Dahler, David S. v. United States ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 05-4782
DAVID S. DAHLER,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA
and FEDERAL BUREAU OF PRISONS,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin
No. 05-C-0463-S—John C. Shabaz, Judge.
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SUBMITTED DECEMBER 15, 2006—DECIDED JANUARY 12, 2007
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Before BAUER, MANION, and WILLIAMS, Circuit Judges.
PER CURIAM. David Dahler, a prisoner at the Federal
Correctional Institution in Oxford, Wisconsin, claims
that Bureau of Prisons officials lost several pieces of his
property after detaining the items in a “shakedown.” He
sued the government under the Federal Tort Claims Act,
28 U.S.C. § 1346(b), to recover the value of those items. The
district court concluded that the government was im-
mune from his suit. We reverse.
At issue in this appeal is whether the government is
immune from a tort suit arising out of the detention and
2 No. 05-4782
inadvertent destruction of a prisoner’s property by BOP
officials. According to Dahler, in February 2000 two
pairs of tennis shoes, three t-shirts, and one sweatshirt
were taken from his cell during a “shakedown” of the
prison. He sought to have these items returned, but the
prison could find no record of his property. He subse-
quently filed an administrative tort claim, which the
BOP denied in June 2005. That same month, Dahler filed
his complaint, under the FTCA, in district court.
Having found the government immune from Dahler’s
suit, the district court dismissed his complaint for lack of
subject matter jurisdiction. The court acknowledged our
holding in Ortloff v. United States, 335 F.3d 652 (7th Cir.
2003), that the government has waived its sovereign
immunity under the FTCA with regard to suits arising
from the tortious acts of BOP officials. Id. at 656-60. But
the district court went on to explain that Congress had
since enacted the Civil Asset Forfeiture Reform Act of 2000
(CAFRA), Pub L. No. 106-185, 114 Stat. 211, which among
other things amended the applicable provision of the
FTCA, 28 U.S.C. § 2680(c), that exempts the government
from tort liability for claims relating to the seizure of
property by certain law enforcement officers. The district
court concluded that the CAFRA amendments excluded
claims like Dahler’s from the FTCA’s waiver of immunity.
On appeal, Dahler argues that his case is controlled by
Ortloff. We understand him to contend that the CAFRA
amendments should not affect our prior interpretation
of § 2680(c).
The United States government may be sued only
where Congress has waived its sovereign immunity.
LaBonte v. United States, 233 F.3d 1049, 1051 (7th Cir. 2000).
The FTCA waives the government’s immunity, making
No. 05-4782 3
the government liable to the same extent as a private
party, “for injury or loss of property, or personal injury or
death caused by 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).
But this general waiver of immunity is subject to sev-
eral exceptions, only one of which—28 U.S.C. § 2680(c)—
is relevant here. Section 2680(c) provides that the govern-
ment’s waiver of immunity “shall not apply 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.” 28 U.S.C.
§ 2680(c) (2000) (amended language in italics).
In Ortloff—where we construed the version of § 2680(c)
that existed before CAFRA’s amendments, see Ortloff, 335
F.3d at 657, n.2—we held that the term “any other law
enforcement officer” referred only to law enforcement
officers performing functions related to customs and excise
duties. Id. at 658. We so held for three reasons: (1) the
principles of statutory interpretation noscitur a sociis and
ejusdem generis counseled that the phrase “any other law
enforcement officer” must be read in light of § 2680(c)’s
opening reference to claims arising out of the “collection
of any tax or customs duty” and the specific class of
officers identified, namely “any officer of customs or
excise”; (2) the exceptions in § 2680 were carved out to
preclude tort suits where other remedies were already
available, which was the case for claims against officers
carrying out customs and tax laws, but not true for fed-
eral law enforcement officers acting outside the authority
of customs and tax laws; and (3) reading the exception to
include all other law enforcement officers would render
4 No. 05-4782
superfluous the “any officer of customs or excise” lan-
guage. Id. at 658-59. Since BOP officials do not perform
“functions related to customs and excise duties”, we
concluded that the government could be held liable
under the FTCA for the acts of BOP officials. Id. at 661.
