Houston Shutters LLC v. United States

Slip Op. 26-7
UNITED STATES COURT OF INTERNATIONAL TRADE
HOUSTON SHUTTERS LLC,
Plaintiff,
v.
UNITED STATES,
Defendant.
Before: Leo M. Gordon, Judge
Court No. 24-00193
OPINION
[Denying Defendant’s motion to dismiss under USCIT Rule 12(b)(1).]
Dated: January 29, 2026
Jordan 	C. 	Kahn, 	Grunfeld, 	Desiderio, 	Lebowitz, 	Silverman 	& 	Klestadt 	of
New York, N.Y., argued for Plaintiff Houston Shutters LLC. With him on the brief was
Alan R. Klestadt.
Emma E. Bond, Senior Trial Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, D.C., argued for Defendant United States.
With her on the briefs were Brett A. Shumate, Assistant Attorney General, Patricia M.
McCarthy, Director, Claudia Burke, Deputy Director, and Brendan D. Jordan, Trial
Attorney. Of counsel was Ruslan Klafehn, Attorney, Office of the Chief Counsel for Trade
Enforcement and Compliance, U.S. Department of Commerce, of Washington, D.C.
Gordon, Judge: This action involves Plaintiff Houston Shutters LLC’s challenge to
the U.S. Department of Commerce’s (“Commerce”) decision not to initiate a changed
circumstances review (“CCR”) 1 with respect to whether wood shutter components were
1 “A changed circumstances review is a statutorily required administrative process
whereby Commerce, upon request, must review a final affirmative determination resulting
in an antidumping duty order if an interested party has demonstrated the existence of
changed circumstances sufficient to warrant review. Trs. in Bankr. of N. Am. Rubber
(footnote continued)
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within the scope of the investigation covering millwork products from the People’s
Republic of China. 	Plaintiff brought its challenge in the form of two separate actions
seeking the same relief on the same facts, albeit under different jurisdictional provisions.
Compare Compl., ECF No. 2 (action under 28 U.S.C. § 1581(i)), with Compl., Ct.
No. 24-00175, ECF No. 8 (action under § 1581(c)).
Before the court is Defendant’s motion to dismiss this action for lack of subject
matter jurisdiction pursuant to USCIT Rule 12(b)(1). 	See Def.’s Mot. to Dismiss, ECF
No. 14 (“Def.’s Mot.”); see also Pl.’s Resp., ECF No. 15; Def.’s Reply, ECF No. 16; Oral
Arg., ECF No. 27 (May 29, 2025); Def.’s Supp. Br., ECF No. 29 (“Def.’s Supp. Br.”); Pl.’s
Supp. Resp., ECF No. 30 (“Pl.’s Supp. Resp.”). For the reasons set forth below, the court
will deny Defendant’s motion to dismiss this action.
I. Standard of Review
The 	claimant 	carries 	“the 	burden 	of 	demonstrating 	that 	jurisdiction 	exists.”
Techsnabexport, Ltd. v. United States, 16 CIT 420, 422, 795 F. Supp. 428, 432 (1992)
(citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). If the court
determines at any time that it lacks subject matter jurisdiction, the court must dismiss the
action. USCIT Rule 12(h)(3). 	In deciding a USCIT Rule 12(b)(1) motion to dismiss that
does not challenge the factual basis for the complainant’s allegations, the court assumes
Thread Co. v. United States, 30 CIT 1537, 1538 n.3, 464 F. Supp. 2d 1350, 1352 n.3
(2006), aff’d in part, rev’d in part, 593 F.3d 1346 (Fed. Cir. 2010) (“Trustees II”) (citing
19 U.S.C. § 1675(b)(1)).
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all factual allegations to be true and draws all reasonable inferences in the claimant’s
favor. Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995).
However, where the “motion challenges a complaint’s allegations of jurisdiction,
the factual allegations in the complaint are not controlling and only uncontroverted factual
allegations are accepted as true.” 	Shoshone Indian Tribe of Wind River Rsrv., Wyo. v.
