Nwaorie v. USA ( 2023 )

Case: 19-20706 Document: 00516720818 Page: 1 Date Filed: 04/21/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
April 21, 2023
No. 19-20706 Lyle W. Cayce
Clerk
Anthonia I. Nwaorie, on behalf of herself and all others similarly
situated,
Plaintiff—Appellant,
versus
United States of America; U.S. Customs and Border
Protection; Kevin K. McAleenan,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-1406
Before Richman, Chief Judge, and Dennis and Haynes, Circuit
Judges.
Per Curiam:*
On October 31, 2017, Customs and Border Protection (CBP) officers
seized over $40,000 from Anthonia Nwaorie’s carry-on luggage before she
boarded an international flight from Houston to Nigeria. The officers seized
Nwaorie’s cash pursuant to 31 U.S.C. § 5317, which permits the seizure and
*
This opinion is not designated for publication. 5th Circuit Rule 47.5.4.
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No. 19-20706
civil forfeiture of funds traceable to a failure to report the transportation of
over $10,000 to or from the United States, based on Nwaorie’s admitted fail-
ure to properly report the cash. The government later declined to pursue
judicial civil forfeiture proceedings against the seized cash.
In this situation, the Civil Asset Forfeiture Reform Act (CAFRA), 18
U.S.C. § 983, requires the government to “promptly” return the seized
property. But instead of immediately returning the currency, CBP sent
Nwaorie a letter giving her one of two choices. First, she could sign and re-
turn a Hold Harmless Agreement (HHA), in which she waived any rights
against the government and its agents because of the seizure of the property.
According to the letter, if Nwaorie signed and returned the HHA within 30
days, her property would be returned. As a second choice, the letter stated
that if she chose not to enter into the HHA, the Government would initiate
administrative forfeiture proceedings. Nwaorie did not sign the HHA but
instead filed the instant putative class action suit against the United States of
America, CBP, and Kevin McAleenan in his official capacity as the Commis-
sioner of CBP. After she filed her complaint, the Government returned cur-
rency of equal value to the cash that had been seized.
The district court dismissed Nwaorie’s complaint for lack of subject
matter jurisdiction and for failure to state a claim. On review, we find that
Nwaorie lacks standing for the relief she seeks; her claim for interest is barred
by sovereign immunity, and she has failed to state a claim that her procedural
due process rights were violated by her being subjected to additional screen-
ing. We therefore AFFIRM the district court’s dismissal of Nwaorie’s
claims.
I.
On October 31, 2017, Nwaorie sought to board a flight from George
Bush Intercontinental Airport in Houston to Nigeria. She was traveling with
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$41,377 in U.S. currency in her carry-on luggage, which she contends she in-
tended, in part, to use to start a medical clinic in Nigeria and, in part, to de-
liver to family. As Nwaorie was about to board her flight, she was stopped
and questioned by CBP officers about how much cash she was carrying.
Nwaorie claims that she understood the officers to be asking only about the
cash on her person, so she responded that she had $4,000, the amount of
cash in her purse. She then filled out a currency declaration report stating
that she was carrying $4,000. CBP officers searched her carry-on luggage
and found the additional cash in excess of $40,000 that Nwaorie was trans-
porting.
Because Nwaorie failed to report that she was transporting over
$10,000, the officers seized all of her cash pursuant to 31 U.S.C. § 5317. This
provision permits the seizure and civil forfeiture of funds traceable to a failure
to report the transportation of over $10,000 to or from the United States. 31
U.S.C. § 5317; see also id. at § 5316. Nwaorie then made a round trip to Ni-
geria. When Nwaorie returned to the United States, she was directed to a
separate lane from other passengers, where she was purportedly subjected to
more invasive screening. CBP agents “ransacked” her luggage and slit open
the bottom of her purse to search its lining. She alleges that one agent told
her that CBP was aware that her money had been previously seized and would
now “follow her wherever she goes,” subjecting her to invasive treatment
every time she travels internationally.
