33 F.3d 594 (6th Cir. 1994), 93-3886, Kurinsky v. United States

Docket Nº:93-3886.
Citation:33 F.3d 594
Party Name:Andrew C. KURINSKY, Jr.; Donna A. Kurinsky; and Katherine A. Kurinsky, a Minor, by and through her parent, natural guardian and next friend, Andrew C. Kurinsky, Jr., Plaintiffs-Appellants, v. UNITED STATES of America, and the named persons each individually and as a Special Agent of the Federal Bureau of Investigation; Joseph L. Ramsak; William D.
Case Date:August 26, 1994
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 594

33 F.3d 594 (6th Cir. 1994)

Andrew C. KURINSKY, Jr.; Donna A. Kurinsky; and Katherine

A. Kurinsky, a Minor, by and through her parent,

natural guardian and next friend, Andrew

C. Kurinsky, Jr., Plaintiffs-Appellants,

v.

UNITED STATES of America, and the named persons each

individually and as a Special Agent of the Federal Bureau of

Investigation; Joseph L. Ramsak; William D. Hann; Barry

Gummow; Bion St. Bernard; Kevin D. Burnett; Dan Elven

Estrem; Gary L. Hall; Albert L. McGinty, Jr.; James M.

Owens; Lance R. Sakurada and James J. White, Defendants-Appellees.

No. 93-3886.

United States Court of Appeals, Sixth Circuit

August 26, 1994

Argued Aug. 1, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied Nov. 1, 1994.

Page 595

George W. Palda (argued) and Larry S. Gordon (briefed), Berkman, Gordon, Murray, Palda & DeVan, Cleveland, OH, for plaintiffs-appellants.

Iden Grant Martyn, Asst. U.S. Atty., Office of the U.S. Atty., Cleveland, OH, Barbara L. Herwig, U.S. Dept. of Justice, Appellate Staff, Civ. Div., Jonathan Weinberg (briefed), Sushma Soni (argued), U.S. Dept. of Justice, Civ. Div., and Nina S. Pelletier, U.S. Dept. of Justice, Torts Branch, Civ. Div., Washington, DC, for defendants-appellees.

Before: GUY and BOGGS, Circuit Judges; and CONTIE, Senior Circuit Judge.

RALPH B. GUY, JR., Circuit Judge.

In this Federal Tort Claims Act ("FTCA" or "Act") case, Andrew C. Kurinsky, Jr.; his wife, Donna A. Kurinsky; and Katherine A. Kurinsky, a minor, appeal the dismissal of their action against the United States and eleven special agents of the Federal Bureau of Investigation. 1 The district court's dismissal was grounded in the exception found in 28 U.S.C. Sec. 2680(c) for claims based on the detention of goods and merchandise by law enforcement officers. The Kurinskys also appeal the dismissal of their Bivens claims against the individual agents, which the court found were time-barred. For the reasons that follow, we find the district court's reading of Sec. 2680(c) to be in error. Therefore, we reverse in part and affirm in part.

I.

We summarize only those facts believed necessary to an understanding of the issues raised on appeal.

The Kurinskys own and operate a business known as Arcade Sound, which manufactures, recycles, repairs, and distributes cable television equipment and related electronic equipment. Prior to March 1989, the FBI suspected that Andrew Kurinsky was violating 47 U.S.C. Sec. 553(a)(2), which prohibits the unauthorized reception of cable services, and was committing wire fraud, in violation of 18 U.S.C. Sec. 1343. As a result, the FBI placed Kurinsky under surveillance. On March 27, 1989, based on information supplied by the FBI, a magistrate judge issued a search warrant for the Arcade Sound premises. On March 29, the FBI agents executed the search warrant and seized cable signal descramblers, cable television converters, assorted hardware, personal computers, numerous documents, and two handguns. According to the Kurinskys, no inventory of the seized goods was made while the property was removed; the property was mishandled and damaged; and common electronic components, which are not unique to the cable television industry, were taken. The Kurinskys also allege that, in the course of the agents' execution of the warrant, they were subjected to great emotional distress, embarrassment, and humiliation. The United States claims that the property was returned to the Kurinskys between April 7, 1989, and October 4, 1990. The Kurinskys claim that not all of the property was returned.

On October 29, 1992, the Kurinskys filed a six-count action against the United States and the FBI Agents, alleging damages stemming from the execution of the search warrant. Counts I, II, and III are brought pursuant to the FTCA. Count IV alleges a violation of the due process clause of the Fifth Amendment, and counts V and VI are Bivens claims against the FBI agents under the Fourth and Fifth Amendments.

Page 596

On separate motions brought by the United States pursuant to Fed.R.Civ.P. 12(b)(1), and by the FBI agents as a group pursuant to Fed.R.Civ.P. 12(b)(1) and (6) or, in the alternative, for summary judgment under Fed.R.Civ.P. 56(b), the district court found that the FTCA claims were barred by the exception to the Act's waiver of sovereign immunity contained in Sec. 2680(c). The court also found that sovereign immunity barred the Fifth Amendment due process claim for the taking of the Kurinskys' property. Finally, the court dismissed the Bivens claims upon a finding that they were not brought within the two-year limitations period for the bringing of such actions.

II.

The FTCA provides generally that the United States shall be liable, to the same extent as a private party, "for injury or loss of property ... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. Sec. 1346(b). The Act's broad waiver of immunity, however, is subject to enumerated exceptions. 28 U.S.C. Sec. 2680(a)-(n). One of those exceptions, Sec. 2680(c), provides that Sec. 1346 shall not apply to

[a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods or merchandise by any officer of customs or excise or any other law-enforcement officer.

The Kurinskys insist that Sec. 2680(c) applies only to property losses involving customs or tax agents, or other law officers acting in the aid of the enforcement of customs or tax laws. See Formula One Motors, Ltd. v...

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