 06-1362-cv
 ABC v. DEF .



 1                          UNITED STATES COURT OF APPEALS
 2
 3                              FOR THE SECOND CIRCUIT
 4
 5                                August Term, 2006
 6
 7
 8       (Argued: April 23, 2007            Decided: September 5, 2007)
 9
10                              Docket No. 06-1362-cv
11
12     - - - - - - - - - - - - - - - - - - - -x
13
14     ABC,
15
16                         Plaintiff-Appellant,
17
18                  -v.-
19
20     DEF,
21
22                         Defendant-Appellee.
23
24     - - - - - - - - - - - - - - - - - - - -x
25

26              Before:        JACOBS, Chief Judge, LEVAL and POOLER,
27                             Circuit Judges.
28
29              Appeal from the judgment of the United States District

30     Court for the Southern District of New York (Daniels, J.),

31     dismissing ABC’s complaint for lack of subject matter

32     jurisdiction under the Federal Tort Claims Act, 28 U.S.C. §§

33     1346(b), 1402(b), 2401(b), & 2671-2680.

34              Vacated in part and remanded.

35

36                                      ABC, pro se.
 1                                 PETER HALPIN, JUSTIN
 2                                 KOLBENSCHLAG, ERICA LAPLANTE
 3                                 (Jonathan H. Romberg, on the
 4                                 brief), for Seton Hall
 5                                 University School of Law Center
 6                                 for Social Justice, Newark, NJ,
 7                                 as amicus curiae in support of
 8                                 Appellant.*
 9
10                                 KRISTIN L. VASSALLO, Assistant
11                                 United States Attorney
12                                 (Elisabeth Wolstein, Assistant
13                                 United States Attorney, on the
14                                 brief), for Michael J. Garcia,
15                                 United States Attorney for the
16                                 Southern District of New York,
17                                 New York, NY, for Appellee.
18
19
20   DENNIS JACOBS, Chief Judge:
21
22       A federal prison inmate pro se appeals from the

23   judgment of the United States District Court for the

24   Southern District of New York (Daniels, J.), dismissing his

25   claim against the United States based on the allegation that

26   a prison officer negligently detained and lost his property

27   during his transfer from one cell to another.    The Federal

28   Tort Claims Act (“FTCA”) waives the sovereign immunity of

29   the United States for certain civil actions, with various



          *
1           The Seton Hall University School of Law Center for
2    Social Justice (“CSJ”) served as counsel for appellant Jack
3    Lewis in Lewis v. United States, No. 05-2366, which was to
4    be heard in tandem with this case. When Lewis was dismissed
5    by stipulation prior to oral argument, CSJ successfully
6    moved to participate in this appeal as amicus curiae.
                                    2
 1   exceptions, and vests jurisdiction in the district courts.

 2   28 U.S.C. §§ 1346(b), 2680(a)-(n).   The district court

 3   dismissed the claim on the ground that § 2680(c), one of the

 4   exceptions to the FTCA’s waiver, bars jurisdiction for

 5   claims involving the detention of goods “by any officer of

 6   customs or excise or any other law enforcement officer.”

 7   The court ruled that a prison officer is such an “other law

 8   enforcement officer.”   We conclude that the phrase “any

 9   other law enforcement officer,” as used in § 2680(c),

10   references only law enforcement officers who are functioning

11   in a capacity akin to that of a customs or excise officer.

12   Since plaintiff’s claim is not barred by § 2680(c), we

13   vacate the judgment in relevant part and remand for further

14   proceedings consistent with this opinion.

15

16                                 I

17       Plaintiff-appellant ABC is a federal prisoner whose

18   name is concealed in this opinion and in the caption; the

19   district court proceedings are largely under seal (including

20   the opinion reviewed on this appeal); and our statement of

21   facts (accepted as true by the district court) is spare.

