United States District Court, District of Columbia
L. FRIEDRICH UNITED STATES DISTRICT JUDGE
LKQ Corporation and Keystone Automotive Industries, Inc.
(collectively LKQ) bring these actions under the Fifth
Amendment, the Administrative Procedure Act (APA), and the
Court's equity jurisdiction against the United States,
the U.S. Department of Justice (DOJ), and the U.S. Department
of Homeland Security (DHS), as well as several federal
officials in their official capacities. They also bring
Bivens claims against several named and unnamed
federal officials in their personal capacities. Before the Court
are the defendants' Motion to Dismiss (First Motion to
Dismiss), Dkt. 20, and Motion to Dismiss the Defendants in
Their Individual Capacities (Bivens Motion), Dkt.
43. For the following reasons, the Court will grant in part
and deny in part the defendants' First Motion to Dismiss
and grant the defendants' Bivens Motion.
plaintiffs import and sell replacement parts for automobiles,
including automotive “repair grilles.” Compl.
¶¶ 5, 27, Dkt. 1. In April 2017, Customs and Border
Protection (CBP), a component of DHS, began seizing grilles
owned and imported by the plaintiffs at ports in Georgia,
California, and Minnesota. Id. ¶ 41. CBP
justified the seizures based on its conclusion that the
grilles were unlawful “counterfeit[s]” of
trademarked grille designs recorded and registered by the
original auto manufacturers. Id. ¶ 42; see
also 19 U.S.C. § 1526(e) (subjecting
“merchandise bearing a counterfeit mark” to
seizure and forfeiture).
plaintiffs dispute CBP's position as a matter of
trademark law, but they have been unable to secure judicial
review of the seizures in a timely manner. See
Compl. ¶¶ 42, 45-48, 53; Pls.' Supp. Br. 3-5.
By law, when an importer receives notice of a seizure by CBP,
the importer has several options, two of which are relevant
here. First, it can file a “petition for remission or
mitigation” with CBP. 19 U.S.C. § 1618; 19 C.F.R.
§ 171.1. Under this option, the importer and CBP work
together to resolve the dispute informally, without court
intervention. See United Stats v. Von Neumann, 474
U.S. 242, 250 (1986). The petition process assumes the
validity of the underlying seizure but allows CBP to remit or
mitigate the penalty of forfeiture voluntarily. See
19 U.S.C. § 1618; 19 C.F.R. §§ 171.11-12;
see also Ibarra v. United States, 120 F.3d 472, 475
(4th Cir. 1997) (explaining that a petition for remission
“does not serve to contest the forfeiture, but rather
is a request for an executive pardon of the property based on
the petitioner's innocence”).
time, the importer can opt out of this process and elect to
challenge the seizure in a judicial forfeiture proceeding
instead. 19 U.S.C. § 1608; 19 C.F.R. § 162.47. To
exercise this second option, the importer must submit a claim
to the seized property, along with a bond, to CBP. 19 U.S.C.
§ 1608; 19 C.F.R. § 162.47. Once the importer has
done so, CBP must transmit the claim and bond to the U.S.
Attorney for the district in which the seizure occurred. 19
U.S.C. § 1608. After receiving the claim and bond, the
U.S. Attorney must either seek civil judicial forfeiture of
the goods in federal court or decline to do so (in which case
the goods are returned to the claimant). Id.
statutory provisions govern the timing of the judicial
forfeiture process, once requested. 19 U.S.C. § 1603
requires “the appropriate customs officer to report
promptly [the] seizure or violation to the United
States attorney.” 19 U.S.C. § 1603(b) (emphasis
added). And 19 U.S.C. § 1604 requires “the
Attorney General of the United States immediately to
inquire into the facts of cases [so] reported” and
“to cause the proper proceedings to be commenced and
prosecuted, without delay.” 19 U.S.C. §
1604 (emphases added).
case, the plaintiffs initially pursued the administrative
petition process for 162 out of 175 seizures, beginning on
May 26, 2017. Compl. ¶ 43. But when months went by
without a ruling from CBP, the plaintiffs withdrew some of
their petitions and elected to pursue the judicial forfeiture
option instead. Id. ¶¶ 44-45. In August
2017, they filed claims and cash bonds with CBP and requested
that 16 seizures be referred to DOJ for judicial forfeiture
proceedings in California and Georgia. Id. ¶
45. In October 2017, CBP issued an internal memorandum
outlining its legal position on the petitions that remained
pending in the administrative process. Id. ¶
52-53. In January 2018, roughly five months after the first
seizures occurred, CBP began denying some of the
plaintiffs' administrative petitions based on the
analysis contained in its October 2017 memo. Id.
