Francis Okiemute Akpore v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11149
Non-Argument Calendar
____________________
FRANCIS OKIEMUTE AKPORE,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 4:20-cv-01956-ACA
____________________
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2 Opinion of the Court 21-11149
Before WILSON, L UCK , and LAGOA , Circuit Judges.
PER C URIAM :
Francis Akpore, a Nigerian citizen, appeals the dismissal of
his Federal Tort Claims Act claims for lack of subject matter juris-
diction. Mr. Akpore brought two types of claims: those related to
his alleged sexual assault and harassment by Immigration and Cus-
toms Enforcement officers; and those related to his removal. Be-
cause the removal claims fall within the Immigration and Nation-
ality Act’s jurisdiction-stripping provision, 8 U.S.C. section 1252(g),
and because the sexual assault claims did not comply with the no-
tice requirements under the Federal Tort Claims Act, we affirm the
district court’s dismissal of Mr. Akpore’s claims.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On August 26, 2002, Mr. Akpore arrived in the United
States.1 He was ordered removed in April 2005, but he “never left.”
On June 22, 2017, he was served with a notice to appear and taken
into the custody of United States Immigration and Customs En-
forcement.
On August 1, 2017, an immigration judge terminated Mr.
Akpore’s removal proceedings “without prejudice to the initiation
1 We accept the complaint’s allegations as true and view them in the light most
favorable to the plaintiff.
See Carmichael v. Kellogg, Brown & Root Servs.,
572 F.3d 1271, 1279 (11th Cir. 2009).
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21-11149 Opinion of the Court 3
of a reasonable fear proceeding after a review by an asylum officer
and, if necessary, by an immigration judge.” The immigration
judge terminated the proceedings because Mr. Akpore was “sub-
ject to a removal order following the [Board of Immigration Ap-
peals]’s denial of a motion to reopen on” November 29, 2006.
About two weeks after the August 1 order, Mr. Akpore’s de-
portation officer gave Mr. Akpore a fabricated order dated August
17, 2017 and told him that because the immigration judge had
“amended” the August 1 order, Immigration and Customs En-
forcement “would disregard” the earlier order. According to the
fabricated order, the Department of Homeland Security had
moved to amend the August 1 order “to exclude the language per-
taining to reasonable fear proceedings,” arguing that Mr. Akpore
was not entitled to the proceedings because he was not subject to
an expedited or reinstated removal order. The fabricated order
purported to grant the motion to amend, terminate the June 22 no-
tice to appear without prejudice, and start the running of Mr. Ak-
pore’s time to appeal the amended order on August 18, 2017.
Around the time when Mr. Akpore was appealing the fabri-
cated order, “different officers were consistently picking on and
provoking” him, and “two officers sexually assaulted and harassed”
him. On July 29, 2017, Mr. Akpore filed a grievance with Immigra-
tion and Customs Enforcement describing his harassment by the
officers, but the grievance “amounted to nothing because the
[c]aptain at the [d]etention facility” denied receiving it. On August
2, 2017, Mr. Akpore filed a grievance alleging that, on July 16, 2017,
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4 Opinion of the Court 21-11149
he was sexually assaulted. Mr. Akpore also filled out a form dated
November 24, 2017 in which he alleged that an immigration officer
sexually harassed him in the bathroom.
On November 15, 2017, Immigration and Customs Enforce-
ment attempted to remove Mr. Akpore, but he refused to sign a
consent form. On August 14, 2018, Mr. Akpore was removed back
to Nigeria.
On August 22, 2018 and December 19, 2019, Mr. Akpore
sent letters to the United States Attorney General and the Inspector
General. The letters asked for an investigation into his removal but
they did not request a specific amount of compensatory damages.
On May 10 and October 15, 2020, Mr. Akpore sent letters to Immi-
gration and Customs Enforcement threatening suit and requesting
first one million dollars and then five million dollars as compensa-
tion for his claims. Immigration and Customs Enforcement didn’t
respond to the letters.
On December 9, 2020, Mr. Akpore filed a “petition for re-
dress of intentional-unlawful removal” against the United States
under the Federal Tort Claims Act. Mr. Akpore sought one million
dollars in compensatory damages, the return of his passports, and
a declaration that his removal was unlawful. He claimed that Im-
migration and Customs Enforcement “fabricat[ed]” an order by an
immigration judge and a travel certificate and “confiscat[ed]” Mr.
Akpore’s “valid and expired international Nigerian passports” to re-
move him from the United States to Nigeria. Mr. Akpore also
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21-11149 Opinion of the Court 5
alleged that the immigration officers sexually assaulted and har-
assed him and that his grievances against them “amounted to noth-
ing.”
