Case 1:21-cv-00123-GSK Document 45 Filed 10/07/21 Page 1 of 19
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`Slip Op. 21-(cid:20)(cid:22)(cid:25)
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`UNITED STATES COURT OF INTERNATIONAL TRADE
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`ROOT SCIENCES, LLC,
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`Plaintiff,
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`v.
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`THE UNITED STATES,
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`Defendant.
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` Before: Gary S. Katzmann, Judge
` Court No. 21-00123
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`[The court grants Defendant’s motion to dismiss.]
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`OPINION
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`Dated: October 7, 2021
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`John M. Peterson, Neville Peterson LLP, of New York, N.Y., argued for Plaintiff Root Sciences
`LLC. With him on the briefs were Richard F. O’Neill, of Seattle, WA and Patrick B. Klein.
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`Guy R. Eddon, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of
`Justice, of New York, N.Y., argued for Defendant United States. With him on the brief were Brian
`M. Boynton, Acting Assistant Attorney General, Jeanne E. Davidson, Director, Justin R. Miller,
`Attorney in Charge, International Trade Field Office, Aimee Lee, Assistant Director. Of Counsel
`on the brief were Mathias Rabinovitch and Alexandra Khrebtukova, Office of the Assistant Chief
`Counsel for International Trade Litigation, U.S. Customs and Border Protection, of New York, N.Y.
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`Katzmann, Judge: This is a case about a cannabis processor manufactured in Germany that
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`was seized by Customs and Border Protection (“CBP”) as prohibited merchandise, namely drug
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`paraphernalia, not subject to import. Is the dispute regarding that seizure to be adjudicated by the
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`United States Court of International Trade (“CIT”) or the United States District Court? This case
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`addresses the question of whether the CIT has jurisdiction over a deemed exclusion and protest
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`therefrom where CBP seized goods within thirty days of presentation for examination, but Plaintiff
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`did not receive the notice of that seizure from CBP until bringing a challenge to the court. Plaintiff
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`Root Sciences, LLC, an importer, manufacturer, and distributor of merchandise for the cannabis
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`and hemp processing industry, challenges what it contends is the deemed denial of its protest to
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`exclusion of merchandise for import and argues that the CIT has jurisdiction over the case. Compl.
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`¶¶ 1–3, Mar. 24, 2021, ECF No. 15. In response, Defendant the United States (“Government”)
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`moves to dismiss this case for lack of jurisdiction, arguing that there has been no exclusion, and
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`no denial of Plaintiff’s protest, because of CBP’s seizure of the merchandise and that jurisdiction
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`is thereby lodged in the district court. Def.’s Mot. to Dismiss, Apr. 23, 2021, ECF No. 27 (“Def.’s
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`Br.”). The court concludes that it does not have jurisdiction over this dispute because CBP seized
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`Plaintiff’s merchandise before a deemed exclusion occurred by operation of law. Accordingly, the
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`case is dismissed.
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`BACKGROUND
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`I.
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`Legal Framework and Jurisdiction
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`The jurisdictional statute 28 U.S.C. § 1581(a) grants the court “exclusive jurisdiction of
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`any civil action commenced to contest the denial of a protest, in whole or in part, under section
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`515 of the Tariff Act of 1930,” which enumerates certain decisions made by CBP. The exclusion
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`of merchandise is one such protestable decision. 19 U.S.C. § 1514(a)(4). In 1993, Congress passed
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`the Customs Modernization Act (“Mod Act”), which amended 19 U.S.C. § 1499 to create the
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`mechanisms of deemed exclusion and deemed denial of protests. Under 19 U.S.C. §
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`1499(c)(5)(A), the failure of CBP “to make a final determination with respect to the admissibility
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`of detained merchandise within 30 days after the merchandise has been presented for customs
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`examination . . . shall be treated as a decision of the [CBP] to exclude the merchandise for purposes
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`of section 1514(a)(4) of this title,” i.e., a deemed exclusion. Under CBP’s implementing
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`regulation, 19 C.F.R. § 151.16(b), “merchandise shall be considered to be presented for [CBP]
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`examination when it is in a condition to be viewed and examined by a [CBP] officer.” Presentation
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`for examination requires that “the merchandise itself -- not a proxy or summary -- be laid out or
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`put before a [CBP] official to look at or otherwise visually inspect.” Blink Design, Inc. v. United
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`States, 38 CIT __, __, 986 F. Supp. 2d 1348, 1355 (2014). Under 19 U.S.C. § 1499(c)(5)(B), if
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`CBP fails to respond to a protest of an exclusion within thirty days, that protest will be deemed
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`denied. That denial is then appealable to the court under 28 U.S.C. § 1581(a). Thus, if an importer
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`promptly protests a deemed exclusion, and CBP fails to make a decision to admit or exclude the
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`importer’s goods within sixty days, that importer may challenge the deemed denial to its deemed
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`exclusion before the court.
