Ali v. Federal Bureau of Prisons - Oral Argument

Argument of Jean-Claude Andre

Chief Justice Roberts: We'll hear argument next in case 06-9130 Ali versus Federal Bureau of Prisons.

Mr. Andre.

Mr. Andre: Thank you, Mr. Chief Justice, and may it please the court: The text of Section 2680(c) of the Federal Tort claims act establishes... provision underlying purpose confirm that Congress did not intend the provision to broadly bar all claims arising out of all the tensions of all property by all law enforcement officers.

As in any statutory construction case we need to of course begin with the text, and with respect to the text in this case, we believe that the statutory language is simply no different than the statutory at issue at Circuit City v. Adams.

Circuit City v. Adams this court applied a ejusdem generis to limit a sweepingly broad residual phrase that is meaningfully indistinguishable from the "any other law enforcement phrase" at issue here.

In particular, in Circuit City the court was asked what kinds of employment contracts were exempted from the mandates of the Federal Arbitration Act.

The particular provision at issue in that case 9 U.S.C. Section 1 exempted from the act's coverage any and I quote contracts of employment of sea men, railroad employees or any other class of workers engaged in foreign or interstate commerce.

That residual phrase read in isolation is broad and sweeping on its face it certainly would appear to apply not only to transportation workers, but also to retail store clerks like the Respondent in Circuit City, none the less under a ejusdem generis, this court limited that residual phrase to just to transportation workers.

Chief Justice Roberts: I suppose there is a difference between a sufficient laundry list in a residual phrase and example in a residual phrase.

In Circuit City you have a couple of examples... seamen, railroad workers... here it's just a customs or excise worker.

I regard customs and excise as kind of the same thing.

So why isn't it more like the cases where we've said you have an example in a residual phrase; the example is not limiting.

Mr. Andre: Well, first of all, Your Honor, if I could point out that if the Government had made the argument that you have to have a list, and I think under the Government's interpretation you had to have at least three items, two specific and one general.

In Norfolk... Norfolk and Western Railway, this Court says that need not be the case.

There the Court said that you could have a singular general term preceded by a singular specific term.

So it's our position that... that even if you were to read this statute as... as possessing only two items, that you could still apply ejusdem generis, but we don't read the statute that way.

We believe that the statute actually contains a list of three items, and that Congress to save itself a couple words, decided to say

"any officer of customs or excise, or any other law enforcement officer. "

instead of saying the more wordy version,

"any officer of customs, any officer of excise or any other law enforcement officer. "

I don't think we can fault Congress for its pick in that scenario.

To get back to the residual phrase, the

"any other law enforcement officer phrase. "

here, ripped from its moorings, as we believe the Government is trying to do, would certainly seem to apply to all law enforcement officers, including Bureau of Prisons officials which by statute are law enforcement officers.

But Section 2680(c) contains a number of contextual cues that Congress didn't have general law enforcement functions in mind when it passed the provision.

It had customs and tax functions in mind.

In particular, the detention clause preserves sovereign immunity for the detention of goods and merchandise by any officer of customs or excise.

Chief Justice Roberts: Well, not just goods or merchandise.

Goods, merchandise or other property.

And does other property include any type of property?

Mr. Andre: We believe it does, and we believe that when Congress added that language it was simply Congress's sensible recognition that customs and tax officers will detain or seize cash and real property which wouldn't be covered or wouldn't be subsumed under goods and merchandise.

Chief Justice Roberts: So

"goods and merchandise or other property. "

are just examples, and then a residual phrase that includes everything; but

"customs or excise or any other law enforcement officer. "

that's subject to ejusdem generis... all in the same sentence.

Mr. Andre: Well, we actually don't think... or I guess I cannot necessarily agree with the first part of what you just said, Mr. Chief Justice.

We don't believe that... that other property necessarily, or that

"goods and merchandise and other property. "

the goods and merchandise are examples of "other property".

We think in that situation, goods and merchandise refer specifically to goods and merchandise as... as explained historically in the United States Code, which are, you know, more movable things other than cash, tangible items other than cash, and "other property" then covers cash and real property.

Excuse me.

Getting back to the contextual cues in this case, in addition to the four contained in the detention clause itself, the assessment clause contains four additional contextual cues.

It preserves sovereign immunity for the assessment of any tax or the collection of any customs duty, and because we have this great quantity of contextual cues in a very short statutory provision, we believe that we would also prevail under an application of the Noscitur a sociis canon, that this Court most recently applied two terms ago in Dolan v. Postal Service.

In that case what was at issue is whether the term 2680(b) of the Federal Tort Claims Act reached all negligent transmissions, in particular a parcel left on the foot of someone's front door that causes them a fall injury, or instead, it was limited by its antecedent contextual cues, namely... I'm sorry... namely, loss and miscarriage, which would tend to indicate that Congress intended really only to preserve sovereign immunity for instances in which delivery was untimely or went to the wrong location.

The Court again sensibly looked past the superficially broad negligent transmission language and instead said no, we have to read it in context; and in context Congress did not intend us to just pluck those two words out of the dictionary and apply a dictionary meaning.

In fact, in that case, the Government implored this Court to apply dictionary definitions to negligence and transmission, and that's essentially what the Government is trying to ask this Court to do here.

Justice Scalia: Counsel, what do you do about the later... the later statute that makes an exception to the exception?

Mr. Andre: We don't believe that that changes... we don't believe that changes the meaning of the detention cause at all beyond the small change that Congress made.

Justice Scalia: I mean it clearly, the exception to the exception says that... that the exception is applicable to any claim based on injury or loss of goods or merchandise, if among other requirements, the property was seized for the purpose of forfeiture under any provision of Federal law providing for the forfeiture of property.

Now that's more than customs and tax... any provision of Federal law.

Mr. Andre: Well, Your Honor--

Justice Scalia: Why do you need that exception to the exception if the exception doesn't cover anything except customs and tax in the first place?

Mr. Andre: --Well, we believe that the fact that Congress decided to not only preserve the detention clause, but also mimic its language in the exception to the exception, means that Congress intended to kind of bring forward the... of course... original meaning as of 1946 of that clause.

But I think to get what you're asking me, the Government's position, that because the exception to the exception references any provision of forfeiture... the Government's suggestion that that somehow broadens the scope of the statute is misplaced.

