Jem D International (Michigan) Inc. USA v. United States ( 2020 )

Slip Op. 20-133
UNITED STATES COURT OF INTERNATIONAL TRADE
JEM D INTERNATIONAL (MICHIGAN)
INC. USA, JEM D MARKETING
(VIRGINIA) INC., RED SUN FARMS
HOLDINGS USA LLC, AND RED SUN
FARMS VIRGINIA LLC,
Plaintiffs,
v. Before: Jennifer Choe-Groves, Judge
UNITED STATES, Court No. 19-00127
Defendant,
and
THE FLORIDA TOMATO EXCHANGE,
Defendant-Intervenor.
OPINION AND ORDER
[Granting Defendant’s motion to dismiss.]
Dated: September 11, 2020
Valerie Ellis and Kimberly Reynolds, Curtis, Mallet-Prevost, Colt & Mosle LLP, of Washington,
D.C., for Plaintiffs Jem D International (Michigan) Inc. USA, Jem D Marketing (Virginia) Inc.,
Red Sun Farms Holdings USA LLC, and Red Sun Farms Virginia LLC.
Elizabeth Anne Speck, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, D.C., for Defendant United States. With her on the brief
were Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin E.
White, Jr., Assistant Director. Of counsel on the brief was Emma T. Hunter, Office of the Chief
Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, Washington,
D.C.
Jonathan M. Zielinski, Robert C. Cassidy, Jr., Charles S. Levy, James R. Cannon, Jr., Mary Jane
Alves, and James E. Ransdell, Cassidy Levy Kent (USA) LLP, of Washington, D.C., for
Defendant-Intervenor The Florida Tomato Exchange.
Court No. 19-00127 Page 2
Choe-Groves, Judge: Plaintiffs Jem D International (Michigan) Inc. USA, Jem D
Marketing (Virginia) Inc., Red Sun Farms Holdings USA LLC, and Red Sun Farms Virginia
LLC (“Plaintiffs”)1 brought suit under this Court’s residual jurisdiction, 28 U.S.C. § 1581(i),
challenging Commerce’s decision to withdraw from a previously entered suspension agreement,
continue the underlying antidumping investigation, and commence negotiations upon signing a
new agreement suspending Commerce’s antidumping duty investigation of fresh tomatoes from
Mexico. Suppl. Compl. ¶ 1, ECF No. 52 (“Compl.”); Fresh Tomatoes from Mexico, 84 Fed.
Reg. 20,858 (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”). Plaintiffs request that the court “hold unlawful and set aside Commerce’s
termination of the 2013 Suspension Agreement” and also “hold unlawful Commerce’s
resumption of the antidumping duty investigation” based on using May 7, 2019 as the date of the
preliminary determination. Compl. ¶ 4.2
Before the court is Defendant United States’ (“Defendant”) motion to dismiss the
Complaint pursuant to USCIT Rule 12(b)(1) for lack of subject matter jurisdiction and pursuant
1
In a separate action challenging certain aspects of the final determination made in the
underlying antidumping duty investigation that is the subject of this action, Plaintiff Red Sun
Farms claims to encompass the following entities: (1) Naturbell SPR DE RL, (2) San Miguel
Red Sun Farms SPR DE RL DE CV, (3) Agricola El Rosal SA DE, (4) Jem D International
Michigan Inc., and (5) Red Sun Farms Virginia LLC. Red Sun Farms v. United States, Court
No. 19-00205, Compl. ¶ 1, ECF No. 8. Red Sun Farms also alleges it is “a producer and
exporter of fresh tomatoes from Mexico, an importer of fresh tomatoes from Mexico, and a
domestic producer of fresh tomatoes in the United States.” Id., Compl. ¶ 3.
2
References to the “2013 Suspension Agreement” and “2019 Suspension Agreement” are to the
agreements published in these Federal Register notices: (1) Fresh Tomatoes from Mexico, 78
Fed. Reg. 14,967 (Dep’t Commerce Mar. 8, 2013) (suspension of antidumping investigation)
(“2013 Suspension Agreement”); and (2) Fresh Tomatoes from Mexico, 84 Fed. Reg. 49,987
(Dep’t Commerce Sept. 24, 2019) (suspension of antidumping duty investigation) (“2019
Suspension Agreement”).
