Opposition Brief — Bramwell v. Federal Bureau of Prisons

>

No. 03-1519

Jn the Supreme Court of the Cnited States

MARLON BRAMWELL, PETITIONER

UNITED STATES BUREAU OF PRISONS

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

MARK B. STERN

DANA J. MARTIN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217 ie

QUESTIONS PRESENTED

Under 28 U.S.C. 2680(c), the Federal Tort Claims

Act’s waiver of su. <reign immunity does not extend to

“{alny claim arising in respect of * * * the detention

of any goods, merchandise, or other property by any

officer of customs or excise or any other law enforce-

ment officer.” The questions presented are:

’

1. Whether the term “other law enforcement officer’

is limited to officers acting in a tax, excise, or customs

capacity.

2. Whether the term: “detention” requires inat the

property be seized knowingly and intentionally.

(I)

TABLE OF CONTENTS

I iad dahibe bp ediinanilenannibosisebhbanaunseen

| a EE oS a ne

a oo anesmbovunbabeiiuiadenies

SITTIN 21-17 sa acc dcedi ecensieh bennlbdeievbcemosiniciniapablegeentinaptibines

a os cieihaslonneetnonbooneiions

TABLE OF AUTHORITIES

Cases:

Ames v. Pontesso, 538 U.S. 1058 (2008) oo... .eescescessseseees

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

TESLA tT SOIREE ROSTERS LOE ae

Chapa v. United States Dep’t of Justice,

Be © ie BO RE CR, BG) cevccccvsccccresesccevesonesisevecevesesovevesoes

Conrod v. Moore, No. 03-8804 (June 14, 2004) wu.

Greer v. United States, No. 03-9002 (June 7, 2004) ..........

Hatten v. White, 275 F.3d 1208 (10th Cir. 2002) ...............

Kosak v. United States, 465 U.S. 848 (1984) wo...

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

1994), cert. denied, 514 U.S. 1082 (1995)... sseseseeeeeees

Miller v. United States, 538 U.S. 1036 (20038) .............

O’Ferrell v. United States, 253 F.3d 1257 (11th Cir.

Ea RUE ar TERE Bes PO en

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

2003), cert. denied, 124 S. Ct. 1520 (2004) woes

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

I aaa ic ees cn ctuunineniipesasiente

Statutes:

Civil Asset Forfeiture Reform Act of 2002,

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

(III)

6

IV

- Statutes—Continued: Page

Federal Tort Claims Act:

ES Be ccscniirssitecsvinintstsiteaansiniibiuiasialaacitiiaiciibiiiintiaties 2

EF 5 I civinchesciseestubntivtesabiciennidcsinadeiipiianisanonat 2

SE A a, Se wicineceisassecipenbinstceinisnbteniiscebtinsaiaailanninsiidininenmnielieani 2

BF Ea aac SN scsttaninciatennsnetntevinein 2, 4, 5, 6, 7, 8, 9, 10

Be UT BZ. Be CII GD . cccsecstnicreiorisiniscansemeenimmenpiommm:

ZB U.S.C. BEBE IAG) ..cccccrerccroeroccsorscsconsecensenes saa

Be UT ae ND cinticinstccgnicrsnanticgeennsbisheenidiansidmnitanin

0 FE Fa ee eeciisaroncensnencicensnisicgunitiniiaianeamaadedmemineentnsiin

6 UB, Be sitaceicctensenvineinne aibicsictehidlaiadiiamieienaminasaiediimatdedd

BE Fee Be ND chitictcinisecinininsintashniestsidensnantiaabiivasainsiediienian

Oe cattiandcenistceneenstin nse ceeiesitaaseieeblnniniiecieniahiiananibatiien

Ea Be ID cerikeriscttstedinicasisetintincmniinnimininnan

BD OE aia, TUTE ‘saccacesciis intestine ansielnpebintelgntnecenibleniaibbapeiiainiabidianee

Oe FE BD cnivesestsvcosvwsnteicnisitnninnicatcestuiesiiciapiiotaanibbanes

EE Ce issacibsshtscneensariieeacitiesibineenitmainaiedeinnaaaaninieaion

Ee a, Be ceininsinscsnttennesetinsincieanieneiansihatiniainaniiags

Miscellaneous:

H.R. Rep. No. 192, 106th Cong., Ist Sess. (1999) ........004 8

rea bak AS SS HS SP 1 =I)

In the Supreme Court of the Anited States

No. 03-1519

MARLON BRAMWELL, PETITIONER

Vv.

