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Ali v. Federal Bureau of Prisons:
Today's decision in Ali v. Federal Bureau of Prisons is a pretty interesting statutory interpretation case. The case involves 28 U.S.C. 2680, which limits the Federal Tort Claims Act's waiver of soverign immunity in a range of situations. The statute lists 13 such situations, and one of them is the one implicated in today's case. It exempts from the waiver
[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, except that the provisions of this chapter and section 1346 (b) of this title apply to any claim based on injury or loss of goods, merchandise, or other property, while in the possession of any officer of customs or excise or any other law enforcement 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 forfeiture); 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.
  The question in the case is whether the reference to "any other law enforcement officer" is implicitly limited to other law enforcement officers acting in the assessment or collection of a tax or customs duty, or whether it means any other law enforcement officer acting generally. Justice Thomas argues the latter; Justice Kennedy argues the former.

  Based on a quick skim, I'm not sure which side is more persuasive. On one hand, Justice Thomas is right that the statute on its face says that it applies to detention by "any law other law enforcement officer," a very broad phrase. On the other hand, Justice Kennedy is right that this would be a relatively weird way to make the point that all detentions by law enforcement officers are excluded. Based on a very quick read, it seems like a coin toss as to which side is more persuasive -- or at least a matter requiring a lot more study of the statutory scheme than a casual read would allow.

  Reading over the opinions, I'm a little surprised that the litigants and the Justices apparently thought it obvious that prison officials count as "law enforcement officers." In my experience, prison officials are not generally considered to be "law enforcement" officers, as their role is running prisons rather than enforcing the law through the investigation and prosecution of criminal activity. But maybe it's clear in the statutory scheme that prison officials are law enforcement officers -- I don't know enough about the FTCA to say.

  Finally, I thought the beginning of Justice Kennedy's dissent was a bit overdone. I don't see anything in Justice Thomas's opinion that suggests that the Court has now adopted "an analytic framework" of statutory interpretation that "become[s] binding on the federal courts." Rather, this case struck me as just a relatively common interpretive exercise trying to make sense of a rather awkwardly written statute.

Related Posts (on one page):

  1. Ali v. Federal Bureau of Prisons:
  2. Ruth "Swing Vote" Ginsburg?:
FantasiaWHT:
See, this is why the courts should just certify questions of statutory interpretation to Congress. Send over the question "Did you mean X or did you mean Y?" and let them vote on it.
1.22.2008 2:27pm
OrinKerr:
FantasiaWHT,

Wouldn't that circumvent the Constitution's design? Would you let the President exercise a veto, as he would over the original legislation?
1.22.2008 2:34pm
alias:
Send over the question "Did you mean X or did you mean Y?" and let them vote on it.

Well, in this case, most if not all of the members of the Congress that enacted the statute are dead, so it's likely to be a wash. Asking the current Congress to do something is either (a) an exercise in futility or (b) a stimulus for grandstanding and opportunism unlikely to give any consistently decent results.
1.22.2008 2:36pm
FantasiaWHT:
Well, that should be better qualified as "I wish they could," rather than "I believe they have the power." Personally, I've always thought that legislatures are better able to define what legislatures mean than courts are. Especially since legislature could simply change the statute anyway to erase anything the Court does.
1.22.2008 2:39pm
GV:
I think both Justice Kennedy and Justice Thomas make persuasive cases for why their interpretation is reasonable. Both sides can reasonably invoke cannons of statutory interpretation to support their point of view. Both Kennedy and Thomas necessarily have downplayed the other side's cannons in reaching the result they reach. So why should we pretend that this is simply a case of determining a statute's plain meaning, as the majority implies? The Court, as it often must, simply decided which result made better sense (independent of legal norms) and then covered that over with fancy sounding Latin phrases.

I think Justice Kennedy hits the nail on the head on pages 14 and 15 where he states that he suspects the majority is concerned about a flood of lawsuits -- a cannon of interpretation invoked (often silently) all the time in the habeas context. But that policy reason isn't a legal reason. It also simply begs the question before the Court: Did Congress want these kinds of lawsuit in the first place?

Finally, I wonder, was John Roberts trying to act like an umpire in this case? Could he act like an umpire in this case?
1.22.2008 2:45pm
CDU (mail) (www):
Would you let the President exercise a veto, as he would over the original legislation?
To introduce still more complications: What if the House and Senate vote different ways? What if someone in the Senate filibusters? What if a future congress wants to take another vote on the matter and vote the opposite way? What if there are three or more possible interpretations and none of them command a majority in congress? What if congress just isn't willing to take up the matter? What if members of congress have a direct interest in the case, are they required to recuse themselves?
1.22.2008 2:46pm
andy (mail) (www):
See, this is why the courts should just certify questions of statutory interpretation to Congress. Send over the question "Did you mean X or did you mean Y?" and let them vote on it.



