DOJ Differentiates Between Seizures, Deemed Exclusions in Arguing Lack of CIT Jurisdiction

Since CBP seized a shipment of a cannabis crude extract recovery machine and did not subject it to deemed exclusion from entry, a case challenging the seizure does not have jurisdiction in the Court of International Trade, the Department of Justice said in a May 12 reply brief supporting its motion to dismiss. Importer Root Sciences argues that since it received a notice of seizure after the date of deemed exclusion, its shipment was deemed excluded from entry and thus warranting of jurisdiction in CIT, but citing past court precedent, DOJ said that notice of seizure is not the date of seizure, declaring that "a seizure necessarily occurs prior to the date on which Customs issues the notice of seizure," (Root Sciences, LLC v. United States, CIT # 21-00123).

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 Sciences' protest was deemed denied was sent in error (see 2105030053). DOJ argues that challenges of seizures belong in district courts, as opposed to CIT, which is where denied protest challenges are decided. This prompted Root Sciences to accuse DOJ of playing "judicial keep away" for recently arguing in district court that a related customs case brought by importer Keirton USA belongs in CIT.

Disputing this characterization in its latest brief, DOJ differentiated between deemed exclusion and seizure cases, finding that Root Sciences' predicament is the latter. "In Keirton, CBP argued that the CIT has exclusive jurisdiction over customs exclusions, and the court agreed," DOJ said. "That position is entirely consistent with the Government’s position here, which is that the district courts have exclusive jurisdiction over seizures."

DOJ argued that "adopting Root Sciences' construction of the law would have troubling implications for the Government's criminal enforcement authority." If CBP were forced to issue notices of seizure concurrently with those seizures, then ongoing criminal investigations could be compromised, DOJ said. Or if CBP were to allow shipments to become deemed excluded, then this would permit the importer to regain possession of the goods in question and present further obstacles for criminal prosecution.