Petition for Writ of Certiorari — United States v. ABC (No. 07-745)

as

Supre S.

Pen oeg Us

() 07-745DEC 4- 2007

No. OFFICE OF THE GLEwiK

In the Supreme Court of the Anited States

UNITED STATES OF AMERICA, PETITIONER

v.

ABC

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

PAUL D. CLEMENT

Solicitor General

Counsel of Record

JEFFREY S. BUCHOLTZ

Acting Asistant Attorney

General

EDWIN S. KNEEDLER

Deputy Solicitor General

KANNON K. SHANMUGAM

Assistant to the Solicitor

General

MARK B. STERN

ERIC FLEISIG-GREENE

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether Bureau of Prisons officials constitute “law

enforcement officer[s}” for purposes of the detention-of-

property exception to the Federal Tort Claims Act, 28

U.S.C. 2680(c).

TABLE OF CONTENTS

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(IIT)

In the Supreme Court of the Gnited States

No.

UNITED STATES OF AMERICA, PETITIONER

v.

ABC

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the United States

of America, respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Second Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (App., izfra, la-

14a) is reported at 500 F.3d 103. The memorandum de-

cision and order of the district court (Pet. App. 15a-21a)

is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

September 5, 2007. The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

This case concerns the question whether the deten-

tion-of-property exception to the waiver of sovereign

immunity in the Federal Tort Claims Act, 28 U.S.C.

2680(c), applies to detentions of property by all law en-

forcement officers, or instead applies only to detentions

of property by officers acting in an excise or customs

capacity. On October 29, 2007, the Court heard argu-

ment in Ali v. Federal Bureau of Prisons, No. 06-9130,

on that same question. This petition for a writ of certio-

rari should therefore be held pending the decision in

Ali and then disposed of accordingly.

1. The Federal Tort Claims Act (FTCA), 28 U.S.C.

1346(b), 2671-2680, waives the United States’ sovereign

immunity for suits seeking damages for “injury or loss

of property, or personal injury or death caused by the

negligent or wrongful act or omission” of employees of

the federal government “under circumstances where the

United States, if a private person, would be liable * * *

in accordance with the law of the place where the act or

omission occurred.” 28 U.S.C. 1346(b)(1). As amended,

however, the FTCA excepts from that waiver of sover-

eign immunity “[a]ny claim arising in respect of the as-

sessment or collection of any tax or customs duty, or the

detention of any goods, merchandise, or other property

by any officer of customs or excise or any other law en-

forcement officer.” 28 U.S.C. 2680(c). That exception

itself contains an exception, added by Congress as part

of the Civil Asset Forfeiture Reform Act of 2000

(CAFRA), Pub. L. No. 106-185, § 3(a)(3), 114 Stat. 211,

which waives the government’s immunity for “any claim

based on injury or loss of goods, merchandise, or other

property, while in the possession of any officer of cus-

toms or excise or any other law enforcement officer,” if,

3

among other requirements, “the property was seized for

the purpose of forfeiture under any provision of Federal

law providing for the [civil] forfeiture of property” and

“the interest of the claimant was not forfeited.” 26

U.S.C. 2680(e).

2. Respondent is a federal prisoner whose name is

under seal. Respondent alleges that, in 2001, he was

transferred within his prison to a special housing unit,

based on the government’s belief that other prisoners

had learned about his cooperation with the authorities.

Respondent contends that he was told that certain items

of personal property would be transferred with him, but

that, when his property arrived, some of those items

were missing. Respondent subsequently filed an admin-

istrative tort claim with the Federal Bureau of Prisons

(BOP), which was denied. App., infra, 2a-3a & n.1.

3. Respondent then filed suit against the United

States, the Department of Justice (DOJ), and the BOP,

asserting that defendants were liable under the FTCA.

The district court dismissed the claims against DOJ and

the BOP, on the »round that the FTCA does not permit

suit against federal agencies. Pet. App. 17a-18a. Th

district court then dismissed the claim against the

United States, on the grounds that the Bureau of Pris-

ons officials who allegedly mishandled respondent’s

property qualified as “law enforcement officer[s]” for

purposes of the detention-of-property exception in Sec-

tion 2680(c) and that the government was therefore im-

mune from suit. /d. at 18a-21a.