Court No. 19-00127 Page 3
to USCIT Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Def.’s Mot.
to Dismiss, ECF No. 53 (“Def. Br.”). Plaintiffs opposed. Pls.’ Resp. to Def.’s Mot. to Dismiss,
ECF No. 57 (“Opp’n Br.”). Defendant replied. Def.’s Reply in Supp. of its Mot. to Dismiss,
ECF No. 58 (“Def. Reply”).3 For the reasons that follow, Defendant’s motion to dismiss is
granted.4
I. BACKGROUND5
A. History of the Fresh Tomatoes from Mexico Antidumping Duty Proceeding
Commerce’s investigation of fresh tomatoes from Mexico has a long procedural history.
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. 18,377 (Dep’t Commerce Apr.
25, 1996) (initiation of antidumping duty investigation). After a preliminary determination from
the International Trade Commission (“ITC”) in October 1996, Commerce made a preliminary
determination that imports of fresh tomatoes from Mexico were being sold in the United States at
less than fair value. Compl. ¶ 8; Fresh Tomatoes from Mexico, 61 Fed. Reg. 56,608 (Dep’t
3
Defendant-Intervenor The Florida Tomato Exchange “support[s] the entirety of the United
States’ motion and agree[s] with the arguments presented therein.” Def.-Intervenor’s Resp. 1,
ECF No. 56.
4
Plaintiffs moved for leave to file a sur-reply to address assertions made in Defendant’s reply in
support of the motion to dismiss. Pls.’ Mot. for Leave to File Sur-Reply in Opp’n to Mot. to
Dismiss, ECF No. 59. The court grants Plaintiffs’ motion and deems the sur-reply filed. See
Amado v. Microsoft Corp., 517 F.3d 1353, 1358 (Fed. Cir. 2008) (“District courts . . . are
afforded broad discretion to control and manage their dockets, including the authority to decide
the order in which they hear and decide issues pending before them.” (citations omitted)).
5
Apart from the allegations contained in a complaint, the court may also consider documents
“incorporated by reference or integral to the claim, items subject to judicial notice, [and] matters
of public record.” A & D Auto Sales, Inc. v. United States, 748 F.3d 1142, 1147 (Fed. Cir.
2014) (internal quotation marks and citation omitted).
Court No. 19-00127 Page 4
Commerce Nov. 1, 1996) (preliminary determination) (announcing the suspension of liquidation
and directing U.S. Customs and Border Protection (“CBP”) to require a cash deposit or posting
of a bond) (“1996 Preliminary Determination”). Commerce also announced that, under U.S.C.
§ 1673d(a)(2)(A), based upon receiving requests from five of the six mandatory respondents,
Commerce postponed making its “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.
That same day, Commerce announced that Commerce and certain producers and
exporters who accounted for substantially all of the imports of fresh tomatoes from Mexico into
signed an agreement to suspend the antidumping duty investigation on fresh tomatoes from
Mexico (the 1996 Suspension Agreement). Compl. ¶ 9; Fresh Tomatoes from Mexico, 61 Fed.
Reg. 56,618 (Dep’t Commerce Nov. 1, 1996) (suspension of antidumping investigation).6
Over the next 23 years, Commerce and the signatories entered into a series of suspension
agreements after the signatory Mexican producers and exporters of fresh tomatoes gave notice
that they wanted to withdraw from the operative suspension agreement. The Mexican signatories
announced their intent to withdraw from the relevant suspension agreement three times: in 2002,
2007, and 2013. Compl. ¶ 10.7
6
The term “signatory” or “signatories” appearing throughout the various suspension agreements
refers to the “signatory producers/exporters of fresh tomatoes from Mexico.” 2019 Suspension
Agreement, 84 Fed. Reg. at 49,989; 2013 Suspension Agreement, 78 Fed. Reg. at 14,968; Fresh
Tomatoes from Mexico, 61 Fed. Reg. at 56,619.
7
See Fresh Tomatoes from Mexico, 67 Fed. Reg. 50,858, 50,858–59 (Dep’t Commerce Aug. 6,
2002) (termination of suspension agreement, termination of sunset review, and resumption of
antidumping investigation); Fresh Tomatoes from Mexico, 73 Fed. Reg. 2887, 2887–88 (Dep’t
Commerce Jan. 16, 2008) (termination of suspension agreement, termination of sunset review,
and resumption of antidumping investigation); Fresh Tomatoes from Mexico, 78 Fed. Reg.
