Bautista v. Mayorkas

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARTIN BAUTISTA, Case No.: 22cv1185-GPC(KSC)

12 Plaintiff, ORDER GRANTING DEFENDANTS’ 13 v. MOTION TO DISMISS WITHOUT LEAVE TO AMEND 14 ALEJANDRO MAYORKAS,

SECRETARY, UNITED STATES 15 [Dkt. No. 14.] DEPARTMENT OF HOMELAND 16 SECURITY; CHRIS MAGNUS, COMMISSIONER, U.S. CUSTOMS 17 AND BORDER PROTECTION; AND 18 SIDNEY AKI, DIRECTOR, FIELD OPERATIONS, US CUSTOMS AND 19 BORDER PROTECTION, SAN DIEGO 20 FIELD OFFICE, 21 Defendants. 22 23 Before the Court is Defendants’ motion to dismiss the complaint pursuant to 24 Federal Rule of Civil Procedure 12(b)(1). (Dkt. No. 14.) Plaintiff filed an opposition and 25 Defendants replied. (Dkt. Nos. 16, 17.) Based on the reasoning below, the Court 26 GRANTS Defendants’ motion to dismiss for lack of jurisdiction without leave to amend. 27 / / / 28 / / / 1 Background 2 On August 12, 2022, Plaintiff Martin Bautista1 (“Plaintiff”) filed a complaint2 3 against Defendants Alejandro Mayorkas, Secretary of the Department of Homeland 4 Security (“DHS”); Chris Magnus, Commissioner, U.S. Customs and Border Protection 5 (“CBP”); and Sidney Aki, Director, Field Operations, U.S. Customs and Border 6 Protection, San Diego Field Office seeking the return of an unauthorized seizure of his 7 Gray 2021 Nissan Sentra VIN # 3N1AB8CV1MY329566 (“the Vehicle”). (Dkt. No. 1, 8 Compl.) He alleges violations of the Fourth Amendment right to be free from 9 unreasonable searches and seizures and Fifth and Fourteenth Amendment right to due 10 process. (Id. at 10-11.3) He seeks the return of the Vehicle, an award of attorney’s fees 11 and costs under the Equal Access to Justice Act and storage fees accumulated in this 12 matter. (Id. at p. 12.) 13 Lidia Bautista (“Mrs. Bautista”), Plaintiff’s wife, is the registered owner of the 14 Vehicle and domiciled in Los Angeles County, California. (Id. ¶ 6.) On November 4, 15 2021, Mrs. Bautista met a friend in Tijuana Mexico to give her a ride to her job in San 16 Diego. (Id. ¶ 15.) While there, Mrs. Bautista loaned her car to her friend while Mrs. 17 Bautista went to the store and eventually her friend picked her up in her Vehicle. (Id.) 18 Without Mrs. Bautista knowing, her friend had picked up two people who did not 19 have legal status in the United States and concealed them in the trunk of the Vehicle. (Id. 20 ¶ 16.) Mrs. Bautista learned about the two individuals concealed in the trunk when they 21 were stopped at the San Ysidro checkpoint. (Id.) Mrs. Bautista was released without 22 criminal charge because her friend was operating the Vehicle at the time of seizure. (Id. ¶ 23 17.) 24 25 1 The Complaint also alleges that Lidia Bautista, Plaintiff’s wife, brings a civil action; however, she is 26 not a named Plaintiff in the case. (Dkt. No. 1, Compl. at p. 2, l. 1-3.) 2 On March 21, 2022, Plaintiff previously filed the same complaint but it was dismissed on July 1, 2022 27 after failing to show cause why he failed to file a proof of service or failed to serve. (Case No. 22cv378- JLS(BLM), Dkt. No. 8.) 28 1 On the same day, DHS seized the Vehicle. (Id. ¶ 18.) Mrs. Bautista received a 2 Notice of Seizure on November 9, 2021 indicating that the CBP was commencing 3 forfeiture action against the Vehicle and provided guidance on how to procced. (Id. ¶ 4 19.) Mrs. Bautista timely filed a petition for return of seized vehicle with the CBP on 5 November 19, 2021. (Id.) 6 On December 4, 2021, Plaintiff retained counsel and sent a letter to CBP 7 requesting a 30-day extension of time to respond which the CBP granted on December 8 15, 2021. (Id. ¶ 20.) Based on judicially noticed document, the December 4, 2021 letter 9 informed CBP that Mrs. Bautista had retained counsel and she was seeking a 30-day 10 extension of time. (Dkt. No. 6-1, Ex. B at 4.4) The extension of time was granted as to 11 Mrs. Bautista and she had until January 15, 2021 to respond. (Id., Ex. C at 11.) 12 On January 22, 2022, Plaintiff’s counsel notified CBP that he was withdrawing 13 representation of Mrs. Bautista and would be representing Plaintiff. (Dkt. No. 1, Compl. 