                                          Slip Op. 

                UNITED STATES COURT OF INTERNATIONAL TRADE


 CÁMARA NACIONAL DE LAS
 INDUSTRIAS AZUCARERA Y
 ALCOHOLERA,

        Plaintiff,

 AMERICAN SUGAR COALITION,

        Plaintiff-Intervenor,                   Before: Mark A. Barnett, Judge

 v.                                             Court No. 15-00123

 UNITED STATES,

        Defendant,

 IMPERIAL SUGAR COMPANY,

        Defendant-Intervenor.


                                         OPINION

[The court finds that Plaintiff failed to establish constitutional standing. Accordingly, the
court grants Defendant’s motion to dismiss.]

                                                                 Dated: October , 2015

Philippe M. Bruno, Irwin P. Altschuler, and Rosa S. Jeong, Greenberg Traurig, LLP, of
Washington, D.C., for Plaintiff Cámara Nacional de las Industrias Azucarera y
Alcoholera.

Karl S. von Schriltz and Courtney S. McNamara, Attorney-Advisors, Office of General
Counsel, U.S. International Trade Commission, of Washington, D.C., for Defendant
United States. With them on the briefs was Andrea C. Casson, Assistant General
Counsel for Litigation.

       Barnett, Judge: Before the court is Defendant United States’ (“Defendant”)

Motion to Dismiss pursuant to United States Court of International Trade (“CIT”)
Court No. 15-00123                                                                    Page 2


Rule 12(b)(1). See Def.’s Mot. to Dismiss (“MTD”), ECF No. 26. Plaintiff Cámara

Nacional de las Industrias Azucarera y Alcoholera (“Plaintiff” or “Mexican Sugar

Chamber”) opposes the motion. See Pl.’s Opp’n to Mot. to Dismiss (“Pl.’s Opp’n”), ECF

No. 32. 1 Plaintiff brings this action for judicial review of the United States International

Trade Commission’s (“ITC” or “Commission”) decision that domestic sugar producers

Imperial Sugar Company (“Imperial”) and AmCane Sugar LLC (“AmCane”) had standing

to request review of suspension agreements pursuant to 19 U.S.C. §§ 1671c(h),

1673c(h). See generally Compl., ECF No. 9. Defendant moves to dismiss the

Complaint, arguing that “the Court must dismiss the action for lack of jurisdiction”

because Plaintiff failed to “identify or allege any injury-in-fact that a favorable decision

from this Court could redress.” MTD at 6.



                         BACKGROUND AND PROCEDURAL HISTORY

       The Mexican Sugar Chamber is an association with a majority of its members

consisting of Mexican sugar producers. See Compl. ¶ 3. The Mexican Sugar Chamber

was a party to the ITC proceeding, which is the subject of this action. See generally

Compl. On April 17, 2014, the United States Department of Commerce (“Commerce”)

initiated antidumping and countervailing duty (“AD” and “CVD,” respectively)

investigations of sugar imported from Mexico. See Sugar from Mexico, 79 Fed. Reg.

22,795 (Dep’t of Commerce Apr. 24, 2014) (initiation of antidumping duty investigation);



1Plaintiff-Intervenor American Sugar Coalition (ECF No. 25) and Defendant-Intervenor
Imperial Sugar Company (ECF No. 17) did not submit any briefs in this motion.
Court No. 15-00123                                                                Page 3


Sugar from Mexico, 79 Fed. Reg. 22,790 (Dep’t of Commerce Apr. 24, 2014) (initiation

of countervailing duty investigation).

       On May 12, 2014, the ITC found a “reasonable indication” of material injury to the

sugar industry in the United States by reason of subject imports. See Sugar from

Mexico, 79 Fed. Reg. 28,550 (USITC May 16, 2014). Commerce issued an affirmative

preliminary determination in the CVD investigation on August 25, 2014. See Sugar from

Mexico, 79 Fed. Reg. 51,956 (Dep’t of Commerce Sept. 2, 2014) (preliminary

affirmative countervailing determination and alignment of final countervailing duty

determination with final antidumping duty determination). Commerce also issued an

affirmative preliminary determination in the AD investigation on October 24, 2014. See

Sugar from Mexico, 79 Fed. Reg. 65,189 (Dep’t of Commerce Nov. 3, 2014)

(preliminary determination of sales at less-than-fair-value and postponement of final

determination).