United States, 672 F.3d 1021, 1030 (Fed. Cir. 2012). 	To “resolv[e] these disputed
predicate jurisdictional facts, a court is not restricted to the face of the pleadings, but may
review evidence extrinsic to the pleadings.” 	Id. (internal quotation marks and citation
omitted). 	Since the Government disputes the factual underpinnings of jurisdiction, the
court may consider evidence outside of the complaint. Shoshone Indian Tribe, 672 F.3d
at 1030.
II. Discussion
Defendant’s argument hinges on the proposition that the court can determine the
“true nature” of Plaintiff’s action. Problematically, Defendant fails to explain how the court
is to apply this standard based on the factual allegations provided by Plaintiff. 	Rather,
Defendant generally leaves it to the court to determine which jurisdictional facts are at
issue and to dig through the administrative record, unguided. Defendant also urges the
court to confirm that Plaintiff’s alleged challenge to the denial of a CCR is spurious and
instead that Plaintiff is truly seeking to challenge Commerce’s initial scope determination.
The sum and substance of the entirety of Defendant’s argument is as follows:
Houston 	Shutters 	cannot 	invoke 	jurisdiction 	under
subsection 1581(i) in this matter because the true nature of
Houston 	Shutters’ 	action 	is 	a 	challenge 	to 	Commerce’s
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determination 	in 	the 	underlying 	antidumping 	and
countervailing 	duty 	investigations 	that 	wood 	shutter
components are covered by the scope of the orders. Because
Houston Shutters could have challenged that decision before
this Court pursuant to this Court’s jurisdiction under section
1581(c), Houston Shutters is barred from pursuing a 1581(i)
case 	instead. 	See 	28 	U.S.C. 	§ 	1581(i); 	19 	U.S.C.
§ 1516a(a)(2)(B)(i) (providing section 1581(c) jurisdiction over
Commerce’s 	affirmative 	final 	determinations 	in
investigations); Sunpreme[, Inc. v. United States, 892 F.3d
1186, 1191 (Fed. Cir. 2018)].
That Houston Shutters characterizes its claim as a
request to initiate a CCR as opposed to a challenge to the
scope 	set 	in 	the 	investigations 	of 	these 	proceedings 	is
irrelevant. This is because “[a] party may not expand a court’s
jurisdiction by creative pleading.” Sunpreme, 892 F.3d at 1193
(quoting [Norsk Hydro Can., Inc. v. United States, 472 F.3d
1347, 1355 (Fed. Cir. 2006)]). Instead, the Court must “look
to the true nature of the action . . . in determining jurisdiction
of the appeal.” Id. (quoting same). Indeed, the Federal Circuit
has held multiple times that “recasting a scope dispute” as
another type of challenge when the true nature of the action
is a “scope dispute” does not create § 1581(i) jurisdiction. See,
e.g., [TR Int’l Trading Co., Inc. v. United States, 4 F.4th 1363,
1369 (Fed. Cir. 2021)]; Sunpreme, 892 F.3d at 1193–94.
The true nature of what Houston Shutters seeks is
reconsideration of whether the scope of the AD and CVD
orders on millwork products from China should cover wood
shutter components. Indeed, Houston Shutters specifically
argues that Commerce was required to evaluate “the propriety
of excluding wood shutter components from the AD/CVD
Orders’ scope” in its complaint and in the CCR initiation
request it filed with Commerce. See Compl. at ¶16; see also
Compl. at ¶¶ 1, 10, 15; Appx. [at] 521–22, 557–59. Houston
Shutters also spends nearly all of its 42-page request to
initiate 	a 	CCR 	attempting 	to 	distinguish 	wood 	shutter
components 	from 	wood 	millwork 	products 	and 	providing
information it claims would have been responsive to a 2020
Commerce inquiry regarding a scope exclusion request made
by 	Lanzhou. 	However, 	these 	claims 	should 	have 	been
brought 	at 	the 	time 	that 	Commerce 	made 	its 	scope
determination in the investigations and not several years later
as a section 1581(i) action.
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Although Houston Shutters was not a party to the
original proceeding, it asserts standing in this case on the
basis that it is an “interested party.” See Compl. at ¶¶ 3, 9.
