Case: 20-2230 Document: 71 Page: 1 Filed: 04/14/2022
United States Court of Appeals
for the Federal Circuit
______________________
RED SUN FARMS,
Plaintiff-Appellant
v.
UNITED STATES, FLORIDA TOMATO EXCHANGE,
Defendants-Appellees
______________________
2020-2230
______________________
Appeal from the United States Court of International
Trade in No. 1:19-cv-00205-JCG, Judge Jennifer Choe-
Groves.
______________________
Decided: April 14, 2022
______________________
JAMES P. DURLING, Curtis, Mallet-Prevost, Colt &
Mosle LLP, Washington, DC, argued for plaintiff-appel-
lant. 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 Jus-
tice, Washington, DC, argued for defendant-appellee
United States. Also argued by ROBERT K. KIEPURA. Also
represented by BRIAN M. BOYNTON, JEANNE DAVIDSON,
Case: 20-2230 Document: 71 Page: 2 Filed: 04/14/2022
2 RED SUN FARMS v. US
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, Wash-
ington, 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.
Opinion for the Court filed by Circuit Judge TARANTO.
Opinion dissenting-in-part and concurring-in-part filed by
Circuit Judge DYK.
TARANTO, Circuit Judge.
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, and Bioparques de Occidente
v. United States, No. 2020-2265. In this case, we reverse
and remand.
I
A
“Red Sun Farms” is the trade name under which vari-
ous 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).
Case: 20-2230 Document: 71 Page: 3 Filed: 04/14/2022
RED SUN FARMS v. US 3
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: “1. Plaintiff Red Sun
Farms (Naturbell SPR DE RL, San Miguel Red Sun Farms
SPR DE RL DE CV, Agricola El Rosal SA DE, Jem D Inter-
national Michigan Inc., and Red Sun Farms Virginia LLC,
collectively d/b/a Red Sun Farms) by and through its coun-
sel, states the following claims against the Defendant, the
United States.” J.A. 24. The caption on the complaint is
simply “Red Sun Farms, Plaintiff, v. United States, De-
fendant.” 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 re-
fers to “Plaintiffs” (plural). J.A. 21. The corporate disclo-
sure 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 mo-
tion 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 inter-
est” and reserved its right to raise additional arguments on
the subject. J.A. 62 n.1. In April 2020, in a discovery filing,
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4 RED SUN FARMS v. US
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 iden-
tified 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.
B
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 inves-
tigation. See Fresh Tomatoes from Mexico: Final Determi-
nation 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 mar-
gins, 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 deter-
mination resulting from a continued investigation under 19
U.S.C. § 1516a(a)(2)(B)(iv).
The government moved to dismiss on grounds of ripe-
ness, 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 com-
plaint with prejudice on ripeness grounds because the 2019
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RED SUN FARMS v. US 5
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 pur-
suant to 28 U.S.C. § 1295(a)(5).
II
Like the appellants in Bioparques de Occidente v.
United States, No. 2020-2265 [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 fi-
nal antidumping order had issued. Today we reverse that
holding in Bioparques, and we do the same in this case, re-
lying on our opinion in Bioparques—which applies because
Red Sun Farms’ interests include the present, concrete in-
terests 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 Bi-
oparques. 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 agree-
ment with Red Sun Farms, that the Trade Court has stat-
utory jurisdiction on that basis.
A
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
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6 RED SUN FARMS v. US
arises may commence an action” in the Trade Court by fil-
ing a summons, to be followed by a complaint within 30
days thereafter (emphasis added). Clause (iv) of subpara-
graph (B) reads:
(B) Reviewable determinations
The determinations which may be contested under
subparagraph (A) are as follows:
***
(iv) A determination by the administering author-
ity, under section 1671c or 1673c of this title, to
suspend an antidumping duty or a countervailing
duty investigation, including any final determina-
tion resulting from a continued investigation which
changes the size of the dumping margin or net
countervailable subsidy calculated, or the reason-
ing underlying such calculations, at the time the
suspension agreement was concluded.
§ 1516a(a)(2)(B)(iv) [hereafter “B(iv)”]. As explained in Bi-
oparques, § 1673c covers agreements to suspend an inves-
tigation, § 1673c(c); continued investigations, § 1673c(f)(3);
and procedures relating to final determinations in those
continued investigations, id. As also explained in Bi-
oparques, Congress gave not only domestic-industry enti-
ties but also the exporter signatories (if they are significant
enough together) the right to demand a continued investi-
gation after publication of a suspension agreement.
