Case: 20-10059 Document: 00516791350 Page: 1 Date Filed: 06/19/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
June 19, 2023
No. 20-10059
____________ Lyle W. Cayce
Clerk
George Anibowei,
Plaintiff—Appellant,
versus
Mark A. Morgan, Acting Commissioner of U.S. Customs and Border
Protection, in his official capacity; Merrick Garland, U.S. Attorney
General; Alejandro Mayorkas, Secretary, U.S. Department of
Homeland Security; Tae D. Johnson, Acting Director, U.S. Immigration
and Customs Enforcement; David Pekoske, in his official capacity as
Administrator of the Transportation Security
Administration; United States Department of
Homeland Security; United States Customs and Border
Protection; United States Immigration and Customs
Enforcement; Transportation Security
Administration,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:16-CV-3495
______________________________
Before Richman, Chief Judge, and King and Engelhardt, Circuit
Judges.
Priscilla Richman, Chief Judge:
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George Anibowei alleges that government agents searched his cell
phone at the border without a warrant on at least five occasions, and that
agents copied data from his cell phone at least once. Anibowei sued the U.S.
Department of Homeland Security (DHS), U.S. Customs and Border
Protection (CBP), U.S. Immigration and Customs Enforcement (ICE), the
Transportation Security Administration (TSA), and the respective heads of
each entity in their official capacity (collectively, the government),
challenging the searches, as well as ICE and CBP policies regarding border
searches of electronic devices. In the district court, Anibowei filed a motion
seeking, among other relief, a preliminary injunction preventing the
government from searching his cell phone at the border without a warrant.
The district court denied the preliminary injunction. Because Anibowei
failed to demonstrate a substantial threat he will suffer irreparable injury if
the injunction is not granted, we affirm.
I
George Anibowei is a naturalized citizen of the United States and an
attorney in Texas. As an attorney, Anibowei primarily represents immigrants
in removal proceedings adverse to DHS. In October 2016, Anibowei was
traveling back to the United States from abroad. Upon landing in Dallas, ICE
agents, along with DHS investigators, searched Anibowei’s cell phone and
copied data from the phone. The agents did not have a warrant for the search.
Anibowei believes that the government continues to retain his data.
In the years following the incident, Anibowei alleges that border
agents searched his cell phone without a warrant at least four additional
times. During these searches, Anibowei witnessed border agents view his
text messages and other communications, and claims that it is possible agents
viewed his email. Anibowei does not explicitly assert that border agents
copied data from his cell phone during the additional four searches.
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However, he claims that it is “virtually certain that [border agents] viewed
and copied privileged communications between Mr. Anibowei and his
clients” at least once.
Anibowei first brought suit against the government defendants in
2016. Acting pro se, Anibowei argued that the October 2016 search and
continued retention of his data violated the First and Fourth Amendments.
The district court granted a motion to dismiss and gave Anibowei leave to
replead his claims. Following the dismissal, Anibowei retained counsel and
filed a verified second amended complaint. In his complaint, Anibowei
challenges the October 2016 search and the four additional searches.
Anibowei also challenges ICE and CBP policies that govern searches of
electronic devices at the border. Both policies authorize warrantless cell
phone searches, including searching and retaining the digital contents of a
cell phone.1 Anibowei argues that the policies and searches are
unconstitutional because the Fourth Amendment requires the government
to obtain a warrant before searching a cell phone at the border, or in the
alternative, because the Fourth Amendment at least requires reasonable
suspicion.
Anibowei filed a motion seeking either partial summary judgment or a
preliminary injunction. Anibowei argued that the district court should grant
summary judgment and vacate the ICE and CBP policies because the policies
authorize cell phone searches at the border without a warrant supported by
probable cause, or without reasonable suspicion. In the alternative, Anibowei
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1
See generally Customs and Border Control Directive No. 3340-049A (Jan. 4,
2018), https://www.cbp.gov/sites/default/files/assets/documents/2018-Jan/CBPDirective-3340-049A-Border-Search-of-Electronic-Media-Compliant.pdf; Immigration
and Customs Enforcement Directive No. 7-6.1 (Aug. 18, 2009),
https://www.dhs.gov/xlibrary/assets/ice_border_search_electronic_devices.pdf.
3
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sought a preliminary injunction to prevent the government from enforcing
the ICE and CBP policies against him, and to force the government to return
or destroy the data copied from his cell phone.
