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.

UNITED STATES, 

Defendant,

and

THE FLORIDA TOMATO EXCHANGE,

Defendant-Intervenor.

Before: Jennifer Choe-Groves, Judge

Court No. 19-00127

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