Case: 20-2265 Document: 76 Page: 1 Filed: 04/14/2022
United States Court of Appeals
for the Federal Circuit
______________________
BIOPARQUES DE OCCIDENTE, S.A. DE C.V.,
AGRICOLA LA PRIMAVERA, S.A. DE C.V.,
KALIROY FRESH LLC,
Plaintiffs-Appellants
v.
UNITED STATES, FLORIDA TOMATO EXCHANGE,
Defendants-Appellees
______________________
2020-2265, 2020-2266, 2020-2267
______________________
Appeals from the United States Court of International
Trade in Nos. 1:19-cv-00204-JCG, 1:19-cv-00210-JCG,
1:20-cv-00035-JCG, Judge Jennifer Choe-Groves.
______________________
Decided: April 14, 2022
______________________
JEFFREY M. WINTON, Winton & Chapman PLLC, Wash-
ington, DC, argued for plaintiffs-appellants. Also repre-
sented by MICHAEL JOHN CHAPMAN, JOOYOUN JEONG, VI
MAI. Also argued by JAMES P. DURLING, Curtis, Mallet-
Prevost, Colt & Mosle LLP, Washington, DC; DEVIN S.
SIKES, Akin Gump Strauss Hauer & Feld LLP, Washing-
ton, DC.
DOUGLAS GLENN EDELSCHICK, Commercial Litigation
Branch, Civil Division, United States Department of
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2 BIOPARQUES DE OCCIDENTE v. US
Justice, Washington, DC, argued for defendant-appellee
United States. Also argued by ROBERT R. KIEPURA. Also
represented by BRIAN M. BOYNTON, PATRICIA M.
MCCARTHY, 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 The Florida To-
mato Exchange. Also represented by JAMES R. CANNON,
JR., ULRIKA K. SWANSON, JONATHAN M. ZIELINSKI.
______________________
Before DYK, PROST, and TARANTO, Circuit Judges.
TARANTO, Circuit Judge.
In 1996, the U.S. Department of Commerce initiated
an investigation into whether fresh tomatoes from Mexico
were being sold in the United States at less than fair value.
After the International Trade Commission (ITC) made a
preliminary determination of injury to a domestic industry
from the sale of such tomatoes, Commerce made a prelimi-
nary determination that the tomatoes were being, or were
likely to be, sold in the U.S. at less than fair value. On the
day Commerce issued its preliminary dumping determina-
tion, exporters accounting for substantially all exports of
fresh tomatoes from Mexico (“the Mexican parties”) signed
an agreement with Commerce to suspend the investiga-
tion. Pursuant to that 1996 Agreement, and 2002, 2008,
and 2013 successor agreements, the signatories were re-
quired, among other things, to sell their products in the
U.S. at minimum “reference” prices.
In the spring of 2019, Commerce withdrew from the
2013 Agreement, as authorized by its terms, and resumed
the investigation. But the parties soon executed a new
agreement (the 2019 Agreement), which suspended the
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BIOPARQUES DE OCCIDENTE v. US 3
investigation, set higher minimum reference prices, re-
quired (generally speaking) that the dumping margin of
each signatory’s individual entries not exceed 15% of the
dumping margin of its entries examined during the inves-
tigation, and provided for compliance reviews based on reg-
ular submissions of information from the Mexican parties.
Shortly after the execution of the 2019 Agreement, how-
ever, domestic tomato producers asked Commerce to con-
tinue the investigation, which it did, as required by statute
upon receipt of such requests. Commerce then reached a
final determination that fresh tomatoes from Mexico were
being, or were likely to be, sold in the U.S. at less than fair
value, and it calculated estimated dumping margins, and
the ITC made a final determination of material injury to a
domestic industry. An antidumping duty order based on
the final determination has not issued, however, because
the 2019 Agreement remains in effect.
The present appeals arise from three complaints filed
in the U.S. Court of International Trade (Trade Court or
USCIT) challenging Commerce’s termination of the 2013
Agreement, continuation of the investigation, and final de-
termination. Each of the three complaints was filed jointly
by the firms we will call “Bioparques” collectively—Bi-
oparques de Occidente, S.A. de C.V. and Agricola La Pri-
mavera, S.A. de C.V., which are Mexican exporters of fresh
tomatoes and signatories to the 2019 Agreement, and
Kaliroy Fresh LLC, which is a U.S. importer of fresh toma-
toes from Mexico. Each complaint asserted a different stat-
utory basis of jurisdiction. The Trade Court dismissed all
claims under USCIT Rule 12(b)(1) for want of the case or
controversy required by Article III of the Constitution. It
held that (a) Bioparques’s claims regarding the termina-
tion of the 2013 Agreement became moot upon the execu-
tion of the 2019 Agreement and (b) Bioparques’s claims
regarding the final determination in the continued investi-
gation were not ripe because Bioparques suffered no con-
crete injury until an antidumping duty order based on that
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4 BIOPARQUES DE OCCIDENTE v. US
determination issued, which had not occurred and could
not occur while the 2019 Agreement was in force. Bi-
oparques de Occidente, S.A. de C.V. v. United States,
470 F.
Supp. 3d 1366 (Ct. Int’l Trade 2020). Bioparques appeals.