Anibowei filed the motion for summary judgment or preliminary
injunction prior to the government’s deadline to respond to Anibowei’s
second amended complaint. Accordingly, as the district court noted, the
government “had no obligation (or opportunity) to deny the allegations of
the second amended complaint.” The district court noted the “somewhat
unusual procedural posture” of the case, acknowledging that typically a
plaintiff would develop the record prior to moving for a preliminary
injunction or summary judgment. Instead, “only a thin record (i.e., the
second amended complaint) [was] developed” for Anibowei’s motion.
The district court denied Anibowei’s motion for summary judgment
or preliminary injunction. First, the court denied summary judgment
because “no decision of the Supreme Court or of the Fifth Circuit imposes”
a probable cause or warrant requirement for border searches. The district
court “decline[d] to reach the question whether the [ICE and CBP policies]
are unconstitutional . . . on the ground that they permit the search and seizure
of cell phone data at the border without reasonable suspicion,” because the
court concluded that Anibowei’s counsel “eschewed reliance on a reasonable
suspicion-based argument” at oral argument.
The district court also concluded that Anibowei failed to establish that
he was entitled to a preliminary injunction. The court reasoned that, even if
it “accept[ed] the allegations of the second amended complaint as evidence,
the evidence is insufficient to satisfy all four of the essential elements for
obtaining a preliminary injunction.” Accordingly, the district court denied
the motion for a preliminary injunction.
4
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Following the district court’s order, the government filed an answer
to Anibowei’s second amended complaint. In that answer, the government
admitted that border agents searched Anibowei’s cell phone without a
warrant during the October 2016 search. Anibowei then filed this appeal.
II
We first address Anibowei’s motion for preliminary injunction. “The
decision to grant or deny a preliminary injunction lies within the discretion
of the district court and may be reversed on appeal only by a showing of abuse
of discretion.”2 “[A] preliminary injunction is an extraordinary and drastic
remedy which should not be granted unless the movant clearly carries the
burden of persuasion.”3 The movant must establish four elements:
(1) a substantial likelihood that plaintiff will prevail on the
merits, (2) a substantial threat that plaintiff will suffer
irreparable injury if the injunction is not granted, (3) that the
threatened injury to plaintiff outweighs the threatened harm
the injunction may do to defendant, and (4) that granting the
preliminary injunction will not disserve the public interest.4
“Each element of the injunction analysis typically involves questions of fact
and of law.”5 We review a district court’s factual findings for clear error.6
_____________________
2
Apple Barrel Prods., Inc. v. Beard, 730 F.2d 384, 386 (5th Cir. 1984).
3
Canal Auth. of State of Fla. v. Callaway, 489 F.2d 567, 573 (5th Cir. 1974).
4
Id. at 572.
5
White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989) (citing Apple Barrel, 730
F.2d at 386).
6
Apple Barrel, 730 F.2d at 386 (citing Fed. R. Civ. P. 52(a)).
5
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“The court’s conclusions of law, however, ‘are subject to broad review and
will be reversed if incorrect.’”7
We conclude that Anibowei failed to establish a substantial threat that
he will suffer irreparable injury if an injunction is not granted. A plaintiff
seeking a preliminary injunction must “demonstrate that irreparable injury is
likely in the absence of an injunction.”8 Irreparable injury is “harm for which
there is no adequate remedy at law.”9 “[I]t is not necessary to demonstrate
that harm is inevitable and irreparable[;] [t]he plaintiff need show only a
significant threat of injury from the impending action, that the injury is
imminent, and that money damages would not fully repair the harm.”10
Anibowei argues that he “faces two distinct irreparable harms.”
First, he argues that “he is suffering ongoing irreparable injury because his
private information and his confidential attorney-client communications are
currently in the government’s possession as the result of an unconstitutional
search and seizure.” Second, Anibowei argues that he faces “irreparable
injury each time he travels internationally by being subject to warrantless
searches of his cell phone.” Anibowei’s evidence, consisting solely of his
verified second amended complaint, is insufficient to demonstrate that either
alleged harm justifies a preliminary injunction.
_____________________
7
Id. (quoting Commonwealth Life Ins. Co. v. Neal, 669 F.2d 300, 304 (5th Cir.
1982)).
8
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).
9
Daniels Health Scis., L.L.C. v. Vascular Health Scis., L.L.C., 710 F.3d 579, 585 (5th
Cir. 2013).
10
Humana, Inc. v. Avram A. Jacobson, M.D., P.A., 804 F.2d 1390, 1394 (5th Cir.
1986) (footnotes omitted).
6
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A
Anibowei has not offered sufficient evidence to establish that the
government’s alleged retention of his data causes him irreparable injury.
Anibowei argues that he is suffering ongoing irreparable harm because
“during its warrantless October 2016 search of his cell phone the
[g]overnment copied and retained highly sensitive personal information from
Mr. Anibowei’s cell phone, including attorney-client privileged information.”
