Nassereddine v. United States Customs and Border Protection et al

Filing 26

OPINION and ORDER granting Defendants' 20 Motion to Dismiss. Signed by District Judge Linda V. Parker. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MOUHDEE NASSERDDINE,
Plaintiff,
v.

Civil Case No. 16-12138
Honorable Linda V. Parker

UNITED STATES CUSTOM AND
BORDER PROTECTION, and
R. GIL KERLIKOWSKE, in his
official capacity as the Commissioner
of the United States Custom and Border
Protection,
Defendants.
___________________________________/
OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO
DISMISS
This lawsuit arises from the administrative seizure of $15,675 in U.S.
currency from Plaintiff Mouhdee Nasserddine at the Detroit Metropolitan Airport
on August 4, 2015. Defendant United States Customs and Border Protection
(“CBP”) provided formal notice to Plaintiff and an opportunity to respond to the
forfeiture proceedings on August 7, 2015. Plaintiff seeks to set aside the
administrative seizure pursuant to 18 U.S.C. § 983(e), alleging the forfeiture was
constitutionally deficient. (ECF No. 1.)
Presently before the Court is Defendants’ motion to dismiss pursuant to
Federal Rules of Civil Procedure 12(b)(1) and (6), filed April 17, 2017. (ECF No.

20.) Plaintiff filed a brief responding to the motion on June 8, 2017. (ECF No.
24.) Defendants filed a reply brief on June 20, 2017. (ECF No. 25.) Finding the
facts and legal arguments sufficiently presented in the parties’ briefs, the Court is
dispensing with oral argument pursuant to Eastern District of Michigan Local Rule
7.1(f).
I.

Factual Background
On August 4, 2015, Plaintiff and his mother were at the Detroit Metropolitan

Airport scheduled to depart on an international flight. (ECF No. 1 at Pg ID 5.)
Plaintiff and his mother were selected for a routine examination, and the CBP
officer noticed they were carrying large sums of cash. (Id. at Pg ID 18.) When
inquiring as to the amount of cash they each were carrying, Plaintiff indicated he
and his mother were carrying $8,000 each. (Id.) Upon further inspection, the CBP
officer discovered all of the money belonged to Plaintiff, which totaled $15,675.
(Id. at Pg ID 17-18.) Plaintiff was in violation 31 U.S.C. § 5316(a) 1 for failing to
report cash that exceeded $10,000 for international travel. Plaintiff told the CBP

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(a) Except as provided in subsection (c) of this section, a person or an agent or bailee of the
person shall file a report under subsection (b) of this section when the person, agent, or bailee
knowingly—
(1) transports, is about to transport, or has transported, monetary instruments of more
than $ 10,000 at one time—
(A) from a place in the United States to or through a place outside the United States; or
(B) to a place in the United States from or through a place outside the United States; or .
...

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officer he gave his mother some of his money because he did not want to be over
$10,000. (Id. at Pg ID 18.) CBP seized the unreported funds pursuant to 31 U.S.C.
§ 5317(c)(2), which permits civil forfeiture for violations of § 5316.
On August 7, 2015, CBP sent Plaintiff a letter through certified mail, titled
“Notice of Seizure” advising Plaintiff that his property was seized and subject to
civil forfeiture. (Id. at Pg ID 17.) In the letter, Plaintiff was given several options,
including: (1) to file a petition within thirty days from the date of letter seeking
release of the property; (2) to seek court action no later than September 12, 2015;
or (3) to take no action and CBP would initiate nonjudicial forfeiture proceedings
within thirty-five days from the date of the letter. (Id. at Pg ID 17-18.)
Plaintiff, though his attorney, sent CBP a letter on September 3, 2015
requesting a 60 day extension in order for Plaintiff to gather documents to support
his claim, many of which were from Lebanon. (Id. at Pg ID 15.) On October 9,
2015, Plaintiff, through his attorney, sent CBP a second letter requesting that CBP
halt the forfeiture proceedings and stated, “we have been attempting to gather the
required bank statements, tax returns, medical documentation, affidavits, and other
evidence to make your determination as easy as possible. There has also been
delay due to the Muslim holiday and getting documents from overseas.” (Id. at Pg
ID 23.) Finally, on October 23, 2015, Plaintiff submitted his petition to CBP with
supporting documents. (Id. at Pg ID 25.)
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On February 26, 2016, CBP sent Plaintiff a formal letter advising Plaintiff
that the petition filed on October 23, 2015 was “untimely and would not be
considered and that administrative forfeiture proceedings had been initiated.” (Id.
at Pg ID 13.)
II.