       Shortly thereafter, on October 27, 2014, the United States, the Mexican

government, and the Mexican sugar industry initialed proposed agreements suspending

the AD and CVD investigations. See Compl. ¶ 9. Commerce then invited interested

parties to comment on the proposed agreements. See id. ¶ 10. Imperial and AmCane

entered appearances before Commerce and submitted comments. See id. The final

Suspension Agreements were signed on December 19, 2014, and Commerce

suspended the AD and CVD investigations accordingly. See id. ¶ 11. Before entering

appearances to comment on the proposed suspension agreements, Imperial and

AmCane submitted responses to the Commission’s questionnaires but did not otherwise
Court No. 15-00123                                                                   Page 4


participate “actively” in the Commission’s investigations. Id. ¶ 12. Imperial first entered

an appearance on December 9, 2014, during the final phase of the ITC’s investigations,

and AmCane first entered an appearance on January 2, 2015, during the final phase of

the ITC’s investigations and after the signing of the suspension agreements. See id.

       On January 8, 2015, Imperial and AmCane petitioned the ITC to review the

suspension agreements pursuant to 19 U.S.C. §§ 1671c(h) and 1673c(h). See id. ¶ 13.

The ITC subsequently initiated the requested review. Id. The notice of institution stated

that the ITC determined that Imperial and AmCane were “interested parties who were

parties to the underlying investigations at the time the petitions were filed, and

consequently are appropriate petitioning parties.” Id. ¶ 14. The Mexican Sugar

Chamber participated in the reviews and opposed Imperial and AmCane’s petitions,

arguing that the suspension agreements eliminated the injurious effect of subject

imports and should remain in place. See Sugar from Mexico, Inv. Nos. 704-TA-1, 734-

TA-1 (Review), USITC Pub. 4523 at 5 (Apr. 2015), A.R. 148, ECF No. 31; 80 Fed. Reg.

16426 (Mar. 27, 2015).

       The Mexican Sugar Chamber challenged Imperial and AmCane’s standing to

petition the ITC for the review of the suspension agreements via a letter dated January

13, 2015. See Views of the Commission (“Views”) at 4-5 n.13, A.R. 148, ECF No. 31.

Specifically, the Mexican Sugar Chamber requested that the Commission reject the

petitions for review because neither Imperial nor AmCane qualified as “an interested

party which is a party to the investigation” pursuant to 19 U.S.C. §§ 1671c(h) and

1673c(h). Id. The ITC “rejected these arguments” and affirmed that Imperial and
Court No. 15-00123                                                               Page 5


AmCane were proper petitioning parties because they were interested parties and

parties to the investigations pursuant to 19 U.S.C. §§ 1671c(h) and 1673c(h). See id.

The ITC agreed with the Mexican Sugar Chamber’s position, however, on the effect of

the suspension agreements, finding that the agreements “eliminate completely the

injurious effect of subject imports.” Sugar from Mexico, USITC Pub. 4523 at 1.

Accordingly, the suspension agreements remained in effect.

      Thereafter, Imperial and AmCane independently filed summonses with this court,

challenging the ITC’s injurious effects determination regarding the suspension

agreements. See Imperial Sugar Co. v. United States, Court No. 15-00118, AmCane

Sugar LLC v. United States, Court No. 15-00122. The Mexican Sugar Chamber

intervened as of right as a defendant-intervenor in both actions. See Court No. 15-

00118, ECF Nos. 12, 13; see also Court No. 15-00122, ECF Nos. 12,13.

      On April 27, 2015, the Mexican Sugar Chamber filed this action (ECF No. 1,

Summons) and filed its complaint on May 26, 2015 (ECF No. 9). The Mexican Sugar

Chamber subsequently sought the consent of Imperial, AmCane, and the ITC to

consolidate its case with Imperial Sugar Company, Court Number 15-00118, and

AmCane Sugar LLC, Court Number 15-00122, under the lead caption Imperial Sugar

Co. v. United States. See generally Mot. Consol., ECF No. 12. Imperial and AmCane

gave their consent, but the ITC opposed consolidation. See Mot. Consol. at 2. The

court consolidated Imperial and AmCane’s actions on June 19, 2015, but held in

abeyance a ruling on consolidation of this case, pending resolution of the Commission’s

motion to dismiss. See Consol. Order, ECF No. 28.
Court No. 15-00123                                                                   Page 6


       The Mexican Sugar Chamber’s Complaint challenges the ITC’s determination

that Imperial and AmCane have standing to request a review of agreements suspending

AD and CVD investigations pursuant to 19 U.S.C. §§ 1671c(h) and 1673c(h).

