ABC v. DEF ., No. 06-1362 (2d Cir. 2007)

Annotate this Case

Download PDF

06-1362-cv ABC v. DEF . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2006 (Argued: April 23, 2007 Decided: September 5, 2007) Docket No. 06-1362-cv - - - - - - - - - - - - - - - - - - - -x ABC, Plaintiff-Appellant, -v.DEF, Defendant-Appellee. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, LEVAL and POOLER, Circuit Judges. Appeal from the judgment of the United States District 30 Court for the Southern District of New York (Daniels, J.), 31 dismissing ABC s complaint for lack of subject matter 32 jurisdiction under the Federal Tort Claims Act, 28 U.S.C. §§ 33 1346(b), 1402(b), 2401(b), & 2671-2680. 34 Vacated in part and remanded. 35 36 ABC, pro se. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 PETER HALPIN, JUSTIN KOLBENSCHLAG, ERICA LAPLANTE (Jonathan H. Romberg, on the brief), for Seton Hall University School of Law Center for Social Justice, Newark, NJ, as amicus curiae in support of Appellant.* KRISTIN L. VASSALLO, Assistant United States Attorney (Elisabeth Wolstein, Assistant United States Attorney, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY, for Appellee. DENNIS JACOBS, Chief Judge: A federal prison inmate pro se appeals from the 23 judgment of the United States District Court for the 24 Southern District of New York (Daniels, J.), dismissing his 25 claim against the United States based on the allegation that 26 a prison officer negligently detained and lost his property 27 during his transfer from one cell to another. 28 Tort Claims Act ( FTCA ) waives the sovereign immunity of 29 the United States for certain civil actions, with various 1 2 3 4 5 6 * The Federal The Seton Hall University School of Law Center for Social Justice ( CSJ ) served as counsel for appellant Jack Lewis in Lewis v. United States, No. 05-2366, which was to be heard in tandem with this case. When Lewis was dismissed by stipulation prior to oral argument, CSJ successfully moved to participate in this appeal as amicus curiae. 2 1 exceptions, and vests jurisdiction in the district courts. 2 28 U.S.C. §§ 1346(b), 2680(a)-(n). 3 dismissed the claim on the ground that § 2680(c), one of the 4 exceptions to the FTCA s waiver, bars jurisdiction for 5 claims involving the detention of goods by any officer of 6 customs or excise or any other law enforcement officer. 7 The court ruled that a prison officer is such an other law 8 enforcement officer. 9 other law enforcement officer, as used in § 2680(c), The district court We conclude that the phrase any 10 references only law enforcement officers who are functioning 11 in a capacity akin to that of a customs or excise officer. 12 Since plaintiff s claim is not barred by § 2680(c), we 13 vacate the judgment in relevant part and remand for further 14 proceedings consistent with this opinion. 15 16 I 17 Plaintiff-appellant ABC is a federal prisoner whose 18 name is concealed in this opinion and in the caption; the 19 district court proceedings are largely under seal (including 20 the opinion reviewed on this appeal); and our statement of 21 facts (accepted as true by the district court) is spare. 22 23 Sometime in 2001, the government came to believe that information regarding ABC s cooperation with the authorities 3 1 might have been disclosed to other prisoners. 2 safety, ABC was transferred to a special housing unit. 3 was told by a prison official that certain property in his 4 cell and in storage would be transferred with him. 5 six weeks after the transfer, ABC surveyed his property and 6 discovered that many items were missing. 7 action seeking money damages against the United States, the 8 United States Department of Justice ( DOJ ), and the Federal 9 Bureau of Prisons ( BOP ), alleging that the loss of his 10 property was the result of negligence by federal prison 11 officials during the transfer.1 12 DOJ and the BOP were dismissed because the FTCA does not 13 permit suits against federal agencies, see Mignogna v. Sair 14 Aviation, Inc., 937 F.2d 37, 40 (2d Cir. 1991); see also 28 15 U.S.C. § 2679(a), a ruling that is not contested on appeal. 16 As to ABC s claim against the United States, the district 17 court concluded that there was no waiver of sovereign 18 immunity (and that the district court therefore lacked 19 jurisdiction) because the BOP official responsible for 20 transferring ABC s property was an other law enforcement 1 2 3 1 For his He About He brought this ABC s claims against the The district court observed that ABC exhausted his administrative remedies. The government does not contest the issue on appeal. 