We hold as follows. As to Bioparques’s challenge to the
termination of the 2013 Agreement, we rely on the opinion
we issue today in Confederacion de Asociaciones Agricolas
del Estado de Sinaloa, A.C. v. United States, No. 2020-2232
to conclude that Bioparques has stated no plausible chal-
lenge to that termination, so this challenge must be dis-
missed under USCIT Rule 12(b)(6). As to Bioparques’s
challenges to Commerce’s final determination in the con-
tinued investigation (both the results and the process), we
draw two conclusions. First, we conclude that this chal-
lenge presents a case or controversy that is justiciable un-
der Article III of the U.S. Constitution. Second, we
conclude that the Tariff Act of 1930 provides jurisdiction
for the Trade Court to review the final determination at
issue here even before an antidumping duty order has been
published. We remand to the Trade Court to address the
merits of Bioparques’s claims regarding the final determi-
nation.
I
A
The Tariff Act of 1930 allows Commerce to initiate an
investigation to determine whether imported merchandise
is being sold in the U.S. at less than fair value (dumped).
Tariff Act of 1930, Pub. L. No. 71-361,
46 Stat. 590 (codified
as amended in scattered sections of 19 U.S.C.). After Com-
merce initiates an investigation into some defined class of
imported goods, the ITC is to determine whether there is a
“reasonable indication” that a U.S. industry is materially
injured or threatened with material injury, or the estab-
lishment of an industry in the U.S. is materially retarded,
due to non-negligible amounts of the imports. 19 U.S.C.
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BIOPARQUES DE OCCIDENTE v. US 5
§ 1673b(a)(1). 1 If the ITC’s determination is affirmative,
Commerce is to make a preliminary determination of
whether there is a “reasonable basis to believe or suspect”
that the subject merchandise is been sold, or is likely to be
sold, at less than fair value. § 1673b(b)(1)(A). If Com-
merce’s preliminary determination is also affirmative,
Commerce then is to calculate the estimated weighted av-
erage dumping margins, i.e., the amount by which the nor-
mal value (roughly, home-country value) of the
merchandise exceeds the export price (roughly, U.S. price),
and it orders the posting of a cash deposit or bond for each
entry based on those margins, as well as the suspension of
liquidation (the final computation of duties) of entries sub-
ject to the determination. § 1673b(d)(1), (2).
Ordinarily, Commerce then continues the investigation
and, within 75 days of the preliminary determination,
makes a final determination of whether the merchandise is
being, or is likely to be, sold in the U.S. at less than fair
value. § 1673d(a)(1). If it finds such sales, it calculates es-
timated weighted average dumping margins for each ex-
porter individually investigated and an estimated all-
others rate for those not individually investigated.
§ 1673d(c)(1)(B). The ITC then makes its final injury de-
termination. § 1673d(b)(1). If both determinations are af-
firmative, Commerce issues an antidumping duty order
that directs customs officers to assess an antidumping duty
equal to the margins calculated in the final determination.
§ 1673d(c)(2); § 1673e(a).
These appeals concern a congressionally authorized de-
parture from that ordinary course of proceedings. If Com-
merce determines that “extraordinary circumstances” are
present, it may suspend an investigation upon the
1 Hereafter we generally (though not always) cite
sections of Title 19 without including “19 U.S.C.” Other
statutory citations include the U.S. Code title number.
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6 BIOPARQUES DE OCCIDENTE v. US
execution of a suspension agreement, pursuant to
§ 1673c(c), with “substantially all” exporters of the subject
merchandise (defined as not less than 85% of exporters by
value or volume, see § 1673c(c)(1);
19 C.F.R. § 351.208(c)).
The agreement must eliminate the injurious effects of the
sales at issue and ensure that the amount by which the
normal value of the merchandise exceeds the export price
does not exceed 15% of the dumping margin of the less-
than-fair-value entries examined during the investigation.
§ 1673c(c)(1)(B). Once the agreement is executed, Com-
merce releases the cash deposits or bonds and terminates
the suspension of liquidation. § 1673c(f). Within 20 days
of the publication of a suspension agreement, however, if
continuation of the investigation is requested either by “an
exporter or exporters accounting for a significant propor-
tion of exports to the United States of the subject merchan-
dise” or by another designated “interested party”
(specifically, any of various domestic-industry entities),
Commerce “shall continue the investigation” and proceed
toward a final determination. § 1673c(g). 2 But even if the
final determination in the continued investigation is
2 Besides the specified exporters, the statute author-
izes “an interested party described in subparagraph (C),
(D), (E), (F), or (G) of [§ 1677(9)] which is a party to the in-
vestigation” to request continuation. § 1673c(g)(2). The
first four referred-to provisions address “domestic like
product” entities—manufacturers, producers, and whole-
salers of a domestic like product, unions or similar worker
groups, and certain associations such as trade associations.
§ 1677(9)(C), (D), (E), (F). The fifth provision refers to a
coalition or trade association of processors (with or without
producers or growers) of “a processed agricultural product”
when an investigation involves a (domestic) industry en-
gaged in producing such a product. § 1677(9)(G); see
§ 1677(9)(4)(A), (E). We hereafter refer to the five groups
as “domestic-industry entities” for simplicity.
