1st Circuit Notes Split Re Application of Federal DNA Act in Fourth Amendment Search and Seizure Issues

Per U.S. v. Weikert, --- F.3d ----, 2007 WL 2265660 (1st Cir.(Mass.) Aug 09, 2007) (NO. 06-1861):

This case presents a question of first impression in this circuit: is it a violation of the Fourth Amendment's prohibition on unreasonable searches and seizures to require an individual on supervised release to provide a blood sample for purposes of creating a DNA profile and entering it into a centralized database? Agreeing with the eleven other circuits that have held similarly, we hold that it is not. In doing so, we interpret the Supreme Court's decision in Samson v. California, --- U.S. ----, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006), to require that we join the majority of the circuits in applying a "totality of the circumstances" approach to the issues in this case, rather than the "special needs" analysis used by the minority of circuits.

. . .

The other circuits have split in the analysis they apply to the federal DNA Act or its state law analogs. A majority-the Third, Fourth, Fifth, Eighth, Ninth, Eleventh, and D.C. Circuits-use the totality of the circumstances analysis described in Knights and Samson. See United States v. Kraklio, 451 F.3d 922, 924 (8th Cir.2006)(federal DNA Act); Johnson v. Quander, 440 F.3d 489, 496 (D.C.Cir.2006)(federal DNA Act); United States v. Sczubelek, 402 F.3d 175, 184 (3d Cir.2005)(federal DNA Act); Padgett v. Donald, 401 F.3d 1273, 1280 (11th Cir.2005)(Georgia analog); United States v. Kincade, 379 F.3d 813, 832 (9th Cir.2004)(en banc)(federal DNA Act); Groceman v. U.S. Dep't of Justice, 354 F.3d 411, 413-14 (5th Cir.2004)(per curiam)(federal DNA Act); Jones v. Murray, 962 F.2d 302, 306-07 (4th Cir.1992)(Virginia analog). A minority-the Second, Seventh, and Tenth Circuits-apply the special needs analysis. See Amerson, 483 F.3d 73, 79 n. 6 (2d Cir.2007)(federal DNA Act); United States v. Hook, 471 F.3d 766, 773 (7th Cir.2006)(federal DNA Act); United States v. Kimler, 335 F.3d 1132, 1146 (10th Cir.2003)(federal DNA Act). Finally, the Sixth Circuit, in United States v. Conley, 453 F.3d 674, 679-81 (6th Cir.2006), declined to choose a mode of analysis, holding that the DNA Act was constitutional under either a totality of the circumstances or a special needs analysis. FN6

FN6. The circuits also disagree over which test is more rigorous. Compare Sczubelek, 402 F.3d at 184 (explaining that it would apply the "more rigorous Knights totality of the circumstances test rather than the Griffin special needs exception) and Kraklio, 451 F.3d at 924 (same) with Amerson, 483 F.3d at 79 n. 6 (2d Cir.2001)(indicating that the special needs test is more "stringent").


1st Circuit Notes Split Re Whether Standing is Required to Invervene if Original Parties are Maintaining a Case or Controversy

Per Maine v. Johnson, --- F.3d ----, 2007 WL 2258265 (1st Cir. Aug 08, 2007) (NO. 04-1363, 04-1375):

Since we have sustained state jurisdiction as to all of the sites, this statutory argument does not affect the ultimate outcome. Further, the EPA argues that the intervenors have no standing to make an argument that has been made neither by the EPA (in defense as to the nineteen sites) nor by Maine (as to the other two sites). The standing argument is, as is often the case, more complicated than the merits of the claim--partly because of conflict in the case law and partly because more than one standing concept is involved. FN12

FN12. E.g., Mangual v. Rotger-Sabat, 317 F.3d 45, 61 & n. 5 (1st Cir.2003) ("[T]he circuits are split on the question of whether standing is required to intervene if the original parties are still pursuing the case and thus maintaining a case or controversy....").


E.D. Pennsylvania Notes Split Re Whether an Unauthorized Driver of a Rental Car has Standing to Challenge Fourth Amendment Vehicle Search

Per U.S. v. Dennis, Slip Copy, 2007 WL 2173394 ( E.D.Pa. Jul 27, 2007) (NO. CRIM.06-650-01):

The Third Circuit has not yet addressed the question whether an unauthorized driver of a rental car has standing to challenge a vehicle search under the Fourth Amendment. However, several other Circuit Courts have addressed the issue directly. See United States v. Thomas, 447 F.3d 1191 (9th Cir.2006) (collecting cases and analyzing the Circuit split).

