# Ortega v. United States Customs and Border Protection

> District Court, D. Massachusetts · February 23, 2023

URL: https://www.frixlaw.com/law-library/cases/10200900

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** February 23, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10200900

## How later opinions describe it (automated extraction)

- reversing dismissal of claim for prospective relief enjoining border detention and searches of family members alleged to have been improperly placed on a terrorist watch list maintained by the government
- holding that plaintiffs’ status as federal employees and the absence of a home search were meaningful differences from Bivens
- holding that Bivens does not permit suits against “federal officers sued in their official capacities”

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

_______________________________________
)
NEISA ORTEGA and N.Z., by her next )
friend NEISA ORTEGA, )
)
Plaintiffs, )
)
v. )
)
UNITED STATES CUSTOMS AND )
BORDER PROTECTION; LARISSA )
SYDOR; COLLEEN DOWNEY; MARY ) Civil Action No.
DAVISON; JESSICA CROALL; ) 21-11250-FDS
KIMBERLY CARROLL; IGNACIO )
TAURONI; CBP OFFICERS DOES 3-7, 8, )
12-13; BRETT SWEET; CARRIE )
ACOSTA; DANIEL OUELLETTE; )
CBP COMMISSIONER CHRIS MAGNUS, )
in his official capacity; UNITED STATES )
DEPARTMENT OF HOMELAND )
SECURITY; DHS SECRETARY )
ALEJANDRO MAYORKAS, in his official )
capacity; and THE UNITED STATES )
OF AMERICA, )
)
Defendants. )
_______________________________________)

MEMORANDUM AND ORDER ON
DEFENDANTS’ MOTION TO DISMISS
SAYLOR, C.J.
This case arises out of allegedly unlawful searches and seizures performed by United
States Customs and Border Protection (“CBP”) agents at Boston Logan International Airport.
Plaintiff Neisa Ortega and her minor daughter, N.Z., have brought suit against CBP, certain CBP
officers, CBP Commissioner Chris Magnus, the U.S. Department of Homeland Security
(“DHS”), DHS Secretary Alejandro Mayorkas, and the United States, asserting violations of the
Fourth and Fifth Amendments and various state-law claims under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 2671 et seq. The complaint asserts claims both against law enforcement
officers in their individual capacities and against government agencies and officers in their
official capacities. It seeks money damages as well as injunctive and declaratory relief.
On July 14, 2022, the Court granted defendants’ motion to dismiss Counts 17 and 22 and

Counts 1, 2, 6, and 7 to the extent that they sought money damages. Plaintiffs then filed, with
leave of court, an amended complaint.1 The individual officer defendants (Larissa Sydor,
Colleen Downey, Mary Davison, Jessica Croall, Kimberly Carroll, Ignacio Tauroni, Brett Sweet,
Carrie Acosta, and Daniel Ouellette) have now moved to dismiss all claims against them on the
ground that they fail to state a claim upon which relief can be granted.
The first question is whether the complaint states a claim for money damages against the
officers in their individual capacities. In substance, defendants contend that under the Supreme
Court’s decision in Egbert v. Boule, 142 S. Ct. 1793 (2022), there is no implied cause of action
against federal agents under the Fourth and Fifth Amendments arising out of searches or seizures

occurring at the border. As to that issue, the Court agrees.
Plaintiff’s claims against the individual officers fall into a gap in private civil-rights
enforcement that Congress has (thus far, at least) declined or neglected to fill. Claims against
state and local law enforcement officers seeking money damages for violations of constitutional
rights may be brought under 42 U.S.C. § 1983. There is, however, no comparable statute
applicable to constitutional claims against federal officers.
In 1971, the Supreme Court created such a cause of action in Bivens v. Six Unknown