§ 1673c(g). See Bioparques, slip op. at 17.
The government agrees that Commerce’s Final Deter-
mination 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 Determi-
nation: Fresh Tomatoes From Mexico, 61 Fed. Reg. 56,608,
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RED SUN FARMS v. US 7
56,615 (Nov. 1, 1996) (Preliminary Determination) (setting
preliminary dumping margins); Final Determination, 84
Fed. Reg. at 57,402 (changing the size of those margins).
And the government does not dispute that Red Sun Farms
served its summons within 30 days of publication of the Fi-
nal Determination and served its complaint within 30 days
thereafter. The government nevertheless disputes the ap-
plicability of B(iv).
The government’s argument is that any challenge un-
der B(iv) must include a timely challenge to the suspension
agreement itself—to a “determination by” Commerce “to
suspend an antidumping duty . . . investigation.”
§ 1516a(a)(2)(B)(iv). According to the government, even if
the challenger’s only grievance is with the final determina-
tion in the continued investigation, it cannot challenge that
final determination under B(iv) unless it filed an action
within 30 days of the publication of the suspension agree-
ment at issue. It is not enough, says the government, that
the challenger filed its B(iv) action within 30 days of the
publication of the final determination that follows that
agreement. In this matter, it is undisputed that Red Sun
Farms did not file an action within 30 days of publication
of the 2019 Agreement.
We have not ruled on the proper interpretation of B(iv),
so the government bases its argument on Usinas Siderúr-
gicas de Minas Gerais, S/A v. United States, 201 F. Supp.
2d 1304 (Ct. Int’l Trade 2002). There, the Trade Court con-
cluded that B(iv) covers only actions that allege that the
suspension agreement should not have been executed or
that it is defective in light of a final determination’s alter-
ation of margins or reasoning underlying the agreement,
and it determined that B(iv) actions must be brought
within 30 days of publication of the suspension agreement.
Id. at 1312. The Usinas court reasoned that the statute,
through its “including” language, “close[ly] reference[s]”
the underlying suspension agreement, so that a challenge
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8 RED SUN FARMS v. US
to the final determination can be brought only as part of a
challenge to the suspension agreement itself. Id.
Usinas is not precedent for this court, and we conclude
that the Usinas court read B(iv) too narrowly. A final de-
termination in a continued investigation that changes the
dumping margins after the conclusion of the suspension
agreement, like the Final Determination here, is a “deter-
mination described in clause . . . (iv) . . . of subparagraph
(B).” § 1516a(a)(2)(A)(i). And “any” such determination
may be reviewed by filing a summons within 30 days of
that determination’s publication (followed by a complaint
within 30 days thereafter). Id. The language of subpara-
graph (A) directly applies to these types of determinations,
in which Commerce’s calculation of dumping margins has
changed, creating a different set of circumstances from
those on which the suspension agreement was based.
The language of B(iv), on which the Usinas court relied,
does not support a contrary conclusion. The court in Usi-
nas, agreeing with the government, ruled that the “includ-
ing” term could have (and therefore had to be given) a
meaning under which the words following “including” iden-
tify a component part of what is identified in the words pre-
ceding “including.” Usinas, 201 F. Supp. 2d at 1310–13
(using “illustrative,” “component part,” and similar terms
to identify this interpretation). But that meaning makes
no linguistic sense in B(iv). A final determination in a con-
tinued investigation is not naturally described as a part of
a “determination . . . to suspend”; they are not even made
at the same time or in the same Commerce document or
announcement. Indeed, the particular final determina-
tions identified in B(iv) qualify only if they embody changes
in the premises of the earlier-made “determination . . . to
suspend.” A whole/part meaning makes no sense in B(iv),
unlike in B(i) or B(ii), which refer to a final affirmative de-
termination as including a negative “part” (and vice versa)
Case: 20-2230 Document: 71 Page: 9 Filed: 04/14/2022
RED SUN FARMS v. US 9
of the single Commerce announcement, with no gap in time
of publication.
As the court in Usinas recognized, “including” in legal
settings can have an “expansive” meaning, 201 F. Supp. 2d
at 1311, under which a provision as a whole encompasses
both what comes before and what comes after the word.
Here, such a meaning is supported by the language with
which subparagraph B begins: “The determinations which
may be contested under subparagraph (A) clause are as fol-
lows . . . .” The “including” phrase of B(iv) is naturally un-
derstood as identifying something as being “includ[ed]”
among the “determinations which may be contested under
subparagraph (A),” not (unnaturally) as “includ[ed]” within
the “determination . . . to suspend.” Accordingly, not only
the text of subparagraph (A) but also the text of subpara-
graph (B) supports Red Sun Farms’ interpretation.