Of the Circuits to address the issue, the Fourth, Fifth and Tenth Circuits have adopted a bright line approach, under which an unauthorized driver of a rental car lacks standing to object to its search. See United States v. Wellons, 32 F.3d 117, 119 (4th Cir.1994); United States v. Boruff, 909 F.2d 111, 117 (5th Cir.1990); United States v. Roper, 918 F.2d 885, 887-88 (10th Cir.1990). The Eighth and Ninth Circuits have adopted a modified bright-line approach, under which an unauthorized driver may have standing to challenge a vehicle search if he received permission from the authorized driver to use the car. United States v. Thomas, 447 F.3d 1191, 1199 (9th Cir.2006); United States v. Best, 135 F.3d 1223, 1225 (8th Cir.1998). Finally, the Sixth Circuit has adopted a totality of the circumstances approach, in which courts consider factors including, (1) whether the defendant has a driver's license; (2) the relationship between the unauthorized driver and the lessee; (3) the driver's ability to present rental documents; (4) whether the driver had the lessee's permission to use the car; and (5) the driver's relationship with the rental company. United States v. Smith, 263 F.3d 571, 586 (6th Cir.2000).

One court in this Circuit recently considered this standing issue in light of the Third Circuit's opinion in Baker. In United States v. Kennedy, 2007 WL 1740747, *3-4 (E.D.Pa. Jun.15, 2007), the court observed that in Baker, the Third Circuit adopted a "fact-bound" inquiry into a driver's standing. Id. at *4. Accordingly, the Kennedy court held that Baker "may be read as an implicit endorsement of either the modified bright-line rule or the totality of the circumstances test." Id. As to the bright-line approach, the court observed: "Despite the laudable qualities of this standard-including ease of applicability-it is a blunt instrument, particularly in an area of law that usually calls for a fact-specific analysis." Id. at *3.

This Court agrees with the analysis of the Kennedy court. In Kennedy, citing Baker, the Court predicted that "the Third Circuit would utilize either the modified bright-line rule, under which unauthorized drivers of rental cars have standing to contest a search if they have the permission of an authorized driver, or the totality of the circumstances test." Id. at *4.


S.D.N.Y. Notes Split Re Whether Defendant Classes are Permissible in Class Actions under Rule 23(b)(2)

Per Brown v. Kelly, Slip Copy, 2007 WL 2156400 (S.D.N.Y. Jul 24 , 2007) (NO. 05 CIV 5442 SAS):

There is currently a split in the circuits as to whether defendant classes are permissible in class actions governed by Rule 23(b)(2). FN138 Courts ascribing to a literal reading of the Rule have held that it only permits plaintiff classes to seek injunctive and declaratory relief from individual defendants, as opposed to defendant classes. FN139 However, the Second Circuit-the only appellate court that binds this Court-has expressly rejected such a narrow interpretation of the Rule. In Marcera v. Chinlund, the court affirmed certification of a defendant class of county sheriffs and stated "it is now settled that 23(b)(2) is an appropriate vehicle for injunctive relief against a class of local public officials." FN140 Although it is employed rarely for this purpose, both before and after Marcera, Rule 23(b)(2) has been the cornerstone of bilateral civil rights class actions.

FN138. The Supreme Court has not spoken on this issue. In Zablocki v. Redhail, 434 U.S. 374, 380 n. 6 (1978), the Court noted that the appellant had not appealed the district court's certification of a(b)(2) defendant class, but did not otherwise address this point.

FN139. See Paxman v. Campbell, 612 F.2d 848, 854 (4th Cir.1980) ( "As is clear from the language of the Rule, it is applicable to situations in which a class of plaintiffs seeks injunctive relief against a single defendant .... To proceed under 23(b)(2) against a class of defendants would constitute the plaintiffs as 'the party opposing the class,' and would create the anomalous situation in which the plaintiffs' own actions or inactions could make injunctive relief against the defendants appropriate."). Accord Tilley v. TJX Cos., Inc., 345 F.3d 34, 40 (1st Cir.2003); Henson, 814 F.2d at 415-17; Thompson, 709 F.2d at 1204.