Customs and tax officers regularly apply other forfeiture statutes, and in particular the one they use a lot is 21 U.S.C. 881.

That's the general civil forfeiture statute.

And so in many cases they will bring a forfeiture action under either their agency's specific forfeiture provision, or the general 21 U.S.C. 881.

And so when Congress included that language saying any provision of forfeiture, it was simply Congress's sensible recognition that they don't--

Justice Scalia: They didn't... they didn't need that if indeed it covered all seizures by... by customs and tax officers and nobody else.

If that's all it... it covered, what... you know, this doesn't achieve anything.

The purpose of under any provision of Federal law.

It seems to me that that envisions seizure under laws other than tax and customs.

Now you're saying there is one, one such law that tax and customs officers sometimes use?

Mr. Andre: --There may be more, I was giving you an example, but the one that I gave you, 21 U.S.C. 881, is the one most frequently used.

It is the general forfeiture provision.

It's kind of the backbone of all forfeitures, and so in many cases officers bring forfeiture actions not only either... either under their own agency forfeiture provision or the general.

Sometimes they bring them under both.

But the point is that's a meaty statute there, and I... I assume that Congress wanted to make clear that if a customs or tax officer were to bring a forfeiture proceeding under that meaty provision, and maybe some other ones that they would use from time to time, that the exception to the exception would still work here.

Justice Scalia: What work does it do?

What work under your interpretation does that later provision do, if property was seized for the purpose of forfeiture under any provision of Federal law providing for the forfeiture of property?

Mr. Andre: Under our interpretation, if a customs or tax officer or another law enforcement officer acting in a custom or tax capacity detains property and injures it... and it doesn't matter under which forfeiture law they detain the property--

Justice Scalia: Right.

Mr. Andre: --and the plaintiff is ultimately successful, I'm sorry, I guess... yes, the plaintiff is ultimately successful in defeating the Government's claim for forfeiture, then they can sue under the FTCA for the damage to their property.

Justice Souter: Mr. Andre, it may be that things would fall into place easier if you would give us an example or examples of instances in which any other law enforcement officer would be engaged in detaining property in... in the course of enforcing customs or excise laws.

If we can understand that, then we are going to have a better sense of how the exception might work.

Can you give me an example of the other law enforcement officer engaged in customs excise?

Mr. Andre: Sure.

The best example that comes to mind is pre-9/11 before the merger of the INS and the Border Patrol... or I'm sorry, the Customs Bureau... under the Department of Homeland Security.

When you drove across the border before 9/11 more often than not you would see a gentleman or a woman in a green jump suit.

They were INS.

But not only were they asking you questions about your immigration status and checking to see if you had ID; they were also asking about what you were bringing in... for example, oh, do you have more than two bottles of liquor?

Because you're only allowed to bring in two.

And if you said yes, they would direct you over to secondary inspection, and even there in secondary inspection certainly sometimes there may have been officers in blue suits, the customs enforcement officers.

But more often than not, they were still officers in green suits, INS officers.

And there they're taking this extra property from you because they believe you are not supposed to have it, and then sending you on your way.

There are many task forces in many other instances in which officers can overlap or share functions, postal inspectors working with the customs enforcement agencies to keep--

Justice Ginsburg: Did you say IRS officers, because they would be covered?

It's tax and customs.

Mr. Andre: --Right.

We believe IRS officers are expressly covered, but, for example, when the FBI is conducting an investigation with the IRS into fraud and other tax issues, then we believe that those FBI agents would be covered.

So we don't believe it's hard at all to find a number of examples of where other law enforcement officers are assisting tax and customs officers, standing in the shoes of tax and customs officers, or just doing something sufficiently akin to what tax and customs officers do.

And--

Justice Ginsburg: You gave an example in your brief that didn't seem to fit.

I mean you spoke of a DEA agent who was searching for narcotics, and that sounds to me like what DEA agents do.

They were not auxiliary to a customs officer.

Mr. Andre: --That's correct, Justice Ginsburg.

That's the Formula One case out of the Second Circuit.

And the reason why we relied on that case is because the DEA agents were opening up a shipping container that had not yet been opened since it came from overseas.

Justice Ginsburg: But they were doing it for their primary business, which was to detect narcotics.

Mr. Andre: That's right.

And we again reference that case because we wanted to offer the Court a broad construction or make sure the Court was comfortable in knowing that we were comfortable with the "other law enforcement officer" phrase being read broadly to reach any... you know, any loose tax or customs function.

If the Court wants to construe that phrase more narrowly, we still win this case, and we have no problem if the Court wants to do that.

But we think that, given that the residual phrase of the detention clause starts out with the word "any", the way to give... to give credence to Congress's use of that word is to then construe the phrase as reaching conduct such as the conduct in the Formula One case.

Justice Alito: Could we interpret the term "law enforcement"... "any other law enforcement officer" to be limited to those law enforcement officers whose duties generally include the detention of goods?

Mr. Andre: Well, I don't think so, Justice Alito, because we weren't really prepared to debate what exactly "detention" means.

In fact, we didn't petition on that issue, and my client didn't press it below.

But we were just intuitively thinking... I don't think the word "detention" does much work for us here, at least in--

Justice Alito: Well, why doesn't it?

It's not clear to me.

Maybe this is not within the question, but why were your client's goods detained?

"Detention" seems to connote holding the goods against the wishes of the owner, and that wasn't the situation here.

He gave those goods... he gave them to the Bureau of Prisons officer for the purpose of having them sent on to his new prison.

Mr. Andre: --I agree.

I should have been more clear.

We don't believe that the word "detention" necessarily sheds a lot of light on how you construe what "other law enforcement officer" means, but certainly, yeah, we believe that if the detention issue were alive in this case, we have a very strong case, because there's a very passive kind of bailment here, as you referenced, where our... my client was, you know, told to leave his property with a receiving/discharge clerk and go to a new institution, and the property was going to follow him along.

There was no seizure.

There was no investigation.

Justice Alito: Well, you don't think that concept sheds light on what Congress had in mind when it referred to any other Federal law enforcement officer?

Mr. Andre: I... I don't, but I don't want to resist you too much either.

