Slip Op. 20-132
UNITED STATES COURT OF INTERNATIONAL TRADE
BIOPARQUES DE OCCIDENTE, S.A. DE C.V., AGRICOLA LA PRIMAVERA, S.A. DE C.V., AND KALIROY FRESH LLC,
Plaintiffs,
v. Before: Jennifer Choe-Groves, Judge UNITED STATES, Court Nos. 19-00204, 19-00210, 20-00035 Defendant,
and
THE FLORIDA TOMATO EXCHANGE,
Defendant-Intervenor.
OPINION AND ORDER
[Granting Defendant’s motion to dismiss.]
Dated: September 11, 2020
Jeffrey M. Winton, Michael Chapman, Amrietha Nellan, and Vi N. Mai, Winton & Chapman PLLC, of Washington, D.C., for Plaintiffs Bioparques de Occidente, S.A. de C.V., Agricola La Primavera, S.A. de C.V., and Kaliroy Fresh LLC.
Elizabeth Anne Speck, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for Defendant United States. On the brief were Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin E. White, Jr., Assistant Director. Of counsel was Emma T. Hunter, Office of Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce.
Jonathan M. Zielinski, Robert C. Cassidy, Jr., Charles S. Levy, James R. Cannon, Jr., Mary Jane Alves, and Chase J. Dunn, Cassidy Levy Kent (USA) LLP, of Washington, D.C., for The Florida Tomato Exchange. Court Nos. 19-00204, 19-00210, 20-00035 Page 2
Choe-Groves, Judge: Plaintiffs Bioparques de Occidente, S.A. de C.V., Agricola La
Primavera, S.A. de C.V., and Kaliroy Fresh LLC (“Bioparques”) filed identical complaints
asserting different jurisdictional grounds in the following three actions challenging the final
determination made in the antidumping duty investigation of fresh tomatoes from Mexico
conducted by the U.S. Department of Commerce (“Commerce”), Fresh Tomatoes from Mexico,
84 Fed. Reg. 57,401 (Dep’t Commerce Oct. 25, 2019) (final determination of sales at less than
fair value): (1) Bioparques de Occidente, S.A. de C.V. v. United States, Court No. 19-00204;
(2) Bioparques de Occidente, S.A. de C.V. v. United States, Court No. 19-00210; and
(3) Bioparques de Occidente, S.A. de C.V. v. United States, Court No. 20-00035.1
Bioparques pleads jurisdiction in Court Nos. 19-00204 and 19-00210 under 28 U.S.C.
§ 1581(c) through separate provisions of 19 U.S.C. § 1516a, and alternatively under this Court’s
residual jurisdiction, 28 U.S.C. § 1581(i)(4). Compl. ¶ 2. Specifically, Bioparques filed Court
No. 19-00204 under 19 U.S.C. § 1516a(a)(2)(A) and (B)(iv), id., which specifically refers to
judicial review of “any final determination resulting from a continued investigation which
changes the size of the dumping margin or net countervailable subsidy calculated, or the
reasoning underlying such calculations, at the time the suspension agreement was concluded.”
Bioparques filed Court No. 19-00210 under the special rules applicable to appeals of final
determinations involving NAFTA countries when review by a binational panel has not been
requested, 19 U.S.C. § 1516a(g)(3)(A)(i), and pleaded alternatively residual jurisdiction under 28
U.S.C. § 1581(i)(4). Compl. ¶ 2, Court No. 19-00210. Bioparques filed Court No. 20-00035
under 28 U.S.C. § 1581(i) if the court found the claims presented in Court Nos. 19-00204 and
1 For ease of reference and because the three complaints are generally identical, except in pleading jurisdiction, the court refers to the three complaints as the “Complaint” and, unless otherwise noted, cites only to the Complaint in the first-filed case, Court No. 19-00204. Court Nos. 19-00204, 19-00210, 20-00035 Page 3
19-00210 not cognizable under 19 U.S.C. § 1516a. Compl. ¶ 2, Court No. 19-00210; Pls.’ Resp.
to Def.’s Mot. to Dismiss 3, ECF No. 34 (“Opp’n Br.”).2
Before the court is the motion to dismiss filed by Defendant United States (“Defendant”)
pursuant to USCIT Rule 12(b)(1) for lack of subject matter jurisdiction and USCIT Rule 12(b)(6)
for failure to state a claim upon which relief can be granted. Def.’s Mot. to Dismiss Br., ECF
No. 30 (“Def. Br.”). Bioparques opposed. Opp’n Br at 4–25. Defendant replied. Def.’s Am.
