Serrano v. Customs & Border PatrolSerrano v. Customs & Border Patrol
- Reporters:
- ,
- Before:
- Clement, Higginson, Engelhardt (per curiam)
Gerardo Serrano filed suit against the United States Customs and Border Protection (CBP) and related parties, alleging constitutional violations after his truck and its contents were seized at the United States-Mexico border. Serrano sought the return of his property pursuant to
On appeal, Serrano contends that the district court erred in dismissing his complaint and should be reversed for three reasons: Serrano argues (1) he properly stated a class claim that defendants must provide prompt, post-seizure hearings when they take property for civil forfeiture based on Mathews v. Eldridge, 424 U.S. 319 (1976); (2) he properly stated a class claim that it is unconstitutional to condition a forfeiture hearing on the property owner posting a bond; and (3) he claims he has a cause of action for damages under Bivens because his claims do not arise in a new context, nor are there factors counselling against allowing his damages claims to proceed. For the reasons stated herein, we AFFIRM the judgment of the district court.1
I.
On September 21, 2015, Gerardo Serrano, a U.S. citizen and resident of Tyner, Kentucky, was driving his 2014 Ford F-250 pickup truck to Mexico to meet with his cousin when he was stopped at the Eagle Pass, Texas, Port
Two CBP agents objected to Serrano photographing the border facility and, after stopping his truck, physically removed him from it, took possession of his phone, and repeatedly demanded the password to unlock his phone. Invoking his constitutional rights, Serrano refused to provide the password to his phone. The agents searched his vehicle, finding a .380 caliber magazine and five .380 caliber bullets in the truck‘s center console.3
The agents handcuffed Serrano and detained him for several hours, consistently attempting to obtain the password for his phone without success. Serrano explained that he was not aware that the bullets and magazine were in the truck. As he had not yet crossed into Mexico, Serrano offered to turn around and leave the border facility or leave the magazine and low-caliber bullets at the border facility. After being detained for about three hours, Serrano was released, but CBP agents seized his vehicle and its contents, including the magazine and the bullets. Serrano left the detention facility on foot.
On October 1, 2015, CBP mailed Serrano a notice of seizure, informing him that the truck, magazine, and bullets were seized and subject to forfeiture because there was probable cause to believe that Serrano had attempted to export “munitions of war” from the United States.4 The notice advised
If Serrano chose to have his case referred to the U.S. Attorney (option 4), the notice stated that he must submit to CBP at the address provided a claim and “cost bond in the penal sum of $5,000 or 10 percent of the value of the claimed property, whichever is less, but in no case shall the amount of the bond be less than $250.00.”5 Under this “court action” option, the notice further advised:
If you file the claim and bond, the case will be referred promptly to the appropriate U.S. Attorney for the institution of judicial proceedings in Federal court to forfeit the seized property in accordance with
19 U.S.C. § 1608 and19 C.F.R. § 162.47 . You may then file a petition for relief with the Department of Justice pursuant to Title 28, Code of Federal Register, Part 9 (28 C.F.R. Pt. 9 ). Failure to submit a bond with the claim will render the request for judicial proceedings incomplete, and therefore, defective. This means that the case will NOT be referred to the appropriate U.S. Attorney.
On four separate occasions, Serrano called defendant Juan Espinoza, a paralegal at CBP and the primary point of contact identified in the notice of seizure, to inquire about the status of his case. During one of these calls, Espinoza told Serrano that his case was taking so long because he had requested to see a judge. Espinoza also informed Serrano that he would have to wait for his case to be referred to an available Assistant United States Attorney.
On December 19, 2016, Serrano submitted a Freedom of Information Act request to CBP asking for information about the seizure and forfeiture of his truck. As of the date of the filing of the complaint, CBP had not responded. For 23 months, defendants failed to institute forfeiture proceedings and Serrano was deprived of his property without a hearing to challenge the seizure or the continued retention of his vehicle.6
On September 6, 2017, Serrano filed a complaint for return of property, compensatory damages, and class-wide injunctive and declaratory relief, naming as defendants the U.S. Customs and Border Protection (CBP), the United States, Kevin McAleenan7 in his official capacity as the Acting Commissioner of CBP, Juan Espinoza in his individual capacity, and John
The following month, on October 19, 2017, CBP returned Serrano‘s truck. However, the remainder of Serrano‘s property was not returned for several more months: Serrano filed a notice on February 26, 2018, notifying the court that his $3,804.99 in bond money had been returned and another notice on May 29, 2018, that his seized bullets and magazine were returned “without apology or explanation.”8
On December 13, 2017, defendants United States, CBP, and the CBP Commissioner (Class Defendants) moved to dismiss Serrano‘s individual and class claims as moot and for failure to state a claim, arguing that the claims are moot because Serrano‘s property was returned, and, in any event, due process does not require a post-seizure hearing. Class Defendants also filed a response in opposition to the motion to certify. The same day, Espinoza filed a Rule 12(b)(6) motion to dismiss Serrano‘s Bivens claim,
Serrano conceded that the return of his property mooted his individual claim for return of property (Count I), but otherwise opposed both motions to dismiss.
