which neither he nor his son, who was attending school in the United States, could account for. That letter goes on to state: "The fact remains that you and your wife admitted to transferring certain duty free items to Korean National personnel not authorized to receive or possess those items. . . . It is clear that you violated the law in these instances." Pl.'s Ex. H at 2. In addition, the other evidence of record renders Robinson's conclusory allegations of corruption by the CID investigators incredible as a matter of law.
Robinson next claims that his property was taken without due process of law because he alleges that the federal defendants made him lose his job with OMSC and prevented OMSC from rehiring him. See Pl.s' Mem. in Opp'n to Mot. to Dismiss at 9. This argument is frivolous because Robinson neither had a property interest in his job with OMSC as his contract was terminable upon thirty days prior notice, see P 4 of agreements annexed as Ex. 5 to Albright Aff., nor did he have a property interest in being subsequently rehired by OMSC. Robinson also claims that army officials violated his rights by revoking his travel privileges without first presenting him with the CID investigation reports. Pl.s' Mem. in Opp'n to Mot. to Dismiss at 9-10. See Ex. 9 to Albright Aff. (Letter of Debarment, dated December 10, 1990 prohibiting Robinson from entering the Camp Walker army base based on his illegal black market activities). This argument fails because Robinson was not entitled to a hearing before the commanding officer barred him from visiting U.S. army installations in Korea where that officer relied on a rational reason for the debarment. See, e.g., Cafeteria & Restaurant Workers Union, Local 473, AFL-CIO, 367 U.S. 886, 894-99, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1961), reh'g denied, 368 U.S. 869 (1961); United States v. Albertini, 783 F.2d 1484, 1486-87 (9th Cir. 1986); Garrison v. United States, 688 F. Supp. 1469, 1475 (D. Nev. 1988). In addition, this claim would be barred by the doctrine of sovereign immunity because it is excluded from the FTCA under 28 U.S.C. § 2680(a) since the commanding officer performs a discretionary function in deciding whether to bar a civilian from an army base. Garrison, 688 F. Supp. at 1475 (citations omitted).
Reading Robinson's complaint as liberally as possible, this Court can discern only one possibly meritorious claim, namely, that the individual defendants violated his Fourth Amendment rights by conducting warrantless searches of his residence in Korea on November 3, 1989 and October 11, 1990, and by seizing a document on November 3, 1989. While the Fourth Amendment does not protect American citizens from warrantless searches and seizures conducted by foreign officials in a foreign country, United States v. Busic, 592 F.2d 13, 23 (2d Cir. 1978), it may protect American citizens abroad from warrantless searches and seizures undertaken as "joint ventures" by foreign authorities with the substantial participation of federal officials or where the foreign authorities are acting as agents of the federal government. See, e.g., United States v. Verdugo-Urquidez, 856 F.2d 1214, 1224-28 (9th Cir. 1988), rev'd on other grounds, 494 U.S. 259, 108 L. Ed. 2d 222, 110 S. Ct. 1056 (1990); United States v. Peterson, 812 F.2d 486, 490 (9th Cir. 1987); United States v. Hawkins, 661 F.2d 436, 455-56 (5th Cir. 1981); United States v. Toscanino, 500 F.2d 267, 280 n.9 (2d Cir. 1974); Stonehill v. United States, 405 F.2d 738, 742-43 (9th Cir. 1968), cert. denied, 395 U.S. 960, 23 L. Ed. 2d 747, 89 S. Ct. 2102 (1969); Lau v. United States, 778 F. Supp. 98, 100 (D.P.R. 1991), aff'd, 976 F.2d 724 (1st Cir. 1992); United States v. Molina-Chacon, 627 F. Supp. 1253, 1258-59 (E.D.N.Y. 1986), aff'd on other grounds sub nom. United States v. Ditommaso, 817 F.2d 201 (2d Cir. 1987). The Second Circuit has yet to adopt the "joint venture" doctrine, United States v. Maturo, 982 F.2d 57, 61-62 (2d Cir. 1992), cert. denied sub nom. Pontillo v. United States, 113 S. Ct. 2982, 125 L. Ed. 2d 679 (U.S. 1993), nor has the court addressed the extent to which the federal officials must participate before the "joint venture" exception will be invoked, see, e.g., United States v. Paternina-Vergara, 749 F.2d 993, 998 (2d Cir. 1984), cert. denied sub nom. Carter v. United States, 469 U.S. 1217, 84 L. Ed. 2d 342, 105 S. Ct. 1197 (1985); Busic, 592 F.2d at 23 n.7.
