Davinci Aircraft, Inc. v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVINCI AIRCRAFT, INC., No. 17-55719

Plaintiff-Appellant,

D.C. No.

v. 2:16-cv-05864-

CAS-JC

UNITED STATES OF AMERICA;

MICHAEL CHRISTMAS, individual and

official capacity; RODNEY LEWIS, OPINION

individual and official capacity; JOEL

S. RUSSELL, individual and official

capacity; DOES, 1 through 10,

inclusive,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Christina A. Snyder, District Judge, Presiding

Argued and Submitted November 13, 2018

Pasadena, California

Filed June 12, 2019

2 DAVINCI AIRCRAFT V. UNITED STATES

Before: Richard A. Paez, Barrington D. Parker, *

and Richard R. Clifton, Circuit Judges.

Opinion by Judge Paez

SUMMARY **

Federal Tort Claims Act / Bivens

The panel affirmed the district court’s dismissal of all of

the claims of DaVinci Aircraft, Inc., alleging conversion and

other common law torts against the United States and several

U.S. Air Force employees; and remanded so that the district

court may transfer the action to the Court of Federal Claims,

if so requested.

U.S. Air Force agents seized ten military Global

Positioning Systems antennas from DaVinci. DaVinci

sought damages under the Federal Tort Claims Act

(“FTCA”) and Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971).

In support of its abuse of process and conversion claims,

DaVinci alleged that the United States and its agents

conspired to fraudulently and wrongfully coerce DaVinci to

*

The Honorable Barrington D. Parker, United States Circuit Judge

for the U.S. Court of Appeals for the Second Circuit, sitting by

designation.

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

DAVINCI AIRCRAFT V. UNITED STATES 3

surrender the antennas to the Air Force without due process

or just compensation.

The panel held that DaVinci’s abuse of process claim

was barred by section 2680(c) of the FTCA, which bars any

“claim arising in respect of . . . the detention of any goods,

merchandise, or other property by any officer of customs or

excise or any other law enforcement officer.” 26 U.S.C.

§ 2680(c). The panel held that the exception applied even

though the antennas were permanently, rather than

temporarily, detained; and applied whether or not the

property was seized as a part of a criminal investigation. The

panel further held that because the antennas were not seized

“solely” for the purpose of forfeiture, paragraphs (1)–(4) to

section 2680(c) through the Civil Asset Forfeiture Reform

Act of 2000 did not rewaive sovereign immunity to allow

DaVinci’s abuse of process claim. The panel held that the

same logic applied to prohibit DaVinci’s conversion claim

because it was based on the allegedly illegal seizure of

goods.

The panel held that at the very least, DaVinci could seek

reimbursement for the price it paid for the antennas at the

Court of Federal Claims. The panel further held that

DaVinci could proceed in the Court of Federal Claims under

the Tucker Act through a takings claim under the Fifth

Amendment.

DaVinci sued individual defendants in their individual

capacities. The panel held that because DaVinci voluntarily

dismissed the case against the three named individuals and

never amended the complaint to include any others,

DaVinci’s Bivens claims against the individual defendants

were not part of this appeal and did not exist. The panel

further held that the only remaining defendant remaining

4 DAVINCI AIRCRAFT V. UNITED STATES

was the United States, and the district court properly

dismissed the Bivens claims against the United States for

lack of subject matter jurisdiction.

COUNSEL

Abraham Richard Wagner (argued), Law Offices of

Abraham Wagner, Los Angeles, California; David M.

Baum, Baum Law Corporation, Los Angeles, California; for

Plaintiff-Appellant.

David Pinchas (argued), Assistant United States Attorney;

Dorothy A. Schouten, Chief, Civil Division; Nicola T.

Hanna, United States Attorney; United States Attorney’s

Office, Los Angeles, California; for Defendant-Appellee.

OPINION

PAEZ, Circuit Judge:

In 2014, United States Air Force agents seized ten

military Global Positioning System (“GPS”) antennas from

DaVinci Aircraft, Inc. (“DaVinci”), allegedly under the

guise of the Espionage Act, 18 U.S.C. § 793. DaVinci

responded by filing this action alleging conversion and other

common law tort claims against the United States and

several U.S. Air Force employees. DaVinci seeks damages

under the Federal Tort Claims Act (“FTCA”), ch. 753, Title

IV, 60 Stat. 842 (codified as amended in scattered sections

of 28 U.S.C.), and Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971).