Reply in Supp. of its Mot. to Dismiss Pls.’ Compls., ECF No. 37 (“Def. Reply”).3 For the
reasons that follow, the court grants Defendant’s motion to dismiss.
I. BACKGROUND
A. History of the Fresh Tomatoes from Mexico Antidumping Duty Proceeding
Commerce’s investigation of fresh tomatoes has a long procedural history. In April
1996, Commerce initiated an antidumping duty investigation to determine whether imports of
fresh tomatoes from Mexico were being, or likely to be, sold in the United States at less than fair
value. Fresh Tomatoes from Mexico, 61 Fed. Reg. 18,377 (Dep’t Commerce Apr. 25, 1996)
(initiation of antidumping duty investigation). After a preliminary determination from the
International Trade Commission (“ITC”), Commerce made a preliminary determination that
imports of fresh tomatoes from Mexico were being sold in the United States at less than fair
value. Compl. ¶ 6; Fresh Tomatoes from Mexico, 61 Fed. Reg. 56,608 (Dep’t Commerce Nov.
2 Plaintiffs “believe that there is some ambiguity as to which of the relevant statutory provisions apply to [its] claims. . . . [And] therefore filed redundant appeals under all three statutory provisions in order to ensure that, however the provisions might be interpreted, the Court would have jurisdiction to hear all of Plaintiffs’ claims under at least one of the actions Plaintiffs filed.” Opp’n Br. at 4. 3 Defendant-Intervenor The Florida Tomato Exchange “support[s] the entirety of the United States’ motion and agree[s] with the arguments presented therein.” Def.-Intervenor’s Resp. 2, ECF No. 33. Court Nos. 19-00204, 19-00210, 20-00035 Page 4
1, 1996) (preliminary determination). That same day, Commerce and certain growers and
exporters who accounted for substantially all of the imports of fresh tomatoes from Mexico into
the United States published a notice in the Federal Register announcing an agreement under 19
U.S.C. § 1673c(c) to suspend the antidumping duty investigation on fresh tomatoes from
Mexico. Compl. ¶ 7; Fresh Tomatoes from Mexico, 61 Fed. Reg. 56,618 (Dep’t Commerce
Nov. 1, 1996) (suspension of antidumping investigation). Commerce then instructed Customs
and Border Protection (“CBP”) to terminate the suspension of liquidation, release any bonds, and
refund cash deposits. CBP Message No. 7327113 (Nov. 22, 1996); see Fresh Tomatoes from
Mexico, 61 Fed. Reg. at 56,619.
After entering the suspension agreement in 1996, Commerce and the signatories4 entered
into a series of suspension agreements after the Mexican exporters and producers of fresh
tomatoes gave notice of intent to withdraw from the operative suspension agreement in 2002,
2007, and 2013. Compl. ¶¶ 8–10; see Fresh Tomatoes from Mexico, 84 Fed. Reg. 20,858,
20,859–61 (Dep’t Commerce May 13, 2019) (termination of suspension agreement, rescission of
administrative review, and continuation of the antidumping duty investigation) (“May 2019
Withdrawal Notice”) (explaining the history of the proceedings). Each time the signatory
Mexican producers/exporters withdrew from the relevant suspension agreement in effect at that
time, the parties negotiated and entered into a new suspension agreement, and, in 2002, 2008,
4 The term “signatory” or “signatories” mentioned throughout the various suspension agreements refers to “producers/exporters accounting for substantially all imports of fresh tomatoes from Mexico.” Fresh Tomatoes from Mexico, 84 Fed. Reg. 49,987, 49,987 (Dep’t Commerce Sept. 24, 2019) (suspension of antidumping duty investigation); Fresh Tomatoes from Mexico, 78 Fed. Reg. 14,967, 14,968 (Dep’t Commerce Mar. 8, 2013) (suspension of antidumping investigation); Fresh Tomatoes from Mexico, 73 Fed. Reg. 4831 (Dep’t Commerce Jan. 28, 2008) (suspension of antidumping investigation); Fresh Tomatoes from Mexico, 67 Fed. Reg. 77,044 (Dep’t Commerce Dec. 16, 2002) (suspension of antidumping investigation); Fresh Tomatoes from Mexico, 61 Fed. Reg. at 56,619. Court Nos. 19-00204, 19-00210, 20-00035 Page 5
and 2013, new suspension agreements went into effect. Fresh Tomatoes from Mexico, 67 Fed.
