Slip Op. 20-93
UNITED STATES COURT OF INTERNATIONAL TRADE
CONFEDERACIÓN DE ASOCIACIONES AGRÍCOLAS DEL ESTADO DE SINALOA, A.C., ET AL.,
Plaintiffs,
v. Before: Jennifer Choe-Groves, Judge UNITED STATES, Court No. 19-00203 Defendant,
and
THE FLORIDA TOMATO EXCHANGE,
Defendant-Intervenor.
CONFEDERACIÓN DE ASOCIACIONES AGRÍCOLAS DEL ESTADO DE SINALOA, A.C., ET AL.,
v.
UNITED STATES, Court No. 19-00206 Defendant,
Defendant-Intervenor. Court Nos. 19-00203, 19-00206, 20-00036 Page 2
ASOCIACIÓN MEXICANA DE HORTICULTURA PROTEGIDA, A.C., ET AL.,
UNITED STATES, Court No. 20-00036 Defendant,
OPINION AND ORDER
[Granting Defendant’s motion to dismiss for failure to state a claim.]
Dated: July 7, 2020
Christopher Ryan, Thomas B. Wilner, Robert S. LaRussa, and Neil H. Koslowe, Shearman & Sterling LLP, of Washington, D.C., and Spencer S. Griffith, Bernd G. Janzen, Yujin K. McNamara, and Devin S. Sikes, Akin Gump Strauss Hauer & Feld LLP, of Washington, D.C., for Plaintiffs Confederación de Asociaciones Agrícolas del Estado de Sinaloa, A.C., Consejo Agrícola de Baja California, A.C., Asociación Mexicana de Horticultura Protegida, A.C., Asociación de Productores de Hortalizas del Yaqui y Mayo, and Sistema Producto Tomate.1
Elizabeth Anne Speck, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of New York, N.Y., 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.
1 Plaintiffs substituted the law firm of Shearman & Sterling LLP for Akin Gump Strauss Hauer & Feld LLP as counsel of record after Defendant’s motion to dismiss was fully briefed. Notice of Substitution of Att’y, ECF No. 37, Court No. 19-00203; ECF No. 36, Court No. 19-00206; ECF No. 25, Court No. 20-00036. Court Nos. 19-00203, 19-00206, 20-00036 Page 3
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.
Choe-Groves, Judge: Plaintiffs Confederación de Asociaciones Agrícolas del Estado de
Sinaloa, A.C. (“CAADES”), Consejo Agrícola de Baja California, A.C. (“CABC”), Asociación
Mexicana de Horticultura Protegida, A.C. (“AMHPAC”), Asociación de Productores de
Hortalizas del Yaqui y Mayo (“APHYM”), and Sistema Producto Tomate (“SPT”), and their
individual members (collectively, “Plaintiffs” or “Mexican Growers”) filed three complaints,
which the Mexican Growers have submitted in three forms to satisfy all possible jurisdictional
requirements and the North American Free Trade Agreement (“NAFTA”) procedures.2 The
Mexican Growers challenge the Department of Commerce’s (“Commerce”) withdrawal and
termination from a suspension agreement, the continuation of the subject antidumping duty
investigation on fresh tomatoes from Mexico, and Commerce’s final determination made in the
subject antidumping duty investigation. Compl. ¶ 1; Fresh Tomatoes from Mexico, 84 Fed. Reg.
20,858, 20,860 (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”); Fresh Tomatoes from Mexico, 61 Fed. Reg. 18,377 (Dep’t
Commerce Apr. 25, 1996) (notice of initiation of antidumping duty investigation); Fresh
Tomatoes from Mexico, 61 Fed. Reg. 56,618 (Dep’t Commerce Nov. 1, 1996) (suspension of
2 CAADES filed complaints in the following matters: CAADES v. United States, Court No. 19-00203, ECF No. 14; CAADES v. United States, Court No. 19-00206, ECF. No. 13; and AMHPAC v. United States, Court No. 20-00036, ECF No. 2. Even though the order of the named plaintiffs is arranged differently in Court No. 20-00036, CAADES filed the complaint. For ease of reference and because the three complaints are generally identical, except in paragraph 7 of the complaint in Court Nos. 19-00203 and 19-00206 (the timeliness of the action), and the pleading of jurisdiction in Court No. 20-00036, 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. 19-00203. Court Nos. 19-00203, 19-00206, 20-00036 Page 4
antidumping investigation); Fresh Tomatoes from Mexico, 61 Fed. Reg. 56,608 (Dep’t
Commerce Nov. 1, 1996) (preliminary determination) (“1996 Preliminary Determination”).