Neither the government nor Robinson briefed the issue of whether the Fourth Amendment applied to warrantless search of Robinson's home in Korea that was conducted by Korean customs officials in the presence of "representatives" of the United States government and whether Robinson's ration control plate and an original document were unconstitutionally seized from Robinson's residence in Korea. See Govt.'s Exs. E and F. However, since Robinson's claims against the United States are dismissed for lack of subject matter jurisdiction, this Court need not determine the applicability of the strictures of the Fourth Amendment to the warrantless search and seizure in Korea.
2. Claims against the Individual Defendants in their Individual Capacities
Robinson erroneously seeks damages against the individual defendants in their individual capacities for alleged violations of his constitutional rights under 42 U.S.C. § 1983 which, as the federal defendants properly note, is limited to state actors and does not apply to them. Since Robinson is proceeding pro se, however, this Court will construe his § 1983 civil rights claim as the analogous claim applicable to federal actors under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971). See, e.g., Daloia v. Rose, 849 F.2d 74, 75 (2d Cir.) (construing pro se § 1983 action as Bivens action against federal defendants), cert. denied, 488 U.S. 898, 102 L. Ed. 2d 231, 109 S. Ct. 242 (1988). It is axiomatic that sovereign immunity will not bar a Bivens action against a federal official in his individual capacity, Liffiton v. Keuker, 850 F.2d 73, 78 (2d Cir. 1988), unless the federal actor demonstrates that Bivens should not be extended to provide damages for a particular constitutional violation because "special factors counsel hesitation [in judicially creating a remedy] in the absence of affirmative action by Congress" or because Congress has created an equally effective, alternative remedy, such as the FTCA. Carlson v. Green, 446 U.S. 14, 18-19, 64 L. Ed. 2d 15, 100 S. Ct. 1468 (1980) (quoting Bivens, 403 U.S. at 396-97).
Robinson's Bivens claim must nonetheless be dismissed for lack of personal jurisdiction, Fed. R. Civ. P. 12(b)(2). A district court must have jurisdiction over federal actors before it may entertain a Bivens suit. Green v. McCall, 710 F.2d 29, 31 & n. 4 (2d Cir. 1983) (noting that the nationwide service of process provision in 28 U.S.C. § 1391(e) does not apply to claims against federal officials in their individual capacities). It is clear that the individual defendants in this case are beyond the jurisdictional reach of this Court. Robinson does not dispute that they do not reside in this state.
Nor may the individual defendants be haled into this Court under New York's "long arm jurisdiction" pursuant to section 302 of the New York Civil Practice Law and Rules because the allege tortious acts occurred in Korea and none of the other subdivisions of that state statute applies. See N.Y. Civ. Prac. L. & R. § 302 (McKinney 1990). Robinson's sole contention that the alleged torts occurred in the United States is predicated on a conversation between an office of AAFES in Dallas and OMSC's office in New York, citing Pl.'s Ex. K. Pl.'s Mem. of Law at 11. But that brief memorandum refers to a telephone conversation relating to OMSC's request that the army revoke Robinson's travel documents. It has absolutely nothing to do with the alleged wrongdoing of the individual defendants.
Furthermore, even if this Court could obtain personal jurisdiction over the individual defendants, the complaint would have to be dismissed for insufficiency of service of process. Robinson sent separate copies of the summons and complaint and two return of service acknowledgment forms via registered mail, return receipt requested to Deering, Potter an Mullins in separate envelopes addressed to Headquarters, Department of the Army, in Washington D.C. All three envelopes were returned to him as undeliverable. See Govt.'s Ex. G; Aff. of Amy Frisk, dated March 25, 1993, at PP 2, 3.
This attempted service of process was ineffective. In Buggs v. Ehrnschwender, 968 F.2d 1544, 1546 (2d Cir. 1992), the court held that out-of-state residents cannot be served via first class mail as provided for in Fed. R. Civ. P. 4(c)(2)(C)(ii). Thus, Robinson must have sought to serve the individual defendants under Fed. R. Civ. P. 4(c)(2)(C)(i), which incorporates the service of process provisions of the state in which the district court sits. However, the purported service by mail was ineffective under New York law because section 312-a of the New York Civil Practice Law and Rules (McKinney 1990) requires that the summons and complaint be mailed via first-class mail, not registered mail. See Buggs, 968 F.2d at 1549 (service via certified mail is ineffective under New York law). Moreover, because each of the individual defendants never returned an acknowledgment of service form, Robinson was required to serve those defendants via the other methods outlined in Article 3 of the New York Civil Practice Law and Rules. Id. Therefore, Robinson's Bivens claim against the individual defendants in their individual capacities is dismissed for lack of personal jurisdiction and, in the alternative, for insufficiency of service of process.
For the foregoing reasons, OMSC's motion for summary judgment on the ADEA claim is granted and the federal defendants' motion to dismiss the complaint is granted.
Dated: Brooklyn, New York
July, 15th 1993
I. Leo Glasser, U.S. D.J.