22       Sometime in 2001, the government came to believe that

23   information regarding ABC’s cooperation with the authorities

                                   3
 1   might have been disclosed to other prisoners.   For his

 2   safety, ABC was transferred to a special housing unit.     He

 3   was told by a prison official that certain property in his

 4   cell and in storage would be transferred with him.   About

 5   six weeks after the transfer, ABC surveyed his property and

 6   discovered that many items were missing.   He brought this

 7   action seeking money damages against the United States, the

 8   United States Department of Justice (“DOJ”), and the Federal

 9   Bureau of Prisons (“BOP”), alleging that the loss of his

10   property was the result of negligence by federal prison

11   officials during the transfer.1   ABC’s claims against the

12   DOJ and the BOP were dismissed because the FTCA does not

13   permit suits against federal agencies, see Mignogna v. Sair

14   Aviation, Inc., 937 F.2d 37, 40 (2d Cir. 1991); see also 28

15   U.S.C. § 2679(a), a ruling that is not contested on appeal.

16   As to ABC’s claim against the United States, the district

17   court concluded that there was no waiver of sovereign

18   immunity (and that the district court therefore lacked

19   jurisdiction) because the BOP official responsible for

20   transferring ABC’s property was an “other law enforcement



          1
1           The district court observed that ABC exhausted his
2    administrative remedies. The government does not contest
3    the issue on appeal.
                                  4
 1   officer” under § 2680(c).    This appeal followed.

 2

 3                                  II

 4          In relevant part, the FTCA vests the district courts

 5   with

 6              exclusive jurisdiction of civil actions on claims
 7              against the United States, for money damages . . .
 8              for injury or loss of property . . . caused by the
 9              negligent or wrongful act or omission of any
10              employee of the Government while acting within the
11              scope of his office or employment, under
12              circumstances where the United States, if a
13              private person, would be liable to the claimant in
14              accordance with the law of the place where the act
15              or omission occurred.
16
17   28 U.S.C. § 1346(b)(1).     This is a “broad waiver of

18   sovereign immunity,” Kosak v. United States, 465 U.S. 848,

19   852 (1984); but it is subject to numerous exceptions, see 28

20   U.S.C. § 2680(a)-(n).     Relevant here, § 2680(c) excepts

21   claims regarding the detention of property “by any officer

22   of customs or excise or any other law enforcement officer.”

23          The government contends that “any other law enforcement

24   officer” should be read broadly to encompass any law

25   enforcement officer who has detained any property in any law

26   enforcement context.    ABC contends that the phrase should be

27   read more narrowly, in light of the surrounding text, to

28   reference only law enforcement officers who are acting in a


                                     5
 1   customs or excise capacity.2

 2       Our sister circuits are split on this issue.   Compare

 3   Bramwell v. U.S. Bureau of Prisons, 348 F.3d 804 (9th Cir.

 4   2003) (adopting the broad reading of the exception advanced

 5   by the government); Chapa v. U.S. Dep’t of Justice, 339 F.3d

 6   388 (5th Cir. 2003) (per curiam) (same); Hatten v. White,

 7   275 F.3d 1208 (10th Cir. 2002) (same); Cheney v. United

 8   States, 972 F.2d 247 (8th Cir. 1992) (per curiam) (same);

 9   Schlaebitz v. U.S. Dep’t of Justice, 924 F.2d 193 (11th Cir.

10   1991) (per curiam) (same); Ysasi v. Rivkind, 856 F.2d 1520

11   (Fed. Cir. 1988) (same), with Andrews v. United States, 441

12   F.3d 220 (4th Cir. 2006) (adopting the narrow reading of the

13   exception advanced by ABC); Ortloff v. United States, 335



          2
 1          Because we conclude that § 2680(c) relates only to
 2   law enforcement officers acting in a customs or excise
 3   capacity, we need not decide whether federal prison
 4   employees generally, or the particular federal prison
 5   employee allegedly responsible for the loss of ABC’s
 6   property, are “law enforcement” officers for the purpose of
 7   § 2680(c). But cf. Bramwell v. U.S. Bureau of Prisons, 348
 8   F.3d 804 (9th Cir. 2003) (holding that prison officers are
 9   law enforcement officers under § 2680(c)); Chapa v. U.S.
10   Dep’t of Justice, 339 F.3d 388 (5th Cir. 2003) (per curiam)
11   (same); Hatten v. White, 275 F.3d 1208 (10th Cir. 2002)
12   (same); see also 18 U.S.C. § 3050 (authorizing BOP officers
13   and employees to make arrests in certain circumstances and
14   to carry firearms). A prison employee detaining a
15   prisoner’s property in connection with a transfer is not
16   acting in a customs or excise capacity, so § 2680(c) does
17   not apply.
                                    6
 1   F.3d 652 (7th Cir. 2003) (same); Bazuaye v. United States,

