Challenges to AD Investigation on Mexican Tomatoes Already Argued and Denied, DOJ Says

Challenges to several Commerce Department actions around the antidumping duty investigation on tomatoes from Mexico, and subsequent suspension agreements, have already been ruled on at the U.S. Court of Appeals for the Federal Circuit and should be denied, the government argued in a Sept. 20 motion to dismiss aspects of several complaints from Bioparques, a Mexican agriculture company. The Florida Tomato Exchange, a defendant-intervenor, made a supplementary motion to dismiss on Sept. 21 (Bioparques et al v. U.S., CIT # 19-00204).

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. The government said that 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. The Federal Circuit also affirmed the dismissal of 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."

The government says that the claims in all three Bioparques complaints are identical except for the stated jurisdictions and that all, other than the challenge to the final determination, are "jurisdictionally unsound." The challenge to Commerce's withdrawal from the 2013 Suspension Agreement goes against CAFC's precedent that CIT does not possess jurisdiction to hear the claim, the government said. Bioparques's challenge of Commerce's 2019 decision to resume the AD investigation should fail because "no jurisdiction exists to entertain a challenge to an interim decision [by Commerce]," said the government, which argued that the precedent already had been set in the CAADES challenge that CIT dismissed and CAFC upheld.

The remaining claims that challenge the final determination are likewise invalid because they assert residual jurisdiction, the government said. Residual jurisdiction is “strictly limited” and may not be invoked when jurisdiction is available elsewhere. CAFC held that jurisdiction already exists under section 1581(c). The claims in two other Bioparques complaints assert 1581(c) jurisdiction where the final determination is challenged. Therefore, "Bioparques cannot simultaneously assert jurisdiction [under both] sections," the government argued.