that its issuance of the August 2007 license on
November 29, 2007 was independent of Del Monte’s lawsuit.

II.

Del Monte appeals the dismissal of its amended complaint
on the principal ground that the claim for relief falls within the
capable of repetition but evading review exception to the
mootness doctrine. Our review is de novo. See Munsell v. Dep’t
of Agric., 509 F.3d 572, 578 (D.C. Cir. 2007).

“A case is moot when ‘the challenged conduct ceases such
that there is no reasonable expectation that the wrong will be
repeated’ in circumstances where ‘it becomes impossible for the
court to grant any effectual relief whatever to the prevailing
party.’” United States v. Philip Morris USA, Inc., No. 06-5267,
slip op. at 63 (D.C. Cir. May 22, 2009) (quoting City of Erie v.
Pap’s A.M., 529 U.S. 277, 287 (2000)). In at least two kinds of
cases the fact that the specific conduct that gave rise to the case
has ceased does not mean that the challenge to the legality of
that conduct is moot. City of Houston, Tex. v. Dep’t of Housing
& Urban Dev., 24 F.3d 1421, 1429-30 (D.C. Cir. 1994).

First, a plaintiff’s challenge will not be moot where it seeks
declaratory relief as to an ongoing policy. Id. at 1429. In Super
Tire Engineering v. McCorkle, 416 U.S. 115, 125 (1974), the
Supreme Court held that although a claim for injunctive relief
preventing payment of welfare benefits during a strike was moot
 9

because the strike had ended, the employers’ request for
declaratory relief was not moot because the state’s ongoing
policy of paying strike benefits was, on the employers’ theory of
the case, “immediately and directly injurious to the [employers’]
economic positions.” Of course, plaintiffs challenging an
ongoing policy must demonstrate “standing to bring such a
forward-looking challenge and [that] the request for declaratory
relief is ripe.” City of Houston, 24 F.3d at 1429.

Second, even though the specific action that the plaintiff
challenges has ceased, a claim for declaratory relief will not be
moot even if the “plaintiff has made no challenge to [an]
ongoing underlying policy, but merely attacks an isolated
agency action,” so long as “the specific claim fits the exception
for cases that are capable of repetition, yet evading review, or
falls within the voluntary cessation doctrine.” Id. (internal
quotation marks and citations omitted). In Olmstead v. L.C. ex
rel. Zimring, 527 U.S. 581, 594 n.6 (1999), the Supreme Court
held that the challenge by two mental patients to their
confinement in a segregated environment was not mooted by
their post-complaint transfers because “in view of the multiple
institutional placements [they had] experienced, the controversy
they brought to court [was] capable of repetition, yet evading
review.” (internal quotation marks and citations omitted); see
also Cal. Coastal Comm’n v. Granite Rock Co., 480 U.S. 572,
578 (1987). Del Monte has chosen this second route by alleging
that OFAC’s failure to act promptly on Del Monte’s August
2007 license application is capable of repetition yet evades
review.

Under the capable of repetition yet evading review
exception to mootness, the plaintiff must demonstrate that “(1)
the challenged action is in its duration too short to be fully
litigated prior to its cessation or expiration, and (2) there [is] a
reasonable expectation that the same complaining party would
 10

be subjected to the same action again.” Clarke v. United States,
915 F.2d 699, 704 (D.C. Cir. 1990) (en banc) (quoting Murphy
v. Hunt, 455 U.S. 478, 482 (1982)) (alteration in original); see
also Honig v. Doe, 484 U.S. 305, 318-20 & n.6 (1988). When
these “two circumstances [are] simultaneously present,” Spencer
v. Kemna, 523 U.S. 1, 17 (1998), the plaintiff has demonstrated
an “exceptional circumstance[],” id., in which the exception will
apply, id.; see Clarke, 915 F.2d at 704. “Its theoretical
justification is somewhat obscure,” Christian Knights of the Ku
Klux Klan Invisible Empire, Inc. v. District of Columbia
(“KKK”), 972 F.2d 365, 369 (D.C. Cir. 1992) — the “evading
review” aspect perhaps suggesting justiciability by necessity
while its “capable of repetition” aspect “assuring that the parties
have a sufficient interest in the result,” id. — but the exception
is well established. Del Monte has met its burden on both
prongs.