DAVINCI AIRCRAFT V. UNITED STATES 5

The FTCA allows parties to pursue certain claims against

the United States in federal court for injury arising out of the

negligent or wrongful conduct of any federal employee

acting within the scope of the employee’s employment. See

28 U.S.C. §§ 1346(b)(1), 2674, 2679(b)(1). This waiver of

sovereign immunity is significant but limited with certain

exceptions. See 28 U.S.C. § 2680. Separately, the Tucker

Act grants exclusive jurisdiction to the Court of Federal

Claims for actions “sounding in contract” against the United

States. Snyder & Associates Acquisitions LLC v. United

States (Snyder), 859 F.3d 1152, 1156 n.2 (9th Cir.), opinion

amended on reh’g, 868 F.3d 1048 (9th Cir. 2017) (citing

28 U.S.C. § 1491(a)(1)). In this case, we must delineate

between claims that must be filed in the district court and

those that must be filed in the Court of Federal Claims.

The district court granted the government’s motion to

dismiss all of DaVinci’s claims against the United States for

lack of subject matter jurisdiction. We have appellate

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Although we affirm, we also remand so that the district court

may transfer this action to the Court of Federal Claims,

provided DaVinci so requests. See McGuire v. United

States, 550 F.3d 903, 914 (9th Cir. 2008).

I.

A.

DaVinci is a California-based corporation that purchases

and sells new and used parts in the aviation and aerospace

industries. DaVinci’s problems arose out of its acquisition

and the U.S. Air Force’s subsequent confiscation of ten GPS

antennas for the AGM-158 Joint Air-to-Surface Standoff

Missile (“the Antennas”).

6 DAVINCI AIRCRAFT V. UNITED STATES

Ball Aerospace & Technologies, Inc. manufactured the

Antennas under a subcontract from Lockheed Martin, a U.S.

Air Force prime contractor. Under the subcontract, the

Antennas were considered unclassified hardware and

therefore not subject to the security requirements of the

Department of Defense or U.S. Air Force for classified data

and hardware. They did not require demilitarization and

were authorized by the U.S. Air Force for public sale,

excluding export, around March 2013. Avatar Unlimited

purchased the Antennas from Lockheed Martin as part of a

bulk sale of surplus parts, and then resold them to BPB

Surplus, who then sold them to DaVinci for $3,000.

In September 2013, four agents from the U.S. Air Force

Office of Special Investigations visited DaVinci’s office to

inspect and discuss the Antennas. After the inspection,

Special Agent Laura Voyatzis demanded that DaVinci

surrender the equipment. DaVinci refused to surrender the

Antennas without the agents providing authority for their

demands. When asked for the selling price, DaVinci quoted

$1.25 million for the Antennas, after which the Special

Agents left without further action.

Between April and June 2014, DaVinci corresponded

with agents at Eglin Air Force Base over the Antennas.

Contracting Officer Rodney Lewis initially offered $7,359

for the Antennas, but DaVinci declined and countered with

a discounted price of $750,000 and later $600,000. DaVinci

and the Air Force employees never agreed upon a price.

In September 2014, Special Agent Joel S. Russell and

two Air Force Officers arrived at DaVinci’s office and

demanded that DaVinci surrender the Antennas under

compulsion of law. Russell produced a letter dated a week

earlier and signed by both Lewis and Michael Christmas,

Special Agent in Charge of the Department of the Air Force,

DAVINCI AIRCRAFT V. UNITED STATES 7

Office of Special Investigations. The letter stated that the

“delivery of the said items by [DaVinci’s owner] and

DaVinci Aircraft is made under compulsion of law pursuant

to 18 USC 793(d)[, the Espionage Act,] and is made without

prejudice to any claims by [DaVinci’s owner] and/or

DaVinci Aircraft for their fair market value.”

In response to Russell’s demands and the threat of

criminal prosecution for failure to comply, DaVinci

surrendered the Antennas. Russell provided a signed

acknowledgment of “Receipt For Items Taken Under

Compulsion” to DaVinci. That same day, DaVinci delivered

to Eglin Air Force Base an invoice for the Antennas in the

amount of $1.25 million.

B.