You know, if the Court would like us to reach that issue, we'd be happy to brief if the Court wanted to issue an order akin to the one it issued last term in U.S. v. Resendiz-Ponce.

And I think to get more directly to what you're saying, whatever Congress intended as far as other law enforcement officers, the fact that we have a case here where, again, there is this very passive bailment by a Bureau of Prisons receiving/discharge clerk, I think exemplifies how the government's construction of the statute is too broad.

And I think that might be what you were trying to tease out of me there.

And to get back to the government's construction, we believe that their construction would render a number of words in this statute superfluous, which is sort of our third textual reason for reading the statute our way.

The detention clause contains a total of 22 words.

Under the government's construction it would simply read:

"Any detention of any property by any law enforcement officer. "

Fourteen words would be excised right out of the statute.

Chief Justice Roberts: But, I mean that's always true when you have an example and a more general phrase.

And yet our cases indicate that we often read the language that way.

In other words, it's giving you, perhaps, the most common example in which you're going to have a detention of goods, but it's not limiting it to those officers.

Mr. Andre: Well, there certainly are some cases that would appear to go both ways, although I think if you take a look at the cases cited by the government, those cases involve pretty... I realize we have an unclear, bizarre statute here as well, but those are pretty bizarre statutes the government is relying on where the Court has, and more often than not, it has also been as an alternative statement, you could even say possibly dicta, where the Court has said, oh, Congress can give examples.

But more often than not, the Court applies the ejustem generis canon and the noscitur a sociis canon to confine or limit a superficially broad residual phrase.

And if that weren't the case, then Gutierrez v. Ada would have come out the other way, Dolan v. Postal Service, of course, Circuit City.

Chief Justice Roberts: Yes, but S.D. Marine wouldn't have come out the other way.

Mr. Andre: That's true.

Chief Justice Roberts: Was that an obscure statute in S.D. Marine?

Mr. Andre: I'm sorry.

I'm not that familiar with the statute that we have in that case.

Chief Justice Roberts: Doesn't the word, as your brother argues, doesn't "any" cut against you?

If they intended the other law enforcement officer to be limited to similar to customs or excise, it seems to me they wouldn't have thrown in "any other law enforcement officer".

Mr. Andre: Well, as kind of a practical matter, we don't think that when you have a statute like this, the word "any" really does a lot of work.

I mean if you had taken out the word "any" and instead pluralized the word "officer", I don't think the statute really would work any differently.

But even taking... taking as true this Court's oft-repeated statement that DEA officers, enforcement of drug laws, but they are doing it akin to customs laws.

And again, the Court need not adopt that construction for us to prevail in this case.

But that's how we believe that our construction is faithful to the word "any" to the extent that in this statute it's relevant at all.

Justice Stevens: May I ask, following up on Justice Alito's question, has there ever been a debate in earlier stages in this litigation as to whether this was a detention?

Mr. Andre: No, there was not.

Justice Stevens: Because if it were not a detention, then you'd win.

Mr. Andre: Absolutely.

Justice Stevens: I'm just wondering why you didn't make the argument somewhere along the line.

Mr. Andre: Well, my client was pro se in the Court of Appeals, and he didn't raise it there.

And to be... again, we didn't think that the issue of whether a detention had to be a seizure, something more forceful, or whether it was so broad as to include more of a passive bailment like we have here, we didn't believe that that issue had percolated enough in the courts of appeals to warrant petitioning on.

So we figured we'd fight this fight here today.

Justice Stevens: But it is clear... there are so many exceptions from exceptions from exceptions, that you get a little mixed up, but I am clear, am I not, that if it were not a detention, you would win?

Mr. Andre: Absolutely.

Justice Stevens: Everybody agrees.

Mr. Andre: If there was not a detention or if the BOP guard was not an any other law enforcement, we would win under either two of those independent analyses.

Justice Stevens: And is it also not clear that under the government's... I guess I should ask them, but I got it right in front of me now... if you deleted the words

"officer of customs or exercise or any other. "

if you just took those words out of the statute, it would then mean exactly what the government contends it means?

Mr. Andre: That's exactly right.

And that's why we believe that the rule against superfluity is another reason why our construction is more faithful to Congress's intent in this case.

As I mentioned at the outset, we also believe that the legislative history underlying purposes for this particular provision support our reading.

In particular, I realize the legislative history is pretty sparse, but in particular, there were six congressional committee reports issued by Congress after the detention clause was expanded to essentially its current form.

And in all six of those reports, Congress conspicuously omitted to make any reference to the fact that this phrase could possibly reach the detentions of all property by all law enforcement officers.

Now, we're not suggesting that this case is at all like Arlington v. Murphy, for example, where we are going to have legislative history try to overrule a clear statutory text.

I think it's pretty clear that this text is ambiguous, and so legislative history is relevant to give that text meaning.

And so the reason why we focus here on those particular committee reports is, as the Court of Appeals has stated, the committee reports are the most helpful form of legislative history because when many members of Congress go up to vote, they haven't parsed particular provisions in the text; they rely on the committee reports, the reports prepared by the committee that marked up and presented the language to the floor.

And so, if when all those members--

Chief Justice Roberts: But the President doesn't rely on those when he signs the statute into law.

Mr. Andre: --No.

That's true, Your Honor.

But when those members typically go up to the floor and vote, they oftentimes don't parse the language.

They rely on the committee reports.

And so if the government's construction were correct here, essentially what you would have is all of those members' votes being overridden because they couldn't possibly have known... unless they took the time to parse the text and we all know that a lot of times they don't... they wouldn't possibly know that there'd be any chance whatsoever that this phrase could broadly reach the detention of property by all law enforcement officers.

Even putting that kind of legislative history argument aside, I think we're... our strongest footing, when we talk about how our construction is faithful to Congress's underlying purpose for this particular provision, on three occasions, this Court has either suggested or expressly stated that the purpose for this particular provision was to avoid the creation of a redundant federally funded remedy.

As we explain in our opening brief, there was a pre-existing federally funded remedy only for the negligent conduct of tax and customs officers.

Justice Ginsburg: Does that still exist after the Westfall Act?

Mr. Andre: Well, we believe it would if... well, actually that's a very good question.

I'm not sure.

Justice Ginsburg: Because now, the... there wouldn't be... the United States would be substituted--

Mr. Andre: Right.