See Compl. ¶¶ 18-19. Specifically, the Mexican Sugar Chamber contends that the

determination was unsupported by substantial evidence and otherwise not in

accordance with law because, it alleges, Imperial and AmCane were not “parties to the

investigations” and thus were not “proper petitioning parties” within the meaning of

those statutory sections. Id.

       Defendant moves to dismiss for lack of subject-matter jurisdiction, pursuant to

CIT Rule 12(b)(1). See MTD at 1. The Commission contends that the Mexican Sugar

Chamber failed to demonstrate any injury-in-fact sufficient to establish constitutional

standing to bring this claim. See id. at 5-7. The Commission avers that, because the

Mexican Sugar Chamber prevailed on the merits of the review of the suspension

agreements, the subsidiary finding that Imperial and AmCane had standing to petition

for the review is insufficient to provide the injury-in-fact necessary to establish standing.

See id. at 7-8.



                                   STANDARD OF REVIEW

       To adjudicate a case, a court must have subject-matter jurisdiction over the

claims presented. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95

(1998). “[W]hen a federal court concludes that it lacks subject-matter jurisdiction, the
Court No. 15-00123                                                                      Page 7


court must dismiss the complaint in its entirety.” Arbaugh v. Y & H Corp., 546 U.S. 500,

514 (2006).

       A plaintiff bears the burden of establishing subject-matter jurisdiction. See Norsk

Hydro Can., Inc. v. United States, 472 F.3d 1347, 1355 (Fed. Cir. 2006). When subject-

matter jurisdiction is challenged at the motion to dismiss stage, courts must presume

that the factual allegations in the complaint are true and make reasonable inferences in

the plaintiff’s favor. See Pennell v. City of San Jose, 485 U.S. 1, 7 (1988). The

allegations, however, “must be enough to raise a right to relief above the speculative

level . . . on the assumption that all the allegations in the complaint are true (even if

doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The showing

must include “enough facts to state a claim to relief that is plausible on its face.”

Twombly, 550 U.S. at 570. “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (citation omitted).



                                         DISCUSSION

       “The Constitution ‘limits the judicial power of the United States to the resolution of

‘Cases’ and ‘Controversies.’” Hein v. Freedom Religion Found., Inc., 551 U.S. 587, 597

(2007) (quoting U.S. CONST. art. III, § 2, cl. 1). A key component of a case or

controversy is standing. See U.S. CONST. art. III, § 2, cl. 1; see also Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560 (1992) (“[T]he core component of standing is an essential

and unchanging part of the case-or-controversy requirement of Article III.”). As the
Court No. 15-00123                                                                    Page 8


Supreme Court explained, “the irreducible constitutional minimum of standing contains

three elements. First, the plaintiff must have suffered an ‘injury in fact’—an invasion of

a legally protected interest which is (a) concrete and particularized, and (b) actual or

imminent, not ‘conjectural’ or ‘hypothetical.’” Lujan, 504 U.S. at 560-61 (citations

omitted). In addition, the plaintiff must demonstrate that the injury is “fairly traceable to

the challenged action” and that it is “likely, as opposed to merely speculative, that the

injury will be redressed by a favorable decision.” Id. (quotation marks and brackets

omitted).

       The Court of Appeals for the Federal Circuit (“Federal Circuit”) has noted, “[a]s a

general rule, the prevailing party in a proceeding may not appeal the proceeding just

because he disagrees with some of the findings or reasoning.” Freeport Minerals Co. v.

United States, 758 F.2d 629, 634 (Fed. Cir. 1985). The parties in Freeport disputed

what constitutes a reviewable determination by an aggrieved party. In that case,

domestic producer Freeport challenged a court affirmed remand determination because

“it wasn’t until [Commerce’s] 1983 [remand] notice [(“1983 notice”)] revoking the order

[as to Chevron] that Freeport believed it was aggrieved.” Id. at 633.

       In contrast, Commerce and defendant intervenor, Chevron, countered that

Freeport’s action was untimely because Freeport should have challenged the original

determination in 1982 [(“1982 notice”)], despite the fact that the order remained in place

as to Chevron, and Freeport, therefore, was not aggrieved. See id. According to

Commerce and Chevron, the 1982 notice “constituted the final administrative review of

the antidumping finding for the period under review.” Id.
Court No. 15-00123                                                                     Page 9


       The CIT had agreed with Commerce and Chevron and dismissed Freeport’s

case as untimely. See Freeport Minerals Co. v. United States, 7 CIT 65, 583 F. Supp.

