US Says No Good Cause to Expedite Case on CBP 'Retaliation' Against Eteros Execs
Eteros has not shown good cause for an expedited scheduling order in its case alleging that CBP retaliated against the company's executives after the company received a favorable ruling at the Court of International Trade in a case on imports of marijuana paraphernalia, the U.S. told the trade court on Feb. 24. The government also said it's likely that CIT doesn't have jurisdiction to hear the matter, indicating that it soon will file a motion to dismiss the case (Eteros Technologies USA v. United States, CIT # 25-00036).
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At the heart of the matter are "immigration-related issues," unrelated to the court's trade-based jurisdiction, the brief said.
In 2022, the trade court said Eteros could permissibly import "drug paraphernalia." The court found that Washington state's decision to make the importation of marijuana-related drug paraphernalia legal fell under a state exemption allowing such action under federal narcotics laws (see 2209210034).
Eteros alleged that, despite the court's decision and a CBP HQ ruling affirming the treatment of its imports, CBP officers in Washington retaliated against two Canadian Eteros executives, Amanda James and Aaron McKellar, by denying them the right to enter the U.S. and, in McKellar's case, banning him from entering the country for five years (see 2501300018). The importer filed suit at CIT and in the U.S. District Court for the Western District of Washington, challenging CBP's actions as illicit retaliation for the company's success in court.
The importer asked for an expedited schedule for its case, claiming it will continue to face "operational disruption, financial losses, reputational harm, and erosion of employee morale" without it (see 2502030066). In response, the U.S. said this harm is not of the type that warrants an expedited case. The government said Eteros "has not demonstrated any non-speculative operational disruption or financial losses." The brief emphasized that the importer hasn't alleged any difficulties in importing its "marijuana-related drug paraphernalia" in line with the trade court's previous decision.
"Expedited treatment is entirely unwarranted on these facts," the brief said.
The U.S. added that Eteros failed to show how a non-expedited case "would lead to extraordinary hardship." While the company alleges that CBP's actions create "operational, financial, reputational, and workforce-related challenges," these claims don't show "how proceeding with this case in the normal course would pose an extraordinary hardship beyond what could be expected of any company with cross-border business operations in such circumstances," the brief said. The U.S. claimed that Eteros' "business and personal immigration-related issues are a far cry from the kinds of extraordinary hardships previously identified by this court."
The government also said the court lacks subject-matter jurisdiction over Eteros' claims. The trade court's first decision in the case related only to the admissibility of its marijuana trimmers, and the importer "does not allege that it has experienced any difficulty importing this or similar merchandise into Washington, and we understand that such imports are ongoing," the brief said. In contrast, CBP's immigration-related claims against Eteros' employees "in no way relate to the importation of merchandise or the exemption" to the Controlled Substances Act's import ban on drug paraphernalia, the government said.
And while Eteros also claims CIT has jurisdiction to effectuate its prior ruling, the government said the trade court "does not have jurisdiction over immigration-related matters." CBP's actions relate to the Immigration and Nationality Act and not the Controlled Substances Act, the statute at issue in Eteros' prior case, the brief said.