CAFC Denies Rehearing Bid in Case Over AD Final Determination Under Suspension Agreement

The U.S. Court of Appeals for the Federal Circuit in a July 1 order denied three Mexican tomato exporters' bid for a panel rehearing and rehearing en banc in a case challenging the termination of an antidumping duty suspension agreement. Judges Kimberly Moore, Pauline Newman, Alan Lourie, Timothy Dyk, Sharon Prost, Richard Taranto, Raymond Chen, Todd Hughes, Kara Stoll, Tiffany Cunningham and Leonard Stark denied the petition from Agricola La Primaveria, Bioparques de Occidente and Kaliroy Fresh, while Judge Jimmie Reyna did not participate (Bioparques de Occidente v. United States, Fed. Cir. #20-2265, -2266, -2267).

The decision was one of four pertaining to the same antidumping duty investigation on Mexican tomatoes. In 1996, an agreement was struck to suspend the AD investigation on tomatoes from Mexico, requiring signatories to sell their goods in the U.S. at minimum reference prices. Successive agreements were made in 2002, 2008 and 2013, though in 2019, the Commerce Department withdrew from the 2013 agreement, continuing the AD investigation. But before an AD duty order could be imposed, a new suspension agreement was struck with higher minimum reference prices requiring dumping margins not to exceed 15%. U.S. tomato producers asked Commerce to continue the investigation, however, leading to the release of a final determination that dumping was occurring.

The Federal Circuit issued its four opinions on April 14 (see 2204140067). In Bioparques de Occidente's case, the appellants challenged the termination of the 2013 agreement, the continuation of the investigation and the final determination. The appellate court reversed the Court of International Trade's ruling that the claims over the termination of the 2013 agreement were moot, but it went on to decide on substantive grounds that the claims over the termination of the agreement laid out no plausible challenge to the termination and should thus be dismissed.

The appellants then filed a rehearing motion, arguing that the opinion was a miscarriage of justice since their termination claims were decided on substantively, despite the lack of briefing on the substance of these claims (see 2206010040). The rehearing brief further laid out a series of arguments to show that "plausible" claims exist to hold the termination of the suspension agreement unlawful. The companies argued that the panel's decision failed to discuss the language of Commerce's regulations, which differ from the statute and limit Commerce's ability to terminate suspension agreements. Nevertheless, the Federal Circuit denied the rehearing bid without an explanation.