This interpretation also fits with other pertinent as-
pects of the statute. See, e.g., Merit Mgmt. Group, LP v.
FTI Consulting, Inc., 138 S. Ct. 883, 892–93 (2018) (consid-
ering “[t]he language of [the provision at issue], the specific
context in which that language is used, and the broader
statutory structure”). Congress expressly authorized both
domestic-industry entities and exporter signatories (the
latter if significant enough together) to trigger a continued
investigation, § 1673c(g), and the disputed “including”
clause of B(iv) specifically refers to final determinations re-
sulting from such continued investigations that change the
premises existing when the suspension agreement was ex-
ecuted. The B(iv) provision thus clearly contemplates a
scenario (among others) in which exporter signatories, hav-
ing just signed the suspension agreement, are interested
only in obtaining a correct final determination—whether to
give them a reason to withdraw from the agreement or,
conversely, to avoid termination of a satisfactory suspen-
sion agreement because it is deemed not to adhere to
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10 RED SUN FARMS v. US
statutory requirements based on a new incorrect final de-
termination (e.g., of higher dumping margins).
The government argues that the Mexican signatories
could have challenged the suspension agreement within 30
days of its publication and that such a challenge would
have served as a placeholder, allowing them to amend their
complaints later to challenge a final determination in the
continued investigation once such a final determination
was published. Oral Arg. at 1:38:42–1:40:10. But the ques-
tion is not what could be done, but what must be done. And
not only does the government’s interpretation conflict with
the text of the statute, as just discussed, but the govern-
ment has not identified any reason why Congress should
be understood to have imposed such a placeholder-filing re-
quirement when the interested party is not yet aggrieved
by anything and will become aggrieved only later if it sees
flaws in a final determination that are worth trying to cor-
rect through litigation. Nor has the government identified
any support in the legislative history; in fact, no party has
presented to us any argument based on legislative history.
The filing requirement urged by the government also
would be an awkward fit with the timing requirements of
the statute. The government’s interpretation would re-
quire parties that might later want to challenge a final de-
termination in a continued investigation—without even
knowing the results of that determination—to file a chal-
lenge to the suspension agreement within 30 days of the
agreement’s publication. Of course, it is conceivable that a
final determination might issue within that very brief pe-
riod, despite the work needed to resume an investigation
that has been suspended and arrive at a final determina-
tion. But the government has supplied no sound basis for
concluding that Congress was acting on the assumption
that a final determination would issue in that period or oth-
erwise in time for it to be evaluated before the end of the
30-day period from the publication of the suspension
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RED SUN FARMS v. US 11
agreement. Indeed, Congress allowed for 20 days after the
publication of a suspension agreement for domestic-indus-
try entities or exporter signatories just to file a request for
continued investigation, § 1673c(g), and for 75 days after
the preliminary determination for Commerce to make a fi-
nal determination, which may be further extended to 135
days, see § 1673d(a)(1)–(2). Here, the Final Determination
was published on October 25, 2019, which is 31 days after
the September 24, 2019 publication of the suspension
agreement. Final Determination, 84 Fed. Reg. at 57,402
n.8. Red Sun Farms did not know the results of the contin-
ued investigation, let alone have time to evaluate it, within
30 days of the agreement’s publication.
We hold that an affirmative final determination in a
continued investigation may be challenged under
§ 1516a(a)(2)(A)(i)(I) within 30 days of the publication of
the final determination under § 1516a(a)(2)(B)(iv), which
provides the Trade Court jurisdiction under 28 U.S.C.
§ 1581(c). On the record before us, those provisions support
Trade Court jurisdiction over Red Sun Farms’ challenge to
the Final Determination. The dismissal must therefore be
reversed, and the case remanded.
B
On remand, the Trade Court should address issues
raised by the naming of “Red Sun Farms” as the lone
“Plaintiff” in the caption of the case. The summons and
complaint use “Red Sun Farms” as the collective litigation
name of the group of the five identified domestic and for-
eign producers, exporters, and importers, which, the filings
assert, use “Red Sun Farms” as their trade name in con-
ducting business; but the summons also refers to the five
companies as “Plaintiffs.” We note here some issues raised
by these facts, and the others recited above. We do not de-
cide which ones need to be addressed and resolved on
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12 RED SUN FARMS v. US
remand, whether other issues need to be addressed and re-
solved, and what consequences might follow.