Justice Ginsburg: --for the agent's abuses.

Mr. Andre: Right, but then in that situation, once the United States substituted, they could seek dismissal because the Westfall Act doesn't override any exceptions to the FTCA.

So, yes, Justice Ginsburg, in that particular case, if you're dealing with an officer of customs or tax or another law enforcement acting in that capacity, and they were sued personally for the negligent handling of property, the government could certify they're acting within the scope of their employment, step into the case, and then move to dismiss under this provision, under 2680(c).

But, historically, there was... before the Westfall Act, there was a pre-existing federally funded remedy for only officers acting in a tax or customs capacity or customs or tax officers by name.

And so it would be inconsistent with Congress's underlying purpose to avoid creating a duplicative remedy to apply its provisions so broadly because Congress wanted to provide a cause of action for claims against law enforcement officers other than those against whom a cause of action was already available.

Justice Alito: How do we know... how do we know that that's the only purpose of this exception?

Mr. Andre: Well, as I mentioned, this Court suggested in Kosak that that was the only only purpose, but then in Hatzlachh and in Gutierrez v. Martinez, this Court twice stated that that was the only purpose, and the Court did so for good reason.

Again, although the legislative history is sparse, the only statements whatsoever in the legislative record about the purpose for this particular provision was that Congress was intending to avoid creating a duplicative remedy.

Justice Alito: This is all based on Judge Holtzoff's testimony?

That's the basis for the conclusion that this is the only purpose for this exception?

Mr. Andre: And it's also based on the testimony of Colonel O.R. McGuire, who is general counsel for the Comptroller General.

And it wasn't just Judge... well, Judge Holtzoff was probably the architect of the detention clause and maybe this entire provision.

It was the Comptroller General's Office, and Judge Holtzoff who jointly were responsible for preparing tort claims legislation.

So, essentially, of the two people who were most relevant to the preparation of the FTCA, and granted we're talking 15 years before its actual enactment, but two people who were most important for preparing this tort claims legislation, they both agreed that the only purpose for this particular provision was to avoid creating a redundant remedy.

I'd like to save the rest of my time for rebuttal.

Argument of Kannon K. Shanmugam

Chief Justice Roberts: Thank you, Mr. Andre.

Mr. Shanmugam.

Mr. Shanmugam: Thank you, Mr. Chief Justice, and may it please the Court: Section 2680(c) preserves the government's immunity against tort claims concerning the detention of property by any law enforcement officer.

That reading is consistent not only with the plain language of the statute but also with Congress's underlying policy objectives in creating the FTCA's exception.

Petitioner effectively asks this Court to engraft language on to the statute by adding the amorphous limitation

"acting in a customs or tax capacity. "

to the unambiguous statutory phrase "any other law enforcement officer".

Justice Souter: Mr. Shanmugam, may I ask you... this goes to your ambiguity point.

May I ask you this question?

If Congress wanted to cover all law officers, the only reason for mentioning the customs and excise people would be to make it very clear that they were within that category of all law enforcement officers, and I take it that's basically what you're saying.

Mr. Shanmugam: Yes, I think that's correct with one caveat, Justice Souter, and I don't mean to quibble, but I think that this is important.

I think when one looks at the evolution of the statute, it may very well have that when Judge Holtzoff drafted the relevant statutory language, he started with customs or excise officers because the British bill that was apparently the model for the detention of property clause--

Justice Souter: Right.

Mr. Shanmugam: --used that phrase, and he may then have decided to expand it to other law enforcement officers simply because he concluded that there was no basis for treating other law enforcement officers differently.

Justice Souter: But wouldn't--

Mr. Shanmugam: So--

Justice Souter: --But wouldn't the way to do that would have made it at least clearer that that's what Congress or what he had in mind and what Congress was getting at would have been to provide that the... that the exception referred to law enforcement officers including an officer or customs of excise?

In other words, they would have made it clear that at that point, the old historical customs and excise rule was sort of the tail on the dog, and the dog was law enforcement officers.

Instead, however, the order is exactly different.

On what your reading is... on your reading, what is now the tail of the dog comes first, and the general clause "law enforcement officer" comes second.

Mr. Shanmugam: --I--

Justice Souter: So, number one, it is less clear and it really raises the question: Weren't they trying to get simply at law enforcement officers who were doing the customs and excise function?

So my question is, why doesn't the order of the words cut against you by putting, on your theory, the tail of the dog before the dog?

Mr. Shanmugam: --Justice Souter, it is certainly true that Congress could have written that statute that way and indeed could have omitted the customs or excise officers entirely, and that certainly would be a clearer statute in the sense that I don't think that Mr. Andre would be here if we had a statute that simply referred to any law enforcement officer.

But the United States Code is replete with provisions that fit this model, that start with specific examples and then contain a general residual clause.

And, indeed, even the Constitution has similar provisions.

To take one concrete example that we cite among the many examples in footnote 11 of our brief, the Extradition Clause in Article IV of the Constitution refers to extradition for treason, felonies, and other crimes, and there is no doubt that the framers could have simply referred to crimes, but they cited those examples.

As this Court held in a case way back when, Kentucky v. Denyson, the reason that Congress used those examples was for emphasis to make clear that political crimes such as treason and other felonies that would qualify as political crimes were covered.

Justice Scalia: It's also--

Mr. Shanmugam: So--

Justice Scalia: --It's also not entirely clear what... whether it's a tail or not.

It depends on what the dog is.

If you can... if you were trying to identify the most common instances, especially at the time this provision was enacted, the most common instances in which property was detained by the government, I mean you know, later... later forfeiture provisions are numerous, but at that time I think they were relatively few.

I think the dog would have been... would have been customs and excise officers.

And the "or other officers" would have picked up probably very little real... real instances of property detention.

Mr. Shanmugam: Assuming for present purposes, Justice Scalia, that the dog here is any officer of customs or excise, I think that the critical point is that the tail was indeed smaller than it would be today because customs and excise officers were among the most important federal law enforcement officers.

Justice Stevens: If you--

Mr. Shanmugam: --You know--

Justice Stevens: --No, but... but a short time ago you said there was no basis for distinguishing between excise officers and all other law enforcement officers.

But there was indeed a basis for it, namely that there was an alternative remedy for people specifically named in the statute, which is not true of all other officers.