Reg. 77,044 (Dep’t Commerce Dec. 16, 2002) (suspension of antidumping investigation); Fresh
Tomatoes from Mexico, 73 Fed. Reg. 4831 (Dep’t Commerce Jan. 28, 2008) (suspension of
antidumping investigation); Fresh Tomatoes from Mexico, 78 Fed. Reg. 14,967 (Dep’t
Commerce Mar. 8, 2013) (suspension of antidumping investigation).
B. Commerce’s Withdrawal from the 2013 Suspension Agreement, Continuation of the Underlying Investigation, and Signing of the 2019 Suspension Agreement
Section VI.B of the 2013 Suspension Agreement allowed either party (Commerce or the
Mexican signatories) to withdraw from that agreement upon giving 90 days’ written notice.
Commerce gave the signatory Mexican tomato growers and exporters notice of intent to
withdraw from the 2013 Suspension Agreement on February 6, 2019. May 2019 Withdrawal
Notice, 84 Fed. Reg. at 20,860; Fresh Tomatoes from Mexico, 84 Fed. Reg. 7872, 7874 (Dep’t
Commerce Mar. 5, 2019) (notice of intent to terminate suspension agreement, rescind the sunset
and administrative reviews, and resume the antidumping duty investigation). Commerce then
withdrew from the 2013 Suspension Agreement, effective May 7, 2019, and continued the
underlying antidumping investigation. Compl. ¶¶ 11–12; May 2019 Withdrawal Notice, 84 Fed.
Reg. at 20,858.
Commerce published a notice in the Federal Register with an effective date of September
19, 2019, announcing that “Commerce and representatives of the signatory producers/exporters
accounting for substantially all imports of fresh tomatoes from Mexico signed” an agreement to
suspend the antidumping duty investigation. Fresh Tomatoes from Mexico, 84 Fed. Reg. at
49,989; Compl. ¶ 13. No party challenged Commerce’s decision to suspend the investigation.
The ITC also announced the suspension of its antidumping investigation as of September 24, Court Nos. 19-00204, 19-00210, 20-00035 Page 6
2019. Fresh Tomatoes from Mexico, 84 Fed. Reg. 54,639 (Int’l Trade Comm’n Oct. 10, 2019)
(suspension of anti-dumping investigation).
C. Commerce’s Final Determination
After signing the 2019 Suspension Agreement, Commerce received requests to continue
its antidumping duty investigation under 19 U.S.C. § 1673c(g). Compl. ¶ 13; Fresh Tomatoes
from Mexico, 84 Fed. Reg. at 57,401. On October 25, 2019, Commerce published its final
determination in the continued investigation, finding that fresh tomatoes from Mexico were
being, or likely to be, sold in the United States at less than fair value. Compl. ¶ 13; Fresh
Tomatoes from Mexico, 84 Fed. Reg. at 57,402. The ITC issued an affirmative injury
determination on December 12, 2019. Fresh Tomatoes from Mexico, 84 Fed. Reg. 67,958 (Int’l
Trade Comm’n Dec. 12, 2019) (notice of material injury determination).
D. The Current Litigation
Bioparques filed the Summons in Court No. 19-00204 on November 22, 2019, ECF No.