One issue is whether the five entities doing business
under the Red Sun Farms name are actually already plain-
tiffs in this case and should be named in the caption. If so,
the question might arise whether some of the five entities
(for example, perhaps the domestic producers) might lack
standing. If the five entities are not yet parties, a question
might arise whether they can be made parties.
Another issue is whether Red Sun Farms is itself an
entity with legal capacity to sue. USCIT Rule 17(b)(3)
states that for non-corporations, capacity to sue is deter-
mined “by the law of the appropriate state, except that . . .
a partnership or other unincorporated association with no
such capacity under that state’s law may sue or be sued in
its common name to enforce a substantive right existing
under the United States Constitution or laws.” Regarding
the first clause, state law appears to differ on use of a trade
name when bringing suit. Compare, e.g., America’s Whole-
sale Lender v. Pagano, 866 A.2d 698, 700 (Conn. App. Ct.
2005) (“Because the trade name of a legal entity does not
have a separate legal existence, a plaintiff bringing an ac-
tion solely in a trade name cannot confer jurisdiction on the
court.”), with Sam’s Wholesale Club v. Riley, 527 S.E.2d
293, 296 (Ga. Ct. App. 1999) (“A corporation conducting
business in a trade name may sue or be sued in [its] trade
name.” (quoting Carrier Transicold Div. v. Southeast Ap-
praisal Resource Assocs., 504 S.E.2d 25, 26 (Ga. Ct. App.
1998)). If Red Sun Farms lacks capacity to sue under ap-
propriate state law, the question arises whether it has ca-
pacity to sue under the “except that” clause of USCIT Rule
17(b)(3) as a partnership or other unincorporated associa-
tion suing to enforce substantive rights under Title 19 of
the U.S. Code. We note, finally, that if capacity to sue is
missing, a question could arise about whether the defect is
jurisdictional. See generally 6A Charles Alan Wright &
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RED SUN FARMS v. US 13
Arthur R. Miller, Federal Practice and Procedure § 1559
(3d ed.).
III
We reverse the Trade Court’s decision and remand for
further proceedings consistent with this opinion and our
decision in Bioparques.
The parties shall bear their own costs.
REVERSED AND REMANDED
Case: 20-2230 Document: 71 Page: 14 Filed: 04/14/2022
United States Court of Appeals
for the Federal Circuit
______________________
RED SUN FARMS,
Plaintiff-Appellant
v.
UNITED STATES, FLORIDA TOMATO EXCHANGE,
Defendants-Appellees
______________________
2020-2230
______________________
Appeal from the United States Court of International
Trade in No. 1:19-cv-00205-JCG, Judge Jennifer Choe-
Groves.
______________________
DYK, Circuit Judge, concurring-in-part and dissenting-in-
part.
I join part II.B of the majority opinion, but I respect-
fully dissent from the majority’s holding that 19 U.S.C.
§ 1516a(a)(2)(B)(iv) (“B(iv)”) provides a basis for jurisdic-
tion. Subsection B(iv) on its face, in the context of the stat-
ute as a whole, and given its history, permits challenges to
a final determination resulting from a continued investiga-
tion only if the appealing party has previously filed a chal-
lenge to the suspension agreement. Both the Trade Court
in Usinas Siderúrgicas de Minas Gerais, S/A v. United
States, 201 F. Supp. 2d 1304 (Ct. Int’l Trade 2002), which
has “expertise in addressing antidumping issues and deals
on a daily basis with the practical aspects of trade
Case: 20-2230 Document: 71 Page: 15 Filed: 04/14/2022
2 RED SUN FARMS v. US
practice,” Int’l Trading Co. v. United States, 281 F.3d 1268,
1274 (Fed. Cir. 2002), and the government on appeal agree.
I
Subsection B(iv) was originally enacted in 1979. The
Trade Agreements Act of 1979 for the first time permitted
Commerce to enter into suspension agreements, see S. Rep.