UNITED STATES BUREAU OF PRISONS

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-8) is

reported at 348 F.3d 804. The order of the district

court (Pet. App. 9-13) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

October 27, 2003. A petition for rehearing was denied

on February 5, 2004 (Pet. App. 14). The petition for a

writ of certiorari was filed on May 5, 2004. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

STATEMENT

1. Enacted in 1946, the Federal Tort Claims Act

(FTCA), 28 U.S.C. 1346(b), 2671-2680, waives the

sovereign immunity of the United States with respect

to certain tort suits, and renders it liable in damages to

the same extent as a private party for injuries caused

by the tortious acts of federal employees, subject to

certain restrictions and limitations. Section 2680

contains a list of claims to which the FTCA does not

apply. One type of excluded claim, described in sub-

section (c), is “[a]ny claim arising in respect of the

assessment or collection of any tax or customs duty, or

the detention of any goods, merchandise, or other prop-

erty by any officer of customs or excise or any other

law enforcement officer.” Section 2680(c) also contains

an exception to that exclusion. It provides that the

FTCA does 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 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 forfeiture); and

3

(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.

2. Petitioner is a prisoner in the custody of the

United States Bureau of Prisons (BOP). According to

the allegations in his complaint, BOP officers at the

United States Penitentiary in Lompoc, California, took

property from his cell when he was placed in admini-

strative segregation in September 2000. Petitioner

alleges that the property included an overcoat; that,

unbeknownst to the BOP officers, there were eye-

glasses in the coat’s pocket; and that the glasses were

damaged when the coat was sent to the laundry.

Petitioner sued the BOP to recover the value of the

glasses. Pet. 3; Pet. App. 2, 9-10.

3. The district court dismissed the complaint for lack

of jurisdiction. Pet. App. 9-13. It held that “fiJnmate

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¢),” id. at 12, and

that petitioner’s claim thus “remain[s] barred by the

doctrine of sovereign immunity,” id. at 11, which is a

“Jurisdictional bar” to suit, ibid. In granting the motion

to dismiss, the district court denied, as moot, peti-

tioner’s motion to amend his complaint to substitute the

United States for the BOP as defendant, finding that

such an amendment “would not create subject matter

jurisdiction.” Jd. at 18. The court later denied peti-

tioner’s motion for reconsideration. Jd. at 3.

4. The court of appeals affirmed. Pet. App. 1-8.

a. The court first held that the detention-of-goods

exception to the FTCA’s waiver of sovereign immunity

extends to “law enforcement officers other than those

4

engaged in tax or customs-related duties,” Pet. App. 4,

and that 28 U.S.C. 2680(c) thus covers actions by BOP

personnel. Pet. App. 3-6. In so holding, the court noted

that it had previously held that agents of the Federal

Aviation Administration were “other law enforcement

officer{s]” under 28 U.S.C. 2680(c). Pet. App. 4-5 (citing

United States v. Lockheed L-188 Aircraft, 656 F.2d 390,

397 (9th Cir. 1979)). The court also relied (id. at 5)

on the definition of “law enforcement officer” under

another statutory exception to FTCA liability, see 28

U.S.C. 2680(h) (“any officer of the United States who is

empowered by law to execute searches, to seize evi-

dence, or to make arrests for violations of Federal

law”), and on the fact that “BOP officers are considered

‘law enforcement officers’ under several other stat-

utes,” Pet. App. 5 (citing 5 U.S.C. 5541(3), 8331(20),

8401(17)(D)(i); 18 U.S.C. 3592(¢)(14)(D); 21 U.S.C.

848(e)(2); and 42 U.S.C. 3796b(6)).

b. The court of appeals also rejected petitioner’s

contention that, under 28 U.S.C. 2680(c), “a ‘detention’

occurs only when officers knowingly and intentionally

take control of a person’s property,” and that, because

the BOP officers “were not aware that [petitioner’s]

eyeglasses were in their possession,” there was accord-

ingly no detention here. Pet. App. 6. In rejecting that

contention, the court relied on this Court’s decision

in Kosak v. United States, 465 U.S. 848 (1984), which

held that Section 2680(c) covers “claims arising out of

negligent handling or storage by federal officials.” Pet.

App. 6 (citing 465 U.S. at 854, 862). The court of ap-

peals observed that the BOP officers “intended to

detain [petitioner’s] overcoat and his other personal be-

longings until such time as they would be returned to

him,” and that petitioner’s eyeglasses were allegedly

damaged “as a result of the negligent handling and

=?

a

5

storage of these belongings.” Jbid. That conduct,

according to the court, amounts to the “detention” of

petitioner’s glasses under Section 2680(c). [bid.'

