United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO
V. PARKER U.S. DISTRICT COURT JUDGE.
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
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).
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) for failing to report cash that exceeded
$10, 000 for international travel. Plaintiff told the CBP
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
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.)
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.)
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.)
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).
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
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).
Applicable Law and Analysis
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 ...