Pursuant to CAFRA, on November 6, 2017, CBP sent Nwaorie a no-
tice of the seizure of the $41,377. See 18 U.S.C. § 983(a)(1)(a). The notice
stated that Nwaorie was permitted to, inter alia, request an administrative
review of the seizure or request that the matter be referred to the United
States Attorney’s Office (USAO), which would decide whether to pursue a
judicial forfeiture proceeding under CAFRA.
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Nwaorie opted for a referral to the USAO and also filed a “CAFRA
Seized Asset Claim Form” stating her interest in the seized cash and author-
izing the government to file a complaint for its judicial forfeiture. See id. at §
983(a)(2) (explaining the requirements for the filing of a claim for property
seized in a nonjudicial civil forfeiture proceeding). The filing of a proper
claim requires CBP to either “return the [seized] property” or “suspend the
administrative forfeiture proceeding and promptly transmit the claim . . . to
the appropriate U.S. Attorney for commencement of judicial forfeiture pro-
ceedings.” 28 C.F.R. § 8.10(e). If the Government does not bring a com-
plaint for judicial forfeiture within ninety days of the filing of a claim, CAFRA
states that “the Government shall promptly release the property pursuant to
regulations promulgated by the Attorney General and may not take any fur-
ther action to effect the civil forfeiture of such property.” 18 U.S.C. §
983(a)(3)(B)(ii)(II). CAFRA further requires CBP to “promptly notify the
person with a right to immediate possession of the property, informing that
person to contact the property custodian within a specified period for the re-
lease of the property.” 28 C.F.R. § 8.13(b).
The USAO declined to bring a forfeiture action for Nwaorie’s seized
money, and, on April 4, 2018, CBP sent Nwaorie a letter informing her that
she was required to sign and return an HHA within thirty days to obtain her
cash. The letter stated that once the HHA was received, a refund check
would be issued to Nwaorie within eight to ten weeks. However, the letter
asserted that, if Nwaorie failed to return the signed HHA, CBP would initiate
“administrative forfeiture proceedings.” The enclosed HHA provided that,
in exchange for the return of her cash, Nwaorie agreed to:
• release and forever discharge the United States, its employ-
ees, and agents from any lawsuits in connection with the
seizure or release of the cash;
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• hold harmless the United States, its employees, and agents
from lawsuits “by any others” for claims arising from the
seizure or release of the cash;
• reimburse the United States for any necessary expenses, at-
torney’s fees, or costs incurred in the enforcement of the
agreement within thirty days of receiving notice; and
• waive any claim to attorney’s fees, interest or any other re-
lief related to the seizure of her cash
Nwaorie did not sign the HHA.
In June 2018, Nwaorie was again allegedly singled out for invasive
screenings by Transportation Security Administration (TSA) officials before
boarding a domestic flight. She also alleges that when she flew to Nigeria in
October 2018, “unknown government agents” “thoroughly” searched her
belongings, resulting in a body wash spilling on the contents of her luggage,
ruining much of it. She contends her name has been placed in a government
database of persons to be subjected to additional screening measures before
flying. Other than the comment from a CBP officer in December 2017 that
the agency would follow her wherever she goes, however, Nwaorie was never
notified of her inclusion in this database.
Nwaorie alleges that the only means of challenging her inclusion in the
database is through the Department of Homeland Security Traveler Redress
Inquiry Program (DHS TRIP). The Department of Homeland Security
(DHS) “created this program in response to Congress’s statutory mandate
to ‘establish a timely and fair redress process for individuals who believe they
have been delayed or prohibited from boarding a commercial aircraft because
they were wrongly identified as a threat.’” Shearson v. Holder, 725 F.3d 588,
590–91 (6th Cir. 2013) (quoting 49 U.S.C. § 44926). Travelers can initiate
the redress process by submitting an inquiry form through DHS TRIP, which
will result in DHS reviewing the individual’s information, “correct[ing] any
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erroneous information, and provid[ing] the individual with a timely written
response.” 49 C.F.R. § 1560.205(d); see also Department of Homeland Se-
curity, DHS Traveler Redress Inquiry Program (DHS TRIP),
https://www.dhs.gov/dhs-trip. The inquiry form, however, does not permit
a traveler to provide arguments or evidence challenging the basis for their
inclusion in the database nor to examine the Government’s evidence. Nwao-
rie has not utilized the DHS TRIP administrative process.
