D. Mass. Notes Split Re What Constitutes a Law Enforcement Officer Under the FTCA

Per Samuels v. Bureau of Prisons, --- F.Supp.2d ----, 2007 WL 2153274 (D.Mass. Jul 27, 2007) (NO. CIV.A.06-40085-RCL):
Section 2680(c) of the FTCA excepts from the waiver of sovereign immunity "[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 BOP argues that its officers are included in the category described by the words "any other law enforcement officer," that for this reason sovereign immunity is not waived for claims against BOP officers, and that the plaintiff's claim is therefore barred. The Supreme Court in Kosak v. United States, 465 U.S. 848, 852 n. 6 (1984) expressly reserved the question raised by the BOP's contention ("We have no occasion in this case to decide what kinds of 'law-enforcement officer[s],' other than customs officials, are covered by the exception" (quoting 28 U.S.C. § 2680(c))). The circuits are split on the issue. See, e.g., Andrews v. United States, 441 F.3d 220, 227-28 (4th Cir.2006) (discussing holdings of the various Circuit Courts of Appeal); Solis-Alarcon v. United States, 432 F.Supp.2d 236, 249 (D.P.R.2006) (same). The Fourth, Sixth, Seventh, and District of Columbia circuits have held that "any other law enforcement officer" in § 2680(c) refers only to law enforcement officers working in the enforcement of tax or customs laws. See Andrews, 441 F.3d at 227; Ortloff v. United States, 335 F.3d 652, 658 (7th Cir.2003); Bazuaye v. United States, 83 F.3d 482, 486 (D.C.Cir.1996); Kurinsky v. United States, 33 F.3d 594, 598 (6th Cir.1994). The Fifth, Eighth, Ninth, Tenth, and Eleventh Circuits have interpreted the language more expansively. See, e.g., Bramwell v. U.S. Bureau of Prisons, 348 F.3d 804, 807 (9th Cir.2003) (holding that BOP officers are law enforcement officers for the purposes of § 2680(c)); Chapa v. U.S. Dep't of Justice, 339 F.3d 388, 390 (5th Cir.2003) (same); Hatten v. White, 275 F.3d 1208, 1210 (10th Cir.2002) (same); Cheney v. Unites States, 972 F.2d 247, 248 (8th Cir.1992) (holding claim against federal drug task force officer based on seizure of property in course of search barred by § 2680(c)'s "broad exception to the FTCA's general waiver of sovereign immunity"); Schlaebitz v. United States Dep't of Justice, 924 F.2d 193, 195 (11th Cir.1991) (concluding that claim against marshals acting within their lawful authority is banned by § 2680(c)). FN3

FN3. The Federal Circuit is often grouped with the circuits that have interpreted § 2680(c) expansively because that court ruled in Ysasi v. Rivkind, 856 F.2d 1520, 1525 (Fed.Cir.1988) that the plaintiff's claim against INS Border Patrol officers was barred by this subsection. A more careful reading of the decision, however, reveals that the court's holding is in fact consistent with the reasoning of the circuits limiting the reach of the "any other law enforcement officer" language. The Ysasi court held specifically that the violations in issue in the case before it were similar to violations of the customs laws and that "seizures pursuant to [ 8 U.S.C.] § 1324(b)(1) are 'sufficiently akin to the functions carried out by Customs officials to place the agents' conduct within the scope of section 2680(c).' " Id. (quoting Formula One Motors, Ltd. v. United States, 777 F.2d 822, 824 (2d Cir.1985). Compare Andrews v. United States, 441 F.3d 220, 227 (4th Cir.2006) ("we conclude that the phrase ... is limited to those officers acting in a tax or customs capacity"); Ortloff v. United States, 335 F.3d 652, 658 (7th Cir.2003) ( "exception ... applies only to law enforcement officers performing functions related to customs and excise duties"); Bazuaye v. United States, 83 F.3d 482, 486 (D.C.Cir.1996) ("language exempts from the FTCA only those claims arising from the actions of a federal law-enforcement officer who, while not officially a customs or tax officer, is acting under the authority of the tax or customs laws"); Kurinsky v. United States, 33 F.3d 594, 597 (6th Cir.1994) (" § 2680(c) must be read as only applying to law enforcement officers engaged in activities with a nexus to the collection of taxes or customs duties") with, e.g., Bramwell v. U . S. Bureau of Prisons, 348 F.3d 804, 807 (9th Cir.2003) (concluding that because they are considered "law enforcement officers" under several other statutes, BOP employees are except from liability under § 2680(c)); Chapa v. U.S. Dep't of Justice, 339 F.3d 388, 390 (5th Cir.2003) (same); Schlaebitz v. U.S. Dep't of Justice, 924 F.2d 193, 194 (11th Cir.1991) (" 'other law enforcement officer' may include officers in other agencies performing their proper duties").

There are no First Circuit decisions interpreting this language, though as noted by a judge of the United States District Court for the District of Puerto Rico, two district courts within the First Circuit have addressed the meaning of § 2680(c). See Solis-Alarcon, 432 F.Supp.2d at 249 & n. 6. In Hydrogen Tech Corp. v. United States, 651 F.Supp. 1126, 1128 (D.Mass.1987), Judge McNaught of this district determined that where law enforcement officers are acting outside the excise/customs context, recovery under the FTCA is not barred by § 2680(c). In Cardona del Toro v. United States, Judge Perez-Gimenez of the District of Puerto Rico reached a contrary conclusion, holding-without discussion-that § 2680(c) bars an FTCA claim arising out of a warrantless search and seizure of property by FBI agents. 791 F.Supp. 43, 45, 47 (D.P.R.1992), aff'd without discussion, 983 F.2d 1046, 1993 WL 9733 (1st Cir. Jan. 19, 1993). More recently, Judge Casellas of the District of Puerto Rico, after extended analysis of the question, concluded that "the language 'any other law enforcement officer' in § 2680(c) refers to any other law enforcement officer working in an excise or customs capacity." Solis-Alarcon, 432 F.Supp.2d at 251.