Ortega v. United States Customs & Border Prot.
| Decision Date | 23 February 2023 |
| Docket Number | Civil Action 21-11250-FDS |
| Parties | NEISA ORTEGA and N.Z., by her next friend NEISA ORTEGA, Plaintiffs, v. UNITED STATES CUSTOMS AND BORDER PROTECTION; LARISSA SYDOR; COLLEEN DOWNEY; MARY DAVISON; JESSICA CROALL; KIMBERLY CARROLL; IGNACIO TAURONI; CBP OFFICERS DOES 3-7, 8, 12-13; BRETT SWEET; CARRIE ACOSTA; DANIEL OUELLETTE; CBP COMMISSIONER CHRIS MAGNUS, in his official capacity; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; DHS SECRETARY ALEJANDRO MAYORKAS, in his official capacity; and THE UNITED STATES OF AMERICA, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS
This case arises out of allegedly unlawful searches and seizures performed by United States Customs and Border Protection (“CBP”) agents at Boston Logan International Airport. Plaintiff Neisa Ortega and her minor daughter, N.Z have brought suit against CBP, certain CBP officers, CBP Commissioner Chris Magnus, the U.S. Department of Homeland Security (“DHS”), DHS Secretary Alejandro Mayorkas, and the United States, asserting violations of the Fourth and Fifth Amendments and various state-law claims under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq. The complaint asserts claims both against law enforcement officers in their individual capacities and against government agencies and officers in their official capacities. It seeks money damages as well as injunctive and declaratory relief.
On July 14, 2022, the Court granted defendants' motion to dismiss Counts 17 and 22 and Counts 1, 2, 6, and 7 to the extent that they sought money damages. Plaintiffs then filed, with leave of court, an amended complaint.[1] The individual officer defendants (Larissa Sydor, Colleen Downey, Mary Davison, Jessica Croall Kimberly Carroll, Ignacio Tauroni, Brett Sweet, Carrie Acosta, and Daniel Ouellette) have now moved to dismiss all claims against them on the ground that they fail to state a claim upon which relief can be granted.
The first question is whether the complaint states a claim for money damages against the officers in their individual capacities. In substance, defendants contend that under the Supreme Court's decision in Egbert v. Boule, 142 S.Ct. 1793 (2022), there is no implied cause of action against federal agents under the Fourth and Fifth Amendments arising out of searches or seizures occurring at the border. As to that issue, the Court agrees.
Plaintiff's claims against the individual officers fall into a gap in private civil-rights enforcement that Congress has (thus far, at least) declined or neglected to fill. Claims against state and local law enforcement officers seeking money damages for violations of constitutional rights may be brought under 42 U.S.C. § 1983. There is, however, no comparable statute applicable to constitutional claims against federal officers.
In 1971, the Supreme Court created such a cause of action in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Over the last four decades, however, the Supreme Court has grown increasingly uncomfortable with Bivens and its progeny, reasoning that the creation of new causes of action is properly a task for Congress, not the judiciary. As of this writing, Bivens has not yet been overruled, but it has been substantially narrowed to a small category of cases- indeed almost to the vanishing point. Congress has not, however, enacted new legislation in response to those developments.
The complaint here, in part, seeks money damages against CBP officers arising out of allegedly unlawful searches and seizures on two individuals entering the United States at an international airport. To the extent that the damages claims are asserted against the officers in their individual capacities, they are clearly foreclosed by the Supreme Court's decision in Egbert.
The next question is whether the complaint states a claim for money damages against those officers acting in their official capacities. Those claims are clearly barred by sovereign immunity.
What remains are the claims for declaratory and injunctive relief. Defendants did not address those issues in its motion to dismiss, and the Court is reluctant to do so here without the benefit of full briefing, and perhaps the development of an evidentiary record. Accordingly, and for the following reasons, the motion to dismiss will be granted in part and denied in part.
The following facts are set forth as alleged in the amended complaint.
Neisa Ortega is a 45-year-old lawful permanent resident of the United States who resides in Massachusetts. (Am. Compl. ¶ 8). N.Z. is Ortega's minor daughter and a United States citizen who resides with her mother in Massachusetts. (Id. ¶ 9).
Customs and Border Protection (“CBP”) is a federal agency within the Department of Homeland Security that controls United States ports of entry, including Boston Logan International Airport. (Id. ¶ 10).
Chris Magnus is the Commissioner for CBP. (Id. ¶ 24). Alejandro Mayorkas is the Secretary of DHS. (Id. ¶ 26).