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`However, 19 U.S.C. § 1499(c)(4) states that “if otherwise provided by law, detained
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`merchandise may be seized and forfeited.” Seizures, unlike exclusions, are not protestable
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`decisions under 19 U.S.C. § 1514(a), and are not appealable to this court. Int’l Maven, Inc v.
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`McCauley, 12 CIT 55, 57, 678 F. Supp. 300, 302 (1988); Milin Indus., Inc. v. United States, 12
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`CIT 658, 659, 691 F. Supp. 1454, 1454 (1988); see also Ovan Int’l, Ltd. v. United States, 39 CIT
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`__, __, 49 F. Supp. 3d 1327, 1331 (2015) (The Court’s jurisdiction “is limited to appeals of valid
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`and timely protests that have been denied by Customs.”). Rather, they are governed by 28 U.S.C.
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`§ 1356, which grants to the federal district court in which the merchandise is located exclusive
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`jurisdiction over “any seizure under any law of the United States . . . except matters within the
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`jurisdiction of the [CIT] under section 1582 of this title.” Section 1582 refers only to actions
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`commenced by the United States, and so is not applicable to the instant case. Relatedly, 19 C.F.R.
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`§ 162.31 states that “[w]ritten notice of . . . any liability to forfeiture shall be given to each party
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`that the facts of record indicate has an interest in the . . . seized property.” Notably, the regulation
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`does not state when such notice must be provided, nor that CBP must ensure notice is received.
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`To obtain relief from seizure, the importer may file an administrative petition pursuant to 19 U.S.C.
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`§ 1618 and 19 C.F.R. § 171.1; or file a claim pursuant to 19 U.S.C. § 1608 and 19 C.F.R. § 162.47,
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`for referral to the U.S. attorney for the district in which the seizure was made, who shall then
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`institute forfeiture proceedings.
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`In short, the CIT has jurisdiction over CBP’s decision to exclude goods from entry (if
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`properly protested), but the CIT does not have jurisdiction over seized goods.
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`II.
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`Factual Background
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`The facts of this case are largely undisputed. In December 2020, Plaintiff attempted to
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`import through the port at Los Angeles/Long Beach, California a German-manufactured
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`component of a Cryo-Ethanol Extraction System, “an all-in-one cryo-extraction, solvent recovery
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`and decarboxylation system designed for the recovery of cannabis crude extract from cannabis
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`biomass,” (“Merchandise”). Compl. ¶ 6. In essence, the Merchandise is a component part of a
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`cannabis extraction machine.