So a Democrat-controlled congress could enact a law in one session, and then later, when the congress is republican controlled (but in which democrats still have filibuster power), the Court should certify the issue to the republican congress for an up-and-down vote?

Seems like certification is a good way to take a piss on hard-fought political victories. Even if a Congress did not have the political support to reverse a prior Congress's enactment, it would have the power to tell the Court how to interpret that prior statute.

That being said, these days many courts will just informally "certify" close questions to congressional committees/lobbyists/staffers (i.e. when faced with an ambiguity, they will just race to the legislative history to find an answer). Thus, although I think certification to Congress and the use of LH are both unconstitutional, if I were forced to make a choice I would prefer the former (and would support Fantasia's approach).
1.22.2008 2:46pm
Tareeq (www):
I've always thought that legislatures are better able to define what legislatures mean than courts are.

Perhaps, but they delegate the task every chance they get.
1.22.2008 2:49pm
jp2 (mail):
I know I'm in for a good time when a post begins, "Today's decision in Ali v. Federal Bureau of Prisons is a pretty interesting statutory interpretation case."
;-]
1.22.2008 2:54pm
FantasiaWHT:

Seems like certification is a good way to take a piss on hard-fought political victories.


Any more so than judicial review of statutory interpretation in general? It doesn't take much more than finding a handful of amicable federal judge somewhere to accomplish the exact same thing. At least we can vote out the legislators when that happens.

Honestly, since the legislature could reach the exact same result itself after the court's decision (presuming it's completely a statutory-interpretation decision with no constitutional problems), why not just give it that power to begin with?
1.22.2008 2:57pm
Dave N (mail):
As a side note, while this case is rather minor in the larger scheme of things, the constellation of votes on this case was both usual and unusual, depending on how you want to view it. On the one hand, the conservative four (Roberts, Scalia, Thomas, and Alito) voted as a bloc, which happens rather frequently. Unusually, Justice Ginsburg was alone in joining them, instead of remaining part of the liberal bloc (Stevens, Souter, Ginsburg, and Breyer).

Perhaps the somewhat strident tone of the opening of Justice Kennedy's dissent stems from the fact that he so seldom is in the minority on a 5-4 decision. In other words, he used to almost always being "right" (in the sense of being in the majority) and almost never being "wrong" (in the sense of being in the minority).
1.22.2008 2:59pm
PLR:
Finally, I wonder, was John Roberts trying to act like an umpire in this case? Could he act like an umpire in this case?

I thought the point of the umpire watch was to look at decisions over time, not individual decisions.

This should qualify for the watch. Close case, government wins.
1.22.2008 3:00pm
Sasha Volokh (mail) (www):
Interestingly, the government's brief in the case says (at 6): "Bureau of Prisons officials constitute 'law enforcement officer[s]' under any conceivable understanding of that phrase"!

Later on (at 15), it goes on (paragraph breaks added): "Although Section 2680(c) does not define the phrase 'law enforcement officer,' BOP officials 'enforce[]' the 'law' under any conceivable understanding of that phrase; in addition to administering the federal prison system, BOP officials have broad authority to make arrests. See 18 U.S.C. 3050.

"Moreover, BOP officials unambiguously qualify as 'law enforcement officers' under a variety of statutes that do expressly define that phrase (or similar ones) -- most notably, 28 U.S.C. 2680(h), the provision of the FTCA that waives the government's immunity for claims arising out of intentional torts that involve the acts or omissions of 'investigative or law enforcement officers.'

"See also 5 U.S.C. 8331(20) (civil service retirement benefits); 18 U.S.C. 3592(c)(14)(D) (aggravating factor for purposes of federal death penalty); 42 U.S.C. 3796b(6) (death benefits); see generally Chapa v. United States Dep't of Justice, 339 F.3d 388, 390 (5th Cir. 2003) (per curiam) (citing other statutes)."

But also, as I noted in the other thread related to Ginsburg's joining the majority, this is a lot like Ginsburg's concurrence in part and concurrence in the judgment in Arlington Central, where she said "we are not at liberty to rewrite the statutory text . . . to add several words Congress wisely might have included" (Ginsburg op. at 4) (internal quotation marks omitted).

Surprise, surprise -- today's majority opinion has a sentence at the end saying: "We are not at liberty to rewrite the statute to reflect a meaning we deem more desirable" (at 14). Coincidence? Something Ginsburg insisted on? Something Thomas stuck in to please Ginsburg?

On the other hand, maybe there's nothing to this observation. See Thomas's majority opinion in U.S. v. Oakland Cannabis Buyers' Co-op., 532 U.S. 483, 494 n.7 (2001): "Because federal courts interpret, rather than author, the federal criminal code, we are not at liberty to rewrite it."