It's true now, but it wasn't then.

Mr. Shanmugam: --Well, we believe, first of all, that if one looks at this Court's decision in Kosak, the Court did not in any way suggest that the availability of alternative remedies was the sole purpose--

Justice Stevens: I'm not suggesting that, but that is a reason for drawing a distinction between all others and this particular claim.

Mr. Shanmugam: --Justice Stevens, it certainly was one of Congress's primary purposes in creating the exceptions generally, but we do believe that our interpretation of the statute serves that purpose, albeit to a lesser extent perhaps than it serves the other congressional purposes, but that was--

Justice Stevens: It didn't serve that purpose before 2000.

Mr. Shanmugam: It did serve that purpose, Justice Stevens, because there was an alternative remedy, albeit one that was not federally funded and that was a common-law action against a law enforcement officer in his personal capacity for negligence.

Justice Ginsburg: Why wasn't it federally funded?

I thought there was a provision for indemnification.

Mr. Shanmugam: There was a provision for indemnification for revenue officers and other officers essentially acting in a revenue capacity, I believe that the exact statutory language was "collectors and other revenue officers"... and that indemnification provision, to be sure, would not have applied to garden variety law enforcement officers.

But in looking at the availability of alternative remedies, this Court has never suggested that whether that congressional purpose is served somehow turns on whether the money came directly from an officer or whether it came from the Federal fisc.

And Petitioner in his reply brief cites Dolan for that proposition but whether the alternative remedy was federally funded was simply not at issue in Dolan.

At most the Court concluded that the alternative remedy available there was insufficient.

Justice Breyer: Do you actually have any information about the early 1940s, about who was a Federal law enforcement officer?

I think the FBI, the Bureau of Prisons... there were a lot of people being detained.

There were goods that were having to do with contraband, foreign goods, maybe domestic, things you weren't supposed to have, food stamps.

Illegal rations... OPA... I mean, you know, there were, you were only supposed to have so much food.

Have we any notion who other law enforcement officers might have applied to at that time?

Mr. Shanmugam: --It's very difficult to quantify, Justice Breyer, but I do think we have some sense historically of the state of play at various law enforcement agencies; and the FBI was in a relatively nascent stage in 1946.

I think the FBI dates from approximately the turn of the 20th century.

Certainly the Bureau of Prisons, while it existed, was detaining far fewer people than it does now.

Justice Breyer: I think the FBI had quite a big job in World War II.

Mr. Shanmugam: It did.

To be sure, but there were not--

Justice Breyer: I thought there were thousands and thousands and thousands of FBI people.

Mr. Shanmugam: --Well, I don't--

Justice Breyer: So do we know?

I'm getting from you that you don't know and I don't know.

Is that right?

Mr. Shanmugam: --Yeah.

I don't have exact numbers.

I attempted to find them out.

But--

Justice Breyer: We don't even have a ballpark.

Mr. Shanmugam: --I can't offer you a ballpark, but I think what I can say, and this accords with observations that various members of this Court have made over the years, is that there were simply far fewer Federal criminal provisions then than there are now, and I think that that is one of the reasons why we've really seen an explosion in the number of these cases as time has gone on, while the FTCA--

Justice Breyer: Well, well that might be.

But I'm sitting in Congress, I read this statute, I think maybe they were talking about customs people and the like.

Now, there is this other word in there, that's true.

So we look up, where does the other word come from?

The other word comes from Judge Holtzoff.

He explained it, we don't have to guess.

We can read his explanation.

His explanation comes in a paragraph having to do with customs and excise, and beginning with, I'm talking about customs and excise, and the additional proviso as special reference, where they use this phrase, and then he says it's all supposed to be like the Crown Proceedings Committee in England in 1927, which in fact had nothing to do with anybody but customs and excise.

Justice Scalia: Do the members of Congress who voted on this language, when it was presented to them, did they even know who Judge Holtzoff was?

Mr. Shanmugam: --Well, they may very well--

Justice Scalia: Did he testify to this effect before one of the committees?

Mr. Shanmugam: --He did testify before one of the committees.

He did not address this specific issue, but as this Court--

Justice Scalia: 15 years before it was passed, right?

Mr. Shanmugam: --15 years before it was passed, Judge Holtzoff wrote this report, and as both the majority and Justice Stevens in his dissenting opinion in Kosak observed, there was no evidence that this report was even introduced into the legislative record.

Justice Breyer: So... so if it was not... I mean, I would suspect at that time Judge Holtzoff was a pretty well known person in the legal community and I would suspected if we are guessing at such a thing that quite a few did know who he was.

And I suspect that when Congress passes a technical bill, they are interested in the views of the Department of Justice and these were those views.

Mr. Shanmugam: Yes.

I want to--

Justice Breyer: So if we are going to play a magic game that we don't pay attention to what sheds light on it, fine, then we don't, but I would.

Mr. Shanmugam: --Well, Justice Breyer, I wanted simply to make the point that in the pantheon of legislative history sources for those members of the Court who are interested in legislative history, we recognized that the Holtzoff report should not be afforded great weight.

But that having been said, I want to address directly the language you cite from the Holtzoff report, because I believe that that language if anything supports our position, and not Petitioners, because in the relevant sentence of the Holtzoff report, Judge Holtzoff wrote that the additional proviso, meaning the detention of property clause, has special reference to the detention of imported goods in appraisers' warehouses or customs houses as well as seizures by law enforcement officials, Internal Revenue officers and the like.

Now Petitioner--

Chief Justice Roberts: Is there any legislative history about what Judge Holtzoff meant by that?

Mr. Shanmugam: --Well, one could make the argument that that legislative history is itself ambiguous; and indeed the D.C. Circuit in adopting Petitioner's construction itself acknowledged that at best, the legislative history was as unclear as the statute.

All I mean to suggest is that Petitioner does not have available to him any sort of ejusdem generis argument in construing that sentence.

Justice Breyer: But I think in reading that, I think that's a good point.

My actual reading of it, of that paragraph 2, is that it's not free of ambiguity.

I completely agree with you.

And if I read through it, then I'm making up my mind as a judge, well, how do I feel about what these words likely show and how people in Congress would have interpreted that kind of reference or statement in testimony by a person who thought this?