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`According to the Declarations of CBP officials Scott Jarrell and Lee Baxley, the following
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`happened upon presentation of the Merchandise to CBP: CBP selected the Merchandise for cargo
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`examination on December 16, 2020.1 Def.’s Br. at 9 (citing Decl. of Scott Jarrell in Supp. of Def.’s
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`Mot. to Dismiss ¶ 9, Apr. 23, 2021, ECF No. 28-1 (“Jarrell Decl.”)). The vessel transporting the
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`Merchandise arrived at the Los Angeles/Long Beach Seaport on December 31, 2020. Id. On
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`January 13, 2021, CBP detained the Merchandise as “possible drug paraphernalia,” and issued a
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`notice of detention to Plaintiff’s broker. Id. at 10 (citing Jarrell Decl. ¶ 13). On or about January
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`25, 2021, a CBP official determined that the Merchandise was to be seized as drug paraphernalia,
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`1 Plaintiff’s Complaint mistakenly identifies the date the Merchandise was presented to CBP for
`examination as December 18, 2020. Compl. at 2. Plaintiff amended this error in responding to
`the Government’s motion to dismiss, and both parties now agree that the Merchandise was
`presented to CBP for examination on January 11, 2021. Pl.’s Br. at 3, 10–11; Def.’s Br. at 2.
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`and as such would be subject to forfeiture. Id. at 3–4 (citing Jarrell Decl. ¶ 16). On February 10,
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`2021, CBP seized the Merchandise and updated its records system to reflect the seizure. Id. (citing
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`Jarrell Decl. ¶¶ 18-19). That system was updated again on February 11, 2021, to release the “hold”
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`on the Merchandise and reflect that it had been seized. Id. (citing Jarrell Decl. ¶ 20). On February
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`17, 2021, the Merchandise was transferred to CBP’s long-term seizure storage facility where it
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`remains to date. Id. at 4 (citing Jarrell Decl. ¶ 20). On March 8, 2021, CBP sent notice of the
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`seizure (“Notice”) to Plaintiff via certified mail using the address listed by Plaintiff’s broker on
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`the entry filing for the Merchandise. Id. at 5 (citing Decl. of Lee Baxley in Supp. of Def.’s Mot.
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`to Dismiss ¶ 5, Apr. 23, 2021, ECF No. 28-2 (“Baxley Decl.”)). On March 11, 2021, the United
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`States Postal Service unsuccessfully attempted to deliver the Notice. Id. (citing Baxley Decl. at
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`Exh. 3). On March 22, 2021, the Notice was returned to CBP as undeliverable. Id. (citing Baxley
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`Decl. ¶ 6). On March 24, CBP re-sent the Notice via regular mail, but this attempt was also
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`returned as undeliverable on April 2, 2021. Id. (citing Baxley Decl. ¶ 7).
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`Plaintiff does not dispute this version of events, but stresses that “Plaintiff could have done
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`nothing more to learn about the alleged administrative seizure in advance of bringing this exclusion
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`case.” Resp. of Pl. in Opp. to Def.’s Mot. to Dismiss 15 n.6, Apr. 30, 2021, ECF No. 29 (“Pl.’s
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`Br.”). Rather, according to the Affirmation of Richard F. O’Neill, counsel to Plaintiff, beginning
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`in late January 2021, Plaintiff repeatedly asked CBP for information about the detention. Pl.’s Br.
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`at 3 (citing Aff. of Richard O’Neill in Supp. of Pl.’s Appl. for an Order to Show Cause, Mar. 24,
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`2021, ECF No. 14-3 (“O’Neill Aff.”)). Plaintiff received no substantive response to its multiple
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`requests, which continued throughout early February 2021. Id. The Government does not dispute
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`Plaintiff’s representations of CBP’s lack of communication. See generally Def.’s Br. Having
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`received no information regarding the detention, and unaware of the seizure of February 11, 2021,
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`Plaintiff acted on its belief that the Merchandise was deemed excluded by operation of 19 U.S.C.
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`§ 1499(c)(5)(A) thirty days after the Merchandise was presented to CBP for examination and filed
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`a protest of the deemed exclusion on February 18, 2021. Pl.’s Br. at 3. Plaintiff’s protest argued
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`that the Merchandise was not prohibited drug paraphernalia because the Merchandise was subject
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`to an authorization exemption under 21 U.S.C. § 863(f)(1), which allows individuals authorized
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`by local, state, or federal law to import otherwise prohibited merchandise. Plaintiff also argued
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`that because California and Washington states both authorize the use of machinery for processing
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`hemp and marijuana, its importation is allowed under 21 U.S.C. § 863(f)(1). Pl.’s Br. at 4.
