Petition for Writ of Certiorari — Bramwell v. Federal Bureau of Prisons

Supreme Court of the Gnited States

¢

MARLON BRAMWELL,

Petitioner,

V.

UNITED STATES BUREAU OF PRISONS,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

DANIEL D. WEDEMEYER

WEDEMEYER & PRANGLEY

Suite 1030

200 W. Santa Ana Blvd.

Santa Ana, CA 92701

(714) 834-9002

Attorney for Petitioner

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (462) 342-2831

OO meena eens tnettliten > ae

© pain Rs oe Nai

QUESTIONS PRESENTED

28 U.S.C. § 2680(c) immunizes the United States from

liability under the Federal Tort Claims Act in “any claim

arising in respect of the assessment or collection of any tax

or customs duty, or the detention of any goods, merchan-

dise, or other property by any officer of customs or excise

or any other law enforcement officer. . . .”

The questions presented are:

(1) Whether “any other law enforcement officer”

must be engaged in activities related to customs or tax

collection for Section 2680(c) to immunize the United

States from liability for damage to property detained by

that officer, as to which the courts of appeals are in con-

flict.

(2) Whether a “detention” of property sufficient to

trigger Section 2680(c) occurs where the law-enforcement

officer possesses the property without knowledge, does not

intend to deprive its owner control over it, and the prop-

erty is not related to unlawful activity.

ii

TABLE OF CONTENTS

Page

Quethos Present viiciiccicsscccsstsinssmmntinnsnansae i

Salle OF I oes ii occisstnecdasincisecintinhicenicin ili

Cede GROW oi ccvevcenssscsesnsiasiowminscenstnttapeaesarebenvenses bamnse 1

FOR os ci cicrnitirinicnemninmnmennhdiinanmlianes 1

Dearie TVOIIOE siisiscissicciasscteetémineniadieien 1

Siahenat af ie OO cisicisicoisriiccsiiasccarmneameaien 3

Reasons for Granting this Petition ................::cccceeeeeeees 5

I. The Courts of Appeals are Divided On The

Types of Law-Enforcement Activity That Trig-

ger Immunity Under Section 2680(c)................ 6

II. The Court Should Now Authoritatively Deter-

mine What Constitutes a “Detention” That

May Trigger Immunity Under Section 2680(c).. 11

III. Resolution cf These Questions is Nationally

Important in Light Of Growing Federal Law

Enforcement Responsibilities ..................0:cceeeee 13

CID ocssnsccccessnacessscenedtaennmasinapabnnndenuetaiaaatianee 15

DUE os scsstsscnterenins oo aay eee App. 1

ia BD asicscs tevavisccceriipsicecienmaaaateans App. 9

—"

iii

TABLE OF AUTHORITIES

Page

CASES:

Bazuaye v. United States, 83 F.3d 482 (D.C. Cir.

i es is dsadiaanbepinneonn pennies 6, 8, 10

Bramwell v. United States Bureau of Prisons, 348

Re IE A I i sii sce venievsedinseconcssesisbeccsuiooresosesces 1

Chapa v United States Dep’t of Justice, 339 F.3d

IE A TI ack sccbecenchacstsndacssscnctviseness cupicaiechs 4, 8, 10

Cheney v. United States, 972 F.2d 247 (8th Cir.

oes seesiicaneualiie’ 8, 9, 11

Crawford v. United States Dep’t of Justice, 123

F.Supp.2d 1012 (S.D. Miss. 2000) .0..........ccceeeseeeseseeeeees 10

Formula One Motors v. United States, 777 F.2d 822

a asses a talingreeieRie bn eetnn 8

Halverson v. United States, 972 F.2d 654 (5th Cir.

a iain avedsesatinebunhesers 9,10, 11

Hatien v. White, 275 F.3d 1208 (10th Cir. 2001)....... 8, 9, 10

Kosak v. United States, 465 U.S. 848 (1984) ....5, 6, 11, 12, 13

Kurinsky v. United States, 33 F.3d 594 (6th Cir.

RETESET Ee ee eres repens SEN Te aL a eR 6, 10

Ortloff v. United States, 335 F.3d 652 (7th Cir.

a a ie a ch easiavannbabinionn passim

Schlaebitz v. United States Dep't of Justice, 924

ee I BID iis cipitiadieckcssubitedosacieennesavene 8, 9, 10

Schrob v. Catterson, 948 F.2d 1402 (3d Cir. 1991).............. 8

United States v. 1500 Cases, More or Less, Etc., 249

i cs sebninevgdenanneneossens 8, 9, 10

iv

TABLE OF AUTHORITIES — Contired

Page

United States v. 2,116 Boxes of Boned Beef, 726 F.2d

RE Ce Sa Bidens tadinnciaiteiintipsemincietineverbiamees 9, 10

United States v. Lockheed L-188 Aircraft, 656 F.2d

Be Se A FT ebiddseisnishs atninblisaiisiaieridessasstienvens 9,10

Ysasi v. Rivkind, 856 F.2d 1520 (Fed. Cir. 1988)...... 8, 9, 10

STATUTES:

I a SE atti etinisbasthinns Cneninkaasamunts 1

Be Ui ete Oe a i saisteidastackesth cei sichecescibteicostetieens 2, 3, 14

OD RF, 6 re tekken nineteen biatinsiteniagstasines 3

REA SA EO ae aE Pr SOT one passim

SO Tk OS kavivhsinc cli didecenicntarinaie 13

REGULATION:

49 C.FLR. § 1542.215(a)(2) 0... eeeeeseeeeseseseesesenereeeesenenenens 13

OTHER AUTHORITIES:

“CY 2002 Commercial Service Airports in the US

with % Boarding Changes from 2001” (Nov. 6,

2003), available at http://www.faa.gov/arp/planning/

stats/2002/CYO2CommSerBoard. pdf. .............s:ceseeseeeees 13

S. Da. he. POR II cn a. x

1

PETITION FOR WRIT OF CERTIORARI

Marlon Bramwell respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Ninth Circuit in this case.

