US Supports Motion to Dismiss Suit on Alleged Retaliation of Importer for CIT Win
The U.S. filed a reply brief in support of its motion to dismiss a case from importer Eteros Technologies and three of its executives alleging retaliation against the parties for winning a customs case at the Court of International Trade. The government told the U.S. District Court for the Western District of Washington the plaintiffs "continue to conflate customs and immigration law" and failed to "plead sufficient facts to state a plausible claim" (Eteros Technologies USA v. United States, W.D. Wash. # 2:25-00181).
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Central to the dispute is Eteros' CIT case in which the trade court ruled that the company could import "drug paraphernalia" that was legal to obtain at the state level (see 2209210034). Despite the decision and a CBP HQ ruling affirming the court's treatment of its imports, the importer said CBP officers retaliated against Canadian Eteros executives.
In September, Eteros and its executives filed an amended complaint in their case after the Washington court said the company's due process claim against CBP was insufficiently pleaded (see 2509030061). In its decision, the court said it had jurisdiction to review the revocation of the Nexus membership of Aaron McKellar, Eteros' CEO, which lets pre-screened travelers accelerate their entrance into the U.S. (see 2508080055).
The court also said the case isn't mooted by CBP's vacatur of an order banning McKellar from entering the U.S. for five years. The court also kept the plaintiffs' Administrative Procedure Act claims alive, since the U.S. failed to address them. The plaintiffs amended their complaint after the ruling, adding two more executives to the case and further fleshing out the due process claims.
The U.S. then moved to dismiss the amended complaint, which the plaintiffs responded to by stating that the motion to dismiss rests on the premise that Eteros and its executives are engaged in "narcotics trafficking."
In response, the government said the reliance on customs law by the plaintiffs is "erroneous and does not overcome the fact that Eteros' executives aid or abet the proliferation of marijuana, a controlled substance illegal under federal law." The U.S. drew a hard line in its brief between customs and immigration law. "The importation of equipment under customs law is not the same as the admissibility of aliens under immigration law," the brief said.
The government added that CBP hasn't adopted a "dual policy" as alleged by the plaintiffs. Eteros claimed such a policy is being enforced, since CBP has acknowledged it's not illegal under the Controlled Substances Act for Eteros to import certain cannabis-related merchandise into Washington while at the same time not letting Eteros executives enter the U.S. for "aiding or abetting in the illicit trafficking of a controlled substance."
The U.S. said the admissibility determinations for Eteros' executives don't "implicate policy," but rather are decisions made under the Immigration and Nationality Act "based on their case-by-case individual border encounters." Eteros' CIT victory "was strictly about the importation of merchandise. The company’s business involves the subsequent use of that equipment to process a Schedule I controlled substance which remains illegal under federal law," the brief said.
The plaintiffs don't respond to the case law showing that the exemption under the Controlled Substances Act "does not affect other federal laws outside the" Controlled Substances Act, the U.S. said. In addition, the plaintiffs failed to "identify any actual policy position taken by CBP such that the Court could determine that CBP is working in some underhanded way against them," and "CBP has been entirely consistent about precluding the admission of aliens reasonably believed to be engaged in the illicit trafficking of a controlled substance," the brief said.
The government also said the plaintiffs' due process claims should be dismissed, since Eteros "has no liberty interest in having its executives admitted." Visas and Nexus memberships aren't protected property interests under the U.S. Constitution, the brief said.