The government admits “that an advanced search was performed of
Anibowei’s cell phone on one occasion, and that information from
Anibowei’s cell phone was downloaded and eventually retained as a result of
the advanced search.” Still, Anibowei fails to establish that the
government’s retention of his information constitutes irreparable harm.
Government retention of unlawfully seized property is not sufficient,
standing alone, to establish irreparable injury. In a related context, Federal
Rule of Criminal Procedure 41(g) provides that “[a] person aggrieved by an
unlawful search and seizure of property or by the deprivation of property may
move for the property’s return.”11 In addition to showing that the property
was seized unlawfully, this court requires “a substantial showing of
irreparable harm” before a court can order the suppression of seized
evidence.12 The irreparable-harm requirement would be rendered
meaningless if retention of unlawfully seized property was per se an
irreparable injury. To establish irreparable injury, Anibowei cannot solely
rely on the fact that the government retained his information. Instead,
_____________________
11
Fed. R. Crim. P. 41(g).
12
United States v. Search of L. Off., Residence & Storage Unit Alan Brown, 341 F.3d
404, 413-14 (5th Cir. 2003).
7
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Anibowei must specifically show how the government’s retention of his
seized information causes him harm.
To that end, Anibowei argues that the government’s retention of
attorney–client privileged information causes “serious harm to him
personally and to his clients.” However, even if the retention of attorney–
client privileged information constitutes irreparable harm, Anibowei’s scant
and circumstantial evidence is insufficient to establish that the government
copied and retained attorney–client privileged information from his cell
phone.
This court’s decision in United States v. Search of Law Office, Residence
& Storage Unit Alan Brown13 is instructive. In Brown, the federal government
seized documents from an attorney’s law offices.14 The attorney requested
that the court order the seized property returned under Federal Rule of
Criminal Procedure 41(e), the predecessor to Rule 41(g), alleging that the
documents were illegally seized.15 The district court concluded that the
attorney was entitled to all of the seized property and the government should
not be allowed to retain copies or make any use of the evidence.16 In order to
establish that he was irreparably harmed by the government’s retention of
the documents, the attorney argued that the government seized attorney–
client privileged documents.17 This court noted that the government had
given the attorney “constant access to the records since their seizure.”18
_____________________
13
341 F.3d 404 (5th Cir. 2003).
14
Id. at 407.
15
Id.
16
Id. at 408.
17
Id. at 414.
18
Id.
8
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Despite this access, the attorney failed to “ma[k]e any effort to identify
specific privileged documents in the hands of the government or provide a
legal basis for asserting a particular privilege.”19 Nor did the attorney
“indicate the amount of privileged documents the government” seized.20
Instead, this court concluded that the attorney’s argument “consisted of
vague allegations that the government viewed extensive amounts of
privileged information during the search of his law office and after the
documents’ seizure.”21 Without “proof substantiating these assertions,”
this court held that the attorney’s claims were insufficient “to prove
irreparable injury warranting the drastic relief granted by the district
court.”22
Anibowei’s allegations are similarly insufficient. Anibowei’s
allegations are conclusory. He generally argues that because the government
copied some information from his work phone during the October 2016
search, “it is virtually certain that [border agents] viewed and copied
privileged” information. Anibowei’s phone was returned to him after the
October 2016 search. Anibowei has knowledge and access to the information
that could have been copied by the government. As the government correctly
observes, “[i]f there was some specific information present, the copying of
which resulted in irreparable harm, Anibowei could have provided evidence
to the district court of what this information was and how its copying and
retention by the government specifically harmed him.” Anibowei has not
done so. Without any evidence regarding what information was seized from
_____________________
19
Id.
20
Id.
21
Id.
22
Id.
9
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Anibowei’s cell phone, or evidence addressing whether the allegedly seized
information is subject to attorney–client privilege, Anibowei cannot establish
that he is suffering irreparable injury due to the government’s retention of
information from his cell phone.
B
Anibowei’s evidence is similarly insufficient to establish that he is
likely to suffer irreparable injury in the form of an unlawful search of his cell
phone at the border in the future. Anibowei argues that he faces “irreparable
injury each time he travels internationally by being subject to warrantless
searches of his cell phone.” He contends that his constitutional rights will
likely be violated in the future “[b]ecause government agents have searched
him nearly every time he has traveled internationally since 2017.”