Specifically, Plaintiffs allege that Commerce’s “[final] determination is based on a sham
investigation that Commerce invalidly undertook after it unlawfully terminated a 2013
suspension agreement between the Secretary of Commerce and the Mexican Growers and forced
the Mexican Growers to sign a 2019 suspension agreement.” Compl. ¶ 1. Plaintiffs are parties
to the suspension agreements involved in this case and are subject to the challenged final
determination issued by Commerce. Id. ¶ 2.
Before the court is Defendant United States’ Motion to Dismiss Plaintiffs’ Complaints for
lack of subject matter jurisdiction and for failure to state a claim upon which relief can be
granted. Def.’s Mot. to Dismiss Br., ECF No. 30 (“Def. Br.”). Plaintiffs opposed. Pls.’ Opp’n
to Def.’s Mot. to Dismiss Pls.’ Compls., ECF No. 33 (“Pls. Opp’n). Defendant replied. Def.’s
Reply in Supp. of its Mot. to Dismiss Pls.’ Compls., ECF No. 36 (“Def. Reply”).3
For the reasons that follow, Defendant’s motion to dismiss is granted.
I. BACKGROUND
A. History of the Fresh Tomatoes from Mexico Antidumping Duty Proceeding
Commerce’s investigation of fresh tomatoes from Mexico spans almost a quarter century.
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. at 18,377. Following a
preliminary determination from the International Trade Commission (“ITC”), Commerce made a
3 Defendant-Intervenor The Florida Tomato Exchange did not join in Defendant’s motion to dismiss. Nonetheless, Defendant-Intervenor “support[s] the entirety of the United States’ motion and agree[s] with the arguments presented therein.” Def.-Intervenor’s Resp. 2, ECF No. 34. Court Nos. 19-00203, 19-00206, 20-00036 Page 5
preliminary determination in October 1996, finding that imports of fresh tomatoes from Mexico
were being sold in the United States at less than fair value. See 1996 Preliminary Determination,
61 Fed. Reg. at 56,608. Commerce was required to make a final determination within 75 days
after the date of its preliminary determination, 19 U.S.C. § 1673d(a)(1), but it received requests
from five of six mandatory respondents to keep the investigation open, 1996 Preliminary
Determination, 61 Fed. Reg. at 56,609; Compl. ¶ 10. Under 19 U.S.C. § 1673d(a)(2)(A),
Commerce postponed making a “final determination until the 135th day after the date of
publication of the affirmative preliminary determination in the Federal Register[,]” which was
March 16, 1997. 1996 Preliminary Determination, 61 Fed. Reg. at 56,609; Compl. ¶ 10.
That same day, Commerce announced that Commerce and the signatories had signed an
agreement to suspend the investigation—the 1996 Suspension Agreement. Fresh Tomatoes from
Mexico, 61 Fed. Reg. at 56,618; 19 U.S.C. § 1673c(c).4 The 1996 Suspension Agreement
provided that exporters were compelled to sell fresh tomatoes in the United States at or above an
established “reference price.” Fresh Tomatoes from Mexico, 61 Fed. Reg. at 56,618. Commerce
instructed Customs and Border Protection (“CBP”) to terminate the suspension of liquidation and
collection of cash deposits, release any bonds, and refund cash deposits. Compl. ¶ 14 (citing
CBP Message No. 7327113 (Nov. 22, 1996)); see Fresh Tomatoes from Mexico, 61 Fed. Reg. at
56,619.
Over the next 23 years, Commerce and the signatories entered into a series of suspension
agreements after the Mexican Growers gave notice that they wanted to withdraw from the
4 The term “signatory” or “signatories” throughout the various suspension agreements refers to “the signatory producers/exporters of fresh tomatoes from Mexico.” Fresh Tomatoes from Mexico, 84 Fed. Reg. at 49,989; Fresh Tomatoes from Mexico, 78 Fed. Reg. at 14,968; Fresh Tomatoes from Mexico, 61 Fed. Reg. at 56,619. Court Nos. 19-00203, 19-00206, 20-00036 Page 6
operative suspension agreement. The Mexican Growers informed Commerce of their intent to
withdraw from the relevant suspension agreement three times: in 2002, 2007, and 2013.5 Each
time the Mexican Growers announced their withdrawal from the effective suspension agreement,
Commerce terminated the suspension agreement, resumed the antidumping investigation,
suspended liquidation, and instructed CBP to require a cash deposit or bond at the rate set forth
in the 1996 Preliminary Determination. Fresh Tomatoes from Mexico, 67 Fed. Reg. at 50,860;
Fresh Tomatoes from Mexico, 73 Fed. Reg. at 2889; Fresh Tomatoes from Mexico, 78 Fed. Reg.