Free of ambiguity, I agree with you, it isn't.

But it might cut somewhat more in favor of the Petitioners than the Respondents.

Mr. Shanmugam: Well, I think, Justice Breyer, with all respect, that this is not a case in which very much of a conclusion can be drawn from the legislative history one way or another.

We have this language from the Holtzoff report which I admit, you know, could be susceptible to the same sorts of arguments that Petitioner is making with regard to what we feel is the unambiguous language of the statute.

But other than that the only thing that my friend has Mr. Andre has cited are these summaries in various congressional reports which essentially summarize in shorthand, often in a single sentence, all of the proposed exceptions in the FTCA; and none of those summaries so much as refers to the

"and any other law enforcement officer. "

language at all.

In fact, some of the summaries on which Petitioner relies do not even cite the detention of property exception at all.

So this is, in our view, a case in which at most, the legislative history is simply silent.

And we are left, I think, and indeed we should start with the text of the statute, and we have the unambiguous phrase

"or any other law enforcement officer. "

in this case.

Justice Ginsburg: You have a difference with Mr. Andre on the extent to which other law enforcement officers assist customs and revenue agents.

In your brief you say that's a rare occurrence.

And Mr. Andre says oh no, it's quite common.

So which is it?

Mr. Shanmugam: Well, we do believe that it is a rare occurrence, but in some sense, Justice Ginsburg, I think that the answer to that question depends on exactly what it is that Petitioner means when he says that an officer is acting in a customs or tax capacity.

And with the Court's leave, I'd like to offer at least three possible explanations for what that means and then explain why each of them would be an erroneous interpretation for this Court to adopt, and each of these three explanations I should add, appear at various points in Petitioner's brief.

The first is that an officer is acting in a customs or tax capacity when the officer is actually acting in a revenue collecting capacity.

And we believe that if the Court were to adopt that limitation, there really are no actual cases of which we are aware that would fall within that language.

And indeed, it would cast some doubt on the meaning of the preceding phrase

"any officer of customs or excise. "

because one might very well wonder whether under Petitioner's construction that phrase should also be limited to a revenue collecting capacity.

The second possible explanation is that an officer is acting in a customs or tax capacity when the officer is more generally acting to enforce the customs or tax laws, that is to say, the provisions of Title 19 or 26 of the United States Code.

But we believe that that interpretation, too, would suffer from the same two deficiencies that I've already identified and would also suffer from a third, namely, to the extent that Petitioner relies for his noscitur a sociis argument on the assessment of taxes clause, that limitation would actually sweep more broadly than the mere assessment of taxes.

So the third possible interpretation and the one that we're left with, I think, is that an officer is acting in a customs or tax capacity whenever the officer is actually performing a function that is performed by customs or excise Internal Revenue officers.

But if anything, that limitation would exclude only a very small number of cases apart from cases in the prison context such as this one, because as Petitioner himself recognizes, customs officers have virtually plenary authority to enforce the criminal provisions of the United States Code.

Justice Alito: Are all customs and excise officers law enforcement officers?

Mr. Shanmugam: All customs officers, by statute, have law-enforcement authority, and that is under, I believe, 19 U.S.C. 1589(a).

Now, to be sure, there are people employed by the Customs Service, now ICE and CBP components of the Department of Homeland Security, who wouldn't qualify as customs officers.

There are secretaries and other people employed there that don't that statutory definition.

Justice Alito: Are there other circumstances in which, let's say, goods are being shipped into the country, and the... the shipment is detained by someone who is not a law-enforcement officer, at least under the definition in subsection (h), someone who has the power to execute searches, seize evidence, and make arrests?

Mr. Shanmugam: I think they typically would be, and I'm not aware of any examples in which they would not be, because customs officers are the vast majority of people who are employed by the various customs-related agencies.

And the same is true, I would note, with regard to Internal Revenue officers.

One of the oddities of this statute is that Judge Holtzoff, rather than using the known term "Internal Revenue Officer", actually used this phrase "officer of excise", seemingly borrowing from the British bill.

And we believe that, at most, that phrase would have to refer to an Internal Revenue officer acting in an excise-collecting capacity.

But, to the extent that "excise officer" has a narrower meaning than "Internal Revenue officer", we believe that that actually supports our construction, because it would have been quite peculiar for Judge Holtzoff and Congress to have referred only to an excise officer and not to an Internal Revenue officer if they had meant to limit the residual phrase "any other law-enforcement officer" to officers acting in a customs or tax capacity.

Justice Breyer: Have you... have you found any... any research on that?

I mean I think that's a very interesting point that... that... have you found any book I could look at or report that... that would cast some light on whether at that time, 1946, the phrase "other law enforcement officers" referred to a large number of people who had a lot of different tasks that had not much to do with customs or excise?

If so, this would be an odd way of sneaking them into the bill.

That's who it would look like.

On the other hand, if there were just a few of them, well, then, the bill, at worst, is a little bit more than somebody might have thought; and it would appear perfectly normal to a legislator.

So is... is there anything to look at?

Mr. Shanmugam: I wish that I could point to such a book, Justice Breyer.

I know that, in doing my own research, what I did was simply to go on the Internet and go to the website's of various Federal law-enforcement agencies and try to get a sense of when they were established.

But, unfortunately, as I said earlier, I was just unable to obtain any numbers as to how much officers these various agencies had, and the like.

But I think that, more broadly, certainly Congress knew what the phrase "any other law enforcement officer" meant.

And Judge Holtzoff proposed this language in what would become the bill that was introduced in December of 1931.

The FTCA was, of course, ultimately enacted in 1946, and I think that one of the difficulties in attempting to look to this legislative history, which, as I say, we believe is silent, is that you're talking about, you know, a number of Congresses over many years.

And, to be sure, this Court has looked to these same legislative history sources in prior decisions construing the FTCA.

But, you know, I do think that we are left with the plain language here.

And we are also left with Congress's underlying policy objectives, and I do want to say a word about the other two policy objectives on which this court relied in Kosak which--

Justice Souter: Mr. Shanmugam, before you get into policy, may I just suggest that there is a possible fourth category, really.

You had mentioned three, and one... a fourth possibility might be "law-enforcement officer", in a very broad sense of the term, but one who is simply providing, let's say, protective service in aid ultimately of the revenue laws.