4 1 officer under § 2680(c). This appeal followed. 2 II 3 In relevant part, the FTCA vests the district courts 4 5 with exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . for injury or loss of property . . . 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, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 6 7 8 9 10 11 12 13 14 15 16 17 28 U.S.C. § 1346(b)(1). 18 sovereign immunity, Kosak v. United States, 465 U.S. 848, 19 852 (1984); but it is subject to numerous exceptions, see 28 20 U.S.C. § 2680(a)-(n). 21 claims regarding the detention of property by any officer 22 of customs or excise or any other law enforcement officer. 23 This is a broad waiver of Relevant here, § 2680(c) excepts The government contends that any other law enforcement 24 officer should be read broadly to encompass any law 25 enforcement officer who has detained any property in any law 26 enforcement context. 27 read more narrowly, in light of the surrounding text, to 28 reference only law enforcement officers who are acting in a ABC contends that the phrase should be 5 1 2 customs or excise capacity.2 Our sister circuits are split on this issue. Compare 3 Bramwell v. U.S. Bureau of Prisons, 348 F.3d 804 (9th Cir. 4 2003) (adopting the broad reading of the exception advanced 5 by the government); Chapa v. U.S. Dep t of Justice, 339 F.3d 6 388 (5th Cir. 2003) (per curiam) (same); Hatten v. White, 7 275 F.3d 1208 (10th Cir. 2002) (same); Cheney v. United 8 States, 972 F.2d 247 (8th Cir. 1992) (per curiam) (same); 9 Schlaebitz v. U.S. Dep t of Justice, 924 F.2d 193 (11th Cir. 10 1991) (per curiam) (same); Ysasi v. Rivkind, 856 F.2d 1520 11 (Fed. Cir. 1988) (same), with Andrews v. United States, 441 12 F.3d 220 (4th Cir. 2006) (adopting the narrow reading of the 13 exception advanced by ABC); Ortloff v. United States, 335 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 2 Because we conclude that § 2680(c) relates only to law enforcement officers acting in a customs or excise capacity, we need not decide whether federal prison employees generally, or the particular federal prison employee allegedly responsible for the loss of ABC s property, are law enforcement officers for the purpose of § 2680(c). But cf. Bramwell v. U.S. Bureau of Prisons, 348 F.3d 804 (9th Cir. 2003) (holding that prison officers are law enforcement officers under § 2680(c)); Chapa v. U.S. Dep t of Justice, 339 F.3d 388 (5th Cir. 2003) (per curiam) (same); Hatten v. White, 275 F.3d 1208 (10th Cir. 2002) (same); see also 18 U.S.C. § 3050 (authorizing BOP officers and employees to make arrests in certain circumstances and to carry firearms). A prison employee detaining a prisoner s property in connection with a transfer is not acting in a customs or excise capacity, so § 2680(c) does not apply. 6 1 F.3d 652 (7th Cir. 2003) (same); Bazuaye v. United States, 2 83 F.3d 482 (D.C. Cir. 1996) (same); Kurinsky v. United 3 States, 33 F.3d 594 (6th Cir. 1994) (same). 4 Court has granted a writ of certiorari to decide the 5 question. 6 (2007). 7 The Supreme Ali v. Fed. Bureau of Prisons, 127 S. Ct. 2875 The issue first arose in this Circuit in Formula One 8 Motors, Ltd. v. United States, in which agents of the Drug 9 Enforcement Administration ( DEA ) had seized a car being 10 shipped to the United States from Italy, searched it for 11 illegal drugs, and allegedly damaged the car in the process. 12 777 F.2d 822, 822-23 (2d Cir. 1985). 13 the FTCA permitted suit against the United States, we 14 observed that § 2680(c) might suggest a more narrow 15 reading of the exception than the one advanced (then as 16 now) by the government; but we did not so hold because we 17 concluded that the DEA agents were performing a function 18 sufficiently akin to the functions carried out by Customs 19 officials ; accordingly, we held that the agents conduct 20 [was] within the scope of section 2680(c). 21 In discussing whether Id. at 823-24. We now join a sound minority of the courts of appeals, 22 and conclude that the phrase other law enforcement officer 23 in § 2680(c) references only law enforcement officers whose 7 1 function or authority are related to customs or excise 2 functions.3 3 applied to the detention of an automobile still in transit 4 from overseas because the detention was sufficiently akin 5 to the functions carried out by Customs officials ).4 See id. at 822-24 (holding that § 2680(c) 6 III 7 8 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 16 17 18 19 The starting point of our analysis of these competing interpretations must, of course, be the language of § 3 The courts of appeals that have adopted a similar view of § 