1 The amended complaint purports to re-assert the claims for money damages in Counts 1, 2, 6, and 7 that
the Court had previously dismissed, as well as the state-law claims set forth in Counts 17 and 22.
Named Agents, 403 U.S. 388 (1971). Over the last four decades, however, the Supreme Court
has grown increasingly uncomfortable with Bivens and its progeny, reasoning that the creation of
new causes of action is properly a task for Congress, not the judiciary. As of this writing, Bivens
has not yet been overruled, but it has been substantially narrowed to a small category of cases—
indeed almost to the vanishing point. Congress has not, however, enacted new legislation in

response to those developments.
The complaint here, in part, seeks money damages against CBP officers arising out of
allegedly unlawful searches and seizures on two individuals entering the United States at an
international airport. To the extent that the damages claims are asserted against the officers in
their individual capacities, they are clearly foreclosed by the Supreme Court’s decision in
Egbert.
The next question is whether the complaint states a claim for money damages against
those officers acting in their official capacities. Those claims are clearly barred by sovereign
immunity.

What remains are the claims for declaratory and injunctive relief. Defendants did not
address those issues in its motion to dismiss, and the Court is reluctant to do so here without the
benefit of full briefing, and perhaps the development of an evidentiary record. Accordingly, and
for the following reasons, the motion to dismiss will be granted in part and denied in part.
I. Background
A. Factual Background
The following facts are set forth as alleged in the amended complaint.
1. Parties
Neisa Ortega is a 45-year-old lawful permanent resident of the United States who resides
in Massachusetts. (Am. Compl. ¶ 8). N.Z. is Ortega’s minor daughter and a United States
citizen who resides with her mother in Massachusetts. (Id. ¶ 9).
Customs and Border Protection (“CBP”) is a federal agency within the Department of
Homeland Security that controls United States ports of entry, including Boston Logan
International Airport. (Id. ¶ 10).
Chris Magnus is the Commissioner for CBP. (Id. ¶ 24). Alejandro Mayorkas is the

Secretary of DHS. (Id. ¶ 26).
Larissa Sydor, Colleen Downey, Brett Sweet, Carrie Acosta, Jessica Croall, Mary
Davidson, Kimberly Carroll, Ignacio Tauroni, and Daniel Ouellette were CBP officers during the
events described in the complaint. (Id. ¶¶ 11, 12, 14, 15, 16, 17, 19, 20, 21).
The complaint names various “Doe” defendants, all of whom are CBP Officers and
Supervisory CBP Officers who were working at Logan Airport at the time of the alleged
incidents. (Id. ¶¶ 13-23). They either allegedly participated in the separation, detention, and
questioning of Ortega and N.Z., conducted body cavity and strip searches of Ortega, or
supervised those acts. (Id.).

2. Alleged Incidents of Search and Seizure
a. April 27, 2019
On April 27, 2019, Ortega and N.Z. flew into Logan Airport from the Dominican
Republic, where they had been visiting family. (Id. ¶¶ 46). According to the complaint, they
were not carrying illegal drugs or engaging in criminal activity of any kind. (Id. ¶ 47). Upon
their arrival that morning, CBP officers approached them and led them into a separate room for
secondary inspection. (Id. ¶¶ 48-50). The officers began opening and inspecting the contents of
their suitcases, but the search revealed no evidence of any illegal activity or substances.
(Id. ¶¶ 52-55). The complaint alleges that the officers then seized their cell phones and
passports. (Id. ¶ 56). The officers allegedly demanded their cell phone passwords and searched
through their phones, including private text messages. (Id. ¶ 57).
After the baggage and cell phone search was completed, two officers (Sydor and
Downey) directed Ortega to a smaller, adjoining room, leaving N.Z. behind. (Id. ¶ 61).
According to the complaint, Ortega was then subjected to a strip search, followed by a visual
cavity search of her vaginal and anal areas. (Id. ¶¶ 70, 72, 79). CBP Officer Sydor allegedly