And the reason I have thought of this is that this sort of situation went on in my... my native State in this past month, in which the United States Marshal Service, which at the time all of these statutes were enacted was a fairly large agency, took control of some real estate in... in New Hampshire which had been the property, or was the property, of tax protesters.

And they... they held custody of that.

They took control of that real estate for about a week to make sure that there were no booby traps and bombs that... that would... that would blow up the IRS people when they went in there to enforce their tax liens.

That would be an example of "law-enforcement officer" in a very broad sense.

It could cover the Marshal service, the FBI, and whatnot; and, yet, the... and No. 2, they would be exercising, you know, typical law-enforcement functions, protective functions.

And, yet, they would be doing so in... in aid of... of the tax or the revenue laws.

That would be a plausible reason for... for sticking in the general phrase, and it would be a plausible reading of the phrase, wouldn't it?

Mr. Shanmugam: --Well, Justice Souter, I think, with no disrespect to the good law-enforcement officers of New Hampshire, that these cases come up far more rarely in the Federal context, because both customs officers and Internal Revenue officers are law-enforcement officers who have, I think, quite a refined capability.

They carry weapons, and they are, I think, usually very well prepared to kill if--

Justice Souter: Do IRS agents have... have expertise in... bomb detection and dismantling?

Mr. Shanmugam: --There certainly might very well be cases in which they would feel the need to call in the FBI or other law-enforcement agencies.

But I do think that it is telling that in the 60-year history of the FTCA there don't appear to be any cases that fall into that category.

Justice Souter: Well, there don't seem to be many cases because... I mean that's why we've got this one at this point.

Mr. Shanmugam: Well, there are quite a few cases more generally.

I think that there are something in the neighborhood of 17 prior decisions in the courts of appeals alone involving these fact patterns or similar ones.

Justice Souter: Over what period of time?

Mr. Shanmugam: Over the 60-year period of the enactment of the FTCA.

Justice Souter: Well, I mean that's not... that's not a deluge of litigation.

I mean it seems to me there is reason to assume that no matter what reading we give it, there is a plausible reading that can come up that... that confines the actual application of the "other law-enforcement officer" fairly narrowly.

Mr. Shanmugam: But our fundamental submission, Justice Souter, is that there is no good textual reason for confining the phrase "any other law-enforcement officer", because that phrase, in our view, is unambiguous.

And, notably, Petitioner in his brief and at oral argument does not directly contend that there is any ambiguity in that phrase, itself.

And this Court has noted, in applying both the noscitur a sociis and the ejusdem generis canons of construction, that where the relevant phrase to which a limiting construction is being applied is itself unambiguous, that that is the end of the inquiry.

Justice Souter: Yes, but the question of what is... what is ambiguous or not is... is a question of context.

And if you take the phrase "law-enforcement officer", and you say is that ambiguous, and you say well, gee, no.

But if you stick it in this particular statute and it happens to follow these specific references to tax gatherers and tax and excise laws, then it seems to me it's fair to say it does become ambiguous, because it gives rise to a reasonable question.

Were they just getting at law-enforcement officers who were performing these kinds of functions, or did they really mean it as broadly as the phrase in real isolation would have meant?

That's ambiguity, and that's what we've got here.

Mr. Shanmugam: I don't believe that that's correct, Justice Souter, and the reason that I don't believe that that is correct is because this Court has suggested that the starting point is the relevant phrase that is being interpreted.

And here we have the phrase "any other law enforcement-officer".

Justice Souter: But then you are saying, don't read the statute as a whole.

That argument, in effect, is saying isolate the phrase... and we don't do that.

Mr. Shanmugam: Well, no, Justice Souter.

I think that where the phrase is unambiguous, this Court has suggested that the inquiry is at an end, and, to take an example--

Justice Souter: I agree with you.

And if I make the assumption that it's unambiguous, your argument is unassailable.

But if I don't make that assumption, then your argument risks circularity.

Mr. Shanmugam: --Well, let me--

Justice Souter: And my suggestion is that it is the context that makes your argument a tough sell.

Mr. Shanmugam: --Let me try to explain to you why you should make that assumption, and it is because Congress here used the word "any".

And this Court has repeatedly noted that where Congress uses the word "any", it is substantial evidence that Congress intends a phrase to be construed broadly.

And this Court has specifically refused to apply the ejusdem generis canon to phrases introduced by the word "any" on precisely the ground I cite, namely, because they conclude that that phrase is unambiguous.

Justice Stevens: But you are talking about the use of the word "any" all by itself.

Here it says

"any officer or customs or excise or other. "

--"or other", and you would just take those words out of the statute.

Mr. Shanmugam: Well, we wouldn't be taking the words out of the statute, because we do believe--

Justice Stevens: But you believe they add nothing to the text of the statute.

Mr. Shanmugam: --They add nothing to the text of the statute in the sense that Congress could have written the statute to refer to any law-enforcement officer.

That is certainly true.

That is also true with regard to all of the statutes and constitutional provisions that we cite in footnote 11 of our brief.

And, indeed, in some sense, it would be true with regard to Petitioner's proposed construction insofar as Congress could easily have written a statute that simply referred to any law-enforcement officer acting in a customs or tax capacity.

Justice Scalia: There are two "anys" here.

I'm not sure that--

Mr. Shanmugam: I'm certainly referring to the "any" that modifies "any other law enforcement officer".

Justice Scalia: --Any other.

So it says any goods by any officer of customs or excise, or if it just had said "other law enforcement officer", you might... you might disregard the force of any because it was way back there.

Mr. Shanmugam: That's right.

And contrary--

Justice Scalia: But if they repeat "or any other law enforcement"--

Mr. Shanmugam: --That's right.

And contrary to Mr. Andre's submission, this Court has made precisely that point in Harrison v. PPG Industries, in which the Court was construing a similar phrase that referred to

"any other final action by an EPA administrator. "

And that came after a series of specific final actions to which the statute referred.

And the Court actually said, in so many words, it might be different if the word "any" were omitted, but we believe that the inclusion of "any" renders that phrase unambiguous.

And I would note as well, Justice Souter, that in your dissenting opinion to be sure in Circuit City in footnote 2, you cited all of these very cases on which I'm relying now in support of your proffered construction of the statute.

