Case: 19-123    Document: 3    Page: 1    Filed: 07/05/2019




          NOTE: This order is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                 ______________________

 In re: CONFEDERACION DE ASOCIACIONES
 AGRICOLAS DEL ESTADO DE SINALOA, A.C.,
 CONSEJO AGRICOLA DE BAJA CALIFORNIA,
       A.C., ASOCIACION MEXICANA DE
HORTICULTURA PROTEGIDA, A.C., ASOCIACION
DE PRODUCTORES DE HORTALIZAS DEL YAQUI
   Y MAYO, SISTEMA PRODUCTO TOMATE,
                    Petitioners
              ______________________

                        2019-123
                 ______________________

   On Petition for Writ of Mandamus to the United States
Court of International Trade in No. 1:19-cv-00059-JCG,
Judge Jennifer Choe-Groves.
                 ______________________

                     ON PETITION
                 ______________________

  Before LOURIE, BRYSON, and TARANTO, Circuit Judges.
PER CURIAM.
                       ORDER
    Confederación de Asociaciones Agrícolas del Estado de
Sinaloa, A.C., and other Mexican agricultural groups have
asked this court to issue a writ of mandamus to the United
States Court of International Trade. We deny the petition.
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2                    IN RE: CONFEDERACION DE ASOCIACIONES




                               I
     This case has a long procedural history. In April 1996,
Commerce initiated an antidumping duty investigation to
determine whether fresh tomatoes from Mexico were being
sold in the United States at less than fair value. Following
an investigation, Commerce made an affirmative prelimi-
nary dumping determination in October 1996. Commerce
then calculated the dumping margins for the exporters that
were individually investigated as well as for all other ex-
porters. Commerce also directed the posting of cash depos-
its or bonds for each entry of fresh tomatoes into the United
States and suspended liquidation of all such entries, pur-
suant to section 733 of the Tariff Act of 1930, as amended
(“the Tariff Act”), 19 U.S.C. §1673b(d)(1)(B).
    Shortly thereafter, Commerce entered into an agree-
ment pursuant to section 734(c) of the Tariff Act, 19 U.S.C.
§1673c(c), with the exporters who were responsible for sub-
stantially all the imports of fresh tomatoes from Mexico.
The exporters agreed not to sell tomatoes in the United
States at less than a specified “reference price,” and Com-
merce agreed to terminate the collection of cash deposits or
bonds and to end the suspension of liquidation of entries of
the subject tomatoes.
    Over the next 22 years, the Mexican exporters with-
drew from the suspension agreement on three occasions.
Each time the exporters withdrew, Commerce invoked sec-
tion 734(i)(1) of the Tariff Act, 19 U.S.C. §1673c(i)(1), which
authorizes Commerce to terminate a suspension agree-
ment if it determines that the agreement is being or has
been violated, or if it determines that the agreement no
longer meets the requirements of section 734. Pursuant to
section 734(i)(1), Commerce on those occasions resumed its
antidumping duty investigation, suspended the liquidation
of entries, and required the posting of cash deposits or
bonds for such entries, all based on the preliminary anti-
dumping duty determinations made in the 1996
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IN RE: CONFEDERACION DE ASOCIACIONES                             3