Or consider O'Connor's opinion (Ginsburg joined; Thomas was in the dissent with Stevens) in Commissioner v. Lundy, 516 U.S. 235, 252 (1996): "We are bound by the language of the statute as it is written, and even if the rule Lundy advocates might 'accor[d] with good policy,' we are not at liberty 'to rewrite [the] statute because [we] might deem its effects susceptible of improvement" -- citing Badaracco v. Commissioner, 464 U.S. 386, 398 (1984) (Blackmun opinion with lone Stevens dissent), which in turn cites TVA v. Hill, 437 U.S. 153, 194-95 (1978), the famous dam &snail darter case.
1.22.2008 3:02pm
David Schwartz (mail):
See, this is why the courts should just certify questions of statutory interpretation to Congress. Send over the question "Did you mean X or did you mean Y?" and let them vote on it.


Collectives are not like individuals. They don't have intentions. It may be entirely possible that Congress can agree to enact specific wording but does not agree on what the wording means.

There have been documented cases where two groups, each supporting a law, are on record as understanding it to have a different meaning. The most recent case that comes to mind is whether the Graham-Levin amendment strips Federal courts of jurisdiction in cases where they have already assumed it or whether it only stops them from assuming jurisdiction in new cases.
1.22.2008 3:02pm
NaG (mail):
Does this mean that Justice Ginsburg might sign on to the individual-rights view of the 2nd Amendment? Hmmm.

Methinks the "or the detention of any goods, merchandise, or other property" language clearly broadens the authority to truly any law enforcement official. Civil asset forfeiture is a pretty common act by police officers, and the statutory language would clearly cover it.
1.22.2008 3:11pm
Dave N (mail):
As a related, but otherwise completely off topic note, when more than one conspirator discusses the same case, it weould be nice for at least the second conspirator to mention the related link.

In this case, my comment above better fit OK's first thread than this one. I had just read Ali, clicked to the VC, and saw OK's comments, and read this thread, not realizing that there was a related thread (by the same conspirator no less) with four unrelated threads in between them.

I realize it was my fault for not checking first, but a "Related Posts" alert would have been very helpful this morning.
1.22.2008 3:14pm
alias:
Sasha Volokh writes:

But also, as I noted in the other thread related to Ginsburg's joining the majority, this is a lot like Ginsburg's concurrence in part and concurrence in the judgment in Arlington Central, where she said "we are not at liberty to rewrite the statutory text . . . to add several words Congress wisely might have included" (Ginsburg op. at 4) (internal quotation marks omitted).

Surprise, surprise -- today's majority opinion has a sentence at the end saying: "We are not at liberty to rewrite the statute to reflect a meaning we deem more desirable" (at 14). Coincidence? Something Ginsburg insisted on? Something Thomas stuck in to please Ginsburg?


Isn't that a fairly stock phrase often used by judges in divided statutory interpretation cases? Perhaps the exact wording came from the RBG chambers, but it doesn't seem quite idiosyncratic enough to attach it to a single justice.
1.22.2008 3:18pm
Malvolio:
This really goes to the Supreme Court? Whether the phrase "any law enforcement officer" means "any law enforcement officer" or something else?

What phrase would the petitioner have found less ambiguous?
1.22.2008 3:22pm
PatHMV (mail) (www):
Prison guards are "law enforcement officers" for a great many purposes. Under most state laws of which I am aware, for example, prison guards are LEOs for purposes of first degree murder charges (killing a prison guard is the same as killing a deputy sheriff).
1.22.2008 3:27pm
Sasha Volokh (mail) (www):
alias: The general sentiment is boilerplate enough, but the precise wording ("We are not at liberty to rewrite") only appears in four Supreme Court cases, including today's case and Arlington Central, and Arlington Central has been on my mind lately because I use it as an important example in my forthcoming paper on statutory interpretation.
1.22.2008 3:31pm
OrinKerr:
Dave N writes:
As a related, but otherwise completely off topic note, when more than one conspirator discusses the same case, it weould be nice for at least the second conspirator to mention the related link.

In this case, my comment above better fit OK's first thread than this one. I had just read Ali, clicked to the VC, and saw OK's comments, and read this thread, not realizing that there was a related thread (by the same conspirator no less) with four unrelated threads in between them.

I realize it was my fault for not checking first, but a "Related Posts" alert would have been very helpful this morning.
Normally I do join the posts as soon as I post them; in this case I was rushing to get to a class and didn't get the chance until the class was over.
1.22.2008 3:58pm
OrinKerr:
Malvolio writes:
This really goes to the Supreme Court? Whether the phrase "any law enforcement officer" means "any law enforcement officer" or something else?

