Ali v. Federal Board of Prisons-- scope of the FTCA

This case has to do with a prisoner's missing personal property and whether he may sue the prison officers who allegedly mislaid his propery (as well as the federal government). You may think to yourself, "Of course a person can sue someone who takes or mislays his personal property." But this isn't always the case, especially if the defendant works for the federal (or a state) government. To understand why that is so, and how Ali's case arose, read on.

A Few Relevant Facts

The case arose because Ali, a federal prisoner, was being transferred from a GA to a KY prison. He put his bags in two locked duffel bags, delivered them to the GA Receiving and Discharge Unit, and then was transferred to KY. When he opened his goods in KY, he found that several items, almong which were two Qu'rans and a prayer shawl, were missing. Ali brought an administrative tort claim with the Bureau of Prison's ("BOP") SE Regional Office Director at the end of 2003, but his claim was denied in August 2004. Having exhausted his administrative appeals on the issue, Ali proceeded to sue in federal court alleging that the BOP and several of its officers were responsible, under the Federal Tort Claims Act ("FTCA") of 1946, for the loss of his property.

Unexpectedly, for Ali, the federal district court dismissed his suit, claiming that the defendants were immune from suit because of the doctrine of "sovereign immunity." This decision was upheld by the 11th Circuit Court of Appeals. So, what is the issue of sovereign immunity and how does it apply in this case?

Sovereign Immunity and the FTCA

At its most basic, the FTCA, 28 USC secs. 1346, 2671-2680, waives sovereign immunity of the US with respect to certain tort suits. What this means is that this law, passed by Congress, allows private parties to sue the federal government for some torts allegedly committed by federal employees while they were in the line of duty. We can only understand the importance of this law if we realize that the US is a "common law" jurisdiction, which means that our laws are ultimately derived from medieval England. In England the king couldn't be sued. He embodied the state, and no subject could sue the state--especially if you were singing "God Save the King." So, the American federal government took over that doctrine (called "sovereign immunity") and ran with it for a good long time. But after WWII, and long before that, in fact, a lot of folks felt that we should cut the apron strings completely from good old England and declare that under certain circumstances the US citizen who was injured by the acts of his/her government could sue that same government. That is what the FTCA is about. It waives (declines) sovereign immunity. The government is now saying, "we will allow ourselves to be sued by our citizens under certain circumstances."

What are those circumstances? Well, it is liable for injuries caused by the torts of its employees "in the same manner and to the same extent as a private individual under like circumstances." That is, if the actor who did the act wasn't the federal government and did such an act (like ran you over with a car) would you be able to sue? If you could sue a person for that act, and a government employee did a similar act, then you could sue the government.

Ok, clear enough, I hope. But the wonder of law is that it not only has clear rules at times, but these rules are often riddled with exceptions. There are 13 exceptions to this "waiver of sovereign immunity" in the FTCA. One of them is at issue here. That is, even though the government has waived immunity, it reassumes immunity or it takes back its waiver for:

"any 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 USC sec. 2680(c).

The entire question in this lawsuit is whether the prison officers who mishandled Mr. Ali's goods were "other law enforcement officer(s)" in the language of the bolded statute. If they were "other law enforcement officer(s)," then the waiver of sovereign immunity has been rescinded, and there is no liability of the government for its agents' actions. If, however, they are not "any other law enforcement officer," then the suit of Mr. Ali can proceed against the government. It is quite an important issue, and it all hangs on just a few words.

Thinking About the Issue

The issue is simply understood but hard to decide. Or, to put it differently, four circuit courts have concluded that "other law enforcement officer" refers to others like the preceding kind of officer--i.e., a customs officer or a excise officer. Six circuit courts take a broader reading of the four quoted words and say it applies to any law enforcement officer regardless of the context. Of course, this broader reading favors the government because it and any of its law enforcement officers would then be exempt from suit for torts caused by government officers. The government argues also that some revisions to the law in 2000 actually broaden the scope of it, so that a broad reading of the four quoted words is the right way to go. That is what the 11th Circuit decided againt Mr. Ali.

I can promise you one thing, that if you do a "word search" in the decision that the Supreme Court ultimately hands down, you will invariably come up with two Latin phrases--eiusdem generis and noscitur a sociis. No one ever uses Latin anymore (or rarely so), but the Court will use these phrases. Email me for payment instructions when you lose the bet to me. These two phrases suggest that interpretation of uncertain words is determined by the meaning of its neighbors. If I were on the Court I would argue for a narrow reading of the "law enforcement officer," and say that the sentence is only to be understood in the context of monetary enforcement officers. There is on the Court, however, a group of Justices who like to defend the government against all comers. That is the thing that worries me here...

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