14 ¶ 21.) Counsel also submitted Plaintiff’s petition for return of seized vehicle on the same 15 day. (Id.) 16 On January 27, 2022, according to the complaint, CBP acknowledged acceptance 17 of Plaintiff’s submission when it inquired as to whether he intended to pursue recovery of 18 his vehicle administratively and that Plaintiff needed to respond within 15 days of the 19 date of the letter. (Id. ¶ 22.) On February 1, 2022, Plaintiff responded to CBP’s January 20 27th letter indicating that Plaintiff intended to pursue the petition administratively. (Id. ¶ 21 23.) On February 1, 2022, CBP Officer Smithburg sent an email stating “We are in 22 23 24 4 Defendants asks the Court to consider documents attached to Plaintiff’s motion for preliminary 25 injunction under the incorporation by reference doctrine. (See Dkt. No. 6-1.) Plaintiff did not object. The incorporation by reference doctrine “is a judicially created doctrine”, where the court “treats certain 26 documents as though they are part of the complaint itself.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018); Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). Here 27 because the complaint references the details of the judicial proceedings, the Court considers them under the incorporation by reference doctrine. See Conservation Force v. Salazar, 677 F. Supp. 2d 1203, 1208 28 1 receipt of your correspondence indicating that it is your office’s intention to petition 2 administratively for the seized vehicle. Please provide your client’s proof of ownership 3 of the vehicle.” (Id. ¶ 24.) On February 1, 2022, Plaintiff’s counsel responded that 4 Plaintiff and Mrs. Bautista were married and the Vehicle is considered community 5 property under California law. (Id. ¶ 25.) 6 On February 15, 2022, Plaintiff’s counsel received a letter stating the “Mr. 7 Bautista’s notice was received January 24, 2022, thus it was untimely” and that the 8 Vehicle would be disposed of. (Id. ¶ 26.) On February 22, 2022, Plaintiff responded 9 arguing that Defendants had tolled any deadlines because they had accepted all responses 10 as timely and had notice of the petition and notice of Plaintiff’s ownership of the Vehicle. 11 (Id. ¶ 27.) On March 2, 2022, Defendants responded that Plaintiff’s petition was not 12 timely and the 30-day extension had been granted only as to Mrs. Bautista and they were 13 not aware that anyone else had a claim to the Vehicle when the extension was granted. 14 (Id. ¶ 28.) Plaintiff claims that CBP waived any deadlines through its conduct. (Id. ¶ 15 30.) 16 On September 21, 2022, Plaintiff filed an ex parte motion for preliminary 17 injunction enjoining Defendants from disposing of his 2021 Nissan Sentra. (Dkt. No. 6.) 18 After full briefing, on October 11, 2022, the Court denied the ex parte motion for 19 preliminary injunction as moot because Defendants declared they would hold onto the 20 Vehicle until judgment is entered in the case. (Dkt. No. 13 at 4-5.) 21 Now pending before the Court is Defendants’ motion to dismiss for lack of subject 22 matter jurisdiction because the Civil Asset Forfeiture Reform Act of 2000, (“CAFRA”), 23 18 U.S.C. § 983 divests the Court of jurisdiction. Plaintiff opposes. 24 Discussion 25 A. Legal Standard Federal Rule of Civil Procedure 12(b)(1) 26 “It is a fundamental principle that federal courts are courts of limited jurisdiction. 27 The limits upon federal jurisdiction, whether imposed by the Constitution or by Congress, 28 must be neither disregarded nor evaded.” Owen Equip. & Erection Co. v. Kroger, 437 1 U.S. 365, 374 (1978). Under Rule 12(b)(1), a party may move to dismiss for lack of 2 subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A Rule 12(b)(1) jurisdictional 3 challenge may be facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 4 (9th Cir. 2004). “In a facial attack, the challenger asserts that the allegations contained in 5 a complaint are insufficient on their face to invoke federal jurisdiction.” Id. When 6 evaluating a facial attack, the court assumes the truth of the complaint's allegations and 7 draws all reasonable inferences in plaintiff's favor. See Wolfe v. Strankman, 392 F.3d 8 358, 362 (9th Cir. 2004). Where the attack is factual, however, “the court need not 9 presume the truthfulness of the plaintiff's allegations.” Safe Air for Everyone, 373 F.3d at 10 1039. In resolving a factual dispute as to the existence of subject matter jurisdiction, a 11 court may review extrinsic evidence beyond the complaint without converting a motion 12 to dismiss into one for summary judgment. Id.; McCarthy v. United States, 850 F.2d 13 558, 560 (9th Cir. 1988). “A party invoking the federal court's jurisdiction has the 14 burden of proving the actual existence of subject matter jurisdiction.” Thompson v. 15 McCombe, 99 F.3d 352, 353 (9th Cir. 1996). Defendants raise a facial challenge. (See 16 Dkt. No. 17 at 2 n.2 (“While the Court must presume the well-pleaded facts of the 17 Complaint to be true for the purposes of Defendants’ facial challenge to Plaintiff’s 18 pleading . . . .”). 