First, a challenge to the timeliness of OFAC’s response to
applications for a one-year license cannot be fully litigated
before the expiration, let alone the granting, of the requested
license. By “evading review” “the Supreme Court has meant
evading Supreme Court review.” Id. This court has held that
agency actions of less than two years’ duration cannot be “fully
litigated” prior to cessation or expiration, so long as the short
duration is typical of the challenged action. Pub. Utils. Comm’n
v. FERC, 236 F.3d 708, 714 (D.C. Cir. 2001); Burlington N.
R.R. Co. v. Surface Transp. Bd., 75 F.3d 685, 690 (D.C. Cir.
1996). The TSRA license covers only contracts signed during
a one year period; shipments pursuant to the contract must be
made within a year of the date the contract is signed. 22 U.S.C.
§ 7205(a)(1). Moreover, even though OFAC has announced that
it may not be able to process license applications within the
deadlines allegedly required by the TSRA, the longest delay
identified by Del Monte was only 111 days and the average time
for OFAC to act on license applications from July 2006 to
 11

March 2007 did not exceed 74 business days. Am. Compl. ¶¶
27-28; Del Monte’s Opp’n to Mot. to Dismiss, Ex. 1. Del
Monte’s challenge thus meets the evading-review prong of the
exception.

Second, in order to decide whether the same type of
inaction or unreasonable delay is sufficiently likely to recur, the
court must first determine “exactly what must be repeatable in
order to save [the] case from mootness.” People for the Ethical
Treatment of Animals, Inc. v. Gittens (“PETA”), 396 F.3d 416,
422 (D.C. Cir. 2005); see also Clarke, 915 F.2d at 703. Three
circuit precedents provide instruction:

• In PETA the court adopted a functional approach,
explaining that “[t]he ‘wrong’ that is, or is not, ‘capable of
repetition,’ must be defined in terms of the precise
controversy it spawns,” that is, the wrong must be “put in
terms of the legal questions it presents for decision.” 396
F.3d at 422-23 (emphasis added). In that case the issue
presented by PETA’s First Amendment challenge to the
government’s allegedly pretextual rejection of PETA’s
submission to a city-wide display of privately-designed,
government-selected statues was highly fact-dependent.
As such, the court concluded that the wrong suffered by
PETA was unlikely to recur, and that the claim was
therefore moot.

• In Clarke, the en banc court explained that the wrong
at issue for mootness purposes is defined by the plaintiffs’
theory set forth in the complaint. Clarke, 915 F.2d at 703-
04. There, Members of the D.C. Council challenged a
federal statute as a violation of their First Amendment
rights because it conditioned appropriations for the District
of Columbia on the D.C. Council’s amendment of the D.C.
Human Rights Act. Id. The United States had suggested
 12

the injury be defined as “congressional use of funding to
induce appellees to enact specific language allowing
religiously affiliated institutions to discriminate against
homosexuals;” the D.C. Council Members had suggested
the issue was “whether Congress can coerce [their] votes by
withholding appropriated funds.” Id. at 703. This court
rejected both suggestions: the United States’ position
because it included “facts completely irrelevant to any
intelligible formulation of plaintiffs’ claim,” and the D.C.
Council Members’ suggestion because it attempted to press
“a broader notion of their injury than the one on which they
originally sought relief.” Id. Instead, the court focused on
identifying the factors that were “essential to plaintiffs’
original theory of their claim,” concluding that even
“broadly conceived” the “injurious act” of which the
Council Members complained — Congress’s conditioning
of funding on the Council’s “enactment of legislation in
specific language” — was not reasonably likely to recur.
Id. at 704.

• In KKK, 972 F.2d at 369-70, although the Klan
challenged no regulations on their face, and its complaint
concerned only its requests for an October 28, 1990 parade
permit, the court held the controversy was capable of
repetition because there was a reasonable likelihood that in
the future the Klan would seek parade permits, raising the
same concerns of violence. The Klan had requested a
permit to march along Constitution Avenue from 14th to
3rd Streets on October 28, 1990; citing the risk of violence
incited by the Klan’s presence, the District government
granted a parade permit for only four blocks. As this court
subsequently explained, the wrong in the KKK case was not
limited to the treatment of the Klan’s application for the
October 28, 1990 parade, but rather “consisted of the
District [government]’s refusal, in alleged violation of the
 13

First Amendment, to grant a parade permit because the
march would provoke violence.” PETA, 396 F.3d at 423.