performed two vaginal cavity searches, telling Ortega that because she kept looking back and
“interrupting” the search, the entire search process had to be repeated. (Id. ¶¶ 85-86). The
searches revealed no evidence of any illegal activity or substances. (Id. ¶¶ 84, 91). She was
thereafter interrogated by approximately seven CBP officers. (Id. ¶ 98-99). According to the
complaint, after three to four hours of confinement, she was released and reunited with N.Z. (Id.
¶¶ 100-01).
b. September 8, 2019
On September 8, 2019, Ortega and a friend again flew into Logan Airport from the
Dominican Republic, where they had been visiting family. (Id. ¶ 103). According to the
amended complaint, Ortega was not carrying illegal drugs or engaging in criminal activity of any

kind. (Id. ¶ 104). Upon arrival, she was again approached by multiple CBP officers and
subjected to a secondary inspection. (Id. ¶¶ 105-16). She was questioned by multiple officers,
who then searched her and her belongings. (Id. ¶¶ 110-11). The searches revealed no evidence
of any illegal activity or substances. (Id. ¶¶ 112, 115). The complaint alleges that after several
hours of confinement, she was released. (Id. ¶ 116).
c. March 16, 2020
On March 16, 2020, Ortega again flew into Logan Airport from the Dominican Republic,
where she had been visiting family. (Id. ¶ 118). According to the complaint, she was not
carrying illegal drugs or engaging in criminal activity of any kind. (Id. ¶ 119). CBP officers
escorted her to a separate room for secondary inspection and searched her luggage, again finding
nothing. (Id. ¶¶ 120-22). She was subsequently released. (Id. ¶ 122).
d. August 20, 2020
On August 20, 2020, Ortega and N.Z. again flew into Logan Airport from the Dominican
Republic, where they had been visiting family. (Id. ¶ 124). According to the amended

complaint, they were not carrying illegal drugs or engaging in criminal activity of any kind.
(Id. ¶ 125). Almost immediately after deplaning, CBP officers approached them and led them
into a separate room for secondary inspection. (Id. ¶¶ 126-27). Ortega was then separated from
N.Z., who was left sitting alone near the baggage-claim area. (Id. ¶¶ 128-29). Officers searched
their suitcases, which revealed nothing illicit. (Id. ¶ 134). She was allegedly ordered into a
smaller room and began to cry, asking multiple officers why this kept happening to her. (Id. ¶¶
138-39). The complaint alleges that she was thereafter subjected to a strip search; it further
alleges that the door was left open and male CBP officers were watching from the adjoining
room. (Id. ¶¶ 143-44). Sydor then allegedly performed a vaginal cavity search, again with the
door open. (Id. ¶¶ 152). According to the complaint, after that search revealed nothing, she

waited approximately 30 minutes before being escorted into another search room and ordered to
strip a second time. (Id. ¶¶ 157-66). Sydor allegedly performed a second vaginal cavity search
as well as a visual inspection of Ortega’s vaginal and anal cavities. (Id. ¶¶ 166-67). She was
subsequently released to the baggage-claim area, where she met her daughter. (Id. ¶¶ 171-74).
3. Aftermath
According to the complaint, after those incidents, Ortega has experienced lasting trauma,
panic attacks, and difficulty sleeping. (Id. ¶¶ 175-81). It alleges that she is afraid to travel; when
she does, she wears pants and does not check her luggage. (Id. ¶¶ 182-85). Those incidents have
also led her to feel isolated, as her regular travel companions are afraid to fly with her.
(Id. ¶ 188).
The complaint alleges that Ortega’s daughter, N.Z., has also experienced emotional
distress and trauma. (Id. ¶¶ 217-19). It alleges that she has difficulty sleeping and struggles with
angry outbursts and socialization issues because of those incidents. (Id. ¶¶ 219-21).
B. Procedural Background