at 14,772. Each time the Mexican Growers withdrew from the relevant suspension agreement,
the parties negotiated and entered into a new suspension agreement, and in 2002, 2008, and
2013, new suspension agreements went into effect.6 In those instances, Commerce directed CBP
to refund cash deposits collected during the resumption period of the antidumping duty
investigation and to release any bonds that were posted. See Compl. ¶¶ 21, 27, 34. And in each
instance, Commerce resumed the antidumping duty investigation in 2002, 2008, and 2013 “as if”
the 1996 Preliminary Determination had been made and published in the Federal Register on the
effective date of termination and indicated that the investigation would be completed within 135
5 See Fresh Tomatoes from Mexico, 67 Fed. Reg. 50,858, 50,858–59 (Dep’t Commerce Aug. 6, 2002) (notice of termination of suspension agreement, termination of sunset review, and resumption of antidumping investigation); Fresh Tomatoes from Mexico, 73 Fed. Reg. 2887, 2887–88 (Dep’t Commerce Jan. 16, 2008) (notice of termination of suspension agreement, termination of sunset review, and resumption of antidumping investigation); Fresh Tomatoes from Mexico, 78 Fed. Reg. 14,771, 14,771 (Dep’t Commerce Mar. 7, 2013) (notice of termination of suspension agreement, termination of sunset review, and resumption of antidumping investigation). 6 Fresh Tomatoes from Mexico, 67 Fed. Reg. 77,044 (Dep’t Commerce Dec. 16, 2002) (notice of suspension of antidumping investigation); Fresh Tomatoes from Mexico, 73 Fed. Reg. 4,831 (Dep’t Commerce Jan. 28, 2008) (notice of suspension of antidumping investigation); Fresh Tomatoes from Mexico, 78 Fed. Reg. 14,967, 14,967–68 (Dep’t Commerce Mar. 8, 2013) (notice of suspension of antidumping investigation) (“2013 Suspension Agreement”). Court Nos. 19-00203, 19-00206, 20-00036 Page 7
days. Fresh Tomatoes from Mexico, 67 Fed. Reg. at 50,859–60; Fresh Tomatoes from Mexico,
73 Fed. Reg. at 2889; Fresh Tomatoes from Mexico, 78 Fed. Reg. at 14,772.
B. Commerce Withdraws from the 2013 Suspension Agreement and Continues the 1996 Fresh Tomatoes Investigation
A clause in the 2013 Suspension Agreement allowed a signatory to withdraw upon giving
90 days’ written notice. Under that clause, Commerce withdrew and terminated the 2013
Suspension Agreement, effective May 7, 2019, and resumed the antidumping investigation. See
May 2019 Withdrawal Notice, 84 Fed. Reg. at 20,860–61; 2013 Suspension Agreement, 78 Fed.
Reg. at 14,967. CBP then suspended liquidation of the entries of fresh tomatoes from Mexico
and required the posting of cash deposits or bonds. May 2019 Withdrawal Notice, 84 Fed. Reg.
at 20,860. Commerce also postponed the deadline for making a final determination because
“[t]he statute d[id] not identify the timing for completion of this investigation in this particular
scenario.” Id. Commerce thus resumed the antidumping duty investigation and proceeded
towards making a final determination “as if” Commerce had published the 1996 Preliminary
Determination on May 7, 2019. Id.7
7 Commerce’s schedule for issuance of a final determination is based explicitly on the schedule set forth in the 1996 Preliminary Determination:
As explained in its 1996 Preliminary Determination, Commerce previously postponed the final determination until the 135th day after the date of the preliminary determination. Commerce, therefore, intends to issue its final determination in the investigation 135 days after the effective date of withdrawal from and termination of the 2013 Agreement . . . .