Nwaorie filed the instant lawsuit in May 2018, asserting both class and
individual claims against the United States of America, CBP and Kevin
McAleenan in his official capacity as the Commissioner of CBP. Nwarorie
brought, against all defendants, two class claims for ultra vires violations of
the Civil Asset Forfeiture Reform Act and for violations of the Fifth Amend-
ment’s due process clause, as well as two individual claims for return of her
property and for violations of the Fifth Amendment. On the same day Nwao-
rie filed her complaint, she also moved to certify a class on behalf of herself
and similarly situated persons. After Nwaorie filed her complaint and motion
for class certification, the Government returned to her the amount of cash it
had seized from her.
Based in part on this return, the Government moved to dismiss Nwao-
rie’s claims for lack of subject matter jurisdiction and failure to state a claim.
The motion was referred to a magistrate judge who recommended that it be
granted. As to subject matter jurisdiction, the magistrate judge reasoned that
sovereign immunity barred Nwaorie’s claim against the government for in-
terest, and since the Government had already returned the $41,337, her
claims arising from the seizure and attempted forfeiture were moot. Specifi-
cally, the magistrate judge recommended that Nwaorie’s individual claims
for the return of her property and her contentions that the HHAs at issue
violated CAFRA and imposed unconstitutional conditions on the return of
seized property were moot. The magistrate judge determined, however, that
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an exception to mootness for putative class claims applied to the latter two
contentions, which rendered them nonetheless justiciable. But the magis-
trate judge recommended that Nwaorie be found not to have stated a claim
on the merits. The district court adopted the report in full. This appeal fol-
lowed.
While this appeal was pending, the Government informed this court
that CBP has ceased employing HHAs in circumstances like those presented
in this case. Additionally, a DHS Inspector General Report was issued that
identified numerous deficiencies and inconsistencies in the manner CBP han-
dled civil forfeitures under CAFRA. In response to the report, “DHS agreed
to develop a department-wide directive to: 1) ensure compliant CAFRA im-
plementation; 2) provide notices and forms that conform to Federal best
practices; and 3) ensure consistent practices for managing responses to prop-
erty owners, while taking into account the different forfeiture authorities of
each component. The Government contends these developments further
demonstrate that Nwaorie’s claims are moot, and Nwaorie has not re-
sponded.
II.
This court reviews de novo a district court’s dismissal for lack of sub-
ject-matter jurisdiction. Rothe Dev., Inc. v. U.S. Dep’t of Def., 666 F.3d 336,
338 (5th Cir. 2011). “A federal court has no subject matter jurisdiction over
claims against the United States unless the government waives its sovereign
immunity and consents to suit.” Id. (internal quotation marks and citation
omitted). The de novo standard also applies to review of a district court’s
dismissal of a complaint for failure to state a claim. Hosein v. Gonzales, 452
F.3d 401, 403 (5th Cir. 2006). The court’s analysis focuses “exclusively on
what appears in the complaint and its proper attachments.” Wilson v. Birn-
berg, 667 F.3d 591, 595 (5th Cir. 2012). A plaintiff must plead “enough facts
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to state a claim to relief that is plausible on its face.” Bell Alt. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim meets this standard “when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
III.
