Slip Op. 20-132

UNITED STATES COURT OF INTERNATIONAL TRADE

BIOPARQUES DE OCCIDENTE, S.A. 

DE C.V., AGRICOLA LA PRIMAVERA, 

S.A. DE C.V., AND KALIROY FRESH 

LLC,

Plaintiffs,

v.

UNITED STATES, 

Defendant,

and

THE FLORIDA TOMATO EXCHANGE,

Defendant-Intervenor.

Before: Jennifer Choe-Groves, Judge

Court Nos. 19-00204, 19-00210, 20-00035

OPINION AND ORDER

[Granting Defendant’s motion to dismiss.]

Dated: September 11, 2020

Jeffrey M. Winton, Michael Chapman, Amrietha Nellan, and Vi N. Mai, Winton & Chapman

PLLC, of Washington, D.C., for Plaintiffs Bioparques de Occidente, S.A. de C.V., Agricola La 

Primavera, S.A. de C.V., and Kaliroy Fresh LLC.

Elizabeth Anne Speck, Commercial Litigation Branch, Civil Division, U.S. Department of 

Justice, of Washington, D.C., for Defendant United States. On the brief were Joseph H. Hunt,

Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin E. White, Jr., Assistant 

Director. Of counsel was Emma T. Hunter, Office of Chief Counsel for Trade Enforcement and

Compliance, U.S. Department of Commerce.

Jonathan M. Zielinski, Robert C. Cassidy, Jr., Charles S. Levy, James R. Cannon, Jr., Mary Jane 

Alves, and Chase J. Dunn, Cassidy Levy Kent (USA) LLP, of Washington, D.C., for The Florida 

Tomato Exchange.
Court Nos. 19-00204, 19-00210, 20-00035 Page 2

Choe-Groves, Judge: Plaintiffs Bioparques de Occidente, S.A. de C.V., Agricola La 

Primavera, S.A. de C.V., and Kaliroy Fresh LLC (“Bioparques”) filed identical complaints

asserting different jurisdictional grounds in the following three actions challenging the final

determination made in the antidumping duty investigation of fresh tomatoes from Mexico

conducted by the U.S. Department of Commerce (“Commerce”), Fresh Tomatoes from Mexico,

84 Fed. Reg. 57,401 (Dep’t Commerce Oct. 25, 2019) (final determination of sales at less than

fair value): (1) Bioparques de Occidente, S.A. de C.V. v. United States, Court No. 19-00204;

(2) Bioparques de Occidente, S.A. de C.V. v. United States, Court No. 19-00210; and 

(3) Bioparques de Occidente, S.A. de C.V. v. United States, Court No. 20-00035.1

Bioparques pleads jurisdiction in Court Nos. 19-00204 and 19-00210 under 28 U.S.C. 

§ 1581(c) through separate provisions of 19 U.S.C. § 1516a, and alternatively under this Court’s 

residual jurisdiction, 28 U.S.C. § 1581(i)(4). Compl. ¶ 2. Specifically, Bioparques filed Court

No. 19-00204 under 19 U.S.C. § 1516a(a)(2)(A) and (B)(iv), id., which specifically refers to 

judicial review of “any final determination resulting from a continued investigation which 

changes the size of the dumping margin or net countervailable subsidy calculated, or the 

reasoning underlying such calculations, at the time the suspension agreement was concluded.”

Bioparques filed Court No. 19-00210 under the special rules applicable to appeals of final 

determinations involving NAFTA countries when review by a binational panel has not been 

requested, 19 U.S.C. § 1516a(g)(3)(A)(i), and pleaded alternatively residual jurisdiction under 28

U.S.C. § 1581(i)(4). Compl. ¶ 2, Court No. 19-00210. Bioparques filed Court No. 20-00035

under 28 U.S.C. § 1581(i) if the court found the claims presented in Court Nos. 19-00204 and 

 

1 For ease of reference and because the three complaints are generally identical, except in 

pleading jurisdiction, the court refers to the three complaints as the “Complaint” and, unless 

otherwise noted, cites only to the Complaint in the first-filed case, Court No. 19-00204.
Court Nos. 19-00204, 19-00210, 20-00035 Page 3

19-00210 not cognizable under 19 U.S.C. § 1516a. Compl. ¶ 2, Court No. 19-00210; Pls.’ Resp. 

to Def.’s Mot. to Dismiss 3, ECF No. 34 (“Opp’n Br.”).2

Before the court is the motion to dismiss filed by Defendant United States (“Defendant”) 

pursuant to USCIT Rule 12(b)(1) for lack of subject matter jurisdiction and USCIT Rule 12(b)(6) 

for failure to state a claim upon which relief can be granted. Def.’s Mot. to Dismiss Br., ECF 

No. 30 (“Def. Br.”). Bioparques opposed. Opp’n Br at 4–25. Defendant replied. Def.’s Am. 