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BIOPARQUES DE OCCIDENTE v. US 7
affirmative, Commerce may not issue an antidumping duty
order as long as the suspension agreement remains in force
and continues to meet statutory requirements.
§ 1673c(f)(3)(B).
B
Commerce initiated an investigation in April 1996 to
determine whether fresh tomatoes from Mexico were being
sold in the U.S. at less than fair value. Initiation of Anti-
dumping Duty Investigation: Fresh Tomatoes from Mexico,
61 Fed. Reg. 18,377 (Apr. 25, 1996). After the ITC made a
preliminary determination of injury to a U.S. industry in
May 1996, Commerce issued a preliminary determination
finding a reasonable basis to believe that imported toma-
toes from Mexico were being sold, or were likely to be sold,
in the U.S. at less than fair value. Notice of Preliminary
Determination of Sales at Less Than Fair Value and Post-
ponement of Final Determination: Fresh Tomatoes From
Mexico,
61 Fed. Reg. 56,608 (Nov. 1, 1996) (Preliminary De-
termination). Pursuant to § 1673b(d)(1)(A), Commerce cal-
culated an “estimated weighted average dumping margin”
for each exporter that was individually investigated and an
“estimated all-others rate.” Because the three plaintiffs be-
fore us here were not individually investigated, they were
subject to the all-others rate.
On the same day, Commerce announced that it had
signed a suspension agreement (the 1996 Agreement) pur-
suant to § 1673c(c) with exporters accounting for substan-
tially all exports of fresh tomatoes from Mexico.
Suspension of Antidumping Investigation: Fresh Tomatoes
From Mexico,
61 Fed. Reg. 56,618 (Nov. 1, 1996). One sig-
natory to the agreement was Asociación Mexicana de Hor-
ticultura Protegida, A.C. (AMHPAC), of which, it is
undisputed before us, Bioparques de Occidente and Agric-
ola la Primavera are members. The 1996 Agreement sus-
pended the anti-dumping investigation, authorized the
release of the cash deposits or bonds and the termination
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8 BIOPARQUES DE OCCIDENTE v. US
of suspension of liquidation, and required that exporters
sell their tomatoes in the U.S. at or above specified refer-
ence prices. Id. at 56,618–19. The reference prices were
calculated as the average of the lowest average monthly
prices in the U.S. market in 1992–1994. Id. at 56,620–21
(Appendix A).
In May 2002, a significant percentage of Mexican sig-
natories provided notice of their withdrawal from the
agreement, and as a result the Agreement no longer cov-
ered substantially all imports of fresh tomatoes from Mex-
ico. Commerce terminated the Agreement pursuant to
§ 1673c(i)(1), announced its intention to suspend liquida-
tion and to require deposits under § 1673b(d)(1)(B) based
on the 1996 preliminary-determination rates, and resumed
the investigation. But in December 2002, another suspen-
sion agreement was reached. Suspension of Antidumping
Investigation: Fresh Tomatoes From Mexico,
67 Fed. Reg.
77,044 (Dec. 16, 2002). The sequence repeated itself in
2008 and 2013, leading to the 2008 and 2013 Agreements.
On February 6, 2019, Commerce notified the Mexican
signatories of its intent to withdraw from the 2013 Agree-
ment. On May 7, 2019, Commerce withdrew from the 2013
Agreement, resumed the antidumping investigation, or-
dered a suspension of liquidation, and required cash depos-
its based on the 1996 preliminary-determination rates. In
resuming the 20-year-old investigation, Commerce se-
lected as mandatory respondents a new group of Mexican
exporters, including Bioparques de Occidente. Fresh To-
matoes From Mexico: Suspension of Antidumping Investi-
gation,
84 Fed. Reg. 49,987, 49,988 (Sept. 24, 2019).
When Commerce withdrew from the 2013 Agreement,
several associations of individual Mexican fresh tomato
growers (including AMHPAC) sued in the Trade Court and
asked for a preliminary injunction against the withdrawal
and investigation resumption. In June 2019, the Trade
Court denied the request for insufficient showings of
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BIOPARQUES DE OCCIDENTE v. US 9
irreparable harm and likely success on the merits. Confed-
eracion de Asociaciones Agricolas del Estado de Sinaloa,
A.C. v. United States,
389 F. Supp. 3d 1386 (Ct. Int’l Trade
2019) (CAADES). In July 2019, we then denied mandamus
relief from the Trade Court’s denial. In re Confederacion
de Asociaciones Agricolas del Estado de Sinaloa, et al., 781
F. App’x 982 (Fed. Cir. 2019). We agreed that success on
the merits was unlikely, noting that Commerce was per-
mitted to withdraw under the termination clause of the
2013 Agreement. Id. at 987.
On September 19, 2019, Commerce announced that the
parties had signed a new suspension agreement (the 2019
Agreement). Fresh Tomatoes from Mexico: Suspension of
Antidumping Duty Investigation, 84 Fed. Reg. at 49,987–
89. The 2019 Agreement set higher reference prices, while
retaining each signatory’s obligation not to exceed its
dumping margin examined during the investigation by
15%, and imposed monitoring and inspection to assess com-
pliance with the Agreement’s requirements. Id. at 49,990–
94. The Agreement also allowed either Commerce or the
Mexican signatories to withdraw without penalty. Id. at
49,994. After the 2019 Agreement was signed, the plain-
tiffs in CAADES stipulated to dismissal.