After exhausting the FTCA administrative process, 1

DaVinci filed a complaint in the district court against the

United States, Christmas, Lewis, and 10 unnamed individual

defendants in their official capacities. The United States

filed a motion to dismiss under Federal Rules of Civil

Procedure 12(b)(1) and 12(b)(6). The United States argued

that the district court lacked jurisdiction over DaVinci’s tort

claims because the confiscation fell into an exception of the

1

Although the government never formally denied DaVinci’s

administrative claim for damages, it does not dispute that DaVinci

pursued and exhausted its administrative remedies. After filing a

Standard Form 95 with the Claims Division of the Office of Staff Judge

Advocate, Department of the Army, DaVinci waited over six months

without receiving a response before filing his complaint. See 28 U.S.C.

§ 2675(a) (“failure of an agency to make final disposition of a claim

within six months after it is filed” is “deemed a final denial of the claim

for purposes of [the FTCA]”).

8 DAVINCI AIRCRAFT V. UNITED STATES

FTCA’s waiver of its sovereign immunity. In support of its

assertion, the government submitted a declaration from

Martin D. Hemmingsen, Program Element Monitor for Air

Force Special Programs, attesting that in July 2014, the

Antennas were classified as “SECRET” and

“SECRET/SPECIAL ACCESS REQUIRED” level in

accordance with Executive Order 13,526. 2 The court

concluded that it lacked jurisdiction over DaVinci’s tort

claims against the United States and that DaVinci failed to

state a Bivens claim against the individual defendants, and

dismissed all claims without prejudice.

DaVinci filed a First Amended Complaint against the

United States, Christmas, Lewis, Russell, and 10 unnamed

defendants. This time, all of the individual defendants were

sued in their individual capacities. DaVinci asserted six

causes of action against all defendants: (1) conversion, (2)

seizure of property in violation of the Fourth Amendment,

(3) deprivation of property without due process in violation

of the Fifth Amendment, (4) conspiracy related to abuse of

process, 3 (5) fraud, and (6) negligent misrepresentation. The

2

The Executive Order “prescribes a uniform system for classifying,

safeguarding, and declassifying national security information.” Exec.

Order No. 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009). “Information shall

not be considered for classification unless its unauthorized disclosure

could reasonably be expected to cause identifiable or describable damage

to the national security” and it pertains to an enumerated category of

information related to military and foreign intelligence matters. Id. at

§ 1.4.

3

DaVinci initially labeled this claim as a conspiracy related to abuse

of process claim, but the district court treated this as an abuse of process

claim, and we do so as well.

DAVINCI AIRCRAFT V. UNITED STATES 9

United States responded with another motion to dismiss

under Rules 12(b)(1) and 12(b)(6).

The district court again granted the motion to dismiss all

claims against the United States. The district court

concluded that it lacked jurisdiction over DaVinci’s FTCA

claims of fraud, negligent misrepresentation, and conspiracy

to commit fraud or misrepresentation because 28 U.S.C.

§ 2680(h) provides an absolute bar to such claims. 4 The

district court also held that it lacked jurisdiction over

DaVinci’s abuse of process and conversion claims because

of the FTCA’s “detention of goods” exception under

28 U.S.C. § 2680(c). Relying on the 2014 Christmas letter

and 2016 Hemmingsen declaration, the district court noted

that it could not review the Air Force’s decision to classify

the Antennas as relating to the national defense because such

classification was a discretionary decision, triggering the

“discretionary function” bar under 28 U.S.C. § 2680(a).

Lastly, the district court held that Bivens did not provide a

cause of action against the United States, and therefore

dismissed DaVinci’s two constitutional claims against the

United States.

4

Section 2680(h) provides that plaintiffs may not assert any claim

“arising out of assault, battery, false imprisonment, false arrest,

malicious prosecution, abuse of process, libel, slander,

misrepresentation, deceit, or interference with contract rights” by federal

employees. DaVinci has not appealed the district court’s order

dismissing its claims of fraud, negligent misrepresentation, or conspiracy

to commit fraud or misrepresentation. Section 2680(h) does not bar

DaVinci’s abuse of process claim because the provision contains an

exception for certain claims arising out of the actions of an “investigative

or law enforcement officer,” which includes the U.S. Air Force agents in

this case. 28 U.S.C. § 2680(h).

10 DAVINCI AIRCRAFT V. UNITED STATES

DaVinci timely appealed. The only parties on appeal are

DaVinci and the United States because after the district court

dismissed all claims against the United States, DaVinci

dismissed the action without prejudice against Christmas,

Russell and Lewis.

II.

We review de novo a district court’s decision to grant a

motion to dismiss for lack of subject matter jurisdiction.