96-249, at 67–68 (1979), and provided for judicial review of
such agreements in subsection B(iv), see Pub. L. No. 96-39,
§ 1001, 93 Stat. 144, 301 (1979). Congress “narrowly cir-
cumscribed” Commerce’s “authority” to enter into suspen-
sion agreements, S. Rep. 96-249, at 71, allowing only those
agreements that were “in the public interest, [could] be ef-
fectively monitored by the United States, and me[t] specific
criteria,” id. at 68. In particular, the statute authorized
agreements that “eliminate[d] completely the injurious ef-
fect of exports to the United States of [the subject] mer-
chandise,” but only so long as Commerce could show:
(A) the suppression or undercutting of price levels
of domestic products by imports of that merchan-
dise will be prevented, and
(B) for each entry of each exporter the amount by
which the estimated foreign market value exceeds
the United States price will not exceed 15 percent
of the weighted average amount by which the esti-
mated foreign market value exceeded the United
States price for all less-than-fair-value entries of
the exporter examined during the course of the in-
vestigation.
19 U.S.C. § 1673c(c)(1)(A), (B). These provisions reflected
Congress’s desire to allow Commerce to enter into suspen-
sion agreements eliminating the injurious effects of ex-
ports—the type of agreement at issue here—only when the
agreement remedied price discrimination determined to
exist in antidumping proceedings, thus “serv[ing] the inter-
est[s] of the public and the domestic industry affected.” S.
Rep. 96-249, at 71.
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RED SUN FARMS v. US 3
To ensure such symmetry, Congress required Com-
merce to publish its affirmative preliminary dumping de-
termination together with the suspension agreement,
making issuance of a preliminary determination prerequi-
site to Commerce’s suspension decision. See
§ 1673c(f)(1)(A) (“If the administering authority deter-
mines to suspend an investigation . . . it shall . . . publish
notice of [the] suspension . . . and issue an affirmative pre-
liminary determination . . . with respect to the subject mer-
chandise, unless it has previously issued such a
determination in the same investigation.”); see also S. Rep.
No. 96-249, at 68 (“Upon accepting an agreement, [Com-
merce] would publish notice in the Federal Register of the
suspension together with notice of an affirmative prelimi-
nary determination, unless such a determination has al-
ready been made during an investigation.”).
If a suspension agreement were alleged to be incon-
sistent with any of the statutory requirements, Congress
provided interested parties two routes to challenge the
agreement—either in an administrative proceeding before
the International Trade Commission (“ITC”), see
§ 1673c(h)(1), or in the Trade Court under subsection B(iv).
Given that the statutory grounds for challenging suspen-
sion agreements were failure to remedy discrimination, it
appears likely that Congress primarily contemplated chal-
lenges to agreements by domestic producers. As originally
enacted, subsection B(iv) authorized Trade Court review of
suspension agreements by providing:
(B) Reviewable determinations
The determinations which may be contested under
subparagraph (A) are as follows:
***
A determination by the administering authority,
under section [1671c or 1673c] of this Act, to sus-
pend an antidumping duty or a countervailing duty
investigation.
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4 RED SUN FARMS v. US
93 Stat. at 301.
The statute was amended in 1984 to incorporate the
underlined language:
(B) Reviewable determinations
The determinations which may be contested under
subparagraph (A) are as follows:
***
(iv) A determination by the administering author-
ity, under section [1671c or 1673c] of this title, to
suspend an antidumping duty or a countervailing
duty investigation, including any final determina-
tion resulting from a continued investigation which
changes the size of the dumping margin or net sub-
sidy calculated, or the reasoning underlying such
calculations, at the time the suspension agreement
was concluded.
Pub. L. No. 98-573, § 623, 98 Stat. 2948, 3041 (1984) (em-
phasis added).
II
The genesis of the 1984 amendment is clear enough.
Subsection B(iv) as originally enacted did not account for
the fact that the 1979 version of § 1673c permitted sus-
pended investigations to be continued within 20 days of a
suspension agreement’s publication at the request of (1)
the foreign exporter-subjects, or (2) domestic industries
and related labor unions, trade, and business associations,
see 93 Stat. at 168; § 1673c(f)(3), (g), and that these final
determinations might affect the validity of the suspension
agreement. For example, continued investigations and
their resulting final determinations could give rise to situ-
ations in which a final determination reduced the dumping
margin so that the domestic producers’ grounds for chal-
lenging the suspension agreement were eliminated, giving
Case: 20-2230 Document: 71 Page: 18 Filed: 04/14/2022
RED SUN FARMS v. US 5
rise to a problem that could be resolved by appealing the
final determination.
Congress accordingly amended subsection B(iv) to per-
mit challenges in the same proceeding to the suspension
agreement and the final determination, incorporating the
“including” language at issue here. The connection be-
tween the final determination and the suspension agree-
ment is evident from the language of the provision itself.