Applicable Standards
A motion to dismiss pursuant to Rule 12(b)(1) challenges the Court’s subject

matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Where subject matter jurisdiction is
challenged under this rule, the plaintiff bears the burden of proving jurisdiction.
Moir v. Cleveland Reg’l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990). Rule
12(b)(1) motions to dismiss for lack of subject matter jurisdiction fall into two
general categories: facial attacks and factual attacks. Fed. R. Civ. P. 12(b)(1);
United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994).
A facial attack challenges the sufficiency of the pleading itself. In that
instance, the court accepts the material allegations in the complaint as true and
construes them in the light most favorable to the nonmoving party. Ritchie, 15 F.
3d at 598 (citing Scheuer v. Rhodes, 416 U.S. 232, 235-37 (1974)). In contrast, a
factual attack is “not a challenge to the sufficiency of the pleading’s allegation, but
a challenge to the factual existence of subject matter jurisdiction.” Id. Where the
motion presents a factual attack, the court does not afford a presumption of
truthfulness to the allegations but weighs the evidence to determine whether
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subject matter jurisdiction exists. On a factual attack, the court has broad discretion
to consider extrinsic evidence, including affidavits and documents, and can
conduct a limited evidentiary hearing if necessary. See DLX, Inc. v. Kentucky, 381
F.3d 511, 516 (6th Cir. 2004); Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d
320, 325 (6th Cir.1990).
II.

Applicable Law and Analysis
The Civil Asset Forfeiture Recovery Act of 2000, 18 U.S.C. § 983,