On July 23, 2018, the magistrate judge issued a report and recommendation. The magistrate judge concluded that Serrano‘s remaining claims were not moot, but recommended dismissal because Serrano failed to state a claim upon which relief could be granted. Serrano filed written objections to the report and recommendation.
On September 28, 2018, after de novo review of the report‘s factual findings and legal conclusions, the district court overruled Serrano‘s objections and adopted the magistrate judge‘s recommendations based on reasons it provided in its order. The district court dismissed Serrano‘s class-wide and individual claims under
Additionally, the district court dismissed Serrano‘s Bivens claims. The district court concluded that both of Serrano‘s claims (under the Fourth
Serrano timely appealed. On appeal, Serrano contends that the district court erred in dismissing his complaint and should be reversed for three reasons: (1) he “properly stated a class claim that Defendants must provide prompt, post-seizure hearings when they take property for civil forfeiture” based on Mathews, 424 U.S. at 319; (2) he “properly stated a class claim that it is unconstitutional to condition a forfeiture hearing on the property owner posting a bond;” and (3) he has a cause of action for damages under Bivens, 403 U.S. at 388, because his claims do not arise in a new context, nor are there factors counselling against allowing his damages claims to proceed.
II.
We review a district court‘s dismissal under
While the factual allegations need not be detailed, they must be enough to raise a right to relief above the speculative level. Twombly, 550 U.S. at 555. “The court‘s review is limited to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010).
III.
Due Process Claims
The main focus of Serrano‘s due process challenge is to the Government‘s continued retention of seized property without a prompt judicial hearing to determine whether the government can retain possession of the seized property pending judicial forfeiture proceedings. Because he claims the district court erred in concluding that CBP‘s practices do not violate due process as a matter of law, Serrano maintains that the district court erred both in dismissing Count IV for failure to state a claim and denying as moot his motion for class certification. Contrary to the district court‘s finding, Serrano argues that due process requires a prompt, post-seizure hearing as evidenced by a “long line of authority requiring prompt hearings to contest even temporary deprivations of property” and a proper weighing of the Mathews v. Eldridge due process factors.
The Due Process Clause of the Fifth Amendment guarantees that “[n]o person shall be. . .deprived of life, liberty, or property, without due process of law.”
The first factor we consider in the Mathews analysis is “the private interest that will be affected by the official action.” Id. “The deprivation of real or personal property involves substantial due process interests.” Krimstock v. Kelly, 306 F.3d 40, 61 (2d Cir. 2002) (Sotomayor, J.) (citing United States v. James Daniel Good Real Prop., 510 U.S. 43, 53–54 (1993)).11 An individual has an important interest in the possession of his or her motor vehicle, particularly because of its “use as a mode of transportation, and, for some, the means to earn a livelihood.” Id. Because the seizure of a vehicle implicates an important private interest, the main points of contention are with respect to the balancing of the second and third Mathews factors.
Under the second Mathews factor, we consider “the risk of erroneous deprivation of such interest through the procedures used, and the probable
The risk is minimal under the second Mathews factor when we consider the remedial procedures available that permit a claimant to contest the deprivation of his vehicle. Cf. United States v. One 1971 BMW 4-Door Sedan, 652 F.2d 817, 820 (9th Cir. 1981) (“The pervasive statutory scheme. . .evidences substantial concern on the part of Congress with respect to what process is due owners of vehicles seized under the narcotics laws and regulations. Great weight must be given to its judgment.” (citing Mathews, 424 U.S. at 349)). Under the current customs laws, if the value of the seized property is below $500,000, CBP sends written notice to each party that has an interest in the claim or seized property.12
A petition for remission offers an expedited administrative procedure to contest the forfeiture. See United States v. Von Neumann, 474 U.S. 242, 250 (1986) (“Remission proceedings supply both the Government and the claimant a way to resolve a dispute informally rather than in judicial forfeiture proceedings.“). “The purpose of the remission statutes is to grant the
In the petition for remission, the claimant has an opportunity to explain why he believes he warrants relief from forfeiture. Notably, testimony may be taken in connection with a remission petition.