¶ 50-52. In March 2018, the plaintiffs submitted claims,
cash bonds, and requests for judicial forfeiture proceedings
for 31 additional seizures for which the plaintiffs'
petitions had been denied. Id. ¶ 55. In May
2018, CBP referred the plaintiffs' earliest claims, the
16 claims from August 2017-but not the 31 additional claims
filed in March 2018-to DOJ. Id. ¶ 57. The
oldest of those claims had been pending with CBP for over six
months before being referred. Id.
plaintiffs filed this action in June 2018, challenging
CBP's delay in referring the plaintiffs' claims to
DOJ and DOJ's delay in initiating forfeiture proceedings
for the claims that had been referred. See generally
Id. ¶¶ 78-109. Simultaneously, the plaintiffs
filed an equitable Motion to Trigger Rapid Filing of
Forfeiture Proceedings, Dkt. 3, seeking an injunction
compelling the government to return the plaintiffs'
property or initiate forfeiture proceedings within a
specified time. At the time the plaintiffs filed their
complaint and motion, CBP had not yet referred the 31 cases
for which the plaintiffs had filed claims three months
earlier in March 2018, and DOJ had not yet initiated
forfeiture proceedings for any of the plaintiffs' claims,
including 16 claims that the plaintiffs had filed in August
2017, which had been pending for nearly 10 months. See
Id. ¶¶ 70, 67. According to the complaint,
these delays-which spanned three separate ports and U.S.
Attorneys Offices-occurred at the express instruction or
direction of one or more of the individual defendants.
See Id. ¶¶ 49, 58, 63, 66, 71, 82.
government responded to the plaintiffs' complaint and
motion by filing a Motion to Dismiss or, in the Alternative,
Motion to Transfer, Dkt. 20. In that motion and related
filings, the government informed the Court that it had acted
on at least some of the plaintiffs' claims after this
suit began. See Defs.' Br. at 19-20; Defs.'
Reply at 5-6, Dkt. 28; Defs.' Nov. 30, 2018 Status
Report. In response to this new information, the Court
ordered supplemental briefing on the status of the
plaintiffs' claims to ensure that it had an accurate and
up-do-date picture of the plaintiffs' claims before
ruling on the defendants' motion to dismiss and the
plaintiffs' motion to trigger rapid filing. See
Jan. 31, 2019 Hr'g Tr. at 7-8, Dkt. 39.
reflected in the briefs submitted in connection with the
pending motions, the parties agree that CBP has now referred
to DOJ (or remitted to the plaintiffs) all but one of the
claims that were pending at the time the plaintiffs filed
their complaint. See Defs.' Supp. Reply at 2,
Dkt. 40. And DOJ has initiated (or declined to initiate)
forfeiture actions for all but twenty-one of those claims.
See Pls.' Supp. Br. at 4-5, Dkt. 38; see
also Defs.' Supp. Reply (no objection to the updated
figures provided by the plaintiffs).
plaintiffs' complaint includes one count under the Due
Process Clause of the Fifth Amendment (count 1), two counts
under the APA (counts 2 and 3), and one count under the
Court's equitable jurisdiction (count 4). See
Compl. at 19-24. For relief, the plaintiffs seek a
declaration that DHS violated the plaintiffs' Fifth
Amendment rights, an injunction compelling the return of the
plaintiffs' property in every case in which their Due
Process rights have been violated, and a series of
injunctions (1) compelling DHS to direct CBP to refer the
plaintiffs' claims to DOJ and (2) compelling DOJ to
immediately inquire into the plaintiffs' claims and
direct the local U.S. Attorneys in each district where the
seizures occurred to either return the plaintiffs'
property or file forfeiture proceedings. Id. at
24-25. The plaintiffs also seek compensatory damages from the
individual defendants sued in their personal capacities under
Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971), for violating their constitutional rights under the
Fifth Amendment. Id. at 24.
defendants' First Motion to Dismiss was initially brought
under Rules 12(b)(1), (2), (3), (4), (5), and (6) of the
Federal Rules of Civil Procedure. However, the defendants
have now conceded that individual defendants Sessions,
Nielsen, Duke, and McAleen have been properly served in their
personal capacities, making Rules 12(b)(4) and (5)
inapplicable. See Dkt. 41 at 1. And the First Motion
to Dismiss does not advance any arguments for dismissal under
Rule 12(b)(6); it merely recites the Rule 12(b)(6) standard.
