The Government has its tentacles in all imports. This statement is not a criticism (there are many valid and historical justifications for exercising this jurisdiction), but merely recognizes the concrete, cold reality that importers must live with. The other reality is that government agencies are staffed by (horrors) humans who, for the most part, do a good job, but who sometimes act in a boneheaded manner that costs importers lots of money. If someone who was not operating under government authority messed with your shipments, you could probably sue them. Winning and collecting on the lawsuit are whole different matters, but you have a right to sue them. But what if CBP or FDA seizes your shipment with little justification. Can you sue?
Cue the anachronistic legal relic. The controlling doctrine has its roots in medieval English common law and is called sovereign immunity, or “the king can do no wrong.” Why our federal courts decided a long time ago to import this precept to our democracy is a tale beyond the scope of this article, but the crux is that you cannot sue the federal government without its permission. The federal government does not surrender this kind of permission easily, but it did so in 1948 when it enacted the Federal Torts Claims Act. Now you have permission to sue the US Government, but there are a slew of exceptions. For importers, the most important one is 28 USC § 2680(c) “(a)ny claim arising in respect of . . . the detention of any goods or merchandise by any officer of customs . . . or any other law-enforcement officer.” There are, of course, other things that federal agencies do to importers that go beyond detaining goods, and it may be wise to consult with the extensive case law history under the Federal Torts Claims Act and other laws, but it is safe to say that importers have not faired well when they tried to sue the federal government for improper detention of shipments.
Principal and a founding member of GRVR Attorneys.