Nwaorie ex rel. Situated v. U.S. Customs & Border Prot., Civil Action H-18-1406
| Decision Date | 08 August 2019 |
| Docket Number | Civil Action H-18-1406 |
| Citation | 395 F.Supp.3d 821 |
| Parties | Anthonia NWAORIE, on Behalf of Herself and All Others Similarly Situated, Plaintiff, v. U.S. CUSTOMS AND BORDER PROTECTION, et al., Defendants. |
| Court | U.S. District Court — Southern District of Texas |
Gray H. Miller, Senior United States District Judge Pending before the court is the Magistrate Judge's Memorandum and Recommendation granting Defendants' Amended Motion to Dismiss (Dkt. 58). (Dkt. 70). Plaintiff filed objections to the Memorandum and Recommendation (Dkt. 71), to which Defendants responded. (Dkt. 72). Plaintiff also filed a reply brief (Dkt. 75).
A party may file objections to a Magistrate Judge's ruling within fourteen days of being served with a copy of a written order. Fed. R. Civ. P. 72 ; see also 28 U.S.C. § 636(b)(1)(C). The standard of review used by the district court depends on whether the Magistrate Judge ruled on a dispositive or non-dispositive motion. See Fed. R. Civ. P. 72 ; see also 28 U.S.C. § 636(b)(1)(C). District courts must determine de novo any part of the Magistrate Judge's disposition to which there is a timely objection. See Fed. R. Civ. P. 72 (b)(3).
The court has conducted a de novo review of the motion and supporting and opposing briefs, Memorandum and Recommendation, Plaintiff's objections and Defendants' response to the objections and Plaintiff's reply. The court concludes that Plaintiff's individual claim for interest on the seized property is barred by sovereign immunity, and her "screening list" cause of action fails to raise a due process or equal protection claim because she failed to allege facts that would support a claim that she had a right to be free from a border search or that either the 2017 or 2018 border searches of her luggage were arbitrary, capricious or contrary to law or based on a protected characteristic. Finally, the court finds that Plaintiff has failed to allege viable class claims arising from the United States' use of a hold-harmless agreement and the United States' alleged violation of the "prompt-release" requirement of the Civil Asset Forfeiture Reform Act for the reasons stated in the Memorandum and Recommendation.
Plaintiff's objections are OVERRULED . The Memorandum and Recommendation is ADOPTED IN FULL .
Pending before the court1 is Defendants' Amended Motion to Dismiss (Doc. 58). The court has considered the motion, the response, all other relevant filings, and the applicable law. For the reasons set forth below, it is RECOMMENDED that Defendants' Amended Motion to Dismiss be GRANTED .
Plaintiff filed this lawsuit alleging that the U.S. Customs and Border Protection ("CBP") violated the Civil Asset Forfeiture Reform Act ("CAFRA"), 18 U.S.C. § 983, and the U.S. Constitution in connection with a seizure of currency on October 31, 2017.2
A. Factual Background
On October 31, 2017, Plaintiff went to Houston's George Bush Intercontinental Airport planning to fly to Nigeria to open a medical clinic.3 Plaintiff brought $41,377 in cash with her, carrying approximately $4,000 in her purse and the rest in her carry-on luggage.4
Plaintiff was about to board her flight when she was stopped by CBP officers on the jetway and questioned.5 Plaintiff was asked how much cash she was carrying.6 Plaintiff claims that she thought the officers were asking about the amount of cash in her purse and she responded that she had $4,000.7 Plaintiff was asked to fill out a currency declaration form and again reported that she was carrying $4,000.8 The CBP officers then searched Plaintiff's carry-on luggage and found the remainder of the $41,377.9 The officers seized the cash pursuant to 31 U.S.C. § 5317, which permits the seizure and civil forfeiture of funds traceable to a failure to file a currency transaction report.10
When Plaintiff returned to the United States, she was directed to a secondary border inspection and was subjected to "additional, particularly intrusive and invasive screening."11 During this screening, "CBP officers ransacked her luggage and emptied everything out of her bags."12 One officer slit open the bottom of Plaintiff's leather purse. Another officer told Plaintiff that they were aware her money had been seized and that CBP would "follow her wherever she goes and subject her to this invasive treatment every time she travels internationally."13 Plaintiff complains that she will be subjected to additional screenings every time she travels internationally because she has been placed on a "screening list."14