Court No. 19-00127 Page 5
Each time the Mexican signatories 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. See Compl. ¶ 11; 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. Yet, each time the Mexican
signatories withdrew, the parties negotiated and entered into a new suspension agreement, and in
2002, 2008, and 2013, new suspension agreements went into effect. Compl. ¶ 12.8 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 Def.
Br., Exs. 1–3 (CBP Messages). And in each instance, Commerce resumed the antidumping duty
investigation in 2002, 2008, and 2013 “as if” Commerce had published the 1996 Preliminary
Determination on the effective date of termination. 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 14,772.9
14,771, 14,771 (Dep’t Commerce Mar. 7, 2013) (termination of suspension agreement,
termination of sunset review, and resumption of antidumping investigation).
8
Fresh Tomatoes from Mexico, 67 Fed. Reg. 77,044 (Dep’t Commerce Dec. 16, 2002)
(suspension of antidumping investigation); Fresh Tomatoes from Mexico, 73 Fed. Reg. 4831
(Dep’t Commerce Jan. 28, 2008) (suspension of antidumping investigation); 2013 Suspension
Agreement, 78 Fed. Reg. at 14,967–68.
9
Commerce indicated each time that the final determination stemming from the continued
investigation would be issued within 135 days. Fresh Tomatoes from Mexico, 67 Fed. Reg. at
50,859–60; Fresh Tomatoes from Mexico, 73 Fed. Reg. at 2889; 2013 Suspension Agreement,
78 Fed. Reg. at 14,772.
Court No. 19-00127 Page 6
B. Commerce Withdraws from the 2013 Suspension Agreement, Continues the
Underlying Investigation, and Issues the Final Determination
Section VI.B of the 2013 Suspension Agreement allowed either party (Commerce or the
Mexican signatories) to withdraw from that agreement upon giving 90 days’ written notice.
Commerce gave the signatory Mexican tomato growers and exporters notice of intent to
withdraw from the 2013 Suspension Agreement on February 6, 2019. Compl. ¶¶ 28–29; May
2019 Withdrawal Notice, 84 Fed. Reg. at 20,860 (explaining the history of the proceedings);
Fresh Tomatoes from Mexico, 84 Fed. Reg. 7872, 7874 (Dep’t Commerce Mar. 5, 2019) (notice
of intent to terminate suspension agreement, rescind the sunset and administrative reviews, and
resume the antidumping duty investigation). Commerce then withdrew from the 2013
Suspension Agreement, effective May 7, 2019, and continued the underlying antidumping
investigation. Compl. ¶¶ 31–32; May 2019 Withdrawal Notice, 84 Fed. Reg. at 20,858.
On September 24, 2019, Commerce published a notice in the Federal Register, with an
effective date of September 19, 2019, announcing that “Commerce and representatives of the
signatory producers/exporters accounting for substantially all imports of fresh tomatoes from
Mexico signed” an agreement to suspend the underlying antidumping duty investigation. 2019
Suspension Agreement, 84 Fed. Reg. at 49,989; Compl. ¶ 39. One of the Mexican signatories to
the 2019 Suspension Agreement is the Asociación Mexicana de Horticultura Protegida, A.C.
(“AMHPAC”). 2019 Suspension Agreement, 84 Fed. Reg. at 49,994. AMHPAC and the other
associations of individual Mexican fresh tomato growers who signed the 2019 Suspension
Agreement “certif[ied] that the members of their organization agree to abide by all terms of the
Agreement.” Id. Three members of Plaintiff Red Sun Farms consortium of companies,
Naturbell SPR DE RL, San Miguel Red Sun Farms SPR DE RL DE CV, and Agricola El Rosal
DE, are members of AMHPAC. See Confederacion de Asociaciones Agricolas del Estado de
Court No. 19-00127 Page 7
Sinaloa, A.C. v. United States, Court No. 19-00203 (“CAADES”), Compl. n.1, ECF No. 14; id.,
Ex. 1, ECF No. 14-1 (identifying the individual members and associations as signatories to the
2019 Suspension Agreement).10 No party challenged Commerce’s decision to suspend the
investigation. The ITC also announced the suspension of its antidumping investigation as of
September 24, 2019. Fresh Tomatoes from Mexico, 84 Fed. Reg. 54,639 (Int’l Trade Comm’n
Oct. 10, 2019) (suspension of anti-dumping investigation).