The amended complaint asserts 22 claims. Counts 1 and 2 assert claims by Ortega
against CBP, DHS, and the individual defendants in their official capacities under the Fourth and
Fifth Amendments, respectively. (Am. Compl. ¶¶ 228-33). Counts 3, 4, and 5 assert Bivens
claims by Ortega against the individual officers in their individual capacities for violations of the
Fourth and Fifth Amendments. (Id. ¶¶ 234-41). Counts 6 and 7 assert claims by N.Z. against
CBP, DHS, and the individual defendants in their official capacities under the Fourth and Fifth
Amendments, respectively. (Id. ¶¶ 242-45). Counts 8 and 9 assert Bivens claims by N.Z. against
the individual officers in their individual capacities for violations of the Fourth and Fifth
Amendments. (Id. ¶¶ 246-51). Counts 10 through 17 assert state-law claims by Ortega under the
FTCA for assault; battery; false imprisonment; intentional infliction of emotional distress;

negligence; negligent infliction of emotional distress; negligent hiring, supervision, and
retention; and violations of the Massachusetts Civil Rights Act (“MCRA”). (Id. ¶¶ 252-317).
Counts 18 through 22 assert state-law claims by N.Z. under the FTCA for false imprisonment;
negligence; negligent supervision, hiring, and retention; negligent infliction of emotional
distress; and violations of the MCRA. (Id. ¶¶ 318-60).
The individual defendants have moved to dismiss Counts 3, 4, 5, 8, and 9 (the Fourth and
Fifth Amendment claims and official capacity claims) on the ground that recognizing plaintiffs’
causes of action would be an expansion of Bivens inconsistent with the Supreme Court’s decision
in Egbert v. Boule. They also move to dismiss Counts 1, 2, 6, and 7 on the ground that sovereign
immunity bars claims for money damages against federal agencies and officers in their official
capacities.
II. Legal Standard
On a motion to dismiss, the court “must assume the truth of all well-plead[ed] facts and
give . . . plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness

Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.
1999)). To survive a motion to dismiss, the complaint must state a claim that is plausible on its
face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In other words, the “[f]actual
allegations must be enough to raise a right to relief above the speculative level . . . on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at
555 (citations omitted). “The plausibility standard is not akin to a ‘probability requirement,’ but
it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate if the
complaint fails to set forth “factual allegations, either direct or inferential, respecting each
material element necessary to sustain recovery under some actionable legal theory.” Gagliardi v.

Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (quoting Centro Medico del Turabo, Inc. v. Feliciano
de Melecio, 406 F.3d 1, 6 (1st Cir. 2005)).
III. Analysis
In Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), the Supreme Court
created a civil damages action against federal officials for violations of the Fourth Amendment.
The Court subsequently created new causes of action under the Fifth Amendment, see Davis v.
Passman, 442 U.S. 228 (1979), and the Eighth Amendment, see Carlson v. Green, 446 U.S. 14
(1980).
Since that time, however, the availability of Bivens-type causes of action has been
narrowly circumscribed, as the Supreme Court has expressed considerable misgivings about
possible encroachment on legislative powers. “Over the past 42 years, [the Supreme Court has]
declined 11 times to imply a similar [Bivens] cause of action for other alleged constitutional
violations.” Egbert v. Boule, 142 S. Ct. 1793, 1800 (2022) (citations omitted). Indeed, the Court
has “emphasized that recognizing a cause of action under Bivens is ‘a disfavored judicial

activity.’” Id. at 1803 (quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1856-57 (2017)).
Analysis of a proposed Bivens claim involves a two-step inquiry. Egbert, 142 S. Ct. at
1803. The first question is whether the case presents a “new Bivens context”—that is, whether it
is meaningfully different from the three cases in which the Supreme Court has recognized an
implied damages remedy. Id. The second question is whether, if it does present a new context,
there are “special factors” indicating that the judiciary is at least arguably less equipped than
Congress to weigh the costs and benefits of allowing a damages action to proceed. Id. “If there
is even a single ‘reason to pause before applying Bivens in a new context,’ a court may not
recognize a Bivens remedy.” Id.

