Borcena v. United States

163 F. App'x 564

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 18, 2006
• Docket: No. 04-56772
• Status: Published

Opinion

MEMORANDUM

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Sisters Hermina Borcena and Apolonia Borcena, and Apolonia’s son Sayed Tahamarzouk (“the Borcenas”) appeal pro se from the district court’s order dismissing with prejudice their Federal Tort Claims Act (“FTCA”) action alleging officials from the United States Department of Health and Human Services interfered with the operations of their medical laboratory. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Delta Sav. Bank v. United States, 265 F.3d 1017, 1024 (9th Cir.2001), and we vacate and remand.

We remand so that the district court may reconsider in light of intervening caselaw its apparent conclusion that the Borcenas failed to state an FTCA claim against the United States because there is no tort liability under California law for a “private individual under like circumstances.” See United States v. Olson, — U.S. -, ---, 126 S.Ct. 510, 512-13, 163 L.Ed.2d 306 (2005).

The parties shall bear their own costs on appeal.

VACATED and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.