Pending Petition & SG Response: No. 06-9130, Ali v. BOP

By Amy Howe
on May 10, 2007 at 4:29 pm

In the Federal Tort Claims Act, Congress waived the sovereign immunity of the United States (and thus created the possibility of damages) for the “negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” However, Congress has also carved out a variety of exceptions to this waiver of sovereign immunity, including (in 28 U.S.C. 2680(c)) one for claims “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.”

In an IFP petition filed earlier this year, federal prisoner Abdus-Shahid M.S. Ali (represented by Jean-Claude Andre and Peter Stris) asks the Court to resolve a question regarding the scope of Section 2680(c) – notably, a question with regard to which ten courts of appeals appear intractably divided: whether Section 2680(c)’s exception to the waiver of sovereign immunity for the detention of goods by law enforcement officers includes detentions of property by prison officials or is instead limited to detentions of property by officers acting in an excise or customs capacity. Although the gaudy six-to-four split among the courts of appeals would be enough to make the case a serious candidate for Supreme Court review in any event, it became even more so last week, when the United States filed its brief in the case. Interestingly, although the U.S. did not oppose certiorari, it also did not expressly agree that certiorari should be granted. Instead, it advised the Court that while it “did not oppose this Court’s granting the petition . . . given the circuit conflict and given the court of appeals’ definitive rejection of petitioner’s FTCA claim,” “[t]he Court may prefer to await a case that does not arise in an interlocutory posture,” particularly given the frequency with which the question presented arises. Also interesting is that, although the brief notes that “Congress has amended Section 2680(c)’s ‘detention of goods’ exception in a manner that underscores the exception’s breadth,” the U.S. does not explicitly argue that the decision below should be affirmed.

The petition can be found here, the SG’s brief is here, and the reply is here. The case is scheduled to be considered by the Justices in their private conference on May 24.