4. The court of appeals reversed. App., infra, la-

14a. It held that the phrase “any other law enforcement

officer” in Section 2680(c) should be limited to “law en-

forcement officers whose function or authority are re-

lated to customs or excise functions.” /d. at 5a. The

4d

court acknowledged the government’s argument that

such a reading would “dof{] violence to the statutory lan-

guage by replacing what Congress actually said (‘any

other law enforcement officer’) with something Con-

gress did not (‘any other law enforcement officer acting

in a customs or excise capacity’).” Jd. at 7a. The court

nevertheless concluded that the context in which the

phrase “any other law enforcement officer” appeared

“confined” that phrase to “customs and excisty”. -/bid.

The court also rejected the government’s argument that

the “exception to the exception” that Congress added to

Section 2680(c) in CAFRA supported a contrary read-

ing. /d. at 10a-12a. The court of appeals noted that this

Court had granted review in Ali to decide the same

question, 7d. at 5a, and that the other courts of appeals

were split on the question, zd. at 4a-5a.

REASONS FOR GRANTING THE PETITION

The Second Circuit held that the exception to the

waiver of sovereign immunity in the Federal Tort

‘Claims Act for the detention of property by law enforce-

ment officers, 28 U.S.C. 2680(c), does not apply to

detentions by prison officials, and instead applies only to

detentions by law enforcement officers performing cus-

toms or excise (or related) functions. On October 29,

2007, the Court heard argument in Ali v. Federal Bu-

reau of Prisons, No. 06-9130, on that same question.

Because this case arises in a materially identical factual

context to Alz, and because briefing and oral argument

in Ali are complete, the petition for a writ of certiorari

in this case should be held pending the Court’s decision

in Alz. In the event that the Court holds in Al? that the

detention-of-property exception applies to detentions by

prison officials, the petition should be granted, the judg-

5

ment of the court of appeals vacated, and the case re-

manded for further consideration; in the event that the

Court holds in Ali that the exception does not apply, the

petition should be denied.

CONCLUSION

The petition for a writ of certiorari should be held

pending this Court’s decision in Ali v. Bureau of Pris-

ons, No. 06-9130, and then disposed of accordingly.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

JEFFREY S. BUCHOLTZ

Acting Asistant Attorney

General

EDWIN S. KNEEDLER

Deputy Solicitor General

KANNON K. SHANMUGAM

Assistant to the Solicitor

General

MARK B. STERN

ERIC FLEISIG-GREENE

Attorneys

DECEMBER 2007

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Docket No. 06-1362-ev

ABC, PLAINTIFF-APPELLANT

v.

DEF, DEFENDANT-APPELLEE

Argued: Apr. 23, 2007

Decided: Sept. 5, 2007

Before: JACOBS, Chief Judge, LEVAL and POOLER,

Circuit Judges. |

JACOBS, Chief Judge.

A federal prison inmate pro se appeals from the judg-

ment of the United States District Court for the South-

ern District of New York (Daniels, J.), dismissing his

clairn against the United States based on the allega-

tion that a prison officer negligently detained and lost

his property during his transfer from one cell to ano-

ther. The Federal Tort Claims Act (“FTCA”) waives the

sovereign immunity of the United States for certain civil

actions, with various exceptions, and vests jurisdiction

in the district courts. 28 U.S.C. §§ 1346(b), 2680(a)-(n).

The district court dismissed the claim on the ground

that § 2680(c), one of the exceptions to the FTCA’s waiv-

er, bars jurisdiction for claims involving the detention of

(la)

2a

goods “by any officer of customs or excise or any other

law enforcement officer.” The court ruled that a prison

officer is such an “other law enforcement officer.” We

conclude that the phrase “any other law enforcement

officer,” as used in § 2680(c), references only law en-

forcement officers who are functioning in a capacity akin

to that of a customs or excise officer. Since plaintiff's

claim is not barred by § 2680(c), we vacate the judgment

in relevant part and remand for further proceedings

consistent with this opinion.

I

Plaintiff-appellant ABC is a federal prisoner whose

name is concealed in this opinion and in the caption; the

district court proceedings are largely under seal (inclu-

ding the opinion reviewed on this appeal); and our state-

ment of facts (accepted as true by the district court) is

spare.