After signing the 2019 Suspension Agreement, Commerce received requests under 19
U.S.C. § 1673c(g) to continue the underlying antidumping duty investigation. Fresh Tomatoes
from Mexico, 84 Fed. Reg. at 57,401. Commerce published its final determination in the
continued investigation, finding that fresh tomatoes from Mexico were being, or likely to be,
sold in the United States at less than fair value on October 25, 2019. Fresh Tomatoes from
Mexico, 84 Fed. Reg. at 57,401. The ITC issued an affirmative injury determination on
December 12, 2019. Compl. ¶ 40; Fresh Tomatoes from Mexico, 84 Fed. Reg. 67,958 (Int’l
Trade Comm’n Dec. 12, 2019) (notice of material injury determination).
C. The Current Litigation
The court previously granted Plaintiffs leave to file a supplemental complaint but
deferred ruling on whether Plaintiffs’ claims were moot. Order, ECF No. 51. Plaintiffs allege
that Commerce acted beyond its legal authority when Commerce: (1) terminated the 2013
Suspension Agreement, Compl. ¶¶ 41–46 (Count 1); (2) used May 7, 2019 as the preliminary
determination date in its continued investigation, id. ¶¶ 47–54 (Count 2); and (3) negotiated
10
Section II.E of the 2019 Suspension Agreement identifies CAADES, AMHPAC, and three
other entities as “a Mexican grower association whose members produce and/or export Fresh
Tomatoes from Mexico and are also Signatories to this Agreement[.]” 2019 Suspension
Agreement, 84 Fed. Reg. at 49,990.
Court No. 19-00127 Page 8
revised terms in the 2019 Suspension Agreement, id. ¶¶ 55–58 (Count 3). As relief, Plaintiffs
request, among other things, that the court (1) “[h]old that Commerce’s unilateral expansion of
its statutory authority under Section VI.B of the 2013 Suspension Agreement is unlawful[]” and
(2) “[s]et aside Commerce’s withdrawal from the 2013 [Suspension] Agreement and subsequent
agency actions, and reinstate the 2013 [Suspension] Agreement.” Id., Prayer for Relief ¶¶ A, B.
II. DISCUSSION
Article III of the Constitution limits federal courts to hearing actual, ongoing
controversies. Davis v. FEC, 554 U.S. 724, 732 (2008). An actual case or controversy must be
extant at all stages of review, not merely at the time the complaint is filed. Id. at 732–33; see
DaimlerChrysler Corp. v. United States, 442 F.3d 1313, 1318 (Fed. Cir. 2006) (noting that the
Court is “presumed to be without jurisdiction unless the contrary appears affirmatively from the
record” (internal quotation marks and citations omitted)). “Though justiciability has no precise
definition or scope, doctrines of standing, mootness, ripeness, and political question are within
its ambit.” Fisher v. United States, 402 F.3d 1167, 1176 (Fed. Cir. 2005).
The party invoking jurisdiction bears the burden of establishing it. Hutchinson Quality
Furniture, Inc. v. United States, 827 F.3d 1355, 1359 (Fed. Cir. 2016) (internal quotation marks
and citation omitted). A plaintiff must allege sufficient facts to state each claim alleged in the
complaint. DaimlerChrysler Corp., 442 F.3d at 1318–19 (citing, inter alia, McNutt v. Gen.
Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). “If the court determines at any time that it
lacks subject-matter jurisdiction, the court must dismiss the action.” USCIT R. 12(h)(3).
Defendant contends that Plaintiffs’ claims alleged in the Complaint were rendered moot
when companies that comprise “Red Sun Farms,” a named plaintiff in this action, signed the
Court No. 19-00127 Page 9
2019 Suspension Agreement as members of AMHPAC. Def. Br. at 15–17; Def. Reply at 5–6.11
Defendant also argues that the court is precluded from entertaining the claims because the court
cannot provide the relief requested in the form of reinstating the prior 2013 Suspension
Agreement. Def. Br. at 15.