1, and in Court No. 19-00210 on December 3, 2019, ECF No. 1. Bioparques then filed the
Complaint in Court No. 19-00204 on December 20, 2019, ECF No. 9, and in Court No.
19-00210 on December 23, 2019, ECF No. 9. Bioparques filed the Summons and Complaint
concurrently in Court No. 20-00035, ECF Nos. 1, 4, on February 5, 2020.
Bioparques alleges that “Commerce’s final determination in [the underlying
investigation] was arbitrary and capricious, unsupported by substantial evidence on the record, or
otherwise not in accordance with law[.]” Compl. ¶ 14. Specifically, Bioparques challenges
Commerce’s continuation of the investigation, respondent selection decision, differential pricing
analysis, margin calculation methodology, and the calculation of general and administrative
expenses. Id. As relief, Bioparques requests that the court find unlawful and vacate Court Nos. 19-00204, 19-00210, 20-00035 Page 7
Commerce’s withdrawal from the 2013 Suspension Agreement and the final determination in the
underlying fresh tomatoes investigation. Id. ¶ 15.
II. DISCUSSION
Article III of the Constitution limits federal courts to hearing actual, ongoing
controversies. Davis v. FEC, 554 U.S. 724, 732 (2008). An actual case or controversy must be
extant at all stages of review, not merely at the time the complaint is filed. Id. at 732–33; see
DaimlerChrysler Corp. v. United States, 442 F.3d 1313, 1318 (Fed. Cir. 2006) (noting that the
Court is “presumed to be without jurisdiction unless the contrary appears affirmatively from the
record” (internal quotation marks and citations omitted)). “Though justiciability has no precise
definition or scope, doctrines of standing, mootness, ripeness, and political question are within
its ambit.” Fisher v. United States, 402 F.3d 1167, 1176 (Fed. Cir. 2005).
The party invoking jurisdiction bears the burden of establishing it. Hutchinson Quality
Furniture, Inc. v. United States, 827 F.3d 1355, 1359 (Fed. Cir. 2016) (internal quotation marks
and citation omitted). A plaintiff must allege sufficient facts to state each claim alleged in the
complaint. DaimlerChrysler Corp., 442 F.3d at 1318–19 (citing, inter alia, McNutt v. Gen.
Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). “If the court determines at any time that it
lacks subject-matter jurisdiction, the court must dismiss the action.” USCIT R. 12(h)(3).
Defendant argues that Bioparques’ claims are not justiciable. Def. Br. at 13–20.
Specifically, Defendant contends that Bioparques’ challenge of Commerce’s withdrawal from
the 2013 Suspension Agreement and continuation of the underlying investigation is moot
because Bioparques is a member of an association of Mexican exporters/producers of fresh
tomatoes that signed the 2019 Suspension Agreement, and thus pays no antidumping duties. See
Def. Br. at 14–15; Def. Reply at 8–10. Defendant also avers that Bioparques’ claims are not ripe Court Nos. 19-00204, 19-00210, 20-00035 Page 8
for review because Bioparuqes cannot plead a cognizable injury stemming from a final
determination that has no legal effect because of the extant suspension agreement, and has not
identified how the court could redress the purported injury. Def. Br. at 19–20; Def. Reply at 6–8.
Bioparques responds that although its complaint did not contain a specific count challenging the
suspension agreement, the claims present a live controversy and that “the Court has the authority
to vacate all actions by Commerce that flowed from the unlawful termination of the 2013
suspension agreement.” Opp’n Br. at 23.
There is no “case or controversy” under Article III, and a suit becomes moot, “when the
issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the
outcome.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quoting Murphy v. Hunt, 455
U.S. 478, 481 (1982) (per curiam)). The mootness doctrine applies when “events have so
transpired that the [court’s] decision will neither presently affect the parties’ rights nor have a
more-than-speculative chance of affecting them in the future.” Clarke v. United States, 915 F.2d
699, 701 (D.C. Cir. 1990) (en banc) (citation omitted).