Commerce then received timely requests to continue
the investigation under § 1673c(g) from domestic tomato
growers Florida Tomato Exchange and Red Sun Farms.
Commerce therefore continued the investigation. On Octo-
ber 25, 2019, it published its final determination that to-
matoes from Mexico were being, or were likely to be, sold
in the U.S. at less than fair value. Fresh Tomatoes from
Mexico: Final Determination of Sales at Less than Fair
Value,
84 Fed. Reg. 57,401 (Oct. 25, 2019) (Final Determi-
nation). Commerce calculated a dumping margin of
30.48% for Bioparques de Occidente and Agricola La Pri-
mavera and a 20.91% all-others rate. Id. at 57,402. The
ITC published its determination of material injury to a
U.S. industry on December 12, 2019. Fresh Tomatoes from
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10 BIOPARQUES DE OCCIDENTE v. US
Mexico,
84 Fed. Reg. 67,958 (Dec. 12, 2019). But no anti-
dumping order issued because the 2019 Agreement re-
mained in force and valid. See Final Determination, 84
Fed. Reg. at 57,403 (“Commerce will not issue an anti-
dumping duty order so long as . . . [t]he 2019 Agreement
remains in force . . . .”).
Between November 2019 and February 2020, Bi-
oparques filed three very similar complaints challenging
Commerce’s withdrawal from the 2013 Agreement and its
Final Determination: USCIT Nos. 19-00204, 19-00210, and
20-00035. Bioparques alleged that Commerce lacked au-
thority to withdraw from the 2013 Agreement and continue
the investigation, that Commerce’s examination of Bi-
oparques as a new respondent in an allegedly compressed
investigation violated Bioparques’s due process rights, that
Commerce committed timing and procedural errors in
reaching its final determination, and that Commerce used
incorrect methodologies to calculate the rates in its final
determination. Bioparques requested that the Trade Court
declare the 2019 Final Determination invalid and vacate
Commerce’s withdrawal from the 2013 Agreement.
The complaints asserted different bases for jurisdic-
tion. In No. 19-00210, Bioparques invoked
§ 1516a(g)(3)(A)(i), addressing final determinations involv-
ing free trade area countries, which, if applicable, would
support Trade Court jurisdiction under
28 U.S.C. § 1581(c).
J.A. 60–68. In No. 19-00204, Bioparques invoked
§ 1516a(a)(2)(A) and § 1516a(a)(2)(B)(iv), which, if applica-
ble, also would support Trade Court jurisdiction under
28
U.S.C. § 1581(c). J.A. 51–59. Finally, in No. 20-00035, Bi-
oparques asserted jurisdiction under
28 U.S.C. § 1581(i)(4)
(now
28 U.S.C. § 1581(i)(1)(D)), the residual clause cover-
ing actions arising out of laws “providing for . . . admin-
istration and enforcement” of tariffs and duties. J.A. 69–
76.
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BIOPARQUES DE OCCIDENTE v. US 11
The government moved to dismiss under USCIT Rule
12(b)(1) for lack of subject matter jurisdiction and USCIT
Rule 12(b)(6) for failure to state a claim upon which relief
could be granted. S.Appx. 113–15. On September 11, 2020,
the Trade Court issued identical decisions in all three
cases, dismissing the complaints under Rule 12(b)(1). Bi-
oparques de Occidente, S.A. de C.V. v. United States,
470 F.
Supp. 3d 1366 (Ct. Int’l Trade 2020). The court held that
Bioparques’s claims regarding the Final Determination did
not “present an actual case or controversy” because Bi-
oparques (as a member of AMHPAC) was a signatory to the
still-in-force 2019 Agreement, which prevented an anti-
dumping duty order from being issued, meaning that Bi-
oparques was suffering “no concrete or particularized
injury” from the Final Determination.
Id. at 1372. For that
reason alone, and not for want of fitness of the issues for
adjudication, the court held this challenge “unripe.”
Id.
The court then held that the challenges to Commerce’s ter-
mination of the 2013 Agreement became moot when Bi-
oparques (via its representatives) signed the superseding
2019 Agreement.
Id. at 1373. Addressing both challenges,
the court added that it could not “condone Bioparques’ liti-
gation strategy in reaping the benefits of the 2019 Suspen-
sion Agreement while bringing an after-the-fact challenge
to the final determination that currently has no impact and
demanding that the court resurrect the 2013 Suspension
Agreement when the claims here are not yet (and may
never be) ripe.”
Id. Having held that the claims were, re-
spectively, unripe and moot, the court did not reach other
issues, such as whether the claims regarding the Final De-
termination were timely filed.
Id.
Bioparques timely appealed. We have jurisdiction un-
der
28 U.S.C. § 1295(a)(5).
II
We need not separately analyze Bioparques’s chal-
lenges to the termination of the 2013 Agreement and
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12 BIOPARQUES DE OCCIDENTE v. US
negotiation of the 2019 Agreement. In Confederacion de
Asociaciones Agricolas del Estado de Sinaloa, A.C. v.