Reply in Supp. of its Mot. to Dismiss Pls.’ Compls., ECF No. 37 (“Def. Reply”).3 For the 

reasons that follow, the court grants Defendant’s motion to dismiss.

I. BACKGROUND

A. History of the Fresh Tomatoes from Mexico Antidumping Duty Proceeding

Commerce’s investigation of fresh tomatoes 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”), 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. ¶ 6; Fresh Tomatoes from Mexico, 61 Fed. Reg. 56,608 (Dep’t Commerce Nov. 

 

2 Plaintiffs “believe that there is some ambiguity as to which of the relevant statutory provisions 

apply to [its] claims. . . . [And] therefore filed redundant appeals under all three statutory 

provisions in order to ensure that, however the provisions might be interpreted, the Court would 

have jurisdiction to hear all of Plaintiffs’ claims under at least one of the actions Plaintiffs filed.” 

Opp’n Br. at 4.

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. 2, 

ECF No. 33.
Court Nos. 19-00204, 19-00210, 20-00035 Page 4

1, 1996) (preliminary determination). That same day, Commerce and certain growers and 

exporters who accounted for substantially all of the imports of fresh tomatoes from Mexico into 

the United States published a notice in the Federal Register announcing an agreement under 19 

U.S.C. § 1673c(c) to suspend the antidumping duty investigation on fresh tomatoes from 

Mexico. Compl. ¶ 7; Fresh Tomatoes from Mexico, 61 Fed. Reg. 56,618 (Dep’t Commerce 

Nov. 1, 1996) (suspension of antidumping investigation). Commerce then instructed Customs 

and Border Protection (“CBP”) to terminate the suspension of liquidation, release any bonds, and 

refund cash deposits. CBP Message No. 7327113 (Nov. 22, 1996); see Fresh Tomatoes from 

Mexico, 61 Fed. Reg. at 56,619.

After entering the suspension agreement in 1996, Commerce and the signatories4 entered

into a series of suspension agreements after the Mexican exporters and producers of fresh 

tomatoes gave notice of intent to withdraw from the operative suspension agreement in 2002, 

2007, and 2013. Compl. ¶¶ 8–10; see Fresh Tomatoes from Mexico, 84 Fed. Reg. 20,858,

20,859–61 (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”) (explaining the history of the proceedings). Each time the signatory 

Mexican producers/exporters withdrew from the relevant suspension agreement in effect at that 

time, the parties negotiated and entered into a new suspension agreement, and, in 2002, 2008, 

 

4 The term “signatory” or “signatories” mentioned throughout the various suspension agreements 

refers to “producers/exporters accounting for substantially all imports of fresh tomatoes from 

Mexico.” Fresh Tomatoes from Mexico, 84 Fed. Reg. 49,987, 49,987 (Dep’t Commerce Sept. 

24, 2019) (suspension of antidumping duty investigation); Fresh Tomatoes from Mexico, 78 Fed. 

Reg. 14,967, 14,968 (Dep’t Commerce Mar. 8, 2013) (suspension of antidumping investigation); 

Fresh Tomatoes from Mexico, 73 Fed. Reg. 4831 (Dep’t Commerce Jan. 28, 2008) (suspension 

of antidumping investigation); Fresh Tomatoes from Mexico, 67 Fed. Reg. 77,044 (Dep’t 

Commerce Dec. 16, 2002) (suspension of antidumping investigation); Fresh Tomatoes from

Mexico, 61 Fed. Reg. at 56,619.
Court Nos. 19-00204, 19-00210, 20-00035 Page 5

and 2013, new suspension agreements went into effect. 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); Fresh Tomatoes from Mexico, 78 Fed. Reg. 14,967 (Dep’t 

Commerce Mar. 8, 2013) (suspension of antidumping investigation).

B. Commerce’s Withdrawal from the 2013 Suspension Agreement, 

Continuation of the Underlying Investigation, and Signing of the 2019 

Suspension Agreement

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. May 2019 Withdrawal 

Notice, 84 Fed. Reg. at 20,860; 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. ¶¶ 11–12; May 2019 Withdrawal Notice, 84 Fed. 

Reg. at 20,858.

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 antidumping duty investigation. Fresh Tomatoes from Mexico, 84 Fed. Reg. at 

49,989; Compl. ¶ 13. No party challenged Commerce’s decision to suspend the investigation. 