May 2019 Withdrawal Notice, 84 Fed. Reg. at 20,860. Court Nos. 19-00203, 19-00206, 20-00036 Page 8
C. The Mexican Growers’ Lawsuit
On May 9, 2019, two days after Commerce announced its decision to withdraw from the
2013 Suspension Agreement, the Mexican Growers brought suit in this court challenging
Commerce’s withdrawal from the 2013 Suspension Agreement and moving for a temporary
restraining order and preliminary injunction. The court denied the Mexican Growers’ request for
a temporary restraining order and preliminary injunction because Plaintiffs failed to show a
likelihood of success on the merits and irreparable harm absent injunctive relief. Confederación
de Asociaciones Agrícolas del Estado de Sinaloa, A.C. v. United States, 43 CIT __, __, 389 F.
Supp. 3d 1386, 1397–98, 1403 (2019), Court No. 19-00059 (“CAADES I”), aff’d In re
Confederación de Asociaciones Agrícolas del Estado de Sinaloa, A.C., 781 F. App’x 982, 983–
84 (Fed. Cir. 2019) (per curiam) (denying a petition for a writ of mandamus and “uphold[ing] the
Trade Court’s determination that the petitioners [we]re unlikely to succeed on the merits of their
challenge to Commerce’s actions,” when Commerce’s withdrawal from the 2013 Suspension
Agreement was lawful and otherwise complied with the statutory framework set out in 19 U.S.C.
§§ 1673b, 1673d).
On September 11, 2019, the court stayed CAADES I until October 21, 2019. CAADES
I, Order, ECF No. 97. Following expiration of the stay, the court requested briefing on
mootness. In response, the Mexican Growers and Defendant stipulated to dismissing
CAADES I. CAADES I, Order of Dismissal, ECF No. 103.
D. The 2019 Suspension Agreement
Commerce published a Federal Register notice with an effective date of September 19,
2019, announcing the suspension of its antidumping duty investigation of fresh tomatoes from
Mexico because Commerce and the Mexican Growers—the signatory producers and exporters Court Nos. 19-00203, 19-00206, 20-00036 Page 9
accounting for a substantial portion of imports of fresh tomatoes from Mexico (85% or more of
subject imports)—signed a new suspension agreement. Fresh Tomatoes from Mexico, 84 Fed.
Reg. 49,987 (Dep’t Commerce Sept. 24, 2019) (notice of suspension of antidumping duty
investigation) (“2019 Suspension Agreement”); see 19 U.S.C. § 1673c(b), (c). No party
challenged Commerce’s decision to suspend the investigation. The ITC also announced that it
was suspending its antidumping investigation as of September 24, 2019. Fresh Tomatoes from
Mexico, 84 Fed. Reg. 54,639 (Int’l Trade Comm’n Oct. 10, 2019) (notice of suspension of
antidumping duty investigation).
E. Commerce’s Final Determination
Commerce continued its antidumping duty investigation under 19 U.S.C. § 1673c(g)
pursuant to timely requests, including from Defendant-Intervenor. On October 25, 2019,
Commerce issued its final determination. Fresh Tomatoes from Mexico, 84 Fed. Reg. 57,401,
57,401 (Dep’t Commerce Oct. 25, 2019) (final determination of sales at less than fair value).
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 affirmative
injury determination).
F. The Current Litigation
Plaintiffs filed three separate actions challenging Commerce’s final determination,
beginning with filing the Summons in Court No. 19-00203 on November 22, 2019, ECF No. 1,
and in Court No. 19-00206 on November 26, 2019, ECF No. 1. Plaintiffs then filed Complaints
in Court No. 19-00203, ECF No. 14, and Court No. 19-00206, ECF No. 13, on December 20, Court Nos. 19-00203, 19-00206, 20-00036 Page 10
2019.8 On February 5, 2020, Plaintiffs filed the Summons and Complaint concurrently in Court
No. 20-00036, ECF Nos. 1, 2.
Plaintiffs allege seven causes of action. Specifically, Plaintiffs challenge as “unlawful,
and null, and void” Commerce’s termination of the 2013 Suspension Agreement, Compl. ¶¶ 53–
55 (Count One), ¶¶ 56–58 (Count Two);9 resumption of the antidumping duty investigation, id.