United States, No. 2020-2232, we today conclude that ma-
terially identical challenges, though not moot in a jurisdic-
tional sense, state no plausible claim on which relief can be
granted and must therefore be dismissed under Rule
12(b)(6). That holding controls our disposition of the same
issue in this case. This aspect of Bioparques’s complaint
must be dismissed, leaving Bioparques’s challenges to the
Final Determination for separate consideration.
III
A
The Trade Court granted the Rule 12(b)(1) motion to
dismiss on the ground that Bioparques’s challenges to the
Final Determination do not currently present a justiciable
case or controversy, as required by Article III for subject
matter jurisdiction. We review such a dismissal de novo.
See, e.g., Hutchinson Quality Furniture, Inc. v. United
States,
827 F.3d 1355, 1359 (Fed. Cir. 2016) (Trade Court’s
jurisdictional dismissal reviewed de novo); Shinnecock In-
dian Nation v. United States,
782 F.3d 1345, 1348 (Fed.
Cir. 2015) (ripeness dismissal reviewed de novo); Ford Mo-
tor Co. v. United States,
688 F.3d 1319, 1323 (Fed. Cir.
2012) (non-justiciability dismissal reviewed de novo);
Totes-Isotoner Corp. v. United States,
594 F.3d 1346, 1350
(Fed. Cir. 2010) (lack of jurisdiction, lack of standing, and
non-justiciability present legal questions decided de novo).
At the motion to dismiss stage, we “must accept well-
pleaded factual allegations as true and must draw all rea-
sonable inferences in favor of the claimant.” Hutchinson,
827 F.3d at 1359 (citation omitted).
The Trade Court relied solely on its determination of
no justiciable case or controversy in deeming Bioparques’s
challenge to the Final Determination to be not jurisdiction-
ally ripe, correctly not finding any lack of fitness of the is-
sues for judicial review. Bioparques 470 F. Supp. 3d at
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BIOPARQUES DE OCCIDENTE v. US 13
1372–73. We therefore limit our discussion to the determi-
nation that Bioparques lacks a present, concrete interest
required for justiciability. We reverse that determination,
concluding that Bioparques’s interest is adequate under
Supreme Court authority—in particular, MedImmune, Inc.
v. Genentech, Inc.,
549 U.S. 118 (2007). Although there
might be additional bases for deeming Bioparques’s inter-
est constitutionally adequate, we need not so decide. Our
conclusion applying MedImmune to the present circum-
stances suffices to hold that the challenge to the Final De-
termination here is justiciable and, accordingly, ripe for
adjudication. 3
For a dispute to present a justiciable case or contro-
versy, it must be “‘definite and concrete, touching the legal
relations of parties having adverse legal interests’; and . . .
‘real and substantial’ and ‘admi[t] of specific relief through
a decree of a conclusive character, as distinguished from an
opinion advising what the law would be upon a hypothet-
ical state of facts.’” MedImmune,
549 U.S. at 127 (quoting
Aetna Life Ins. Co. v. Haworth,
300 U.S. 227, 240–41
(1937)). In MedImmune, the plaintiff was paying ongoing
royalties for a license to a patent and sought a declaratory
judgment that the patent was invalid or not infringed.
Id.
at 121–22. The Court recognized that there was
3 The close relationship among the Article III case-
or-controversy doctrines, such as ripeness and justiciabil-
ity, is well recognized. See, e.g., MedImmune,
549 U.S. at
128 n.8; Fisher v. United States,
402 F.3d 1167, 1176 (Fed.
Cir. 2005); 13 C. Wright, A. Miller, & E. Cooper, Federal
Practice & Procedure § 3529 & n.6 (3d ed. 2021). Here, the
government identifies the controlling issue when it argues:
“[W]hether the issue is one of standing or one of ripeness,
Bioparques’s claims are non-justiciable because appellants
suffer no real or present or concrete injury.” Gov’t Br. at
40.
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14 BIOPARQUES DE OCCIDENTE v. US
undisputedly a justiciable concrete controversy between
the parties—legal liability for patent infringement would
continue or end, depending on the outcome—subject only
to one possible objection raised by the patent holder. Id. at
128. The objection was that the plaintiff, by agreeing to
the terms of the license, had purchased an “insurance pol-
icy, immunizing it from suits for infringement,” and that it
should not be able to “enjoy[] its immunity while bringing
a suit” to challenge the patent. Id. at 134–35.
The Supreme Court rejected that objection. It held
that, to establish a justiciable case or controversy under
Article III, a patent licensee is not required to terminate
the license before seeking a declaratory judgment that the
licensed patents are invalid or not infringed. Id. at 137.
The Court also rejected a requirement that, for justiciabil-
ity of a declaratory-judgment challenge, the plaintiff must
have a “reasonable apprehension of imminent suit.” Id. at
132 n.11. The Court determined that there was a justicia-
ble case or controversy even though the plaintiff’s own acts
(i.e., remaining in the agreement and paying royalties)
“eliminate[d] the imminent threat of harm.” Id. at 128. In
other words, as this court has subsequently explained, a
licensee is “not required to cease its contract payments,”
thereby opening itself to greater liability, “in order to re-
solve its disputed contract rights.” Apple Inc. v. Qualcomm
Inc.,
992 F.3d 1378, 1383 (Fed. Cir. 2021) (finding MedIm-
mune inapplicable where “the validity of the challenged pa-
tents” would not affect the plaintiff’s “ongoing royalty
obligations”); Apple Inc. v. Qualcomm Inc.,
17 F.4th 1131,
1134 (Fed. Cir. 2021) (similar); see MedImmune,
549 U.S.
at 130–32 (discussing Altvater v. Freeman,
319 U.S. 359
(1943)).