investigation. On each occasion, however, the parties en-
tered into a new suspension agreement, and the antidump-
ing duty investigation was again put on hold. The last such
agreement was executed in 2013.
    In February 2019, Commerce provided the petitioners
with notice that it intended to withdraw from the 2013 sus-
pension agreement pursuant to the withdrawal clause in
the agreement. On May 7, 2019, Commerce provided no-
tice of its intent to continue the suspended antidumping
duty investigation, to suspend liquidation of the subject en-
tries, and to require the posting of cash deposits and bonds.
Commerce represented that its resumed antidumping duty
investigation would be completed by September 2019. See
Fresh Tomatoes from Mexico: Termination of Suspension
Agreement, Rescission of Administrative Review, and Con-
tinuation of the Antidumping Duty Investigation, 84 Fed.
Reg. 20,858 (May 13, 2019).
      The petitioners promptly filed an action in the Court
of International Trade (“the Trade Court”) and moved for a
temporary restraining order, for a preliminary injunction,
and for summary judgment. In their request for injunctive
relief, the petitioners asked the court to enjoin Commerce
from ordering a suspension of liquidation of entries of fresh
tomatoes from Mexico, resuming its antidumping duty in-
vestigation into those imports, and instructing U.S. Cus-
toms and Border Patrol to require a cash deposit or bond
for each entry of the subject tomatoes.
    Following expedited briefing and intervention by the
Florida Tomato Exchange, an association of domestic to-
mato producers, the court held a hearing on May 16, 2019.
On June 6, the court filed a 26-page order denying the re-
quests for a temporary restraining order and a preliminary
injunction. App. 5-30. While not conclusively ruling on the
merits, the court concluded that the petitioners’ claims
were likely to fail. The court also found that the petitioners
had not satisfied their burden of showing irreparable harm
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4                    IN RE: CONFEDERACION DE ASOCIACIONES




and had not shown that the balance of hardships cuts in
their favor. The public interest factor, the court found, was
neutral.
     On June 19, 2019, the court held a status conference
after which the court ordered that briefing of the petition-
ers’ summary judgment motion would be stayed until July
8, 2019, and that the government would be allowed to file
any dispositive motion or an answer, together with an ad-
ministrative record, by July 8, with further briefing of the
dispositive motions and the petitioners’ motion for sum-
mary judgment to be completed by August 5. App. 31-32.
On June 28, the petitioners filed this petition for a writ of
mandamus.
                              II
     The petitioners make three legal arguments in support
of their mandamus petition: (1) that Commerce lacked stat-
utory authority to restart the 1996 antidumping duty in-
vestigation, to suspend the liquidation of entries of fresh
tomatoes from Mexico, and to require the collection of cash
deposits or bonds in connection with those entries; (2) that
in its Federal Register notice announcing its withdrawal
from the suspension agreement, Commerce did not cite sec-
tions 733 and 735 of the Tariff Act, 19 U.S.C. §§ 1673b,
1673d, and the Trade Court therefore erred by suggesting
that Commerce’s actions could be justified based on those
statutes; and (3) that the Trade Court erred by allowing the
government to file an administrative record in this case,
because the dispositive issue is purely legal and does not
entail review on the administrative record.
    1. The petitioners argue that because Commerce does
not contend that the petitioners violated the suspension
agreement or that the agreement no longer met the re-
quirements of sections 734(b) or (c) of the Tariff Act, section
734(i)(1) does not provide the authority for Commerce to
terminate the suspension agreement and reinstate the sta-
tus quo as of the time immediately preceding the original
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IN RE: CONFEDERACION DE ASOCIACIONES                              5



suspension agreement. Nor, they contend, does Commerce
have any such authority beyond section 734(i). Because
they contend that Commerce had no statutory authority at
all to restart the 1996 antidumping duty investigation, the
petitioners argue, the Trade Court should have issued a
preliminary injunction prohibiting Commerce from rein-
stating the 1996 dumping margins, suspending liquida-
tions of the subject entries, and requiring cash deposits or
bonds on those entries.
     Section 734(b) of the Tariff Act, 19 U.S.C. § 1673c(b),
provides that Commerce may suspend an antidumping
duty investigation “if the exporters of the subject merchan-
dise who account for substantially all of the imports of that
merchandise agree” to cease imports of the merchandise to
the United States or to revise their prices to eliminate the
calculated dumping margin. Section 734(d), 19 U.S.C.
§1673c(d). provides that Commerce may not accept such an
agreement unless it is satisfied that suspension of the in-
vestigation is in the public interest and effective monitor-
ing of the agreement is practicable. The statute further
provides, in section 734(i), 19 U.S.C. § 1673c(i), that if Com-
merce determines that a suspension agreement has been,
or is being violated, or no longer meets the requirements of
subsections (b) and (d) of section 734, Commerce may re-
sume the investigation “as if its affirmative preliminary de-
termination were made on the date of the determination [to
terminate the suspension agreement],” and suspend liqui-
dation of all unliquidated entries of the subject merchan-
dise. Section 734(i)(1), 19 U.S.C. § 1673c(i)(1). The
consequence of a resumption of the antidumping duty in-
vestigation would be that cash deposits or bonds would be
required on the subject entries. 19 U.S.C. § 1673b(d)(1)(B).
    The Federal Register notice in which Commerce an-
nounced its withdrawal from the agreement, 84 Fed. Reg.
20858 (May 13, 2019), stated: “In accordance with Section
VI.B of the 2013 Agreement, Commerce is withdrawing
from the 2013 Agreement effective May 7, 2019, which is
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6                    IN RE: CONFEDERACION DE ASOCIACIONES