The district court’s approach in identifying the wrong
alleged in Del Monte’s amended complaint failed to adhere to
this precedent. In agreeing with this approach, our dissenting
colleague does likewise. Dis. Op. at 1. The district court
concluded, and the government maintains on appeal, that Del
Monte’s claims are not capable of repetition because the alleged
wrong was the delay in acting on Del Monte’s August 2007
license application. On this view of the mootness inquiry,
because the August license was granted, the wrong is not
capable of repetition. However, the district court’s approach
focuses on whether the precise historical facts that spawned the
plaintiff’s claims are likely to recur, rather than whether the
legal wrong complained of by the plaintiff is reasonably likely
to recur, as our precedent requires. See PETA, 396 F.3d at 422;
KKK, 972 F.2d at 370; Clarke, 915 F.2d at 703-04.

Del Monte has shown there is a reasonable likelihood it will
be subjected to the same challenged action in the future. It
alleged that OFAC was required to, but did not, grant Del
Monte’s properly-prepared license, Am. Compl. ¶¶ 22-23, 30,
“nine business days after [OFAC] refer[red] the application for
review by other agencies, [when] the other agencies lodge[d] no
objection within that nine business-day period,” id. ¶ 20.
According to the amended complaint, this deadline was imposed
by TSRA § 906’s incorporation of Commerce and Treasury
Department regulations as a ceiling on the restrictiveness of the
licencing procedures and by OFAC’s adoption of the nine-
business-day deadline. Id. ¶¶ 20-21. OFAC’s failure to respond
to the August 2007 application until November 29, 2007 was,
Del Monte alleged, unlawful in two ways: it constituted action
unlawfully withheld and action unlawfully delayed. Id. ¶¶ 35-
36, 39-40. Therefore, under the theory in the amended
 14

complaint, it was irrelevant whether OFAC can or will delay
action on the now-granted August 2007 license application;
what matters is whether it is reasonably likely that Del Monte
will suffer the same type of legal wrong — unlawfully withheld
approval or unlawful delay by OFAC in violation of TSRA §
906 — in the future. To answer this jurisdictional question, we
look to the complaint and the undisputed facts in the record.
Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir.
1992).

When Del Monte filed suit on November 28, 2007, OFAC
had not granted the August 2007 license; because standing is
assessed as of the time a suit commences, Del Monte has
standing to seek declaratory relief. See Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190-91
(2000). With regard to mootness, Del Monte proffered the
unchallenged declaration of its associate general counsel that
“[s]elling food products to Iran is, and has been, a part of [Del
Monte’s] business plan” and that Del Monte “will definitely
apply for OFAC licenses in the future, on a continuing basis.”
Decl. of Jeffrey S. Bailey, ¶ 4, Feb. 7, 2008. Del Monte also
proffered unchallenged evidence tending to show that OFAC
will not act on Del Monte’s future licenses within the mandated
time limits and indeed that the delays may be substantial.
Addressing past conduct, an international trade specialist at Del
Monte’s law firm described how OFAC had failed to act on Del
Monte’s license applications within the nine-day deadline on
five separate occasions in the past. Decl. of Katia Gousset, ¶¶
2-8, Feb. 7, 2008. In that regard, the specialist noted that at least
one of OFAC’s past delays in acting was substantial — 100
days from when Del Monte submitted the application and nearly
two months after OFAC learned that the State Department did
not object to issuance of the license. Addressing OFAC’s intent
in addressing future applications, Del Monte pointed to OFAC’s
announcement on March 20, 2007 that its “processing of
 15

one-year license requests may take longer than the time periods
suggested at the inception of the TSRA program.” OFAC March
2007 Regulations, 72 Fed. Reg. at 12,981.