+

OPINION BELOW

The Ninth Circuit’s opinion (App. 1-8) is reported at

348 F.3d 804 (9th Cir. 2003). The district court’s order

(App. 9-13) is unpublished.

r

7

JURISDICTION

The Ninth Circuit entered judgment on October 27,

2003, and denied Mr. Bramwell’s timely petition for

rehearing en banc on February 5, 2004 (App. 14). This

Court has jurisdiction under 28 U.S.C. § 1254(1).

,

v

STATUTES INVOLVED

Subject to the provisions of chapter 171 of this ti-

tle, the district courts, together with the United

States District Court for the District of the Canal _

Zone and the District Court of the Virgin Islands,

shall have exclusive jurisdiction of civil actions

on claims against the United States, for money

damages, accruing on and after January 1, 1945,

for injury or loss of property, or personal injury or

death caused by the negligent or wrongful act or

omission of any employee of the Government

while acting within the scope of his office or em-

ployment, under circumstances where the United

2

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).

The provisions of this chapter and section

1346(b) of this title shall not apply to —

... Any claim arising in respect of the assessment

or collection of any tax or customs duty, or the de-

tention of any goods, merchandise, or other prop-

erty by any officer of customs or excise or any

other law enforcement officer, except that the pro-

visions 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 -

(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 for-

feited;

(3) the interest of the claimant was not remit-

ted 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 crimi-

nal forfeiture law(.]

28 U.S.C. § 2680(c).

3

STATEMENT OF THE CASE

Mr. Bramwell was in the custody of Respondent

United States Bureau of Prisons (“BOP”) at its Lompoc,

California, facility in September 2000. C.A. SER-002 3.’

Upon his placement in administrative segregation at that

time, a BOP officer ccllected Mr. Bramwell’s property from

his cell, including his coat. C.A. SER-002 9 3. Unbe-

knownst te the collecting officer, Mr. Bramwell’s prescrip-

tion eyeglasses were in the coat’s pocket. C.A. SER-002

11 5-6. The officer deposited the coat with the prison’s

laundry, and the eyeglasses were destroyed in the cleaning

process.

After exhausting BOP’s administrative claim process,

Mr. Bramwell filed a complaint in the district court in July

2001 seeking damages under the Federal Tort Claims Act,

28 U.S.C. §§ 1346(b), 2671-2680 (“FTCA”). C.A. SER-001,

004, 008.

Proceedings Below

The district court dismissed Mr. Bramwell’s complaint

in February 2002, holding that Section 2680(c) maintained

the United States’s sovereign immunity from claims

resulting from damage to property detained by law en-

forcement officers. App. 11-12. Mr. Bramwell argued on

appeal that the district court had read Section 2680(c) too

broadly, that the statute actually extends sovereign

immunity to a “law enforcement officer” only if the officer

*“C.A. SER-” refers to the page number of the cited document in

Respondent’s Supplemental Excerpts of the Record filed with the Ninth

Circuit.

4

detains the property as part of a customs- or tax-related

activity.

The Ninth Circuit affirmed in October 2003. The court

noted that the majority of the courts of appeals have held

that Section 2680(c) applies to detentions by law

enforcement officers in any context, while the Sixth,

Seventh, and District of Columbia Circuits have held that

it applies only to detentions made in enforcement of

customs or tax laws. App. 4 (citing cases). The court stated

that it was “persuaded by the Fifth Circuit’s reasoning in

Chapa v. United States Dep't of Justice, in which the court

held that BOP officers fell within the 28 U.S.C. § 2680(c)

exception.” App. 5. It was “also persuaded by the fact that

BOP officers are considered ‘law enforcement officers’

under several other statutes. See Chapa, 339 F.3d at 390.”

App. 5.

The court also held that “detention” under Section

2680(c) does not require that the law enforcement officer

take the item knowingly with intent to deprive. It rea-

soned: m

...1n Kosak v. United States the Supreme Court

broadly construed 28 U.S.C. § 2680(c) to include

negligent as well as intentional conduct by gov-

ernment employees. The Kosak Court held that

claims ‘arising in respect of ... the detention of

any goods, merchandise, or other property’ in-

cluded those claims arising out of negligent han-

dling or storage by federal officials. 465 U.S. at

854, 862. Neither 28 U.S.C. § 2680(c) nor Kosak

require any specific intent or knowledge on the

part of federal law enforcement officers.

i

5

App. 6 (emphasis in original). The court denied Mr. Bram-

well’s petition for en banc rehearing in February 2004.

App. 14.

+

REASONS FOR GRANTING THIS PETITION

The Ninth Circuit’s opinion increases to ten the

number of courts of appeals that have specifically ruled on

the type of activity that triggers sovereign immunity

under Section 2680(c). Seven have held that all detentions

by law enforcement officers are immunized, while three

limit immunity to detentions arising out of enforcement

of customs or tax laws. It is important that the Court

eliminate this disparity because individuals’ ability

to have their FTCA claims heard should be uniform

throughout the nation. It is unfair that citizens in thirty-

one states cannot seek redress for damage to their de-

tained property, while those in seven states and the

District of Columbia suffering identical harm can. This

geographic chasm is now even more unacceptable than in

years past due to the growth of federal law enforcement

activity, and the concomitant increase in property deten-

tions.