However, 	as 	an 	“interested 	party” 	it 	had 	the 	ability 	to
participate in the original investigation. See 85 Fed. Reg.
at 6,503; 85 Fed. Reg. at 6,514. Houston Shutters’ failure to
do so is no basis for 1581(i) jurisdiction. See Rimco Inc. v.
United States, 98 F.4th 1046, 1054 (Fed. Cir. 2024) (“Rimco
failed to pursue the administrative avenue available to it and
thereby missed its opportunity to challenge the rates set by
Commerce. It cannot avoid the consequences of that failure
through 	the 	exercise 	of 	the 	court’s 	section 	1581(i)
jurisdiction.”) (internal quotation marks omitted).
Further, Houston Shutters did not truly identify any
“changed circumstances” in its request for a CCR, nor does it
truly identify any changed circumstances in its complaint
before 	this 	Court. 	Instead, 	Houston 	Shutters 	is 	simply
attempting to submit argumentation and evidence it could
have, but did not provide, during the investigations and calling
that information “changed circumstances.” This is improper.
Though 	labeled 	and 	characterized 	as 	a 	CCR 	initiation
request, it is clear from the face of both its July 2024 CCR
initiation request and its complaint that Houston Shutters is
simply seeking to relitigate the scope determinations made
during the investigations. Because this is the “true nature” of
Houston 	Shutters’ 	claim, 	this 	Court 	does 	not 	possess
jurisdiction under 28 U.S.C. § 1581(i).
Def.’s Mot. at 8–10 (some internal citations omitted) 2 .
Defendant maintains that the “true nature” of this action is not a challenge to
Commerce’s refusal to initiate a CCR, but rather to Commerce’s scope determination in
the underlying investigation. 	In support of its position, Defendant relies heavily on the
decision of the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) in
2 The court notes that the final paragraph in Defendant’s argument indicates that there
may be strong arguments as to why Plaintiff cannot prevail on the merits, however, such
arguments do not lead to the conclusion that the court lacks subject-matter jurisdiction.
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Sunpreme as a legal basis for the court’s authority to disregard the facts as alleged by
Plaintiff in its complaint. See Oral Arg. at 1:32:30–1:34:00; 3 see also Def.’s Mot. at 7–9;
Def.’s Reply at 4, 7–9.
Plaintiff distinguishes Sunpreme, explaining that that decision did not involve a
CCR request predicated on the submission of newly available information. 	Plaintiff
highlights that here, “[b]y contrast, Plaintiff in 2024 – based on new information[] – sought
to retroactively eliminate AD/CVD on wood shutter components that Commerce had
already found were in scope. 	Had Sunpreme, based on new information, requested a
CCR to exclude its solar cells that Commerce declined to initiate, this Court would
possess jurisdiction over that appeal under 28 U.S.C. § 1581(i).” Pl.’s Resp. at 8; see also
id. at 10–11 (further highlighting that “Plaintiff provided Commerce with a plethora of fresh
data” including schematics and videos depicting “wood shutter component production,
and images of the final product, as contrasted with diagrams of domestic wood moulding
and millwork production,” as well as various articles published after February 2021
(i.e., after publication of underlying AD/CVD Orders) discussing and describing wood
shutter component merchandise). Despite Houston Shutters’ argument that its requested
3 Defendant’s counsel at oral argument also referenced the decision in Trustees II, 593
F.3d 1346, and submitted a supplemental brief as to the relevance of that opinion on this
issue. 	See Def.’s Supp. Br.; Oral Arg. at 25:30–27:45, 28:30–29:50, 43:00–44:00; see
also id. at 52:40–54:50 (discussing Defendant’s failure to cite Trustees II in its motion in
this action and need for supplemental briefing). 	For the reasons set forth in Plaintiff’s
supplemental response, ECF No. 30, as well as for the reasons provided in the body of
this Opinion, the court remains unpersuaded that the Trustees II and the Sunpreme
opinions support the dismissal of this action where Plaintiff has made allegations
challenging Commerce’s decision not to initiate a CCR based upon newly submitted
information.