With the allegations in the amended complaint and these
uncontested declarations, Del Monte has shown a reasonable
likelihood that in the future OFAC will fail to act on its
applications within the purportedly mandatory period and that
at least some of those delays will be as unreasonable as the
August 2007 license application delay, and has thereby met its
burden of showing a reasonable likelihood that it will be subject
to the same legal wrong. See KKK, 972 F.2d at 370-71. Neither
Clarke, on which the district court relied, nor other precedent
requires that the very same facts must recur for the capable of
repetition exception to apply. See, e.g., Burlington N. R.R. Co.,
75 F.3d at 689. Indeed, in Clarke, 915 F.2d at 703, the en banc
court rejected a similar government suggestion that the plaintiffs
were required to demonstrate that Congress was likely to use
funding to induce the D.C. Council to enact a specific provision
of law on the exact same issue in the future, writing that the
issue on which Congress induced the D.C. Council to act was
“completely irrelevant to any intelligible formulation of
plaintiffs’ claim,” and therefore “equally irrelevant to the
mootness issue.” So too, here. The unrepeatable particulars of
OFAC’s delay of Del Monte’s August 2007 application — when
the delay occurred, the contracts that the delay endangered —
are irrelevant to Del Monte’s legal theory in the amended
complaint for declaratory relief.

The government presents two responses: First, because Del
Monte’s amended complaint did not seek relief from OFAC’s
general policy of handling license applications, the wrong is
limited to OFAC’s delay on the August 2007 application.
Second, the amended complaint should not be construed as a
challenge to OFAC’s general policy because such a challenge is
 16

not authorized under § 706(1) of the APA. These responses fail
because they conflate the plaintiff’s choice of the scope of relief
with the legal determination — for mootness purposes only —
of “the injury that is capable of repetition,” Clarke 915 F.2d at
703. Del Monte seeks declaratory relief for OFAC’s delay of its
August 2007 license application, contending that its claim is not
moot because the legal wrong it suffered — the delay
purportedly in violation of TSRA § 906 — is likely to recur. In
City of Houston, 24 F.3d at 1429-30, the court distinguished
between requests for declaratory relief as to specific agency
actions and as to ongoing policies, explaining that where, as
here, the plaintiff only challenges a specific agency action, its
claim for declaratory relief will not be moot if it can show that
the legal wrong allegedly inflicted by the agency is capable of
repetition yet evading review.5

Del Monte’s amended complaint presents a classic example
of a legal injury that is capable of repetition yet evading review.
It engages in an ongoing commercial enterprise — exporting
food products to clients located in Iran — that requires one-year
licenses. It has proffered unrebutted evidence that it is
reasonably likely that the licensing agency will not conform to
the expedited procedures that Del Monte contends are mandated
by Congress. Moreover, as of March 20, 2007 the agency itself
confirmed that such delays were likely to recur in the future.
Del Monte has encountered a series of substantially similar

5
Because Del Monte’s challenge is only to delay relating to
the August 2007 license, the court has no occasion to decide whether
Del Monte could bring a forward-looking challenge to OFAC’s
license-processing policy under § 706(1) of the APA. Neither does
the court have the occasion to address the limits, if any, that § 706(1)
would impose on Del Monte’s request for declaratory relief, for any
limits are not jurisdictional, see Trudeau v. FTC, 456 F.3d 178, 185
(D.C. Cir. 2006).
 17

injuries from delays of substantially similar license applications
in the past, and given its business plan it anticipates suffering
similar injuries in the future. See Am. Compl. ¶ 33. As the
same parties will encounter the same type of circumstances
involving alleged violations of the same laws, we hold that Del
Monte’s request for a declaratory judgment falls within the
exception to mootness for legal wrongs that are capable of
repetition yet evade review, notwithstanding that the August
2007 license that occasioned this lawsuit has been issued.

Accordingly, we reverse the dismissal of the amended
complaint pursuant to Rule 12(b)(1), and we remand the case to
the district court to address the merits of Del Monte’s request for
declaratory relief.
 SENTELLE, Chief Judge, dissenting: Briefly put, I would
affirm the decision of the district court because I believe the
district court’s decision is exactly correct. I will not belabor the
facts, as they are set out by the majority above and are readily
available in the district court’s opinion. See Del Monte Fresh
Produce Co. v. United States, 565 F. Supp. 2d 106, 108-09
(D.D.C. 2008). In summary, appellants filed this action seeking
a judgment declaring that the Office of Foreign Assets Control
(OFAC) unlawfully withheld or unreasonably delayed issuance
of a single license for food shipments to Iran in violation of the
Administrative Procedure Act (APA), 5 U.S.C. § 706(1).
Appellants filed that complaint on November 28, 2007;
appellants received the license on November 29, 2007.