It is also greatly important that the Court now answer

the question it expressly declined to in Kosak v. United

States, 465 U.S. 848 (1984), namely, “the meaning of the

term ‘detention’ as used in” Section 2680(c). Kosak, 465

U.S. at 853 n.8. Despite the Court’s expressly avoiding the

question, the Ninth Circuit read Kosak as compelling its

expansive construction of what constitutes a detention,

which essentially transforms any possession of property by

a law enforcement officer into a “detention” triggering

6

Section-2680(c) immunity. The Court should now deter-

mine the meaning of “detention” so the courts of appeals

will not similarly misconstrue Kosak or adopt the Ninth

Circuit’s interpretation.

I. The Courts of Appeals are Divided On The

Types of Law Enforcement Activity That Trig-

ger Immunity Under Section 2680(c).

As the Ninth Circuit acknowledged, “[t]here is cur-

rently a split of authority among federal circuit courts of

appeals regarding who is covered” by Section 2680(c). App.

4. The Sixth, Seventh, and D.C. Circuits, applying the

ejusdem generis and noscitur a sociis canons of construc-

tion, have correctly held that “other law enforcement

officer” refers only to law enforcement personnel acting in

a customs or tax capacity. Ortloff v. United States, 335 F.3d

652, 660 (7th Cir. 2003); Bazuaye v. United States, 83 F.3d

482, 486 (D.C. Cir. 1996); Kurinsky v. United States, 33

F.3d 594, 598 (6th Cir. 1994). Ejusdem generis and noscitur

a@ soclis suggest that a general term should be analyzed in

the context of juxtaposed specific terms. For example,

if a statute lists ‘fishing rods, nets, hooks, bob-

bers, sinkers and other equipment,’ ... ‘other

equipment’ might mean plastic worms and fish-

ing line, but not snow shovels or baseball bats.

Bazuaye, 83 F.3d at 484 (quotation omitted).

Ortloff exemplifies the three circuits’ interpretation,

as well as factually resembling Mr. Bramwell’s case. Ortloff

was a federal prisoner seeking relief under the FTCA for

damage to property while he was temporarily placed in

administrative segregation. The Government argued that

because Ortloff’s claim arose from the detention of his

PES SACI PRET" ee nce eT TEN ENCE itor cSt ee eae ee ee A

Te eT ae ey a nena

7

property “‘by any other law enforcement officers,’ to wit,

the prison guards, the exception of § 2680(c) applies and

therefore the government has not waived its sovereign

immunity.” Ortloff, 335 F.3d at 657. Acknowledging that

“there is a split in the circuits as to the scope of

§ 2680(c)[,]” the Seventh Circuit “join[ed] the Sixth Circuit

and D.C. Circuit and hold that the exception found in

§ 2680(c) applies only to law enforcement officers perform-

ing functions related to customs and excise duties.” Jd. at

658.

After citing this Court’s admonition that statutes be

construed as a whole, the Ortloff court noted that “[iJn

context ... the ‘any other law enforcement officer’ lan-

guage conveys a drastically different meaning than in

isolation, as the principles of ejusdem generis and noscitur

a socits demonstrate.” Id. at 658-59. The court continued:

These two principles of interpretation demon-

strate that the ‘any other law enforcement offi-

cer’ language must be read in light of § 2680(c)’s

specific reference to claims arising out of the ‘col-

lection of any tax or customs duty,’ and the class

of officers identified, namely ‘any officer of cus-

toms or excise.’ Read in this light, the ‘any other

law enforcement officer’ language thus means

any other law enforcement officers performing

functions related to customs or excise. Kurinsky,

33 F.3d at 596-97; Bazuaye, 83 F.3d at 483-84.

Ortloff, 335 F.3d at 659. The Seventh Circuit also cited the

FTCA’s legislative history, noting that “‘Congress carved

out the various § 2680 exceptions, at least in part, in order

to preclude tort suits against the government when other

‘adequate remedies’ were already available[,]’” and that

such remedies had not been available for “plaintiffs

8

injured by federal law enforcement officers acting outside

the authority of the customs and tax law.” Id. at 659. See

also Bazuaye, 83 F.3d at 485 (quoting S. Rep. No. 79-1400,

at 33 (1946)). Finally, the court noted that the broad

construction adopted by the other circuits “would render

superfluous the ‘any officer of customs or excise’ language,

since such officers would clearly be covered by the broad

‘any other law enforcement officer’ language.” Id. at 659.

Conversely, the Third, Fifth, Eighth, Tenth, Eleventh,

and Federal Circuits, and now the Ninth Circuit, have

construed Section 2680(c) to immunize any detention by

any law enforcement officer, regardless of the context in

which it occurs.” See Chapa v United States Dep't of Jus-

tice, 339 F.3d 388, 390 (5th Cir. 2003); Hatten v. White, 275

F.3d 1208 (10th Cir. 2001); Cheney v. United States, 972

F.2d 247, 248 (8th Cir. 1992); Schrob v. Catterson, 948 F.2d

1402, 1420 n.16 (3d Cir. 1991); Schiaebitz v. United States

Dep't of Justice, 924 F.2d 193, 195 (11th Cir. 1991); Ysasi v.

Rivkind, 856 F.2d 1520, 1525 (Fed. Cir. 1988). These

holdings, however, did not result from the detailed statu-

tory interpretation the Sixth, Seventh, and D.C. Circuits

utilized. Incredibly, these decisions all derive from the

risinterpretation of a single case, United States v. 1500

Cases, More or Less, Etc., 249 F.2d 382 (7th Cir. 1957)

(“1500 Cases”), that did not even involve the FTCA.

1500 Cases involved an action initiated by the Gov-

ernment under the Food, Drug, and Cosmetic Act to seize

*In Formula One Motors v. United States, 777 F.2d 822 (2nd Cir.

