DOJ Says Its Position Is Consistent on Jurisdictional Questions Involving Exclusions, Seizures

The Department of Justice said in June 30 oral argument before the Court of International Trade that its positions on the proper jurisdiction for cases challenging either the exclusion or seizure of goods identified as drug paraphernalia are consistent in district courts and CIT. If an import is excluded from entry by CBP, CIT has jurisdiction. If the good is seized, the district court has jurisdiction, it said. DOJ argues that CIT doesn't have jurisdiction to hear a case brought by Root Sciences since CBP seized a cannabis crude extract recovery machine from the importer rather than excluding it (Root Sciences, LLC v. United States, CIT # 21-00123).

Judge Gary Katzmann pressed the government on this argument in the proceedings, bringing up the plaintiff's argument that DOJ had been playing "judicial keep away" (see 2105030053). Katzmann also mentioned a case in the U.S. District Court for the Western District of Washington where DOJ successfully argued that CBP's decision to block a hemp harvesting machine from entering the U.S. was excluded and not seized, making CIT the rightful place to contest CBP's determination (see 2104160035). DOJ said that this argument squared with the ones being made in Root Sciences' case.

Root Sciences contends that there was a deemed exclusion determination of the cannabis extract recovery machine since the notice of seizure wasn't communicated to the plaintiff within 30 days of entry. An exclusion determination would mean that CIT holds jurisdiction over the matter. "It is difficult to see how an uncommunicated seizure determination, internal to CBP, could rebut the presumption of correctness attaching to CBP’s determination that there was a deemed denial of a protest challenging a deemed exclusion," Root Sciences said in a June 28 filing responding to Katzmann's questions.

The government countered by saying that it sent a notice of seizure, although it wasn't received by Root Sciences. The seizure, which occurred 30 days after the goods were submitted for inspection, and the notice of seizure, submitted 60 days after submitted for inspection, label the goods as seized. DOJ says that, contrary to Root Sciences' claims, there's nothing that causes seized merchandise to be deemed excluded until the seizure is communicated. “Consequences [for Root Sciences' initial non-receipt of the seizure notice] are not relevant to the jurisdictional issues presented here,” DOJ said in its own brief.