¶¶ 59–62 (Count Three); finalization of the 2019 Suspension Agreement, id. ¶¶ 63–65 (Count
Four); final determination, id. ¶¶ 66–69 (Count Five); and the correctness of certain aspects of
the final determination (the dumping margins and individual rate determinations), id. ¶¶ 70–75
(Counts Six and Seven). In all, Plaintiffs ask the court to resurrect and reinstate the 2013
Suspension Agreement and declare “unlawful and null and void” the resumed antidumping duty
investigation that Commerce began on May 7, 2019, the 2019 Suspension Agreement, and the
subsequent final determination Commerce made on October 25, 2019. Id. ¶ 76.
II. LEGAL STANDARDS
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
8 Plaintiffs assert that “[t]he complaint in Court No. 19-203 was timely filed on November 22, 2019, meeting the requirements of . . . 19 U.S.C. § 1516a(a)(2)(A)(i)(I), and invoking jurisdiction primarily under 28 U.S.C. § 1581(c). The complaint in Court No. 19-206, which is essentially the same, was timely filed on November 26, 2019, meeting the notice requirements of . . . 19 U.S.C. § 1516a(a)(5)(A), (g)(3)(B), which apply to NAFTA cases, and invoking jurisdiction primarily under 28 U.S.C. 1581(c).” Pls. Opp’n at 13. Plaintiffs are incorrect. The Summonses in Court Nos. 19-00203 and 19-00206 were filed on November 22 and 26, 2019, respectively. The Complaints were both filed later on December 20, 2019. 9 Count Two stands out in particular because Plaintiffs represented to this court in CAADES I that Commerce was allowed to withdraw under the terms of the 2013 Suspension Agreement. CAADES I, 389 F. Supp. 3d at 1396 & n.1. Court Nos. 19-00203, 19-00206, 20-00036 Page 11
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).
In considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court
takes the facts alleged in the complaint as true and views all reasonable inferences from those
facts in the non-moving party’s favor. Ashcroft v. Iqbal, 556 U.S. 672, 678 (2009); Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007); A & D Auto Sales, Inc. v. United States, 748 F.3d
1142, 1147 (Fed. Cir. 2014). Although courts generally consider the allegations contained in the
complaint, the court may also consider documents “incorporated by reference or integral to the
claim, items subject to judicial notice, [and] matters of public record.” A & D Auto Sales, Inc.,
748 F.3d at 1147 (internal quotation marks and citation omitted). To survive a motion to
dismiss, the “complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is
plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
III. DISCUSSION
Defendant contends that the court is precluded from adjudicating Plaintiffs’ claims,
arguing that Plaintiffs cannot show a live case or controversy as to the claims challenging
Commerce’s withdrawal from the 2013 Suspension Agreement, resumption of the investigation,
and finalization of the 2019 Suspension Agreement. Def. Br. at 15–18; Def. Reply at 8. Further,
Defendant also argues that Plaintiffs need not wait for a judicial declaration that the 2019 Court Nos. 19-00203, 19-00206, 20-00036 Page 12
Suspension Agreement is “unlawful, null, and void” because Plaintiffs can simply withdraw
from the current agreement. Def. Reply at 8. For the same reason, Defendant contends that
there is no live case or controversy in challenging the final determination because Plaintiffs
currently pay no antidumping duties while the 2019 Suspension Agreement remains in effect—
an agreement that Plaintiffs can withdraw from at any time. Def. Br. at 21. Defendant and
Defendant-Intervenor point out that Plaintiffs can challenge the final determination if and when
the 2019 Suspension Agreement ends and the antidumping duty order is issued. Id.;
Def-Intervenor Resp. at 5. Defendant asserts “that this litigation is an attempt to obtain the
benefits of a suspension agreement while simultaneously challenging its legality.” Def. Reply at
8.
Plaintiffs counter that the controversy remains live—even though they signed the 2019
Suspension Agreement—because whether the court can invalidate the current 2019 Suspension
Agreement and reinstate the 2013 Suspension Agreement is a merits question that goes to the
court’s power to grant relief, not jurisdiction. Pls. Opp’n at 17–18. Plaintiffs argue that the court
has the power to invalidate the current agreement and resurrect the 2013 Suspension Agreement
because a court decision finding the final determination unlawful would infect the 2019
Suspension Agreement. Id. at 18. Plaintiffs next assert that even if the court cannot disturb the
2019 Suspension Agreement and reinstate the 2013 Suspension Agreement, the controversy
remains live with Plaintiffs challenging the final determination. Id. at 18–20.