What phrase would the petitioner have found less ambiguous?
But the question was not whether any meant any; it was whether a statute on customs and tax liability that also mentions law enforcement officers was limited to customs and tax liability. That's a hard question, I think. If you have insights that make this an easy case, I hope you will share them so we can learn from you.
1.22.2008 4:03pm
alias:
alias: The general sentiment is boilerplate enough, but the precise wording ("We are not at liberty to rewrite") only appears in four Supreme Court cases, including today's case and Arlington Central, and Arlington Central has been on my mind lately because I use it as an important example in my forthcoming paper on statutory interpretation.

Makes sense to me. Sometimes I can tell the author of a per curiam opinion from my former boss's court based on similar things. For some reason I thought I'd seen the "We are not at liberty to rewrite" phrase more than 4 times. Thanks.
1.22.2008 4:56pm
Carolina:
The majority's analysis seems to make "any officer of customs or excise" surplus verbiage. If Congress wanted to do what the majority says they did, why not just say "Any law enforcement officer" and leave it at that.

Thomas' response (and he is my favorite justice) is quite weak: "The construction we adopt today does not
necessarily render 'any officer of customs or excise' superfluous; Congress may have simply intended to remove any
doubt that officers of customs or excise were included in
'law enforcement officers.'"

The dissent has the better position here, imho.
1.22.2008 7:02pm
Mark Eckenwiler:
Orin writes: In my experience, prison officials are not generally considered to be "law enforcement" officers

For what it's worth, most courts have held prison officials to be "investigative or law enforcement officers" for purposes of 18 USC 2510(5)(a)(ii) (creating exception to Wiretap Act). See, e.g., United States v. Lewis, 406 F.3d 11, 16 (1st Cir. 2005) ("It is well-settled that federal corrections officers are 'investigative or law enforcement officers' under Title III") and cases cited therein.
1.22.2008 7:03pm
OrinKerr:
Like Mark Eckenwiler knows anything about the Wiretap Act.
1.22.2008 7:54pm
Bill Poser (mail) (www):
18 U.S.C. 3050 empowers correctional officers to make arrests for certain offenses in certain places. This is arguably a law enforcement function.
1.22.2008 10:43pm
SeaDrive:
Does this mean that a LEO can steal the property of an inmate with impunity?
1.23.2008 9:29am
wfjag:

SeaDrive:
Does this mean that a LEO can steal the property of an inmate with impunity?


No. Under the Federal Tort Claims Act, an "employee of the government" (defined by 28 USC 2671) who is "within scope of employment" (defined by the applicable state's doctrine of respondeat superior) is personally immune from tort damages under 28 USC 2679. Theft is outside scope of employment, meaning that the personal immunity is lost. Further, if the tortfeasor's actions violate established constitutional standards, he/she can be held personally liable via a Bivens action. The doctrine in most of the Circuits is that if the FTCA covers the claim, then a Bivens action is barred, even if due to the exceptions to the FTCA's limited waiver of soverneign immunity in 28 USC 2680 bar FTCA recovery. However, the FTCA doesn't govern if the tortfeasor fails to meet the tests for "employee of the government" or "within scope."

The holding of Ali is somewhat hypertechnical in that it intreprets one phrase in 28 USC 2680(c) [which Section is of limited scope]. Ali's importance will be the extent that the lower courts look to it for intrepreting similar language in 2680(h), or as establishing a method of statutory intrepretation of the FTCA, and whether the limitations on the waiver of sovereign immunity in 2680 should be intrepreted narrowly or broadly, or literally or using some sort of inductive or deductive reasoning. Supreme Court jurisprudence on how to intrepret 2680's provisions is pretty much all over the place, since you can find language to support your argument and refute opposing arguments, as can the opposing party. At first glance, however, Ali doesn't appear to improve this situation.
1.23.2008 10:11am
DiverDan (mail):
Granted that this is a fascinating legal issue, but was anyone else here rather astounded that this case made it to the Supreme Court on a fight over $177 worth of property? Just wondering how many taxpayer dollars were spent defending government immunity in this case. I'm also rather astounded that this was a close case, when the central issue was what the words "any other law enforcement officer" in a statute means.
1.23.2008 11:18am
Q the Enchanter (mail) (www):
I'd hate to have the majority construe this TSA notice:

"We encourage everyone to pack gel-filled bras in their checked baggage."
1.23.2008 11:38am
Tony Tutins (mail):
How about this:"We encourage everyone to pack her gel-filled bras in their checked baggage." Or replace "her" with the more colloquial "their".
1.23.2008 12:32pm
Sasha Volokh (mail) (www):
Or from the London underground: "Dogs must be carried on escalator."
1.23.2008 1:08pm
SeaDrive:
Gel-filled bras should not be carried (or worn!!?) aboard the aircraft.
1.23.2008 1:27pm
Q the Enchanter (mail) (www):
"How about this: 'We encourage everyone to pack her gel-filled bras in their checked baggage.'"

Well, then I sure hope she brought enough gel-filled bras for everyone.
1.23.2008 7:28pm