Case: 21-1292 Document: 63 Page: 1 Filed: 04/14/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JEM D INTERNATIONAL (MICHIGAN) INC. USA,
JEM D MARKETING (VIRGINIA) INC., RED SUN
FARMS HOLDINGS USA LLC, RED SUN FARMS
VIRGINIA LLC,
Plaintiffs-Appellants
v.
UNITED STATES, FLORIDA TOMATO EXCHANGE,
Defendants-Appellees
______________________
2021-1292
______________________
Appeal from the United States Court of International
Trade in No. 1:19-cv-00127-JCG, Judge Jennifer Choe-
Groves.
______________________
Decided: April 14, 2022
______________________
JAMES P. DURLING, Curtis, Mallet-Prevost, Colt &
Mosle LLP, Washington, DC, argued for plaintiffs-appel-
lants. Also represented JAMES BEATY, DANIEL L. PORTER.
Also argued by DEVIN S. SIKES, Akin Gump Strauss Hauer
& Feld LLP, Washington, DC; JEFFREY WINTON, Winton &
Chapman PLLC, Washington, DC.
Case: 21-1292 Document: 63 Page: 2 Filed: 04/14/2022
2 JEM D INTERNATIONAL (MICHIGAN) v. US
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 R. KIEPURA. Also
represented by BRIAN M. BOYNTON, JEANNE
DAVIDSON,FRANKLIN E. WHITE, JR.; EMMA T. HUNTER, Of-
fice of the Chief Counsel for Trade Enforcement & Compli-
ance, 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.
DYK, Circuit Judge.
This appeal is one of four consolidated cases 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 his-
tory of the proceedings is described in our two accompany-
ing precedential opinions in Confederacion de Asociaciónes
v. United States, No. 2020-2232, and Bioparques de Occi-
dente v. United States, No. 2020-2265.
Jem D International (Michigan) Inc. USA, Jem D Mar-
keting (Virginia) Inc., Red Sun Farms Holdings USA LLC,
and Red Sun Farms Virginia LLC (collectively, “Jem D”)
appeal a final decision of the Court of International Trade
(the “Trade Court”). Jem D is the exclusive domestic dealer
and marketer for three privately-held Mexican fresh to-
mato producer-exporters. These producer-exporters—
Naturbell SPR DE RL, San Miguel Red Sun Farms SPR
DE RL DE CV, and Agricola El Rosal DE—are members of
the Asociación Mexicana de Horticultura Protegida, A.C.,
Case: 21-1292 Document: 63 Page: 3 Filed: 04/14/2022
JEM D INTERNATIONAL (MICHIGAN) v. US 3
(“AMHPAC”), a named plaintiff in Confederacion. Jem D
resells all three producer-exporters’ tomatoes in the United
States under the name “Red Sun Farms.”
On May 7, 2019, Commerce published notice in the
Federal Register that it was withdrawing from the 2013
suspension agreement (“the 2013 agreement”). Fresh To-
matoes From Mexico, 84 Fed. Reg. at 20,858 (May 13,
2019). Jem D filed its initial complaint in the Trade Court
on July 18, 2019. On September 24, 2019, the Department
of Commerce (“Commerce”) published notice that it had en-
tered into a new suspension agreement with the parties on
September 24, 2019 (“the 2019 agreement”). Fresh Toma-
toes From Mexico, 84 Fed. Reg. at 49,989 (Sept. 24, 2019).
On December 23, 2019, Jem D filed an amended complaint
in the Trade Court that raised three claims: (1) a challenge
to Commerce’s decision to terminate the 2013 agreement
for allegedly violating 19 U.S.C. § 1673c(i)’s statutory re-
quirements; 1 (2) a challenge to Commerce’s continued in-
vestigation for using an improper preliminary
determination date; and (3) a challenge to the 2019 agree-
ment for allegedly violating § 1673c(e)’s notice and com-
ment requirements and for incorporating terms beyond
those permitted by § 1673c. 2 The government moved to
dismiss on grounds of mootness, lack of subject matter ju-
risdiction, and failure to state a claim upon which relief
could be granted. The Trade Court granted the govern-
ment’s motion and dismissed the action with prejudice on
1 This count also relied on Commerce’s regulations,
19 C.F.R. § 351.209(a), which are equivalent to the statute
itself for purposes of this claim.