We first must consider whether Nwaorie’s request for equitable relief
under her individual and putative class claims arising from the seizure and
attempts to force her to sign an HHA are justiciable. Because we find this
inquiry dispositive, we do not address their merits. We then consider the
merits of Nwaorie’s procedural due-process challenge to CBP’s targeting her
for additional screenings without providing a meaningful opportunity to con-
test this procedure. 1
A. Justiciability of the Seizure and HHA Claims
Article III limits the power of federal courts to cases and controver-
sies. U.S. Const. art. III, § 2. A plaintiff must have standing to sue, which,
“for injunctive relief,” requires a party to “(1) have suffered an injury-in-
fact; (2) establish a causal connection between the injury-in-fact and a com-
plained-against defendant’s conduct; (3) show that it is likely, not merely
speculative, that a favorable decision will redress the injury-in-fact; and (4)
demonstrate either continuing harm or a real and immediate threat of re-
peated injury in the future.” Funeral Consumers Alliance, Inc. v. Serv. Corp.
Intern., 695 F.3d 330, 342 (5th Cir. 2012) (internal quotation marks and cita-
tion omitted). The threat of injury must be “concrete and particularized”
and “actual or imminent, not conjectural or hypothetical.” Lujan v. Defs. of
1
Nwaorie has expressly abandoned her equal protection challenge to the additional
screening.
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Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks and citations
omitted).
Further, “standing is not dispensed in gross,” and “a plaintiff must
demonstrate standing for each claim he seeks to press and for each form of
relief that is sought.” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645,
1650 (2017) (quoting Davis v. Fed. Election Comm’n, 554 U.S. 724, 734
(2008)). Standing is assessed at the time a complaint is filed. See Cnty. of
Riverside v. McLaughlin, 500 U.S. 44, 51 (1991). Nevertheless, “an actual
controversy [must] be extant at all stages of review, not merely at the time
the complaint is filed. If an intervening circumstance deprives the plaintiff of
a personal stake in the outcome of the lawsuit, at any point during litigation,
the action can no longer proceed and must be dismissed as moot.” Campbell-
Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016) (cleaned up). The doctrine of
sovereign immunity can also act as a bar to a court’s jurisdiction. See Cozzo
v. Tangipahoa Parish Council, 279 F.3d 273, 280 (5th Cir. 2002).
1. Nwaorie’s Standing for the Equitable Relief She Seeks
In a putative class action, the named plaintiff must demonstrate that
she individually has standing. See Simon v. E. Ky. Welfare Rights Org., 426
U.S. 26, 40 n.20 (1976). The Government argues that because Nwaorie
opted not to sign the HHA, it could not result in any injury to her, and as
such, she lacks standing for her class claims that the HHAs issued by CBP
are ultra vires and impose unconstitutional conditions. We agree. Nwaorie
lacks standing to pursue the equitable relief she seeks in the form of: (1) a
declaration that any current HHAs are void; (2) a declaration that CBP’s pol-
icy of using HHAs is unlawful; (3) an injunction prohibiting CBP from con-
ditioning the return of seized property on a claimant signing an HHA in the
future; and (4) an injunction prohibiting CBP from continuing to hold seized
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property for failure to sign an HHA and requiring the return of any property
seized and retained under these circumstances.
Nwaorie does not have standing to request declarations from the court
rendering “void and unenforceable any [HHA]s executed by class members
as a condition of CBP returning their seized property” or declaring the use
of HHAs unlawful given that Nwaorie never entered into an HHA. Gener-
ally, “[i]n order to satisfy the standing requirement of an ‘actual or immi-
nent’ injury, a plaintiff generally must submit to the challenged policy before
pursuing an action to dispute it.” Davis v. Tarrant Cnty., 565 F.3d 214, 220
(5th Cir. 2009). Not only did Nwaorie never submit to the HHA policy she
seeks to challenge, but she has offered no argument that it would have been
futile for her to submit to the challenged policy before pursuing this lawsuit.
