Serrano v. Customs & Border Patrol

• Decision Date: 16 September 2020
• Docket Number: No. 18-50977,18-50977
• Citation: 975 F.3d 488
• Parties: Gerardo SERRANO, Plaintiff—Appellant, v. CUSTOMS AND BORDER PATROL, U.S. CUSTOMS AND BORDER PROTECTION; United States of America; John Doe 1-X; Juan Espinoza ; Kevin McAleenan, Defendants—Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

975 F.3d 488

Gerardo SERRANO, Plaintiff—Appellant,

v.CUSTOMS AND BORDER PATROL, U.S. CUSTOMS AND BORDER PROTECTION; United States of America; John Doe 1-X; Juan Espinoza ; Kevin McAleenan, Defendants—Appellees.

No. 18-50977

United States Court of Appeals, Fifth Circuit.

FILED September 16, 2020

Anya Bidwell, Attorney, Institute for Justice, Arlington, VA, for Plaintiff-Appellant.

Noah Mariano Schottenstein, DLA Piper, L.L.P. (US), Dallas, TX, Joshua Paul Waldman, Esq., Attorney, U.S. Department of Justice, Civil Rights Division, Washington, DC, H. Thomas Byron, III, Charles Wylie Scarborough, U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC, for Defendants-Appellees.

Robert Abraham Braun, Cohen Milstein Sellers & Toll, P.L.L.C., Washington, DC, for Amici Curiae Law Professor James E. Pfander, Law Professor Alexander A. Reinert, Law Professor Joanna C. Schwartz, Law Professor Stephen I. Vladeck.

Cynthia Eva Hujar Orr, Goldstein & Orr, P.L.L.C., San Antonio, TX, for Amici Curiae National Association of Criminal Defense Lawyers, Due Process Institute.

Clark McAdams Neily, III, Cato Institute, Washington, DC, Cynthia Eva Hujar Orr, Goldstein & Orr, P.L.L.C., San Antonio, TX, for Amicus Curiae Cato Institute.

Mahesha P. Subbaraman, Attorney, Subbaraman, P.L.L.C., Minneapolis, MN, for Amicus Curiae Americans for Forfeiture Reform.

Before Clement, Higginson, and Engelhardt, Circuit Judges.

Per Curiam:

Gerardo Serrano filed suit against the United States Customs and Border Protection (CBP) and related parties, alleging constitutional violations after his truck and its contents were seized at the United States-Mexico border. Serrano sought the return of his property pursuant to Federal Rule of Criminal Procedure 41(g), as well as damages under Bivens v. Six Unknown Named Agents , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), alleging violations of his Fourth and Fifth Amendment rights. Additionally, Serrano asserted a purported class-wide due process claim against the United States, CBP, and the CBP Commissioner, seeking declaratory and injunctive relief, directing CBP to provide prompt post-seizure hearings when seizing vehicles for civil forfeiture. The district court granted defendants’ motions to dismiss and denied as moot Serrano's motion to certify the class.

On appeal, Serrano contends that the district court erred in dismissing his complaint and should be reversed for three reasons: Serrano argues (1) he properly stated a class claim that defendants must provide prompt, post-seizure hearings when they take property for civil forfeiture based on Mathews v. Eldridge , 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ; (2) he properly stated a class claim that it is unconstitutional to condition a forfeiture hearing on the property owner posting a bond; and (3) he claims he has a cause of action for damages under Bivens because his claims do not arise in a new context, nor are there factors counselling against allowing his damages claims to proceed. For the reasons stated herein, we AFFIRM the judgment of the district court.¹

I.

On September 21, 2015, Gerardo Serrano, a U.S. citizen and resident of Tyner, Kentucky, was driving his 2014 Ford F-250 pickup truck to Mexico to meet with his cousin when he was stopped at the Eagle Pass, Texas, Port of Entry.² While still in the United States, Serrano began to take pictures of the border crossing with his cell phone.

Two CBP agents objected to Serrano photographing the border facility and, after stopping his truck, physically removed him from it, took possession of his phone, and repeatedly demanded the password to unlock his phone. Invoking his constitutional rights, Serrano refused to provide the password to his phone. The agents searched his vehicle, finding a .380 caliber magazine and five .380 caliber bullets in the truck's center console.³

The agents handcuffed Serrano and detained him for several hours, consistently attempting to obtain the password for his phone without success. Serrano explained that he was not aware that the bullets and magazine were in the truck. As he had not yet crossed into Mexico, Serrano offered to turn around and leave the border facility or leave the magazine and low-caliber bullets at the border facility. After being detained for about three hours, Serrano was released, but CBP agents seized his vehicle and its contents, including the magazine and the bullets. Serrano left the detention facility on foot.

