Bibicheff v. Holder

• Decision Date: 23 September 2014
• Docket Number: No. 13–CV–1305 DRHGRB.,13–CV–1305 DRHGRB.
• Parties: Alexander BIBICHEFF, Plaintiff, v. Eric H. HOLDER, Jr., in his official Capacity as U.S. Attorney General; Janet Ann Napolitano, in her official capacity as Secretary of the U.S. Department of Homeland Security; David Aguilar, in his official capacity as Deputy Commissioner of the U.S. Customs and Border Protection; John T. Morton, in his official capacity as Director of the U.S. Immigration and Customs Enforcement; John S. Pistole, in his official capacity as Administrator for the Transportation Security Administration, Defendants.
• Court: U.S. District Court — Eastern District of New York

55 F.Supp.3d 254

Alexander BIBICHEFF, Plaintiff

v.Eric H. HOLDER, Jr., in his official Capacity as U.S. Attorney General; Janet Ann Napolitano, in her official capacity as Secretary of the U.S. Department of Homeland Security; David Aguilar, in his official capacity as Deputy Commissioner of the U.S. Customs and Border Protection; John T. Morton, in his official capacity as Director of the U.S. Immigration and Customs Enforcement; John S. Pistole, in his official capacity as Administrator for the Transportation Security Administration, Defendants.

No. 13–CV–1305 DRHGRB.

United States District Court, E.D. New York.

Signed Sept. 23, 2014.

Bibicheff & Associates, by: Nicole Abruzzo Hemrick, Esq., Brooklyn, NY, for the Plaintiff.

United States Department of Justice, by: Kristina Wolfe, Esq., Lily Sara Farel, Esq., Washington, D.C., United States Attorneys Office, EDNY, by: Margaret M. Kolbe, Esq., Brooklyn, NY, for the Defendants.

MEMORANDUM AND ORDER

HURLEY, Senior District Judge:

Plaintiff Alexander V. Bibicheff commenced this action against U.S. Attorney General, Eric H. Holder, Secretary of the U.S. Department of Homeland Security, Janet Ann Napolitano, Deputy Commissioner of the U.S. Customs and Border Protection, David Aguilar, Director of the U.S. Immigration and Customs Enforcement, John Morton, and Administrator for the Transportation Security Administration, John S. Pistole alleging violations of the Administrative Procedures Act (“APA”), the Fourth and Fifth Amendments of the United States Constitution, and 42 U.S.C. § 1983. Presently before the Court is Defendants' motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1) and Rule 12(b)(6). For the reasons set forth below, Defendants' motion is granted.

BACKGROUND

These facts are taken from the Complaint and are assumed to be true for the purpose of this motion. Plaintiff is a United States citizen who travels internationally with his family for vacation an average of three times a year. On August 27, 2011, Plaintiff was traveling back to the United States after a one week vacation in Aruba. At the Customs and Border Protection (“CBP”) preclearance area in the Aruba International airport, Plaintiff was handed a Form 6059B Declaration Form, and after having read a question about whether he was bringing any fruit with him, Plaintiff disclosed to a CBP officer that he had two apples and two bananas in his possession, which he had intended to eat on the airplane. Plaintiff asked if he could dispose of the fruit prior to passing through the inspection area, but the CBP officer told him that he would have to show the fruit to the officers at the next clearance area. At the next clearance area, Plaintiff handed the fruit to the CBP officer in charge. The officer confiscated the apples, but allowed Plaintiff to take the bananas with him. Plaintiff alleges that the officer “appeared to make a notation on the computer.” Plaintiff did not receive any citations or fines and ultimately boarded the airplane and flew back to the United States. After the trip, since Plaintiff's passport was set to expire in September of 2012, Plaintiff applied for a new U.S. passport, which the U.S. Department of State issued to him on May 20, 2012.

On August 3, 2012, Plaintiff returned to the United States after a vacation in Spain. Upon landing in JFK International Airport, a CBP officer at the primary inspection area asked Plaintiff if he ever lost his passport. Plaintiff responded that he never lost his old passport or his newly issued passport. The CBP officer then escorted Plaintiff to the secondary inspection area, where Plaintiff was detained for approximately 30–45 minutes. During the secondary inspection, the CBP officer asked Plaintiff whether he had any fruit with him, and Plaintiff answered that he did not. Plaintiff inquired as to why he was referred to secondary inspection, but he was not given an answer.

On September 29, 2012, Plaintiff and his wife returned to the United States after a vacation in Mexico, and Plaintiff was again referred to secondary inspection at JFK International Airport. Prior to being sent for secondary inspection a CBP officer tore up the Form 6059B that Plaintiff's wife had filled out and instructed Plaintiff to fill out a new one. Plaintiff and his wife were detained for approximately three hours, during which CBP officers questioned Plaintiff and searched his and his wife's luggage. Again, Plaintiff inquired as to why he had been referred to secondary inspection, but he was not given an answer.