Observing no docket activity for over three months, the dis-
trict court on March 12, 2021 ordered Mr. Akpore to show cause
why his complaint should not be dismissed without prejudice for
failure to serve the United States or for lack of subject matter juris-
diction under the Immigration and Nationality Act. Mr. Akpore
timely responded by sending a notice of lawsuit and request for
waiver of summons to the United States Attorney General, Immi-
gration and Customs Enforcement, and the Birmingham, Alabama
office of the United States Attorney and by amending his com-
plaint. Specifically, he changed the title of the complaint from “Pe-
tition for Redress of Intentional-Unlawful Removal” to “Petition
for Compensatory Damages” and eliminated his requests for de-
claratory and injunctive relief.
On March 24, 2021, the district court dismissed the amended
complaint without prejudice for lack of subject matter jurisdiction.
The district court explained that, “[a]lthough Mr. Akpore . . .
changed the title of his petition and removed some of his previ-
ously requested forms of relief, his underlying claim[s] remain[ed]
the same.”
STANDARD OF REVIEW
“We review de novo a district court’s determination of
whether it has subject-matter jurisdiction.”
Gupta v. McGahey,
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6 Opinion of the Court 21-11149
709 F.3d 1062, 1064–65 (11th Cir. 2013). “We may affirm the judg-
ment below on any ground supported by the record, regardless of
whether it was relied on by the district court.”
Statton v. Fla. Fed.
Jud. Nominating Comm’n, 959 F.3d 1061, 1065 (11th Cir. 2020).
DISCUSSION
Mr. Akpore identifies “two major components” of his
claims: (1) his sexual assault and harassment by Immigration and
Customs Enforcement officers and (2) his “[i]ntentional unlawful
removal” from the United States, which resulted from “[Immigra-
tion and Customs Enforcement]’s violation of a mandatory duty”
and involved “the fabrication of an [immigration judge’s] order,”
the “intentional misrepresentation of [Mr. Akpore]’s actual immi-
gration status . . . against [his] warnings,” perjury about his re-
moval proceedings, and “the fabrication of a travel certificate.” Mr.
Akpore contends that the jurisdiction-stripping provision of the Im-
migration and Nationality Act does not apply to his sexual assault
and harassment claims because these claims, “on [their] face, do[]
not come within the parameters of the discretionary function ex-
ception,” and the provision doesn’t apply to his other claims be-
cause his removal was “coordinated solely with the intent to ob-
struct justice” regarding his sexual assault and harassment. Mr. Ak-
pore further maintains that “as long as [Immigration and Customs
Enforcement] is bound by its unconstitutional actions,” “the dis-
trict court has subject matter jurisdiction to review the merits of
[his] [Federal Tort Claims Act] suit.”
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21-11149 Opinion of the Court 7
The Immigration and Nationality Act provides that “no
court shall have jurisdiction to hear any cause or claim by or on
behalf of any [noncitizen] arising from the decision or action by the
Attorney General to commence proceedings, adjudicate cases, or
execute removal orders against any [noncitizen] under this Act.” 8
U.S.C. § 1252(g). We give this provision a “narrow reading.”
Reno
v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 487 (1999).
The limitation on jurisdiction “applies only to three discrete actions
that the Attorney General may take: h[is] ‘decision or action’ to
‘
commence proceedings,
adjudicate cases, or
execute removal or-
ders.’”
Id. at 482. To accomplish the provision’s purposes, we “ap-
ply it to preclude efforts to challenge the refusal to exercise favora-
ble discretion on behalf of specific [noncitizens], as well as those
claims that would lead to the deconstruction, fragmentation, and
hence prolongation of removal proceedings.”
Alvarez v. U.S. Im-
migr. & Customs Enf’t, 818 F.3d 1194, 1205 (11th Cir. 2016) (alter-
ations adopted and quotations omitted).
“When asking if a claim is barred by [section] 1252(g), [we]
focus on the action being challenged.”
Canal A Media Holding,
LLC v. U.S. Citizenship & Immigr. Servs., 964 F.3d 1250, 1257–58
(11th Cir. 2020). “By its plain terms, [section 1252(g)] bars us from
questioning [Immigration and Customs Enforcement]’s discretion-
ary decisions to commence removal” proceedings, adjudicate
cases, and execute removal orders.
Alvarez, 818 F.3d at 1203.
Here, Mr. Akpore’s removal claims arise from discretionary deci-
sions and actions by Immigration and Customs Enforcement
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8 Opinion of the Court 21-11149
relating to the commencement, adjudication, and execution of Mr.
Akpore’s removal to Nigeria. In the claims, Mr. Akpore “chal-
lenge[s] the refusal to exercise favorable discretion on [his] behalf.”
Id. at 1205. Thus, the claims come within section 1252(g), and we
lack jurisdiction over them, even to the extent they allege constitu-
tional violations.
See Gupta, 709 F.3d at 1063 (affirming dismissal
for lack of subject matter jurisdiction under section 1252(g) when
the complaint “allege[d] that three U.S. Immigration and Customs
Enforcement agents violated [the plaintiff’s] Fourth and Fifth
Amendment rights”).