Plaintiffs plead jurisdiction under Section 1581(c) and, in the alternative, Section
1581(i)(4). Compl. ¶¶ 4–5. Section 1581(c) grants the Court exclusive jurisdiction over any
civil action commenced under 19 U.S.C. § 1516a, which includes challenges to Commerce’s
final determination made in an antidumping duty proceeding. 19 U.S.C. § 1516a. Section Court Nos. 19-00203, 19-00206, 20-00036 Page 13
1581(i) is a “residual” grant of jurisdiction over all civil actions against the United States arising
out of, inter alia, the “administration and enforcement” of the customs laws. 28 U.S.C.
§ 1581(i)(4). A party cannot invoke Section 1581(i) jurisdiction “when jurisdiction under
another subsection of § 1581 is or could have been available, unless the remedy provided under
that other subsection would be manifestly inadequate.” See Fujitsu Gen. Am., Inc. v. United
States, 283 F.3d 1364, 1371 (Fed. Cir. 2002) (citations omitted). Section 1581(i) does “not
confer jurisdiction over an antidumping or countervailing duty determination which is
reviewable . . . by the Court of International Trade under section 516A(a) of the Tariff Act of
1930 [19 U.S.C. § 1516a].”10
A. The Mootness Doctrine
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).
10 The legislative history of Section 1581(i) shows “that any determination specified in section 516A of the Tariff Act of 1930, [as amended,] or any preliminary administrative action which, in the course of the proceeding, will be, directly or by implication, incorporated in or superceded by any such determination, is reviewable exclusively as provided in section 516A.” M S Int’l, Inc. v. United States, 44 CIT ___, ___, 425 F. Supp. 3d 1332, 1336 (2020) (quoting H.R. Rep. No. 96-1235, at 48 (1980), reprinted in 1980 U.S.C.C.A.N. 3729, 3759–60). Court Nos. 19-00203, 19-00206, 20-00036 Page 14
B. Overcoming the Mootness Bar
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,” where 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
asserting a case is moot,” yet “the opposing party bears the burden of showing an exception
applies[.]”). Supreme Court precedent recognizes “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).
C. The Mexican Growers’ Claims are Moot
Plaintiffs’ Complaint challenges Commerce’s termination of the 2013 Suspension
Agreement, resumption of the antidumping duty investigation, entry into the 2019 Suspension
Agreement, and final determination. Plaintiffs ask the court to resurrect and reinstate the 2013
Suspension Agreement and declare “unlawful, null, and void” the resumed antidumping duty
investigation conducted by Commerce from May 7, 2019 until September 19, 2019, the 2019
Suspension Agreement, and the subsequent final determination by Commerce. Here, the event Court Nos. 19-00203, 19-00206, 20-00036 Page 15
of Plaintiffs signing the 2019 Suspension Agreement superseded the 2013 Suspension
Agreement. The court concludes that each of the claims alleged in Plaintiffs’ Complaint, as well
as the requested relief from the court, became moot upon Plaintiffs’ voluntary signing of the
2019 Suspension Agreement.
Plaintiffs’ requests for relief in Counts One, Two, and Three that the court (1) order the
reinstatement of the 2013 Suspension Agreement and (2) declare as “unlawful and null and void”
Commerce’s termination of the 2013 Suspension Agreement and continuation of the
investigation Commerce conducted from May 7, 2019 until September 19, 2019 ignores a
determinative fact that Commerce and Plaintiffs signed the 2019 Suspension Agreement, a new
agreement which superseded the 2013 Suspension Agreement. Compl. ¶¶ 54–55, 57–58, 60–62.
Plaintiffs’ decision to enter into the 2019 Suspension Agreement undercuts their assertion that
Commerce unlawfully terminated the 2013 Suspension Agreement. Id. ¶¶ 53–55, 56–58, 60, 76.
Thus, Plaintiffs cannot ask this court to breathe new life into and reinstate the 2013 Suspension
Agreement when Plaintiffs voluntarily signed the 2019 Suspension Agreement, a new agreement
which superseded the prior 2013 Suspension Agreement. See 2019 Suspension Agreement, 84
Fed. Reg. at 49,989–99; see also Pub. Utils. Comm’n v. FERC, 236 F.3d 708, 714 (D.C. Cir.
