Mexican Tomato Exporters Vie for Jurisdiction Over Claims Against AD Investigation

The case concerns the suspended AD investigation concerning 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. Four sets of plaintiffs have challenged aspects of the case. 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 have all been dismissed by CIT 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 because 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 Confederacion de Asociaciones Agricolas del Estado de Sinaloa’s claim challenging the resumption of the antidumping duty investigation because there is "no independent jurisdiction to entertain challenges to that interim decision," the U.S. said.

The government says that the claims in all three Bioparques complaints, consolidated into one case, are identical except for the stated jurisdictions and that all, other than the challenge to the final determination, are "jurisdictionally unsound." In its reply, the plaintiffs argued that the trade court actually does have the basis to hear all the claims.

For instance, CIT has the jurisdiction to hear claim 1(b) over the unlawful termination of the 2013 suspension agreement because the Federal Circuit said as much, the plaintiffs argued. As for claims 1(a) and 1(c), which concern whether Commerce could continue the investigation in light of the domestic industry's withdrawal of the petition and failure to request a continuation of the investigation within the deadline, respectively, the U.S. said that the court cannot hear them since there's a blanket ban on appeals of interim decisions. The plaintiffs said this was "plainly incorrect."

"In fact, nothing in the statute indicates that any decisions by Commerce are immune from judicial review," the brief said. Nevertheless, "[t]hese claims are not challenges to 'interim' decisions. They are arguments that Commerce lacked the authority to make a final determination in the continued investigation. In our view, such a claim is fairly subsumed within the final determination, and there is jurisdiction under section 1581(c) to hear that claim."

The plaintiffs lastly addressed claims 2-9, which the U.S. conceded the trade court had the jurisdiction to hear, but still pushed forward an alternative theory of jurisdiction. The government said this question must be addressed at the outset of the case. "There is no requirement that questions concerning the dismissal of any alternative theory of jurisdiction must be decided at the outset of the case," the brief said. "Instead, the Court is only required to determine whether it has some basis for jurisdiction to hear a claim at the outset of the case. Since Defendant themselves admit that jurisdiction does exist under section 1581(c) to hear Claims 2 through 9, Defendant has provided no justification to dismiss these claims."