On October 1, 2015, CBP mailed Serrano a notice of seizure, informing him that the truck, magazine, and bullets were seized and subject to forfeiture because there was probable cause to believe that Serrano had attempted to export "munitions of war" from the United States.⁴ The notice advised Serrano of the options that were available to him concerning the seizure: (1) file a remission petition; (2) submit an "offer in compromise" and include a check of the proposed settlement amount along with the offer; (3) abandon any interest in the property; (4) request court action and have his case referred to the U.S. Attorney for institution of judicial forfeiture proceedings; (5) do nothing; or (6) offer to substitute release of the seized property on payment.

If Serrano chose to have his case referred to the U.S. Attorney (option 4), the notice stated that he must submit to CBP at the address provided a claim and "cost bond in the penal sum of $5,000 or 10 percent of the value of the claimed property, whichever is less, but in no case shall the amount of the bond be less than $250.00."⁵ Under this "court action" option, the notice further advised:

If you file the claim and bond, the case will be referred promptly to the appropriate U.S. Attorney for the institution of judicial proceedings in Federal court to forfeit the seized property in accordance with 19 U.S.C. § 1608 and 19 C.F.R. § 162.47. You may then file a petition for relief with the Department of Justice pursuant to Title 28, Code of Federal Register, Part 9 (28 C.F.R. Pt. 9). Failure to submit a bond with the claim will render the request for judicial proceedings incomplete, and therefore, defective. This means that the case will NOT be referred to the appropriate U.S. Attorney.

On October 22, 2015, Serrano responded to the notice by letter, demanding the immediate return of his truck or a hearing in court. Along with the letter, he sent a check for $3,804.99 to satisfy the bond requirement. According to Serrano's bank records, CBP promptly deposited the check on or about October 30, 2015.

On four separate occasions, Serrano called defendant Juan Espinoza, a paralegal at CBP and the primary point of contact identified in the notice of seizure, to inquire about the status of his case. During one of these calls, Espinoza told Serrano that his case was taking so long because he had requested to see a judge. Espinoza also informed Serrano that he would have to wait for his case to be referred to an available Assistant United States Attorney.

On December 19, 2016, Serrano submitted a Freedom of Information Act request to CBP asking for information about the seizure and forfeiture of his truck. As of the date of the filing of the complaint, CBP had not responded. For 23 months, defendants failed to institute forfeiture proceedings and Serrano was deprived of his property without a hearing to challenge the seizure or the continued retention of his vehicle.⁶

On September 6, 2017, Serrano filed a complaint for return of property, compensatory damages, and class-wide injunctive and declaratory relief, naming as defendants the U.S. Customs and Border Protection (CBP), the United States, Kevin McAleenan⁷ in his official capacity as the Acting Commissioner of CBP, Juan Espinoza in his individual capacity, and John Doe 1-X (unidentified responsible CBP agents). Serrano sought the return of his "truck and all its contents, his magazine, five bullets, and the $3,804.99 that he posted as bond" under Federal Rule of Criminal Procedure 41(g), alleging that the seizure and continued retention of his property violated his Fourth and Fifth Amendment rights (Count I). Serrano also asserted an individual Bivens claim for damages against Espinoza and other unknown and unserved agents acting in their individual capacities for the violation of his Fourth (Count II) and Fifth (Count III) Amendment rights. Additionally, Serrano sought injunctive and declaratory relief on behalf of a putative class against CBP's policy or practice of holding seized vehicles without providing a prompt, post-seizure forfeiture hearing, in violation of the class's due-process rights (Count IV). Serrano simultaneously moved to certify a class consisting of "all U.S. Citizens whose vehicles are or will be seized by CBP for civil forfeiture and held without a post-seizure hearing."

The following month, on October 19, 2017, CBP returned Serrano's truck. However, the remainder of Serrano's property was not returned for several more months: Serrano filed a notice on February 26, 2018, notifying the court that his $3,804.99 in bond money had been returned and another notice on May 29, 2018, that his seized bullets and magazine were returned "without apology or explanation."⁸

On December 13, 2017, defendants United States, CBP, and the CBP Commissioner (Class Defendants) moved to dismiss Serrano's individual and class claims as moot and for failure to state a claim, arguing that the claims are moot because Serrano's property was returned, and, in any event, due process does not require a post-seizure hearing. Class Defendants also filed a response in opposition to the motion to certify. The same day, Espinoza filed a Rule 12(b)(6) motion to dismiss Serrano's Bivens claim, seeking dismissal because Serrano failed to allege a viable Bivens claim under existing law and contending that no Bivens claim is available in this new context.⁹ See Fed. R. Civ. P. 12(b)(6). Alternatively, Espinoza argued that he is entitled to...