America Cargo Transport, Inc. v. United States, 625 F.3d 1176

ACT sued the United States (USAID and MARAD) alleging violations of cargo preference laws under the Food for Peace program and sought injunctive, declaratory relief and damages plus EAJA fees.
Cargo preference requires at least 50% of gross tonnage on U.S.-flag vessels (and 25% under FSA for certain commodities), with 75% minimum where FSA applies, and U.S.-flag carriage generally required unless MARAD and USAID concur that vessels are unavailable or there is a substantial valid reason for foreign-flag vessels.
In 2005, two freight forwarders solicited bids for transporting vegetable oil; Maersk offered $125/ton and ACT offered $520/ton for a full shipload; USAID recommended partial shipment to Maersk and foreign-flag bids for the remainder.
ACT alleged Maersk’s vessel status was not truly a P1 U.S.-flag vessel and that MARAD concurrence would have favored ACT’s bid if properly sought under § 381.5; USAID interpreted § 381.5 differently than MARAD.
A district court stayed proceedings in 2006 pending reconciliation between USAID and MARAD; after the stay, the government later adopted ACT’s position, asserting MARAD concurrence was required for less-than-full shipload bids.
The district court granted summary judgment, holding ACT’s § 381.5 claims moot and dismissing other claims for unjust enrichment and damages, while denying EAJA fees; this appeal followed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Mootness of § 381.5 claims	ACT argues ongoing relief requested; government’s change of position does not render moot.	Government contends the dispute is moot because policy shifted in ACT’s favor and ship completed.	Claims under § 381.5 moot; declaratory and injunctive relief denied.
Sovereign immunity for damages under SAA	ACT seeks money damages for bid rejection under cargo laws; SAA waives immunity for private-like admiralty claims.	No private analogue to CPA/FSA; SAA does not waive immunity for government-regulated conduct.	Damages claims barred; SAA does not waive sovereign immunity here.
EAJA fees and prevailing party status	ACT was a prevailing party due to regulatory victory against government interpretation.	Prevailing party status requires judicially sanctioned alteration; government action was voluntary.	EAJA denied; ACT not a prevailing party.

Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167 (2000) (voluntary cessation moots unless likely to recur)
United States v. W.T. Grant Co., 345 U.S. 629 (1953) (heavy burden to show recurrence of illegal conduct)
County of Los Angeles v. Davis, 440 U.S. 625 (1979) (mootness where effects have been eradicated)
White v. Lee, 227 F.3d 1214 (9th Cir. 2000) (permanent policy change supports mootness)
Lyons v. City of Los Angeles, 615 F.2d 1243 (9th Cir. 1980) (official policy change reduces recurrence risk)
Ragsdale v. Turnock, 841 F.2d 1358 (7th Cir. 1988) (government assurances can render challenges moot)
Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096 (10th Cir. 2010) (government policy assurances treated with solicitude)
Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320 (11th Cir. 2004) (government actors given leeway on policy changes)
Ammex, Inc. v. Cox, 351 F.3d 697 (6th Cir. 2003) (government cessation treated with solicitude)
Westbay Steel, Inc. v. United States, 970 F.2d 648 (9th Cir. 1992) (FTCA analogies to Miller Act context; private liability not present)
Taghadomi v. United States, 401 F.3d 1080 (9th Cir. 2005) (FTCA-like waiver analysis for admiralty context)