On or about December 14, 2012, Plaintiff filed a complaint using the Department of Homeland Security Traveler Redress Inquiry Identity Program (“DHS TRIP”) regarding his recent experiences.¹ Thereafter, on February 23, 2013, Plaintiff and his family returned to the United States after a one week vacation in Mexico. After questioning Plaintiff about his occupation and how much cash his family had, a CBP officer brought Plaintiff and his family to secondary inspection. Plaintiff requested that he speak to a supervisor regarding his referral to secondary inspection and informed the supervisor that he already made a complaint through DHS TRIP and provided the supervisor with his Redress Control number. The supervisor informed Plaintiff that there was a ‘hit’ against him in the CBP computer system and that Plaintiff would be stopped every single time he returned to the United States from abroad. Plaintiff and his family were detained, interrogated, and searched for approximately two hours.

Plaintiff sets forth six causes of action in the Complaint. Count I states that “[t]he continuing failure of Defendants to complete their review of Plaintiff's DHS TRIP complaint and to correct/update their system, and/or take other appropriate remedial action regarding Plaintiff's DHS TRIP complaint is subject to correction by mandamus under 28 U.S.C. § 1361.”² Count II alleges that “[t]he DHS policies violated Plaintiff's Fourth Amendment [rights] by permitting DHS to refer Plaintiff to Secondary Inspection, which includes his detention, interrogation, and search of his belongings without any reasonable suspicion.” Count III alleges that Defendants violated the APA because Defendants “failed to complete their review of Plaintiff's DHS TRIP complaint and to correct or update their system so the ‘hit’ against Plaintiff [was] removed.” Count IV alleges that Defendants violated Plaintiff's due process rights by “failing to complete their review of Plaintiff's DHS TRIP complaint and to take appropriate remedial measures” and “failing to reveal the reason for the ‘hit’ against him.” Finally, Count V asserts a claim under 42 U.S.C. § 1983 against Defendants for, inter alia, “subjecting Plaintiff to Secondary Inspection[s].”³ Plaintiff now requests that the Court “[d]eclare Defendants' acts and omissions [as] illegal, arbitrary, capricious and [an] abuse of discretion,” “[c]ompel U.S. agencies to reveal the derogatory information that is causing the ‘hit’ in the CBP computer system as Plaintiff enters the United States border,” “[c]ompel U.S. agencies to complete their investigation of Plaintiff's DHS TRIP[ ] complaint,” “[d]eclare the ‘hit’ in the CBP computer system, if caused by the fruit from [the] August 27, 2011 [incident] in Aruba, unlawful,” “[d]eclare the CBP Officer's act of tearing up Plaintiff's Form 6059B and ordering Plaintiff to fill out a new Form 6059 on behalf of his family unit unlawful,” “[e]njoin U.S. agencies from subjecting Plaintiff to Secondary Inspection,” and “[e]njoin the CBP from ordering Plaintiff to fill out the Form 6059B on behalf of [his] family unit.”

DISCUSSION

I. Defendants' Motion to Dismiss Claims Pursuant to Rule 12(b)(1)

A. Legal Standard

A case may properly be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) “when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). “In contrast to the standard for a motion to dismiss for failure to state a claim under Rule 12(b)(6), a ‘plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.’ ” Mac Pherson v. State St. Bank & Trust Co., 452 F.Supp.2d 133, 136 (E.D.N.Y.2006) (quoting Reserve Solutions Inc. v. Vernaglia, 438 F.Supp.2d 280, 286 (S.D.N.Y.2006) ), aff'd, 273 Fed.Appx. 61 (2008) ; accord Tomaino v. United States, 2010 WL 1005896, at *1 (E.D.N.Y. Mar. 16, 2010). “On a Rule 12(b)(1) motion, the court may consider matters outside the pleadings, including affidavits, documents, and testimony if necessary.” Tsanganea v. City Univ. of N.Y., 2008 WL 4054426, at *3 (S.D.N.Y. Aug. 28, 2008) (citing Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.1986) ), report and recommendation adopted, 2008 WL 4548857 (S.D.N.Y. Oct. 8, 2008).

B. Defendants' Mootness Argument

Defendants argue that “Plaintiff's claims regarding Defendants' alleged failure to complete their review of his DHS TRIP inquiry are moot and should be dismissed” because “[s]ince filing his Complaint ... Plaintiff has received a response from DHS TRIP stating that ‘DHS has researched and completed [its] review of [Plaintiff's] case.’ ” (Defs.' Mem. in Supp. at 7–8.)

Article III, Section 2 of the United States Constitution limits the jurisdiction of federal courts to “actual cases and controversies.” Jefferson v. Abrams, 747 F.2d 94, 96 (2d Cir.1984). “When the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome, the case is moot.” Id. (internal citations and quotation marks omitted). When a defendant offers all that a plaintiff could hope to recover through litigation, “there is no justification for taking the time of the court and defendant in the pursuit of minuscule individual claims which defendant has ... satisfied.” Abrams v. Interco, Inc., 719 F.2d 23, 32 (2d Cir.1983). In...