Red Sun Farms v. United States
| Decision Date | 14 April 2022 |
| Docket Number | 2020-2230 |
| Citation | 30 F.4th 1358 |
| Parties | RED SUN FARMS, Plaintiff-Appellant v. UNITED STATES, Florida Tomato Exchange, Defendants-Appellees |
| Court | U.S. Court of Appeals — Federal Circuit |
James P. Durling, Curtis, Mallet-Prevost, Colt & Mosle LLP, Washington, DC, argued for plaintiff-appellant. Also represented by James Beaty, Daniel L. Porter. Also argued by Devin S. Sikes, Akin Gump Strauss Hauer & Feld LLP, Washington, DC; Jeffrey M. Winton, Winton & Chapman, PLLC, Washington, DC.
Douglas Glenn Edelschick, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee United States. Also argued by Robert K. Kiepura. Also represented by Brian M. Boynton, Jeanne Davidson, Franklin E. White, Jr. ; Emma T. Hunter, Office of the Chief Counsel for Trade Enforcement & Compliance, United States Department of Commerce, Washington, DC.
Mary Jane Alves, Cassidy Levy Kent USA LLP, Washington, DC, argued for defendant-appellee Florida Tomato Exchange. Also represented by James R. Cannon, Jr., Ulrika K. Swanson, Jonathan M. Zielinski.
Before Dyk, Prost, and Taranto, Circuit Judges.
This is one of several appeals argued together to this panel, all arising out of an antidumping duty investigation to determine whether fresh Mexican tomatoes were being imported into the United States and sold at less than fair value. The history of the proceedings is described in our two accompanying precedential opinions in Confederacion de Asociaciones Agricolas del Estado de Sinaloa, A.C. v. United States , No. 2020-2232, ––– F.4th ––––, 2022 WL 1112233 (Fed. Cir. 2022), and Bioparques de Occidente v. United States , No. 2020-2265, ––– F.4th ––––, 2022 WL 1112228 (Fed. Cir. 2022). In this case, we reverse and remand.
"Red Sun Farms" is the trade name under which various identified entities do business. These entities are "U.S. producers of fresh tomatoes grown in the United States, U.S. importers and resellers of fresh tomatoes from Mexico, and foreign producers and exporters of fresh tomatoes from Mexico." Appellant's Br. 3; see also J.A. 21 (summons).
The complaint in this case was filed against the United States in the Court of International Trade ("Trade Court") on December 26, 2019. It begins: J.A. 24. The caption on the complaint is simply "Red Sun Farms, Plaintiff, v. United States, Defendant." Id. After beginning with the identification of "Red Sun Farms" with the above quote, the complaint thereafter uses the singular "Plaintiff." See J.A. 24–36. Like the Trade Court, we will follow that usage—which, however, raises issues to be addressed on remand, as we will discuss.
The complaint followed the filing, on November 25, 2019, of the summons that commenced the Trade Court case. J.A. 21–23. The summons includes the same caption and formulation relating "Red Sun Farms" to five identified entities as does the later complaint, but the summons, while twice referring to "Plaintiff" (singular), also twice refers to "Plaintiffs" (plural). J.A. 21. The corporate disclosure statement filed with the summons states: "Plaintiff and its member companies are not publicly-owned." Form 13 Corporate Disclosure Statement, Red Sun Farms v. United States , No. 1:19-cv-00205 (Ct. Int'l Trade Nov. 25, 2019), ECF No. 3.
In the Trade Court, the government flagged the issue of who precisely brought this action. In its March 2020 motion to dismiss, the government observed, with respect to the five identified entities doing business as "Red Sun Farms," that "[i]t is unclear whether all of these parties possess standing or can be considered real parties in interest" and reserved its right to raise additional arguments on the subject. J.A. 62 n.1. In April 2020, in a discovery filing, the government noted the varying singular/plural usage by Red Sun Farms and stated that " ‘Plaintiff’ Red Sun Farms actually consists of several companies, which are" the five identified in the quote above. J.A. 180 n.1. We note that, in this court, Red Sun Farms, in its certificate of interest (Form 9 in this court), used the same formulation quoted above from the complaint, i.e. , "Red Sun Farms ([the identified five entities], collectively d/b/a Red Sun Farms)," to designate "all entities represented by the undersigned counsel in this case." Certificate of Interest, Red Sun Farms v. United States , No. 2020-2230 (Fed. Cir. Sept. 16, 2020), ECF No. 3.