ARGUMENT

1. Petitioner contends (Pet. 6-11) that the term

“other law enforcement officer” in 28 U.S.C. 2680(c) is

limited to officers acting in a tax, excise, or customs

capacity. The court of appeals correctly held otherwise,

and no decision interpreting the current version of

Section 2680(c) has reached a contrary conclusion.

Further review is therefore unwarranted.

a. Section 2680(c) deprives courts of jurisdiction to

consider claims arising in respect of “the detention of

any goods, merchandise, or other property by any

officer of customs or excise or any other law enforce-

ment officer.” The court of appeals correctly held that

that broad language covers petitioner’s claim. As far

as the identity of the detaining official is concerned,

Section 2680(c) applies not only to “any officer of

customs or excise” but to “any other law enforcement

officer”; a BOP officer fits that description. As far as

the nature of the detained item is concerned, Section

2680(c) applies not only to “goods” or “merchandise”

but to “other property”; a prisoner’s eyeglasses fit that

description. Under a straightforward interpretation of

the statutory language, therefore, Section 2680(c) ap-

plies to the conduct at issue here.

b. Contrary to petitioner’s contention (Pet. 6-11), the

court of appeals’ decision does not conflict with the

1 The court of appeals also held that the district court “properly

denied as futile [petitioner’s] request to amend his complaint to

substitute the United States for the BOP as the named defendant”

and that the district court “did not abuse its discretion by denying

[petitioner’s] motion for reconsideration.” Pet. App. 7.

6

decision of any other court of appeals. The cases

holding that Sectiun 2680(c) is limited to detentions by

an officer acting in a tax, excise, or customs capacity,

Ortloff v. United States, 335 F.3d 652, 657-660 (7th Cir.

2003), cert. denied, 124 S. Ct. 1520 (2004); Bazuaye v.

United States, 83 F.3d 482, 483-486 (D.C. Cir. 1996);

Kurinsky v. United States, 33 F.3d 594, 596-598 (6th

Cir. 1994), cert. denied, 514 U.S. 1082 (1995), all inter-

preted the version of Section 2680(c) in effect before

Congress amended it in April 2000, through the Civil

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

No. 106-185, § 3(a), 114 Stat. 211. See Ortloff, 335 F.3d

at 657 n.2 (expressly stating that court was construing

pre-CAFRA version of Section 2680(c)); Bazwaye, 83

F.3d at 483 (discussing pre-CAFRA version of Section

2680(c)); Kurinsky, 33 F.3d at 596 (same). As far as we

are aware, every court of appeals that has addressed

the issue under the current version of Section 2680(c)

has concluded, in agreement with the court below, that

it extends to detentions by a law enforcement officer

acting outside the tax, excise, and customs contexts.

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

388, 390 (5th Cir. 2003); Hatten v. White, 275 F.3d 1208,

1210 (10th Cir. 2002); O’Ferrell v. United States, 253

F.3d 1257, 1271 (11th Cir. 2001). Indeed, two of those

three courts, like the court below, have so held in a case

involving BOP employees. See Chapa, 339 F.3d at 389;

Hatten, 275 F.3d at 1209-1210.

Nor are the courts that have narrowly interpreted

-the prior version of Section 2680(c)—the District of

Columbia, Sixth, and Seventh Circuits—certain to

interpret the current version the same way, because

the two versions differ in respects that are relevant

to the issue here. As it existed before the CAFRA

amendments, Section 2680(c) provided, in its entirety,

7

that the FTCA does not apply to “{aJny claim arising in

respect of the assessment or collection of any tax or

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

chandise by any officer of customs or excise or

any other law-enforcement officer.” 28 U.S.C. 2680(c)

(1994). CAFRA amended the statute in two ways.

First, while the prior version provided that the

FTCA does not apply to a clain arising out of the

detention of “any goods or merchandise,” 28 U.S.C.

2680(c) (1994), the amended version provides that the

FTCA does not apply to a claim arising out of the

detention of “any goods, merchandise, or other prop-

erty,” 28 U.S.C. 2680(c) (emphasis added). Because the

amended version includes the phrase “other property,”

it would be difficult for a court to construe the term

“other law enforcement officer” narrowly on the theory

that the only officers who detain “goods or mer-

chandise” are those who are acting in a tax, excise, or

customs capacity.