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`Plaintiff, having not received the Notice, and having received no other updates on the status
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`of the detained Merchandise, believed its protest was deemed denied pursuant to 19 C.F.R. §
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`174.21(b) on March 20, 2021, thirty days after Plaintiff’s protest was filed. Id. at 4. On March
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`23, 2021, CBP sent an automated email to Plaintiff stating that its protest had been deemed denied
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`on March 20, 2021. Id. at 5. The Government notes this email was automated, related only to the
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`protest, and was triggered by “an import specialist” who “mistakenly believed” that a protest after
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`a seizure could still be deemed denied by operation of law. Def.’s Resps. to the Ct.’s Questions
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`for Oral Arg. at 8, June 28, 2021, ECF No. 41 (“Def.’s Resps. to Ct.’s Questions”); see also Def.’s
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`Br. at 6. Eight hours after filing this case, Plaintiff learned of the seizure via an email sent to
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`Plaintiff from Government counsel. Pl.’s Br. at 5.
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`III.
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`Procedural History
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`On March 22, 2021, Plaintiff initiated this action and filed a motion for an order to show
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`cause requesting that the court order the Government “to appear and show cause why the [c]ourt
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`should not order (i) the cancellation of the deemed exclusion of, and the release of, the
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`[Merchandise] pursuant to 19 U.S.C. § 1499(c)(5)(C); and/or (ii) the entry of an expedited
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`litigation schedule.” Summons, Mar. 22, 2021, ECF No. 1; Compl. at 1; Pl.’s Mot. For an Order
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`to Show Cause, Mar. 24, 2021, ECF No. 14 (“Pl.’s Mot.”). The court held a teleconference on
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`March 30, 2021, during which the Government first informed the court of the seizure.
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`Teleconference, Mar. 30, 2021, ECF No. 21. The court then ordered the parties to file proposed
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`briefing schedules. Id. The Government filed a motion to dismiss on April 23, 2021. Def.’s Br.
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`Plaintiff responded in opposition on April 30, 2021. Pl.’s Br. The Government replied on May
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`12, 2021. Def.’s Reply in Supp. of Mot. to Dismiss, May 12, 2021, ECF No. 30 (“Def.’s Reply”).
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`Oral argument was held on June 30, 2021. Oral Arg., ECF No. 42. Prior to oral argument, the
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`court issued and the parties responded to questions regarding the case. Ct.’s Letter re: Questions
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`for Oral Arg., June 16, 2021, ECF No. 39; Pl.’s Resp. to June 16, 2021 Questions for Oral Arg.,
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`June 28, 2021, ECF No. 40 (“Pls.’ Resp. to Oral Arg. Questions”); Def.’s Resps. to Ct.’s Questions.
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`As directed by the court, the parties also filed briefs following oral argument. Pl.’s Suppl. Br. in
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`Opp’n to Def.’s Mot. to Dismiss, July 8, 2021, ECF No. 44; Def.’s Post-Arg. Submission, July 8,
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`2021, ECF No. 43.
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`STANDARD OF REVIEW
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`The court’s determination of its subject matter jurisdiction is a threshold inquiry. Steel Co.