Snyder, 859 F.3d at 1156. When reviewing a dismissal

pursuant to Rule 12(b)(1) and 12(b)(6), “we accept as true

all facts alleged in the complaint and construe them in the

light most favorable to plaintiff[], the non-moving party.”

Id. at 1156–57 (citing Leite v. Crane Co., 749 F.3d 1117,

1121 (9th Cir. 2014)). “Dismissal is improper unless ‘it

appears beyond doubt that the plaintiff can prove no set of

facts in support of his claim which would entitle him to

relief.’” Love v. United States, 915 F.2d 1242, 1245 (9th Cir.

1989) (quoting Gibson v. United States, 781 F.2d 1334, 1337

(9th Cir. 1986)); see also Ashcroft v. Iqbal, 556 U.S. 662,

679 (2009) (holding that plaintiff must plead factual

allegations that “plausibly give rise to an entitlement to

relief”).

III.

DaVinci argues that the district court erred by dismissing

four of its claims: abuse of process, conversion, and two

Bivens claims. Although the government also moved to

dismiss based on failure to state a claim, our focus is on the

district court’s determination that it lacked subject matter

jurisdiction over DaVinci’s claims. We briefly review the

relevant aspects of the FTCA and then address each of

DaVinci’s claims in turn.

DAVINCI AIRCRAFT V. UNITED STATES 11

A. The FTCA and Its Exceptions

Enacted in 1946, the FTCA provides that the United

States shall be liable, to the same extent as a private party,

“for injury or loss of property, or personal injury or death

caused by the negligent or wrongful act or omission of any

employee of the Government while acting within the scope

of his office or employment.” 28 U.S.C. § 1346(b)(1); see

also 28 U.S.C. § 2674 (“The United States shall be liable,

respecting the provisions of this title relating to tort claims,

in the same manner and to the same extent as a private

individual under like circumstances . . .”). In doing so, the

FTCA waives the United States’ sovereign immunity for tort

claims against the federal government in cases where a

private individual would have been liable under “the law of

the place where the act or omission occurred.” 28 U.S.C.

§ 1346(b)(1).

That waiver, however, is limited to only “permit[] certain

types of actions against the United States.” Morris v. United

States, 521 F.2d 872, 874 (9th Cir. 1975). Specifically,

28 U.S.C. § 2680 “provides for several exceptions that

‘severely limit[]’ the FTCA’s waiver of sovereign

immunity.” Snyder, 859 F.3d at 1157 (quoting Morris,

521 F.2d at 874). If a plaintiff’s tort claim falls within one

of the exceptions, the district court lacks subject matter

jurisdiction. Id. To determine whether section 2680 bars a

proposed claim, we “look[] beyond the labels,” Thomas-

Lazear v. FBI, 851 F.2d 1202, 1207 (9th Cir. 1988), and

evaluate the alleged “conduct on which the claim is based,”

Mt. Homes, Inc. v. United States, 912 F.2d 352, 356 (9th Cir.

1990). For instance, in Thomas-Lazear, we noted that “the

claim for negligent infliction of emotional distress is nothing

more than a restatement of the [originally barred] slander

claim” because “the Government’s actions that constitute a

12 DAVINCI AIRCRAFT V. UNITED STATES

claim for slander are essential to [the plaintiff]’s claim for

negligent infliction of emotional distress.” 851 F.2d at 1207.

Hence, it was also barred by section 2680(h) as “[t]here is no

other government conduct upon which [the claim] can rest.”

Id. (quoting Metz v. United States, 788 F.2d 1528, 1535

(11th Cir. 1986)); see also Alexander v. United States,

787 F.2d 1349, 1350–51 (9th Cir. 1986) (holding that

negligence claim was actually one of misrepresentation);

Leaf v. United States, 661 F.2d 740, 742 (9th Cir. 1981)

(same). Thus, if the governmental conduct underlying a

claim falls within an exception outlined in section 2680, the

claim is barred, no matter how the tort is characterized. See

Mt. Homes, 912 F.2d at 356.

B.

In support of its abuse of process and conversion claims,

DaVinci alleged that the United States and its agents

conspired to fraudulently and wrongfully coerce DaVinci to

surrender the Antennas to the Air Force without due process

or just compensation. DaVinci challenges, in essence, the

government’s conduct as it relates to the seizure of the

Antennas.

i. Abuse of Process Claim

To support a cause of action for abuse of process,

DaVinci “must plead two essential elements: that the

defendant (1) entertained an ulterior motive in using the

process and (2) committed a willful act in a wrongful

manner.” Snyder, 859 F.3d at 1161 (quoting Coleman v.