FN140. 595 F.2d at 1238. Accord Southern Ute Indian Tribe v. Amoco Prod. Co., 2 F.3d 1023 (10th Cir.1993) (affirming certification of a(b)(2) defendant class); Baker v. Wade, 743 F .2d 236, 244 (5th Cir.1984) (certification of a(b)(2) defendant class was proper where the named defendants would adequately represent the class and "the true interest at stake" was "that of the State of Texas in the constitutionality of its duly enacted legislation"). See also Luyando, 124 F.R.D. at 58 (certifying a(b)(2) defendant class); Follette v. Vitanza, 658 F.Supp. 492, 506 (N.D.N.Y.1987) (same); DeAllume, 110 F.R.D. at 304 (same). The Second Circuit's decision in Marcera was vacated on grounds completely distinct from the court's holding with respect to certification of the (b)(2) defendant class. See Marcera, 442 U.S. at 915 (remanding the case for further consideration in light of recent precedent regarding inmate confinement facilities). Indeed, on remand, the district court, in applying the new substantive law, again certified a(b)(2) defendant class, which was not disturbed on appeal. Accordingly, Marcera remains good law in this Circuit and is binding on this Court.


S.D. Georgia Notes Split Re Whether Inmate May Recover Nominal and Punitive Damages in 1983 Claim

Per Miller v. King, Slip Copy, 2007 WL 2164534 (S.D.Ga. Jul 24 , 2007) (NO. CIV A CV698-109):

The Eleventh Circuit has yet to decide whether Section 1997e(e) precludes claims for nominal and punitive damages along with compensatory damages. Boxer X v. Donald, 169 Fed. Appx. 555, 558-59, 558 n. 1 (11th Cir.2006). Nominal damages are appropriate in a Section 1983 case if the plaintiff establishes a violation of a fundamental constitutional right, even if he cannot prove actual injury sufficient to entitle him to compensatory damages. Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 1053-1054, 55 L.Ed.2d 252 (1978). Punitive damages may be imposed under Section 1983 with the specific purpose of deterring or punishing violations of constitutional rights. Id. at 257 n. 11, 1049. Although the Eleventh Circuit has yet to decide whether Section 1997e(e) precludes a prisoner from seeking nominal or punitive damages, the Court of Appeals has noted that the Second, Third, Seventh, Ninth and Tenth Circuits have concluded that Section 1997e(e) does not preclude a prisoner from seeking nominal damages, Boxer X v. Donald, 169 Fed. Appx. at 558-59, and that circuits elsewhere are split on the issue of punitive damages under Section 1997e(e). Id . at 558 n. 1.


E.D. Virginia Notes Split Re the Correct Test for Determining Minimum Contacts Necessary to Confer Personal Jurisdiction

Per Jones v. Boto Co., Ltd., --- F.Supp.2d ----, 2007 WL 2172810 ( E.D.Va. Jul 17, 2007) (NO. 4:07 CV 45):

Circuits have split on the issue of which Asahi opinion sets forth the correct test for determining whether a defendant has the minimum contacts necessary to confer jurisdiction. See Lesnick, 35 F.3d at 946 n. 1 (listing cases). Although the Fourth Circuit has rejected Justice Brennan's stream of commerce theory of personal jurisdiction, it has not explicitly adopted the approach set forth by Justice O'Connor or the approach suggested by Justice Stevens. See id. at 945 ("To permit a state to assert jurisdiction over any person in the country whose product is sold in the state simply because a person must expect that to happen destroys the notion of individual sovereignties inherent in our system of federalism."); Federal Ins. Co. v. Lake Shore Inc., 886 F.2d 654, 660 (4th Cir.1989) (suggesting that the " 'stream of commerce' theory of personal jurisdiction" might apply when the additional conduct listed by Justice O'Connor is present, but noting that it was not deciding whether it would adopt the approach suggested by Justice Stevens in an appropriate case). Instead, based on its analysis of Asahi and other Supreme Court precedent, the Fourth Circuit has explained that to determine whether a defendant has the minimum contacts with the forum state necessary to confer jurisdiction, a court should determine whether the defendant "has created a substantial connection to the forum state by action purposefully directed toward the forum state or otherwise invoking the benefits and protections of the laws of the state." Lesnick, 35 F.3d at 945-46.


M.D. Florida Notes Split Re Certification for Interlocutory Appeal and Group Pleading Doctrine Under the Private Securities Litigation Reform Act

Per In re Miva, Inc., Securities Litigation, Slip Copy, 2007 WL 2077611 (M.D.Fla . Jul 17, 2007) (NO. 2:05-CV-201FTM29DNF):

The Court may certify an order for interlocutory appeal if the Court is "of the opinion that such order involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation ..." 28 U.S.C. § 1292(b). Defendant seeks certification for an interlocutory appeal concerning whether the "group pleading doctrine" survives the Private Securities Litigation Reform Act, and if so the scope of the doctrine. Both the Supreme Court and the Eleventh Circuit have declined to decide the issue, Tellars v. Makor Issues & Rights, Ltd., ---U.S. ----, ---- n. 6, 127 S.Ct. 2499, 2511 n. 6, --- L.Ed.2d ----, ---- n. 6 (2007); Phillips v. Scientific-Atlanta, Inc., 374 F.3d 1015, 1018-19 (11th Cir.2004), and the circuits have split. While there is an undecided issue of law, the Court concludes that this case does not satisfy the certification standards.