Plaintiffs respond that the controversy remains live and the court can adjudicate the
claims because “all three counts in [the Complaint: Commerce’s withdrawal from the 2013
Suspension Agreement, continuation of the antidumping duty investigation, and negotiation of
the 2019 Suspension Agreement] raise pure questions of law on undisputed facts,” in that the
claims contest “the agency discretion of Commerce’s actions.” Opp’n Br. at 1, 15.
There is no “case or controversy” under Article III, and a suit becomes moot, “when the
issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the
outcome.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quoting Murphy v. Hunt, 455
U.S. 478, 481 (1982) (per curiam)). The mootness doctrine applies when “events have so
transpired that the [court’s] decision will neither presently affect the parties’ rights nor have a
more-than-speculative chance of affecting them in the future.” Clarke v. United States, 915 F.2d
699, 701 (D.C. Cir. 1990) (en banc) (citation omitted).
11
Plaintiffs call Defendant’s description of the apparent relationship among the entities
comprising Plaintiffs as “grossly inadequate” and assert that “[n]one of the plaintiffs in this
action are signatories to the 2019 Suspension Agreement . . . [and that] Plaintiffs to this action
are separately-owned, privately-held legal entities who are related in a corporate context through
investment and cross ownership.” Opp’n Br. at 3. Yet, Commerce rejected Plaintiffs’ request to
be treated as a single exporter (“collapsed entity”) comprised of various entities during the
underlying “proceeding as an interested party standing in the shoes of an importer and domestic
producer.” Id. at 4. Nevertheless, Plaintiffs admit that they “participated in the underlying
proceeding from the position of its U.S. interests. . . . [and] with Red Sun [Farm]’s affiliated
Mexican producers and their interests[.]” Id. at 15.
Court No. 19-00127 Page 10
An action can avoid dismissal on mootness grounds if the claims asserted in the
complaint are “capable of repetition, yet evading review.” Spencer v. Kemna, 523 U.S. 1, 17
(1998); Torrington Co. v. United States, 44 F.3d 1572, 1577 (Fed. Cir. 1995) (citations omitted).
“[T]he capable-of-repetition doctrine applies only in exceptional situations,” when a plaintiff can
show that “(1) the challenged action [is] in its duration too short to be fully litigated prior to
cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining
party [will] be subject to the same action again.” Spencer, 523 U.S. at 17 (internal quotation
marks and citations omitted); see Honeywell Int’l, Inc. v. Nuclear Regulatory Comm’n, 628 F.3d
568, 576 (D.C. Cir. 2010) (“The initial heavy burden of establishing mootness lies with the party
asserting a case is moot,” yet “the opposing party bears the burden of showing an exception
applies[.]”). Supreme Court precedent recognizes that “inherently transitory” claims are capable
of evading review. U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 399 (1980); e.g., Davis, 554
U.S. at 735 (election law challenge); Neb. Press Ass’n v. Stuart, 427 U.S. 539, 542 (1976)
(imposing prior restraints on speech); Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975) (pretrial
detention conditions).
Here, Plaintiffs’ response against mootness asserts that the claims raise pure questions of
law and ignores the fact that the finalization of the 2019 Suspension Agreement rendered
Plaintiffs’ claims moot. Compl. ¶¶ 41–58; see Confederación de Ascociaciones Agrícolas del
Estado de Sinaloa, A.C. v. United States, 44 CIT ___, ___, 2020 WL 3791640, at *6–8 (CIT July
7, 2020) (finding that the plaintiff Mexican tomato growers’ claims, and relief requested,
challenging Commerce’s withdrawal from and termination of the 2013 Suspension Agreement,
resumption of the underlying investigation, finalization of the 2019 Suspension Agreement, and
the final determination, became moot when the Mexican tomato growers voluntarily signed the
Court No. 19-00127 Page 11
2019 Suspension Agreement that superseded the 2013 Suspension Agreement). Plaintiffs contest
Commerce’s withdrawal from the 2013 Suspension Agreement, yet its affiliated entities and
companies within Plaintiff “Red Sun Farms” are members of AMHPAC—a signatory to the
2019 Suspension Agreement. Plaintiffs admit that they represented themselves before
Commerce, together with “three supplier farms,” Opp’n Br. at 4, as “an integrated North
American producer of fresh tomatoes in Mexico and in the United States, and as a U.S.
wholesaler of domestic like product as well as an importer of Mexican tomatoes,” id. at 13.
