# Opposition Brief — Bramwell v. Federal Bureau of Prisons

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2004
- **Citation:** 543 U.S. 811

## Text

>

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

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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,

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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.

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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

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

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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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1645%3A2. Public record. Not legal advice.