Nwaorie v. U.S. Customs and Border Protection, et al., No: 4:18-cv-1406 (S.D. Tex., filed May 3, 2018)

On May 3, 2018, the Institute for Justice filed a class-action lawsuit challenging U.S. Customs and Border Protection’s (CBP) policy or practice of demanding that owners of seized property sign “hold harmless” agreements for the return of their property, and thereby waive certain constitutional and statutory rights.

On October 31, 2017, CBP seized approximately $40,000 cash from the named Plaintiff, Anthonia Nwaorie, a U.S. citizen, while she was trying to board an international flight to Nigeria. Ms. Nwaorie intended to use more than $30,000 of the funds she had saved up from her work as a nurse to start a medical clinic in Nigeria for women and children.

In December 2017, Ms. Nwaorie, in compliance with the Civil Asset Forfeiture Reform Act (CAFRA), submitted a claim, requesting judicial forfeiture proceedings. When CBP failed to file a forfeiture complaint within 90 days, it became statutorily required to return the seized property.

However, instead of doing so, in April 2018, CBP mailed Ms. Nwaorie a letter, which conditioned the return of her seized cash on her signing a hold harmless agreement. If she did not sign the agreement to waive her statutory and constitutional rights and to indemnify the government for any claims brought by others related to the seized property, CBP threatened to initiate forfeiture proceedings against her. After filing the lawsuit, CBP finally sent her a check in the amount confiscated.

On July 23, 2018, Defendants moved to dismiss all claims, arguing that they are moot and barred by sovereign immunity. On August 27, Plaintiff filed her opposition to Defendants’ motion. Defendants filed a reply in support of their motion on September 4, and Plaintiff filed a surreply on October 3. As of October 2018, the motion is pending.

In May 2019, a magistrate judge recommended dismissal, finding that sovereign immunity barred the claims, and alternatively, the government’s return of Ms. Nwaorie’s money rendered her claims moot. The magistrate judge also recommended dismissal of Nwaorie’s constitutional claims, finding that CBP had a rational basis to subject her to additional searches because of the large amount of money she was carrying.

The plaintiff filed an objection to the magistrate’s memorandum and recommendations. • Unfortunately, the district court judge affirmed the magistrate judge’s recommendations and dismissed the case in August 2019.

• Complaint
• Defendants’ Motion to Dismiss
• Plaintiff’s Response in Opposition to Defendants’ Motion to Dismiss
• Defendants’ Reply in Support of Motion to Dismiss
• Defendant’s Amended Motion to Dismiss
• Plaintiff’s Response in Opposition to Defendant’s Amended Motion to Dismiss
• Magistrate Judge’s Memorandum and Recommendation
• Plaintiff’s Objection to Memorandum and Recommendation
• Order adopting recommendations and dismissing case

Press Releases:

• https://ij.org/press-release/texas-nurse-files-class-action-against-customs-and-border-protection-over-civil-forfeiture-practices/
• https://ij.org/press-release/customs-finally-returns-money-to-texas-nurse-class-action-over-civil-forfeiture-practices-continues/

Counsel: Institute for Justice

Contacts: 

Dan Alban | Institute for Justice | dalban@ij.org

Anya Bidwell | Institute for Justice | abidwell@ij.org