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`v. Citizens for a Better Environment, 523 U.S. 83, 94–95 (1998); CR Indus. v. United States, 10
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`CIT 561, 562 (1986) (“It is fundamental that the existence of a jurisdictional predicate is a
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`threshold inquiry in which plaintiff bears the burden of proof.”). Whether to grant a motion to
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`dismiss for lack of jurisdiction is a question of law. JCM, Ltd. v. United States, 210 F.3d 1357,
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`1359 (Fed. Cir. 2000). Where jurisdiction is challenged pursuant to Rule 12(b)(1), the burden rests
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`on the plaintiff to establish the basis for jurisdiction. Pentax Corp. v. Robison, 125 F.3d 1457, 1462
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`(Fed. Cir. 1997); see also Wally Packaging, Inc. v. United States, 7 CIT 19, 20, 578 F. Supp. 1408,
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`1410 (1984) (noting that “[w]hen the court’s jurisdiction is challenged, the party asserting
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`jurisdiction has the burden of establishing that jurisdiction exists”). If a Rule 12(b)(1) motion
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`controverts factual allegations in the complaint, the allegations in the complaint are not controlling
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`and are subject to factfinding by the court. Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573,
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`1583–84 (Fed. Cir. 1993); Blink Design, 986 F. Supp. 2d at 1352; H & H Wholesale Servs., Inc.
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`v. United States, 30 CIT 689, 691–92, 437 F. Supp. 2d 1335, 1339 (2006). In these circumstances,
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`as part of the motion, the court is permitted to “review evidence outside the pleadings to determine
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`facts necessary to rule on the jurisdictional issue.” H & H Wholesale, 30 CIT at 692, 437 F. Supp.
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`2d at 1340 (citations and quotations omitted). Accordingly, the court is permitted to review the
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`documents attached to the Motion to Dismiss for purposes of assessing jurisdiction.
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`DISCUSSION
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`Root Sciences asserts jurisdiction under 28 U.S.C. § 1581(a), see Compl. ¶ 2, which, as
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`noted above, grants the CIT exclusive jurisdiction over “any civil action commenced to contest
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`the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930.” 28 U.S.C.
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`§ 1581(a). In disputing jurisdiction, as discussed below, the Government contends that Root
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`Sciences has not challenged the denial of a valid protest because its merchandise was timely seized
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`by CBP, which is not a protestable decision. See 19 U.S.C. § 1514(a) (see page 3, supra). The
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`Government argues that pursuant to 28 U.S.C. § 1356 (see page 3, supra,) jurisdiction over seized
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`merchandise lies within the district court. Accordingly, due to the seizure of the merchandise at
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`issue, the Government concludes that Root Sciences cannot satisfy the requirements for subject
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`matter jurisdiction in this court and asks the court to dismiss the instant case for lack of jurisdiction.
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`Def.’s Br. at 1. Plaintiff, however, contends that the court has jurisdiction over the dispute because
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`an uncommunicated seizure cannot prevent the occurrence of a deemed exclusion or subsequently
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`deemed denied protest. Pl.’s Br. at 7–8. Thus, the court must answer two questions in determining
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`whether it has jurisdiction over this case: (1) whether a seizure effected within thirty days of
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`presentment of goods for examination constitutes an admissibility determination that prevents a
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`deemed exclusion from occurring by operation of law; and (2) what effect notice of seizure has on
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`the court’s jurisdiction. The court concludes that a seizure effectuated within thirty days of
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`presentation of the goods to CBP, even if uncommunicated to the importer within those thirty days,
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`will prevent the occurrence of a deemed exclusion. Thus, the court dismisses the case for lack of
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`jurisdiction because Plaintiff’s protest was not valid as there was no deemed exclusion.
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`I.
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`A Seizure Effected Within Thirty Days of Presentment for Examination Will
`Prevent a Deemed Exclusion.
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`The parties first contest whether a seizure by CBP constitutes an “admissibility
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`determination” for purposes of 19 U.S.C. § 1499(c), which precludes a deemed exclusion from
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`occurring. The Government contends that seizure does constitute an admissibility determination,
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`and, because CBP actually seized Plaintiff’s merchandise within thirty days of its presentment for
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`examination, no deemed exclusion occurred in this case. Def.’s Reply at 14. Plaintiff asserts that
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`a “seizure of goods . . . is not an admissibility determination made pursuant to 19 U.S.C. § 1499,”
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`and that “a seizure can be undertaken completely independent of, and without regard to, any
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`determination of admissibility.” Pl.’s Br. at 16.
