CIT Says No Jurisdiction to Hear Claims on Refusal to Open CCR, New Shipper Review Under 1581(c)
The Court of International Trade on April 16 held that it doesn't have jurisdiction under Section 1581(c) to hear claims from a group of importers that the Commerce Department failed to find a changed circumstance or open new shipper reviews in an antidumping duty investigation on Mexican tomatoes covering entries during 1995-96. Sustaining the agency's investigation results on remand, Judge Jennifer Choe-Groves also held that the intervenors don't have standing to sue, since their claims aren't related to those of the other parties with standing.
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The AD investigation at issue was opened in 1996 but then subject to a series of suspension agreements negotiated between Commerce and the Mexican government. After the agency withdrew from a 2013 suspension deal, Commerce reopened the investigation in 2019 despite entering into another suspension agreement that year.
Earlier this week, Commerce said it is withdrawing from the 2019 suspension agreement and will be issuing an AD order on the produce (see 2504150057). The agency said it will issue an AD order based on the margins calculated on remand in this case.
The trade court previously sent back Commerce's attempt to use a new investigation period, telling the agency it had to use the original 1995-96 period (see 2404170046). On remand, the agency did just that, using 1995-96 data from the original seven respondents to set their individual AD margins.
A group of importers, led by NS Brands, joined the case and claimed on remand that they were entitled to individual AD margins based on the current market, since neither they nor many of their product types existed during the initial investigation period. The companies called for a changed circumstances review and new shipper reviews, both of which the agency denied.
Choe-Groves assessed a motion to dismiss these claims from the U.S., finding that while the final results of a new shipper review fall under the court's Section 1581(c) jurisdiction, "the statute does not expressly grant subject matter jurisdiction over actions contesting Commerce’s decision not to initiate or conduct a new shipper review.” As a result, the judge said a challenge to Commerce's refusal to open a changed circumstances review should be brought under Section 1581(i), the court's "residual" jurisdiction.
Since the intervenors didn't file their own complaint under Section 1581(i), and instead are relying on the plaintiffs' claim of Section 1581(c) jurisdiction, the intervenors "have not established subject matter jurisdiction to challenge Commerce’s decision to not initiate or conduct a new shipper review under 28 U.S.C. § 1581(i)," the decision said. In addition, no AD order has been issued and the intervenors will be able to request a new shipper review or CCR if and when the order is issued, the court held.
Choe-Groves additionally said the intervenors don't have standing to challenge Commerce's refusal to conduct a CCR or new shipper review, since this relief is separate from the relief sought by the plaintiffs. The intervenors' claims "are not related to Commerce’s use of the information provided during remand or the arguments raised by other Parties with standing," the court held.
While the intervenors said they have suffered an injury by not receiving individually calculated dumping rates, the companies have not shown that "application of the all-others rate applicable to them has resulted in an injury." Choe-Groves said "only one of the individual calculated average-dumping margins established in the Remand Redetermination is less than the all-others rate." The judge reiterated her point that the intervenors aren't barred from seeking a CCR or new shipper review if an AD order is issued.
The intervenors also failed to show that a "favorable decision of the Court would cure any injury they might have suffered," since the companies are asking the court to tell Commerce to calculate individual margins for "companies that did not exist at the time of the initial investigation." This request is "antithetical" to CIT's previous holding that Commerce was required to resume the initial investigation, the court said.
Commerce issued the following AD rates on remand: 2.81% for San Vicente Camalu; 26.39% for Ernesto Fernando Echavarria Salazar Grupo Solidario; 18.58% for Administradora Horticola Del Tamazula; 273.43% for Arturo Lomeli Villalobas S.A. de C.V.; 273.43% for Ranchos Los Pinos S. de R.L. de C.V.; 273.43% for Agricola Yory, S. de P.R. de R.I.; 273.43% for Eco-Cultivos S.A. de C.V.; and 17.09% for all others.
Devin Sikes, counsel for various exporters challenging the investigation, told us that the "vast majority of parties were aligned on the remand decision and the dumping margins that Commerce recalculated."
(Bioparques de Occidente v. United States, Slip Op. 25-43, CIT Consol. # 19-00204, dated 04/17/25; Judge: Jennifer Choe-Groves; Attorneys: Jeffrey Winton of Winton & Chapman for plaintiffs led by Bioparques de Occidente; Yujin McNamara of Akin Gump for consolidated plaintiffs led by Confederacion de Asociaciones Agricolas del Estado de Sinaloa; Jessica DiPietro of ArentFox Schiff for plaintiff-intervenors led by NS Brands; Douglas Edelschick for defendant U.S. government; Robert Cassidy of Cassidy Levy for defendant-intervenor The Florida Tomato Exchange)