90 days after our February 6, 2019 notice to the signatories.
Accordingly, Commerce is terminating the 2013 Agree-
ment, effective May 7, 2019, and continuing the underlying
AD investigation.” Id. at 20860. The notice explained that
the statute “does not identify the timing for completion of
the investigation in this scenario. Therefore, we are look-
ing to section 734(i)(1)(B) of the Tariff Act of 1930, as
amended (the Act), for guidance. Consistent with section
734(i)(1)(B) of the Act, Commerce will continue the investi-
gation as if it had published the affirmative preliminary
determination under section 733(b) of the Act on the effec-
tive date of the termination, May 7, 2019.” Id. Accordingly,
Commerce suspended liquidation of the subject tomatoes
and reimposed the requirement of antidumping duty cash
deposits or bonds for entries of the subject merchandise
“based on the preliminary dumping margins.” Id. at 20861.
    At the preliminary injunction hearing, government
counsel confirmed that Commerce had invoked the termi-
nation clause of the 2013 suspension agreement, not sec-
tion 734(i), as the basis for withdrawing from the
agreement, but that Commerce had looked to the statute
for guidance as to the procedure to follow upon the agree-
ment’s termination. App. 113–29.
    The Trade Court held that the petitioners were not
likely to succeed on the merits of their challenge to Com-
merce’s actions, for three reasons. First, given that Com-
merce relied on the withdrawal clause of the 2013
suspension agreement as its basis for withdrawing from
the agreement, the court found that the petitioners were
not likely to show that Commerce took its actions under the
authority of (and therefore subject to the limitations of) sec-
tion 734(i). App. 15–16. Second, the court found that the
petitioners were unlikely to be able to show that Com-
merce’s actions were not authorized by sections 733 and
735 of the Tariff Act, 19 U.S.C. §§ 1673b, 1673d, which dic-
tate the procedures Commerce must follow in making a
preliminary determination and a final determination in an
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IN RE: CONFEDERACION DE ASOCIACIONES                              7



antidumping investigation. Under those statutes, the
court explained, each of the steps taken by Commerce was
required by section 733 following a preliminary antidump-
ing duty determination. App. 16–17. Third, the court de-
termined that because the steps taken by Commerce were
required by sections 733 and 735, the petitioners’ claims
were likely to fail on the merits “before the court reaches
the issue of whether Commerce’s actions were permitted
pursuant to” section 734(i). App. 17.
    Like the Trade Court, we find it unnecessary to resolve
this issue conclusively. Nonetheless, we uphold the Trade
Court’s determination that the petitioners are unlikely to
succeed on the merits of their challenge to Commerce’s ac-
tions. As the Trade Court explained, Commerce stated that
it was basing its withdrawal from the suspension agree-
ment on the withdrawal provision of the agreement, not on
section 734(i). Regarding how to proceed after withdrawal,
Commerce did not invoke section 734(i) as the source of au-
thority for the present situation; rather, it looked to section
734(i) “for guidance” and took action “consistent with” what
section 734(i) authorizes where it applies: resumption of
the antidumping duty investigation, including the suspen-
sion of liquidations and the requirement of cash deposits or
bonds, steps that are required by sections 733 and 735.
     The petitioners contend that section 734(i)(1) identifies
the “only” circumstances in which the end of a suspension
agreement may result in resumption of the antidumping
duty investigation, suspension of liquidation of entries, and
a demand for cash deposits or bonds. Pet. 4. But the lan-
guage of section 734(i)(1) does not contain the word “only,”
and the petitioners have not shown that it likely implies
the absence of Commerce authority to take similar action
in cases not expressly covered by section 734(i). In light of
all those circumstances, the Trade Court found it unlikely
that the petitioners would succeed on their legal challenge
to Commerce’s actions, and we agree with that assessment.
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8                    IN RE: CONFEDERACION DE ASOCIACIONES