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`While the court agrees with Plaintiff that a seizure does not constitute an admissibility
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`decision, it nevertheless concludes that CBP’s seizure of the Merchandise did prevent the deemed
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`exclusion from occurring. The statute, CBP’s implementing regulation, the legislative history, and
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`the court’s case law support this conclusion. First, the statute contains a provision stating that “[i]f
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`otherwise provided by law, detained merchandise may be seized and forfeited.” 19 U.S.C. §
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`1499(c)(4). The implementing regulation, 19 CFR § 151.16(j) elaborates that “[i]n lieu of seizure
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`and forfeiture, where authorized by law, Customs may deny entry and permit the merchandise to
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`be exported, with the importer responsible for paying all expenses of exportation” (emphasis
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`added). In other words, merchandise not already seized may be excluded by CBP. Furthermore,
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`the regulation states that “[a] final determination with respect to admissibility of detained
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`merchandise will be made within 30 days from the date the merchandise is presented for Customs
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`examination. Such a determination may be the subject of a protest.” 19 C.F.R. § 151.16(e)
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`(emphasis added). So, while an admissibility determination may be the subject of protest, a seizure
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`is not. See also Int’l Maven, 12 CIT at 57, 678 F. Supp. at 302. This distinction is consistent with
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`the court’s well-established case law that seizures are not protestable decisions within this court’s
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`jurisdiction. See, e.g., CDCOM (U.S.A.) Intern., Inc. v. United States, 21 CIT 435, 439, 963 F.
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`Supp. 1214, 1218 (1997) (“since Plaintiff’s protest is deemed a protest of a seizure, it is not a
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`‘valid’ protest for the purposes of § 1514(a), and, therefore, the matter is not appealable to this
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`[c]ourt”); H & H Wholesale Servs., 30 CIT at 692–93, 437 F. Supp. 2d at 1340 (“[A]n exclusion
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`must take place before a plaintiff may protest it. If only a seizure took place, the court has no
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`jurisdiction.”).
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`Second, the legislative history of the Mod Act, which created the deemed exclusion
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`process, shows that the purpose of 19 U.S.C. § 1499(c) is to afford relief to importers for CBP’s
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`inaction. Congress explained that the statute would give CBP “a minimum of 60 days in which to
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`determine whether merchandise initially detained shall be excluded from entry or seized and
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`forfeited if otherwise authorized under other provisions of law.” H.R. Rep. No. 103–361, pt. 1, at
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`111–12 (1993). The use of the word “or” here suggests that Congress intended that exclusions and
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`seizures be mutually exclusive actions. In the instance in which CBP takes no action and a deemed
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`exclusion of merchandise occurs, the burden of proof, typically resting on the complainant,
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`switches to CBP to demonstrate “that it has good cause for not reaching an admissibility decision.”
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`Id. at 110. If a suit is commenced after an admissibility decision has been reached, the burden
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`remains with the complainant in accordance with 28 U.S.C. § 2639. Id. “Thus, if, prior to
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`commencement of the action, the Customs Service determines to exclude the merchandise from
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`the United States, an importer wishing to challenge that decision shall bear the burden of proof
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`consistent with the provisions set forth in 28 U.S.C. § 2639.” Id. at 112 (emphasis added).
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`Congress’s failure to use the term “seizure” here indicates that seizures are not admissibility
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`decisions under section 1499(c)(5). Further, the court notes that the reference to section 2639
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`includes “any civil action commenced in the [CIT] under section 515, 516, or 516A of the Tariff
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`Act of 1930.” 28 U.S.C. § 2639(a)(1). It makes little sense that a provision intended to shift the
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`burden of proof in cases brought before the CIT would concern seizure, the contesting of which
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`cannot properly be brought before this court but must instead be heard at the appropriate district
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`court, per 28 U.S.C. § 1356. Recent decisions have also relied upon this legislative history in
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`similarly concluding that seizures are not admissibility determinations. See CBB Grp., Inc. v.