2 LeClerc v. Webb, 419 F.3d 405, 413 (5th Cir. 2005) (“[S]trict adherence to
the standing doctrine may be excused when a policy’s flat prohibition would
render submission futile.”). And while the declarations Nwaorie seeks from
the court would remedy harm to class members who did submit to the HHA
policy, Nwaorie “‘may not seek redress for injuries done to others.’” Ellison
v. Connor, 153 F.3d 247, 255 (5th Cir. 1998) (quoting Moose Lodge No. 107 v.
Irvis, 407 U.S. 163, 166 (1972)).
Nwaorie similarly may not request an order “[e]njoin[ing] the De-
fendants from continuing to condition the return of seized property to class
members’ signing [HHA]s or any other agreements demanding that class
members waive their constitutional or statutory rights, or incur new legal lia-
bilities.” The Government is correct that Nwaorie has not met the standard
2
Moreover, the Government submitted evidence, in the form of an affidavit from
the Director of CBP’s Fines, Penalties, and Forfeiture division, averring that any individual
who CBP has asked to sign an HHA in connection with seized property “may request that
CBP modify the terms of such agreement or void [the agreement].”
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for prospective equitable relief with respect to this claim because an order
enjoining CBP from conditioning the return of seized property on a claim-
ant’s signing an HHA in the future would have done nothing to address the
harm that Nwaorie was suffering at the time of her complaint, as CBP had
already imposed such an ultimatum on her. See City of Los Angeles v. Lyons.
461 U.S. 95, 105-06 (1983). As in Lyons, where the court denied an injunction
because plaintiff’s assertion of only a past injury did not “establish a real and
immediate threat” that he would again be illicitly choked by officers, here
Nwaorie’s injury from being forced to choose between signing the HHA and
the return of her property would not be addressed by an injunction prohibit-
ing CBP from subjecting future plaintiffs to the same choice and she has not
established “a real and immediate” threat that her personal injury will reoc-
cur. Id. Any threat that CBP would seize her property again and seek to press
an HHA on her is speculative.
Finally, Nwaorie lacks standing to seek an injunction prohibiting “De-
fendants from continuing to hold seized property because a class member has
not signed a[n] [HHA],” and requiring “Defendants to immediately return
all such seized property.” Nwaorie similarly failed to demonstrate an ongo-
ing harm or the “immediate threat” of future injury in association with these
requests for relief. Funeral Consumers, 695 F.3d at 342; Deutsch v. Annis En-
ters., Inc., 882 F.3d 169, 174 (5th Cir. 2018). By the time Nwaorie filed her
complaint, CBP had initiated her refund process and ultimately returned her
property just 19 days later. Because CBP was in fact in the process of return-
ing her property at the time Nwaorie filed her complaint, Nwaorie only al-
leges a past injury that is insufficient to establish standing to pursue the equi-
table relief she seeks on behalf of her proposed class. Lyons, 461 U.S. at 102(equitable relief cannot be obtained based on past injury alone, unaccompa-
nied by “present adverse effects.”). And as noted above, Nwaorie may not
seek class relief for harm done to others. Ellison, 153 F.3d at 255.
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Because Nwaorie has not alleged a cognizable injury in support of the
equitable relief she seeks through her individual and class claims related to
the HHA policy, the district court properly dismissed 3 these claims. We af-
firm the district court’s dismissal of these claims.
2. Sovereign Immunity
In addition to the return of her and the putative class members’ prop-
erties, Nwaorie seeks the interest that she contends the Government owes
for the time the various properties were in the Government’s possession.
The Government argues that sovereign immunity precludes Nwaorie’s indi-
vidual and class claims for interest. 4 Nwaorie responds that sovereign im-
munity is no obstacle to her claim for interest because while sovereign im-
munity bars a claim for pre-judgment interest, her claim is for disgorgement
of undeserved profits, which is not subject to sovereign immunity.