 2   83 F.3d 482 (D.C. Cir. 1996) (same); Kurinsky v. United

 3   States, 33 F.3d 594 (6th Cir. 1994) (same).   The Supreme

 4   Court has granted a writ of certiorari to decide the

 5   question.   Ali v. Fed. Bureau of Prisons, 127 S. Ct. 2875

 6   (2007).

 7       The issue first arose in this Circuit in Formula One

 8   Motors, Ltd. v. United States, in which agents of the Drug

 9   Enforcement Administration (“DEA”) had seized a car being

10   shipped to the United States from Italy, searched it for

11   illegal drugs, and allegedly damaged the car in the process.

12   777 F.2d 822, 822-23 (2d Cir. 1985).   In discussing whether

13   the FTCA permitted suit against the United States, we

14   observed that § 2680(c) “might suggest a more narrow

15   reading” of the exception than the one advanced (then as

16   now) by the government; but we did not so hold because we

17   concluded that the DEA agents were performing a function

18   “sufficiently akin to the functions carried out by Customs

19   officials”; accordingly, we held that “the agents’ conduct

20   [was] within the scope of section 2680(c).”   Id. at 823-24.

21       We now join a sound minority of the courts of appeals,

22   and conclude that the phrase “other law enforcement officer”

23   in § 2680(c) references only law enforcement officers whose

                                   7
 1   function or authority are related to customs or excise

 2   functions.3   See id. at 822-24 (holding that § 2680(c)

 3   applied to the detention of “an automobile still in transit

 4   from overseas” because the detention was “sufficiently akin

 5   to the functions carried out by Customs officials”).4

 6

 7                                III

 8       “The starting point of our analysis of these competing

 9   interpretations must, of course, be the language of §



          3
 1          The courts of appeals that have adopted a similar
 2   view of § 2680(c) have limited the phrase “other law
 3   enforcement officer” in various ways. The District of
 4   Columbia Circuit has held that § 2680(c) applies only if the
 5   officer was “acting under the authority of the tax or
 6   customs laws such that he would be eligible for
 7   indemnification under 28 U.S.C. § 2006.” Bazuaye, 83 F.3d
 8   at 486. Other circuits have declined to look to the
 9   officer’s statutory authority, and have instead required
10   only a relationship between the detention at issue and
11   customs or excise functions. See Andrews, 441 F.3d at 227
12   (“limited to those officers acting in a tax or customs
13   capacity”); Ortloff, 335 F.3d at 658 (“applies only to law
14   enforcement officers performing functions related to customs
15   and excise duties”); Kurinsky, 33 F.3d at 598 (“limited to
16   the detention of goods by law enforcement officers acting in
17   a tax or customs capacity”). We need not choose among these
18   various approaches, because in this case, regardless of
19   which test is employed, the prison employees involved would
20   not come within the exception.
          4
16          This conclusion is more categorical than the wording
17   used by this Circuit in Formula One, and as such, is closer
18   to the view expressed by Judge Oakes in his concurring
19   opinion in that case.
                                   8
 1   2680(c).”     Kosak v. United States, 465 U.S. 848, 853 (1984).

 2   W e look first to the plain and commonsense meaning of the

 3   statute.    United States v. Dauray, 215 F.3d 257, 260 (2d

 4   Cir. 2000).

 5       Without context, the phrase “any other law enforcement

 6   officer” would mean (as the government argues) anyone who is

 7   a law enforcement officer.     But statutes are not construed

 8   in isolation; “the meaning of statutory language, plain or

 9   not, depends on context.”     King v. St. Vincent’s Hosp., 502

10   U.S. 215, 221 (1991).     Section 2680(c)’s exception to the

11   FTCA’s waiver of immunity is expressed in two phrases (as

12   marked):

13               Any claim arising in respect of [1] the assessment
14               or collection or any tax or customs duty, or [2]
15               the detention of any goods, merchandise, or other
16               property by any officer of customs or excise or
17               any other law enforcement officer . . . .
18
19   The first phrase relates only to the customs and excise

20   functions of government.     The second phrase, which concerns

21   the detention of property by “any other law enforcement

22   officer,” is similarly confined by context to customs and

23   excise.