The government argues that the CAFRA amendments
compel a finding that Congress intended “any other law
enforcement officer” to be construed broadly to include
BOP officials. The government explains that CAFRA
added to § 2680(c) an exclusion to the exception which re-
waives the government’s immunity for certain seizures of
property made in connection with asset-forfeiture laws.
This exclusion provides that the government’s immunity
is waived for:
any claim based on injury or loss of goods, merchan-
dise, or other property, while in the possession of any
officer of customs or excise or any other law enforce-
ment officer, if—
(1) the property was seized for the purpose of
forfeiture under any provision of Federal law
providing for the forfeiture of property other
than as a sentence imposed upon conviction of a
criminal offense;
(2) the interest of the claimant was not forfeited;
(3) the interest of the claimant was not remitted
or mitigated (if the property was subject to forfei-
ture); and
(4) the claimant was not convicted of a crime for
which the interest of the claimant in the property
was subject to forfeiture under a Federal criminal
forfeiture law.
Id.
No. 05-4782 5
According to the government, this exclusion to the
exception reflected Congress’s acknowledgment that prior
to the CAFRA amendments, officers who had been in-
volved in asset forfeitures, but not necessarily involved
in taxation or customs, were immune under § 2680(c).
Based on our review of § 2680(c)’s text, the relevant
caselaw, and the legislative history of CAFRA, we con-
clude that the new language in § 2680(c) does not affect
the meaning of the phrase “any law enforcement officer.”
According to its plain language, the exclusion to the ex-
ception created by CAFRA merely ensures that § 2680(c)
does not foreclose claims related to property that has
been seized for forfeiture in the enumerated circum-
stances. The text of CAFRA says nothing about the type
of activities in which law enforcement officers must be
engaged in order for § 2680(c) to initially apply and thus
immunize the government from suit. In that vein, the
Fourth Circuit, in Andrews v. United States, 441 F.3d 220 (4th
Cir. 2006), recently found CAFRA unhelpful in interpret-
ing § 2680(c) and eventually held, as we did in Ortloff,
that the FTCA waives the government’s sovereign immu-
nity from suits involving the detention of a prisoner’s
property by BOP officials. See id. at 226-27. And tellingly,
two of our sister circuits did not even cite, let alone dis-
cuss, CAFRA’s exclusion from the exception when deter-
mining whether the term “law enforcement officer” in post-
CAFRA § 2680(c) includes BOP officials. See Bramwell v.
United States Bureau of Prisons, 348 F.3d 804, 806-07 (9th Cir.
2003); Chapa v. United States Dept. of Justice, et al., 339 F.3d
388, 389-90 (5th Cir. 2003). Indeed, Congress intended the
amendment to apply only to forfeitures—not to every
detention—of property. See CAFRA § 21, 114 Stat. at 225
(codified at 8 U.S.C. § 1324 note) (”. . . the amendments
6 No. 05-4782
made by [CAFRA] shall apply to any forfeiture pro-
ceeding . . .”) (emphasis added); H.R. Rep. No. 106-192,
at 18 (1999) (“The bill amends the [FTCA] to allow for
claims against the United States based on the destruction,
injury, or loss of goods, merchandise, or other property . . .
if the property has been seized for the purpose of forfeiture.”)
(emphasis added).
Having found nothing in the CAFRA amendments to
compel otherwise, we reaffirm our holding that the term
“any other law enforcement officer” in § 2680(c) applies
only to those officers performing customs or excise re-
lated functions. See Ortloff, 335 F.3d at 658. Section 2680(c)
therefore does not divest the district court of jurisdic-
tion over Dahler’s complaint. Accordingly, we reverse
the district court’s order dismissing Dahler’s complaint
for lack of subject matter jurisdiction and remand for
proceedings consistent with this opinion.
REVERSED and REMANDED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-12-07