On November 6, 2017, CBP sent Plaintiff a notice of seizure pursuant to CAFRA.15 The notice gave her until December 13, 2017, to: (1) request an administrative review of the seizure; (2) request a referral that a civil judicial forfeiture proceeding be filed; (3) make an offer in compromise; (4) offer substitute release of the seized property; or (5) abandon the property.16 The notice cautioned that, because currency was seized, Plaintiff must be demonstrate that the currency was derived from legal sources and that its intended use was legitimate.17
On December 12, 2017, Plaintiff elected a referral for a judicial forfeiture proceeding under CAFRA and filed a CAFRA claim verifying her ownership interest in the seized cash.18 According to Plaintiff, CAFRA required the United States to initiate a judicial forfeiture within ninety days of Plaintiff's filing a claim.19 The United States failed to timely file a judicial forfeiture action.20
On April 4, 2018, CBP sent a letter to Plaintiff informing her that she could either sign and return the enclosed Hold Harmless Agreement ("HHA") within thirty days to obtain the return of her currency or CBP would initiate administrative forfeiture proceedings.21 The letter stated that if Plaintiff signed the HHA, a refund check would be mailed to her within eight to ten weeks.22 The enclosed HHA provided that Plaintiff waived any claim to attorney's fees, interest, or any other relief related to the seizure of the property and that Plaintiff also agreed to hold harmless the United States and its employees from any lawsuits or claims arising from the return of the property to Plaintiff.23 Plaintiff chose to not sign the HHA, and, on May 3, 2018, she initiated this lawsuit on behalf of herself and other similarly situated persons. The United States was served with this suit between May 10 and May 15, 2018.24
On May 3, 2018, without a signed HHA, the government initiated a refund of the $41,337 to Plaintiff.25 The check was issued on May 22, 2018.26
On October 23, 2018, Plaintiff traveled to Nigeria, and her outbound luggage was searched by "unknown government agents.27
In the complaint, Plaintiff sought return of the $41,377 alleging that it was seized and retained in violation of 18 U.S.C. § 983(a)(3)(B). Plaintiff also brought claims directly under the Fifth Amendment for her alleged placement on a "screening list" that subjected her to more scrutiny at the United States border.
Plaintiff also requested that a class action be certified on behalf of herself and others who were injured by CBP's practice to condition the return of seized property on the execution of an HHA. In the class action, Plaintiff sought injunctive and declaratory relief that the HHA is ultra vires of CAFRA and 28 C.F.R. § 8.13 and therefore void and unenforceable. Plaintiff also sought class-wide injunctive and declaratory relief that the HHA violated the due process clause of the Fifth Amendment because it placed a condition on the return of one's property.
Pending before the court is Defendants' amended motion to dismiss. In the motion, Defendants argue that the court lacks subject matter jurisdiction over certain claims because they are moot or barred by sovereign immunity. Defendants also contend that other claims are not redressable under the Administrative Procedures Act ("APA"). As to the class claims, Defendants contend that they are not justiciable under the APA, the Declaratory Judgment Act or the United States Constitution and that Plaintiff is not an appropriate class representative because her individual claims have been resolved.
Pursuant to Rule 12(b)(1), dismissal of an action is appropriate whenever the court lacks subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1), 12(h)(3). The party asserting jurisdiction bears the burden of proof to show that jurisdiction does exist. Gilbert v. Donahoe, 751 F.3d 303, 307 (5th Cir. 2014) (citing Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) ).
The court may decide a motion to dismiss for lack of jurisdiction on any of three bases: "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Ramming, 281 F.3d at 161 (citing Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996) ). The court, in determining whether it is properly vested with subject matter jurisdiction, is "free to weigh the evidence and resolve factual disputes in order to satisfy itself that it has the power to hear the case." Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005) (quoting Montez v. Dep't of Navy, 392 F.3d 147, 149 (5th Cir. 2004) ).
Rule 12(b)(6) allows dismissal of an action whenever the complaint, on its face, fails to state a claim upon which relief can be granted. When considering a motion to dismiss, the court should construe the allegations in the complaint favorably to the pleader and accept as true all well-pleaded facts. Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 803 n.44 (5th Cir. 2011) (quoting True v. Robles, 571 F.3d 412, 417 (5th Cir. 2009) ). The court may also consider, in addition to the complaint itself, ...
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