Nwaorie’s argument runs counter to the holdings of the majority of
sister circuits that have considered this issue. The First, Second, Third,
Eighth, and Tenth Circuits have all held that sovereign immunity bars claims
for interest accrued on property the Government seizes but ultimately re-
turns. Larson v. United States, 274 F.3d 643, 645 (1st Cir. 2001); Ikelionwu v.
United States, 150 F.3d 233, 239 (2d Cir. 1998); United States v. Craig, 694
F.3d 509, 513 (3d Cir. 2012); United States v. $7,990.00 in U.S. Currency, 170
F.3d 843, 845-46 (8th Cir. 1999); United States v. $30,006.25 in U.S. Cur-
rency, 236 F.3d 610, 614 (10th Cir. 2000). These courts reasoned that award-
ing interest in this situation would amount to requiring the Government to
3
Given CBP’s apparent voluntary cessation of its policy of conditioning the return
of property on claimants’ signing HHAs, these claims are also likely moot.
4
Sovereign immunity generally does not bar a claim for injunctive relief. See Larson
v. Domestic & Foreign Comm. Corp., 337 U.S. 682 (1949); Dugan v. Rank, 372 U.S. 609(1963); 5 U.S.C. § 702.
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pay pre-judgment interest absent an express abrogation of immunity. And
they have roundly rejected the notion that simply terming the interest as dis-
gorgement of profits renders sovereign immunity inapplicable. See Craig,
694 F.3d at 512 (“Craig next argues that equity requires the Government to
disgorge the interest. Craig cites no authority—nor are we aware of any—
for the proposition that equity can abrogate the sovereign immunity of the
United States.”); $7,990.00 in U.S. Currency, 170 F.3d at 845 (“Sovereign
immunity does not depend upon whether the government benefitted from its
conduct in question.”); $30,006.25 in U.S. Currency, 236 F.3d at 613(“[R]echaracterizing an interest award as a disgorgement of profits circum-
vents the effect of sovereign immunity.”).
While a handful of circuits have taken a contrary view based on a the-
ory of fundamental fairness, see, e.g., United States v. $515,060.42 in U.S.
Currency, 152 F.3d 491, 505 (6th Cir. 1998); .United States v. $277,000 U.S.
Currency, 69 F.3d 1491, 1498 (9th Cir. 1995), the approach of the minority of
circuits is inconsistent with the Supreme Court’s instructions in Shaw that
“the no-interest rule cannot be avoided simply by devising a new name for an
old institution.” Library of Cong. v. Shaw, 478 U.S. 310, 321 (1986); $
30,006.25 in U.S. Currency, 236 F.3d at 614 (citing Shaw, 478 U.S. at 321(“Courts lack the power to award interest against the United States on the
basis of what they think is or is not sound policy.” (quotation omitted))). The
Supreme Court has clearly stated that interest may not be awarded against
the Government absent a waiver of sovereign immunity, and no such waiver
exists here. We accordingly hold that Nwaorie’s claim for interest is barred
by sovereign immunity and thus not justiciable.
B. Nwaorie’s Individual Due Process Claim
Nwaorie also brings a procedural due process claim; she contends that
CBP placed her in a screening database that has resulted in her being targeted
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for, and subjected to, intrusive airport screenings. Further, she asserts that
she was never provided notice that she was included in the database and can-
not meaningfully contest her inclusion in the database through the available
administrative remedy, DHS TRIP.
This court uses a two-step analysis to determine whether an individ-
ual’s procedural due process rights have been violated. 5 First, the court
“asks whether there exists a liberty or property interest which has been in-
terfered with by the” Government action. Meza v. Livingston, 607 F.3d 392,
399 (5th Cir. 2010) (quoting Kentucky Dep’t. of Corr. v. Thompson, 490 U.S.
454, 460 (1989)). If so, “the court examines whether the procedures at-
tendant upon that deprivation were constitutionally sufficient.’” Id. Here,
Nwaorie’s due process claim is properly dismissed under the first prong of
this analysis as she has failed to adequately plead that the Government has
interfered with a cognizable liberty or property interest.
