Bazuaye v. U.S.

• Decision Date: 21 May 1996
• Docket Number: No. 95-5063,95-5063
• Citation: 83 F.3d 482,317 U.S. App. D.C. 370
• Parties: Joromi H. BAZUAYE, Appellant v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 482

83 F.3d 482

317 U.S.App.D.C. 370

Joromi H. BAZUAYE, Appellant v. UNITED STATES of America, Appellee.

No. 95-5063.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 29, 1996.

Decided May 21, 1996.

Appeal from the United States District Court for the District of Columbia (93cv01767).

Deep S. Sran, student counsel, Baltimore, MD, argued the cause for appellant. With him on the briefs were Steven H. Goldblatt, Washington, DC, appointed counsel, and Daniel Crawford, student counsel.

Stacy M. Ludwig, Assistant United States Attorney, argued the cause for appellee. With her on the brief were Eric H. Holder, Jr., United States Attorney, and R. Craig Lawrence, Assistant United States Attorney, Washington, DC.

Before: HENDERSON, RANDOLPH, and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

Secret Service agents arrested Joromi H. Bazuaye on October 16, 1991, for engaging in a scheme of credit card fraud. Soon after his arrest, Bazuaye attempted to secure his release on bail by having $11,000 in money orders, money transfers and U.S. currency delivered to a bail bondsman in the District of Columbia. But before Bazuaye could complete his bail arrangements, a U.S. postal inspector seized the funds on suspicion that they represented ill-gotten gains from Bazuaye's criminal activities. Bazuaye stayed in jail, and a federal grand jury returned a 12-count indictment against him. In February 1992, Bazuaye struck a deal with the government and pled guilty to a single count of possessing, with intent to defraud, 15 or more counterfeit or unauthorized "access devices" in violation of 18 U.S.C. § 1029(a)(3). He was sentenced to 37 months' imprisonment.

After unsuccessfully challenging his conviction and sentence, United States v. Bazuaye, 991 F.2d 791 (4th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 278, 126 L.Ed.2d 228 (1993), Bazuaye filed this suit in the U.S. District Court for the District of Columbia. In it, he invoked the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., to allege that the postal inspector acted negligently and improperly in seizing the bail money. Bazuaye also claimed that the postal inspector's later forfeiture procedures were deficient under both the Administrative Procedure Act, 5 U.S.C. § 701 et seq., and the United States Constitution. The district court dismissed Bazuaye's FTCA claim and granted summary judgment for the government on his APA and constitutional claims. Bazuaye appeals only the FTCA decision.

The FTCA provides that the United States shall be liable for damages, 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. §§ 1346(b), 2674; Kosak v. United States, 465 U.S. 848, 851-52, 104 S.Ct. 1519, 1522-23, 79 L.Ed.2d 860 (1984). This broad waiver of sovereign immunity is subject to 13 enumerated exceptions. 28 U.S.C. § 2680(a)-(n). One of them, § 2680(c), exempts from the FTCA's reach:

Any 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.

28 U.S.C. § 2680(c). The district court read that provision to preclude Bazuaye's claim. While acknowledging that "postal inspectors have never expressly been determined to be 'law-enforcement officer[s]' " within the meaning of § 2680(c), the district court saw "no principled reason why they should not be given [that] status due to the role that they play in forfeiture proceedings such as this one." We come to the opposite conclusion.

The meaning of § 2680(c)'s "any other law-enforcement officer" language presents a question of first impression in this circuit, a question left open in Kosak, 465 U.S. at 852 n. 6. As a split in the federal courts of appeals indicates, the language invites at least two plausible interpretations. Using a literal approach, two circuits hold that "any officer of customs or excise or any other law-enforcement officer" means any customs officers, any excise officers, or any other law-enforcement officers engaged in any kind of work "within their lawful duties." See Halverson v. United States, 972 F.2d 654, 656 (5th Cir.1992); Schlaebitz v. United States Dep't of Justice, 924 F.2d 193, 194 (11th Cir.1991). ¹

