Fidelis Omegbu v. United States , 475 F. App'x 628 ( 2012 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
FED. R. APP. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 29, 2012*
Decided April 12, 2012
Before
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 11-2770
FIDELIS I. OMEGBU, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of
Wisconsin.
v. No. 10-C-0765
UNITED STATES OF AMERICA, William E. Callahan, Jr.,
Defendant-Appellee. Magistrate Judge.
ORDER
Fidelis Omegbu appeals the dismissal of his complaint under the Federal Tort
Claims Act, 28 U.S.C. §§ 2671-2680, claiming primarily that immigration officials caused his
application for naturalization to be denied by fraudulently placing the arrest record of a
third party into his immigration file. We affirm.
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
No. 11-2770 Page 2
Omegbu, a Nigerian citizen, applied for naturalization in 1996 and swore under
penalty of perjury in his application, and during an interview with immigration officials,
that he had never been arrested. After a routine background check, immigration officials
learned that he was arrested in 1994 for theft. Because Omegbu failed to disclose the arrest,
immigration officials denied his application in 1997. More than a decade later, Omegbu
obtained a copy of his immigration file in response to a request he filed under the Freedom
of Information Act. His file contained a one-page report summarizing the criminal history
of another person, James Earl Bailey, who had been arrested several times. This report was
dated 1999 and apparently had been added to Omegbu’s file after the denial of his application
for naturalization.
After exhausting his administrative remedies, Omegbu sued the United States under
the FTCA, claiming that federal officials denied his application after fraudulently placing
Bailey’s criminal record in his file and manufacturing the 1994 theft arrest.
A magistrate judge, presiding with the parties’ consent, dismissed the suit for lack of
subject-matter jurisdiction and for failure to state a claim, see FED. R. CIV. P. 12(b)(1), (6). The
judge determined that Omegbu’s fraud claim squarely fell within the “intentional torts”
exception to the FTCA’s waiver of the federal government’s sovereign immunity, see 28
U.S.C. § 2680(h), and that his constitutional tort claims were barred, see 28 U.S.C.
§ 2679(b)(2)(A). The judge concluded therefore that the United States retained sovereign
immunity from Omegbu’s claims and that it lacked subject-matter jurisdiction to decide the
dispute.
Omegbu then filed a motion for reconsideration and mentioned for the first time his
grievances with an unrelated social security matter. The district court denied his motion.
Omegbu’s arguments on appeal are difficult to discern, but he seems to argue that
the United States waived its sovereign immunity under the FTCA for torts against its
employees–the immigration officials–and therefore that the district court had subject-matter
jurisdiction to decide his fraud claim. But the district court correctly dismissed the claim.
Although the FTCA provides a limited waiver of sovereign immunity for claims arising
from certain torts committed by federal employees, 28 U.S.C. § 1346(b)(1); see Ali v. Fed.
Bureau of Prisons, 552 U.S. 214, 218 (2008); Williams v. Fleming, 597 F.3d 820, 822-23 (7th Cir.
2010), the act expressly excludes intentional tort claims, including “claims arising out of . . .
misrepresentation, [and] deceit . . .” 28 U.S.C. § 2680(h); see United States v. Neustadt, 366 U.S.
696, 701 (1961). This exception bars claims against the United States for the willful
mishandling of records. See Deloria v. Veterans Admin., 927 F.2d 1009, 1012-13 (7th Cir. 1991);
Janowsky v. United States, 913 F.2d 393, 396-97 (7th Cir. 1990); Muniz-Rivera v. United States,
No. 11-2770 Page 3
326 F.3d 8, 13 (1st Cir. 2003). Because Omegbu alleged that federal officials deliberately
falsified information in his file, his fraud claim is precisely the kind barred by the FTCA’s
exception for misrepresentation and deceit. See Deloria, 927 F.2d at 1012.
Although the dismissal was correct, the claim should have been dismissed not for
lack of subject-matter jurisdiction, but instead on the merits. The intentional torts exception
is a mandatory rule of decision rather than a restriction on subject-matter jurisdiction.
Williams, 597 F.3d at 824; Collins v. United States, 564 F.3d 833, 838 (7th Cir. 2009).
Last Omegbu challenges the district court’s denial of his request on reconsideration
to enjoin the Social Security Administration from recovering overpayments. This is not an
appropriate argument for purposes of Federal Rule of Civil Procedure 59(e). See Abcarian v.
McDonald, 617 F.3d 931, 942-43 (7th Cir. 2010).
AFFIRMED.