1985), the Second Circuit specifically declined to decide the issue. See

Formula One Motors, 777 F.2d at 823-24.

9

goods. 1500 Cases, 249 F.2d at 383. The owner alleged

that the district court had relied upon the FTCA sub

silentio as authority to award him costs. See 1500 Cases,

249 F.2d at 384. The Seventh Circuit responded that there

had been no FTCA claim before the district court, and that

it was “doubtful” that it was even mentioned. Jd. The court

then proceeded, “[a]ssuming ... the theory now advanced

is properly before us|[,]” to raise Section 2680(c) in dictum.

See id. In Ortloff, the Seventh Circuit confirmed that

its “reference to § 2680(c)” in 1500 Cases “was in passing,

and not dispositive of the case.” Ortloff, 335 F.3d at 657

n.d.

Nevertheless, the inapposite discussion of Section

2680(c) in 1500 Cases was the seed from which the current

majority rule on its interpretation blossomed. The evolu-

tion commenced in 1979 in United States v. Lockheed L-

188 Aircraft, 656 F.2d 390 (9th Cir. 1979) (“Lockheed”),

where the Ninth Circuit cited 1500 Cases as authority for

its application of Section 2680(c). See Lockheed, 656 F.2d

at 397. Lockheed and 1500 Cases were then cited by the

Tenth Circuit in 1984 in United States v. 2,116 Boxes of

Boned Beef, 726 F.2d 1481, 1491 (10th Cir. 1984) (“2,116

Boxes”). In 1988, the Federal Circuit relied on 2,116 Boxes,

Lockheed, and 1500 Cases in Ysasi. See Ysasi, 856 F.2d at

1525. In 1991, the Eleventh Circuit followed suit in

Schlaebitz, citing Ysasi and 2,116 Boxes. See Schlaebitz,

924 F.2d at 194-95. In 1992, the Fifth Circuit cited Schlae-

bitz, Ysasi, and 2,116 Boxes in Halverson v. United States,

972 F.2d 654, 656 (5th Cir. 1992). Also in 1992, the Eighth

Circuit cited Schlaebitz in Cheney. See Cheney, 972 F.2d at

248. In 2001 in Hatten, the Tenth Circuit cited a district

court’s reliance on Halverson’s citation to Schlaebitz,

Ysasi, and 2,116 Boxes. See Hatten, 275 F.3d at 1210

10

(citing Crawford v. United States Dep’t of Justice, 123

F.Supp.2d 1012, 1013 (S.D. Miss. 2000)). In 2003, the Fifth

Circuit relied on Halverson and cited Schlaebitz, Ysasi,

2,116 Boxes, and Lockheed. See Chapa, 339 F.3d at 390.

Finally, in Mr. Bramwell’s case the Ninth Circuit relied on

Chapa and Lockheed. See App. 4-5. Unlike Ortloff, Ba-

zuaye, and Kurinsky, each of these cases simply cited 1500

Cases or one or more of its progeny to support its holding.

See Ortloff, 335 F.3d at 659-60; Kurinsky, 33 F.3d at 598

(both discussing the analyses of the opinions enunciating

the majority rule).

It would be miraculous if this split of opinion were

resolved without the Court announcing Section 2680(c)’s

proper construction. Given the numerical disparity between

the majority-rule and minority-rule courts, harmonization

would be more likely mathematically if the three minority-

_ rule circuits switched positions than the seven majority-rule

circuits. Indeed, the Ninth Circuit’s express rejection of

the minority view in Mr. Bramwell’s case, and its subse-

quent denial of his petition for en banc rehearing, estab-

lishes that at least one majority-rule circuit would hold

out. See App. 4-5, 14. As such, the courts reconciling their

positions is extremely unlikely. The Sixth, Seventh, and

D.C. Circuits are unlikely to retreat from their analyses,

given that the Sixth and Seventh Circuits criticized the

cases enunciating the majority view as not persuasive, and

the D.C. Circuit concurred with the Sixth Circuit’s analy-

sis. See Ortloff, Bazuaye, and Kurinsky, all supra.

Mr. Bramwell’s petition may provide the Court the

only opportunity to resolve the conflict in the fore

seeable future. FTCA claims to which Section 2680(c) is

potentially applicable are typically prosecuted pro se. See,

e.g., Chapa, 339 F.3d at 388; Hatten, 275 F.3d at 1209;

11

Halverson, 972 F.2d at 654; Cheney, 972 F.2d at 248. The

absence of counsel increases the likelihood that the courts

of appeals will dispose of the claims without a well-

reasoned precedential opinion, and makes it unlikely that

the Court will receive a petition for a writ of certiorari that

adequately articulates the legal issues, if it receives any

petition at all.

II. The Court Should Now Authoritatively Deter-

mine What Constitutes a “Detention” That May

Trigger Immunity Under Secticn 2680(c).

The Ninth Circuit’s reliance on the Court’s analysis in

Kosak illustrates the need for the Court to take up the

question it tabled in Kosak: the meaning of “detention” in

Section 2680(c).

The question presented in Kosak was

whether [Section] 2680(c) ... precludes recovery

against the United States for injury to private

property sustained during a temporary detention

of the property by the Customs Service.

Kosak, 465 U.S. at 849. The petitioner’s property was

detained by the Customs Service in conjunctiea with his

being charged with smuggling it into the United States.