Read in light of the traditional canons of statutory interpretation, however, the language takes on quite a different meaning. The principle of ejusdem generis--or "of the same kind, class or nature"--suggests that a general term should be read in light of the more specific terms preceding it. Thus, if a statute lists "fishing rods, nets, hooks, bobbers, sinkers and other equipment," see United States v. Aguilar, --- U.S. ----, ----, 115 S.Ct. 2357, 2369, 132 L.Ed.2d 520 (1995) (Scalia, J., concurring and dissenting), "other equipment" might mean plastic worms and fishing line, but not snow shovels or baseball bats. In the clause "any officer of customs or excise or any other law-enforcement officer," the words "any other law-enforcement officer" might mean other officers involved in customs and excise work, but not officers involved in unrelated duties. ² Otherwise, "any officer of customs or excise" would be surplusage, subsumed by the more general "any other law-enforcement officer." See United States v. Nordic Village, Inc., 503 U.S. 30, 35, 112 S.Ct. 1011, 1015, 117 L.Ed.2d 181 (1992). For these reasons, the Sixth Circuit has held that the words "any other law-enforcement officer" should be read to mean "law-enforcement officers acting in a tax or customs capacity." Kurinsky v. United States, 33 F.3d 594, 598 (6th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1793, 131 L.Ed.2d 721 (1995). The Second and Seventh Circuits have suggested--without deciding--that they would reach the same conclusion. Paul v. United States, 929 F.2d 1202, 1203 (7th Cir.1991); Formula One Motors v. United States, 777 F.2d 822, 823-24 (2d Cir.1985).

The government urges us to read § 2680(c) in light of another canon--one requiring strict construction of waivers of sovereign immunity--but the Supreme Court has specifically rejected that canon as "unhelpful" in interpreting § 2680(c). Kosak, 465 U.S. at 854 n. 9, 104 S.Ct. at 1524 n. 9. Rather, the Court has said that in construing § 2680(c), a court should "identify 'those circumstances which are within the words and reason of the exception'--no less and no more." Id. (quoting Dalehite v. United States, 346 U.S. 15, 31, 73 S.Ct. 956, 965, 97 L.Ed. 1427 (1953)). As we have just indicated, the "words" of § 2680(c) fall short of answering the question before us. We will therefore move on to the "reason" for the exception § 2680(c) creates.

The government directs us to a statement by Judge Alexander Holtzoff, who very likely drafted the language that became § 2680(c). Holtzoff wrote that § 2680(c) would exempt from the FTCA claims

arising in respect of the assessment or collection of any tax or customs duty. This exception appears in all previous drafts. It is expanded, however, so as to include immunity from liability in respect of loss in connection with the detention of goods or merchandise by any officer of customs or excise. The additional proviso has special reference to the detention of imported goods in appraisers' warehouses or customs houses, as well as seizures by law-enforcement officials, internal revenue officers, and the like.

A. Holtzoff, Report on Proposed Federal Tort Claims Bill 16 (1931). Any attempt to parse this report suffers from the same interpretative problem plaguing § 2680(c) itself; the report, like § 2680(c), appears to concern solely customs and tax matters, with a few words about "law-enforcement" officers tacked on to the end. There is another problem with Judge Holtzoff's report. He wrote it 15 years before Congress adopted the FTCA. Whether any member of Congress received a copy of the report--or relied on it in voting for the provision--is unknown. See Kosak, 465 U.S. at 856-57, 104 S.Ct. at 1524-25.

Other aspects of § 2680(c)'s origin are much more compelling. Congress carved out the various § 2680 exceptions, at least in part, in order to preclude tort suits against the government when other "adequate remedies were already available." Kosak, 465 U.S. at 858, 104 S.Ct. at 1526. Both the Senate and the House committee reports state that the § 2680 exceptions covering "claims arising out of the loss or miscarriage of postal matter; the assessment or collection of taxes or assessments; the detention of goods by customs officers; admiralty and maritime torts; deliberate torts such as assault and battery; and others" were meant to exempt from the FTCA "certain governmental activities" which either "should be free from the threat of damage suits or for which adequate remedies are already available." S.REP. NO. 1400, 79th Cong., 2d Sess. 33 (1946); H.R.REP. NO. 1287, 79th Cong., 1st Sess. 6 (1945).

Claims against federal officers carrying out the customs and tax laws were among those for which adequate remedies were already available. At common law, a plaintiff could recover in a lawsuit against a customs officer for negligently damaging goods he detained. See Kosak, 465 U.S. at 860, 104 S.Ct. at 1526; States Marine Lines, Inc. v. Shultz, 498 F.2d 1146 (4th Cir.1974); Agnew v. Haymes, 141 F. 631 (4th Cir.1905). And a plaintiff could recover in an action against a federal excise officer for the improper seizure of his money or property. See, e.g., Elliott v. Swartwout, 35 U.S. (10 Pet.) 137, 9 L.Ed. 373 (1836); Hammond-Knowlton v. United States, 121 F.2d 192 (2d Cir.), cert. denied, 314 U.S. 694, 62 S.Ct. 410, 86 L.Ed. 555 (1941).

Initially, these suits were considered personal actions against the individual customs...