Sometime in 2001, the government came to believe

that information regarding ABC’s cooperation with the

authorities might have been disclosed to other prisoners.

For his safety, ABC was transferred to a special housing

unit. He was told by a prison official that certain prop-

erty in his cell and in storage would be transferred with

him. About six weeks after the transfer, ABC surveyed

his property and discovered that many items were mis-

sing. He brought this action seeking money damages

against the United States, the United States Depart-

ment of Justice (“DOJ”), and the Federal Bureau of Pri-

sons (“BOP”), alleging that the loss of his property was

the result of negligence by federal prison officials during

3a

the transfer.’ ABC’s claims against the DOJ and the

BOP were dismissed because the FTCA does not permit

suits against federal agencies, see Mignogna v. Sair Av-

iation, Inc., 937 F.2d 37, 40 (2d Cir. 1991); see also 28

U.S.C. § 2679(a), a ruling that is not contested on appeal.

As to ABC’s claim against the United States, the district

court concluded that there was no waiver of sovereign

immunity (and that the district court therefore lacked

jurisdiction) because the BOP official responsible for

transferring ABC’s property was an “other law enforce-

ment officer” under § 2680(c). This appeal followed.

IT

In relevant part, the FTCA vests the district courts

with

exclusive jurisdiction of civil actions on claims ag-

ainst the United States, for money damages .. . for

injury or loss of property . . . caused by the negl-

igent 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.

28 U.S.C. § 1346(b)(1). This is a “broad waiver of

sovereign immunity,” Kosak v. United States, 465 U.S.

848, 852, 104 S. Ct. 1519, 79 L. Ed. 2d 860 (1984); but it

is subject to numerous exceptions, see 28 U.S.C.

§ 2680(a)-(n). Relevant here, § 2680(c) excepts claims

regarding the detention of property “by any officer of

customs or excise or any other law enforcement officer.”

' The district court observed that ABC exhausted his administrative

remedies. The government does not contest the issue on appeal.

4a

The government contends that “any other law en-

forcement officer” should be read broadly to encompass

any law enforcement officer who has detained any pro-

perty in any law enforcement context. ABC contends

that the phrase should be read more narrowly, in light

of the surrounding text, to reference only law enforce-

ment officers who are acting in a customs or excise cap-

acity.”

Our sister circuits are split on this issue. Compare

Bramwell v. U.S. Bureau of Prisons, 348 F.3d 804 (9th

Cir. 2003) (adopting the broad reading of the exception

advanced by the government); 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); Cheney v. United States, 972 F.2d 247 (8th Cir.

1992) (per curiam) (same); Schlaebitz v. U.S. Dep't of

Justice, 924 F.2d 193 (1ith Cir. 1991) (per curiam)

(same); Ysasi v. Rivkind, 856 F.2d 1520 (Fed. Cir. 1988)

(same), with Andrews v. United States, 441 F.3d 220

(4th Cir. 2006) (adopting the narrow reading of the

exception advanced by ABC); Ortloff v. United States,

335 F.3d 652 (7th Cir. 2003) (same); Bazuaye v. United

? Because we conclude that § 2680(c) relates only to law enforcement

offieers acting in a customs or excise capacity, we need not decide whe-

ther federal prison employees generally, or the particular federal pris-

on employee allegedly responsible for the loss of ABC’s property, are

“law enforcement” officers for the purpose of § 2680(¢). But cf Bram-

well 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.

5a

States, 83 F.3d 482 (D.C. Cir. 1996) (same); Kurinsky v.

United States, 33 F.3d 594 (6th Cir. 1994) (same). The

Supreme Court has granted a writ of certiorari to decide

the question. Ali v. Fed. Bureau of Prisons, _ US.

__, 1278. Ct. 2875, 167 L. Ed. 2d 1151 (2007).

The issue first arose in this Circuit in Formula One

Motors, Ltd. v. United States, in which agents of the

Drug Enforcement Administration (“DEA”) had seized

a car being shipped to the United States from Italy,

searched it for illegal drugs, and allegedly damaged the

ear in the process. 777 F.2d 822, 822-23 (2d Cir. 1985).