Gulf Ins. Grp., 718 P.2d 77, 81 (Cal. 1986)). Because

DaVinci’s claim is premised on the seizure of the Antennas,

we must first decide whether 28 U.S.C. § 2680(c)’s

detention of goods exception precludes jurisdiction.

Compare Kosak v. United States, 465 U.S. 848, 859–61

DAVINCI AIRCRAFT V. UNITED STATES 13

(1984) (holding that plaintiff’s negligence claim fell under

the detention of goods exception because he was challenging

the Customs officials’ negligence in the handling of his

seized artwork), with Cervantes v. United States, 330 F.3d

1186, 1189–90 (9th Cir. 2003) (holding that plaintiff’s

negligence claim did not fall under the detention of goods

exception because the alleged negligence had nothing to do

with the detention of the car at issue). We hold that

DaVinci’s abuse of process claim is barred by section

2680(c). 5

The FTCA bars “[a]ny claim arising in respect of . . . the

detention of any goods, merchandise, or other property by

any officer of customs or excise or any other law

enforcement officer.” 28 U.S.C. § 2680(c). The Supreme

Court has interpreted the statutory language of

section 2680(c) to encompass “all injuries associated in any

way with the ‘detention’ of goods,” including claims for

negligence. Kosak, 465 U.S. at 854 (emphasis added). More

recently, the Supreme Court resolved a circuit split in

holding that the detention of goods exception applies to the

detention of goods by “all law enforcement officers,” not

just officers enforcing customs or excise laws. Ali v. Fed.

Bureau of Prisons, 552 U.S. 214, 215–16 (2008) (emphasis

added). Even prior to Ali, we had held that section 2680(c)’s

detention of goods exception extends beyond customs

enforcement to cover Bureau of Prisons officers. See

5

The district court also noted that it could not consider a challenge

to the Antennas’ classification due to the discretionary function

exception under 28 U.S.C. § 2680(a). Because the detention of goods

exception precludes DaVinci’s claim, we do not address the applicability

of the discretionary function exception. United States v. Lockheed L-188

Aircraft, 656 F.2d 390, 397 (9th Cir. 1979).

14 DAVINCI AIRCRAFT V. UNITED STATES

Bramwell v. U.S. Bureau of Prisons, 348 F.3d 804, 807 (9th

Cir. 2003).

DaVinci attempts to distinguish its situation by

emphasizing that the Antennas were permanently taken and

without any allegation of criminal conduct, unlike those in

Kosak or Foster v. United States, 522 F.3d 1071 (9th Cir.

2008), where the property was temporarily detained pending

a criminal investigation. We recognize that other courts

have confined section 2680(c) to bar only those suits arising

out of the temporary custody or withholding of goods. 6 Our

court has concluded otherwise. In our view, the statute has

“effectively bar[red] any remedy for intentional torts with

respect to seizures,” notably treating “seizures” as covered

by the detention exception in section 2680(c). Gasho v.

United States, 39 F.3d 1420, 1433 (9th Cir. 1994).

As the case law stands, we have not made any distinction

between a permanent or temporary detention. See id.; see

also Ali, 552 U.S. at 216 (affirming that the detention of

goods exception barred petitioner’s claim against prison

officials for losing some of his possessions during a

transfer); United States v. $149,345 U.S. Currency, 747 F.2d

1278, 1283 (9th Cir. 1984) (holding that section 2680(c)

precludes FTCA counterclaim based on permanent seizure

of money as drug sales proceeds). The exception also

applies whether or not the property was seized as part of a

criminal investigation. See, e.g., Ali, 552 U.S. at 216

6

See Kurinsky v. United States, 33 F.3d 594, 597 (6th Cir. 1994),

overruled on other grounds by Ali, 522 U.S. 214; Chapa v. U.S. Dep’t of

Justice, 339 F.3d 388, 390–91 (5th Cir. 2003); Hallock v. United States,

253 F. Supp. 2d 361, 366 (N.D.N.Y. 2003); but see Parrott v. United

States, 536 F.3d 629 (7th Cir. 2008) (noting “some circuits have held that

officers’ actions of ‘seizing’ property falls within the scope of the

exception”).

