Reeves v. United States ( 2022 )

20-4095-cv
Reeves v. United States
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY
CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,
in the City of New York, on the 19th day of July, two thousand twenty-two.
PRESENT:
GUIDO CALABRESI,
GERARD E. LYNCH,
RICHARD J. SULLIVAN,
Circuit Judges.
_____________________________________
MICHAEL REEVES,
Plaintiff-Appellant,
v. No. 20-4095
UNITED STATES OF AMERICA,
Defendant-Appellee.
_____________________________________
FOR PLAINTIFF-APPELLANT: JULIE A. GOLDBERG, Goldberg and
Associates, Bronx, NY.
FOR DEFENDANT-APPELLEE: JESSICA F. ROSENBAUM, Assistant
United States Attorney (Benjamin
H. Torrance, Assistant United
States Attorney, on the brief), for
Damian Williams, United States
Attorney for the Southern District
of New York, New York, NY.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Sarah Netburn, Magistrate Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED IN PART AND VACATED IN PART.
Appellant Michael Reeves appeals from the district court’s order
dismissing, for lack of subject-matter jurisdiction, his complaint against the United
States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 et
seq., which alleged that Immigration and Customs Enforcement (“ICE”) agents
subjected him to a wrongful arrest and excessive force. Reeves, a citizen of
Liberia, had entered the United States in 1986 on a nonimmigrant visa and
remained in the country after his visa expired. An immigration judge ordered
him removed to Liberia in 1997, and he was removed the following year. At some
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point thereafter, Reeves unlawfully reentered the United States. In 2014, the
Department of Homeland Security (“DHS”) issued a notice of intent to reinstate
Reeves’s 1997 removal order. Reeves sought withholding or deferral of removal
under the Convention Against Torture (“CAT”), expressing a fear of torture if he
were returned to Liberia. But after he failed to appear at a scheduled hearing in
July 2016, an immigration judge deemed his application for CAT relief abandoned.
ICE then issued a warrant of removal, and Reeves was arrested in June 2018.
After his arrest, Reeves moved the immigration court to recalendar his
withholding-only proceedings, and in October 2018, the immigration judge
granted Reeves’s request. The following year, a different immigration judge
granted Reeves a deferral of removal under CAT.
Reeves now asserts that the ICE agents wrongfully arrested him in June 2018
and used excessive force in carrying out the arrest. The district court dismissed
Reeves’s complaint, concluding that – because ICE agents were enforcing a final
order of removal when they arrested Reeves – the court lacked subject-matter
jurisdiction under 8 U.S.C. § 1252(g), which bars judicial review of claims “arising
from the decision or action by the Attorney General to . . . execute removal orders.”
Reeves timely appealed, initially proceeding pro se but now represented by
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counsel. We assume the parties= familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
On review of a dismissal for lack of subject matter jurisdiction, we review
legal conclusions de novo and factual findings for clear error. Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000). “A case is properly dismissed for lack of
subject matter jurisdiction under [Federal] Rule [of Civil Procedure] 12(b)(1) when
the district court lacks the statutory or constitutional power to adjudicate it.” Id.Under the Immigration and Nationality Act, “no court shall have jurisdiction to
hear any cause or claim by or on behalf of any alien arising from the decision or
action by the Attorney General to commence proceedings, adjudicate cases, or
execute removal orders against any alien under this chapter.” 8 U.S.C. § 1252(g).
The central issue litigated by the parties below was whether, at the time of
Reeves’s June 2018 arrest, his order of removal was “final” – notwithstanding his
withholding-only proceedings, which had been deemed abandoned before his
arrest but were then later reinstated. This issue, however, was recently settled by
the Supreme Court, which held that the “initiation of withholding-only
proceedings does not render non-final an otherwise ‘administratively final’
reinstated order of removal.” Johnson v. Guzman Chavez, 141 S. Ct. 2271, 2288
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(2021). 1 That is because a successful application for withholding of removal
“prohibits DHS from removing the alien to that particular country, not from the
United States. The removal order . . . remains in full force, and DHS retains the
authority to remove the alien to any other country authorized by the statute.” Id.
at 2285 (emphasis in original). The status of Reeves’s withholding-only
proceedings is thus irrelevant, since the removal order was final throughout the
entirety of the proceedings. Id. at 2288. The district court therefore properly
dismissed Reeves’s claim for false arrest – as counsel for Reeves conceded at oral
argument.
In his opening brief, which was filed pro se, Reeves raised only the issue of
whether he was subject to a final removal order at the time of his June 2018 arrest.2
After obtaining appellate counsel, however, Reeves raised a new argument for the
first time on appeal – just days before oral argument – concerning his excessive
1 This holding expressly abrogates our decision in Guerra v. Shanahan, in which we held that
removal orders were nonfinal during the pendency of withholding-only proceedings. See 831
F.3d 59, 64 (2d Cir. 2016). The district court rendered its decision before the Supreme Court
decided Guzman Chavez and thus relied on Guerra; the district court nonetheless concluded that
the reinstated removal order was final because Reeves’s withholding-only proceedings had been
terminated prior to the arrest.
2Reeves did not challenge the district court’s conclusion that any constitutional torts asserted
against the United States were barred by the doctrine of sovereign immunity, and so he has
abandoned those claims. See LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995).
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force claim. He contends that, regardless of whether ICE officers were executing
a final order of removal when they arrested him, section 1252(g) does not strip
federal courts of jurisdiction to consider an FTCA claim for excessive force. At
oral argument, the government took the position that jurisdiction over the
excessive force claim may turn on the nature of the force alleged – a factual issue
that was not sufficiently developed below. The government therefore consented
to remand of the FTCA excessive force claim.
We conclude that, in these circumstances, the appropriate course of action
is to vacate the dismissal of Reeves’s excessive force claim and remand to the
district court so that it may consider this jurisdictional issue (and make any
relevant factual findings) in the first instance. See Farricielli v. Holbrook, 215 F.3d
241, 246 (2d Cir. 2000) (“It is our settled practice to allow the district court to
address arguments in the first instance.”); United Food & Com. Workers Union, Loc.
919 v. CenterMark Props. Meriden Square, Inc., 30 F.3d 298, 306–07 (2d Cir. 1994)
(“While the law makes clear that we retain the ability to address a theory of the
case not considered below in certain cases, . . . our preferred practice is to remand
the issue for consideration by the district court in the first instance where, as here,
such a theory has been briefed and argued only cursorily in this Court.” (internal
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quotation marks, citations, and alterations omitted)). In all other respects, we
affirm the judgment of the district court.
For the foregoing reasons, the judgment of the district court is AFFIRMED
in part and VACATED in part, and the case is REMANDED to the district court
for further proceedings consistent with this order.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk of Court
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