CBP Makes Detention Decisions Even for PGA Goods, CIT Says
The Court of International Trade ruled Nov. 26 that it has jurisdiction over all denied protests of CBP detention decisions -- even if the government claimed that the Drug Enforcement Administration, not CBP, chose to make the seizure. CBP has the final authority over all detentions, making all detentions protestable under U.S. law, CIT Judge Timothy Reif held in his opinion.
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Reif also refused the government leave to amend its case to include previously missing documentation that showed CBP and DEA had communicated about a seized entry during its detention. During oral argument, the judge criticized the government for its failure to provide any evidence that DEA had been involved in the detention at all (see 2409200048); after the argument, it said it found emails between the agencies “responsive to the Court’s questions” (see 2410020057).
The U.S. motion to dismiss raised a jurisdictional issue in the case brought by importer Unichem. The importer alleged that CBP had wrongly detained Unichem’s entry of dietary weight loss supplements for nearly a year, despite being required to make a decision on a seized entry within 30 days. The government claimed the entry could have contained anabolic steroids, a controlled substance.
During the entry’s detention, which lasted from November 2023 to September 2024, Unichem received four detention notices from CBP. None mentioned DEA’s alleged involvement in the seizure; each only described the detention was continuing because “further analysis [was] needed.” Unichem attempted to protest the detention in January, but CBP deemed the matter “non-protestable” and denied its protest without further explanation. The importer appealed to the trade court the following month.
Seeking to dismiss Unichem’s case, the U.S. argued that the court lacked subject matter jurisdiction because it was DEA, not CBP, that made the decision to detain UniChem’s entry. Because CBP made no decision, nothing could be protested; the case was in the wrong court and UniChem failed to exhaust its administrative remedies, it said (see 2405100064).
Reif disagreed.
“U.S. law vested the authority to determine the admissibility of the subject merchandise in Customs, not the DEA,” he said. “Therefore, the court has subject matter jurisdiction over the exclusion by operation of law of the merchandise.”
He also looked to the language used by the government itself both during litigation and the earlier detention. The U.S. itself said in its brief that the merchandise was detained because “CBP was concerned that the shipment contained controlled substances,” he noted.
And each of the four detention notices Unichem received lacked any mention of DEA but “expressly and specifically invoked Customs' authority under § 1499,” he said. He explained that under the law, CBP is required to provide such notices unless the detention decision was vested in another agency, so the fact CBP itself issued Unichem the notices “refuted” the U.S.’s argument.
“Defendant’s proffered approach is untenable,” he said. “Specifically, as this case illustrates, defendant’s approach leaves importers with no way of knowing whether the authority for determining the admissibility of their merchandise is vested in Customs -- in which case the protest remedy is available -- or in another agency -- in which case the protest remedy is not available.”
Further, he said, Unichem was directed by the first notice to send all correspondence to CBP’s Anti-Terrorism Contraband Enforcement Team. And CBP sent a sample of the merchandise to is own lab, he said.
Reif also refused to let the government supplement its briefing in response to criticism that it hadn’t earlier provided any proof DEA had participated in the detention process. Even if it had, that was irrelevant to the question of whether the detention authority was “vested” in CBP or DEA, he said, and didn’t change the fact Unichem had never been made aware of DEA’s involvement.
(Unichem Enterprises v. U.S., Slip Op. 24-131, CIT # 24-00033, dated 11/26/2024; Judge: Timothy Reif; Attorneys: Christopher Duncan of Stein Shostak for plaintiff Unichem Enterprises; Hardeep Josan for defendant U.S. government)