Justice Souter: They were on point for my dissent.

I know.

[Laughter]

Mr. Shanmugam: Well, I think... I would respectfully submit that they are on point to our construction as well.

But I do want to say a word about the underlying policy objectives here--

Justice Ginsburg: I know your time is running out, but I would like you also to say a word about what remedy, if any, does Ali have when you're saying he had his prayer rug and Koran, and the government lost them and he didn't get any compensation?

Does he have any remedy?

Mr. Shanmugam: --Sure, Justice Ginsburg.

And the answer is, yes, that he does.

He does have an administrative remedy.

And I'd like to say just a couple of things about the available administrative remedies.

First of all, any claimant who claims that a Federal agency, including a Federal law enforcement agency negligently damaged his or her property, would have a claim under 31 U.S.C. 3723 for up to $1,000.

That statute, which we cite in a footnote, I believe in our brief, would cover the vast majority of claims involving the Bureau of Prisons.

There's actually another Federal statute, 31 U.S.C. 3724, which provides a further remedy against the Department of Justice for up to $50,000 for personal injury or property damage caused by a law enforcement officer.

And critically, that statute expressly makes clear that it applies where the FTCA does not.

And so that administrative remedy would be fully available.

Justice Ginsburg: But there's no court... there's no court role in that process.

Mr. Shanmugam: There is no court role in that process, but the Bureau of Prisons routinely processes these administrative claims.

As we note in our brief, there were 12,000 such claims over the last three years.

The Bureau of Prisons has procedures for processing those claims.

It paid out something in the neighborhood of 1,100 of those claims.

And there's no reason to think that the Bureau of Prisons would alter those procedures if the Court were to hold in this case that there is no judicial remedy.

Indeed, the Bureau of Prisons has paid out on such claims even in circuits that have adopted our interpretation.

I do want to say just a word about the underlying policy considerations, because to the extent that members of the Court feel that the statute is ambiguous, we believe that they strongly support our construction.

In Kosak, this Court analyzed two other policy considerations in addition to the avoidance of duplicative remedies: First, protecting important government functions from the threat of suit; and second, avoiding exposure to fraudulent claims.

And we believe that those concerns are particularly implicated in the prison context which constitutes the mine run of cases in this area.

Thank you very much.

Rebuttal of Jean-Claude Andre

Chief Justice Roberts: Thank you, Mr. Shanmugam.

Mr. Andre, you have four minutes remaining.

Mr. Andre: I'd like to first address the government's resistance to making any concession that the statute is ambiguous.

First of all, if the statutory language in this case was so clear, then so must the statutory language in Circuit City.

The language had started out with the words "any other", and clearly then were followed by words that have a very plain meaning out of context,

"any worker engaged in interstate or foreign commerce. "

We just don't believe that the government's position that the statute is unambiguous can be squared with that case.

Nor do we think as a factual matter that the statute is unambiguous.

In particular, we think it would have been strange for this Court in Kosak to go out of its way in a footnote and expressly decline to resolve today's question presented if the detention of property clause, in particular the "law enforcement officer" phrase, had only one clear meaning.

And then on top of that, as we noted in our reply brief, five courts of appeals have adopted our construction; two other circuit judges have written separately.

The total is 16 circuit judges that have found our position to be credible, found the statute to be ambiguous, applied the canons of construction that we are urging the Court to apply today, and then resolved the case in our favor So if, if the statute is truly unambiguous, then those 16 circuit judges not only got this issue wrong, they got it very wrong.

Justice Breyer, I unfortunately don't have an example either of what other types of law enforcement officers were out there at the time of the FTCA's enactment, but I do have one example, and that would be the Elliott Ness and the Al Capone investigation.

Elliott Ness was in charge of running a group of... in charge of supervising a group of government agents who were part of the Department of Justice, even though Elliott Ness himself was a treasury agent.

And they were all trying enforce the Volstead Act, but... to get Al Capone on charges of income tax evasion.

And so we believe that that's a nice example from the early 1930s when Judge Holtzoff drafted this language that shows that you could have a revenue officer working with... in fact, supervising other law enforcement officers, and they are all really doing the same thing.

As far as the policy considerations are concerned, we believe that the government's reliance on the two other general purposes for the FTCA exceptions just prove too much.

Pretty much any governmental function is important.

And so the government in every brief they filed on this issue below and in pretty much every FTCA exception case that we've seen has come in and said, oh, but our interests are served by these two other purposes, and therefore, this statutory exemption has to be construed narrowly.

Again, as a factual matter, we don't think that their concerns are really all that well founded, in any event.

True, there were 12,000 administrative claims filed by Federal prisoners over the last three years.

But as we pointed out in footnote 12 of our cert petition, there were only 16 cases filed in all of 2006 by Federal prisoners under this statute.

settlement process is working, and that also Federal prisoners are just not bringing suit and there is a very good reason for.

That it's the Federal filing fee.

That's $455.

My client's claim in this case is $177.

Prisoners don't evaluate whether to sue based on some sophisticated reading of sovereign immunity doctrines and ambiguous statutory text.

They, you know, they think about their wallet.

They make $2.50 a day, and it's just not worth it for them to risk--

Justice Ginsburg: Wouldn't they have IFP status?

Mr. Andre: --Even if a prisoner gets IFP status, they still have to pay the full filing fee.

The IFP status only allows them to pay in installments.

So it's debited off their account.

So they still make a very real calculation when they decide whether to sue based on how much is at stake and how much is it going to cost me.

Justice Ginsburg: Here there wasn't that much at stake.

Mr. Andre: That's correct.

There was $177 at stake and so perhaps my client shouldn't have sued because it didn't make a lot of sense, although he also did file the suit a couple years earlier when the filing fee was lower.

But in our experience, prisoners they are not going to typically sue for these kinds of claims.

This is nothing like the Prison Litigation Reform Act problem we had in Jones V. Bock, where there are 24,000 cases coming before the Federal courts every year.

That's just not something we envisioned.

So we don't think that adopting any one of the four constructions discussed are debated between my friend and Justice Souter would somehow open up the floodgates here and lead to a lot of prisoners suing under this particular provision.

Thank you.

Chief Justice Roberts: Thank you, Mr. Andre.

The case is submitted.