Kurinsky v. U.S.
| Decision Date | 01 November 1994 |
| Docket Number | No. 93-3886,93-3886 |
| Citation | 33 F.3d 594 |
| Parties | 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. |
| Court | U.S. Court of Appeals — Sixth Circuit |
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.
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.
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.
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.
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. United States, 777 F.2d 822, 825 (2d Cir.1985) (Oakes, J., concurring); A-Mark, Inc. v. United States Secret Service, 593 F.2d 849, 851 (9th Cir.1978) (Tang, J., concurring). Because the FBI's search and seizure was unrelated to customs or tax laws, the Kurinskys maintain the exception does not apply here.
In the government's view, and as the district court found, Sec. 2680(c) applies to exclude a claim for the damage here because it was incurred in the course of a search and seizure undertaken by a "federal law-enforcement officer." According to the government, since FBI agents are "law enforcement officers" and this suit arose out of "the detention of [the Kurinskys'] goods or merchandise," the district court's order of dismissal was not in error.
While this court has applied Sec. 2680(c) to IRS agents, we have yet to address its application to other law enforcement officers. Similarly, the Supreme Court has refused to determine whether Sec. 2680(c) applies where the officers who detained the property were not customs or tax officials and were not acting in a customs or tax capacity. See Kosak v. United States, 465 U.S. 848, 852 n. 6, 104 S.Ct. 1519, 1522 n. 6, 79 L.Ed.2d 860 (1984). Therefore, we begin our inquiry into the scope of Sec. 2680(c) on a clean slate.
It is well settled that the first step in determining the meaning of a statute is to review the language of the statute itself. United States v. Johnson, 855 F.2d 299 (6th Cir.1988). " '[O]nly the most extraordinary showing of contrary intention from [the legislative history] would justify a limitation on the 'plain meaning' of the statutory language.' " Id. at 305 (quoting Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 482, 83 L.Ed.2d 472 (1984)).
According to the government, the term "any other law-enforcement officer" was included in Sec. 2680(c) as a sort of catch-all provision. The principle of ejusdem generis, 2 however, suggests that such a general term should be understood in light of the specific terms that surround it. Hughey v. United States, 495 U.S. 411, 419, 110 S.Ct. 1979, 1984, 109 L.Ed.2d 408 (1990). Similarly, under the principle of statutory construction known as noscitur a sociis, 3 a general term is interpreted within the context of the accompanying words "to avoid the giving of unintended breadth to the Acts of Congress." Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 1582, 6 L.Ed.2d 859 (1961). Here, the specific terms "tax" and "customs duty" indicate that Congress was concerned with those detentions, however they might arise, occurring within the context of tax and customs activities. As Judge Tang observed:
The governmental function of assessing and collecting customs duties necessarily requires some period of detention when the imported item is inspected for purposes of evaluation. A similar situation often arises when property must be levied against for tax purposes. It follows that where the ultimate act of assessing the tax or duty is rendered exempt, the incidental activity of detention must also be protected. Sec. 2680(c) contains parallel clauses which cover "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 clauses both dwell exclusively on customs and taxes, except for the final reference to other law-enforcement officers. The "any other law-enforcement officer" phrase should be viewed as Congress' recognition of the fact that federal officers, other than customs and excise officers, sometimes become involved in the activity of detaining goods for tax or customs purposes.
A-Mark, 593 F.2d at 850-51 (Tang, J., concurring) (emphasis in original).
In order to interpret Sec. 2680(c) as the government urges, we would have to focus selectively on specific provisions of that section without reading it in its entirety. The Supreme Court has observed, however, that "[w]e do not ... construe statutory phrases in isolation; we read statutes as a whole." United States v. Morton, 467 U.S. 822, 828, 104 S.Ct. 2769, 2773, 81 L.Ed.2d 680 (1984). Moreover, even if Sec. 2680(c) were read piecemeal, it would not convey the meaning suggested by the government. Significantly, Congress chose to use the word "detention" instead of the word "seizure." A detention is generally...
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