On the merits, Red Sun Farms presented seven claims in the complaint. All claims challenge aspects of the final determination resulting from Commerce's continued investigation. See Fresh Tomatoes from Mexico: Final Determination of Sales at Less than Fair Value, 84 Fed. Reg. 57,401 (Oct. 25, 2019) ( Final Determination ). The claims fall into three categories: (1) that Commerce improperly selected new respondents in its continued investigation; (2) that Commerce committed timing and procedural errors in reaching its final determination; and (3) that Commerce utilized flawed methodologies to calculate dumping margins, the all-others rate, and cash deposit rates in the final determination. Red Sun Farms alleged in the complaint that the Trade Court had jurisdiction under 28 U.S.C. § 1581(c) because Red Sun Farms challenged a final determination resulting from a continued investigation under 19 U.S.C. § 1516a(a)(2)(B)(iv).
The government moved to dismiss on grounds of ripeness, lack of subject matter jurisdiction, and failure to state a claim upon which relief can be granted. The Trade Court granted the government's motion and dismissed the complaint with prejudice on ripeness grounds because the 2019 suspension agreement remained in place, and there had been accordingly no final antidumping order issued based on the Final Determination. Red Sun Farms v. United States , 469 F. Supp. 3d 1403, 1408–10 (Ct. Int'l Trade 2020). Red Sun Farms appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).
Like the appellants in Bioparques de Occidente v. United States , No. 2020-2265, ––– F.4th –––– [hereafter " Bioparques "], Red Sun Farms challenges the Final Determination published by the Department of Commerce on October 25, 2019. The Trade Court held in this case, as it did in the Bioparques case, that these challenges were premature because no final antidumping order had issued. Today we reverse that holding in Bioparques , and we do the same in this case, relying on our opinion in Bioparques —which applies because Red Sun Farms’ interests include the present, concrete interests of exporters bound by the suspension agreement at the center of Bioparques. Red Sun Farms’ claims are not premature.
As to statutory jurisdiction, this case differs from Bioparques. There, we hold that jurisdiction exists based on §§ 1516a(g)(3)(A)(i) and 1516a(a)(2)(B)(i) ; and we do not reach the issue of jurisdiction based on §§ 1516a(a)(2)(A)(i) and 1516a(a)(2)(B)(iv). Here, Red Sun Farms invokes only the latter basis of statutory jurisdiction. We hold, in agreement with Red Sun Farms, that the Trade Court has statutory jurisdiction on that basis.
Under § 1516a(a)(2)(A)(i)(I), "[w]ithin thirty days after ... the date of publication in the Federal Register of ... notice of any determination described in clause ... (iv) ... of subparagraph (B)," "an interested party who is a party to the proceeding in connection with which the matter arises may commence an action" in the Trade Court by filing a summons, to be followed by a complaint within 30 days thereafter (emphasis added). Clause (iv) of subparagraph (B) reads:
§ 1516a(a)(2)(B)(iv) [hereafter "B(iv)"]. As explained in Bioparques , § 1673c covers agreements to suspend an investigation, § 1673c(c); continued investigations, § 1673c(f)(3); and procedures relating to final determinations in those continued investigations, id. As also explained in Bioparques , Congress gave not only domestic-industry entities but also the exporter signatories (if they are significant enough together) the right to demand a continued investigation after publication of a suspension agreement. § 1673c(g). See Bioparques , ––– F.4th at ––––, slip op. at 17.
The government agrees that Commerce's Final Determination in the present matter is a "final determination resulting from a continued investigation which changes the size of the dumping margin." Oral Arg. at 1:22:40–1:23:02; see also Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination: Fresh Tomatoes From Mexico, 61 Fed. Reg. 56,608, 56,615 (Nov. 1, 1996) ( Preliminary Determination ) (setting preliminary dumping margins); Final Determination , 84 Fed. Reg. at 57,402 (). And the government does not dispute that Red Sun Farms served its summons within 30 days of publication of the Final Determination and served its complaint within 30 days thereafter. The government nevertheless disputes the applicability of B(iv).
The government's argument is that any challenge under B(iv) must...
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