Ashraf Elgamal, individually and as Guardian Ad Litem for A.E., a minor; AMANDA ELGAMAL v. REBECCA BERNACKE, Employee of the United States Citizenship

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ASHRAF ELGAMAL, individually and as
Guardian Ad Litem for A.E., a minor;
AMANDA ELGAMAL,
Plaintiffs–Appellants,
v.
REBECCA BERNACKE, Employee of the
United States Citizenship and Immigration
Services; CYNTHIA HARPER, Employee
of the United States Citizenship and
Immigration Services; JOHN M.
RAMIREZ; KIRSTJEN NIELSEN,
Secretary of the Department of Homeland
Security; UNITED STATES OF
AMERICA; JEFFREY S. BLUMBERG;
LEON RODRIGUEZ,
Defendants–Appellees.
Nos. 15-17009
16-16683
D.C. No. 2:13-cv-00867-DLR
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
FILED
MAR 05 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Submitted February 16, 2018**
San Francisco, California
Before: KLEINFELD and TALLMAN, Circuit Judges, and MURPHY,*** District
Judge.
Plaintiffs sued under the Federal Tort Claims Act, the Administrative
Procedure Act, and the Fifth Amendment. The district court dismissed the tort
claims for lack of subject-matter jurisdiction. It granted summary judgment on the
other claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo,
Senger v. United States, 103 F.3d 1437, 1440 (9th Cir. 1996), and affirm.
I.
A. Several of Plaintiffs’ tort claims are about Rebecca Bernacke’s and
Cynthia Harper’s alleged conduct. But Plaintiffs did not file an administrative
claim until more than two years after they had reason to know of the injuries that
Bernacke and Harper allegedly caused. No tolling doctrines apply. Therefore,
these claims are untimely. See 28 U.S.C. § 2401(b); Hensley v. United States, 531
F.3d 1052, 1056 (9th Cir. 2008).
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Stephen J. Murphy III, United States District Judge for
the Eastern District of Michigan, sitting by designation.
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B. Other tort claims are about Jeffrey Blumberg’s and Margo Schlanger’s
conduct. Essential elements of these claims constitute torts listed in 28 U.S.C.
§ 2680(h), so sovereign immunity applies. See Sabow v. United States, 93 F.3d
1445, 1456 (9th Cir. 1996).
C. Plaintiffs’ conspiracy claim must be dismissed because Arizona does not
recognize that tort. See 28 U.S.C. § 1346(b)(1); Hansen v. Stoll, 636 P.2d 1236,
1242 (Ariz. Ct. App. 1981). Likewise, because no private person could be sued for
anything sufficiently analogous to the negligent denial of an immigration status
adjustment application, that claim must be dismissed as well. See Dugard v.
United States, 835 F.3d 915, 921 (9th Cir. 2016); cf. Akutowicz v. United States,
859 F.2d 1122, 1125–26 (2d Cir. 1988).
II.
We lack jurisdiction over Plaintiffs’ Administrative Procedure Act claims.
Because the challenged decision denying Plaintiffs’ status adjustment application
was later withdrawn, we have not been asked to review a final agency action. See
Bennett v. Spear, 520 U.S. 154, 177–78 (1997). No statute authorizes judicial
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review of denials of status adjustment. Cabaccang v. U.S. Citizenship &
Immigration Servs., 627 F.3d 1313, 1315 (9th Cir. 2010).
III.
Plaintiffs lack a Bivens cause of action for their Fifth Amendment claims
because the Immigration and Nationality Act and the Administrative Procedure Act
adequately protect any constitutional rights at stake. See Mirmehdi v. United
States, 689 F.3d 975, 982–83 (9th Cir. 2012); W. Radio Servs. Co. v. U.S. Forest
Serv., 578 F.3d 1116, 1123 (9th Cir. 2009).
The district court’s judgments are therefore AFFIRMED.
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