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relief was “based on new information that was not available during the investigations,”
Defendant contends that “the availability of new or different information does not render
a remedy manifestly inadequate under § 1581(c).” Def.’s Reply at 11. The court agrees
with Plaintiff and concludes that Defendant’s response misses the mark. 	The new
information not available during the investigation directly relates to whether Commerce
should have initiated a CCR, which in turn directly goes to Plaintiff’s alleged basis for
jurisdiction under § 1581(i). See Pl.’s Resp. at 8–9.
Crucially, Defendant fails to explain how the court, in evaluating the propriety of
jurisdiction, can disregard Plaintiff’s allegations regarding factual information that arose
after the investigation in support of its changed circumstances review. 	See generally
Def.’s Reply at 11–14 (maintaining that Plaintiff’s arguments as to “new information” go
to “merits” and failing to explain how such information could have been considered by
Commerce in scope determination nor how court can disregard Plaintiff’s allegation
regarding reliance on new information in CCR request); see also Pl.’s Resp. at 9–11
(explaining 	how 	“Plaintiff’s 	CCR 	Request 	Contained 	Extensive 	New 	Information
Constituting A Changed Circumstance,” including a “declaration of an industry expert
executed in May 2024” incorporating information post-dating February 2021 issuance of
the underlying AD/CVD Orders at issue); Compl. ¶¶ 1–2, 10, 15–16 (alleging that Plaintiff
“provided information ‘which shows changed circumstances sufficient to warrant a
review’” 	and 	challenging 	Commerce’s 	failure 	to 	conduct 	a 	CCR 	under
28 U.S.C. § 1581(i)); Oral Arg. at 40:30–49:00 (discussion with counsel as to court’s
concern that Defendant’s arguments go to merits, rather than jurisdiction).
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In support of its motion and in contravention of Plaintiff’s allegations, Defendant
submitted, along with its motion, a confidential appendix with over 500 pages of record
information pertaining to the underlying investigation and determination not to initiate a
CCR. 	See App. to Def.’s Mot. to Dismiss, ECF No. 14-1. 	Defendant encourages the
court to review this submission and rely on certain snippets of information therein to
resolve “disputed predicate jurisdictional facts.” 	See Def.’s Mot. at 6 (citing Nat’l Nail
Corp. v. United States, 42 CIT ___, ___, 335 F. Supp. 3d 1321, 1325 (2018) (quoting
Shoshone Indian Tribe, 672 F.3d at 1030)). 	Notably, Defendant acknowledges that if
Houston Shutters had alleged a substantive change and new information that could not
have been alleged at the time of the investigation, jurisdiction may be appropriate under
§ 1581(i). 	See Oral Arg. at 38:30–42:05 (“If Houston Shutters identified something,
something substantive, that they could not have presented to Commerce in the underlying
investigation, then it would be a different situation.”). 	However, here, Defendant urges
the court to disregard any new information presented by Plaintiff as “cumulative” and
maintains that the crux of Plaintiff’s requested relief is not the refusal to initiate a CCR,
but rather the underlying scope determination in the investigation. 	See, e.g., Oral Arg.
at 1:32:22–1:34:05 (maintaining that Plaintiff failed to demonstrate that it met jurisdictional
burden after jurisdictional facts have been challenged).
Defendant maintains that in light of its submitted jurisdictional fact information,
the court can conclude that “it is clear from the face of both its July 2024 CCR initiation
request and its complaint that Houston Shutters is simply seeking to relitigate the scope
determinations made during the investigations.” 	Def.’s Mot at 10. 	Thus, Defendant
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contends that, once the court recognizes the “true nature” of Houston Shutters’ claim,
it must hold that there is no jurisdiction under 28 U.S.C. § 1581(i). 	Id. 	(arguing that
“Houston Shutters is simply attempting to submit argumentation and evidence it could
have, but did not provide, during the investigations and calling that information ‘changed
circumstances.’ … Though labeled and characterized as a CCR initiation request, it is
clear from the face of both its July 2024 CCR initiation request and its complaint that
Houston Shutters is simply seeking to relitigate the scope determinations made during
the 	investigations.”). 	Significantly, 	Defendant 	does 	not 	identify 	precisely 	which
“jurisdictional facts” it is contesting, and instead merely provides the court with a footnote
indicating 	that 	the 	“Appendix 	[Defendant 	has] 	attached 	to 	this 	motion 	contain[s]
documents that relate to such jurisdictional facts.” Id. at 6 n.2.