An action can avoid dismissal on mootness grounds if the claims asserted in the
complaint are “capable of repetition, yet evading review.” Spencer v. Kemna, 523 U.S. 1, 17
(1998); Torrington Co. v. United States, 44 F.3d 1572, 1577 (Fed. Cir. 1995) (citations omitted).
“[T]he capable-of-repetition doctrine applies only in exceptional situations,” when a plaintiff can
show that “(1) the challenged action [is] in its duration too short to be fully litigated prior to
cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining
party [will] be subject to the same action again.” Spencer, 523 U.S. at 17 (internal quotation
marks and citations omitted); see Honeywell Int’l, Inc. v. Nuclear Regulatory Comm’n, 628 F.3d
568, 576 (D.C. Cir. 2010) (“The initial heavy burden of establishing mootness lies with the party Court Nos. 19-00204, 19-00210, 20-00035 Page 9
asserting a case is moot,” yet “the opposing party bears the burden of showing an exception
applies[.]”). Supreme Court precedent recognizes that “inherently transitory” claims are capable
of evading review. U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 399 (1980); e.g., Davis, 554
U.S. at 735 (election law challenge); Neb. Press Ass’n v. Stuart, 427 U.S. 539, 542 (1976)
(imposing prior restraints on speech); Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975) (pretrial
detention conditions).
“Ripeness is a justiciability doctrine designed to prevent the courts, through avoidance of
premature adjudication, from entangling themselves in abstract disagreements over
administrative policies, and also to protect the agencies from judicial interference until an
administrative decision has been formalized and its effects felt in a concrete way by
the challenging parties.” Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 807–08
(2003) (internal quotation marks and citations omitted); Martin v. United States, 894 F.3d 1356,
1362 (Fed. Cir. 2018). Two criteria guide a court in determining ripeness: “(1) the fitness of the
issues for judicial decision and (2) the hardship to the parties of withholding court
consideration.” Nat’l Park Hosp. Ass’n, 538 U.S. at 808.
Here, the court concludes that Bioparques’ claims challenging the final determination are
unripe. Bioparques suffers no concrete or particularized injury from an as-yet-unpublished
antidumping duty order that has no effect and may never have any effect so long as the 2019
Suspension Agreement remains in place. For the same reason, Bioparques cannot meet the
hardship requirement because Bioparques pays no antidumping duties as a member of the
Asociación Mexicana de Horticultura Protegida, A.C. (“AMHPAC”), an association of Court Nos. 19-00204, 19-00210, 20-00035 Page 10
individual Mexican fresh tomato growers that is a signatory to the 2019 Suspension Agreement.5
Fresh Tomatoes from Mexico, 84 Fed. Reg. at 49,994; see Compl. n.1, CAADES, Court No. 19-
00203, ECF No. 14, Compl., Ex. 1, ECF No. 14-1 (identifying Bioparques de Occidente, S.A. de
C.V. and Agricola La Primavera, S.A. de C.V. as members of AMHPAC and signatories to the
2019 Suspension Agreement).6
AMHPAC and the other associations of individual Mexican fresh tomato growers who
signed the 2019 Suspension Agreement “certif[ied] that the members of their organization agree
to abide by all terms of the Agreement.” Fresh Tomatoes from Mexico, 84 Fed. Reg. at 49,994.
Thus, Bioparques’ challenge to the final determination does not present an actual case or
controversy when Bioparques pays no duties as a signatory to the 2019 Suspension Agreement.