19 B. Analysis 20 Defendants argue that the Court lacks subject matter jurisdiction under CAFRA to 21 review an agency’s decision on Plaintiff’s petition or its ultimate forfeiture of the 22 Vehicle. (Dkt. No. 14 at 5-6.) Plaintiff responds that the Court has federal question 23 jurisdiction under the Administrative Procedure Act (“APA”) and under the Fourth, Fifth 24 and Fourteenth Amendments to the United States Constitution. (Dkt. No. 16 at 4-5.) 25 Defendants reply that Plaintiff cannot avoid the exclusive remedy provided under 26 CAFRA by raising claims under the APA and U.S. Constitution. (Dkt. No. 17 at 3-4.) 27 In 2000, Congress enacted the Civil Asset Forfeiture Reform Act of 2000 28 (“CAFRA”), 18 U.S.C. § 983, which amended the seizure and forfeiture of property used 1 to facilitate criminal activity by the federal government. See Synagogue v. United States, 2 482 F.3d 1058, 1060 (9th Cir. 2007). CAFRA authorizes a seizing agency to 3 administratively forfeit assets valued at or less than $500,000 but any seized assets valued 4 at more than $500,000 must be made only upon a judicial decree after judicial forfeiture 5 proceedings. 19 U.S.C. §§ 1607, 1610. The complaint alleges the value of the Vehicle to 6 be about $21,000 at the time of seizure. (Dkt. No. 1, Compl. ¶ 14.) 7 Once property has been seized during the commission of a crime, the seizing 8 agency must send a notice of its intent to forfeit the property to potential claimants within 9 60 days of the seizure. 18 U.S.C. § 983(a)(1)(A)(i). Once a claimant receives notice 10 from the agency advising of the forfeiture, the claimant must decide whether he or she 11 seeks to pursue forfeiture administratively or judicially. See Conservation Force v. 12 Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011). A claimant may seek either administrative 13 or judicial forfeiture, but not both. Id. (quoting Malladi Drugs & Pharms., Ltd. v. Tandy, 14 552 F.3d 885, 889-90 (D.C. Cir. 2009) (“The forfeiture statutes and regulations provide 15 alternative, not sequential, administrative and legal remedies for an administrative 16 forfeiture.”). “A petition for remission ‘asks the agency for discretionary return of the 17 property,’ while a claim ‘initiates the judicial process to decide whether the property 18 should be forfeited.’” Id. (quoting Malladi Drugs & Pharms., Ltd., 552 F.3d at 889-90). 19 If an administrative petition is timely submitted and is subsequently denied by the 20 seizing agency, the only remedy CAFRA provides is a motion to set aside a declaration 21 of forfeiture for failing to receive a “written notice in any nonjudicial civil forfeiture 22 proceeding” 18 U.S.C. § 983(e)(1), and “[a] motion filed under this subsection shall be 23 the exclusive remedy for seeking to set aside a declaration of forfeiture under a civil 24 forfeiture statute.” 18 U.S.C. § 983(e)(5). 25 Because the exclusive remedy for a claimant seeking return of forfeited property is 26 limited by 18 U.S.C. § 983(e)(5), district courts lack jurisdiction to review a federal 27 agency's decision to deny an administrative petition. Conservation Force, 646 F.3d at 28 1243 (barring judicial review when claimant received proper notice of the proposed 1 forfeitures, elected to pursue an administrative remedy and filed petitions for remission 2 which were subsequently denied); Mesa Valderrama v. United States, 417 F.3d 1189, 3 1196 (11th Cir. 2005) (“This court has determined that it lacks jurisdiction to review the 4 merits of administrative or nonjudicial forfeiture determinations.”). Therefore, the 5 district court’s review is limited to “whether [the claimant] received the appropriate 6 notice in sufficient time to contest the agency's action of summarily forfeiting the check.” 