Mr. Akpore’s sexual assault and harassment claims do not
relate to administrative decisions or actions to commence proceed-
ings, adjudicate cases, or execute removal orders against him. And
they would not prolong Mr. Akpore’s removal proceedings be-
cause he has already been removed. Although section 1252(g) does
not deprive us of jurisdiction over these claims, they are due to be
dismissed anyway because Mr. Akpore failed to comply with the
notice requirements in the Federal Tort Claims Act.
Under the Federal Tort Claims Act, the United States is lia-
ble in tort “in the same manner and to the same extent as a private
individual under like circumstances.” 28 U.S.C. § 2674. The Act
“is a specific, congressional exception to the general rule of sover-
eign immunity. It allows the government to be sued by certain
parties under certain circumstances for particular tortious acts
committed by employees of the government.”
Suarez v. United
States, 22 F.3d 1064, 1065 (11th Cir. 1994). One condition to this
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21-11149 Opinion of the Court 9
waiver of sovereign immunity is that “the administrative agency
being sued receive notice and an opportunity to resolve the dispute
without litigation.”
Barnett v. Okeechobee Hosp., 283 F.3d 1232,
1236 (11th Cir. 2002);
see 28 U.S.C. § 2675(a) (“An action shall not
be instituted . . . against the United States for money damages for
. . . personal injury . . . caused by the negligent or wrongful act or
omission of any employee of the [g]overnment while acting within
the scope of his office or employment, unless the claimant shall
have first presented the claim to the appropriate [f]ederal agency
and his claim shall have been finally denied by the agency in writing
and sent by certified or registered mail. The failure of an agency to
make final disposition of a claim within six months after it is filed
shall, at the option of the claimant any time thereafter, be deemed
a final denial of the claim . . . .”).
Further, “a tort claim against the United States [is] forever
barred unless it is presented in writing to the appropriate [f]ederal
agency within two years after such claim accrues or unless action
is begun within six months after the date of mailing, by certified or
registered mail, of notice of final denial of the claim by the agency
to which it was presented.” 28 U.S.C. § 2401(b). “[A] claim [is]
deemed to have been presented when [the] [f]ederal agency re-
ceives from [the] claimant, . . . an executed Standard Form 95 or
other written notification of an incident, accompanied by a claim
for money damages in a sum certain for . . . personal injury . . . al-
leged to have occurred by reason of the incident . . . .” 28 C.F.R. §
14.2(a). “[T]he [Act] requires, at a minimum, that [the] claimant
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10 Opinion of the Court 21-11149
expressly claim a sum certain or provide documentation which will
allow the agency to calculate or estimate the damages to the claim-
ant.”
Suarez, 22 F.3d at 1066. “When the sum certain is omitted,
the administrative claim fails to meet the statutory prerequisite to
maintaining a suit against the government, and leaves the . . . court
without jurisdiction to hear the case.”
Id. at 1065.
On July 29, 2017, Mr. Akpore reported immigration officers’
general harassment of him to Immigration and Customs Enforce-
ment. On August 2, 2017, he reported to Immigration and Cus-
toms Enforcement and the Department of Homeland Security
that, on July 16, 2017, he was sexually assaulted. Mr. Akpore also
filled out a form dated November 24, 2017 in which he alleged that
an immigration officer sexually harassed him in the bathroom. Mr.
Akpore didn’t request a sum certain in damages in any of these
grievances.
The first time that Mr. Akpore mentioned his sexual assault
and harassment claims to an appropriate federal agency in connec-
tion with a request for a sum certain was May 10, 2020. On that
date, he sent a letter to Immigration and Customs Enforcement
and attached a document entitled “Claim” in which he mentioned
“two grievances [he] filed against two detention officers for sexual
assault and harassment” and “request[ed] compensation [in] the
sum of one million dollars.” Thus, assuming Immigration and Cus-
toms Enforcement received his letter, Mr. Akpore presented his
sexual assault and harassment claims on May 10, 2020 at the earli-
est.
See 28 C.F.R. § 14.2(a).
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21-11149 Opinion of the Court 11
Mr. Akpore does not allege in his complaint that Immigra-
tion and Customs Enforcement, the Department of Homeland Se-
curity, or another agency sent him a notice of final denial of his
claims by certified or registered mail, and no such notice appears in
the record. In fact, Mr. Akpore alleges that Immigration and Cus-
toms Enforcement “did not respond” to him regarding his claims.
Thus, Mr. Akpore had to present his claims within two years after
they accrued.
See 28 U.S.C. § 2401(b). In the light most favorable
to him, he presented them on May 10, 2020—more than two years
after they accrued on July 16 and 29 and November 24, 2017. Thus,
the claims are “forever barred.”
Id.
AFFIRMED.
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