In discussing whether the FTCA permitted suit against

the United States, we observed that § 2680(c) “might

suggest a more narrow reading” of the exception than

the one advanced (then as now) by the government; but

we did not so hold because we concluded that the DEA

agents were performing a function “sufficiently akin to

the functions carried out by Customs officials”; accor-

dingly, we held that “the agents’ conduct [was] within

the seope of section 2680(c).” Jd. at 823-24.

We now join a sound minority of the courts of ap-

peals, and conclude that the phrase “other law enforce-

ment officer” in § 2680(c) references only law enforce-

ment officers whose function or authority are related to

customs or excise functions.” See id. at 822-24 (holding

* 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 func-

tions. See Andrews, 441 F.3d at 227 (“limited to those officers acting in

6a

that § 2680(c) applied to the detention of “an automobile

still in transit from overseas” because the detention wa

“sufficiently akin to the functions carried out by Cus-

toms officials”).

Itl

“The starting point of our analysis of these com-

peting interpretations must, of course, be the language

of § 2680(c).” Kosak v. United States, 465 U.S. 848, 853,

104 S. Ct. 1519, 79 L. Ed. 2d 860 (1984). We look first to

the plain and commonsense meaning of the statute.

United States v. Dauray, 215 F.3d 257, 260 (2d Cir.

2000).

Without context, the phrase “any other law enforce-

ment officer” would mean (as the government argues)

anyone who is a law enforcement officer. But statutes

are not construed in isolation; “the meaning of statutory

language, plain or not, depends on context.” King v. St.

Vincent's Hosp., 502 U.S. 215, 221, 112 S. Ct. 570, 116 L.

Ed. 2d 578 (1991). Section 2680(c)’s exception to the

FTCA’s waiver of immunity is expressed in two phrases

(as marked):

a tax or cusLoms 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 in-

volved would not come within the exception.

* 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 ease.

7a

Any claim arising in respect of [1] the assessment or

collection or any tax or customs duty, or [2] the de-

tention of any goods, merchandise, or other property

by any officer of customs or excise or any other law

enforcement officer. .. .

The first phrase relates only to the customs and excise

functions of government. The second phrase, which con-

cerns the detention of property by “any other law en-

forcement officer,” is similarly confined by context to

customs and excise.

If “any other law enforcement officer” were read to

mean any law enforcement officer doing anything, then

the immediately preceding language regarding “any of-

ficer of customs or excise” would be superfluous. But, as

a general proposition of statutory interpretation, we are

counseled “‘to give effect, if possible, to every clause and

word of a statute,’ and to render none superfluous.” Col-

lazos v. United States, 368 F.3d 190, 199 (2d Cir. 2004)

(quoting Duncan v. Walker, 533 U.S. 167, 174, 121 S. Ct.

2120, 150 L. Ed. 2d 251 (2001)); see also Tablie v. Gon-

zales, 471 F.3d 60, 64 (2d Cir. 2006) (concluding that a

proffered construction’s reduction of statutory language

to surplusage was “fatal”).

The government contends that ABC’s reading does

violence to the statutory language by replacing what

Congress actually said (“any other law enforcement of-

ficer”) with something Congress did not (“any other law

enforcement officer acting in a customs or excise cap-

acity”). But statutes are drawn to be to be read in con-

text. When a general term such as “any other law en-

forcement officer” follows the enumeration of specific

types of law enforcement officers, the general term is

often “understood as a reference to subjects akin to the

Sa

one[s] with specific enumeration.” Norfolk & W. Ry. Co.

v. Am. Train Dispatchers’ Ass'n, 499 U.S. 117, 129, 111

S. Ct. 1156, 113 L. Ed. 2d 95 (1991). To the extent the

phrase “any law enforcement officer” is ambiguous, “the

meaning of doubtful terms or phrases may be deter-

mined by reference to their relationship with other asso-

ciated words or phrases.” Dauray, 215 F.3d at 262. As

the District of Columbia Circuit explained in interpre-

ting § 2680(c): “if a statute lists ‘fishing rods, nets,

hooks, bobbers, sinkers and other equipment,’ ‘other eq-

uipment’ might mean plastic worms and fishing line, but

not snow shovels or baseball bats.” Bazuaye v. United

States, 83 F.3d 482, 484 (D.C. Cir. 1996) (citation omi-

tted).’