2001) (“Ordinarily, it would seem readily apparent that a challenge to an expired contract is
moot, because the court could provide no relief to the allegedly aggrieved parties.”). Although a
suspension agreement may differ from an expired contract, it is similarly readily apparent to this
court that the finalizing of the 2019 Suspension Agreement terminated and superseded the 2013
Suspension Agreement. Put differently, Plaintiffs cannot have it both ways: they cannot sign the
new agreement and receive its benefits and protections, while at the same time seek legal Court Nos. 19-00203, 19-00206, 20-00036 Page 16
remedies calling for the reinstatement of an expired agreement that was superseded by Plaintiffs’
own actions of entering into the new agreement.
The pleading deficiency in Counts One, Two, and Three contesting Commerce’s
withdrawal from the 2013 Suspension Agreement and continuation of the antidumping duty
investigation also infects Plaintiffs’ claim in Counts Four and Five challenging the 2019
Suspension Agreement and final determination as “unlawful and null and void.” Compl. ¶¶ 64,
69. As in Counts One through Three, Plaintiffs’ request that the court “reinstate the 2013
Suspension Agreement,” id. ¶¶ 65, 69, ignores the unmistakable fact that Plaintiffs and
Commerce are signatories to the new 2019 Suspension Agreement, a new agreement which
“render[ed] nugatory” the 2013 Suspension Agreement. See Am. Spring Wire Corp. v. United
States, 6 CIT 122, 123 (1983) (finding an importer’s challenge to various aspects of a suspension
agreement entered into among Commerce, the International Trade Administration (“ITA”), and
the Government of Brazil moot when, after the action was filed, the ITA issued a final negative
injury determination on subject merchandise from Brazil that rendered the suspension agreement
“null and void ipso facto”); Compl., Ex. 1, ECF No. 14-1 (listing in the 2019 Suspension
Agreement the signatories belonging to the Mexican Growers: AMHPAC, APHYM, CAADES,
CABC, and SPT). It strains credulity for Plaintiffs to bring a challenge to the 2019 Suspension
Agreement and continued investigation when Plaintiffs voluntarily signed the 2019 Suspension
Agreement and, as signatories to the new agreement, currently pay no antidumping duties
because the final determination has no effect while the new agreement remains operative. See,
e.g., Usinas Siderúrgicas De Minas Gerais S/A v. United States, 26 CIT 422, 431 (2002) (noting
that a final determination that is issued when Commerce continues an investigation after entering
into a suspension agreement constitutes “a challenge which is not yet (and may never be) ripe[]”) Court Nos. 19-00203, 19-00206, 20-00036 Page 17
(“Usinas”). Consequently, as alleged in Counts Six and Seven, the court is precluded from
reviewing whether certain aspects of the final determination (margin calculation and individual
rate determination) were “wrong” and “unlawful,” Compl. ¶¶ 71, 75, because the dumping
margins and individual rate determinations have no effect so long as the 2019 Suspension
Agreement is in place. See Am. Spring Wire Corp., 6 CIT at 124 (noting that “[s]uspension
agreements . . . will generally be of long duration[]”). The court concludes, therefore, that the
claims brought by Plaintiffs and the relief sought from the court, are moot.
Plaintiffs’ current remedy may be to withdraw from the 2019 Suspension Agreement,
and, in that event, the antidumping duties would take effect. In that case, the antidumping duty
investigation would resume, but there is no logical scenario in which the superseded 2013
Suspension Agreement would be reinstated. So long as Plaintiffs remain signatories to the 2019
Suspension Agreement, the dumping margins will have no effect. Thus, any challenge to the
final determination is not ripe. See Usinas, 26 CIT at 431; Am. Spring Wire Corp., 6 CIT at
123.11
Further supporting the court’s conclusion that the claims are moot is the absence of
precedent showing instances when the Court has reinstated a prior suspension agreement that
was either (1) superseded by a new agreement or (2) entered into after Commerce or the ITC
made a final determination.12 The controversy is no longer live, as Plaintiffs signed the 2019
11 The court in Usinas rejected claims of possible piecemeal litigation and explained that the statute governing suspension agreements, 19 U.S.C. § 1516a(a)(2)(B)(iv), provides that “[a] continued final affirmative determination has no practical effect unless and until the related suspension agreement is dissolved.” 26 CIT at 431. 12 This case differs from this 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 1310 (2019). In the CSC Sugar LLC cases, the Court vacated amendments to extant suspension agreements, but did not restore the suspension agreement that was terminated and then Court Nos. 19-00203, 19-00206, 20-00036 Page 18
Suspension Agreement, and the court can no longer grant Plaintiffs “any effectual relief,”
Mission Product Holdings, Inc. v. Tempnology, LLC, 139 S. Ct. 1652, 1660 (2019), in the form
of reinstating the superseded 2013 Suspension Agreement or reviewing a challenge to a final
determination that has no current effect. Therefore, the court dismisses Plaintiffs’ claims as
moot.