Nwaorie asserts four liberty interests: (1) the ability to travel interna-
tionally and domestically without harassment; (2) having a reputation that is
not impaired by “false government stigmatization;” (3) being free from dis-
crimination based on her race and national origin; and (4) being free from
unreasonable searches and seizures. Each will be addressed in turn.
“The right to travel is a ‘liberty’ interest within the meaning of the
Fifth Amendment.” Hernandez v. Cremer, 913 F.2d 230, 237 (5th Cir. 1990).
The question, then, is whether the Government has deprived or “interfered”
with this interest. Meza, 607 F.3 at 399. In characterizing this right to travel,
5
The Government argues that Nwaorie has not exhausted the available adminis-
trative review—DHS TRIP—and should be required to do so before availing herself of ju-
dicial review. But courts maintain discretion in applying the jurisprudential exhaustion re-
quirement, Taylor v. U.S. Treasury Dep’t., 127 F.3d 470, 475 (5th Cir. 1997), and here judi-
cial efficiency is best served by resolving her claim now.
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the Supreme Court has distinguished between the right of interstate versus
international travel. Whereas the right of the former is “virtually unquali-
fied,” the right of the latter is “no more than an aspect of the ‘liberty’ pro-
tected by the Due Process Clause.” Califano v. Torres, 435 U.S. 1, 4 n.6
(1978). And even interstate travel is subject to “statutes, rules, or regula-
tions” that do not “unreasonably restrict movement.” Saenz v. Roe, 526 U.S.
489, 499, (1999) (internal quotation marks omitted); see also Haig v. Agee, 453
U.S. 280, 306 (1981) (international travel “subject to reasonable governmen-
tal regulation”).
In Abdi v. Wray, the Tenth Circuit held that heightened scrutiny of an
airline passenger who had been placed on a terrorist watchlist did not amount
to a deprivation of the passenger’s travel rights. 942 F.3d 1019, 1032 (10th
Cir. 2019). There, the passenger underwent extra security measures and was
delayed for forty-eight hours as he tried to fly home from overseas. Id. The
Tenth Circuit concluded that these additional burdens were simply “imped-
iments” that “reasonably encumbered” only one mode of travel. Id.; see also
Miller v. Reed, 176 F.3d 1202, 1205 (9th Cir. 1999) (“burdens on a single mode
of transportation do not implicate the right to travel”). Similarly, the Sixth
Circuit held that delays of up to an hour due to additional screening did not
infringe on the liberty interest in travel. See Beydoun v. Sessions, 871 F.3d 459,
468 (6th Cir. 2017). Significantly, the Sixth Circuit also held that, despite
plaintiffs’ claim that the delays deterred them from traveling, the “minor dis-
turbance” from the delay did not actually deny the right to travel. Id. (citing
Pollack v. Duff, 793 F.3d 34, 45 (D.C. Cir. 2015 (explaining that if a law’s “ef-
fect upon [a plaintiff’s] willingness to travel, i.e., exercise her right to travel,
is ‘negligible[,]’” then it “does not warrant scrutiny under the Constitu-
tion”); see also Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 140-41 (2d
Cir. 2010) (travel restriction was “minor” and did not deny right to travel
when “the most-inconvenienced plaintiff was delayed a little over one day”).
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In view of the caselaw, Nwaorie’s allegations do not rise to level of
showing that her right to travel was infringed. Other than stating generally
that she is subject to “additional” or “intrusive” or “invasive” screening,
she has not characterized the nature or duration of her airport security
screenings, much less how they how they have interfered with her actual abil-
ity to travel. 6 The only specific searches she actually describes in her com-
plaint are incidents in (1) December 2017, when a CBP officer allegedly slit
open her leather purse during a search and (2) October 2018, when an officer
opened but did not properly close a bottle of body wash during an inspection,
and the substance later spilled on and ruined some of Nwaorie’s luggage.