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`United States, 35 CIT 743, 748, 783 F. Supp. 2d 1248, 1253 (2011) (“Customs failed to make
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`either an admissibility or a seizure determination within the 60-day period established by section
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`499(c)(5) and addressed in the House Report”); Blink Design, 986 F. Supp. 2d at 1359 (quoting
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`CBB Grp., Inc.’s discussion of the same legislative history). But see CDCOM, 21 CIT at 438–39,
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`963 F. Supp. at 1217 (“[CBP] made an admissibility determination within the thirty-day statutory
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`period required under 19 U.S.C. § 1499(c)(5)(A), declaring both shipments of the subject
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`merchandise ‘seized.’”).
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`Thus, the court agrees with Plaintiff that a seizure is not, by itself, an admissibility
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`determination. Rather, an “admissibility decision” means a decision to admit or exclude
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`merchandise by CBP. This conclusion is especially apparent in light of the fact that agencies other
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`than CBP may seize goods that have been presented for examination.
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`That said, previous decisions of the court make clear that a seizure of merchandise, if
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`effected within thirty days of that merchandise being presented for examination, prevents the
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`occurrence of a deemed exclusion. For example, in Tempco Marketing v. United States, the court
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`held that, with respect to the second of three entries at issue, “[s]ince the seizure occurred within
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`thirty days of the presentation for examination, the merchandise was never deemed excluded
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`pursuant to 19 U.S.C. § 1499(c)(5)(A).” 21 CIT 191, 194, 957 F. Supp. 1276, 1279 (1997). In
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`CDCOM, the court held that “[u]nder 19 U.S.C. § 1499(c)(5)(A), since both seizures occurred
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`within thirty days of the presentation for examination, the merchandise was never deemed
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`excluded.” 21 CIT at 439 n.7, 963 F. Supp. at 1217 n.7. In H & H Wholesale, the court held that
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`“the merchandise in this case was seized within thirty days after it was presented to Customs for
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`inspection. Therefore, no ‘deemed exclusion’ took place.” 30 CIT at 693, 437 F. Supp. 2d at 1341
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`(citations omitted). Similarly, in Blink Design, the court found that CBP “seized each entry more
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`than thirty days after presentation and that, therefore, each entry was deemed excluded prior to
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`seizure.” 986 F. Supp. 2d at 1357.
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`In sum, the conclusion that a seizure of goods is not an admissibility determination made
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`pursuant to 19 U.S.C. § 1499 is rendered inapposite because whether or not seizure is an
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`“admissibility determination,” it is clear that seizure, if effected within thirty days of the subject
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`merchandise being presented for examination, precludes deemed exclusion. Plaintiff may be
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`correct that “a seizure can be undertaken completely independent of, and without regard to, any
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`determination of admissibility,” in the narrow sense that CBP or another agency may later seize
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`merchandise previously determined to be admissible, but it does not therefore follow that CBP can
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`determine previously seized merchandise to be admissible. Rather, seizure of goods prior to an
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`admissibility determination precludes further decision by CBP on the admissibility of the
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`merchandise because the goods then become subject to forfeiture proceedings, in which case the
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`admissibility of the goods becomes irrelevant. Per Plaintiff’s logic, a seizure executed by another
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`agency would result in a deemed exclusion by CBP in all cases, unless CBP affirmatively issued
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`a declaration that the underlying merchandise is admissible (which is a strange result if the
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`merchandise is seized by another agency), or is excluded, in which case CBP would be making an
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`affirmative exclusion, thereby creating grounds for protest and the importer’s bringing a case to
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`the CIT in every such case. This result is impractical and counter to the Mod Act legislative history
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`described previously.2
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`2 However, where a seizure post-dates a deemed exclusion, the court’s case law is unclear as to
`whether the later seizure in some way negates, or cancels out, the exclusion. In R.J.F. Fabrics,
`Inc., v. United States, 10 CIT 735, 739, 651 F. Supp. 1431, 1434 (1986), the court considered “the
`issue of whether this [c]ourt’s jurisdiction over an exclusion ceases upon the seizure of
`merchandise by [CBP].” Finding that “it is clear that plaintiff protested the exclusion of its
`merchandise,” the court said it was “unwilling, therefore, to adopt a rule that would divest the
`[CIT] of jurisdiction simply because plaintiff filed its protest after [CBP] chose . . . to formally
`seize the subject goods.” Id. at 1433. In International Maven, the court characterized the holding
`in R.J.F. Fabrics as “enunciat[ing] this [c]ourt’s interpretation that its jurisdiction over protested
`exclusions did not necessarily cease once the goods were subsequently seized.” 12 CIT at 58; 678
`F. Supp. at 302 (citing R.J.F. Fabrics, 651 F. Supp. at 1433). In H & H Wholesale, the court noted
`that “the court sees no reason to assume that the Mod Act amendments to § 1499 were intended to
`deprive [CBP] of the authority to issue an express exclusion of merchandise, which might be
`effective if a later seizure were found defective.” 30 CIT at 693 n.5, 437 F. Supp. 2d at 1341 n.5.