The ITC also announced the suspension of its antidumping investigation as of September 24, 
Court Nos. 19-00204, 19-00210, 20-00035 Page 6

2019. Fresh Tomatoes from Mexico, 84 Fed. Reg. 54,639 (Int’l Trade Comm’n Oct. 10, 2019) 

(suspension of anti-dumping investigation).

C. Commerce’s Final Determination

After signing the 2019 Suspension Agreement, Commerce received requests to continue 

its antidumping duty investigation under 19 U.S.C. § 1673c(g). Compl. ¶ 13; Fresh Tomatoes 

from Mexico, 84 Fed. Reg. at 57,401. On October 25, 2019, 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. Compl. ¶ 13; Fresh 

Tomatoes from Mexico, 84 Fed. Reg. at 57,402. The ITC issued an affirmative injury 

determination on December 12, 2019. Fresh Tomatoes from Mexico, 84 Fed. Reg. 67,958 (Int’l 

Trade Comm’n Dec. 12, 2019) (notice of material injury determination).

D. The Current Litigation

Bioparques filed the Summons in Court No. 19-00204 on November 22, 2019, ECF No. 

1, and in Court No. 19-00210 on December 3, 2019, ECF No. 1. Bioparques then filed the

Complaint in Court No. 19-00204 on December 20, 2019, ECF No. 9, and in Court No. 

19-00210 on December 23, 2019, ECF No. 9. Bioparques filed the Summons and Complaint

concurrently in Court No. 20-00035, ECF Nos. 1, 4, on February 5, 2020.

Bioparques alleges that “Commerce’s final determination in [the underlying

investigation] was arbitrary and capricious, unsupported by substantial evidence on the record, or 

otherwise not in accordance with law[.]” Compl. ¶ 14. Specifically, Bioparques challenges 

Commerce’s continuation of the investigation, respondent selection decision, differential pricing 

analysis, margin calculation methodology, and the calculation of general and administrative 

expenses. Id. As relief, Bioparques requests that the court find unlawful and vacate 
Court Nos. 19-00204, 19-00210, 20-00035 Page 7

Commerce’s withdrawal from the 2013 Suspension Agreement and the final determination in the 

underlying fresh tomatoes investigation. Id. ¶ 15.

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 argues that Bioparques’ claims are not justiciable. Def. Br. at 13–20.

Specifically, Defendant contends that Bioparques’ challenge of Commerce’s withdrawal from 

the 2013 Suspension Agreement and continuation of the underlying investigation is moot 

because Bioparques is a member of an association of Mexican exporters/producers of fresh 

tomatoes that signed the 2019 Suspension Agreement, and thus pays no antidumping duties. See

Def. Br. at 14–15; Def. Reply at 8–10. Defendant also avers that Bioparques’ claims are not ripe 
Court Nos. 19-00204, 19-00210, 20-00035 Page 8

for review because Bioparuqes cannot plead a cognizable injury stemming from a final 

determination that has no legal effect because of the extant suspension agreement, and has not

identified how the court could redress the purported injury. Def. Br. at 19–20; Def. Reply at 6–8.

Bioparques responds that although its complaint did not contain a specific count challenging the 

suspension agreement, the claims present a live controversy and that “the Court has the authority 

to vacate all actions by Commerce that flowed from the unlawful termination of the 2013 

suspension agreement.” Opp’n Br. at 23.

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).

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 
Court Nos. 19-00204, 19-00210, 20-00035 Page 9

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).

“Ripeness is a justiciability doctrine designed to prevent the courts, through avoidance of 

premature adjudication, from entangling themselves in abstract disagreements over 

administrative policies, and also to protect the agencies from judicial interference until an 

administrative decision has been formalized and its effects felt in a concrete way by 

the challenging parties.” Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 807–08

(2003) (internal quotation marks and citations omitted); Martin v. United States, 894 F.3d 1356, 

1362 (Fed. Cir. 2018). Two criteria guide a court in determining ripeness: “(1) the fitness of the 

issues for judicial decision and (2) the hardship to the parties of withholding court 

consideration.” Nat’l Park Hosp. Ass’n, 538 U.S. at 808.

Here, the court concludes that Bioparques’ claims challenging the final determination are 

unripe. Bioparques suffers no concrete or particularized injury from an as-yet-unpublished

antidumping duty order that has no effect and may never have any effect so long as the 2019 

Suspension Agreement remains in place. For the same reason, Bioparques cannot meet the 

hardship requirement because Bioparques pays no antidumping duties as a member of the 

Asociación Mexicana de Horticultura Protegida, A.C. (“AMHPAC”), an association of 
Court Nos. 19-00204, 19-00210, 20-00035 Page 10

individual Mexican fresh tomato growers that is a signatory to the 2019 Suspension Agreement.5

Fresh Tomatoes from Mexico, 84 Fed. Reg. at 49,994; see Compl. n.1, CAADES, Court No. 19-

00203, ECF No. 14, Compl., Ex. 1, ECF No. 14-1 (identifying Bioparques de Occidente, S.A. de 

C.V. and Agricola La Primavera, S.A. de C.V. as members of AMHPAC and signatories to the 

2019 Suspension Agreement).6

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.” Fresh Tomatoes from Mexico, 84 Fed. Reg. at 49,994. 