Further, the fourth option, which Serrano selected, allows for an independent evaluation and determination by the U.S. Attorney regarding forfeiture proceedings. If the claimant elects this proceeding and properly files a claim and bond,13 the notice states that the “case will be referred promptly to the appropriate U.S. Attorney for the institution of forfeiture proceedings.”14 See
Indeed, Serrano concedes that the forfeiture proceeding itself would provide the post-seizure hearing required by due process if it were held promptly. An unreasonably long retention without instituting a forfeiture proceeding can constitute a denial of due process. See, e.g., United States v. $23,407.69 in U.S. Currency, 715 F.2d 162, 165–66 (5th Cir. 1983). In the event there is a prolonged delay in initiating forfeiture proceedings, a claimant can challenge the reasonableness of the delay under Barker. See United States v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in U.S. Currency, 461 U.S. 555, 564 (1983) (applying the four-factor balancing test of Barker, to determine whether the Government‘s delay in filing a forfeiture action was reasonable); see also Shults v. Texas, 762 F.2d 449, 453 (5th Cir. 1985) (considering $8,850 the “seminal case” addressing “whether a delay in a post-seizure hearing offended the Fifth Amendment right against deprivation of property without due process of law“).
Importantly, as is evidenced in this case, the property owner may file a motion under
In assessing the risk of erroneous deprivation, we consider the agency‘s pecuniary interest in the outcome of the forfeiture proceedings. As observed by the Supreme Court, greater procedural safeguards are “of particular importance . . . where the Government has a direct pecuniary interest in the outcome of the proceeding.” Good, 510 U.S. at 55–56. Serrano alleges that CBP retains forfeited property or its proceeds to fund its law-enforcement operations, giving the agency and its officers a direct financial
Given the remedial processes available, the second Mathews factor weighs in favor of the Government.
Finally, the third factor under Mathews requires a consideration of “the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. at 335. Serrano disagrees with the weight the district court attributed to the third factor, based on its conclusion that the Government has an important interest in enforcing customs laws and the potential administrative burden that providing prompt hearings would place on the Government.
The third factor weighs in favor of the Government. We cannot ignore the context of the underlying seizure. The Government‘s interest in preventing the unlawful exportation of munitions, drugs, and other contraband is significant. See, e.g., Hernandez v. Mesa, 140 S. Ct. 735, 746 (2020) (“One of the ways in which the Executive protects this country is by attempting to control the movement of people and goods across the border.“); Lee v. Thornton, 538 F.2d 27, 31 (2d Cir. 1976) (“There is an extremely important government interest in policing the passage of persons and articles into the country across its borders.“). Further, Serrano‘s property was subject to forfeiture because the agents believed that the truck was used in an attempt to illegally export munitions from the United States, in violation of federal law.16 The Government‘s retention protects its interest
Given the broad allegations in the complaint and our balancing of the Mathews factors, we conclude that Serrano has failed to state a claim for a procedural due process violation. As identified in the CBP‘s seizure notice, a claimant is notified of the seizure and provided options for challenging the CBP‘s action, both administratively and judicially. Serrano has not sufficiently alleged the constitutional inadequacy of the existing procedures, nor has he shown that the available processes are unavailable or patently inadequate.
Moreover, our conclusion that the additional process Serrano seeks is not constitutionally required in this context is consistent with Von Neumann. There, the Supreme Court recognized that “implicit” in its “discussion of timeliness in $8,850 was the view that the forfeiture proceeding, without more, provides the postseizure hearing required by due process to protect [claimant‘s] property interest in the car.” 474 U.S. at 249 (emphasis added). The parties dispute the relevance of Von Neumann. Compare Red Br. 22 (Von Neumann forecloses plaintiff‘s argument) with Reply Br. 13 (“[A]s the district court correctly recognized, Von Neumann does not govern [Serrano‘s] claim.“). We agree that Von Neumann is not dispositive of Serrano‘s due process challenge; however, the Court‘s reasoning is pertinent to our due process analysis.
Von Neumann specifically notes that a claimant‘s “right to a forfeiture proceeding meeting the Barker17 test satisfies any due process right with
Moreover, the cases Serrano cites do not dictate a different result under Mathews. Serrano primarily relies on the Second Circuit‘s decision in Krimstock, 306 F.3d at 40, to support his position that a prompt, post-seizure hearing is constitutionally required while awaiting the forfeiture hearing.18 In Krimstock, plaintiffs challenged the constitutionality of the seizure and retention of motor vehicles under the city‘s Civil Administrative Code, a forfeiture statute that permitted, on the basis of a first offense, seizure of “a motor vehicle following an arrest for the state-law charge of driving while intoxicated. . .or any other crime for which the vehicle could serve as an instrumentality.” 306 F.3d at 44. Having identified special due process concerns and applying the three Mathews factors, the court in Krimstock concluded that the New York administrative code provisions at issue did not pass constitutional muster. Id. at 67.