IV

In 2000, the FTCA was amended by the Civil Asset

Forfeiture Reform Act of 2000 (“CAFRA”), Pub. L.

106-185, 114 Stat. 202 (2000). The government contends

that the CAFRA amendments compel a broad reading of

the phrase “any other law enforcement officer,” relying

on the principle that “[a] statute should be construed to

be consistent with subsequent statutory amendments,”

Dauray, 215 F.3d at 263.

CAFRA effected three amendments to § 2680(c), two

of which are arguably relevant:” [i] changing the phrase

* 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.

* The third amendment, which is not relevant to this appeal, reflects

Congress’s evolving approach to the use of hyphens: “striking ‘law-

enforcement’ and inserting ‘law enforcement.’” CAFRA § 3(a\(2), 114

Stat. at 211.

9a

“the detention of any goods or merchandise” to “the de-

tention of any goods, merchandise, or other prop-

erty.”see CAFRA § 3(a)(1), 114 Stat. at 211; and [ii] in-

serting the following text at the conclusion of the sub-

section:

, except that the provisions of this chapter and sec-

tion 1346(b) of this title apply to any claim based on

injury or loss of goods, merchandise, or other pro-

perty, while in the possession of any officer of cus-

toms or excise or any other law enforcement officer,

if—

(1) the property was seized for the purpose of

forfeiture under any provision of Federal law pro-

viding 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 for-

feiture); 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.

Id. § 3(a)(3), 114 Stat. at 211 (internal quotation marks

omitted).

As to the first CAFRA amendment, the government

argues that the additional phrase (“or other property”)

“only make[s] sense if the statute is read to apply to all

law enforcement officers, not merely those engaged in

customs or excise duties.” But our reading of § 2680(c)

10a

is entirely compatible with its application where “other

property” is detained by an officer acting in a customs

or excise capacity. Cf Cheney v. United States, 972 F.2d

247, 249 (8th Cir. 1992) (Gibson, J., dissenting) (conclu-

ding that plaintiff’s sports car was not “‘goods or mer-

chandise’ within the meaning of 28 U.S.C. § 2680(c)”).

The second (longer) CAFRA amendment creates “an

exclusion to the [§ 2680(c)] exception which re-waives

the government’s immunity for certain seizures of pro-

perty made in connection with asset-forfeiture laws.”

Dahler v. United States, 473 F.3d 769, 771 (7th Cir.

2007) (per curiam). Thus CAFRA amended $ 2680(c) to

allow claims based on loss or damage to property that

“was seized for the purpose of forfeiture under any pro-

vision of Federal law providing for the forfeiture of

property other than as a sentence imposed upon convic-

tion of a criminal offense.” CAFRA § 3(a)(3), 114 Stat.

at 211 (emphasis added). The government relies on the

phrase “forfeiture under any provision of Federal law,”

arguing that it is broader than provisions relating only

to customs or excise, and that it reflects Congress’s un-

derstanding that § 2680(c) applies to the detention of

property by officers other than those acting in a customs

or excise capacity. me

The government has a reasonable (although not nec-

essarily conclusive) argument that this was Congress’s

view in 1999. The Report of the House Judiciary Com-

mittee on CAFRA expressed the view that under the

pre-CAFRA version of § 2680(c) the “federal govern-

ment 2s exempted from liability under the [FTCA] for

damage to property while detained by law enforcement

officers.” H.R. Rep. No. 106-192, at TV(5) (1999), avazl-

able at 1999 WL 406892, at *18 (emphasis added). That

lla

was, for the most part, an accurate reflection of the gen-

eral view of the courts: in 1999, four out of five courts of

appeals to address the question had adopted a broad

reading of § 2680(c).' But the understanding of Con-

gress in 1999, assuming that was its understanding,®

does not control the interpretation of a law passed fifty

years before. “({S]ubsequent legislative history pro-

vide[s] an extremely hazardous basis for inferring the

meaning of a congressional enactment,” Consumer Prad

Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 118

n.13, 100 S. Ct. 2051, 64 L. Ed. 2d 766 (1980); and the un-

derstanding of a future Congress “will rarely override a

reasonable interpretation of a statute that can be glean-

ed from its language,” id.