Larissa Sydor, Colleen Downey, Brett Sweet, Carrie Acosta, Jessica Croall, Mary Davidson, Kimberly Carroll, Ignacio Tauroni, and Daniel Ouellette were CBP officers during the events described in the complaint. (Id. ¶¶ 11, 12, 14, 15, 16, 17, 19, 20, 21).
The complaint names various “Doe” defendants, all of whom are CBP Officers and Supervisory CBP Officers who were working at Logan Airport at the time of the alleged incidents. (Id. ¶¶ 13-23). They either allegedly participated in the separation, detention, and questioning of Ortega and N.Z., conducted body cavity and strip searches of Ortega, or supervised those acts. (Id.).
On April 27, 2019, Ortega and N.Z. flew into Logan Airport from the Dominican Republic, where they had been visiting family. (Id. ¶¶ 46). According to the complaint, they were not carrying illegal drugs or engaging in criminal activity of any kind. (Id. ¶ 47). Upon their arrival that morning, CBP officers approached them and led them into a separate room for secondary inspection. (Id. ¶¶ 48-50). The officers began opening and inspecting the contents of their suitcases, but the search revealed no evidence of any illegal activity or substances. (Id. ¶¶ 52-55). The complaint alleges that the officers then seized their cell phones and passports. (Id. ¶ 56). The officers allegedly demanded their cell phone passwords and searched through their phones, including private text messages. (Id. ¶ 57).
After the baggage and cell phone search was completed, two officers (Sydor and Downey) directed Ortega to a smaller, adjoining room, leaving N.Z. behind. (Id. ¶ 61). According to the complaint, Ortega was then subjected to a strip search, followed by a visual cavity search of her vaginal and anal areas. (Id. ¶¶ 70, 72, 79). CBP Officer Sydor allegedly performed two vaginal cavity searches, telling Ortega that because she kept looking back and “interrupting” the search, the entire search process had to be repeated. (Id. ¶¶ 85-86). The searches revealed no evidence of any illegal activity or substances. (Id. ¶¶ 84, 91). She was thereafter interrogated by approximately seven CBP officers. (Id. ¶ 98-99). According to the complaint, after three to four hours of confinement, she was released and reunited with N.Z. (Id. ¶¶ 100-01).
On September 8, 2019, Ortega and a friend again flew into Logan Airport from the Dominican Republic, where they had been visiting family. (Id. ¶ 103). According to the amended complaint, Ortega was not carrying illegal drugs or engaging in criminal activity of any kind. (Id. ¶ 104). Upon arrival, she was again approached by multiple CBP officers and subjected to a secondary inspection. (Id. ¶¶ 105-16). She was questioned by multiple officers, who then searched her and her belongings. (Id. ¶¶ 110-11). The searches revealed no evidence of any illegal activity or substances. (Id. ¶¶ 112, 115). The complaint alleges that after several hours of confinement, she was released. (Id. ¶ 116).
On March 16, 2020, Ortega again flew into Logan Airport from the Dominican Republic, where she had been visiting family. (Id. ¶ 118). According to the complaint, she was not carrying illegal drugs or engaging in criminal activity of any kind. (Id. ¶ 119). CBP officers escorted her to a separate room for secondary inspection and searched her luggage, again finding nothing. (Id. ¶¶ 120-22). She was subsequently released. (Id. ¶ 122).
On August 20, 2020, Ortega and N.Z. again flew into Logan Airport from the Dominican Republic, where they had been visiting family. (Id. ¶ 124). According to the amended complaint, they were not carrying illegal drugs or engaging in criminal activity of any kind. (Id. ¶ 125). Almost immediately after deplaning, CBP officers approached them and led them into a separate room for secondary inspection. (Id. ¶¶ 126-27). Ortega was then separated from N.Z., who was left sitting alone near the baggage-claim area. (Id. ¶¶ 128-29). Officers searched their suitcases, which revealed nothing illicit. (Id. ¶ 134). She was allegedly ordered into a smaller room and began to cry, asking multiple officers why this kept happening to her. (Id. ¶¶ 138-39). The complaint alleges that she was thereafter subjected to a strip search; it further alleges that the door was left open and male CBP officers were watching from the adjoining room. (Id. ¶¶ 143-44). Sydor then allegedly performed a vaginal cavity search, again with the door open. (Id. ¶¶ 152). According to the complaint, after that search revealed nothing, she waited approximately 30 minutes before...
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