Opinion
Civil No. 03-1746-JO.
July 8, 2004
Kenneth E. Kaufmann, Thomas H. Nelson, NELSON LOVINGER NORLING KAUFMANN, Portland, OR, Attorneys for Plaintiff.
Kelly A. Zusman, Assistant United States Attorney, District of Oregon UNITED STATES ATTORNEY'S OFFICE, Portland, OR, Of Attorneys for Defendants.
OPINION AND ORDER
Plaintiff Adel Belazi brings this Bivens action against four Immigration and Customs Enforcement agents. Plaintiff alleges that the defendants violated his constitutional rights in seizing his U.S. and Libyan passports and a Libyan identification card at the Portland International Airport based on suspected violation of the federal Travel Act.
See Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 US. 388 (1971).
The case is before the court on defendants' motion to dismiss for failure to state a claim or, alternatively, based on each defendant's qualified immunity (# 25). For the reasons explained below, defendants' motion is granted and this action is dismissed.
By stipulation of the parties, the court has deferred plaintiff's motion for partial summary judgment (# 32) pending resolution of defendants' motion to dismiss.
FACTUAL BACKGROUND
According to the operative complaint, on October 2, 2003, plaintiff, a naturalized U.S. citizen since 1992, his wife and two children traveled from Portland, Oregon to Libya via Frankfort, Germany, and Tunis, Tunisia, entering Libya using their Libyan passports. Second Amended Complaint ("Complaint"), ¶ 17. Plaintiff's purpose in traveling to Libya was to visit his ailing mother. Complaint, ¶ 18.
On October 22, 2003, plaintiff returned from Libya to Portland via Tunis, Tunisia and Frankfort, Germany. When he attempted to enter the United States through Customs at Portland International Airport, he was detained. According to the complaint, defendants Gino, Dimmick, and Hillman interrogated him for approximately 90 minutes, asking him where he had traveled and why. Plaintiff told the agents that he traveled to Libya to visit his mother and that he entered Libya using his Libyan passport. Defendant Gino asked to see plaintiffs' U.S. and Libyan passports, which plaintiff gave him along with his Libyan identification card. Complaint, ¶¶ 22, 23.
At the end of the interrogation, defendant Gino refused to return plaintiff's passports and identification card, telling him he would keep them as part of an investigation. Gino gave plaintiff a receipt for the documents. Complaint, ¶ 24.
During November and December 2003, with the assistance of counsel, Representative David Wu, and a friend, plaintiff attempted to obtain release of his travel documents.See Complaint, ¶¶ 26-32. On December 16, 2003, plaintiff filed his original complaint in this action, together with a motion for a temporary restraining order and order to show cause.
Wajdi Said of the Muslim Educational Trust of Portland
On December 18, 2003, 54 days from seizure at the airport, defendant Hillman released the passports and identification card to plaintiff's counsel. Complaint, ¶ 35. Plaintiff then withdrew his motion for a temporary restraining order and filed an amended complaint.
Plaintiff alleges five claims: (1) unreasonable seizure under the Fourth Amendment; (2) unreasonable retention under the Fourth Amendment; (3) temporary taking of property under the Fifth Amendment; (4) violation of procedural due process under the Fifth Amendment; and (5) denial of liberty under the Fifth Amendment.
STANDARDS
A Rule 12(b)(6) motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove "no set of facts in support of his claim which would entitle him to relief." Gilligan v. Jamco Development Corp., 108 F.3d 246, 248 (9th Cir. 1997) (citation omitted)); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (federal courts may not dismiss a complaint unless "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations" (citation and internal quotation marks omitted)). "All that is required is a `short and plain statement' of the plaintiff's claims." Wong v. United States, ___ F.3d ___, 2004 WL 1418012 (9th Cir. June 25, 2004) (citations omitted). The court must treat all facts alleged in the complaint as true, Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995), and resolve all doubts in favor of the nonmoving party. Keams v. Tempe Technical Institute, 39 F.3d 222, 224 (9th Cir. 1994).
In the context of a Bivens claim and a defense of qualified immunity, the court must first determine whether the facts as alleged, taken in the light most favorable to the plaintiff, state a claim for violation of constitutional or statutory rights. See Saucier v. Katz, 533 U.S. 194, 201 (2002). If not, the inquiry ends and dismissal is appropriate. Even if, however, the complaint states a claim for a constitutional violation, whether an official asserting qualified immunity may be held liable "generally turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken."Wong, 2004 WL 1418012 at *18 (citations and internal quotations omitted). As the Ninth Circuit explained in Wong,
"[C]learly established" for purposes of qualified immunity means that "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." * * * "[W]hat is required is that government officials have `fair and clear warning' that their conduct is unlawful." * * * In other words, "in the light of pre-existing law the unlawfulness must be apparent."Wong, 2004 WL 1418012 at *18 (citations and internal parentheses omitted).
