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.