Id. The property was returned after he was acquitted; he

subsequently alleged that it had been damaged while in

custody. Before the Court, he argued that Section 2680(c)

should bar suit only “‘for damage caused by the detention

itself and not for the negligent ... destruction of property

while it is in the possession of the customs service.’” Id. at

852. The Court rejected the argument, holding that Section

2680(c) barred FTCA litigation in “any claim ‘arising out of’

the detention of goods, and includes a claim resulting from

12

negligent handling or storage or detained property.” /d. at

854. Thus, the Court’s holding was that Section 2680(c)

immunizes the Government from any FTCA claim based

on harm caused by the detention, physical or otherwise.

See id. As noted above, the Court expressly declined to

address what precisely constitutes a “detention.” Jd. at 853

n.8.

Mr. Bramwell argued below that the Ninth Circuit

should interpret “detention” to exclude situations where

the law enforcement officer was unaware that he or she

possessed the individual’s property and, accordingly, did

not intend to deprive the individual of control over it. See

App. 6. Rejecting the argument, the Ninth Circuit found

Kosak controlling because “the Kosak Court held that

claims ‘arising in respect of ... the detention of any [... ]

property included those claims arising out of negligent

handling or storage by federal officials.” App. 6 (citing

Kosak, 465 U.S. at 854, 862) (emphasis in original). This

statement is an accurate general summary of Kosak’s

holding, but the court’s use of it to reject Mr. Bramwell’s

argument necessarily presupposes that every possession

of property by a law enforcement officer is a “detention.”

Even if one were to assume that the Court was not serious

when it said in Kosak that it was not addressing the

meaning of “detention,” nothing in the Court’s opinion

supports such a presumption.

Interpreting “detention” in Section 2680(c) to encom-

pass any unknowing possession of property, or mere

possession without an intent to deprive its owner control,

would be inconsistent with Section 2680(c)’s context and

purpose, which demonstrate Congress’s intent to maintain

sovereign immunity where law enforcement officers, either

in customs or excise context or universally, take control of

simmimmiiiaaiiiiaaiiaatiiicaail

13

a suspect’s property due to its potential relationship to

unlawful activity. See 28 U.S.C. § 2680/c); Kosak, 465 U.S.

at 854 n.9 (admonishing that the FTCA’s exceptions

should not be so broadly construed as to defeat the stat-

ute’s purpose). The Court should now definitively define

“detention” so other courts of appeals do not follow the

Ninth Circuit’s lead and transform unintended possession

into “detentions.”

III. Resolution of These Questions Is Nationally

Important In Light Of Growing Federal Law

Enforcement Responsibilities.

The Seventh Circuit aptly observed in Ortloff

the potential number of federal law enforcement

officers in our modern government’s alphabet

soup — i.e., the DEA, EPA, FBI, FDA, FTC, INS,

OSHA, SEC, or USDA, to name a few.

Ortloff, 335 F.3d at 659. Another agency that may vest its

personnel with law enforcement authority is the Transporta-

tion Security Administration (“TSA”). See 49 U.S.C. § 114(q)

(empowering under secretary of transportation for security to

designate TSA employees as “a law enforcement officer.”); 49

C.FR. § 1542.215(aX2) (2003) (verifying that TSA employees

may “provide[] Federal-law enforcement support” for “screen-

ing persons and accessible property”). Although a relatively

small number of individuals may be subject to scrutiny by

many of these agencies, millions will come into contact with

TSA personnel every year. For example, there were over

570,000,000 boardings at the sixty-eight busiest commercial

airports in 2002. See “CY 2002 Commercial Service Airports in

the US with % Boarding Changes from 2001” (Nov. 6, 2003),

14

available at http://www.faa.gov/arp/planning/stats/2002/

CY02CommSerBoard.pdf (last accessed May 4, 2004). Even if

property damage occurs in a very small percentage of in-

stances, this volume of interaction between TSA personnel

and travelers could result in a significant number of individu-

als potentially precluded from seeking FTCA relief in major-

ity-rule circuits. See 28 U.S.C. §§ 1346(bX1) (FTCA waives

immunity for both “negligent” and “wrongful” acts by govern-

ment employees), 2680(c).

As the federal law enforcement function continues to

expand, possession of personal property by federal officers

will correspondingly increase. Individuals who have

committed no wrong should have access to a potential

financial remedy, to the extent Congress has permitted,

when the Government invokes its law enforcement powers

and damage to their property results. The vast majority of

Americans will continue to have no such opportunity if the

majority rule stands, while their fellow citizens in the

District of Columbia and the states constituting the Sixth

and Seventh Circuits who have been equally wronged will

have access to the courthouse. It is therefore important for

the Court to resolve the questions presented so citizens

will have equal ability to invoke the FTCA notwithstand-

ing where they live.

Sd

15

CONCLUSION

The Court should grant this petition so it can resolve

these important issues.

Respectfully submitted,

DANIEL D. WEDEMEYER

WEDEMEYER & PRANGLEY

Suite 1030

200 W. Santa Ana Blvd.

Santa Ana, CA 92701

(714) 834-9002

Attorney for Petitioner

App. 1

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Marlon Bramwell, No. 02-55516

Plaintiff-Appellant, D.C. No.

mt CV-01-02626-GHK

U.S. Bureau of Prisons, OPINION

Defendant-Appellee.

Appeal from the United States District Court

for the Central District of California

George H. King, District Judge, Presiding

Argued and Submitted

October 7, 2003 — Pasadena, California

Filed October 27, 2003

Before: Pamela Ann Rymer and Richard C. Tallman,

Circuit Judges, and Ronald B. Leighton,* District Judge.

Opinion by Judge Tallman

COUNSEL

Daniel D. Wedemeyer, Wedemeyer & Prangley, Santa

Clara, California, for the plaintiff-appellant.

Vince Farhat, Assistant United States Attorney, Los

Angeles, California, for the defendant-appellee.

* Honorable Ronald B. Leighton, United States District Judge for

the Western District of Washington, sitting by designation.