24       If “any other law enforcement officer” were read to

25   mean any law enforcement officer doing anything, then the

26   immediately preceding language regarding “any officer of

                                     9
 1   customs or excise” would be superfluous.   But, as a general

 2   proposition of statutory interpretation, we are counseled

 3   “‘to give effect, if possible, to every clause and word of a

 4   statute,’ and to render none superfluous.”   Collazos v.

 5   United States, 368 F.3d 190, 199 (2d Cir. 2004) (quoting

 6   Duncan v. Walker, 533 U.S. 167, 174 (2001)); see also Tablie

 7   v. Gonzales, 471 F.3d 60, 64 (2d Cir. 2006) (concluding that

 8   a proffered construction’s reduction of statutory language

 9   to surplusage was “fatal”).

10       The government contends that ABC’s reading does

11   violence to the statutory language by replacing what

12   Congress actually said (“any other law enforcement officer”)

13   with something Congress did not (“any other law enforcement

14   officer acting in a customs or excise capacity”).    But

15   statutes are drawn to be to be read in context.     When a

16   general term such as “any other law enforcement officer”

17   follows the enumeration of specific types of law enforcement

18   officers, the general term is often “understood as a

19   reference to subjects akin to the one[s] with specific

20   enumeration.”   Norfolk & W. Ry. Co. v. Am. Train

21   Dispatchers’ Ass’n, 499 U.S. 117, 129 (1991).     To the extent

22   the phrase “any law enforcement officer” is ambiguous, “the

23   meaning of doubtful terms or phrases may be determined by

                                   10
 1   reference to their relationship with other associated words

 2   or phrases.”   Dauray, 215 F.3d at 262.   As the District of

 3   Columbia Circuit explained in interpreting § 2680(c): “if a

 4   statute lists ‘fishing rods, nets, hooks, bobbers, sinkers

 5   and other equipment,’ ‘other equipment’ might mean plastic

 6   worms and fishing line, but not snow shovels or baseball

 7   bats.”   Bazuaye v. United States, 83 F.3d 482, 484 (D.C.

 8   Cir. 1996) (citation omitted).5

 9

10                                IV

11       In 2000, the FTCA was amended by the Civil Asset

12   Forfeiture Reform Act of 2000 (“CAFRA”), Pub. L. 106-185,

13   114 Stat. 202 (2000).   The government contends that the

14   CAFRA amendments compel a broad reading of the phrase “any

15   other law enforcement officer,” relying on the principle

16   that “[a] statute should be construed to be consistent with

17   subsequent statutory amendments,” Dauray, 215 F.3d at 263.

18       CAFRA effected three amendments to § 2680(c), two of




          5
            Our reading is also consistent with the history
     behind the adoption of the FTCA in 1946, as other courts
     adopting the minority position have recognized. See, e.g.,
     Bazuaye, 83 F.3d at 485-86.
                                   11
1    which are arguably relevant:6    [i] changing the phrase “the

2    detention of any goods or merchandise” to “the detention of

 3   any goods, merchandise, or other property,” see CAFRA §

 4   3(a)(1), 114 Stat. at 211; and [ii] inserting the following

 5   text at the conclusion of the subsection:

 6               , except that the provisions of this chapter and
 7               section 1346(b) of this title apply to any claim
 8               based on injury or loss of goods, merchandise, or
 9               other property, while in the possession of any
10               officer of customs or excise or any other law
11               enforcement officer, if--
12
13                   (1) the property was seized for the purpose of
14                   forfeiture under any provision of Federal law
15                   providing for the forfeiture of property other
16                   than as a sentence imposed upon conviction of
17                   a criminal offense;
18
19                   (2) the interest of the claimant was not
20                   forfeited;
21
22                   (3) the interest of the claimant was not
23                   remitted or mitigated (if the property was
24                   subject to forfeiture); and
25
26                   (4) the claimant was not convicted of a crime
27                   for which the interest of the claimant in the
28                   property was subject to forfeiture under a
29                   Federal criminal forfeiture law.
30
31   Id. § 3(a)(3), 114 Stat. at 211 (internal quotation marks

32   omitted).