DISCUSSION
1. Background.On January 7, 1986, President Ronald Reagan signed Executive Order 12543, which prohibits travel to Libya by U.S. citizens. The Executive Order is subject to certain exceptions, which are set forth in implementing regulations at 31 C.F.R. § 550.101 et seq ("Travel Act"). One of the exceptions permits U.S. citizens to visit immediate family members in Libya. 31 C.F.R. § 550.560. For a U.S. citizen to invoke this exception, he or she must register in writing with the Office of Foreign Assets Control, Department of the Treasury, or the Embassy of Belgium in Tripoli, Libya. 31 C.F.R. § 550.560(d).
Plaintiff does not allege that he ever registered before traveling to Libya. Thus, on the present record, there is no dispute that he violated the registration requirements of the Travel Act.
2. Fourth Amendment Claims
Plaintiff's complaint alleges two claims under the Fourth Amendment, unreasonable seizure and unreasonable retention of his passports and identification card. Conflicting statements in his memorandum in opposition to defendants' motion, however, render his current position unclear with respect to these two claims. On the one hand, plaintiff concedes that "the passport was lawfully seized," Memorandum In Opposition, p. 4 n. 7, yet he nonetheless argues, in effect, that defendants' search and seizure of the passports at the border entry was unreasonable. See Memorandum in Opposition, pp. 12-14. Whatever plaintiff's position is, however, the bottom line is that defendants' border search and seizure did not violate the Fourth Amendment.
Searches conducted as passengers disembark international flights are considered border searches because they are "conducted at the functional equivalent of a border checkpoint."U.S. v. Okafor, 285 F.3d 842, 845 (9th Cir. 2002).
The government has "inherent" authority to conduct "suspicionless" border inspections and seizures. U.S. v. Flores-Montano, 124 S.Ct. 1582, 1585 (2004); see also U.S. v. Camacho, 368 F.3d 1182, 1183 (9th Cir. 2004) ("The Supreme Court recently made clear that reasonable suspicion is usually not required for officers to conduct non-destructive border searches of property" (citing Flores-Montano)); accord U.S. v. Nava, 363 F.3d 942, 945 (9th Cir. 2004).
As the Supreme Court recently emphasized,
[t]he Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border. Time and again, we have stated that "searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border."Flores-Montano, 124 S.Ct. at 1585 (citation omitted); see also U.S. v. Okafor, 285 F.3d 842, 845 (9th Cir. 2002), in which the Ninth Circuit explained that
[w]hen agents at an international airport search a traveler entering the United States from a foreign country, and the bags or containers entering with them, the agents are properly minding the borders of the United States. Careful review of transit through our international borders is essential to national security, health, and public welfare. Such searches may interdict those who would further crime, introduce matter harmful to the United States, or even threaten the security of its citizens.
Accordingly, plaintiff's complaint fails to state a claim for a Fourth Amendment violation in the search and seizure of his travel documents.
In his second claim, plaintiff alleges that defendants violated the Fourth Amendment by failing to return his property immediately and by retaining his passports and identification card despite his and his counsel's demands. Complaint, ¶¶ 42-43. The focus of his argument, however, is on defendant's alleged failure to provide a pre- or post-seizure hearing, which is a due process argument under the Fifth Amendment. Plaintiff cites no authority for the proposition that after a proper seizure of evidence of a possible crime, an official's retention of that evidence for a reasonable period of time violates the Fourth Amendment. Consequently, I conclude that plaintiff's complaint fails to state a claim for a Fourth Amendment constitutional violation. Defendants' motion to dismiss plaintiff's first and second claims is, therefore, granted.
3. Fifth Amendment Claims
Plaintiff alleges three Fifth Amendment claims: temporary taking (third claim); violation of due process (fourth claim); and denial of liberty (fifth claim). I address these in turn.
a. Temporary Taking
Plaintiff alleges in his third claim that by refusing to return his passports and identification card on demand, defendants "took plaintiff's property without compensation in violation of the Fifth Amendment * * *." Complaint, ¶¶ 46-47. As pertinent, the Fifth Amendment to the United States Constitution provides that "private property" shall not "be taken for public use, without just compensation."
Plaintiff asserts that defendants do not challenge this claim, see Memorandum in Opposition, p. 3 n. 5, which must explain why he has failed to present any argument in support of it. Defendants do, however, challenge the claim. See Memorandum in Support, p. 2, and Reply Memorandum, pp. 6-7. Consequently, I consider it.