`Although the court there did not say so, a deemed exclusion that took place prior to seizure might
`also be effective should the seizure later prove defective. In Blink Design, the court held that “it
`is not clear that the seizures negate the deemed exclusion.” 986 F. Supp. 2d at 1361. The court in
`that case went on to hold that it retained jurisdiction over deemed exclusions of merchandise later
`seized by CBP. Id. However, a contrary result is found in PRP Trading Corp. v. United States,
`where the court held that, despite the Government conceding that two of the five entries at issue
`in that case were deemed excluded prior to seizure, “the fact of seizure trumps the fact of deemed
`exclusion” where the merchandise is seized prior to the commencement of the action. 36 CIT 1354,
`1357, 885 F. Supp. 2d 1312, 1314 (2012). Therefore, the court held it did not have subject matter
`jurisdiction under 28 U.S.C. § 1581(a). Id. at 1315. The court notes, but need not here resolve,
`this further wrinkle in the seizure-exclusion jurisdictional divide.
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`Thus, the court concludes that where a seizure occurs prior to a deemed exclusion by
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`operation of law, a deemed exclusion will not occur.
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`II.
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`Plaintiff’s Merchandise was Seized by CBP on February 10, 2021, and Never
`Deemed Excluded, Regardless of Notice of the Seizure.
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`The court next turns to whether, regardless of its conclusion that a deemed exclusion does
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`not occur when goods are seized, notice of seizure must be provided to the importer to complete
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`the seizure of goods. Plaintiff argues that a seizure is effective, at the earliest, upon the date notice
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`of seizure is sent to the importer. Pl.’s Br. at 9–10. Plaintiff further contends that where notice of
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`seizure is sent more than thirty days after the merchandise at issue is presented to CBP for
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`examination, the seizure does not prevent the occurrence of a deemed exclusion. Id. Under
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`Plaintiff’s view, because CBP first sent notice of seizure on March 8, 2021 -- more than thirty days
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`after the Merchandise had been presented for examination (on January 11, 2021) -- the seizure did
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`not become legally effective until after the deemed exclusion occurred, and thus the seizure cannot
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`preclude the court’s jurisdiction over the deemed exclusion and subsequently denied protest. Id.
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`The Government contends that the court ought to give legal effect to the date of actual seizure,
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`here February 10, 2021, and hold that because actual seizure occurred within thirty days of the
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`Merchandise being presented for examination, no deemed exclusion occurred, and therefore the
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`court must dismiss this action for want of subject matter jurisdiction. Def.’s Reply at 6–7. For the
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`reasons discussed below, the court agrees with the Government and concludes that, due to the
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`seizure on February 10, 2021, Plaintiff’s Merchandise was never deemed excluded and this court
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`does not have jurisdiction over its subsequent protest.
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`The applicable regulation, 19 C.F.R. § 162.31, requires that “written notice of . . . any
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`liability to forfeiture shall be given to each party that the facts of record indicate has an i