DAVINCI AIRCRAFT V. UNITED STATES 15

(holding exception applied where goods were damaged

during prison transfer); Bramwell, 348 F.3d at 805–06

(applying section 2680(c) to bar petitioner’s claim for

damages where his eyeglasses were accidentally damaged

while being washed in the prison laundry). Our reading of

section 2680(c) “effectively bars any remedy for intentional

torts with respect to seizures” by law enforcement officials. 7

Gasho, 39 F.3d at 1433.

Perhaps acknowledging the breadth of the exception,

Congress added paragraphs (1)-(4) to section 2680(c)

through the Civil Asset Forfeiture Reform Act of 2000, Pub.

L. No. 106-185, § 3, 114 Stat. 202, 211, which created an

7

Admittedly, our broad reading in Gasho conflicts with our repeated

warnings against reading exemptions so broadly that the “FTCA’s

waiver of sovereign immunity” ends up being “wholly subsumed in the

[] exception.” Snyder, 859 F.3d at 1159 (holding that section 2680(c)’s

exception for tax-related activities is “broad, but it is not unlimited”); see

also Wright v. United States, 719 F.2d 1032, 1036 (9th Cir. 1983) (noting

the court “reads no exemptions into the FTCA beyond those provided”).

In Kosak, the Supreme Court emphasized “that the exceptions to the Tort

Claims Act should not be read in a way that would ‘nullif[y them]

through judicial interpretation,’” because “unduly generous

interpretations of the exceptions run the risk of defeating the central

purpose of the statute. 465 U.S. at 853 n.9 (quoting United States v.

Yellow Cab Co., 340 U.S. 543, 548 n.5 (1983)).

During oral argument, DaVinci’s counsel asserted, for the first time,

that the government no longer has custody of the Antennas because they

were used during an attack in Syria and, hence, the detention of goods

exception does not apply. Oral argument at 29:37-30:30, DaVinci

Aircraft, Inc. v. United States, No. 17-55719 (9th Cir. Nov. 13, 2018),

https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000014

566. DaVinci did not mention the lack of custody in its briefing and has

conceded that it cannot point to any evidence in the record to support the

contention. Id. We therefore do not address the applicability of

section 2680(c) to such hypothetical circumstances and leave that issue

for another day.

16 DAVINCI AIRCRAFT V. UNITED STATES

exception to the detention of goods exception for property

“seized for the purpose of forfeiture.” 28 U.S.C.

§ 2680(c)(1). The district court correctly held that the

seizure of the Antennas does not fall within the forfeiture

exception because there is no evidence that the government

seized them “solely for the purpose of forfeiture.” Foster,

522 F.3d at 1075. In fact, no forfeiture proceedings have

been initiated against DaVinci. Because the Antennas were

not seized “solely” for the purpose of forfeiture, section

2680(c)(1)–(4) does not rewaive sovereign immunity to

allow DaVinci’s abuse of process claim.

ii. Conversion Claim

The same logic extends to prohibit DaVinci’s conversion

claim because it is based on the allegedly illegal seizure of

goods. See Gasho, 39 F.3d at 1433 (holding that section

2680(c) barred tort claim based on seizure and detention of

plaintiffs’ aircraft); Lockheed L-188 Aircraft, 656 F.2d

at 397 (same).

DaVinci relies on a line of our cases to argue that the

district court had jurisdiction to hear his conversion claim

because it “sounds in tort” and could not be heard in the

Court of Federal Claims. These cases did recognize that

where a contract between the plaintiff and federal

government was not the sole basis for liability and a claim

was “essentially one sounding in tort,” the district court had

jurisdiction to hear the plaintiff’s FTCA claim. Fort

Vancouver Plywood Co. v. United States, 747 F.2d 547, 550

(9th Cir. 1984) (quoting Woodbury v. United States,

313 F.2d 291, 294–96 (9th Cir. 1963)); see also Love,

915 F.2d at 1246–47 (holding that district court has

jurisdiction under the FTCA to consider conversion claim

under Montana law). DaVinci’s reliance on these cases is

misplaced, however, because they predate the expansion of

DAVINCI AIRCRAFT V. UNITED STATES 17

the detention of goods exception by the Supreme Court to

“sweep within the exception all injuries associated in any

way with the ‘detention’ of goods,” Kosak, 465 U.S. at 854,

by “all law enforcement officials,” Ali, 552 U.S. at 216.

Section 2680(c)’s very limited exception within the

exception for goods seized “solely” for forfeiture purposes,

Foster, 522 F.3d at 1079, also does not apply here.