“[The two] steps often resolve to a single question: whether there is any reason to think
that Congress might be better equipped to create a damages remedy.” Id. at 1803. Ultimately,
the existence of “any rational reason (even one) to think that Congress is better suited” to create
a cause of action forecloses an extension of Bivens. Id. at 1805 (emphasis in original).2

2 The First Circuit, before Ziglar and Egbert, construed Bivens claims with some generality. For example,
in DeMayo v. Nugent, 517 F.3d 11 (1st Cir. 2008), the court held that a plaintiff could assert a Fourth Amendment
claim under Bivens by proving a “violation of a constitutional right by a federal agent acting under the color of
federal law.” 517 F.3d at 14. Because the plaintiff had shown that federal officers had entered his home without a
warrant, consent, or exigent circumstances, the court held that he had established a Bivens claim based on the
officers’ violation of the Fourth Amendment. Id. at 14-17. The First Circuit did not compare the facts of the case
with those of Bivens. After Ziglar, and before Egbert, the court noted the Supreme Court’s “reluctance to extend the
Bivens doctrine to new settings” and declined to extend Bivens in a case that “differ[ed] meaningfully” from the
original facts of Bivens. González v. Mesa, 864 F.3d 45, 52, 53 (1st Cir. 2017) (holding that plaintiffs’ status as
federal employees and the absence of a home search were meaningful differences from Bivens). The First Circuit
A. Individual-Capacity Claims for Money Damages - Counts 3, 4, 5, 8, and 9
Defendants have moved to dismiss Counts 3, 4, 5, 8, and 9, all of which are Bivens claims
seeking money damages against individual officers. Count 3 asserts a Fourth Amendment
violation against unreasonable searches, brought under Bivens against individual CBP officers in
their official capacities on behalf of Ortega. Count 4 asserts a Fourth Amendment violation

against unreasonable seizures brought under Bivens against individual CBP officers in their
official capacities on behalf of Ortega. Count 5 asserts a Fifth Amendment violation for
deprivation of due process brought under Bivens against CBP officers in their official capacities
on behalf of Ortega. Count 8 asserts a Fourth Amendment violation against unreasonable
seizures brought under Bivens against individual CBP officers in their official capacities on
behalf of N.Z. Count 9 asserts a Fifth Amendment violation for deprivation of due process
brought under Bivens against CBP officers in their official capacities on behalf of N.Z.
Defendants contend that the Supreme Court’s decision in Egbert forecloses all such claims.
1. Fourth Amendment Claims
Plaintiffs contend that their Fourth Amendment claims arise do not arise in a new Bivens
context. They assert that the foundational elements of their claims—seizure by federal officers,

separation of the plaintiffs from each other, and performance of a warrantless and unreasonable
strip search without probable cause—“factually mirror” those of the plaintiff in Bivens. (Pl.
Mem. at 5). To a large degree, that is true, but there is a very substantial distinction that requires
a different outcome: the searches and seizures here were conducted by Border Patrol agents at
the United States border.

has not yet addressed the impact of Egbert on that jurisprudence, but it is highly doubtful that DeMayo remains good
law in all respects.
In Hernández v. Mesa, 140 S. Ct. 735 (2020), the Supreme Court “declined to create a
damages remedy for an excessive-force claim against a Border Patrol agent who shot and killed a
15-year-old Mexican national across the border in Mexico.” Egbert, 142 S. Ct. at 1804. As the
Egbert Court explained, “We did not recognize a Bivens action there because regulating the
conduct of agents at the border unquestionably has national security implications, and the risk of

undermining border security provides reason to hesitate before extending Bivens into this field.”
Id. (internal quotations omitted).
Egbert likewise involved a claim against a Border Patrol officer. The Court found that
the reasoning of Hernández applied “with equal force.” Id.
During the alleged altercation with [the plaintiff], Agent Egbert was carrying out Border
Patrol’s mandate to interdict persons attempting to illegally enter or exit the United States
or goods being illegally imported into or exported from the United States. Because
matters intimately related to foreign policy and national security are rarely proper
subjects for judicial intervention, we reaffirm that a Bivens cause of action may not lie
where, as here, national security is at issue.