586 (1984). On appeal, the Federal Circuit reversed on the grounds that “since the end

result of the [original] notice was favorable to Freeport, there was no point in its

challenging [Commerce] then” and stated that “under the [CIT’s] remand, [Commerce]

made a new determination under section 1675 based on the same finding.” Freeport

Minerals, 758 F.2d at 634. The appellate court viewed “the publication of the 1983

[remand] notice as a publication of that determination as required under section

1675(a).” Id. The Federal Circuit further found that the other two issues in Freeport—

the doctrines of collateral estoppel and laches—“[founder] on the same rock of

confusion” as the standing issue raised by Commerce and Chevron. Id. at 636. Thus,

these doctrines did not bar Freeport from challenging the 1983 notice. See id.

       Based upon Freeport and its progeny, this court has repeatedly held that a party

lacks standing to challenge a subsidiary finding in an administrative determination in

which it prevailed on the merits. See, e.g., Zhanjiang Guolian Aquatic Prods. Co. v.

United States, 38 CIT __, 991 F. Supp. 2d 1339 (2014); Royal Thai Gov’t v. United

States, 38 CIT at __, 978 F. Supp. 2d 1330 (2014); Rose Bearings Ltd. v. United States,

14 CIT 801, 751 F. Supp. 1545 (1990). Consequently, “[i]t is well-settled in this court

that when a [party] challenges an administrative proceeding in which it has prevailed

there is no case or controversy, and thus no jurisdiction lies.” Zhanjiang Guolian, 991 F.

Supp. 2d at 1342 (internal quotations and citations omitted).
Court No. 15-00123                                                                   Page 10


       Notwithstanding this court’s well-settled law, the Mexican Sugar Chamber

asserts that it may nonetheless seek recourse on the original determination and either

cannot or should not wait for any possible remand determination reversing the ITC’s

original determination. Plaintiff argues that the ITC’s determination as to Imperial and

AmCane’s standing is the type “from which legal consequences flow, having a

substantial impact on the rights of the parties,” as required for Article III standing. Pl.’s

Opp’n at 6-7 (citing Internor Trade, Inc. v. United States, 10 CIT 826, 830, 651 F. Supp.

1456, 1460 (1986)). The Mexican Sugar Chamber contends that, in Internor, the CIT

held that a plaintiff had a stake in the outcome of an action to review an affirmative less-

than-fair-value determination by Commerce, although no antidumping duty order was

issued, due to a negative injury determination by the ITC. See Pl.’s Opp’n at 6-7

(citation omitted). The Mexican Sugar Chamber urges that it is similar to the Internor

plaintiff in that a dumping finding by Commerce would be to its detriment if a future

investigation resulted in an adverse determination. See Pl.’s Opp’n at 7 (citation

omitted). The Mexican Sugar Chamber thus analogizes its appeal of the ITC’s standing

determination as akin to “a protective cross-appeal filed by a defendant that has

prevailed on the issue of damages but has lost on liability.” Id. (citing Internor, 10 CIT at

830, 651 F. Supp. at 1460).

       The court’s decision in Internor is readily distinguishable, however. First, in

Internor, the plaintiff’s right to appeal Commerce’s affirmative less-than-fair-value

determination, despite a separate negative injury determination by the ITC, was
Court No. 15-00123                                                                  Page 11


expressly provided for by statute. 2 See Internor, 10 CIT at 828-29, 651 F. Supp. at

1458-59 (citation omitted). There is no similar statutory right to appeal a subsidiary

standing determination by the ITC within a broader decision otherwise favorable to

plaintiff. Further, the remaining challenges to the plaintiff’s cause of action in Internor

related to whether legal consequences flowed from the agency decision, which is the

test for assessing whether a case is ripe for review. As the Internor court explained,

         [t]he purpose of the ripeness doctrine is to prevent 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



2   As the Internor court stated,

         Section 1516a(a)(2) of Title 19, U.S.C. has provided for commencement of
         actions in this Court of International Trade within 30 days of publication in
         the Federal Register of antidumping-duty orders to review final affirmative
         ITA determinations underlying such orders. In 1984, Congress enacted
         the Trade and Tariff Act, section 623 of which was entitled “Elimination of
         Interlocutory Appeals.” Subparagraph (a)(4) of this section stated:

                Redesignate paragraph (3) [of 19 U.S.C. § 1516a(a) (1979)]
                as paragraph (4) and after paragraph (2) insert the following:

                (3) EXCEPTION.—Notwithstanding the limitation imposed by
                paragraph (2)(A)(ii) of this subsection, a final affirmative
                determination by the administering authority under section
                705 or 735 of this Act may be contested by commencing an
                action, in accordance with the provisions of paragraph
                (2)(A), within thirty days after the date of publication in the
                Federal Register of a final negative determination by the
                Commission under section 705 or 735 of this Act.