The Court in MedImmune also considered and rejected
the patent owner’s invocation of the common-law rule that
“a party to a contract cannot at one and the same time chal-
lenge its validity and continue to reap its benefits.”
549
U.S. at 135. The Court explained that the plaintiff was not
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BIOPARQUES DE OCCIDENTE v. US 15
repudiating the contract, but instead was “asserting that
the contract, properly interpreted, d[id] not prevent it from
challenging the patents, and d[id] not require the payment
of royalties” because if either the patent was invalid or
there was no infringement, the licensee need not pay roy-
alties at all. Id.; see also
id. at 123–24. The Court applied
to the dispute between private parties before it the princi-
ple recognized in government-private disputes: “where
threatened action by government is concerned,” a plaintiff
is not required to “expose himself to liability before bring-
ing suit to challenge the basis for the threat.”
Id. at 128–
29; see also Nat’l Org. of Veterans’ Advocates, Inc. v. Sec’y
of Veterans Affairs,
981 F.3d 1360, 1371 (Fed. Cir. 2020).
In this case, we conclude, the 2019 Agreement is no
more a bar to justiciability than was the patent license in
MedImmune. The Trade Court deemed the dispute over
the Final Determination non-justiciable because, as long as
the 2019 Agreement is in force and governs Bioparques, no
antidumping duty order based on the Final Determination
may issue; and the court said that it could not condone Bi-
oparques’s “litigation strategy” of “reaping the benefits of
the 2019 Suspension Agreement” while at the same time
bringing a challenge to the Final Determination. Bi-
oparques, 470 F. Supp. 3d at 1372–73. But the Supreme
Court rejected a materially analogous objection to justicia-
bility in MedImmune—where the plaintiff was complying
with the patent license, thereby forestalling an assertion of
liability that would (non-speculatively) occur if the plaintiff
stopped paying royalties. Under MedImmune, which al-
lowed the plaintiff to challenge the basis for patent liability
without withdrawing from the license agreement, Bi-
oparques need not withdraw from the 2019 Agreement, ex-
posing itself to greater liability (through the issuance of an
antidumping order), in order to challenge the basis for an-
tidumping liability under Commerce’s Final Determina-
tion.
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16 BIOPARQUES DE OCCIDENTE v. US
The particularized, concrete interest Bioparques has in
challenging the Final Determination is far from specula-
tive. In particular, Bioparques alleges errors by Commerce
that, if proved, could result in a negative determination on
dumping and consequent automatic termination of the
2019 Agreement. See § 1673c(f)(3)(A) (explaining that, if
the final determination by either Commerce or the ITC is
negative, “the agreement shall have no force or effect and
the investigation shall be terminated”). The agreement
would similarly be terminated if the revised antidumping
margins were found to be de minimis, see § 1673d(a)(4), de-
fined as less than 2 percent ad valorem, § 1673b(b)(3).
Thus, like the licensee in MedImmune, who was paying
royalties to practice the patent but could have stopped
without liability upon a favorable adjudication of invalidity
or non-infringement, see
549 U.S. at 135, Bioparques could
avoid the burdens of both the 2019 Agreement (with its
minimum reference prices and other obligations) and anti-
dumping duties upon a favorable adjudication of the chal-
lenges to the Final Determination.
Even if Bioparques’s challenges to the Final Determi-
nation were to succeed only in reducing, but not eliminat-
ing, antidumping duties, Bioparques still would have a
plausible, particularized interest in its challenge. Partial
success in litigation would alter the level of duties that is
the crucial comparator in Bioparques’s decision whether to
remain in the 2019 Agreement—a decision that the Trade
Court and the government recognize Bioparques is free to
make “for any reason, or for no reason at all.” Bioparques,
470 F. Supp. 3d at 1373; Gov’t Br. at 16 (explaining that
Bioparques may “withdraw from the agreement with no
change to the signatory status” of other AMHPAC mem-
bers). Neither the Trade Court nor the government in this
case cites authority establishing that, or providing a per-
suasive reason why, the interest in altering the legal land-
scape in this way is insufficient for a justiciable
controversy. The Trade Court and the government (and
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BIOPARQUES DE OCCIDENTE v. US 17
the Florida Tomato Exchange) assert that Bioparques
must give up the current protection of the 2019 Agreement
in order to challenge the Final Determination, but that as-
sertion is counter to MedImmune, as we have explained.
Congress itself recognized that exporters, necessarily
including signatories, have an interest in a final determi-
nation in a continued investigation after execution of a sus-
pension agreement. The Tariff Act provides that, after
publication of a suspension agreement, not only specified
domestic-industry entities but also “an exporter or export-
ers accounting for a significant proportion of exports . . . of
the subject merchandise” may request that the investiga-
tion be continued and that, upon receipt of such a request,
Commerce must in fact continue the investigation—the ob-
ject of which is to reach a final determination. § 1673c(g).