App. 2

OPINION

TALLMAN, Circuit Judge:

We must decide whether the seizure and inadvertent

destruction of an inmate’s property by correctional officers

gives rise to a cause of action against the U.S. Bureau of

Prisons (BOP) under the Federal Tort Claims Act (FTCA),

~98 U.S.C. § 2671, et seq. We hold that the seizure in this

case was a “detention” of goods by federal law enforcement

officers under the exception to FTCA liability set forth in

28 U.S.C. § 2680(c). We affirm the district court’s ruling

and join the majority of circuits that have similarly inter-

preted this subsection.

The district court dismissed federal prisoner Marlon

Bramwell’s FTCA claim against the BOP for lack of subject

matter jurisdiction. On appeal, Bramwell contends that:

(1) the FTCA waives sovereign immunity for claims of

property damage by BOP officers; (2) a “detention of

goods” occurs only if officers knowingly and intentionally

detain a person’s property; (3) the district court erred by

denying his motion to amend his pleadings to substitute

the United States as the defendant; and (4) the district

court improperly denied his motion for reconsideration.

I

After Bramwell was moved to administrative segrega-

tion at a federal prison, BOP officers cleared out his

property from his old cell and sent his overcoat to the

prison laundry, unaware that a $290 pair of designer

prescription eyeglasses remained in the coat pocket.

When Bramwell learned that his eyeglasses had been

damaged, and that the prison would not refund the full

cost, he sued the BOP under the FTCA.

App. 3

The district court dismissed Bramwell’s action on the

ground that the United States had not waived its sover-

eign immunity under the FTCA’s “detention of goods”

exception, 28 U.S.C. § 2680(c). The court denied as futile

Bramwell’s motion to amend his complaint to substitute

the United States as the defendant and also denied his

subsequent request for reconsideration. This appeal

followed.

II

A

We review de novo the district court’s dismissal for

lack of subject matter jurisdiction. Brady v. United States,

211 F.3d 499, 502 (9th Cir. 2000).

The United States may not be sued unless the gov-

ernment has waived its sovereign immunity. Balser uv.

Dep't of Justice, 327 F.3d 903, 907 (9th Cir. 2003) (citing

Dep't of Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999)).

The FTCA is such a waiver, and it grants subject matter

jurisdiction to federal courts for claims that arise from

certain tortious conduct by government employees. See 28

U.S.C. § 1346(b)(1).

However, the FTCA’s broad waiver of sovereign

immunity is subject to thirteen specific exceptions. See 28

U.S.C. §§ 2680(a)-(n). The district court found that its

jurisdiction over Bramwell’s suit was barred by the “deten-

tion of goods” exception, which retains the government’s

immunity from “/aJny claim arising in respect of the

assessment 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 enforce-

ment officer.” See 28 U.S.C. § 2680(c) (emphasis added).

App. 4

The U.S. Supreme Court has not determined whether

“other law enforcement officers” under § 2680(c) include

BOP personnel. See Kosak v. United States, 465 U.S. 848,

852 n.6 (1984). There is currently a split of authority

among federal circuit courts of appeals regarding who is

covered. The majority of our sister circuits read § 2680(c)

expansively to include federal law enforcement officers

beyond those who assess taxes or collect customs duties.

See, e.g., Chapa v. United States Dep't of Justice, 339 F.3d

388, 390 (5th Cir. 2003) (BOP officers); Hatten v. White,

275 F.3d 1208, 1210 (10th Cir. 2002) (BOP officers);

Halverson v. United States, 972 F.2d 654, 656 (5th Cir.

1992) (Border Patrol officers); Cheney v. United States, 972

F.2d 247, 248 (8th Cir. 1992) (drug task force agents);

Schrob v. Catterson, 948 F.2d 1402, 1420 n.16 (3d Cir.

1991) (DEA agents); Schlaebitz v. United States Dep’t of

Justice, 924 F.2d 193, 195 (11th Cir. 1991) (U.S. Marshals);

Ysasi v. Rivkind, 856 F.2d 1520, 1525 (Fed. Cir. 1988)

(Border Patrol officers); United States v. 2,116 Boxes of

Boned Beef, 726 F.2d 1481, 1491 (10th Cir. 1984) (USDA

inspection agents). The minority view, espoused by the

Sixth, Seventh, and D.C. Circuits, applies § 2680(c) nar-

rowly to include only federal officers engaged in tax or

customs duties. See Ortloff v. United States, 335 F.3d 652,

660 (7th Cir. 2003) (BOP officers not included); Bazuaye v.

United States, 83 F.3d 482, 486 (D.C. Cir. 1996) (postal

inspectors not included); Kurinsky v. United States, 33

F.3d 594, 598 (6th Cir. 1994) (FBI agents not included).

Our circuit has previously endorsed the broader

interpretation of § 2680(c), and we have extended this

exception to law enforcement officers other than those

engaged in tax or customs-related duties. In United States

v. Lockheed L-88 Aircraft, we held that FAA agents were

App. 5

“other law enforcement officer[s.]” 656 F.2d 390, 397 (9th

Cir. 1979).

We are also persuaded by the Fifth Circuit’s reasoning

in Chapa v. United States Dep't of Justice, in which the

court held that BOP officers fell within the 28 U.S.C.

§ 2680(c) exception. 339 F3d at 390. The Chapa court

noted that although the phrase “law enforcement officer”

is not defined in § 2680(c), it is defined in one of the other

thirteen exceptions to the FTCA. Id; see 28 U.S.C.

§ 2680(h) (describing a “law enforcement officer” as “any

officer of the United States who is empowered by law to

execute searches, to seize evidence, or to make arrests for

violations of Federal law.”). The U.S. Supreme Court has

specifically held that intentional misconduct by BOP

officers gives rise to a cause of action under § 2680(h).