7 Mesa Valderrama, 417 F.3d at 1196. 8 In this case, the Vehicle was subject to forfeiture under 18 U.S.C. § 1324(b) for 9 alien smuggling. (Dkt. No. 1, Compl. ¶ 18; Dkt. No. 6-1, Ex G at 39 (citing 18 U.S.C. § 10 1324(b)(1) (“Any . . . vessel, . . . that has been or is being used to the commission of a 11 violation of subsection (a) . . . shall be seized and subject to forfeiture.”)). The complaint 12 alleges Plaintiff had notice of the forfeiture proceedings through the Notice of Seizure 13 that Mrs. Bautista received and does not challenge the notice provided. (Dkt. No. 1, 14 Compl. ¶ 19; see Dkt. No. 16.) While Mrs. Bautista filed her petition on November 19, 15 2021, (Dkt. No. 1, Compl. ¶ 19), Plaintiff did not file his petition until January 22, 2022, 16 over two months after the Notice of Seizure. Ultimately, on February 15, 2021, the CBP 17 denied Plaintiff’s petition because it was untimely. (Dkt. No. 6-1, Ex. G at 39.) 18 In opposition, Plaintiff does not challenge the notice of seizure but challenges the 19 merits of CBP’s determination that his petition was not timely which is barred by 20 CAFRA. See Conservation Force, 646 F.3d at 1243. Therefore, the Court lacks 21 jurisdiction over his challenge to the CBP’s denial of his petition as untimely. 22 However, even if the Court were to consider his argument, it is questionable. The 23 complaint alleges that by responding to his petition as if it were timely and requiring him 24 to submit documents to show his ownership of the Vehicle, the CBP accepted his petition 25 as timely and by its conduct tolled or waived any deadlines. (Dkt. No. 1, Compl. ¶¶ 24- 26 30.) Relying on the complaint’s allegations, Plaintiff attempted to substitute in the place 27 of Mrs. Bautista as the claimant in her petition. However, Plaintiff and Mrs. Bautista are 28 distinct persons and Plaintiff has not provided any legal authority that his attempted 1 substitution was proper. Further, even if Plaintiff could step into the shoes of Mrs. 2 Bautista, he still failed to timely file a petition or response by January 15, 2022, the 3 deadline Mrs. Bautista was granted to file a response. Finally, Plaintiff has not provided 4 any legal authority that the CBP’s response to his untimely petition is deemed an 5 acceptance of the petition as timely, and thus, any deadlines would be tolled or waived. 6 Because Plaintiff received proper notice of the seizure, the Court lacks jurisdiction 7 over the merits of the CBP’s decision in the underlying forfeiture. See 18 U.S.C. § 8 983(a)(2)(B); Plumhof v. U.S. Customs and Border Patrol, No. 12cv2521 AJB(NLS), 9 2013 WL 2295666, at *7 (S.D. Cal. May 24, 2013) (court may only consider whether the 10 plaintiff received proper and timely notice of the vehicle seizure and because parties do 11 not dispute that plaintiff received timely notice, the court lacked jurisdiction); Rodriguez 12 v. United States Dept. of Justice, 4 Fed. Appx. 104, 106 (2nd Cir. 2001) (court lacked 13 subject matter jurisdiction over motion for return of forfeited property because plaintiff 14 filed claim with agency two weeks late); Pert v. United States, No. 3:10–cv–0739–LRH– 15 RAM, 2011 WL 1792767, at *5 (D. Nev. 2011) (court lacked subject matter jurisdiction 16 over challenge to forfeiture because plaintiff's notice of claim to the agency was 17 untimely). 18 In his opposition, Plaintiff summarily argues that the Court has jurisdiction under 19 federal question jurisdiction because he is bringing claims under the Administrative 20 Procedure Act (“APA”) and under the Fourth and Fifth/Fourteenth Amendments of the 21 United States Constitution. (Dkt. No. 16 at 4-5.) However, a plaintiff may not bypass 22 the exclusive jurisdiction of CAFRA by seeking to set aside a forfeiture under CAFRA 23 through the APA. See Conservation Force v. Salazar, 677 F. Supp. 2d 1203, 1209 (N.D. 24 Cal. 2009) aff’d 646 F.3d 1240 (9th Cir. 2011) (dismissing APA claim as not reviewable 25 because of agency discretion to administratively forfeit property and CAFRA is the 26 exclusive remedy seeking to set aside a declaration of forfeiture); United States v. Simon, 27 609 Fed. App’x 1002, 1007 (11th Cir. 2015) (“The district court was also correct to 28 1 conclude that Mr. Simon could not seek review of the underlying administrative 2 forfeiture decision via the APA.”). 