Chichakli v. USA, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 20-10018
Summary Calendar

RICHARD A. CHICHAKLI,

Plaintiff - Appellant

v.

UNITED STATES OF AMERICA; OFAC, United States Department of
Treasury and its Office of Foreign Assets Control; FBI, United States
Department of Justice including the Federal Bureau of Investigation; DEA;
UNITED STATES ATTORNEY IN THE SOUTHERN DISTRICT OF NEW
YORK; URS CORPORATION FEDERAL SERVICE DIVISION OF
RIVERSIDE CALIFORNIA; THERESA NEWMAN; MICHAEL
DONDARSKI, Assistant Director of Enforcement OFAC; JUSTICE
MANAGEMENT DIVISION; FEDERAL TORT CLAIMS ACT SECTION,
Tort Branch US DOJ,

Defendants - Appellees

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CV-372

Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:*

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
May 5, 2020

Lyle W. Cayce
Clerk
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Richard Chichakli, proceeding pro se, appeals the district court’s
dismissal of his claims against the United States brought under the Federal
Tort Claims Act and the Fourth, Fifth, and Fourteenth Amendments of the
Constitution. We affirm.
I.
In July 2004, President George W. Bush issued Executive Order No.
1338, Blocking Property of Certain Persons and Prohibiting the Importation of
Certain Goods from Liberia.
1
The Office of Foreign Assets Control (“OFAC”)
determined that Chichakli was acting in the United States on behalf of an
international arms dealer, and blocked his property under the executive order.
Chichakli unsuccessfully challenged the blocking order in several lawsuits,
2

and he was ultimately convicted of three counts of conspiracy to violate the
political economic sanctions imposed on him.
3
Chichakli’s assets were
unblocked under a 2015 executive order,
4
and he regained possession of at least
some of his assets in 2017 after he was released from prison.
Here, Chichakli sued the United States, mainly under the Federal Tort
Claims Act, alleging theft, negligence, and other tort claims for the alleged loss
or mishandling of his property by the OFAC. The district court dismissed for
lack of jurisdiction, finding that (1) Chichakli failed to present an appropriate
administrative tort claim under the Federal Tort Claims Act (“FTCA”) before
filing suit; (2) the Court of Federal Claims has exclusive jurisdiction over his
takings claim; and (3) no waiver of sovereign immunity allowed Chichakli to
proceed on his Fourth or Fourteenth Amendment claims.

1
Exec. Order No. 13348, 69 Fed. Reg. 44885 (July 22, 2004).
2
See Chichakli v. Szubin, 2007 WL 9711515 (N.D. Tex. June 4, 2007); aff’d in part,
vacated in part, 546 F.3d 315 (5th Cir. 2008); Chichakli v. Obama, 2014 WL 6755680 (D.D.C.
Nov. 25, 2014), aff’d in part, vacated in part, 617 F. App’x 3 (D.C. Cir. 2015).
3
United States v. Chichakli, 2014 WL 5369424 (S.D.N.Y. Oct. 16, 2014).
4
Exec. Order No. 13710, 80 Fed. Reg. 71, 679 (Nov. 12, 2015).
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No. 20-10018
3
A. Federal Tort Claims Act
Before filing suit under the FTCA, a plaintiff must “first present[] the
claim to the appropriate Federal agency.”
5
This requirement “allow[s] the
federal agency promptly to investigate and, if appropriate, settle claims
without having to resort to federal courts.”
6
To serve that goal, presentment
requires submission of the claim to the appropriate agency for a “sum certain.”
7

This requirement is jurisdictional.
8

Chichakli argues that several letters he mailed to OFAC satisfied the
presentment requirement. The first letter, written in June 2017, did not
include a sum certain. Instead, the letter explains that a total of $2.2 million
worth of assets were seized in 2005, and that some—but not all—of those assets
were returned to him. Chichakli did not value his claim at $2.2 million. He
does not appear to seek the entire value of all assets seized in 2005, and he
admits that some of the assets were returned to him.
Chichakli sent another letter to OFAC in 2018. In an email attached to
that letter, Chichakli explained that the letter contained only a “partial list of
my claims against OFAC” and that “This is not a complete list awaiting the
finalization of the final compilation of accounting and records.” An incomplete
list intended to be supplemented is not a “sum certain.”
9
Accordingly, the
district court did not err in holding that Chichakli failed to exhaust his
administrative remedies because he did not present a claim for a sum certain.

5
28 U.S.C. § 2675(a).
6
Pleasant v. U.S. ex rel. Overton Brooks Veterans Admin. Hosp., 764 F.3d 445, 449
(5th Cir. 2014).
7
28 C.F.R. § 14.2(a).
8
Cook v. United States, 978 F.2d 164, 165-66 (5th Cir. 1992).
9
See, e.g., Montoya v. United States, 841 F.2d 102, 105 (5th Cir. 1988) (“Ms. Montoya
fails to suggest a dollar sum for any of the three minor passengers; to the contrary, the letter
promised more detail once medical examinations were accomplished”); Flores v. United
States, 719 F. App’x 312, 319 (5th Cir. 2018) (“Flores’s attached 2013 administrative claim
form provided the phrase ‘will supplement’”).
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No. 20-10018
4
B. Takings Claim
The Court of Federal Claims has exclusive jurisdiction over takings
claims that exceed $10,000.
10
As noted by the district court, Chichakli clearly
seeks more than $10,000 in damages for property that he alleged was lost or
stolen by the government. And, as noted by the district court, Chichakli did not
attempt to disclaim damages in excess of $10,000 in his complaint.
Accordingly, the district court did not err in dismissing this claim for lack of
jurisdiction.
C. Fourth and Fourteenth Amendment Claims
Similarly, the district court correctly held that it lacked jurisdiction over
Chichakli’s Fourth and Fourteenth Amendment claims. The United States is
immune from suit unless it waives its sovereign immunity.
11
The FTCA does
not waive sovereign immunity for the constitutional tort claims Chichakli
asserts.
12

D. Other Parties
Finally, the district court dismissed without prejudice Chichakli’s claims
against other named parties for failure to effect proper service. Chichakli does
not challenge those dismissals on appeal. Accordingly, the district court’s
without-prejudice dismissal against those parties is affirmed.
II.
For these reasons, and the thorough reasons assigned in the findings,
conclusions, and recommendations of the magistrate judge (and accepted by
the district court), we AFFIRM the judgment of the district court.

10
Eastern Enters. v. Apfel, 524 U.S. 498, 520 (1998).
11
FDIC v. Meyer, 510 U.S. 471, 475 (1994).
12
See United States v. $4,480,466.16 in Funds Seized from Bank of Am. Account
Ending in 2653, 942 F.3d 655, 664 (5th Cir. 2019).
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