See, e.g., Usinas Siderúrgicas de Minas Gerais S/A v. United States, 26 CIT 422, 431 (2002) (“A
continued final affirmative determination [made after Commerce resumed an investigation after
finalizing a suspension agreement] has no practical effect, unless and until the related suspension
agreement is dissolved . . . . Thus, many of the same jurisprudential concerns that militate
against piecemeal litigation also weigh against litigation of . . . a challenge which is not yet (and
may never be) ripe.”) (“Usinas”).7
5 AMHPAC is also a party plaintiff in cases challenging Commerce’s withdrawal of the 2013 Suspension Agreement, finalization of the 2019 Suspension Agreement, and the final determination in the continued fresh tomatoes investigation in AMHPAC v. United States, Court No. 20-00036, and Confederacion de Asociaciones Agricolas del Estado de Sinaloa, A.C. v. United, Court Nos. 19-00203 and 19-00206 (“CAADES”). 6 Section II.E of the 2019 Suspension Agreement identifies CAADES, AMHPAC, and three other entities as “a Mexican grower association whose members produce and/or export Fresh Tomatoes from Mexico and are also Signatories to this Agreement[.]” Fresh Tomatoes from Mexico, 84 Fed. Reg. at 49,990. 7 Bioparques’ reliance on the Court’s decisions in CSC Sugar LLC v. United States, 43 CIT ___, 413 F. Supp. 3d 1318 (2019), and CSC Sugar LLC v. United States, 43 CIT ___, 413 F. Supp. 3d Court Nos. 19-00204, 19-00210, 20-00035 Page 11
The parties dispute whether the Complaint contains a challenge to the 2019 Suspension
Agreement. Def. Br. at 11; Opp’n Br. at 6–7. Even if the Complaint included a count
challenging the new suspension agreement, that type of pleading deficiency is of no moment
because any claims that could have been raised under 28 U.S.C. § 1581(c) contesting
Commerce’s withdrawal from the 2013 Suspension Agreement, resumption of the underlying
investigation, or signing of the 2019 Suspension Agreement became moot when Bioparques
signed the 2019 Suspension Agreement. See Nasatka v. Delta Sci. Corp., 58 F.3d 1578, 1580
(Fed. Cir. 1995) (“The test for mootness . . . is whether the relief sought would, if granted, make
a difference to the legal interests of the parties[.]” (citation omitted)).8 Accordingly, the court
cannot condone Bioparques’ litigation strategy in reaping the benefits of the 2019 Suspension
Agreement while bringing an after-the-fact challenge to the final determination that currently has
no impact and demanding that the court resurrect the 2013 Suspension Agreement when the
claims here are not yet (and may never be) ripe.
The Mexican producers/exporters of fresh tomatoes may withdraw from the 2019
Suspension Agreement for any reason, or for no reason at all, and without penalty, under a
similar withdrawal provision invoked three times before. In that event, Commerce would issue
the antidumping duty order, but there is no logical scenario in which the superseded 2013
1310 (2019) is misplaced. Unlike here, the Court in CSC Sugar LLC vacated amendments to extant suspension agreements. 413 F. Supp. 3d at 1326; 413 F. Supp. 3d at 1318. Further, the plaintiff in CSC Sugar LLC, a domestic sugar refiner, was not a signatory to the operative suspension agreement. 8 The court need not address Defendant’s unanswered argument that no exception to the mootness doctrine applies here, Def. Br. at 17–19, beyond mentioning the absence of precedent or persuasive case law showing that this case is an “exceptional situation” in which the challenged actions are “capable of repetition, yet evading review.” See Spencer, 523 U.S. at 17; Am. Spring Wire Corp. v. United States, 6 CIT 122, 124 (1983) (finding exception to mootness inapplicable because “[s]uspension agreements . . . will generally be of long duration”). Court Nos. 19-00204, 19-00210, 20-00035 Page 12
Suspension Agreement would be reinstated. As long as Plaintiffs remain signatories to the 2019
Suspension Agreement, the dumping margins will have no effect and will have no impact on
Plaintiffs.
The court concludes that Bioparques’ failure to plead an actual case or controversy
compels dismissal. Because Bioparques’ claims are not ripe and are otherwise moot under
USCIT Rule 12(b)(1), the court need not discuss the parties’ arguments as to whether
Bioparques’ claims are time-barred or should be dismissed for failure to state a claim under
USCIT Rule 12(b)(6).
III. CONCLUSION
For the foregoing reasons, it is
ORDERED that Defendant’s motion to dismiss is granted and Plaintiffs’ Complaints are
dismissed with prejudice. Judgment will enter accordingly.
/s/ Jennifer Choe-Groves Jennifer Choe-Groves, Judge
Dated: September 11, 2020 New York, New York