Bankr. N.D. Texas Notes Split Re Bankruptcy Court's Power to Grant Nondebtor Release

Per In re Wool Growers Central Storage Co., Slip Copy, 2007 WL 2088303 (Bankr.N.D.Tex. Jul 19, 2007) (NO. 06-60055-RLJ-11):

While the bankruptcy court may, through plan approval, modify the debtor-creditor relationship, the circuits are split regarding the bankruptcy court's power to approve a nondebtor release that, in effect, modifies the relationship between a creditor and a nondebtor third-party. FN3 The courts differ in how broadly or narrowly they interpret section 105(a). See Joshua M. Silverstein, Hiding in Plain View: A Neglected Supreme Court Decision Resolves the Debate over Non-Debtor Releases in Chapter 11 Reorganizations, 23 Emory Bankr.Dev. J. 13, 44-90 (2006) (stating that the pro-release courts interpret section 105 broadly, while the anti-release courts interpret section 105 narrowly). Furthermore, a court's interpretation of section 524(e) of the Bankruptcy Code plays a significant role as to whether or not the court will approve a nondebtor release. See id. Section 524(e) states that "discharge of a debt of the debtor does not affect the liability of any other entity on ... such debt." The anti-release courts interpret section 524(e) as expressly prohibiting nondebtor releases, while the pro-release courts believe the opposite to be true. See Silverstein, supra at 42-44. There are two main types of nondebtor releases: consensual nondebtor releases and non-consensual nondebtor releases.

FN3. Decisions granting nondebtor releases include: Monarch Life Ins. Co. v. Ropes & Gray, 65 F.3d 973, 985 (1st Cir.1995); SEC v. Drexel Burnham Lambert Group, Inc. ( In re Drexel Burnham Lambert Group, Inc.), 960 F.2d 285, 293 (2d Cir.1992); In re Am. Family Enters., 256 B.R. 377, 408 (D.N.J.2000); In re Master Mortgage Invest. Fund, Inc., 168 B.R. 930, 934-37 (Bankr.W.D.Mo.1994); In re Transit Group, Inc., 286 B.R. 811, 815-18 (Bankr.M.D.Fla.2002); In re Heron, Burchette, Ruckert & Rothwell, 148 B.R. 660, 685 (Bankr.D.D.C.1992).

Decisions rejecting nondebtor releases include: In re Boston Harbor Marina Co., 157 B.R. 726, 729-31 (Bankr.D.Mass.1993); In re Texaco, Inc., 84 B.R. 893, 900 (Bankr.S.D.N.Y.1988); In re Arrowmill Dev. Corp., 211 B.R. 497, 500, 504-06 (Bankr.D.N.J.1997); Feld v. Zale.


M.D. Alabama Notes Split Re Whether a District Court has Ancillary Jurisdiction Over a Motion to Expunge Arrest Records

Per U.S. v. Paxton, Slip Copy, 2007 WL 2081483 (M.D.Ala . Jul 20, 2007) (NO. 3:99CR91-WHA):

The Eleventh Circuit has not addressed directly the specific issue of whether a district court has jurisdiction over a motion for expungement of arrest records and/or records of indictment. See United States v. Carson, 366 F.Supp.2d 1151, 1155 (M.D.Fla.2004) (finding that the Eleventh Circuit has published no opinions on expungement in general outside of the realm concerning the now-repealed "Youth Corrections Act"). A survey of case law across the circuits, however, indicates that jurisdiction typically is based on the concept of ancillary jurisdiction. Recently, after the Supreme Court narrowed the broad power of ancillary jurisdiction in Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994), a split among the circuits has developed regarding whether federal district courts have ancillary jurisdiction to determine matters of expungement related to criminal proceedings in those courts. See United States v. Coloian, 480 F.3d 47, 51-52 (1st Cir.2007) (providing a discussion of the circuit split in which the court cites several cases on each side of the issue).