Thus, Plaintiffs cannot ask this court to reinstate the 2013 Suspension Agreement when
companies doing business as Plaintiff “Red Sun Farms” signed the 2019 Suspension Agreement,
a new agreement that superseded the prior 2013 Suspension Agreement. See also Pub. Utils.
Comm’n v. FERC, 236 F.3d 708, 714 (D.C. Cir. 2001) (“Ordinarily, it would seem readily
apparent that a challenge to an expired contract is moot, because the court could provide no relief
to the allegedly aggrieved parties.”).
As in CAADES, Plaintiffs here cannot seek to reinstate the 2013 Suspension Agreement
while at the same time enjoy the benefits of the 2019 Suspension Agreement that its otherwise
“integrated” companies signed as members of AMHPAC. Further supporting the court’s
conclusion that the claims are moot is the absence of precedent showing instances when the
Court has reinstated a prior suspension agreement that was either (1) superseded by a new
agreement or (2) entered after Commerce or the ITC made a final determination.12
12
This case differs from this Court’s decisions in CSC Sugar LLC v. United States, 43 CIT ___,
413 F. Supp. 3d 1318 (2019), and CSC Sugar LLC v. United States, 43 CIT ___, 413 F. Supp. 3d
1310 (2019). In the CSC Sugar LLC cases, the Court vacated amendments to extant suspension
agreements, but did not restore the suspension agreement that was terminated and then
superseded by a new agreement agreed to by the parties. 413 F. Supp. 3d at 1326; 413 F. Supp.
3d at 1318.
Court No. 19-00127 Page 12
Plaintiffs’ current remedy may be to walk away from the 2019 Suspension Agreement, as
the signatories are free to withdraw from that agreement for any reason, or for no reason at all,
and without penalty, under a similar provision invoked three times before. 2019 Suspension
Agreement, 84 Fed. Reg. at 49,994 (“An individual Signatory, or Signatories, collectively, or
Commerce may withdraw from this Agreement upon 90 days’ written notice to Commerce or the
Signatories, respectively.”). In that event, Commerce will issue an antidumping order when the
2019 Suspension Agreement is terminated, but there is no logical scenario in which the court
would reinstate the now-superseded 2013 Suspension Agreement. See Nasatka v. Delta Sci.
Corp., 58 F.3d 1578, 1580 (Fed. Cir. 1995) (“The test for mootness . . . is whether the relief
sought would, if granted, make a difference to the legal interests of the parties[.]” (citation
omitted)).13 The court thus concludes that the claims alleged in the Complaint and relief sought
from the court became moot when Plaintiffs’ otherwise “integrated” companies signed the 2019
Suspension Agreement through membership in AMHPAC.14
13
Plaintiffs did not carry their burden in advancing arguments as to whether the claims here
represent an “exceptional situation” in which the challenged actions are “capable of repetition,
yet evading review.” Spencer, 523 U.S. at 17. The court thus need not opine on the applicability
of a mootness exception beyond mentioning that this Court has rejected a plaintiff’s argument
that the “capable of repetition, yet evading review” exception applied as to a suspension
agreement. Am. Spring Wire Corp. v. United States, 6 CIT 122, 124 (1983) (finding exception
to mootness inapplicable because “[s]uspension agreements . . . will generally be of long
duration”).
14
Because Plaintiffs’ claims are moot, the court need not discuss whether Plaintiffs’ claims
could have been brought under 28 U.S.C. § 1581(c) or whether Plaintiffs’ claims should be
dismissed for failure to state a claim under USCIT Rule 12(b)(6).
Court No. 19-00127 Page 13
III. CONCLUSION
For the foregoing reasons, it is
ORDERED that Plaintiffs’ motion to file a sur-reply is granted and Plaintiffs’ Sur-Reply
is deemed filed; and it is further
ORDERED that Defendant’s motion to dismiss is granted and Plaintiffs’ Complaint is
dismissed with prejudice. Judgment will enter accordingly.
/s/ Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Dated: September 11, 2020
New York, New York