This provision rests on the evident premise that signato-
ries to a suspension agreement—who must, for the agree-
ment to be proper under § 1673c(c), account for
“substantially all” exports—are among those who have a
concrete interest in securing a correct final determination
even if the suspension agreement is still in force.
We hold, therefore, that Bioparques has presented a
justiciable case or controversy under Article III in its chal-
lenge to the Final Determination. We reverse the Trade
Court’s determination that the challenge is not ripe.
B
We next consider whether statutory jurisdiction exists
over Bioparques’s challenge to Commerce’s Final Determi-
nation—specifically, whether the Tariff Act of 1930 pro-
vides such jurisdiction where no antidumping duty order
has issued. The question was presented to the Trade
Court, but that court did not reach it, instead dismissing
for lack of jurisdiction on constitutional grounds. Because
we reverse the Trade Court’s constitutional conclusion, we
reach the issue of statutory jurisdiction.
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18 BIOPARQUES DE OCCIDENTE v. US
Bioparques asserted alternative statutory bases for the
Trade Court’s jurisdiction over the challenge to Com-
merce’s Final Determination before the entry of an anti-
dumping duty order. It asserted jurisdiction based on
§§ 1516a(g)(3)(A)(i) and 1516a(a)(2)(B)(i); and it also as-
serted jurisdiction based on §§ 1516a(a)(2)(A)(i)
and 1516a(a)(2)(B)(iv), as well as on
28 U.S.C. § 1581(i)(4)
(now
28 U.S.C. § 1581(i)(1)(D)). We reach only the first
ground here. It has not been disputed that this jurisdic-
tional basis, if present, suffices for Bioparques to obtain the
relief it seeks if it proves its case.
Under
28 U.S.C. § 1581(c), the Trade Court has “exclu-
sive jurisdiction of any civil action commenced under sec-
tion 516A or 517 of the Tariff Act of 1930.” Section 516A,
codified as 19 U.S.C. § 1516a, provides for judicial review
of some determinations in antidumping duty proceedings
(and countervailing duty proceedings, not at issue here).
And it sets timing rules—which are generally jurisdiction-
limiting—governing when challenges may be brought. See
28 U.S.C. § 2636(c) (barring a challenge to a reviewable de-
termination in 19 U.S.C. § 1516a unless it is commenced
within the time specified in that section); Georgetown Steel
Corp. v. United States,
801 F.2d 1308, 1312 (Fed. Cir. 1986)
(determining that the Trade Court lacked jurisdiction
where the complaint was not timely filed under 19 U.S.C.
§ 1516a).
One of the “[r]eviewable determinations” discussed in
§ 1516a is a “[f]inal affirmative determination[] by the ad-
ministering authority and by the Commission under sec-
tion . . . 1673d of this title, including any negative part of
such a determination.” § 1516a(a)(2)(B)(i) (ellipsis where
§ 1671d, concerning countervailing duties, appears) [here-
after “B(i)”]. The referred-to § 1673d addresses affirmative
final determinations in antidumping duty investigations,
i.e., final determinations that the subject merchandise is
being, or is likely to be, sold in the U.S. at less than fair
value, § 1673d(a)(1), like the Final Determination
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BIOPARQUES DE OCCIDENTE v. US 19
published here. But it is not disputed before us that, in
most antidumping proceedings, such an affirmative final
determination under B(i) may be challenged only during a
defined period—starting on the date of publication of an
antidumping duty “order based upon” that affirmative final
determination and ending 30 days later. See
§ 1516a(a)(2)(A)(i)(II) (emphasis added). And no such or-
der has been issued based on the Final Determination here
because of the 2019 Agreement, a fact that would block re-
view here if that prerequisite applied.
But special rules are available for review of antidump-
ing duty determinations involving free trade area (FTA)
countries, of which Mexico is one. 4 “Determination” under
the FTA rules is defined to include, among others, a B(i)
determination. § 1516a(g)(1)(B). Further, a B(i) determi-
nation is reviewable under § 1516a(a) if “neither the
United States nor the relevant FTA country requested re-
view by a binational panel pursuant to article 1904 of the
[United States-Canada Free-Trade Agreement] or article
10.12 of the [United States-Mexico-Canada Agreement].”
§ 1516a(g)(3)(A)(i). And, of particular importance here,
FTA-country antidumping duty review actions are not sub-
ject to the rule for non-FTA countries (not disputed here,
as noted above) that a party cannot challenge an affirma-
tive final antidumping duty determination until after an
antidumping duty order has been published. Reviewability
4 When Bioparques’s complaint was filed, a “[f]ree
trade area country” was defined to include Canada and
Mexico for such time as the North American Free Trade
Agreement (NAFTA) was in force. See 19 U.S.C.
§§ 1516a(f)(8), (10) (2006). NAFTA has since been replaced
by the United States-Mexico-Canada Agreement
(USMCA). The statute was amended in 2020 to define a
“[r]elevant FTA country” as Canada and Mexico for such
time as the USMCA is in force. 19 U.S.C. § 1516a(f)(9).