          6
1           The third amendment, which is   not relevant to this
2    appeal, reflects Congress’s evolving   approach to the use of
3    hyphens: “striking ‘law-enforcement’   and inserting ‘law
4    enforcement.’” CAFRA § 3(a)(2), 114    Stat. at 211.
                                     12
 1       As to the first CAFRA amendment, the government argues

 2   that the additional phrase (“or other property”) “only

 3   make[s] sense if the statute is read to apply to all law

 4   enforcement officers, not merely those engaged in customs or

 5   excise duties.”   But our reading of § 2680(c) is entirely

 6   compatible with its application where “other property” is

 7   detained by an officer acting in a customs or excise

 8   capacity.   Cf. Cheney v. United States, 972 F.2d 247, 249

 9   (8th Cir. 1992) (Gibson, J., dissenting) (concluding that

10   plaintiff’s sports car was not “‘goods or merchandise’

11   within the meaning of 28 U.S.C. § 2680(c)”).

12       The second (longer) CAFRA amendment creates “an

13   exclusion to the [§ 2680(c)] exception which re-waives the

14   government’s immunity for certain seizures of property made

15   in connection with asset-forfeiture laws.”     Dahler v. United

16   States, 473 F.3d 769, 771 (7th Cir. 2007) (per curiam).

17   Thus CAFRA amended § 2680(c) to allow claims based on loss

18   or damage to property that “was seized for the purpose of

19   forfeiture under any provision of Federal law providing for

20   the forfeiture of property other than as a sentence imposed

21   upon conviction of a criminal offense.”   CAFRA § 3(a)(3),

22   114 Stat. at 211 (emphasis added).   The government relies on

23   the phrase “forfeiture under any provision of Federal law,”

                                   13
1    arguing that it is broader than provisions relating only to

2    customs or excise, and that it reflects Congress’s

3    understanding that § 2680(c) applies to the detention of

4    property by officers other than those acting in a customs or

5    excise capacity.

6        The government has a reasonable (although not

7    necessarily conclusive) argument that this was Congress’s

 8   view in 1999.   The Report of the House Judiciary Committee

 9   on CAFRA expressed the view that under the pre-CAFRA version

10   of § 2680(c) the “federal government is exempted from

11   liability under the [FTCA] for damage to property while

12   detained by law enforcement officers.”   H.R. Rep. No. 106-

13   192, at IV(5) (1999), available at 1999 WL 406892, at *18

14   (emphasis added).   That was, for the most part, an accurate

15   reflection of the general view of the courts: in 1999, four

16   out of five courts of appeals to address the question had

17   adopted a broad reading of § 2680(c).7   But the

18   understanding of Congress in 1999, assuming that was its



          7
1           Compare Cheney, 972 F.2d 247; Schlaebitz v. U.S.
2    Dep’t of Justice, 924 F.2d 193 (11th Cir. 1991) (per
3    curiam); Ysasi v. Rivkind, 856 F.2d 1520 (Fed. Cir. 1988);
4    United States v. 2,116 Boxes of Boned Beef, Weighing
5    Approximately 154,121 Pounds, 726 F.2d 1481 (10th Cir.
6    1984), with Kurinsky v. United States, 33 F.3d 594 (6th Cir.
7    1994).
                                   14
 1   understanding,8 does not control the interpretation of a law

 2   passed fifty years before.   “[S]ubsequent legislative

 3   history provide[s] an extremely hazardous basis for

 4   inferring the meaning of a congressional enactment,”

 5   Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S.

 6   102, 118 n.13 (1980); and the understanding of a future

 7   Congress “will rarely override a reasonable interpretation

 8   of a statute that can be gleaned from its language,” id.

 9       The relevant question is not how § 2680(c) was read by

10   the Congress that passed CAFRA.    What matters is whether our

11   reading of § 2680(c) is consistent with the CAFRA

12   amendments.   See Dauray, 215 F.3d at 263.   It is.