Anibowei’s argument is reliant on his contention that a warrantless
search of a cell phone at the border is unconstitutional. This circuit has never
recognized a warrant requirement for any border search.23 Nevertheless,
assuming arguendo that a warrantless search of Anibowei’s cell phone at the
border would violate his constitutional rights, the district court did not abuse
its discretion in determining that Anibowei’s evidence is insufficient to
establish it is likely that he will be subject to a warrantless search in the future.
Anibowei has demonstrated that the ICE and CBP policies authorize
warrantless searches. Further, the allegations in Anibowei’s verified
complaint are evidence of a pattern of warrantless searches of Anibowei’s cell
phone. However, Anibowei has no additional evidence to establish that he
will be stopped by border agents in the future and that the agents will search
his cell phone without a warrant. Given that the only evidence before the
_____________________
23
United States v. Molina-Isidoro, 884 F.3d 287, 294 (5th Cir. 2018) (Costa, J.,
specially concurring).
10
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district court was Anibowei’s verified complaint, the district court did not
abuse its discretion in determining that Anibowei failed to demonstrate it was
likely he would suffer future violations of his Fourth Amendment rights.
This court affirms the denial of a preliminary injunction if “the
movant has failed sufficiently to establish any one of the four criteria.”24
Because Anibowei failed to demonstrate that it is likely he would suffer
irreparable injury absent an injunction, we affirm the district court’s denial
of the preliminary injunction. Accordingly, we need not separately address
whether Anibowei established the other criteria.
III
In addition to challenging the denial of a preliminary injunction,
Anibowei asks this court to review the district court’s denial of summary
judgment. Although Anibowei’s notice of appeal includes the summary
judgment issue,25 this court does not automatically have jurisdiction over that
issue. Unlike the denial of a preliminary injunction, the denial of a summary
judgment motion is not an appealable interlocutory order.26 Instead, this
court has “discretion to exercise pendent [appellate] jurisdiction.”27 As this
court has explained,
Beyond the limited right to an interlocutory appeal, the ability
to enjoy pendent appellate jurisdiction is carefully
_____________________
24
Black Fire Fighters Ass’n of Dall. v. City of Dall., 905 F.2d 63, 65 (5th Cir. 1990)
(per curiam).
25
See Finch v. Fort Bend Indep. Sch. Dist., 333 F.3d 555, 565 (5th Cir. 2003) (holding
that a notice appealing from an order included issues resolved in the order that were not
expressly referenced in the notice of appeal).
26
Byrum v. Landreth, 566 F.3d 442, 449 (5th Cir. 2009) (citing Meza v. Livingston,
537 F.3d 364, 366 (5th Cir. 2008)).
27
Finch, 333 F.3d at 565.
11
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circumscribed. The Supreme Court has recognized two
exceptions to the bar on court-created interlocutory appeals:
(1) If the pendent decision is “inextricably intertwined” with
the decision over which the appellate court otherwise has
jurisdiction, pendent appellate jurisdiction may lie, or (2) if
“review of the former decision [is] necessary to ensure
meaningful review of the latter.”28
Anibowei argues that this court should exercise pendent appellate
jurisdiction because the preliminary injunction and summary judgment
rulings concern the same merits question—namely, “whether a warrant is
generally required for border agents to search an individual’s cell phone.”
However, this court does not have pendent appellate jurisdiction over a
denial of summary judgment merely “[b]ecause the summary judgment
ruling, like the preliminary injunction test for success on the merits, turns on
the [same legal issue].”29
In Byrum v. Landreth,30 this court considered whether it had pendent
appellate jurisdiction over a motion for summary judgment when a motion
for preliminary injunction was also before the court.31 Although the summary
judgment motion involved the same underlying merits issue as the
preliminary injunction, the court declined to exercise pendent appellate
jurisdiction.32 The court reasoned that exercising pendent appellate
jurisdiction was inappropriate because the court was able to “review[] the
_____________________
28
Escobar v. Montee, 895 F.3d 387, 391 (5th Cir. 2018) (alteration in original)
(quoting Swint v. Chambers Cnty. Comm’n,
514 U.S. 35, 51 (1995)).
29
Byrum, 566 F.3d at 450.
30
566 F.3d 442 (5th Cir. 2009).
31
Id. at 449.
32
Id. at 449-51.
12
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injunctive order without reaching a dispositive ruling on the [shared merits]
claim.”33
Because we can review the district court’s denial of preliminary
injunction without reaching a dispositive ruling on Anibowei’s underlying
Fourth Amendment claim, this court does not have pendent appellate
jurisdiction over the district court’s denial of summary judgment.
…
For these reasons, the district court’s denial of Anibowei’s motion for
preliminary injunction is AFFIRMED.
_____________________
33
Id. at 450.
13
