United States Court of International Trade

Slip Op. 21-136

Before the Court in Root Sciences, LLC, v. United States, Court No. 21-00123, Slip Op. 21-136 (October 4, 2021) was Plaintiff Root Science’s challenge against the “deemed denial of its protest to exclusion of merchandise for import” regarding goods seized by CBP, where “Plaintiff did not receive the notice of that seizure from CBP until bringing a challenge to the court.” Id. at 1-2. Root Sciences asserted jurisdiction under 28 U.S.C. § 1581(a), which grants the CIT exclusive jurisdiction over “any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930.” Id. at 8. The core issue of the protest was whether “the merchandise was not prohibited drug paraphernalia because the merchandise was subject to an authorization exemption under 21 U.S.C. §863(f)(1), which allows individuals authorized by local, state, or federal law to import otherwise prohibited” drug paraphernalia. In disputing jurisdiction, the Government contended that “Root Sciences has not challenged the denial of a valid protest because its merchandise was timely seized by CBP, which is not a protestable decision.” Id. The Government argued that pursuant to 28 U.S.C. § 1356 jurisdiction over seized merchandise lies within the district court. Id. Accordingly, due to the seizure of the merchandise at issue, the Government concluded that Root Sciences could not satisfy the requirements for subject matter jurisdiction in this court and asked the court to dismiss the instant case for lack of jurisdiction. Id. Plaintiff contended that “the court has jurisdiction over the dispute because an uncommunicated seizure cannot prevent the occurrence of a deemed exclusion or subsequently deemed denied protest.” Id. at 8-9. For the following reasons, the court granted Defendant’s motion to dismiss. Id. at 9.

“Whether to grant a motion to dismiss for lack of jurisdiction is a question of law.” Id. at 7. “Where jurisdiction is challenged pursuant to Rule 12(b)(1), the burden rests on the plaintiff to establish the basis for jurisdiction.” Id. 28 U.S.C. § 1581(a) grants the court “exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930,” which enumerates certain decisions made by CBP. Id. at 2. “The exclusion of merchandise is one such protestable decision.” Id. 19 U.S.C. § 1499(c)(4) states that “if otherwise provided by law, detained merchandise may be seized and forfeited.” Id. at 3. Seizures, unlike exclusions, are not protestable decisions under 19 U.S.C. § 1514(a), and are not appealable to the Court of International Trade. Id. Rather, they are governed by 28 U.S.C. § 1356, which grants to the federal district court in which the merchandise is located exclusive jurisdiction over “any seizure under any law of the United States . . . except matters within the jurisdiction of the [CIT] under section 1582 of this title.” Id. at 3. 19 C.F.R. § 162.31 states that “[w]ritten notice of . . . any liability to forfeiture shall be given to each party that the facts of record indicate has an interest in the . . . seized property.” Id. “[T]he regulation does not state when such notice must be provided, nor that CBP must ensure notice is received.” Id. “[T]he CIT has jurisdiction over CBP’s decision to exclude goods from entry (if properly protested), but the CIT does not have jurisdiction over seized goods.” Id. at 4. In this case, the court concluded that “a seizure effectuated within thirty days of presentation of the goods to CBP, even if uncommunicated to the importer within those thirty days, will prevent the occurrence of a deemed exclusion.” Id. at 9. Here, the court explained the following: “Whether 28 U.S.C. § 1356 has any current utility as a jurisdictional provision is unclear.” Id. at 19. “While there may be reason to re-assess the statute and to lodge within the Court of International Trade jurisdiction over CBP’s seizure decisions, the court’s charge is to apply the statute as written.” Id. “Re-assessment is not a matter for this court, but for Congress.” Id. As such, the Court granted the Government’s motion and dismissed the case. Id.