The relevant question is not how § 2680(c) was read

by the Congress that passed CAFRA. What matters is

whether our reading of § 2680(c) is consistent with the

CAFRA amendments. See Dauray, 215 F.3d at 2638. It

is.

The CAFRA exclusion from § 2680(c), re-waiving im-

munity, applies “for the purpose of forfeiture under any

provision of Federal law.” 28 U.S.C. § 2680(¢)(1). As

the government emphasizes, this category is broader

than the customs or excise laws. But inconsistency with

" 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 Pownds, 726 F.2d 1481 (10th Cir.

1984), with Kurinsky v. United States, 33 F.3d 594 (6th Cir. 1994),

* 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.

12a

our reading of the statute arises only if one makes the

invalid assumption that officers acting in a customs or

excise capacity can effect forfeitures only under the cus-

toms or excise laws.

One example close at hand is Formula One Motors

Ltd. v. United States, in which DEA agents seized a car,

searched it for illegal drugs, and allegedly damaged the

car in the process. 777 F.2d 822, 822-23 (2d Cir. 1985).

We concluded that § 2680(c) barred a claim against the

United States because the agents were acting in a cus-

toms capacity. Jd. at 823-24. But if (hypothetically)

DEA agents found illegal drugs in a car traveling within

the confines of the United States, then the car would be

subject to forfeiture, see 21 U.S.C. § 881(a) (subjecting

to forfeiture containers for illegal drugs, vehicles used

to transport illegal drugs, and other property), and if

the car is “seized for the purpose of forfeiture under” 21

U.S.C. § 881(a), then CAFRA would presumably apply,

despite the fact that 21 U.S.C. § 881(a) is not a provision

of federal law relating to customs or excise. This single

instance drawn from our case law sufficiently demon-

strates that the CAFRA amendments are not inconsis-

tent with our reading of § 2680(c).

V

The government advances two additional arguments,

neither of which need detain us long. First, the gov-

ernment points to subsection (h) which—in contrast to

§ 2680(c)—defines “law enforcement officer” as “any of-

ficer of the United: States who is empowered by law to

execute searches, tou seize evidence, or to make arrests

for violations of Federal law.” 28 U.S.C. $ 2680(h). Un-

der this definition, federal prison officers are “law en-

forcement officers.” See 18 U.S.C. § 3050. But the def-

l3a

inition of “law enforcement officer” in subsection (h) is

expressly limited to subsection (h) and does not apply to

§ 2680 generally. See 28 U.S.C. § 2680(h) (“For the pur-

pose of this subsection, ‘investigative or law enforce-

ment officer’ means. . . .” (emphasis added)). If sub-

section (h) has any bearing on this appeal, it provides an

example of what § 2680(c) could have said had Congress

wanted to broaden the category of law enforcement

officers, or what Congress could say if it wished to do so

now. And even if the definition in subsection (h) applied

explicitly to subsection (c), that would not necessarily

aid the government, because there is no indication that

the BOP employees who allegedly lost ABC’s property

were of the sort who are “empowered by law to execute

searches, to seize evidence, or to make arrests for vio-

lations of Federal law.”

Second, the government contends that because the

question is one of sovereign immunity, we should not

construe § 2680(c) to effect a broad waiver of immunity

unless it does so clearly and unequivocally. See Lane v.

Pena, 518 U.S. 187, 192, 116 S. Ct. 2092, 135 L. Ed. 2d

486 (1996). Such a preferential reading is not called for

because § 2680(c) is not a waiver of immunity, but rather

an exception to a waiver of immunity: “(T]he proper

objective of a court attempting to construe one of the

subsections of 28 U.S.C. § 2680 is to identify those cir-

cumstances which are within the words and reason of

the exception—no less and no more.” Kosak v. United

States, 465 U.S. 848, 853 n.9, 104 S. Ct. 1519, 79 L. Ed.

2d 860 (internal quotation marks omitted).

14a

* * *

For the foregoing reasons, we vacate the district

court’s dismissal of ABC’s FTCA claim against the Uni-

ted States, and remand for further proceedings consis-

tent with this opinion.