The Court will therefore treat the defendants' First
Motion to Dismiss as a motion to dismiss under Rules
12(b)(1), (2), and (3), and will deny the motion to the
extent it seeks dismissal under Rules 12(b)(4), (5), and (6).
In addition, although the defendants initially requested a
venue transfer in the alternative, they have now withdrawn
that request and seek only dismissal. See Dkt. 48.
the government conceded service of the individual defendants
sued in their personal capacities, it filed a second motion
to dismiss focused exclusively on the plaintiffs'
Bivens claims (the Bivens Motion). That
motion was filed under 12(b)(6) and will be evaluated
Rule 12(b)(1) of the Federal Rules of Civil Procedure, a
party may move to dismiss an action or claim when the court
lacks subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1). A
motion for dismissal under Rule 12(b)(1) “presents a
threshold challenge to the court's jurisdiction.”
Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir.
1987). Federal district courts are courts of limited
jurisdiction, and it is “presumed that a cause lies
outside this limited jurisdiction.” Kokkonen v.
Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). Thus,
“the plaintiff bears the burden of establishing
jurisdiction by a preponderance of the evidence.”
Moran v. U.S. Capitol Police Bd., 820 F.Supp.2d 48,
53 (D.D.C. 2011) (citing Lujan v. Defs. of Wildlife,
504 U.S. 555, 561 (1992)).
ruling on a Rule 12(b)(1) motion, the court must treat the
plaintiff's factual allegations as true and afford the
plaintiff the benefit of all inferences that can be derived
from the facts alleged.” Jeong Seon Han v.
Lynch, 223 F.Supp.3d 95, 103 (D.D.C. 2016) (internal
quotation marks omitted). Those factual allegations, however,
receive “closer scrutiny” than they would if the
court were considering a Rule 12(b)(6) motion for failure to
state a claim. Id. Also, unlike in the Rule 12(b)(6)
context, a court may consider documents outside the pleadings
to evaluate whether it has jurisdiction. See Jerome
Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.
Cir. 2005). If, at any point, the court determines that it
lacks jurisdiction, the court must dismiss the claim or
action, whether on the defendant's motion or sua sponte.
Fed.R.Civ.P. 12(b)(1), 12(h)(3).
Rule 12(b)(2) of the Federal Rules of Civil Procedure, a
party may move to dismiss an action or claim when the court
lacks personal jurisdiction. Fed.R.Civ.P. 12(b)(2). “On
such a motion, the plaintiff bears the burden of
‘establishing a factual basis for the exercise of
personal jurisdiction' over each defendant.”
Triple Up Ltd. v. Youku Tudou Inc., 235 F.Supp.3d
15, 20-21 (D.D.C. 2017) (quoting Crane v. N.Y. Zoological
Soc., 894 F.2d 454, 456 (D.C. Cir. 1990)). To meet this
burden, a plaintiff cannot rely on conclusory allegations,
id., but rather “must allege specific facts
connecting the defendant with the forum, ” Shibeshi
v. United States, 932 F.Supp.2d 1, 2-3 (D.D.C. 2013)
(citing Second Amendment Foundation v. U.S. Conference of
Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001)).
ruling on a 12(b)(2) motion, the court “may receive and
weigh affidavits and any other relevant matter to assist it
in determining the jurisdictional facts.” Triple Up
Ltd., 235 F.Supp.3d at 20 (internal quotation marks
omitted). “Ultimately, the [c]ourt must satisfy itself
that it has jurisdiction to hear the suit.”
Id. at 20-21 (internal quotation marks omitted).
Rule 12(b)(3) of the Federal Rules of Civil Procedure, a
party may move to dismiss an action or claim when venue is
improper. Fed.R.Civ.P. 12(b)(3). Similarly, the federal venue
statute, 28 U.S.C. § 1406(a), requires a court to
“dismiss, or if it be in the interest of justice,
transfer” a case that has been filed “in the
wrong division or district.” 28 U.S.C. § 1406(a).
On a Rule 12(b)(3) motion, the moving party “must
provide sufficient specificity to put the plaintiff on
notice” of the potential defect, but “the burden
remains on the plaintiff to establish that venue is
proper.” McCa ...