Cannabis Processing Equipment Importer Accuses Government of 'Judicial Keep Away'

Cannabis processing equipment importer Root Sciences accused the Department of Justice of playing "judicial keep away" with particular customs cases, in an April 30 response to the government's motion to dismiss. Arguing to keep jurisdiction of its case under the Court of International Trade, Root Sciences made the case for why its challenge of the deemed exclusion of a cannabis crude extract recovery machine should remain in the trade court and why DOJ's arguments against that position are disingenuous.

Root Sciences filed the lawsuit after CBP seized a part of a machine “designed for the recovery of cannabis crude extract from cannabis biomass.” The agency stopped the part from being brought into the U.S. under suspicion of it being drug paraphernalia. Root Sciences launched its case in CIT as a 1581(a) challenge of a denied protest, but DOJ says seizures are not protestable decisions, and a message saying Root's protest was deemed denied was sent in error (see 2104260037). DOJ claimed that challenges of seizures belong in district courts, as opposed to CIT, which is the rightful home of CBP denied protest challenges.

Seeing as DOJ argues that seizure challenges raised in district courts belong in CIT, the move to dismiss Root Science's case is the latest effort by the government to avoid having to litigate the claims on the merits, the importer said. "And to be clear, when an action is brought or demanded in District Courts, the Government asserts that the admissibility of § 863(d) merchandise, and applicability of § 863(f)(1), must be litigated in the CIT," the response said. 21 USC Section 863 deals with the importation of drug paraphernalia.

“When jurisdiction in the CIT is perfected by the denial of a protest, the Government moves to dismiss the action so that the matter can (possibly) be sent off to a District Court -- where CBP controls the timing of filing of suit, and may elect not to file suit, or to file suit so late that a seizure can be invalidated on grounds of unconstitutional delay, without reaching the question of how 21 U.S.C. § 863(f)(1) should be interpreted and administered," Root Sciences said.

The importer also claimed that its case truly belongs under 1581(a) since it launched a protest indicating that its product was held under deemed exclusion and not seizure and hadn't received a notice of seizure. DOJ attempted to get Root Sciences' case thrown out by saying that no deemed exclusion happened with the import entry because CBP seized the cannabis crude extract recovery machine. Root Sciences said the seizure isn't effective until a notice of seizure is given to the importer, which never happened, according to the importer, and that CIT precedent allows for litigation under 1581(a). "CBP conceded in writing that the exclusion protest was denied on March 20, 2021 and CBP expressly noted Plaintiff’s right to challenge the denial in this Court," the response said. "From this admission, the Government is foreclosed from asserting that this Court lacks jurisdiction over the denied protest."