5.23.2006

D. Puerto Rico Discusses Split Re Interpretation of FTCA Exception

Per Solis-Alarcon v. U.S., Not Reported in F.Supp.2d, 2006 WL 1360028 (D.Puerto Rico May 17, 2006):

28 U.S.C.A. § 2680(c), in relevant part, provides an exception to the United States' waiver of sovereign immunity found in the Federal Tort Claims Act as to “[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 property by any officer of customs or excise or any other law enforcement officer.” The parties disagree over whether this subsection may be applied to the actions of Federal Defendants in seizing the Dodge Durango. Specifically, they hold opposing views as to the contours of the phrase “any other law enforcement officer”. Federal Defendants contend that they are covered by the exception… Plaintiffs respond that they may not seek refuge in that exception since the phrase should be interpreted to mean any other law enforcement officer working in a customs or tax-related capacity. Both contentions find some support in the case law; the Supreme Court has yet to resolve the issue, see Kosak v. U.S., 465 U.S. 848, 853 n. 6 (1984), there are no First Circuit decisions on this point, and there is a split among the circuits that have been faced with the issue.

Four Circuits, the Fourth, Sixth, Seventh, and District of Columbia Circuits, have championed the view espoused here by Plaintiffs: that § 2680(c)'s reference to “any other law enforcement officer” should be limited, by the terms of the section taken as a whole, to any other law enforcement officer, other than customs officers, working in the enforcement of tax or customs laws. See, Kurisnky v. U.S., 33 F.3d 594 (6th Cir.1994), Bazuaye v. U.S., 83 F.3d 482 (D.C.Cir.1996), Ortloff v. U.S., 335 F.3d 652 (7th Cir.2003), Andrews v. U.S., 441 F.3d 220 (4th Cir.2006)….Specifically, these courts have noted that if the ejusdem generis canon is applied, the general phrase “any other law enforcement officer” must be defined so as to only include items of the type that preceded it in § 2680's recitation. Andrews, 441 F.3d at 223-24. Therefore, the term “any other law enforcement officer” would encompass other law enforcement officers performing functions similar to those carried out by excise or customs officers. Id. The application of the noscitur a sociis canon would yield the same result, since it requires that the meaning of an undefined phrase be determined by the words immediately surrounding it. Id.at pp. 224-25. Moreover, as these decisions discuss, such an interpretation is consistent with the purpose of the FTCA and its exceptions…

Taking a different route, a majority of the other circuits that have addressed the issue--the Fifth, Eighth, Ninth, Tenth, Eleventh, and the Federal Circuit--have interpreted the phrase “any other law enforcement officer” expansively. See, Chapa v. U.S. Dep't of Justice, 441 F.3d 388 (5th Cir.2003) (§ 2680(c) precludes claim for loss of inmate's property, which he had given to Bureau of Prisons officers to be returned to him once he had transferred from one prison facility to another); Cheney v. U.S., 972 F.2d 247 (8th Cir.1992) (finding plaintiff's claim against federal drug task agent who seized a car title certificate and later returned it to plaintiff's girlfriend, who obtained the car and in whose possession it was damaged, covered by § 2680(c) and therefore not cognizable under the FTCA) …Many of these decisions have brief, if any, explanation for their holding…. Perhaps the fullest explanation for construing § 2680(c) as including law enforcement officers other than those acting in an excise or customs capacity can be found in Chapa, supra. There the Fifth Circuit reasoned that such interpretation comported with another of the exceptions found in § 2680, namely subsection (h), in which law enforcement officers are defined as “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law”. Chapa, 339 F.3d at p. 390 (quoting from 28 U.S.C.A.. § 2680(h)). However, addressing that line of reasoning, the Fourth Circuit noted that it would be erroneous to use § 2680(h)'s definition of law enforcement officer to ascertain the limits of the phrase “any other law enforcement officer” in § 2680(c) because § 2680(h) explicitly provides the definition for the purpose of that subsection only.

…[T]his Court is persuaded by the reasoning of the Fourth, Sixth, Seventh, and District of Columbia circuits.

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