Defendant also places great reliance on National Nail Corp. v. United States,
42 CIT ___, 335 F. Supp. 3d 1321 (2018). 	Unfortunately, that reliance is misplaced for
multiple reasons. 	For one, that action did not involve a CCR request, but rather a
challenge to Commerce’s calculation of an all-others rate in an investigation. 	See Nat’l
Nail, 335 F. Supp. 3d at 1324–25. Additionally, it was undisputed that the plaintiff there
could have but failed to participate in the underlying proceeding and maintained
jurisdiction under 1581(c). Id. at 1326.
At oral argument, the court explored the application of Defendant’s proposed “true
nature” test with respect to Plaintiff’s challenge to the refusal to initiate a CCR. See Oral
Arg. at 23:25–25:25. 	Specifically, the court engaged Defendant’s counsel in a lengthy
colloquy to attempt to determine workable guidelines or standards that could be applied
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in making such a determination at the motion to dismiss stage. Id. at 25:30–49:15, 54:55–
1:09:19. While Defendant initially suggested that the court could base its determination
on the nature of the “relief” requested in the complaint, the court’s subsequent discussion
with counsel resulted in the apparent recognition by Defendant that a relief-focused
analysis could not be feasibly applied, especially as potential plaintiffs may adjust their
requested relief in their proposed complaints to secure jurisdiction. 	Id. at 25:30–31:00,
42:00–44:45, 54:55–1:03:00, 1:39:30–1:41:45.
Given this concession, Defendant is unable to persuade the court that the type of
searching “true nature” inquiry applied in Trustees II, Sunpreme, and National Nail, and
the other precedent on which Defendant relies, warrants dismissal here. Cf. Trustees II,
593 F.3d at 1352–54 (recognizing availability of § 1581(i) jurisdiction for domestic industry
challenging Commerce’s refusal to initiate CCR, but denying availability of jurisdiction for
foreign industry to bring similar claim given that the foreign entity already had alternative
available remedy in form of challenging previously conducted CCR); Sunpreme, 892 F.3d
at 1191–93 (concluding that there was no jurisdiction to support challenge under
28 U.S.C. § 1581(i) to U.S. Customs and Border Protection finding that entries of solar
cells from China were subject to AD/CVD when Sunpreme could have requested scope
ruling from Commerce appealable under 28 U.S.C. § 1581(c)); Nat’l Nail, 335 F. Supp.
3d at 1326 (concluding Plaintiff could not establish § 1581(i) jurisdiction in challenge to
all-others rate where challenge could have been brought under § 1581(c)).
Plaintiff has alleged facts that reveal new information not available at the time of
the antidumping and countervailing duty investigations. Defendant has not demonstrated
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why that information does not support Plaintiff’s Complaint. 	If anything, Defendant’s
arguments go to the merits of the action. 	Just because Plaintiff has pled sufficient
information to meet the plausibility standard does not mean that Plaintiff will prevail on
the merits. Furthermore, in light of Defendant’s inability to reconcile its request to dismiss
this action with a standard that can be feasibly applied to Plaintiff’s claims plausibly
alleging the wrongful denial of a CCR in light of new information, the court concludes that
it will deny Defendant’s motion to dismiss.
III. Conclusion
For the foregoing reasons, the court will deny Defendant’s Rule 12(b)(1) motion to
dismiss Plaintiff’s complaint for lack of subject matter jurisdiction. The parties shall file a
joint proposed schedule for further proceedings in this action on or before Tuesday,
February 10, 2026. If the parties are unable to agree, they shall file a separate proposed
schedule on or before that date.
/s/ Leo M. Gordon
Judge Leo M. Gordon
Dated: January 29, 2026
New York, New York
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