     2. The petitioners separately contend that Commerce
should be limited to the grounds recited in its May 7, 2019,
Federal Register notice to support the legality of its chal-
lenged activities. And in their brief, the petitioners suggest
that Commerce relied on section 734(i) of the Tariff Act to
justify the termination of the suspension agreement. But
that is not an accurate characterization of Commerce’s no-
tice. As the Trade Court recognized, Commerce’s state-
ment that it “look[ed] to section 734(i)(1)(B) of the Tariff
Act of 1930 . . . for guidance” and that it took action “con-
sistent with section 734(i)(1)(B) of the Act” merely reflected
that Commerce looked to section 734(i)(1)(B) by analogy; it
was clear from the notice, as was confirmed in the prelimi-
nary injunction hearing, that Commerce based its with-
drawal from the agreement on the termination clause of
the agreement itself.
    The petitioners further contend (Pet. 18–19, 21–23)
that the Trade Court improperly invoked sections 733 and
735 of the Tariff Act, even though Commerce did not cite
those statutes in its Federal Register notice. In particular,
the petitioners point to the Trade Court’s statement that it
was the petitioners’ burden “to prove that Commerce’s ac-
tions could not be based on two other statutes that Com-
merce never mentioned or relied upon: section 733 of the
Act, 19 U.S.C. § 1673b, and section 735 of the Act, 19 U.S.C.
§ 1673d.”
     The petitioners’ characterization of the Trade Court’s
analysis misses the point of the Trade Court’s ruling. In
the quoted passage, the Trade Court was saying that Com-
merce’s actions, upon terminating the suspension of the in-
vestigation, could properly be based on the general
statutory provisions governing the procedure Commerce is
required to follow in making preliminary and final deter-
minations. Contrary to petitioners’ contention, it was not
necessary for Commerce to cite sections 733 and 735 simply
for the point that once the suspension agreement was ter-
minated, the procedures dictated by those provisions once
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IN RE: CONFEDERACION DE ASOCIACIONES                             9



again became applicable. Those statutes simply set out the
background principles that govern Commerce’s actions in
making preliminary and final antidumping duty determi-
nations. The Federal Register notice is not rendered inva-
lid by the failure of Commerce to expressly cite those
statutory provisions.
     3. Finally, the petitioners contend (Pet. 22, 24–27) that
it was improper for the Trade Court to allow the govern-
ment to prepare and file an administrative record in con-
nection with further proceedings in the course of this
litigation. While the petitioners view the issue before the
Trade Court as purely legal, it was within that court’s dis-
cretion to call for the filing of an administrative record as
part of the future legal proceedings in this case. It may be
that the future proceedings will be disposed of on legal
grounds with no need for detailed factual development.
But at this point the Trade Court has not crossed that
bridge; it has simply called for the submission of an admin-
istrative record in the event that consultation of that record
may shed light on some of the issues that may arise later
in the litigation.
    The petitioners argue that the Trade Court’s review
should be based solely on Commerce’s published decision
rather than a “post-hoc” administrative record. However,
the Trade Court has not yet made any determination on
the scope of review to be employed in the upcoming pro-
ceedings before the court; it has merely allowed the govern-
ment to file that record and to mount arguments based on
it. To the extent the petitioners are suggesting that the
Trade Court will err in the future if it relies on information
in the administrative record, they may raise that claim on
appeal after a final judgment by the Trade Court.
     In sum, none of the petitioners’ legal challenges under-
mine the Trade Court’s ruling that the petitioners have
failed to show that they are likely to succeed on the merits
of their challenge to Commerce’s actions. In addition, the
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10                    IN RE: CONFEDERACION DE ASOCIACIONES