2 This count also relied on Commerce’s regulations,
19 C.F.R. § 351.208, which are equivalent to the statute it-
self for purposes of this claim.
Case: 21-1292 Document: 63 Page: 4 Filed: 04/14/2022
4 JEM D INTERNATIONAL (MICHIGAN) v. US
the ground that the case was moot. Jem D appeals. We
have jurisdiction pursuant to
28 U.S.C. § 1295(a)(5).
DISCUSSION
The appellants here, as in Confederacion, challenge the
termination of the 2013 agreement. The Trade Court held
that this claim was moot. Our decision in Confederacion
resolves this claim. There, we conclude that, while we have
jurisdiction over the claim and the claim is not moot, it was
properly dismissed for failure to state a claim. Accordingly,
we affirm the Trade Court’s decision with respect to this
claim.
Jem D also challenges the continuation of the anti-
dumping proceeding by Commerce. As we hold in Confed-
eracion, the Trade Court has no jurisdiction over such an
interim challenge except as part of a challenge to a final
determination. 3 See 33 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 8361 (2d ed. 2021)
(“[J]udicial review is available only for ‘final’ agency ac-
tions.”); see also Automated Merch. Sys., Inc. v. Lee,
782
F.3d 1376, 1380–81 (Fed. Cir. 2015) (holding agency deci-
sion to initiate or continue proceedings cannot be reviewed
until there is a final agency determination); Gov’t of Peo-
ple’s Republic of China v. United States,
483 F. Supp. 2d
1274, 1281 (Ct. Int’l Trade 2007) (holding appellants could
challenge Commerce’s decision to initiate an investigation
after publication of the final determination). Here, Jem D’s
amended complaint raised no challenge to the final anti-
dumping determination. Accordingly, the Trade Court
3 Congress contemplated that decisions such as “a
preliminary affirmative antidumping . . . determination or
a decision to exclude a particular exporter from an anti-
dumping investigation,” would be reviewable “only in con-
nection with the review of the final determination.” H.R.
Rep. No. 96-1235, at 48 (1980).
Case: 21-1292 Document: 63 Page: 5 Filed: 04/14/2022
JEM D INTERNATIONAL (MICHIGAN) v. US 5
lacked jurisdiction over this claim, and we affirm the Trade
Court’s dismissal.
Finally, Jem D challenges the 2019 agreement. Unlike
the appellants in Confederacion, appellants here do not
raise a duress claim, but instead contend that the 2019
agreement is invalid because it violates statutory require-
ments. Jem D argues that in negotiating the 2019 agree-
ment, Commerce failed to comply with § 1673c(e)’s notice
and comment requirements. It also claims that the agree-
ment impermissibly incorporated terms “unrelated to
price,” which according to Jem D, are not permitted by
§ 1673c. 4 J.A. 70.
But as the government points out, a summons for such
a challenge must be filed “[w]ithin thirty days after[] the
date of publication in the Federal Register of” notice of the
suspension agreement, and a complaint must be filed
“within thirty days thereafter.” 19 U.S.C. § 1516a(a)(2)(A).
The amended complaint here was not timely filed—the gov-
ernment published notice of the 2019 agreement on Sep-
tember 24, 2019, and Jem D did not file its amended
complaint until December 23, 2019.
The amended complaint cannot overcome this time-bar
through relation back to the original, July 18, 2019, com-
plaint because at that time, the Trade Court lacked juris-
diction over Jem D’s challenge to the suspension
agreement negotiations. See 6A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 1496
(3d ed. 2021) (explaining there is no relation back for
amended complaint when district court lacks subject mat-
ter jurisdiction over claim in original pleading (citing Reyn-
olds v. United States,
748 F.2d 291, 293 (5th Cir. 1984))).
4 This claim was added in Jem D’s amended com-
plaint.
Case: 21-1292 Document: 63 Page: 6 Filed: 04/14/2022
6 JEM D INTERNATIONAL (MICHIGAN) v. US
A claim challenging the negotiations for failing to comply
with notice and comment requirements is an interim chal-
lenge that could be brought only as part of a challenge to
the September 24, 2019, final agreement. Accordingly, the
Trade Court lacked jurisdiction over this claim, and we af-
firm its dismissal.
AFFIRMED
COSTS
No costs.