Thus, Bioparques’ challenge to the final determination does not present an actual case or 

controversy when Bioparques pays no duties as a signatory to the 2019 Suspension Agreement. 

See, e.g., Usinas Siderúrgicas de Minas Gerais S/A v. United States, 26 CIT 422, 431 (2002) (“A 

continued final affirmative determination [made after Commerce resumed an investigation after 

finalizing a suspension agreement] has no practical effect, unless and until the related suspension 

agreement is dissolved . . . . Thus, many of the same jurisprudential concerns that militate 

against piecemeal litigation also weigh against litigation of . . . a challenge which is not yet (and 

may never be) ripe.”) (“Usinas”).

7

 

5 AMHPAC is also a party plaintiff in cases challenging Commerce’s withdrawal of the 2013 

Suspension Agreement, finalization of the 2019 Suspension Agreement, and the final 

determination in the continued fresh tomatoes investigation in AMHPAC v. United States, Court 

No. 20-00036, and Confederacion de Asociaciones Agricolas del Estado de Sinaloa, A.C. v.

United, Court Nos. 19-00203 and 19-00206 (“CAADES”).

6 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[.]” Fresh Tomatoes from 

Mexico, 84 Fed. Reg. at 49,990.

7 Bioparques’ reliance on the 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 
Court Nos. 19-00204, 19-00210, 20-00035 Page 11

The parties dispute whether the Complaint contains a challenge to the 2019 Suspension 

Agreement. Def. Br. at 11; Opp’n Br. at 6–7. Even if the Complaint included a count 

challenging the new suspension agreement, that type of pleading deficiency is of no moment 

because any claims that could have been raised under 28 U.S.C. § 1581(c) contesting

Commerce’s withdrawal from the 2013 Suspension Agreement, resumption of the underlying 

investigation, or signing of the 2019 Suspension Agreement became moot when Bioparques 

signed the 2019 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)).8 Accordingly, the court 

cannot condone Bioparques’ litigation strategy in reaping the benefits of the 2019 Suspension 

Agreement while bringing an after-the-fact challenge to the final determination that currently has 

no impact and demanding that the court resurrect the 2013 Suspension Agreement when the 

claims here are not yet (and may never be) ripe.

The Mexican producers/exporters of fresh tomatoes may withdraw from the 2019 

Suspension Agreement for any reason, or for no reason at all, and without penalty, under a

similar withdrawal provision invoked three times before. In that event, Commerce would issue 

the antidumping duty order, but there is no logical scenario in which the superseded 2013

 

1310 (2019) is misplaced. Unlike here, the Court in CSC Sugar LLC vacated amendments to 

extant suspension agreements. 413 F. Supp. 3d at 1326; 413 F. Supp. 3d at 1318. Further, the 

plaintiff in CSC Sugar LLC, a domestic sugar refiner, was not a signatory to the operative

suspension agreement.

8 The court need not address Defendant’s unanswered argument that no exception to the 

mootness doctrine applies here, Def. Br. at 17–19, beyond mentioning the absence of precedent 

or persuasive case law showing that this case is an “exceptional situation” in which the 

challenged actions are “capable of repetition, yet evading review.” See Spencer, 523 U.S. at 17;

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”).
Court Nos. 19-00204, 19-00210, 20-00035 Page 12

Suspension Agreement would be reinstated. As long as Plaintiffs remain signatories to the 2019 

Suspension Agreement, the dumping margins will have no effect and will have no impact on 

Plaintiffs.

The court concludes that Bioparques’ failure to plead an actual case or controversy 

compels dismissal. Because Bioparques’ claims are not ripe and are otherwise moot under 

USCIT Rule 12(b)(1), the court need not discuss the parties’ arguments as to whether 

Bioparques’ claims are time-barred or should be dismissed for failure to state a claim under 

USCIT Rule 12(b)(6).

III. CONCLUSION

For the foregoing reasons, it is

ORDERED that Defendant’s motion to dismiss is granted and Plaintiffs’ Complaints are

dismissed with prejudice. Judgment will enter accordingly. 

/s/ Jennifer Choe-Groves

Jennifer Choe-Groves, Judge

Dated: September 11, 2020

New York, New York