Some circuits, including the First, Third, Eighth, and Ninth, find that, after Kokkonen, a district court does not have ancillary jurisdiction to consider a motion to expunge a criminal record based solely on equitable grounds. See Coloian, 480 F.3d at 52; United States v. Meyer, 439 F.3d 855, 860 (8th Cir.2006); United States v. Dunegan, 251 F.3d 477, 479 (3d Cir.2001); United States v. Sumner, 226 F.3d 1005, 1013 (9th Cir.2000). These circuits typically have found that a district court's ancillary jurisdiction only exists over such motions when expunging the record of an unlawful arrest or when necessary to ameliorate a clerical error. See, e.g., Sumner, 226 F.3d at 1013 ("[A] district court's ancillary jurisdiction is limited to expunging the record of an unlawful arrest or conviction, or to correcting a clerical error."). These circuits rely on the Supreme Court's explanation of ancillary jurisdiction in Kokkonen as instructive on this issue.

In Kokkonen, the Supreme Court stated that ancillary jurisdiction exists under two separate, but related, premises: "(1) to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent ... and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees...." Kokkonen, 511 U.S. at 379-380. Matters of expungement fall under the second purpose, if at all. Expungement of criminal records merely on equitable grounds, however, serves none of the purposes set forth by the Kokkonen court. See Sumner, 226 F.3d at 1014. Expungement does not enable a court to successfully manage proceedings, vindicate authority or effectuate decrees. Therefore, a district court does not have ancillary jurisdiction over matters of expungement simply based on equitable grounds.

This court agrees with the analysis set forth in these circuits. Despite the circuit split, this court is comfortable that the Eleventh Circuit would follow the post- Kokkonen theory discussed above and not the theory applied by other circuits not discussed. Kokkonen effectively narrowed the scope of ancillary jurisdiction. Applying the post- Kokkonen analysis, the court does not have ancillary jurisdiction over the motion for expungement in the present case.


E.D. Missouri Notes Intra-Circuit Split Re Procedure for Review of Claims for Plain Error

Per Thomas v. Dwyer , Slip Copy, 2007 WL 2137807 (E.D. Mo. Jul 23 , 2007) (NO. 4:04CV46 DJS):

As an initial matter, the undersigned notes that the Missouri Court of Appeals reviewed the instant claim for plain error inasmuch as petitioner failed to preserve the specific claim for appellate review. In Hornbuckle v. Groose, 106 F.3d 253, 257 (8th Cir.1997), the Eighth Circuit recognized that a decisional split within the circuit allows the Court to choose whether to review for plain error a claim reviewed by the state court only for plain error or whether to determine such limited state court review not to cure an otherwise procedurally defaulted claim. In Burns v. Gammon, 173 F.3d 1089 (8th Cir.1999), the Eighth Circuit suggested that, in such circumstances, the federal habeas court undertake the same review as the state court in determining a petitioner's claim:

We think we should do what the state court did: give the point plain-error review. In this way, we are not encroaching at all on the authority of the state courts; we are fully respecting their procedural rule; and we are giving the argument the same degree of attention that the state courts gave it.


N.D. Iowa Notes Split Re Requisite Level of Intent Necessary to Support a Conviction Under Federal Maintaining Drug-Involved Premises Statute

Per U.S. v. Gilbert, --- F.Supp.2d ----, 2007 WL 2137811 (N.D.Iowa Jul 24, 2007) (NO. 06 CR 106 1 LRR):

The specific purpose of manufacturing, distributing or using any controlled substances does not have to be Defendant's sole purpose in operating or maintaining the House. United States v. Roberts, 913 F.2d 211, 220 (5th Cir.1990); see also Verner, 53 F.3d at 296 (following Roberts). The plain language of § 856(a)(1) does not warrant such a construction, which "would eviscerate the statute." Roberts, 913 F.2d at 220. Although it is unclear whether the specific purpose of manufacturing, distributing or using any controlled substance needs to be a defendant's primary or principal purpose in operating or maintaining the place in question, FN9 such specific purpose clearly must be something more than a purpose incidental thereto. United States v. Lancaster, 968 F.2d 1250, 1254 (D.C.Cir.1992).

FN9. It appears the circuit courts of appeal are split on the requisite level of intent necessary to support a conviction under § 856(a)(1). Compare Verners, 53 F.3d at 296 ("We think it is fair to say, at least in the residential context, that the manufacture (or distribution or use) of drugs must be at least one of the primary or principal uses to which the house is put."), with United States v. Soto-Silva, 129 F.3d 340, 346 n. 4 (5th Cir.1997) ("[ Section] 856(a)(1) does not require that drug distribution be the primary purpose, but only a significant purpose." (Emphasis in original.)).


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.

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