Krimstock does not constrain our balancing of the Mathews factors in this case. Of particular importance, Krimstock is limited to the specific New York City statute at issue, which is materially distinguishable from the
Accordingly, Serrano‘s complaint fails to state a claim upon which relief can be granted.
Serrano also alleges that it is unconstitutional to condition a forfeiture hearing on the property owner posting a bond
As a threshold matter, Serrano failed to object to the magistrate judge‘s findings with regard to his class claims challenging the bond requirement to institute judicial forfeiture proceedings. Reviewing for clear error, the district court found none and adopted the magistrate judge‘s report in full. [Id.] Because Serrano failed to object, our review is limited to plain
The district court did not plainly err in holding that Serrano failed to state a claim that the bond requirement violates due process. See Faldraga v. Carnes, 674 F. Supp. 845, 850 (S.D. Fla. 1987); see also Brown v. Dist. of Columbia, 115 F. Supp. 3d 56, 72 (D.D.C. 2015). Claimants who elect to judicially challenge the forfeiture are generally required to post a cost bond in the penal sum of $5,000 or 10 percent of the value of the claimed property, whichever is less, but in no case shall the amount of the bond be less than $250.
The bond serves to “deter those claimants with frivolous claims” and “to cover the costs and expenses of the proceedings.” Arango v. U.S. Dep‘t of the Treasury, 115 F.3d 922, 925 (11th Cir. 1997) (quotations omitted). “If the outcome of the judicial proceeding is in the claimant‘s favor, the bond is returned.” Id. (citation omitted). Additionally, to ensure that the bond requirement does not deny indigent claimants an opportunity to contest the forfeiture in court, CBP provides by regulation that the bond requirement shall be waived “upon satisfactory proof of financial inability to post the bond.”
Because we affirm the district court‘s dismissal under
Serrano additionally argues that dismissal was inappropriate because he properly asserted an individual claim for damages under Bivens to vindicate his Fourth and Fifth Amendment rights.
In Bivens, the Supreme Court “broke new ground by holding that a person claiming to be the victim of an unlawful arrest and search could bring a Fourth Amendment claim for damages against the responsible agents even though no federal statute authorized such a claim.” Hernandez, 140 S. Ct. at 741 (citing Bivens, 403 U.S. at 388). This holding was issued at a time when, “as a routine matter,” the Court “would imply causes of action not explicit in the statutory text” on the assumption that courts could properly “provide such remedies as [were] necessary to make effective” the statute‘s purpose. Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017) (quoting J.I. Case Co. v. Borak, 377 U.S. 426, 433 (1964)). The Supreme Court has since adopted a more cautious approach, honoring separation-of-powers principles and stressing that whether a damages remedy should be created requires consideration of “a number of economic and governmental concerns.” Id. at 1856. Because of these considerations, Congress is “better position[ed]” than the judiciary “to consider if the public interest would be served by imposing a new substantive legal liability.” Id. at 1857 (quoting Schweiker, 487 U.S. at 426–427). “The Court has made clear that expanding the Bivens remedy is now a ‘disfavored’ judicial activity.” Id. (quoting Iqbal, 556 U.S. at 675).
Assuming without deciding that a Bivens remedy is available in this context, Serrano‘s complaint fails to state a claim. Serrano‘s Bivens claims are premised on the theory that unnamed CBP officers and a CBP paralegal, Espinoza, violated his constitutional rights by seizing his truck and keeping it for 23 months without giving him an opportunity to contest the seizure in a post-seizure judicial hearing.
At minimum, Serrano failed to plausibly allege that any individual federal defendant has violated clearly established law sufficient to overcome
Espinoza is entitled to qualified immunity. Serrano fails to set forth any facts specifically identifying what Espinoza or any unnamed Customs officers did to violate his rights. Instead, Serrano admits that the defendants acted within their authority: Serrano “alleges that the government followed the relevant statutes but that the statutes themselves violate the Constitution.” In other words, Serrano concedes that the individual defendants were following the relevant statutes governing the seizure of his truck. Even if we assume that the Constitution required CBP‘s employees to follow additional or more expedited procedures, there is no existing precedent clearly establishing as much, and thus, the individual defendants are entitled to qualified immunity. See Kelm v. Hyatt, 44 F.3d 415, 421 (6th Cir. 1995); CHS Indus., LLC v. U.S. Customs & Border Prot., 653 F. Supp. 2d 50, 57 (D.D.C. 2009).
IV.
For these reasons, we AFFIRM the judgment of the district court.
Notes
A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property‘s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.