Carlson v. Green, 446 U.S. 14, 20 (1980). Because the

phrase “law enforcement officer” appears in neighboring

subsections (c) and (isj, the phrase should be construed

similarly in cases arising under both exceptions. See U.S.

West Comm. v. Hamilton, 224 F.3d 1049, 1053 (9th Cir.

2000) (citing Erlenbaugh v. United States, 409 U.S. 239,

244 (1972) (holding that words in different sections of the

same statute should be similarly construed under the

canon of in pari materia)). -

We are also persuaded by the fact that BOP officers are

considered “law enforcement officers” under several other

statutes. See Chapa, 339 F.3d at 390. BOP employees are

“law enforcement officers” under 5 U.S.C. §§ 5541(3),

8331(20) and 8401(17)(D)(i) (civil service benefits eligibil-

ity); 42 U.S.C. § 3796b(6) (public safety officers’ death

benefits); and 18 U.S.C. § 3592(c)(14)(D) and 21 U.S.C.

§ 848(e)(2) (authorizing the federal death penalty for

killing a “law enforcement officer”).

App. 6

Therefore, consistent with the more expansive view of

our circuit and most other circuits who have opined on the

issue, we hold that BOP officers are “law enforcement

officers” exempt from FTCA liability for damage to de-

tained goods under 28 U.S.C. § 2680(c).

B

Bramwell also argues that the BOP officers did not

“detain” his property within the meaning of § 2680(c)

because they were not aware that his eyeglasses were in

their possession. Bramwell contends that a “detention”

occurs only when officers knowingly and intentionally take

control of a person’s property.

However, in Kyosak v. United States the Supreme

Court broadly coustrued 28 U.S.C. § 2680(c) to include

negligent as well as intentional conduct by government

employees. The Kosak Court held that claims “arising in

respect of ... the detention of any goods, merchandise, or

other property” included those claims arising out of negli-

gent handling or storage by federal officials. 465 U.S. at

854, 862. Neither 28 U.S.C. § 2680(c) nor Kosak require

any specific intent or knowledge on the part of federal law

enforcement officers.

In this case, it is clear that the BOP officers intended

to detain Bramwell’s overcoat and his other personal

belongings until such time as they would be returned to

him, and that Bramwell’s eyeglasses were damaged as a

result of the negligent handling and storage of these belong-

ings. We see no ambiguity in the term “detention” as Bram-

well insists. We conclude that the BOP officers “detained”

Bramwell’s eyeglasses under 28 U.S.C. § 2680(c).

————————————————

App. 7

C

Because we find that the exemption under 28 U.S.C.

§ 2680(c) applies, the district court properly denied as

futile Bramwell’s request to amend his cemplaint to

substitute the United States for the BOP as the named

defendant. See Bonin v. Calderon, 59 F.3d 815, 845 (9th

Cir. 1995) (noting that futility of a proposed amendment

can justify denial of a motion to amend). Bramwell’s

requested amendment wou'd have been futile because his

claim would still be barred by 28 U.S.C. § 2680(c) even if

the United States was the defendant. See Thomas-Lazear

v. FBI, 851 F.2d 1202, 1206-07 (9th Cir. 1988) (upholding a

district court’s decision to deny adding the United States

as a defendant because plaintiff’s claim was barred by an

exception to the FTCA).

D

Because Bramwell’s clain: falls within the 28 U.S.C.

§ 2680(c) exception and his motion to substitute defea-

dants was futile, the district court did not abuse its discre-

tion by denying Bramwell’s motion for reconsideration. See

Sch. Dist. No. 1J, Multnomah County v. ACandS, Inc., 5

F.3d 1255, 1263 (9th Cir. 1993) (citation omitted).

III

The BOP officers’ actions fail within an exception to

the government’s waiver of sovereign immunity under the

FTCA, _because they are “law enforcement officers” under

28 U.S.C. § 2680(c) and the alleged negligence resulting in

damage occurred while Bramwell’s personal property was

App. 8

detained. The district court properly dismissed Bramwell’s

complaint for lack of subject matter jurisdiction.

AFFIRMED.

App. 9

APPENDIX B

ORIGINAL

THIS CONSTITUTES NOTICE OF ENTRY

AS REQUIRED BY FRCP, RULE 77(d).

UNITED “TATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES-GENERAL

Case No.: Date: February 5, 2092

CV-01-02626-GHK (RCx)

Title: Marlon Bramwell v. Bureau of Prisons

DOCKET ENTRY

PRESENT: Hon. George H. King, United States

District Judge

Beatrice Herrera None

Deputy Clerk Court Reporter

ATTORNEYS PRESENT ATTORNEYS PRESENT

FOR PLAINTIFFS: FOR DEFENDANTS:

None None

PROCEEDINGS: Defendant’s Rule 12(b) (1) Motion to

Dismiss for Lack of Subject Matter

Jurisdiction; Plaintiffs Rule 15 Mo-

tion to Amend

ij. Background

On July 17, 2001, Plaintiff instituted this action in

proper to recover the value of eyeglasses which were

“inadvertently” destroyed by a Bureau of Prisons

(“BOP”) employee. Compl. {{ 6-7. The BOP employee

App. 10

had collected Plaintiffs eyeglasses along with other

personal property following his Administrative Segrega-

tion at the Lompoc Federal Penitentiary. Jd. J 3. Plain-

tiff claims we have jurisdiction pursuant to 28 U.S.C.

§ 1346(b) and the Federal Tort Claims Act (“FTCA”)

§ 2671 et. seq.