3 Under the APA, Congress has waived sovereign immunity over actions “seeking 4 relief other than monetary damages and stating a claim that an agency or an officer or 5 employee thereof acted or failed to act in an official capacity or under color of legal 6 authority.” 5 U.S.C. § 702. But the waiver does not apply when “statutes preclude 7 judicial review” or “agency action is committed to agency discretion by law.” 5 U.S.C. § 8 701(a). Here, CAFRA provides for the exclusive remedy and Congress has committed 9 to the agencies discretion to conduct administrative forfeitures; therefore, review under 10 the APA is not permitted. See Browne v. Gossett, 259 Fed. App’x 928, 929 (9th Cir. 11 2007) (rejecting argument that APA waives sovereign immunity because only claim for 12 non-monetary relief was the return of the forfeited property and the exclusive remedy is 13 under CAFRA); Conservation Force, 677 F Supp. 2d at 1209 (because petitions for 14 remissions are determined by the Solicitor in his or her discretion, APA cannot be 15 reviewed); United States v. Pickett, No. 07–CR–117, 2012 WL 694712, at *1 (E.D.N.Y. 16 Mar. 1, 2012) (“The APA does not waive sovereign immunity for challenges to civil 17 forfeiture proceedings; rather, a motion under § 983(e) of CAFRA is the ‘exclusive 18 remedy for seeking to set aside a declaration of forfeiture under a civil forfeiture 19 statute.’”). 20 Also, Plaintiff may not avoid the exclusive jurisdiction of CAFRA by seeking to 21 set aside a forfeiture under CAFRA through constitutional claims. See Mikhaylov v. 22 United States, 29 F. Supp. 3d 260, 272 (E.D.N.Y. 2014) (plaintiff’s exclusive remedy 23 concerning the forfeiture of his money is a § 983(e) motion and not additional Bivens5 24 claims); Williams v. O'Donnell, 3:19-CV-00418-BR, 2020 WL 6686416 at *6, 10 (D. Or. 25 Nov. 12, 2020) (dismissing Fourth Amendment claim for unlawful seizure of funds 26 27 28 1 because CAFRA provides the exclusive remedy); Lefler v. United States, No. 11CV220- 2 LAB POR, 2011 WL 2132827, at *2 (S.D. Cal. May 26, 2011) (“Even if [the plaintiff] .. 3 . could show . . . he would have contested the forfeiture . . . , a Bivens action would not 4 lie because [the plaintiff] has a remedy under § 983(e).”); United States v. Hall, 2:06-cr- 5 00310-HDM-PAL, 2010 WL 11531405, at *6 (D. Nev. Mar. 31, 2010) (dismissing the 6 plaintiff's claim brought pursuant to Bivens for the return of currency seized and forfeited 7 on the ground that “CAFRA is the exclusive remedy” for the plaintiff's claim). 8 However, to the extent that the Court could consider the constitutional claims, the 9 Court notes the complaint alleges that Defendants are heads of federal agencies and are 10 being sued in their official capacities. (Dkt. No. 1, Compl. ¶¶ 7-9.) A suit against federal 11 employees in their official capacities is a suit against the United States and subject to 12 sovereign immunity. See Hodge v. Dalton, 107 F.3d 705, 707 (9th Cir. 1997) (“The 13 doctrine of sovereign immunity applies to federal agencies and to federal employees 14 acting within their official capacities.”). Plaintiff fails to explain how sovereign 15 immunity has been waived for these Defendants. 16 Accordingly, the Court GRANTS Defendants’ motion to dismiss for lack of 17 jurisdiction. In the event the Court grants dismissal, Plaintiff requests leave to amend the 18 complaint in order to demonstrate compliance with the APA. (Dkt. No. 16 at 6.) 19 However, as stated above, Plaintiff may not seek relief through the APA. Accordingly, 20 the Court denies Plaintiff’s request for leave to amend as any amendment would be futile. 21 See Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008) 22 (dismissal without leave to amend is improper unless amendment would be clearly 23 futile). 24 Conclusion 25 Accordingly, the Court GRANTS Defendants’ motion to dismiss for lack of 26 subject matter jurisdiction under Rule 12(b)(1) and DENIES Plaintiff’s request for leave 27 / / / 28 / / / 1 || to file an amended complaint. The Clerk of Court shall close the case. 2 IT IS SO ORDERED. 3 Dated: December 8, 2022 2 aaho Ox 4 Hon. Gonzalo P. Curiel 5 United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28