DaVinci correctly asserts that the Court of Federal

Claims would have no jurisdiction over its conversion claim

because it is a pure tort claim. See Snyder, 859 F.3d at 1156

n.2; see also Hall v. United States, 19 Cl. Ct. 558, 559 (1990)

(noting that “the parties agreed that plaintiffs would not

pursue their conversion claim as [the Court of Federal

Claims] does not have jurisdiction over claims sounding in

tort.”), aff’d, 918 F.2d 187 (Fed. Cir. 1990). As discussed

below, however, this does not mean that DaVinci is

foreclosed from all relief.

C. The Tucker Act and Court of Federal Claims 8

As the Supreme Court discussed in Kosak, one rationale

for an expansive interpretation of the FTCA exceptions is

that Congress did not intend the FTCA to provide recovery

where “adequate remedies were already available.”

465 U.S. at 858. The Tucker Act has long provided a venue

for claims like the one DaVinci brings here. See 28 U.S.C.

§ 1491(a)(1) (providing for jurisdiction in the Court of

Federal Claims for “any claim against the United States

founded either upon the Constitution, or any Act of Congress

8

Prior to 1992, the U.S. Court of Federal Claims was known as the

U.S. Court of Claims or Claims Court. See Federal Courts

Administration Act of 1992, Pub. L. No. 102-572, § 902(a)(1), 106 Stat.

4506, 4517.

18 DAVINCI AIRCRAFT V. UNITED STATES

or any regulation of an executive department, or upon any

express or implied contract with the United States, or for

liquidated or unliquidated damages in cases not sounding in

tort.” (emphasis added)). In fact, the district court noted that

claims like DaVinci’s—claims against the United States for

compensation or the return of materials seized pursuant to

18 U.S.C. § 793(d)—have been brought in the Court of

Federal Claims as breaches of implied or express contracts.

Critically, the Supreme Court has explicitly held that the

detention of goods exception from 28 U.S.C. § 2680(c) does

not apply to the Tucker Act. See Hatzlachh Supply Co. v.

United States, 444 U.S. 460, 466 (1980).

The Court of Federal Claims’ opinion in Ast/Servo

Systems, Inc. v. United States contained strikingly similar

facts to DaVinci’s situation. 449 F.2d, 789, 789 (Ct. Cl.

1971). In Ast/Servo Systems, Inc., the Air Force mistakenly

sold through a public sale surplus governmental material,

specifically guidance sets, which the plaintiff bought from

the original purchasers for $65-300 apiece and then offered

for sale at a 10-50 times markup. Id. at 789. The Air Force

subsequently informed the plaintiff that the guidance sets

“relat[ed] to the national defense” under the Espionage Act,

and demanded immediate return of the equipment. Id.

at 789–90. The plaintiff complied and then brought suit for

“just compensation” in the amount of the sales price it had

marked up. Id. at 790. Applying principles of contract law,

the court held that the plaintiff could not recover “just

compensation” because the original Air Force sale was a

mistake, thereby voiding the original contract, id. at 791–92,

but that the plaintiff could seek actual out-of-pocket costs,

id. at 792. See also Int’l. Air Response v. United States,

75 Fed. Cl. 604, 614 (2007) (“[E]ven if the Espionage Act

did apply, plaintiff would be entitled to compensation for its

‘actual expenditures.’” (quoting Ast/Servo Systems, Inc.,

DAVINCI AIRCRAFT V. UNITED STATES 19

449 F.2d at 790)). Thus, at the very least, DaVinci could

seek reimbursement for the price it paid for the Antennas at

the Court of Federal Claims. 9

DaVinci could proceed in the Court of Federal Claims

under the Tucker Act through a takings claim under the Fifth

Amendment. See, e.g., Lockheed L-188 Aircraft, 656 F.2d

at 395–97 (dismissing plaintiffs’ counterclaim under the

Tucker Act because it exceeded the $10,000 jurisdictional

limit, but noting that they could pursue an independent

action to recover compensation for their seized aircraft in the

Court of Federal Claims); see also Hall, 19 Cl. Ct. at 559

(“[P]laintiffs seek entitlement to the sum of $175,000.00 as

just compensation under the fifth amendment on account of

the government’s alleged taking of the [F-100 jet engine

unified fuel control].”); Consejo de Desarrollo Economico

de Mexicali, A.C. v. United States, 482 F.3d 1157, 1172 (9th

Cir. 2007) (“Assuming, without deciding, that [plaintiffs]

had a cognizable property interest, its remedy for an alleged

takings claim is under the Tucker Act, 28 U.S.C. § 1491.”).