On January 4, 2002, Defendant moved to dismiss

the complaint for lack of subject matter jurisdiction. The

motion is opposed and Defendant has replied. In addi-

tion, on January 17, 2002, Plaintiff ineved to amend his

pleadings to substitute the United States for the BOP as

Defendant. Though the latter motion is not fully briefed,

we nevertheless find both appropriate for resolution

without oral argument. See Fed. R. Civ. P. 78; Local

Rule 7-15 (formerly Local Rule 7.11). After considering

all pertinent papers, we rule as follows:

II. Defendant’s Rule 12(b) (1) Motion to Dismiss

Defendant moves to dismiss the compiaint because

the United States has not waived its sovereign immunity

with respect to Plaintiffs claim and because the BOP

cannot be sued directly. Since Plaintiff has sought to

substitute the United States for the BOP, we begin with

the issue of sovereign immunity.

A. Standard of Review

As a court of limited jurisdiction, we presumptively

lack jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of

Am., 511 U.S. 375, 377 (1993). Though we construe pro per

pleadings liberally, See e.g., Haines v. Kerner, 404 U.S.

519, 520 (1972); Morrison v. Hall, 261 F.3d 896, 899 n.2

App. 11

(9th Cir. 2001), as the complaining party, Plaintiff must

identify a basis for federal jurisdiction. See Kokkonen, 511

U.S. at 377; see also Local Rule 8-1.

B. Sovereign Immunity

The United States is ordinarily immune from suit and

controls the conditions under which actions can be main-

tained against it. 16 Moore’s Federal Fractice § 105.21[1],

at p. 105-19 (citing United States v. Dalm, 494 U.S. 596,

608 (1990)). Sovereign immunity acts as a jurisdictional

bar to unauthorized actions; consent to suit is a jurisdic-

tional prerequisite. Id. at p. 105-20 (citing United States v.

Mitchell, 463 U.S. 206 (1983)); see also, e.g., Clinton v.

Babbitt, 180 F.3d 1081, i087 (9th Cir. 1999).

C. Federal Tort Claims Act

Plaintiff alleges his eyeglasses were “inadvertently”

destroyed by a BOP official. Under the FTCA, the United

States may be held civilly liable “in the same manner and to

the same extent as a private individual under like circum-

stances.” 28 U.S.C. § 2674; see also 28 U.S.C. § 1346(b)

(granting district courts exclusive jurisdiction to entertain

claims for damages against the United States for “injury or

loss of property . . . caused by the negligent or wrongful act or

omission of any employee of the Government... .”). Waiver

pursuant to the FTCA is subject to several exceptions. See

28 U.S.C.§ 2680(a) - (n). Claims falling within one of those

exceptions remain barred by the doctrine of sovereign

immunity.

28 U.S.C. § 2680(c) excludes FTCA recovery for “lalny

claim arising in respect of the assessment or collection of

App. 12

any tax or custom duty, or the detention of any goods or

merchandise by any officer of customs or excise or any other

law-enforcement officer.” Inmate claims against the BOP for

personal property lost or damaged as the result of the BOP’s

negligent acts or omissions fall within 28 U.S.C.§ 2680(c).

See Hatten v. White, 2002 U.S. App. LEXIS 261 (10th Cir.

January 3, 2002); Wilson v. United States, 2001 U.S. Dist.

LEXIS 9652 (D. Kan. June 26, 2001); Hatten v. White, 2001

U.S. Dist. LEXIS 3622 (D. Kan. February 27, 2001);

Crawford v. United States Dep’t of Justice, 123 F. Supp.2d

1012 (S.D. Miss. 2000); Johnson v. United States, 2000

U.S. Dist. LEXIS 9815 (D. Kan. June 27, 2000); Dennison

v. United States, 2000 U.S. Dist. LEXIS 1922 (D. Kan.

January 14, 2000); Farmer v. Jacobsen, 1998 U.S. Dist.

LEXIS 20846 (D. Minn. November 30, 1998); Hernandez v.

Hawks, 1995 U.S. Dist. LEXIS 17580 (D. Minn. September

13, 1995).

In light of these authorities, Plaintiffs complaint

seeks damages for alleged conduct squarely within § 2680

(c). While the above-cited authorities are not binding, they

are consistent with the Ninth Circuit’s practice of constru-

ing statutes waiving sovereign immunity “strictly in favor

of the sovereign.” Gasho v. United States, 39 F.3d 1420,

- 1433 (9th Cir. 1994) (quoting McMahon v. United States,

342 U.S. 25, 27 (1951)). As the United States has not

waived its sovereign immunity with respect to Plaintiff's

sole claim, we lack jurisdiction to entertain this action.

III. Disposition

Accordingly, Defendant’s motion to dismiss for lack of

subject matter jurisdiction is GRANTED, without preju-

dice. Insofar as substituting the United States for the BOP

App. 13

would not create subject matter jurisdiction, Plaintiff's

motion to amend is DENIED as moot.

IT IS SO ORDERED.

MINUTES FORM 11

CIVIL-GEN

"Initials of Deputy Clerk [Initials]

App. 14

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARLON BRAMWELL, | No. 02-55516

Plaintiff - Appellant, | D.C. No.

CV-01-02626-GHK

ORDER

(Filed: Feb. 5, 2004)

v.

U.S. BUREAU OF PRISONS,

Defendant - Appellee

Before: RYMER and TALLMAN, Circuit Judges, and

LEIGHTON, District Judge.

The panel has voted to deny the petition for rehearing

en banc.

The full court has been advised of the petition for

rehearing en banc and no judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing en banc is DENIED.

* Honorable Ronald B. Leighton, United States District Judge for

the Western District of Washington, sitting by designation.