2680(c) have limited the phrase other law enforcement officer in various ways. The District of Columbia Circuit has held that § 2680(c) applies only if the officer was acting under the authority of the tax or customs laws such that he would be eligible for indemnification under 28 U.S.C. § 2006. Bazuaye, 83 F.3d at 486. Other circuits have declined to look to the officer s statutory authority, and have instead required only a relationship between the detention at issue and customs or excise functions. See Andrews, 441 F.3d at 227 ( limited to those officers acting in a tax or customs capacity ); Ortloff, 335 F.3d at 658 ( applies only to law enforcement officers performing functions related to customs and excise duties ); Kurinsky, 33 F.3d at 598 ( limited to the detention of goods by law enforcement officers acting in a tax or customs capacity ). We need not choose among these various approaches, because in this case, regardless of which test is employed, the prison employees involved would not come within the exception. 4 This conclusion is more categorical than the wording used by this Circuit in Formula One, and as such, is closer to the view expressed by Judge Oakes in his concurring opinion in that case. 8 1 2680(c). 2 W e look first to the plain and commonsense meaning of the 3 statute. 4 Cir. 2000). 5 Kosak v. United States, 465 U.S. 848, 853 (1984). United States v. Dauray, 215 F.3d 257, 260 (2d Without context, the phrase any other law enforcement 6 officer would mean (as the government argues) anyone who is 7 a law enforcement officer. 8 in isolation; the meaning of statutory language, plain or 9 not, depends on context. But statutes are not construed King v. St. Vincent s Hosp., 502 10 U.S. 215, 221 (1991). Section 2680(c) s exception to the 11 FTCA s waiver of immunity is expressed in two phrases (as 12 marked): Any claim arising in respect of [1] the assessment or collection or any tax or customs duty, or [2] the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer . . . . 13 14 15 16 17 18 19 The first phrase relates only to the customs and excise 20 functions of government. 21 the detention of property by any other law enforcement 22 officer, is similarly confined by context to customs and 23 excise. 24 The second phrase, which concerns If any other law enforcement officer were read to 25 mean any law enforcement officer doing anything, then the 26 immediately preceding language regarding any officer of 9 1 customs or excise would be superfluous. But, as a general 2 proposition of statutory interpretation, we are counseled 3 to give effect, if possible, to every clause and word of a 4 statute, and to render none superfluous. 5 United States, 368 F.3d 190, 199 (2d Cir. 2004) (quoting 6 Duncan v. Walker, 533 U.S. 167, 174 (2001)); see also Tablie 7 v. Gonzales, 471 F.3d 60, 64 (2d Cir. 2006) (concluding that 8 a proffered construction s reduction of statutory language 9 to surplusage was fatal ). Collazos v. 10 The government contends that ABC s reading does 11 violence to the statutory language by replacing what 12 Congress actually said ( any other law enforcement officer ) 13 with something Congress did not ( any other law enforcement 14 officer acting in a customs or excise capacity ). 15 statutes are drawn to be to be read in context. 16 general term such as any other law enforcement officer 17 follows the enumeration of specific types of law enforcement 18 officers, the general term is often understood as a 19 reference to subjects akin to the one[s] with specific 20 enumeration. 21 Dispatchers Ass n, 499 U.S. 117, 129 (1991). 22 the phrase any law enforcement officer is ambiguous, the 23 meaning of doubtful terms or phrases may be determined by But When a Norfolk & W. Ry. Co. v. Am. Train 10 To the extent 1 reference to their relationship with other associated words 2 or phrases. 3 Columbia Circuit explained in interpreting § 2680(c): if a 4 statute lists fishing rods, nets, hooks, bobbers, sinkers 5 and other equipment, other equipment might mean plastic 6 worms and fishing line, but not snow shovels or baseball 7 bats. 8 Cir. 1996) (citation omitted).5 Dauray, 215 F.3d at 262. As the District of Bazuaye v. United States, 83 F.3d 482, 484 (D.C. 9 IV 10 11 In 2000, the FTCA was amended by the Civil Asset 12 Forfeiture Reform Act of 2000 ( CAFRA ), Pub. L. 106-185, 13 114 Stat. 202 (2000). 14 CAFRA amendments compel a broad reading of the phrase any 15 other law enforcement officer, relying on the principle 16 that [a] statute should be construed to be consistent with 17 subsequent statutory amendments, Dauray, 215 F.3d at 263. 