. . . [H]ere, no less than in Hernández, the Judiciary is not undoubtedly better positioned
than Congress to authorize a damages action in this national security context. That this
case does not involve a cross-border shooting, as in Hernández, but rather a more
conventional excessive-force claim, as in Bivens, does not bear on the relevant point.
Either way, the Judiciary is comparatively ill suited to decide whether a damages remedy
against any Border Patrol agent is appropriate.

Id. at 1805-06 (quotations and internal citations omitted).3
Here, the allegedly unlawful searches and seizures were conducted by CBP officers at
Logan Airport, and were directed to individuals entering the United States from the Dominican
Republic. The fact that they allegedly involved, among other things, highly intrusive body

3 Courts have long recognized that the government has a strong national-security interest in searches at the
border. See United States v. Montoya de Hernandez, 473 U.S. 531, 544 (1985) (“At the border, customs officials
have more than merely an investigative law enforcement role. They are also charged, along with immigration
officials, with protecting this Nation from entrants who may bring anything harmful into this country.”); Alasaad v.
Mayorkas, 988 F.3d 8, 19 (1st Cir. 2021).
cavity searches, rather than the shooting death of a 15-year-old boy (as in Hernández) or a
physical altercation (as in Egbert) “does not bear on the relevant point.” 142 S. Ct. at 1806.
They were searches and seizures at the border, and therefore fall squarely within the scope of
Egbert.
Under the circumstances, the Court finds that the Fourth Amendment claims asserted

here represent an unwarranted extension of Bivens to a new context, and therefore fail to state a
claim upon which relief can be granted. Counts 3, 4, and 8 will accordingly be dismissed.
2. Fifth Amendment Claims
The Fifth Amendment claims asserted here in Counts 5 and 9 likewise involve a proposed
extension of Bivens to a new context. In Davis v. Passman, the Supreme Court created a cause
of action under the Due Process Clause of the Fifth Amendment in a case brought by an
administrative assistant against a congressman, alleging sex discrimination in his firing her. 442
U.S. 228, 235 (1979). The claims here, while rooted in the Due Process Clause, differ in several
meaningful ways from that recognized in Davis. Defendants are CBP officers, not congressmen;
plaintiffs were, respectively, subjected to an invasive search and separated from a parent, not

fired; and the alleged actions took place in an airport during a CBP inspection, not in a
congressional office in Washington, D.C. The Fifth Amendment claims therefore
unquestionably arise in a new Bivens context, and accordingly Counts 5 and 9 will be dismissed.
B. Official-Capacity Claims for Money Damages - Counts 1, 2, 6, and 7
Defendants also have moved to dismiss Counts 1, 2, 6, and 7, which are asserted against
CBP, DHS, and “All Individual Defendants” in their official capacities.4 Count 1 asserts a

4 As noted, the Court dismissed Counts 1, 2, 6, and 7 in the original complaint to the extent they sought
money damages. The amended complaint nonetheless re-asserts the same claims.
The term “Individual Defendants” is not defined or otherwise specified in the complaint. However, it
appears to refer to CBP Commissioner Chris Magnus and DHS Secretary Alejandro Mayorkas in their official
Fourth Amendment claim for prolonged detention, strip searches, and body and vaginal cavity
searches without reasonable suspicion on behalf of Ortega. Count 2 asserts a Fifth Amendment
claim for violations of Ortega’s bodily integrity arising from body and vaginal cavity searches.
Counts 6 and 7 assert Fourth and Fifth Amendment claims on behalf of N.Z.
Defendants contend that those claims are barred by sovereign immunity. To the extent

