899 F. 2d 19 - Ochoa v. United States

MEMORANDUM*

Members of the Ochoa family sued the United States Government and various federal agents, individually and in their representative capacity, for the illegal execution of a search warrant at the Ochoas' cafe and home. The Ochoas asserted, among other claims, Federal Tort Claims Act ("FTCA") claims, 28 U.S.C. Secs. 1346(b), 2671, and Bivens-type constitutional tort claims. The district court dismissed both the FTCA and Bivens-type claims for lack of jurisdiction. We affirm.

The district court dismissed the Ochoas' FTCA claims for failure to comply with 28 U.S.C. Sec. 2675(a), the jurisdictional claims presentation statute. The Ochoas argue that Attorney Olstad's letter to the Drug Enforcement Agency and the Immigration and Naturalization Service satisfied the jurisdictional claims presentation statute. We disagree.

Olstad's letter fails to describe the Ochoas' claims "sufficiently ... to enable the agency to begin its own investigation." Warren v. United States Dep't of Interior Bureau of Land Management, 724 F.2d 776, 780 (9th Cir.1984) (en banc). It nowhere indicates the identity of the claimants. Anyone reading Olstad's letter could conclude that the potential claimants could have included "harassed patrons," "the owners of the restaurant," or even Olstad himself. The letter fails to name the Ochoas, or even to refer to all of the Ochoa plaintiffs since all of them are not "owners of the restaurant." In this case, the claims described in Olstad's letter were too amorphous for agency commencement of investigation as long as the identity of the claimants remained unknown. The district court's dismissal of the FTCA claims is affirmed.

The district court dismissed the Ochoas' Bivens-type claims against various federal agents in their individual capacities for lack of adequate service of the complaint and summons. The Ochoas argue that mail service to the agents was sufficient under Oregon law and therefore under federal law as well. See Lake Oswego Review, Inc. v. Steinkamp, 298 Or. 607, ----, 695 P.2d 565, 566 (1985) (en banc) (actual service satisfies Oregon service requirements); Fed.R.Civ.P. 4(c)(2)(C)(i).

While under Oregon law actual service on the individual agents may have sufficed, the Ochoas have failed to show that they accomplished actual service. The record in this case is unclear, and even at oral argument counsel was unable to verify that actual service had been accomplished. Instead, counsel stated that some of the service had been returned unopened, indicating to us that actual service could not have been accomplished. The Ochoas "must make a prima facie showing of personal jurisdiction to avoid dismissal." Brainerd v. Governors of the Univ. of Alberta, 873 F.2d 1257, 1258 (9th Cir.1988). Because the Ochoas failed to make that showing, we affirm the district court's dismissal of the Bivens-type claims.

Because the foregoing errors were fatal to federal court jurisdiction, the dismissals of the FTCA and Bivens-type claims are

AFFIRMED.