This case is not an “exceptional situation” in which Plaintiffs’ claims meet an exception
to mootness where the alleged wrongs are “capable of repetition, yet evading review.” See
Spencer, 523 U.S. at 17; see Am. Spring Wire Corp., 6 CIT at 124 (rejecting the plaintiffs’
arguments that the wrongs capable of repetition yet evading review exception applied to a case
concerning a suspension agreement). Repetition of the complained-of conduct is unlikely to
recur because Plaintiffs signed the 2019 Suspension Agreement and, as signatories to the
agreement, there is no reasonable expectation that the same controversy will recur involving the
same complaining party. Am. Spring Wire Corp., 6 CIT at 124–25; People for the Ethical
Treatment of Animals, Inc. v. Gittens, 396 F.3d 416, 424 (D.C. Cir. 2005) (“The essential point
is that the case before us is highly dependent upon a series of facts unlikely to be duplicated in
the future. . . . [A] legal controversy so sharply focused on a unique factual context . . . rarely
present[s] a reasonable expectation that the same complaining party [will] be subjected to the
same actions again.”). Given that the 2019 Suspension Agreement bars Commerce from
applying antidumping duties, that any signatory can withdraw from the current agreement
without penalty, and that the final determination only takes effect if a signatory withdraws from
the current agreement, the possibility that Plaintiffs again will be subjected to the same action is
superseded by a new agreement, when finding that Commerce’s failure to follow statutory procedural recordkeeping requirements was beyond harmless and substantially prejudiced the plaintiff. 413 F. Supp. 3d at 1326; 413 F. Supp. 3d at 1318. Court Nos. 19-00203, 19-00206, 20-00036 Page 19
purely speculative and does not rise to a level of “reasonable likelihood” here. See Spencer, 523
U.S. at 3; Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam); 2019 Suspension
Agreement, 84 Fed. Reg. at 49,994 (“An individual Signatory, or Signatories, collectively, or
Commerce may withdraw from this Agreement upon 90 days’ written notice to Commerce or the
Signatories, respectively.”).
In sum, the court does not find the exception to the mootness doctrine satisfied when
Plaintiffs continue to reap the benefits of signing the 2019 Suspension Agreement while
simultaneously challenging the legality of that agreement.13 Plaintiffs pursued a problematic
litigation strategy by signing the “unlawful” 2019 Suspension Agreement to avoid paying the
antidumping duties that would have been required had Commerce issued the antidumping duty,
while maintaining an after-the-fact challenge to the same agreement. Notwithstanding Plaintiffs’
strategy in simultaneously litigating nearly three identical complaints so as to preserve multiple,
speculative paths for appeal, Plaintiffs’ own actions in signing the 2019 Suspension Agreement
prevent the court from adjudicating the claims for relief.14
13 Plaintiffs are familiar with the withdrawal provision found in prior suspension agreements, as they withdrew from prior suspension agreements in 2002, 2007, and 2013. See Fresh Tomatoes from Mexico, 67 Fed. Reg. at 50,858–59; Fresh Tomatoes from Mexico, 73 Fed. Reg. at 2887– 88; Fresh Tomatoes from Mexico, 78 Fed. Reg. at 14,771. 14 Because Plaintiffs’ claims are moot, the court need not discuss whether Plaintiffs’ challenge of the 2019 Suspension Agreement and Commerce’s final determination under 28 U.S.C. § 1581(c) is time-barred or whether equitable tolling applies. Court Nos. 19-00203, 19-00206, 20-00036 Page 20
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that Defendant’s motion to dismiss is granted and Plaintiffs’ Complaint is
dismissed with prejudice. Judgment will enter accordingly.
/s/ Jennifer Choe-Groves Jennifer Choe-Groves, Judge
Dated: July 7, 2020 New York, New York