Serrano v. U.S. Customs and Border Protection et al., Nos. 2:17-cv-00048 (W.D. Tex., filed Sept. 6, 2017) and 18-50977 (5th Cir., filed Nov. 21, 2018)

On September 6, 2017, the Institute for Justice brought a class action suit against Customs and Border Protection over the agency’s practice of engaging in civil forfeiture of vehicles at ports of entry on the U.S.-Mexico border. The plaintiff, Gerardo Serrano, was detained in 2015 when crossing into Mexico at the Eagle Pass, Texas port of entry. After CBP officers found a small amount of pistol ammunition in his truck, they seized the vehicle. CBP held his truck for over two years without ever filing a civil forfeiture action in court against him, despite requiring him to post thousands of dollars for a bond purportedly to allow him to challenge the seizure. Because the agency never filed a forfeiture action, Mr. Serrano was given no opportunity to have his day in court and challenge CBP’s seizure.

His complaint alleges that CBP seizes hundreds of vehicles owned by American citizens each year and refuses to hold prompt post-seizure hearings at which the owners can challenge the seizure. The class action suit seeks declaratory and injunctive relief requiring CBP to hold prompt post-seizure hearings, as well as compensation for Mr. Serrano. In October 2017, CBP returned Mr. Serrano’s truck without subjecting it to a forfeiture action. On December 13, 2017, Defendants moved to dismiss the suit. The parties completed briefing on January 19, 2018.

On July 23, 2018, the magistrate judge issued a Report and Recommendation in which he advised granting Defendants’ motions to dismiss.

On September 28, 2018, the district court adopted the magistrate judge’s recommendations and issued an order denying class certification and granting all motions to dismiss. Mr. Serrano appealed the district court decision to the Fifth Circuit on November 21, 2018.

In April 2019, the plaintiff filed his opening brief with the Fifth Circuit. Several amicus briefs were filed in support. The government’s answering brief was filed in August 2019. As of October 2019, those briefs are still pending. The government filed a notice of supplemental authority regarding Cantu v. Moody 933 F.3d 414 (5th Cir. Aug. 5, 2019) on January 28, 2020. The court heard oral argument on February 4, 2020. On February 26, 2020, the plaintiff filed a notice of supplemental authority regarding the Supreme Court’s decision in Hernandez v. Mesa.

The Fifth Circuit affirmed the lower court’s decision on September 16, 2020, holding (1) that CBP’s seizures of property without prompt judicial hearings on remission do not violate the Due Process Clause and (2) that Serrano failed to state a Bivens claim, as his complaint did not plausibly allege that CBP agents violated clearly establish law by seizing his truck and keeping it for 23 months without providing him with a post-seizure hearing.

On December 1, 2020, Plaintiffs petitioned the Supreme Court for a Writ of Certiorari. On March 2021, Respondent filed a brief in opposition and Petitioners filed their reply. On April 19, 2021, the Supreme Court denied the cert petition.

• Complaint
• Plaintiff’s Motion for Class Certification
• Defendants’ (USA, CBP, Kevin McAleenan) Motion to Dismiss
• Defendant Juan Espinoza’s Motion to Dismiss
• Defendants’ Opposition to Motion for Class Certification
• Plaintiff’s Opposition to Defendants’ (USA, CBP, and Kevin McAleenan) Motion to Dismiss
• Plaintiff’s Opposition to Defendant Juan Espinoza’s Motion to Dismiss
• Plaintiff’s Reply to Defendants’ Opposition to Motion for Class Certification
• Defendant Juan Espinoza’s Reply in Support of Motion to Dismiss
• Defendants’ (USA, CBP, Kevin McAleenan) Reply in Support of Motion to Dismiss
• Magistrate Judge’s Report and Recommendation
• Plaintiff’s Objections to Report and Recommendation
• District Court’s Order

Fifth Circuit Pleadings:

• Plantiff’s Opening Brief
• Brief Amici Curiae Law Professors in Support of Plaintiff
• Brief Amici Curiae National Association of Criminal Defense Lawyers, CATO Institute, and Due Process Institute in Support of Plaintiffs
• Brief Amicus Curiae Americans for Forfeiture Reform
• Appellee’s Answering Brief
• Notice of Supplemental Authorities
• Plaintiff’s Notice of Supplemental Authority Regarding Hernandez Decision
• Fifth Circuit Order

Supreme Court:

• Respondent-Petitioner’s petition for certiorari 
• Federal Respondent’s opposition to petition for certiorari 

Counsel: Anya Bidwell & Robert Everett Johnson | Institute for Justice