US Says Claims in Challenge to AD Investigation on Mexican Tomatoes 'Jurisdictionally Defective'
The Court of International Trade should dismiss a case challenging several Commerce Department actions around the antidumping duty investigation on tomatoes from Mexico, which was subject to suspension agreements, since the U.S. Court of Appeals for the Federal Circuit has already ruled on the large remaining questions in the case, the U.S. argued in an Oct. 28 reply brief. The plaintiffs, led by Bioparques de Occidente, have not conformed to the Federal Circuit opinion, and their claims are "jurisdictionally defective," the brief said (Bioparques de Occidente v. United States, CIT Consol. #19-00204).
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The case concerns the suspended AD investigation on fresh tomatoes from Mexico, first initiated by Commerce in 1996. The investigation has been halted five times due to suspension agreements between Mexican signatories and Commerce, most recently in 2019.
Prior to the 2019 agreement, Commerce published a notice that it was withdrawing from the 2013 Suspension Agreement and resuming the investigation. Commerce said it received timely requests to continue the investigation and went on to issue its final determination in October 2019. The ITC also issued an affirmative injury determination in December of that year. In four different cases, the trade court dismissed challenges to Commerce’s withdrawal from the 2013 Suspension Agreement, Commerce’s continuation of the investigation, Commerce’s entry into the 2019 Suspension Agreement, and Commerce’s final determination in the continued investigation for lack of jurisdiction and all but those challenging the final determination have been affirmed by the Federal Circuit.
The Federal Circuit affirmed the dismissal of these claims on the merits, finding that the termination of the 2013 Suspension Agreement was not invalid for failing to comply with statutory termination requirements or for allegedly improper political influence, and the 2019 agreement was not invalid on grounds of duress (see 2204140067). The Federal Circuit also affirmed the dismissal of consolidated plaintiff Confederacon de Asociaciones Agricolas del Estado de Sinaloa (CAADES)’s claim challenging the resumption of the antidumping duty investigation because there is "no independent jurisdiction to entertain challenges to that interim decision."
Back at CIT, the government moved to dismiss the case, arguing that the claims in the consolidated Bioparques case are identical except for the stated jurisdictions and that all, other than the challenge to the final determination, are "jurisdictionally unsound" (see 2209210037). In reply, Bioparques said that the Federal Circuit held that 1581(i) jurisdiction -- the court's "residual" jurisdiction -- existed over CAADES's claim. However, the U.S. told the trade court that this claim is based on 1581(c) jurisdiction, meaning it "cannot simultaneously exist under section 1581(i).
Bioparques also argued that it can challenge the interim decision to continue the AD investigation regardless of the Federal Circuit's holding since it is also challenging elements of the final determination. "In CAADES II, however, the Federal Circuit affirmed the dismissal of identical challenges to the same interim decision by Commerce, notwithstanding the Federal Circuit’s holding that CAADES could proceed with its challenges to the Final Determination," the U.S. said.
The government also said that the remaining claims in Bioparques' case challenging the final determination do not have jurisdiction under 1581(i) since 1581(c) jurisdiction exists. Bioparques conceded this point, but argued that the trade court should wait to rule on whether 1581(i) jurisdiction exists until a final decision is reached in the appeal. "Yet, the Federal Circuit already has spoken on the matter in Bioparques II and Red Sun II, this Court is bound to follow those decisions on remand, and this Court must resolve the 'threshold' jurisdictional issues at the outset of the case, not at the end," the brief said.