Second, unlike the prior version, the amended statute

contains an exception to its general exclusion for cer-

tain detentions made in connection with asset-forfeiture

laws, which makes clear that the FTCA applies to

claims arising in respect of such detentions. See 28

U.S.C. 2680(c)(1)-(4). This exception to the exclusion

presupposes that the exclusion generally exempts for-

feitures by law-enforcement officers from the FTCA’s

coverage. And since federal agents are empowered to

seize and forfeit goods in a variety of circumstances, not

just when they are acting in 2 tax, excise, or customs

capacity, see e.g., 18 U.S.C. 981; 21 U.S.C. 334, 881, the

exception added by CAFRA reinforces the view that

a broad group of law-enforcement agents are presump-

tively excepted from the FTCA’s coverage (subject to

8

the exceptions to the exclusion in the CAFRA amend-

~ ments). ;

Apart from what the CAFRA amendments them-

selves suggest, the legislative history of those amend-

ments indicates that Congress wanted to provide a

remedy for certain damages caused by the detention of

goods by law-enforceine™t officers outside the tax,

excise, and customs contexts. The Report of the House

Judiciary Committee explained that, because the

government was “exempted from liability under the

Federal Tort Claims Act for damage to property while

detained by law enforcement officers,” H.R. Rep. No.

192, 106th Cong., 1st Sess. 18 (1999), there was no

remedy under federal law for damage to a private

airplane seized by agents of the Drug Enforcement

Administration as part of a domestic drug-trafficking

investigation, id. at 8-9. That concern would have been

misplaced if Section 2680(c)’s exception applied only to

tax, excise, and customs seizures.

Review is unwarranted, in short, because the District

of Columbia, Sixth, and Seventh Circuits have not had

an opportunity to address the effect of the CAFRA

amendments on their decisions interpreting the prior

version of Section 2680(c). Perhaps for the same rea-

son, this Court has repeatedly denied certiorari in cases

presenting the question whether the term “other law

enforcement officer” is limited to officers acting in a

tax, excise, or customs capacity. In fact, it has done so

at least four times in the last 14 months alone. See

Conrod v. Moore, No. 03-8804 (June 14, 2004); Greer v.

United States, No. 03-9002 (June 7, 2004); Ames v.

Pontesso, 538 U.S. 1058 (2003); Miller v. United States,

9

538 U.S. 1036 (2003). There is no reason for a different

result here.”

2. Petitioner also contends (Pet. 11-13) that Section

2680(c) is inapplicable to his claim because a “detention”

must be knowing and intentional and the BOP officers

were allegedly unaware that petitioner’s eyeglasses

were in his overcoat when they removed the coat froin

his cell. Because the court of appeals correctiy held

otnerwise, and because its decision does not conflict

with any decision of any other court, further review of

this claim is also unwarranted.

In Kosak v. United States, 465 U.S. 848 (1984), this

Court held that Section 2680(c) applies not only to

claims for damage to property caused by the detention

itself but also to claims for damage caused by the

“negligent handling or storage” of property. id. at 854.

Even if a “detention” must be intentional, that holding

covers this case. As the court of appeals explained, the

BOP officers “intended to detain” the “personal be-

longings” in petitioner’s cell until they could be re-

turned, and his glasses were allegedly damaged “as a

result of the negligent handling and storage of these

belongings.” Pet. App. 6. While the officers may not

have known what was in the pockets of petitioner’s

coat, they certainly intended to detain both the coat and

anything left in its pockets (as well as the other

personal property in his cell). Petitioner identifies no

valid interpretive—or even policy—basis for the view

that Section 2680(c) is inapplicable to any portion of the

contents of a container of which the seizing agent is

* The same issue is raised in another petition now pending be-

fore the Court. See Corbeil v. United States, No. 03-9719 (filed

Apr. 2, 2004). ;

10

unaware, and he cites no decision of any court that nas

adopted that view.”

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

PETER D. KEISLER

Assistant Attorney General

MARK B. STERN

DANA J. MARTIN

Attorneys

JULY 2004

3 Petitioner does contend that interpreting “detention” in

Section 2680(c) to encompass the unknowing possession of prop-

erty is inconsistent with “Congress’ intent to maintain sovereign

immunity where law enforcement officers * * * take control of a

suspect’s property due to its potential relationship to unlawful

activity.” Pet. 12-13. But that is not the only circumstance in

which officers take control of property. Indeed, in this very case,

petitioner’s coat was removed from his cell, not because of any

“potential relationship to unlawful activity,” Pet. 13, but because

he was being placed in administrative segregation, Pet. 3; Pet.

App. 2, 10. In any event, even an officer who takes control of a

container because of its “potential relationship to unlawful activ-

ity,” Pet. 13, may not be aware of all of its contents, at least

initially.