While having property damaged or destroyed during two searches may be ag-
gravating, Nwaorie evidently has continued to use air travel, and she does not
allege that any other form of transportation has been limited. See Abdi, 942
F.3d at 1032; Miller, 176 F.3d at 1205. This is not enough to show that her
right to travel has been infringed. See, e.g., Beydoun, 871 F.3d at 468.
Nwaorie’s next contention is that her interest in having a reputation
free from “false stigmatization” has been infringed. “To show a due process
violation under this theory, ‘a . . . plaintiff [must] show stigma plus an in-
fringement of some other interest.” Doe 1-7 v. Abbott, 945 F.3d 307, 313 (5th
Cir. 2019) (brackets in original) (quoting Blackburn v. City of Marshall, 42
F.3d 925, 935–36 (5th Cir. 1995)). That stigma was inflicted “on a person’s
reputation by a [Government] official, without more, does not infringe upon
a protected liberty interest.” Id. (quoting Blackburn, 42 F.3d at 935-36).
Nwaorie simply makes the conclusory allegation that her reputation was
6
In her opening and reply briefs, Nwaorie asserts that she been deterred from trav-
eling due to the invasive screenings. However, her opening brief does not cite any portion
of the record, and the record cite in her reply brief is to a page on her complaint that does
not mention lost travel or the inability to travel. Nor, it seems, does any other part of her
complaint. See FED. R. APP. P. 28 (requiring parties to provide citations to the record).
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damaged by being subjected to additional screening, but she has not explained
how this is so. Moreover, this court has noted “the almost complete absence
of any stigma attached to being subjected to search at a known, designated
airport search point.” United States v. Skipwith, 482 F.2d 1272, 1275 (5th Cir.
1973). While stigma could conceivably attach depending on the nature and
scope of the screening, Nwaorie has not set forth allegations that show she
has suffered from stigma.
Even assuming that Nwaorie demonstrated stigma, she does not ade-
quately allege the infringement of another interest. See Doe 1-7, 945 F.3d at
313. To the extent she argues that she has been subjected to false stigma, she
does not identify the action by the Government that was “false.” Besides
her asserted interests in travel (which, as explained above, was not infringed),
the only other interests she identifies are the freedom from being subjected
to discrimination on the basis of race and national origin and from unreason-
able searches and seizures. And for the reasons below, she does not make out
a plausible claim that either of these interests were infringed. Nwaorie thus
does not show a due process violation under the stigma-plus test. See id.
Nwaorie makes a passing reference to an interest in being free from
discrimination based on race or national origin. However, because she does
not attempt to explain how CBP’s inspection policy infringes on these inter-
ests, she has expressly abandoned her equal protection claim. Accordingly,
she does not plausibly allege that the Government interfered with these in-
terests.
Similarly lacking in support is Nwaorie’s contention that the Govern-
ment infringed her interest in being free from unreasonable searches. She
acknowledges that she received more intensive screening only after she failed
to abide by currency reporting requirements. Moreover, she does not pro-
vide argument on this point; her initial and reply briefs merely mention this
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interest without explaining how it was infringed. This court has also noted
that routine border searches—those that “do not seriously invade a trav-
eler’s privacy”—require no suspicion. United States v. Cardenas, 9 F.3d
1139, 1148 n.3 (5th Cir. 1993). And the “standards for initiating a search of a
person at the boarding gate should be no more stringent than those applied in
border crossing situations.” Skipwith, 482 F.2d at 1276. Last, though Nwao-
rie’s Statement of Facts in her brief recounts two occasions in which her
property was ruined as a result of CBP inspections, she does not contend that
this damage to her belongings infringed her liberty interests. Nwaorie has
therefore not adequately pleaded that the Government violated her Fourth
Amendment rights.
IV.
For the foregoing reasons, we AFFIRM the district court’s dismissal
of Nwaorie’s claims.
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