With respect to plaintiff's U.S. passport, defendants point out that the passport belongs to the U.S. government, not plaintiff, and is not his "private property." 22 C.F.R. § 51.9 ("A passport shall at all times remain the property of the United States and shall be returned to the Government upon demand"). And even if, as plaintiff alleges, he "owns" his Libyan passport and identification card, defendants' seizure of his papers at the international border and temporary retention of them is not an appropriation "for public use," which is essential to a Fifth Amendment taking. See Kanarek v. U.S., 314 F.2d 802, 804 (Ct.Cl. 1963). Instead, defendants seized plaintiffs' papers and retained them as evidence of a Travel Act violation.See In re Grand Jury Proceedings, 707 F. Supp. 1207, 1219 (D. Hawai'i 1989) (rejecting as "wholly without merit" contention that grand jury subpoena of 81 art images constituted Fifth Amendment taking: "The government merely will be using the artwork temporarily as evidence during the course of its grand jury proceedings, a use of evidence altogether common in our criminal justice system").
The court has not attempted to delve into Libyan law on the subject of passport ownership.
Defendants' motion to dismiss plaintiff's taking claim (claim three) for failure to state a constitutional violation is granted.
I also note that if plaintiff seeks more than $10,000 for the alleged taking, then this court would lack subject matter jurisdiction over the claim. See Bay View, Inc. v. Ahtna, Inc., 105 F.3d 1281, 1284 (9th Cir. 1997); 28 U.S.C. § 1346(1)(2) and 1491(a)(1).
b. Due Process
In his fourth claim, plaintiff alleges that defendants violated his due process rights under the Fifth Amendment by seizing and retaining his travel documents without notice or an opportunity for a pre- or post-seizure hearing. Complaint, ¶ 50. In support of this claim, plaintiff relies on an unpublished opinion by the District Court of the Northern Mariana Islands in DeNieva v. Reyes, 1989 U.S. Dist. LEXIS 18433 (D.N. Mar. I. 1989), aff'd in part and rev'd in part 966 F.2d 480 (9th Cir. 2002). Although unpublished district court opinions are not precedential,DeNieva also is distinguishable.
In DeNieva, a Philippine citizen who had a Philippine passport and resided in the Commonwealth of the Northern Mariana Islands ("CNMI") brought federal civil rights claims against the government of CNMI and its acting Chief of Immigration, Reyes, pursuant to 42 U.S.C. § 1983. The claims arose out of Reyes' investigation into allegations that DeNieva might be involved in an international operation to import workers to the CNMI on the basis of falsified or forged documents and that DeNieva's passport might have been falsified. Reyes asked DeNieva to come to his office, and at the meeting on June 21, 1988, DeNieva gave Reyes her passport and entry papers. 966 F.2d at 482.
After a few days, DeNieva asked Reyes to return her papers, which he declined to do. On July 1, 1988, she filed a complaint and sought a temporary restraining order returning her documents. During the time between filing the motion and the hearing, a CNMI officer arrested DeNieva, charging her with possession of a false passport and other offenses. After a hearing, the court held that there was probable cause to arrest DeNieva. Eventually, all of the charges were dismissed.
On October 19, 1988, CNMI officials returned DeNieva's passport and entry documents. On the parties' cross-motions for summary judgment, the district court ruled that defendants had violated DeNieva's constitutional right to travel during the 11-day period between the date of confiscation of her passport and the date of her arrest, but that there could be no liability after the arrest because of the finding of probable cause.
As relevant to the issue of due process, on appeal Reyes argued that DeNieva was not entitled to either a pre- or post-deprivation hearing with respect to confiscation of her travel documents. The Ninth Circuit disagreed, commenting that "under no circumstances has the Supreme Court permitted a state to deprive a person of a life, liberty, or property interest under the Due Process Clause without any hearing whatsoever." 966 F.2d at 485. Significantly for purposes of the present analysis, the court noted that
As Reyes acknowledged at oral argument, he did not provide a pre- or postdeprivation hearing, and there was no mechanism under CNMI law that required him to do so. Reyes took DeNieva's passport for a potentially indefinite period without a hearing, and that period was shortened only because a police officer arrested her. In light of the foregoing, we have no difficulty concluding that DeNieva's right to a hearing was clearly established and that Reyes' retention of her passport without a hearing after she requested its return violated that right.DeNieva, 966 F.2d at 485-86 (emphasis added).
Thus, the Ninth Circuit decision in DeNieva turned on the absence of any hearing requirement or other available process whatsoever under CNMI law. In contrast to the situation inDeNieva, plaintiff in this case was not without a remedy: He immediately could have filed a motion in this court seeking the return of his travel documents under Rule 41(e) of the Federal Rules of Criminal Procedure. See, e.g., Duncan v. Goedeke and Cleasey, 837 F. Supp. 846 (S.D. Tex. 1993).
With respect to plaintiff's claim of a right to a pre-seizure hearing, due process does not require a federal customs official to conduct a hearing before a border related seizure. United States v. Von Neumann, 474 U.S. 242, 249 n. 7 (1986) ("such a requirement would make customs processing entirely unworkable" (citation omitted)).
