Anibowei v. Barr, Civil Action No. 3:16-CV-3495-D
| Decision Date | 14 February 2019 |
| Docket Number | Civil Action No. 3:16-CV-3495-D |
| Parties | GEORGE ANIBOWEI, Plaintiff, v. WILLIAM P. BARR, et al., Defendants. |
| Court | U.S. District Court — Northern District of Texas |
In this civil rights action arising from alleged violations of the First and Fourth Amendments, the court referred to the United States Magistrate Judge the question whether plaintiff George Anibowei's ("Anibowei's") claims for prospective injunctive relief fall within the direct officer exception to the doctrine of sovereign immunity. The magistrate judge answered that they do not, and she recommended that the claims be dismissed with prejudice for lack of subject matter jurisdiction. After making an independent review of the record, the court agrees that the claims should be dismissed—but on a different rationale and with leave to replead.
Anibowei is a U.S. citizen and licensed attorney who maintains an office in Dallas.1Before immigrating to the United States, Anibowei was licensed to practice law in Nigeria. He was admitted to the Texas Bar in 2002.
From 2012 until 2015, Anibowei was a member of the Global Entry Trusted Traveler Program ("Global Entry") administered by U.S. Customs and Border Protection ("CBP"). In 2015 CBP revoked Anibowei's membership in the program for the stated reason that he "does not meet the program eligibility requirements." 1st Am. Compl. ¶ 18. Anibowei alleges that he does not know why he is now ineligible for Global Entry; he has not been convicted of any crime, he has no criminal charges pending against him, and he did not provide false or incomplete information on his application to the program. Both before and after Anibowei's Global Entry membership was revoked, CBP agents would routinely refer Anibowei for secondary inspection when he passed through customs at U.S. airports. On numerous occasions, CBP agents have detained Anibowei, questioned him, and searched his personal belongings. Anibowei suspects that the unusual rigor with which CBP screens him may indicate his inclusion on a "watch list" maintained by the Terrorist Screening Center ("TSC"), a component of the Federal Bureau of Investigation ("FBI").
The present lawsuit arises from two screening incidents in particular, both of which took place at the Dallas/Fort Worth International Airport ("DFW Airport"). The first occurred in October 2016, when Anibowei was returning from a short vacation to Canada. He had already been subjected to secondary inspection by Canadian border authorities whenentering and exiting Canada, purportedly at the request of CBP. After Anibowei's return flight arrived at DFW Airport—while passengers were preparing to disembark—the flight crew told the passengers to return to their assigned seats, because officers from the Department of Homeland Security ("DHS") were there to remove a passenger. Anibowei was the passenger whom the officers removed. The officers, who were CBP agents,2 led Anibowei to an interrogation room and instructed him to place the contents of his pockets, including his cell phone, on a table. One of the agents then took Anibowei's cell phone out of the room. When Anibowei asked why, the agents told him that they had detained his cell phone for "examination and copying." Id. ¶ 35. The agents questioned Anibowei for roughly two hours about his background, his personal life, and the purpose of his trip to Canada. At no point did the agents suggest that Anibowei had broken the law or that he had any illegal material on his cell phone. After questioning him, the agents returned his cell phone and again told him that it had been copied for examination.
In February 2017, after Anibowei filed the instant lawsuit, CBP agents again detained him for questioning as he passed through customs at DFW Airport. This time, Anibowei was returning from a trip to Nigeria. Although the agents did not copy his cell phone, they performed a manual search of his emails and text messages. They also questioned Anibowei for nearly three hours. Once again, they never suggested that Anibowei had committed a crime or that his cell phone contained any illegal content. Anibowei alleges that his cellphone contains personal and private information as well as confidential and privileged materials relating to his work on behalf of clients.