10 CIT at 828-29, 651 F. Supp. at 1458-59. The court concluded that it must permit the
claim to proceed because “[t]he text of the provision at issue is not ambiguous, and this
court is not at liberty to interpret that language as if it were otherwise.” Id. (citations
omitted).
Court No. 15-00123                                                                   Page 12


       been formalized and its effects felt in a concrete way by the challenging
       parties.

10 CIT at 830, 651 F. Supp. at 1460 (quoting Abbott Labs. v. Gardner, 387 U.S. 136,

148-49 (1967) (internal quotations omitted)). Here, the parties do not dispute that the

agency decision is final, and thus there is no question as to ripeness. The pertinent

question before this court is whether the Mexican Sugar Chamber has suffered an injury

given that it prevailed on the merits of the underlying review. The court discerns no

basis in the Internor decision to depart from the significant precedent that holds a party

cannot establish injury-in-fact under such circumstances.

       Plaintiff contends, however, that it suffered an injury-in-fact because of the

“uncertainty” surrounding the validity of the suspension agreements created by the

review and pending appeal. Pl.’s Opp’n at 7-8. Such uncertainty does not establish

injury-in-fact for standing purposes. Injury-in-fact requires a showing of “actual and

imminent” harm. Lujan, 504 U.S. at 560-61; see also Zhanjiang Guolian, 991 F. Supp.

2d at 1342 (“the fact that no CVD order has been issued means that Plaintiff is not

suffering any injury due to the errors it alleges the ITC committed”). The Mexican Sugar

Chamber’s Complaint fails to allege that it is currently suffering any harm and cannot

make an imminent harm allegation in good faith because the suspension agreements

remain in effect. See Royal Thai, 978 F. Supp. 2d at 1333 (dismissing case where

plaintiff “is currently not suffering any actual or imminent injury in fact”). Moreover, this

court has rejected the contention that the existence of an appeal establishes an injury-
Court No. 15-00123                                                                Page 13


in-fact because it requires the court to adjudicate a hypothetical negative outcome. 3

The court therefore concludes that the Mexican Sugar Chamber has not established an

injury-in-fact for Article III standing purposes.

       Finally, the Mexican Sugar Chamber appeals to the court’s notions of fairness. It

urges that it may have no opportunity to be heard on the standing issue if the court does

not hear the issue now. It contends that it may not be able to raise the issue on

remand, should Imperial and AmCane prevail in their appeals, because the issue will be

outside the scope of the remand order. In addition, the Mexican Sugar Chamber argues

that it may be unable to raise its claim about Imperial and AmCane’s standing in the

parallel proceedings because a cross-claim will be subject to the same constitutional

standing requirements as its claim in this action. Moreover, it notes that such a cross-

claim may be untimely at this stage of the litigation.

       These arguments do not change the fundamental problem that the Mexican

Sugar Chamber has failed to demonstrate an injury-in-fact sufficient for standing. Case

law is unequivocal that a plaintiff may not challenge subsidiary determinations where it

has prevailed in the overall proceeding, and, as discussed above, Freeport makes it

clear that, should the parallel proceeding result in a remand determination adverse to




3 The court will not speculate about future administrative reversals. See Zhanjiang
Guolian, 991 F. Supp. 2d at 1342 (“Speculation of an administrative reversal is
hypothetical, and hypothetical harm cannot provide jurisdiction.”); see also Rose
Bearings, 14 CIT at 802-03, 751 F. Supp. at 1546 (“Rose’s not-so-rosy scenario, that
the court may remand the case and that the ITA may reverse its finding as to spherical
plain bearings, is precisely the type of situation which calls for an advisory opinion, and
the court is barred explicitly from issuing such a ruling.”).
Court No. 15-00123                                                              Page 14


the Mexican Sugar Chamber, it would then have the opportunity to obtain judicial review

of this claim, assuming that it meets any relevant procedural requirements. Because it

has suffered no injury, the Mexican Sugar Chamber lacks standing to pursue this action.

Therefore, the court lacks jurisdiction, and accordingly, grants Defendant’s motion to

dismiss.



                                      CONCLUSION

      For the foregoing reasons, the court grants Defendant’s motion to dismiss (ECF

No. 26) and denies the Mexican Sugar Chamber’s motion to consolidate as moot (ECF

No. 12). Judgment will follow.



                                                /s/   Mark A. Barnett
                                                Mark A. Barnett, Judge

Dated: October  , 2015
       New York, New York
