Confederación De Asociaciones Agrícolas Del Estado De Sinaloa, A.C. v. United States

• Citation: 459 F.Supp.3d 1354
• Decision Date: 07 July 2020
• Docket Number: Court No. 20-00036,Court No. 19-00203, Court No. 19-00206,Slip Op. 20-93
• Parties: CONFEDERACIÓN DE ASOCIACIONES AGRÍCOLAS DEL ESTADO DE SINALOA, A.C., et al., Plaintiffs, v. UNITED STATES, Defendant, and The Florida Tomato Exchange, Defendant-intervenor. Confederación de Asociaciones Agrícolas del Estado de Sinaloa, A.C., et al., Plaintiffs, v. United States, Defendant, and The Florida Tomato Exchange, Defendant-intervenor. Asociación Mexicana de Horticultura Protegida, A.C., et al., Plaintiffs, v. United States, Defendant, and The Florida Tomato Exchange, Defendant-intervenor.
• Court: U.S. Court of International Trade

459 F.Supp.3d 1354

CONFEDERACIÓN DE ASOCIACIONES AGRÍCOLAS DEL ESTADO DE SINALOA, A.C., et al., Plaintiffs,

v.UNITED STATES, Defendant,andThe Florida Tomato Exchange, Defendant-intervenor.

Confederación de Asociaciones Agrícolas del Estado de Sinaloa, A.C., et al., Plaintiffs,

v.United States, Defendant,andThe Florida Tomato Exchange, Defendant-intervenor.

Asociación Mexicana de Horticultura Protegida, A.C., et al., Plaintiffs,

v.United States, Defendant,andThe Florida Tomato Exchange, Defendant-intervenor.

Slip Op. 20-93

Court No. 19-00203

Court No. 19-00206

Court No. 20-00036

United States Court of International Trade.

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.

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.

OPINION AND ORDER

Jennifer 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 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 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 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 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

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, Court No. 19-00059 "CAADES I", aff'd ...