(“CAFRA”) sets forth the procedures for civil forfeitures. 18 U.S.C. §
983(a)(1)(A)(i) provides, in pertinent part, what is required of the Government in
civil forfeiture proceedings:
(a) Notice; claim; complaint.
(1) (A) (i) Except as provided in clauses (ii) through (v), in any
nonjudicial civil forfeiture proceeding under a civil forfeiture statute,
with respect to which the Government is required to send written notice
to interested parties, such notice shall be sent in a manner to achieve
proper notice as soon as practicable, and in no case more than 60 days
after the date of the seizure.
As to the individual claimant, 18 U.S.C. § 983(a)(2) provides:
(A) Any person claiming property seized in a nonjudicial
civil
forfeiture proceeding under a civil forfeiture statute may file a claim
with the appropriate official after the seizure.
(B) A claim under subparagraph (A) may be filed not later than the
deadline set forth in a personal notice letter (which deadline may be not
earlier than 35 days after the date the letter is mailed), except that if that
letter is not received, then a claim may be filed not later than 30 days
after the date of final publication of notice of seizure.
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(C) A claim shall—
(i) identify the specific property being claimed;
(ii) state the claimant's interest in such property; and
(iii) be made under oath, subject to penalty of perjury.
(D) A claim need not be made in any particular form. Each Federal
agency conducting nonjudicial forfeitures under this section shall make
claim forms generally available on request, which forms shall be
written in easily understandable language.
(E) Any person may make a claim under subparagraph (A) without
posting bond with respect to the property which is the subject of the
claim.
Defendants seek dismissal of Plaintiff’s Complaint pursuant to 12(b)(1) and,
alternatively, 12(b)(6). Although the Court lacks jurisdiction to determine the
legality of the civil forfeiture, the Court does have jurisdiction to determine
whether the statutory requirements were met. See Valderrama v. United States,
417 F.3d 1189, 1196 (11th Cir. 2005) (“Plaintiff’s action was properly dismissed
for lack of jurisdiction because 18 USCS § 983(e) was exclusive remedy for
seeking to set aside declaration of forfeiture under civil forfeiture statute; only
issue that court could consider was whether plaintiff received appropriate notice in
sufficient time to contest agency’s action of summarily forfeiting check, and record
clearly demonstrated that plaintiff received appropriate notice of seizure and
summary forfeiture actions that were taken by Customs.”) Moreover, relief
pursuant to § 983(e) is limited to individuals who were entitled to notice of the
civil forfeiture, but did not receive it: “[a]ny person entitled to written notice in any
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nonjudicial civil forfeiture proceeding under a civil forfeiture statute who does not
receive such notice may file a motion to set aside a declaration of forfeiture with
respect to that person’s interest in the property . . .” 18 U.S.C. § 983(e); see also
United States v. Comerica Bank, 384 F. App’x 471, 474 (6th Cir. 2010)
(unpublished).
A party is only entitled to relief under CAFRA when they did not receive
notice of the forfeiture. See e.g., In re $20,000 in U.S. Currency, 523 F. App’x
322, 323 (6th Cir. 2013); United States v. King, 422 F. App’x 212, 213 (6th Cir.
2011); Comerica Bank, 384 F. App’x at 474 (“As the district court correctly held,
Comerica Bank is not entitled to set aside the forfeiture because the bank knew of
the seizure of the funds within sufficient time to file a timely claim.”). Here,
Plaintiff concedes he received the August 7, 2015 notice. (ECF No. 1 at Pg ID 5;
ECF No. 24 at Pg ID 118.) Moreover, Plaintiff was present on August 4, 2015
when his property was seized and was aware that CBP was in possession of his
property. Although Plaintiff received the notice, he, through his attorney, did not
respond to CBP until September 3, 2015. (Id. at Pg ID 15.) At this time, he did
not file his claim, but requested an extension of time that does not appear to have
been either granted or received. Plaintiff did not submit his formal claim until
October 23, 2015, which was after the deadline set out in the August 7, 2015
notice. (Id. at Pg ID 25.); see Matthews v. DEA, 629 F. App’x 723, 726 (6th Cir.
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2015) (“The district court was correct to dismiss Matthews and Owens’s
complaint. . . .’ Matthews and Owens’s § 983(e) claim was meritless, even on their
best day, because it was missing an essential ingredient: lack of notice.”)
Therefore, the Court finds that Plaintiff is not entitled to seek relief pursuant to 18
U.S.C. § 983(e) because he had notice of the seizure and potential forfeiture.
As to Plaintiff’s due process arguments, due process requires the
government to provide notice “reasonably calculated,” under all the circumstances,
to place interested parties on notice of the pendency of the action and afford them
an opportunity to be heard and present their objections. See United States v.
Erpenbeck, 682 F.3d 472, 476 (6th Cir. 2012). Plaintiff was provided both notice
and an opportunity to be heard in the August 7, 2015 to which Plaintiff failed to
timely respond. However, Plaintiff contends CBP was required to give Plaintiff
notice of the status of his request for an extension. (ECF No. 24 at Pg ID 120.)
Section 983 does not include any reference to extensions of time. CBP complied
with constitutional due process when it sent the August 7, 2015 notice three days
after the seizure of Plaintiff’s property on August 4, 2015. The August 7, 2015
notice set out Plaintiff’s options for securing his property and deadlines for doing
so. “For due process purposes, the focus must be on the constitutional adequacy of
the statutory procedure and not on whether some additional effort in a particular
case would have in fact led to a more certain means of notice.” Karkoukli’s Inc. v.
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Dohany, 409 F.3d 279, 284 (6th Cir. 2005); see also Comerica Bank, 384 F. App’x
at 475 (“Although Comerica Bank may have substantially, albeit incompletely,
complied with the statute’s claim requirements, . . . the statute neither permits such
substantial compliance nor requires the Government to notify a claimant of defects
in a purported claim. Therefore, Comerica Bank may not set aside the forfeiture
based on substantial compliance or the Government’s failure to notify it of defects
in its filing.”) As such, CBP was not required to respond to Plaintiff’s request for
an extension of time and requiring CBP to have done so would effectively enhance
the due process requirements of § 983(e). Therefore, the Court finds that CBP
complied with constitutional due process when it sent Plaintiff the August 7, 2015
notice.
Finally, Plaintiff argues that he is entitled to equitable tolling. Plaintiff
contends “CBP still has yet to establish that there was any criminal wrong-doing
that would entitle it to forfeiture, and no such hearing has been held, Plaintiff is
entitled to equitable tolling, where the delay in making his claim was a good faith
effort to preemptively establish his innocence.” (ECF No. 24 at Pg ID 124.)
Although the Court recognizes Plaintiff’s efforts to secure his property, the Court
does not have jurisdiction to consider the merits of the civil forfeiture, including
the timeliness of Plaintiff’s petition. The relief provided in § 983(e) is limited to

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those persons who were entitled to notice but did not receive notice of a potential
forfeiture. Here, it is undisputed that Plaintiff received the required notice.
IV.

Conclusion
For the reasons set forth above, the Court grants Defendants’ motion to

dismiss.
Accordingly,
IT IS ORDERED that Defendants’ motion to dismiss (ECF No. 20) is
GRANTED.

Dated: January 18, 2018

s/Linda V. Parker
U.S. District Court Judge

I hereby certify that a copy of the foregoing document was served upon counsel of
record on January 18, 2018, by electronic and/or ordinary mail.
s/Julie Owens acting in the Absence of Richard Loury
Case Manager

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