As the district court stated, “‘[i]f events outrun the
controversy such that the court can grant no meaningful relief,
the case must be dismissed as moot.’” Del Monte, 565 F. Supp.
2d at 110 (quoting McBryde v. Comm. to Review Circuit Council
Conduct & Disability Orders of the Judicial Conference of the
U.S., 264 F.3d 52, 55 (D.C. Cir. 2001)). Since it is apparent that
this case falls within that description, the district court rightly
entered a judgment of dismissal for lack of jurisdiction, by
reason of mootness.

Granted, appellants argue that this case falls within one or
both of two discrete exceptions to the mootness
doctrine—“capable of repetition yet evading review” and
“voluntary cessation.” To allow this case to go forward based
on either of those exceptions is to allow the exception to
swallow the mootness doctrine.

As the district court reminded us, “[t]he ‘capable of
repetition yet evading review’ exception ‘applies only in
exceptional situations, where the following two circumstances
[are] simultaneously present: (1) the [alleged wrong is] in its
duration too short to be fully litigated prior to cessation or
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expiration, and (2) there [is] a reasonable expectation that the
same complaining party [will] be subject to the same [alleged
wrong] again.’” Id. at 112 (quoting Spencer v. Kemna, 523 U.S.
1, 17 (1998)). The action sought relief as to delay on one
license. That license has been issued. The Trade Sanctions
Reform and Export Enhancement Act cannot delay the issuance
of that license any more. The case is moot. Any possible future
licenses may or may not be delayed; indeed, may or may not be
sought, and may or may not be issued. In some sense, any
action is capable of repetition. Certainly, the grant or delay of
grant of any license can recur. There is nothing exceptional
about the current circumstances to differentiate it from the grant
or delay of grant of any other license. Such a case can become
moot. It does not automatically fall within the capable of
repetition yet evading review exception.

The most that appellants point to in arguing for application
of the exception is that OFAC has been slow in granting
previous licenses. The Supreme Court has told us repeatedly
“that past wrongs do not in themselves amount to that real and
immediate threat of injury necessary to make out a case or
controversy.” City of Los Angeles v. Lyons, 461 U.S. 95, 103
(1983). That is all appellants offer here. The relief sought had
been granted before the complaint even reached the judge. The
preexisting controversy was therefore moot. The district court
correctly dismissed the case. There was no showing that the
alleged wrong was likely to recur.

Appellants also rely on the “voluntary cessation” exception
to the mootness rule. Such an exception, perhaps even rarer
than the capable of repetition exception, applies when a
defendant has voluntarily stopped the transaction, but may
“return to [its] old ways.” United States v. W.T. Grant Co., 345
U.S. 629, 632 (1953). It does not apply where “‘there is no
reasonable expectation . . . that the alleged violation will recur’
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and . . . ‘interim relief or events have completely and irrevocably
eradicated the effects of the alleged violation.’” Del Monte, 565
F. Supp. 2d at 113 (quoting Doe v. Harris, 696 F.2d 109, 111
(D.C. Cir. 1982)).

The district court correctly ruled that this exception is
unavailable for multiple reasons. First, the exception is
designed to prevent a defendant from “rendering a case moot
through manipulative unilateral action after the case is filed.”
Id. (citing United States v. W.T. Grant Co., 345 U.S. at 649). In
this case, although Del Monte did not learn of the grant of its
license until after it had filed the lawsuit, responsible OFAC
officials signed the license six days prior to the filing of the
complaint. Therefore, the exception is inapplicable at the outset.
Even if the exception otherwise applied, appellants have failed
to bring this case within it, in that they have shown no
reasonable expectation that the alleged violation will recur, and
events have completely eradicated the effects of the delay in the
issuance of the license.

In short, I would affirm the decision of the district court. I
therefore respectfully dissent.