18 The government contends that the CAFRA effected three amendments to § 2680(c), two of 5 Our reading is also consistent with the history behind the adoption of the FTCA in 1946, as other courts adopting the minority position have recognized. See, e.g., Bazuaye, 83 F.3d at 485-86. 11 1 which are arguably relevant:6 2 detention of any goods or merchandise to the detention of 3 any goods, merchandise, or other property, see CAFRA § 4 3(a)(1), 114 Stat. at 211; and [ii] inserting the following 5 text at the conclusion of the subsection: [i] changing the phrase the , except that the provisions of this chapter and section 1346(b) of this title apply to any claim based on injury or loss of goods, merchandise, or other property, while in the possession of any officer of customs or excise or any other law enforcement officer, if-- 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Id. § 3(a)(3), 114 Stat. at 211 (internal quotation marks 32 omitted). 1 2 3 4 (1) the property was seized for the purpose of forfeiture under any provision of Federal law providing for the forfeiture of property other than as a sentence imposed upon conviction of a criminal offense; (2) the interest of the claimant was not forfeited; (3) the interest of the claimant was not remitted or mitigated (if the property was subject to forfeiture); and (4) the claimant was not convicted of a crime for which the interest of the claimant in the property was subject to forfeiture under a Federal criminal forfeiture law. 6 The third amendment, which is appeal, reflects Congress s evolving hyphens: striking law-enforcement enforcement. CAFRA § 3(a)(2), 114 12 not relevant to this approach to the use of and inserting law Stat. at 211. 1 As to the first CAFRA amendment, the government argues 2 that the additional phrase ( or other property ) only 3 make[s] sense if the statute is read to apply to all law 4 enforcement officers, not merely those engaged in customs or 5 excise duties. 6 compatible with its application where other property is 7 detained by an officer acting in a customs or excise 8 capacity. 9 (8th Cir. 1992) (Gibson, J., dissenting) (concluding that But our reading of § 2680(c) is entirely Cf. Cheney v. United States, 972 F.2d 247, 249 10 plaintiff s sports car was not goods or merchandise 11 within the meaning of 28 U.S.C. § 2680(c) ). 12 The second (longer) CAFRA amendment creates an 13 exclusion to the [§ 2680(c)] exception which re-waives the 14 government s immunity for certain seizures of property made 15 in connection with asset-forfeiture laws. 16 States, 473 F.3d 769, 771 (7th Cir. 2007) (per curiam). 17 Thus CAFRA amended § 2680(c) to allow claims based on loss 18 or damage to property that was seized for the purpose of 19 forfeiture under any provision of Federal law providing for 20 the forfeiture of property other than as a sentence imposed 21 upon conviction of a criminal offense. 22 114 Stat. at 211 (emphasis added). 23 the phrase forfeiture under any provision of Federal law, 13 Dahler v. United CAFRA § 3(a)(3), The government relies on 1 arguing that it is broader than provisions relating only to 2 customs or excise, and that it reflects Congress s 3 understanding that § 2680(c) applies to the detention of 4 property by officers other than those acting in a customs or 5 excise capacity. 6 The government has a reasonable (although not 7 necessarily conclusive) argument that this was Congress s 8 view in 1999. 9 on CAFRA expressed the view that under the pre-CAFRA version The Report of the House Judiciary Committee 10 of § 2680(c) the federal government is exempted from 11 liability under the [FTCA] for damage to property while 12 detained by law enforcement officers. 13 192, at IV(5) (1999), available at 1999 WL 406892, at *18 14 (emphasis added). 15 reflection of the general view of the courts: in 1999, four 16 out of five courts of appeals to address the question had 17 adopted a broad reading of § 2680(c).7 18 understanding of Congress in 1999, assuming that was its 1 2 3 4 5 6 7 H.R. Rep. No. 106- That was, for the most part, an accurate 7 But the Compare Cheney, 972 F.2d 247; Schlaebitz v. U.S. Dep t of Justice, 924 F.2d 193 (11th Cir. 1991) (per curiam); Ysasi v. Rivkind, 856 F.2d 1520 (Fed. Cir. 1988); United States v. 2,116 Boxes of Boned Beef, Weighing Approximately 154,121 Pounds, 726 F.2d 1481 (10th Cir. 1984), with Kurinsky v. United States, 33 F.3d 594 (6th Cir. 1994). 14 1 understanding,8 does not control the interpretation of a law 2 passed fifty years before. 