Anibowei asserts that the two searches of his cell phone were conducted in accordance with CBP and Immigration and Customs Enforcement ("ICE") policies. See U.S. Customs and Border Protection, CBP Directive No. 3340-049, Border Search of Electronic Devices Containing Information (2009); U.S. Immigration and Customs Enforcement, ICE Directive No. 7-6.1, Border Searches of Electronic Devices (2009). These policies permit government agents to search individuals' electronic devices at the border with or without individualized suspicion. See CBP Directive No. 3340-049 § 5.1.2; ICE Directive No. 7-6.1 § 6.1. Anibowei contends that the policies also permit CBP and ICE to retain any information relevant to immigration, customs, or other law enforcement matters, and to share that information with other agencies. He alleges on information and belief that the named defendants have retained and shared data copied from his cell phone.
Anibowei's first amended complaint asserts that the detention and search of his cell phone—and defendants' continued retention and sharing of his electronic data—violate the First and Fourth Amendments to the U.S. Constitution. He seeks relief in the form of a declaratory judgment that the relevant acts were unconstitutional; an injunction ordering defendants to return or destroy all information they copied from his cell phone; and an injunction directing defendants to disclose whether Anibowei's data were shared with any other entities or individuals, and, if so, in what form and with whom. He sues a number ofhigh-ranking executive officers in their official capacities only. Four of the named defendants are part of DHS: Secretary of Homeland Security Kristjen Nielsen; CBP Commissioner Kevin McAleenan; Transportation Security Administration Administrator David Pekoske; and ICE Acting Director Ronald Vitiello. The remaining four defendants are not associated with DHS, but instead are included in the lawsuit because of their connection with the TSC watch list: Attorney General William P. Barr; FBI Director Christopher Wray; TSC Director Charles Kable, IV; and National Counterterrorism Center Director Joseph Maguire.3
The government filed a motion to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). It contended that Anibowei lacked constitutional and prudential standing to sue for past violations of his rights; that the searches of Anibowei's cell phone did not violate the Constitution; and that there was no connection between five of the named defendants and the allegedly unconstitutional search. The court referred the motion to the United States Magistrate Judge for a report and recommendation. The magistrate judge concluded that Anibowei was experiencing an ongoing injury due to defendants' continued retention of his electronic data, and therefore had standing. She also recommended that defendants' Rule 12(b)(6) motion be granted in part because Anibowei failed to state a claim under Bivens v.Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Finally, the magistrate judge recommended sua sponte that Anibowei's Administrative Procedure Act ("APA") claim, to the extent he attempted to plead such a claim, be dismissed because the first amended complaint did not allege any final agency action. Following de novo review, the court adopted the magistrate judge's conclusion as to standing, but re-referred the motion to the magistrate judge so that she could consider an additional question: whether Anibowei can maintain his claims for injunctive relief under the direct officer exception to the doctrine of sovereign immunity. See Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689-91 (1949).
Following the re-referral, the magistrate judge issued the supplemental findings, conclusions, and recommendation that are now before the court. She concludes that the first amended complaint does not fall within the direct officer exception for two reasons. First, Anibowei does not specifically allege that the named defendants themselves took any action pursuant to an unconstitutional policy, or that they acted beyond their statutory powers. This finding can be understood as having two components: that Anibowei does not allege what, if any, actions the named defendants undertook themselves; and that Anibowei fails to allege that any particular policy or law is unconstitutional. Second, the magistrate judge noted that, to grant Anibowei the relief he requests, the court would have to issue an affirmative injunction. Such relief is supposedly precluded by footnote 11 of the Larson opinion. SeeLarson, 337 U.S. at 691 n.11.4 Therefore, the magistrate judge recommends that the court dismiss Anibowei's injunctive-relief claims with prejudice for lack of subject matter jurisdiction. Anibowei objects to the magistrate judge's supplemental recommendation, and the government responds in support of it. The court now considers the magistrate judge's supplemental recommendation and her findings as to Anibowei's Bivens and APA claims, which the court has not yet adopted.
The court first considers whether sovereign immunity deprives it of subject matter jurisdiction.
"A federal court has no subject matter jurisdiction over claims against the United States unless the government waives its sovereign immunity and consents to suit." Danos v. Jones, 652 F.3d 577, 581 (5th Cir. 2011) (citing FDIC v. Meyer, 510 U.S. 471, 475 (1994)). Generally, "claims against officers of the United States in their official capacities are actually claims against the sovereign," and are therefore barred by sovereign immunity. Id. (citing S. So...
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