The amendment did not enable the Trade Court’s review of
all final determinations—it limited review only to those fi-
nal determinations that altered the size of the dumping
margins (or reasoning) in effect at the time of the suspen-
sion agreement’s execution. It permitted parties to chal-
lenge the changes reflected in the final determination, for
example a higher or lower dumping margin that might af-
fect the validity of the suspension agreement. Since a final
determination does not go into effect until it is embodied in
an antidumping order, the only purpose of allowing a chal-
lenge to the final determination before that order issues is
because the final determination could affect the suspension
agreement. The Trade Court in Usinas reached the same
conclusion:
The focus of [subsection B(iv)] is thus on Com-
merce’s determination to suspend the investiga-
tion. Judicial review . . . is effectively limited to
those cases where it is alleged that the assump-
tions underlying the suspension determination—
i.e., Commerce’s findings in the preliminary deter-
mination—have changed so as to (arguably) render
some aspect of the suspension determination defec-
tive.
201 F. Supp. 2d at 1312.
It is difficult to think that subsection B(iv) was de-
signed to enable an importer to challenge the final dump-
ing margin so that it could decide whether to withdraw
from a suspension agreement. The legislative history
Case: 20-2230 Document: 71 Page: 19 Filed: 04/14/2022
6 RED SUN FARMS v. US
discloses no such purpose, and the entire focus of the Con-
gressional concern was with agreements that failed to suf-
ficiently remedy dumping, not with agreements that were
overly restrictive.
III
Nonetheless, the majority holds that a party with
standing to bring a subsection B(iv) action may challenge
the final determination resulting from a continued investi-
gation without first challenging the suspension agreement
itself. Maj. Op. 11. As discussed above, the language and
history of the statute contradict any such notion. While it
is true that depending on context, the term “including” may
be expansive, nothing here suggests that Congress in-
tended a reading that would allow freestanding challenges
to a final determination unrelated to the suspension agree-
ment itself. To the contrary, Congress limited the types of
challenges that can be brought to these determinations “by
‘close reference’ to the underlying suspension agreement.”
Usinas, 201 F. Supp. 2d at 430.
The majority also suggests that the statute’s use of the
word “determinations” in describing “[t]he determinations
which may be contested under subparagraph (A),” shows
that it would be “unnatural[]” to read subsection B(iv)’s in-
cluding clause as being limited to the “determination . . . to
suspend.” Maj. Op. 9. But the use of the word “determina-
tions” in the introductory language simply refers to the
multiple determinations listed in subsections B(i)–(viii), it
does not show that subsection B(iv) contains multiple inde-
pendently-challengeable determinations.
So too, nothing in § 1516a(a)(2)(A)’s timing require-
ments supports the majority’s approach. The statute re-
quires that a party seeking to challenge a suspension
agreement file a summons “[w]ithin thirty days after” pub-
lication of “notice of any determination described in [sub-
section B(iv)],” § 1516a(a)(2)(A), a provision included in the
1979 version of the statute, see 93 Stat. at 301. The
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RED SUN FARMS v. US 7
majority contends that interpreting subsection B(iv) to re-
quire a challenge to the final determination within 30 days
of the suspension agreement presents an “awkward fit” be-
cause parties seeking to challenge a final determination in
a continued investigation will not “know the results of the
continued investigation, let alone have time to evaluate it,
within 30 days of the agreement’s publication.” Maj. Op.
10, 11. But there is no awkward fit. A final determination
reached after a continued investigation necessarily post-
dates the publication of a suspension agreement. The stat-
ute’s requirement that parties file a summons “[w]ithin
thirty days after” publication of “notice of any determina-
tion described in [subsection B(iv)]” simply means that an
interested party must first challenge the agreement for
failing to satisfy the statutory requirements within 30 days
of its publication, and may later amend that complaint to
challenge the final determination. To be sure, domestic
producers or importers might like to know the outcome of
the final determination in deciding whether to challenge
the suspension agreement. But under either the majority’s
reading of the statute or my reading, it is simply too late to
challenge the suspension agreement if it has been more
than 30 days since the agreement’s publication.
For these reasons, I would refrain from holding that
the Trade Court has jurisdiction under § 1516a(a)(2)(B)(iv)
to hear Red Sun Farms’ claims and would affirm the deci-
sion of the Trade Court. 1
1 Having relied on jurisdiction under subsection
B(iv), Red Sun Farms cannot amend its complaint to allege
jurisdiction under subsection B(i) because it did not timely
comply with the NAFTA notice requirements under
§ 1516a(g)(3)(B).
Red Sun Farms v. United States
Combined Opinion