13       The CAFRA exclusion from § 2680(c), re-waiving

14   immunity, applies “for the purpose of forfeiture under any

15   provision of Federal law.”   28 U.S.C. § 2680(c)(1).     As the

16   government emphasizes, this category is broader than the

17   customs or excise laws.   But inconsistency with our reading

18   of the statute arises only if one makes the invalid

19   assumption that officers acting in a customs or excise

20   capacity can effect forfeitures only under the customs or


          8
            In the House Judiciary Committee Report, Congress
     appeared to be concerned primarily about boats and other
     conveyances, which are often detained by customs and excise
     officials in service of enforcing the nation’s drug laws.
                                   15
 1   excise laws.

 2       One example close at hand is Formula One Motors Ltd. v.

 3   United States, in which DEA agents seized a car, searched it

 4   for illegal drugs, and allegedly damaged the car in the

 5   process.     777 F.2d 822, 822-23 (2d Cir. 1985).   We concluded

 6   that § 2680(c) barred a claim against the United States

 7   because the agents were acting in a customs capacity.      Id.

 8   at 823-24.    But if (hypothetically) DEA agents found illegal

 9   drugs in a car traveling within the confines of the United

10   States, then the car would be subject to forfeiture, see 21

11   U.S.C. § 881(a) (subjecting to forfeiture containers for

12   illegal drugs, vehicles used to transport illegal drugs, and

13   other property), and if the car is “seized for the purpose

14   of forfeiture under” 21 U.S.C. § 881(a), then CAFRA would

15   presumably apply, despite the fact that 21 U.S.C. § 881(a)

16   is not a provision of federal law relating to customs or

17   excise.    This single instance drawn from our case law

18   sufficiently demonstrates that the CAFRA amendments are not

19   inconsistent with our reading of § 2680(c).

20

21                                   V

22       The government advances two additional arguments,

23   neither of which need detain us long.     First, the government

                                     16
 1   points to subsection (h) which--in contrast to § 2680(c)--

 2   defines “law enforcement officer” as “any officer of the

 3   United States who is empowered by law to execute searches,

 4   to seize evidence, or to make arrests for violations of

 5   Federal law.”   28 U.S.C. § 2680(h).   Under this definition,

 6   federal prison officers are “law enforcement officers.”       See

 7   18 U.S.C. § 3050.    But the definition of “law enforcement

 8   officer” in subsection (h) is expressly limited to

 9   subsection (h) and does not apply to § 2680 generally.        See

10   28 U.S.C. § 2680(h) (“For the purpose of this subsection,

11   ‘investigative or law enforcement officer’ means . . . .”

12   (emphasis added)).     If subsection (h) has any bearing on

13   this appeal, it provides an example of what § 2680(c) could

14   have said had Congress wanted to broaden the category of law

15   enforcement officers, or what Congress could say if it

16   wished to do so now.    And even if the definition in

17   subsection (h) applied explicitly to subsection (c), that

18   would not necessarily aid the government, because there is

19   no indication that the BOP employees who allegedly lost

20   ABC’s property were of the sort who are “empowered by law to

21   execute searches, to seize evidence, or to make arrests for

22   violations of Federal law.”


                                     17
1        Second, the government contends that because the

2    question is one of sovereign immunity, we should not

3    construe § 2680(c) to effect a broad waiver of immunity

4    unless it does so clearly and unequivocally.    See Lane v.

5    Pena, 518 U.S. 187, 192 (1996).   Such a preferential reading

6    is not called for because § 2680(c) is not a waiver of

7    immunity, but rather an exception to a waiver of immunity:

8    “[T]he proper objective of a court attempting to construe

9    one of the subsections of 28 U.S.C. § 2680 is to identify

10   those circumstances which are within the words and reason of

11   the exception--no less and no more.”    Kosak v. United

12   States, 465 U.S. 848, 853 n.9 (internal quotation marks

13   omitted).

14

15                          *     *      *

16       For the foregoing reasons, we vacate the district

17   court’s dismissal of ABC’s FTCA claim against the United

18   States, and remand for further proceedings consistent with

19   this opinion.




                                  18