petitioners make no arguments regarding the Trade
Court’s adverse findings on the issues of irreparable harm
or the balance of hardships. The court’s findings on those
issues therefore stand unrebutted and provide further sup-
port for the Trade Court’s order denying the petitioners’ re-
quest for preliminary injunctive relief.
                              III
     Notably, apart from the merits of their legal argu-
ments, the petitioners labor under several procedural bur-
dens in this proceeding that counsel against the issuance
of mandamus. First, the Trade Court’s decision was to
deny the petitioners’ motion for a preliminary injunction.
It is well recognized, however, that the standard of review
of the denial of a preliminary injunction is abuse of discre-
tion, even when the issue is raised in an appeal of right.
See Tinnus Enters., LLC v. Telebrands Corp., 846 F.3d
1190, 1202 (Fed. Cir. 2017).
    Second, and relatedly, in reviewing the denial of a pre-
liminary injunction, a reviewing court typically examines
the trial court’s assessment of the four factors that bear on
the availability of preliminary injunctive relief, and it does
so with a deferential view as to the findings and conclu-
sions of the trial court. See Apple, Inc. v. Samsung Elecs.
Co., 678 F.3d 1314, 1319 (Fed. Cir. 2012); Reebok Int’l Ltd.
v. J. Baker, Inc., 32 F.3d 1552, 1556 (Fed. Cir. 1994).
    Third, this case comes up on mandamus, which carries
with it an especially exacting standard of review. Manda-
mus will lie only if the right to issuance of the writ is “clear
and indisputable.” Will v. Calvert Fire Ins. Co., 437 U.S.
655, 666 (1978) (citation and internal quotation marks
omitted). Moreover, a party seeking a writ of mandamus
bears the burden of demonstrating that it has no “adequate
alternative” means to obtain the desired relief. Mallard v.
U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 309
(1989). Finally, issuance of a writ of mandamus is not a
matter of right; even if the petitioner’s claim on the merits
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IN RE: CONFEDERACION DE ASOCIACIONES                                11



is clear and indisputable and the petitioner has no ade-
quate alternative means to obtain relief, the court, “in the
exercise of its discretion, must be satisfied that the issu-
ance of the writ is appropriate under the circumstances.”
Cheney v. U.S. Dist. Court for the Dist. of Columbia, 542
U.S. 367, 381 (2004).
     In this case, those standards for obtaining relief by way
of mandamus have not been satisfied. For the reasons
given by the Trade Court, the petitioners have failed to
show that they have a “clear and indisputable” right to re-
lief, particularly in light of the discretion accorded to a trial
court in adjudicating a request for a preliminary injunc-
tion. Likewise, petitioners have pointed to nothing in the
record to suggest that the issuance of the writ, an excep-
tional action, is appropriate in this case. And finally, the
petitioners have not shown that they have no adequate al-
ternative means to obtain the relief they seek. The peti-
tioners are seeking relief from the denial of a preliminary
injunction. Yet it is firmly established that an appeal lies
from the denial of a preliminary injunction. See 28 U.S.C.
1292(c); Epic Metals Corp. v. H.H. Robertson Co., 870 F.2d
1574, 1576 (Fed. Cir. 1989). As the Supreme Court has ex-
plained, “Ordinarily, mandamus may not be resorted to as
a mode of review where a statutory method of appeal has
been prescribed.” Roche v. Evaporated Milk Ass’n, 319 U.S.
21, 27–28 (1943) (citations omitted). In this case, therefore,
not only do the petitioners have the option of raising their
legal challenges through an appeal from an antidumping
duty determination, they have a right to appeal from the
denial of their request for a preliminary injunction. Under
these circumstances, mandamus would clearly be inappro-
priate.
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12                    IN RE: CONFEDERACION DE ASOCIACIONES




      Accordingly,
      IT IS ORDERED THAT:
      The petition is denied.
                                 FOR THE COURT

July 05, 2019                     /s/ Peter R. Marksteiner
    Date                          Peter R. Marksteiner
                                  Clerk of Court

s31