With respect to plaintiff's post-seizure rights, in language remarkably applicable to this case, the Duncan court observed:
After [plaintiff's] passport was seized in August 2002, he was not without a remedy. He could have immediately filed a motion seeking the return of the passport under Fed.R.Crim.P. 41(e) in the United States District Court for the Southern District of Texas. Although plaintiff was represented by counsel at that time, he did not avail himself of this relatively simple procedure for mitigating the effects of the seizure of his passport. Instead, he pursued a more circuitous route, but in any event, the passport was returned to [plaintiff] within six months of its seizure.847 F. Supp. at 850; see also U.S. v. Martinson, 809 F.2d 1364, 1366-67 (9th Cir. 1987) ("district court has jurisdiction to entertain motions to return property seized by the government when there are no criminal proceedings pending against the movant").
In this case as in Duncan, after defendants seized plaintiff's travel documents, he almost immediately sought the assistance of counsel. Rather than invoke the process that was available to him under Rule 41(e) of the criminal rules, after making several demands for return of the items, plaintiff filed this Bivens action. Thus, he failed to utilize the remedy that was available. See Duncan, 837 F. Supp. at 851 ("[plaintiff] should not now be permitted to collect money damages for an alleged deprivation of rights that could have been avoided merely by applying to the court for relief at the outset").
Plaintiff complains that defendants failed to provide him notice of his available remedies. See Complaint, ¶ 32; Memorandum in Opposition, p. 7. There is, however, no constitutional requirement that federal officers give individualized notice of available procedures. See City of West Covina v. Perkins, 525 U.S. 234, 241-43 (1999) (discussing state procedural remedies and stating the well-established principle that "[n]either the Federal Government nor any State requires officers to provide individualized notice of the procedures for seeking return of seized property"). Defendants gave plaintiff a receipt for his travel documents (Complaint, ¶ 24), and "[o]nce the property owner is informed that his property has been seized, he can turn to [the] public sources to learn about the remedial procedures available to him." City of West Covina, 525 U.S. at 241. Nothing more is required. Consequently, plaintiff's fourth claim fails to state a claim for a constitutional violation.
c. Denial of Liberty Interest
In his fifth claim, plaintiff alleges that by seizing and retaining his travel documents without a pre- or post-seizure hearing, defendants denied his liberty interest in international travel without due process. Complaint, ¶ 53.
Unquestionably, the right to travel is a protected interest.See, e.g., Haig v. Agee, 453 U.S. 280, 306 (1981); Weinstein v. Albright, 261 F.3d 127, 134 (9th Cir. 2001). There is a crucial difference, however, between the constitutional right of interstate travel, which is "virtually unqualified," and the freedom to travel internationally. Haig, 453 U.S. at 307. The "right" of international travel is considered "to be no more than an aspect of the `liberty' protected by the Due Process Clause of the Fifth Amendment. As such this `right' * * * can be regulated within the bounds of due process." Haig, 453 U.S. at 307 (citation omitted). That difference means that restrictions on the right of international travel are not judged by the same standard as restrictions on the right to interstate travel.Eunique v. Powell, 302 F.3d 971, 973-74 (9th Cir. 2002);Duncan, 837 F. Supp. at 850. As explained by the court inDuncan, "the seizure and temporary detention of [plaintiff's] passport would be violative of substantive due process only if it were `wholly irrational.'" 837 F. Supp. at 840 (quoting Califano v. Aznavorian, 439 U.S. 170, 177 (1978)); see also Eunique, 302 F.3d at 974 (rational basis review is proper standard).
In this case, defendants' interest in seizing and temporarily retaining plaintiff's travel documents in connection with an investigation into his possible violation of the Travel Act was not "wholly irrational." Moreover, plaintiff has failed to allege how defendants' 54 day delay in returning the travel documents prejudiced or harmed him. Indeed, plaintiff does not allege that he has since registered to travel to Libya as the Travel Act requires, nor does he allege that defendants' actions interfered with any other international travel plans. Furthermore, as explained above, plaintiff had a specific post-deprivation remedy under Fed.R.Crim.P. 41(e), through which he could have avoided the deprivation of which he now complains.
I conclude that defendants' border-related seizure and retention of plaintiff's documents do not rise to the level of a constitutional violation under the Fifth Amendment. Consequently, plaintiff's fifth claim fails to state a claim.
4. Qualified Immunity
Because I conclude that plaintiff has failed to allege any constitutional violation by the defendants, I do not reach defendants' qualified immunity defense. I note, however, that if I were to reach the issue, under the facts alleged in this case and the applicable law, I would find that defendants' actions were objectively reasonable and that clearly established law would not give them "fair and clear warning" that the seizure and temporary retention of plaintiff's travel documents in connection with a criminal investigation would violate his due process rights. See Wong, 2004 WL 1418012 at *18.