that plaintiffs seek money damages, the Court agrees. “[I]n the absence of a specific statutory
authorization . . . , the only way in which a suit for damages arising out of constitutional
violations attributable to federal action may be brought is under the doctrine of Bivens.” Tapia-
Tapia v. Potter, 322 F.3d 742, 746 (1st Cir. 2003). Moreover, Bivens claims may not be asserted
against federal agencies or officers in their official capacities. See id. (“[T]he Supreme Court has
refused to recognize a Bivens remedy against federal agencies.”); McCloskey v. Mueller, 446
F.3d 262, 272 (1st Cir. 2006) (holding that Bivens does not permit suits against “federal officers
sued in their official capacities”).
C. Claims for Injunctive and Declaratory Relief
Whether plaintiffs may assert claims for prospective injunctive relief against federal

officers to prevent future violations is a different matter, as are their claims for declaratory
relief.5 Those questions present substantial legal issues, potentially including issues of standing
and the limits of judicial power. See, e.g., Shain v. Ellison, 356 F.3d 211, 215-16 (2d Cir. 2004)

capacities. That interpretation is reinforced by plaintiffs’ memorandum, which states that “these counts are brought
against DHS, CBP, [Chris Magnus] in his official capacity, and Alejandro Mayorkas in his official capacity, only for
declaratory and injunctive relief.” (Pl. Mem. at 3).
5 Specifically, plaintiffs request that the Court enjoin defendants from “conducting strip searches or body
cavity searches of Ms. Ortega in the absence of a warrant supported by probable cause or reasonable suspicion that
drugs or weapons are concealed on her body” and “separating N.Z. from her mother without compelling justification
and explanation as to when they will be reunited.” (Compl. Request for Relief). They also seek declarations that
defendants violated their rights under the Fourth and Fifth Amendments. (Id.).
(dismissing, for lack of standing, claim for prospective relief enjoining a policy of strip-
searching misdemeanor admittees to a county jail); Jibril v. Mayorkas, 20 F.4th 804, 812-13
(D.C. Cir. 2021) (reversing dismissal of claim for prospective relief enjoining border detention
and searches of family members alleged to have been improperly placed on a terrorist watch list
maintained by the government).

Unlike the plaintiff in Shain, plaintiffs here are not seeking to enjoin the future
application of a statute, a regulation, or a government policy. And unlike the plaintiffs in Jibril,
they do not allege that they have been improperly placed on a government watch list. Instead,
they seek to enjoin future discretionary actions by law enforcement agents. Those future actions
might be searches and seizures conducted without reasonable suspicion—but they might also be
reasonable searches, based on observations of officers at the scene, or on confidential
information, such as wiretaps or tips from informants. It is unclear at this stage whether the
injunction plaintiffs seek would be workable or even lawful.p It is at least possible that some
more limited form of injunction might be available and appropriate under the circumstances, but

the complaint does not actually seek any such relief.
In any event, the issues of declaratory and injunctive relief were not addressed by the
government in its memorandum. Whether such relief is available, in whole or in part, is not a
question that the Court is willing to resolve without, at a minimum, appropriate briefing (and,
potentially, some form of evidentiary record).
The Court will therefore deny the motion to dismiss without prejudice to the extent that
Counts 1-9 seek declaratory and injunctive relief.
IV. Conclusion
For the foregoing reasons, the motion of defendants Larissa Sydor, Colleen Downey,
Mary Davison, Jessica Croall, Kimberly Carroll, Ignacio Tauroni, Brett Sweet, Carrie Acosta,
and Daniel Ouellette to dismiss the claims against them in Counts 1 through 9 is GRANTED to
the extent those counts seek money damages, and is otherwise DENIED without prejudice.

So Ordered.

/s/ F. Dennis Saylor IV
F. Dennis Saylor IV
Dated: February 23, 2023 Chief Judge, United States District Court

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10200900. Public record. Not legal advice.