Bibicheff v. Holder, 55 F. Supp. 3d 254

Background

Plaintiff Alexander Bibicheff, a U.S. citizen, was referred to CBP secondary inspection on three occasions returning from travel (Aruba 2011, Spain 2012, Mexico 2012), with searches, questioning, and short detentions; one incident involved confiscation of apples.
Plaintiff filed a DHS TRIP redress complaint; after suit was filed DHS sent letters stating it had researched and completed its review and made corrections "as appropriate."
Plaintiff alleges constitutional violations (Fourth and Fifth Amendments), APA violations, a mandamus claim to compel completion/correction of DHS TRIP, and a § 1983 claim based on being placed on a CBP "hit" list and repeatedly subjected to secondary inspection.
Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(1) (mootness/subject-matter jurisdiction) and 12(b)(6) (failure to state a claim).
The court treated the DHS TRIP completion letters as demonstrating that the agency review was completed and dismissed claims seeking to compel completion as moot.
On the merits the court held that (1) the border stops and luggage searches were routine rather than non-routine for Fourth Amendment purposes; (2) Plaintiff failed to establish a protected property interest entitling him to Fifth Amendment due process relief given the government’s strong border-security interests and applicable procedures; and (3) § 1983 does not reach federal officials absent joint action with state actors, which the complaint did not plausibly allege. The motion to dismiss was granted.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Mootness of DHS TRIP-based claims / mandamus & APA relief	DHS TRIP review incomplete; court should allow discovery and compel agency action	DHS completed its review and sent letters; thus claims to compel completion are moot	Dismissed as moot — DHS review completed and plaintiff has no live redress claim
Fourth Amendment — were border inspections "non-routine" requiring reasonable suspicion?	Repeated secondary inspections, interrogations, luggage searches, torn customs form, and cumulative detention were non-routine	Border searches and luggage inspections are routine; length and inconvenience do not convert them into non-routine intrusions	Dismissed — searches were routine; no reasonable-suspicion-based Fourth Amendment claim
Fifth Amendment due process — entitlement to correction/notice about database "hit"	Plaintiff has property/ liberty interests in travel, property, and information about database entries, so DHS TRIP procedures were inadequate	No cognizable constitutional property interest; government interest in border security outweighs additional process; statutory TRIP process satisfies redress	Dismissed — plaintiff did not plead a protected interest or inadequate process given national-security context
42 U.S.C. § 1983 liability for federal officials	§ 1983 can apply if joint action with state officials; Plaintiff points to references to multi-source data and seeks discovery	§ 1983 applies to state actors; federal officials sued in official federal capacity are not § 1983 defendants absent plausible allegations of joint state action	Dismissed — complaint fails to plausibly allege joint action with state actors; § 1983 claim not available against federal officials here

Key Cases Cited

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility pleading standard)
Ashcroft v. Iqbal, 556 U.S. 662 (further refinement of plausibility and legal/conclusory allegations)
United States v. Montoya de Hernandez, 473 U.S. 531 (border-search doctrine; routine vs. non-routine)
United States v. Flores-Montano, 541 U.S. 149 (routine border searches reasonable by virtue of occurring at border)
Tabbaa v. Chertoff, 509 F.3d 89 (Second Circuit guidance on routine vs. non-routine border searches)
Mathews v. Eldridge, 424 U.S. 319 (balance test for procedural due process)
Bd. of Regents v. Roth, 408 U.S. 564 (property interest requirement for due process)
D.C. v. Carter, 409 U.S. 418 (§ 1983 does not reach federal government actions)