Case: 20-2265 Document: 76 Page: 20 Filed: 04/14/2022
20 BIOPARQUES DE OCCIDENTE v. US
of an FTA country affirmative final determination requires
no such order; the period of review is defined with reference
only to “the date on which notice of the determination is
published in the Federal Register.” § 1516a(a)(5)(A) (em-
phasis added). Specifically, the period for filing begins on
the 31st day after the day of publication of the determina-
tion (not an order based on it), id., with a summons due
within the next 30 days and a complaint due 30 days after
the summons, § 1516a(a)(2). 5
Here, Bioparques has argued for jurisdiction under B(i)
based on the special provisions available in the FTA con-
text. And neither the government nor the Florida Tomato
Exchange has offered evidence or argument that any juris-
dictional prerequisite has not been met. It is undisputed
that no binational panel was sought, and there has been no
dispute about the timeliness of Bioparques’s summons and
complaint. J.A. 45–46; J.A. 60–68. Nor has the timeliness
of notice been challenged before us. See supra n.5; Bi-
oparques Br. at 16. In this appeal, the parties dispute only
whether the Final Determination is a B(i) final affirmative
determination.
The text of B(i) makes plain that it is. The provision
allows for review of “[f]inal affirmative determinations by
the administering authority and by the Commission under
5 A special notice rule also applies in the FTA con-
text. “[T]he party seeking to commence review [must] pro-
vide[] timely notice of its intent to commence such review
to” three sets of parties—the “United States Secretary” and
“relevant FTA [country] Secretary” (both defined by refer-
ence to the USMCA); all interested parties to the proceed-
ing in connection with which the matter arises; and the
administering authority or the Commission, as appropri-
ate—within a specified period. § 1516a(g)(3)(B);
§ 1516a(a)(5); § 1516a(f). We do not determine the precise
meaning of this requirement or whether it is jurisdictional.
Case: 20-2265 Document: 76 Page: 21 Filed: 04/14/2022
BIOPARQUES DE OCCIDENTE v. US 21
section . . . 1673d of this title, including any negative part
of such a determination.” § 1516a(a)(2)(B)(i). The clause
does not exclude a final affirmative determination from re-
view just because it was reached in a continued investiga-
tion, as opposed to an investigation never interrupted by a
suspension agreement. Section 1673d itself, to which this
clause refers, is broadly titled “[f]inal determinations” and
similarly does not exclude final determinations in contin-
ued investigations from the definition of “final determina-
tions.” The government has noted that § 1673c, which
provides for continued investigations and final determina-
tions in such investigations, is not identified in clause B(i).
Gov’t Br. at 52. But § 1673c itself makes clear that
“[w]here [the] investigation is continued,” a “final determi-
nation by the administering authority or the Commission”
is a final determination “under section 1673d of this title.”
§ 1673c(f)(3) (emphasis added). So the Final Determina-
tion comes with B(i)’s coverage of § 1673d.
The government agreed at oral argument that nothing
in the language of B(i) excludes from its coverage a final
affirmative determination made in a continued investiga-
tion in the suspension-agreement setting. Oral Arg. at
1:30:53–1:31:30. But it suggested that we should hold such
a final determination in a continued investigation to be si-
lently excluded from the plain-meaning coverage of B(i) be-
cause such a final determination is mentioned elsewhere in
the list of reviewable determinations. Specifically, under
§ 1516a(a)(2)(B)’s declaration that what “follows” are re-
viewable decisions, clause (iv) covers a “determination . . .
to suspend” an antidumping duty investigation, “including
any final determination resulting from a continued inves-
tigation which changes the size of the dumping margin . . .
at the time the suspension agreement was concluded.” But
that mention is not enough to override the plain meaning
of B(i). The language of B(i) provides no hook for the sug-
gested exclusion. And there is no conflict between the two
provisions; nor has any other basis been presented to us
Case: 20-2265 Document: 76 Page: 22 Filed: 04/14/2022
22 BIOPARQUES DE OCCIDENTE v. US
that explains why the same Commerce decision might not
be covered by more than one review provision. 6 In short,
we have been shown no sufficient basis to do anything but
follow the plain language of B(i), which covers the Final
Determination here.
We hold that an affirmative final determination in a
continued investigation that involves exports from an FTA
country is reviewable under § 1516a(g)(3)(A)(i) as a deter-
mination under § 1516a(a)(2)(B)(i), which provides the
Trade Court jurisdiction under
28 U.S.C. § 1581(c). On the
record before us, those provisions support Trade Court ju-
risdiction over Bioparques’s challenge to the Final Deter-
mination.
IV
For the foregoing reasons, we affirm the dismissal of
Bioparques’s challenge to the termination of the 2013
Agreement, reverse the determination that Bioparques’s
challenge to the final determination did not present a jus-
ticiable case or controversy, and remand for further pro-
ceedings consistent with our determinations about the
availability of statutory jurisdiction.
The parties shall bear their own costs.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED
6 The government agrees that, although the FTA-
specific review provision, § 1516a(g)(1)(B), lists as review-
able the determinations identified in clause (i) but not
those identified in clause (iv) of § 1516a(a)(2)(B), the FTA-
specific provision does not occupy the field of review for
FTA-country parties, which may separately invoke the
general provisions, including § 1516a(a)(2)(B)(iv), if their
terms are satisfied. Gov’t Br. at 50–51.
