500 F.3d 103 (2nd Cir. 2007), 06-1362, ABC v. DEF

Docket Nº:06-1362-cv.
Citation:500 F.3d 103
Party Name:ABC, Plaintiff-Appellant, v. DEF, Defendant-Appellee.
Case Date:September 05, 2007
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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500 F.3d 103 (2nd Cir. 2007)

ABC, Plaintiff-Appellant,


DEF, Defendant-Appellee.

No. 06-1362-cv.

United States Court of Appeals, Second Circuit.

Sept. 5, 2007

Argued: April 23, 2007.

Appeal from the judgment of the United States District Court for the Southern District of New York (Daniels, J.), dismissing ABC's complaint for lack of subject matter jurisdiction under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 1402(b), 2401(b), & 2671-2680. Vacated in part and remanded.

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ABC, pro se.

Peter Halpin, Justin Kolbenschlag, Erica Laplante (Jonathan H. Romberg, on the brief), for Seton Hall University School of Law Center for Social Justice, Newark, NJ, as amicus curiae in support of Appellant. [*]

Kristin L. Vassallo, Assistant United States Attorney (Elisabeth Wolstein, Assistant United States Attorney, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

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Before: JACOBS, Chief Judge, LEVAL and POOLER, Circuit Judges.


A federal prison inmate pro se appeals from the judgment of the United States District Court for the Southern District of New York (Daniels, J.), dismissing his claim against the United States based on the allegation that a prison officer negligently detained and lost his property during his transfer from one cell to another. The Federal Tort Claims Act ("FTCA") waives the sovereign immunity of the United States for certain civil actions, with various exceptions, and vests jurisdiction in the district courts. 28 U.S.C. §§ 1346(b), 2680(a)-(n). The district court dismissed the claim on the ground that § 2680(c), one of the exceptions to the FTCA's waiver, bars jurisdiction for claims involving the detention of goods "by any officer of customs or excise or any other law enforcement officer." The court ruled that a prison officer is such an "other law enforcement officer." We conclude that the phrase "any other law enforcement officer," as used in § 2680(c), references only law enforcement officers who are functioning in a capacity akin to that of a customs or excise officer. Since plaintiff's claim is not barred by § 2680(c), we vacate the judgment in relevant part and remand for further proceedings consistent with this opinion.


Plaintiff-appellant ABC is a federal prisoner whose name is concealed in this opinion and in the caption; the district court proceedings are largely under seal (including the opinion reviewed on this appeal); and our statement of facts (accepted as true by the district court) is spare.

Sometime in 2001, the government came to believe that information regarding ABC's cooperation with the authorities might have been disclosed to other prisoners. For his safety, ABC was transferred to a special housing unit. He was told by a prison official that certain property in his cell and in storage would be transferred with him. About six weeks after the transfer, ABC surveyed his property and discovered that many items were missing. He brought this action seeking money damages against the United States, the United States Department of Justice ("DOJ"), and the Federal Bureau of Prisons ("BOP"), alleging that the loss of his property was the result of negligence by federal prison officials during the transfer.1 ABC's claims against the DOJ and the BOP were dismissed because the FTCA does not permit suits against federal agencies, see Mignogna v. Sair Aviation, Inc., 937 F.2d 37, 40 (2d Cir.1991); see also 28 U.S.C. § 2679(a), a ruling that is not contested on appeal. As to ABC's claim against the United States, the district court concluded that there was no waiver of sovereign immunity (and that the district court therefore lacked jurisdiction) because the BOP official responsible for transferring ABC's property was an "other law enforcement officer" under § 2680(c). This appeal followed.


In relevant part, the FTCA vests the district courts with

exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . for injury or loss of property . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within

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the scope of his office or employment, under circumstances where the United 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). This is a "broad waiver of sovereign immunity," Kosak v. United States, 465 U.S. 848, 852, 104 S.Ct. 1519, 79 L.Ed.2d 860 (1984); but it is subject to numerous exceptions, see 28 U.S.C.§ 2680(a)-(n). Relevant here, § 2680(c) excepts claims regarding the detention of property "by any officer of customs or excise or any other law enforcement officer."

The government contends that "any other law enforcement officer" should be read broadly to encompass any law enforcement officer who has detained any property in any law enforcement context. ABC contends that the phrase should be read more narrowly, in light of the surrounding text, to reference only law enforcement officers who are acting in a customs or excise capacity.2

Our sister circuits are split on this issue. Compare Bramwell v. U.S. Bureau of Prisons, 348 F.3d 804 (9th Cir.2003) (adopting the broad reading of the exception advanced by the government); Chapa v. U.S. Dep't of Justice, 339 F.3d 388 (5th Cir.2003) (per curiam) (same); Hatten v. White, 275 F.3d 1208 (10th Cir.2002) (same); Cheney v. United States, 972 F.2d 247 (8th Cir.1992) (per curiam) (same); Schlaebitz v. U.S. Dep't of Justice, 924 F.2d 193 (11th Cir.1991) (per curiam) (same); Ysasi v. Rivkind, 856 F.2d 1520 (Fed.Cir.1988) (same), with Andrews v. United States, 441 F.3d 220 (4th Cir.2006) (adopting the narrow reading of the exception advanced by ABC); Ortloff v. United States, 335 F.3d 652 (7th Cir.2003) (same); Bazuaye v. United States, 83 F.3d 482 (D.C.Cir.1996) (same); Kurinsky v. United States, 33 F.3d 594 (6th Cir.1994) (same). The Supreme Court has granted a writ of certiorari to decide the question. Ali v. Fed. Bureau of Prisons, --- U.S. ----, 127 S.Ct. 2875, 167 L.Ed.2d 1151 (2007).

The issue first arose in this Circuit in Formula One Motors, Ltd. v. United States, in which agents of the Drug Enforcement Administration ("DEA") had seized a car being shipped to the United States from Italy, searched it for illegal drugs, and allegedly damaged the car in the process. 777 F.2d 822, 822-23 (2d Cir.1985). In discussing whether the FTCA permitted suit against the United States, we observed that § 2680(c) "might suggest a more narrow...

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