3 history provide[s] an extremely hazardous basis for 4 inferring the meaning of a congressional enactment, 5 Consumer Prod. Safety Comm n v. GTE Sylvania, Inc., 447 U.S. 6 102, 118 n.13 (1980); and the understanding of a future 7 Congress will rarely override a reasonable interpretation 8 of a statute that can be gleaned from its language, id. 9 [S]ubsequent legislative The relevant question is not how § 2680(c) was read by 10 the Congress that passed CAFRA. 11 reading of § 2680(c) is consistent with the CAFRA 12 amendments. 13 What matters is whether our See Dauray, 215 F.3d at 263. It is. The CAFRA exclusion from § 2680(c), re-waiving 14 immunity, applies for the purpose of forfeiture under any 15 provision of Federal law. 16 government emphasizes, this category is broader than the 17 customs or excise laws. 18 of the statute arises only if one makes the invalid 19 assumption that officers acting in a customs or excise 20 capacity can effect forfeitures only under the customs or 28 U.S.C. § 2680(c)(1). As the But inconsistency with our reading 8 In the House Judiciary Committee Report, Congress appeared to be concerned primarily about boats and other conveyances, which are often detained by customs and excise officials in service of enforcing the nation s drug laws. 15 1 excise laws. 2 One example close at hand is Formula One Motors Ltd. v. 3 United States, in which DEA agents seized a car, searched it 4 for illegal drugs, and allegedly damaged the car in the 5 process. 6 that § 2680(c) barred a claim against the United States 7 because the agents were acting in a customs capacity. 8 at 823-24. 9 drugs in a car traveling within the confines of the United 10 States, then the car would be subject to forfeiture, see 21 11 U.S.C. § 881(a) (subjecting to forfeiture containers for 12 illegal drugs, vehicles used to transport illegal drugs, and 13 other property), and if the car is seized for the purpose 14 of forfeiture under 21 U.S.C. § 881(a), then CAFRA would 15 presumably apply, despite the fact that 21 U.S.C. § 881(a) 16 is not a provision of federal law relating to customs or 17 excise. 18 sufficiently demonstrates that the CAFRA amendments are not 19 inconsistent with our reading of § 2680(c). 777 F.2d 822, 822-23 (2d Cir. 1985). We concluded Id. But if (hypothetically) DEA agents found illegal This single instance drawn from our case law 20 21 22 23 V The government advances two additional arguments, neither of which need detain us long. 16 First, the government 1 points to subsection (h) which--in contrast to § 2680(c)-- 2 defines law enforcement officer as any officer of the 3 United States who is empowered by law to execute searches, 4 to seize evidence, or to make arrests for violations of 5 Federal law. 6 federal prison officers are law enforcement officers. 7 18 U.S.C. § 3050. 8 officer in subsection (h) is expressly limited to 9 subsection (h) and does not apply to § 2680 generally. 28 U.S.C. § 2680(h). Under this definition, See But the definition of law enforcement See 10 28 U.S.C. § 2680(h) ( For the purpose of this subsection, 11 investigative or law enforcement officer means . . . . 12 (emphasis added)). 13 this appeal, it provides an example of what § 2680(c) could 14 have said had Congress wanted to broaden the category of law 15 enforcement officers, or what Congress could say if it 16 wished to do so now. 17 subsection (h) applied explicitly to subsection (c), that 18 would not necessarily aid the government, because there is 19 no indication that the BOP employees who allegedly lost 20 ABC s property were of the sort who are empowered by law to 21 execute searches, to seize evidence, or to make arrests for 22 violations of Federal law. If subsection (h) has any bearing on And even if the definition in 17 1 Second, the government contends that because the 2 question is one of sovereign immunity, we should not 3 construe § 2680(c) to effect a broad waiver of immunity 4 unless it does so clearly and unequivocally. 5 Pena, 518 U.S. 187, 192 (1996). 6 is not called for because § 2680(c) is not a waiver of 7 immunity, but rather an exception to a waiver of immunity: 8 [T]he proper objective of a court attempting to construe 9 one of the subsections of 28 U.S.C. § 2680 is to identify See Lane v. Such a preferential reading 10 those circumstances which are within the words and reason of 11 the exception--no less and no more. 12 States, 465 U.S. 848, 853 n.9 (internal quotation marks 13 omitted). Kosak v. United 14 15 16 * * * For the foregoing reasons, we vacate the district 17 court s dismissal of ABC s FTCA claim against the United 18 States, and remand for further proceedings consistent with 19 this opinion. 18

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.