9

If DaVinci wishes to contest the Antennas’ classification, it may

still do so in the Court of Federal Claims. See, e.g., Int’l Air Response,

75 Fed. Cl. at 614 (noting that not all information about wartime

activities necessarily relates to national defense, and holding that the

government failed to show that the Espionage Act should be applied to

the historical military transport airplanes that were confiscated); Dubin

v. United States (Dubin I), 289 F.2d 651, 655 (Ct. Cl. 1961) (holding that

“[i]f there is a genuine controversy as to whether the articles here in

question related to the national defense, . . . the case will have to go to

trial”); Dubin v. United States (Dubin II), 363 F.2d 938, 942 (Ct. Cl.

1966) (holding, based on findings from trial, that there was “no room for

doubt that [the repossessed equipment] was related to the national

defense”).

20 DAVINCI AIRCRAFT V. UNITED STATES

D. Bivens Claims

A Bivens suit may be brought against a government

official in her individual capacity, but not in her official

capacity because such a suit “would merely be another way

of pleading an action against the United States, which would

be barred by the doctrine of sovereign immunity.” Id. at

1173. “Sovereign immunity is jurisdictional in nature,” so

there is no subject matter jurisdiction unless sovereign

immunity has been waived. FDIC v. Meyer, 510 U.S. 471,

475 (1994).

DaVinci sued Christmas, Lewis, Russell and 10

unnamed defendants in their individual capacities. On

appeal, DaVinci argues that the district court erred in

dismissing its Bivens claims because the named individual

officers were included in the government’s motion to

dismiss. This argument, however, is belied by the record.

The government’s motion to dismiss was filed on behalf of

only the United States. 10 More importantly, DaVinci

concedes that it dismissed the case without prejudice against

Christmas, Russell and Lewis due to the “practical

impossibility of personal service.” DaVinci also asserts that

four other individuals, 11 originally identified as John Does,

10

Notably, the United States substituted as a defendant in the district

court in the place of Lewis, Russell and Christmas with respect to the

common law tort causes of action because they were deemed to be acting

within the course and scope of their employment with the United States.

See 28 U.S.C. § 2679(d)(1). The United States did not, however, file

substitutions for any of the named individual defendants as to DaVinci’s

Bivens claims.

11

The four other individual agents were Special Agent in Charge

Laura Voyatzis, Special Agents Lenora Madison, John Drapalik, and

David Giverno.

DAVINCI AIRCRAFT V. UNITED STATES 21

remain parties to the case on appeal, but DaVinci never

attempted to amend its complaint to include those

individuals nor did DaVinci actually serve them with a

summons and complaint.

In order for the district court to exercise personal

jurisdiction over a defendant sued in her individual capacity,

the defendant must be “properly served” in her individual

capacity. Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th

Cir. 1987). “We require ‘substantial compliance with

[Federal Rule of Civil Procedure] 4.’” Id. (quoting Jackson

v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982)).

Because DaVinci voluntarily dismissed the case against the

three named individuals and never amended the complaint

to include any others, DaVinci’s Bivens claims against the

individual defendants are not part of this appeal and do not

exist. The only defendant remaining is the United States,

and the district court properly dismissed the Bivens claims

against the United States for lack of subject matter

jurisdiction. See Meyer, 510 U.S. at 475, 486; Daly-Murphy,

837 F.2d at 356.

IV.

The saga over the seizure of DaVinci’s Antennas

illustrates a tension arising out of our FTCA cases. On the

one hand, we are instructed to construe statutes waiving the

government’s sovereign immunity strictly in favor of the

sovereign. Yet we must also be wary of reading exemptions

so broadly that the FTCA exceptions swallow up the statute

and leave no recourse for plaintiffs like DaVinci.

Notwithstanding where the Antennas are today, DaVinci

may have a remedy, even if limited, in the Court of Federal

Claims.

22 DAVINCI AIRCRAFT V. UNITED STATES

Therefore, we affirm the judgment of the district court

and remand this case with instructions that, if DaVinci so

requests, the court shall transfer this action to the Court of

Federal Claims pursuant to 28 U.S.C. § 1631.

AFFIRMED AND REMANDED WITH

INSTRUCTIONS.