(Slip Opinion) OCTOBER TERM, 2007 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ALI v. FEDERAL BUREAU OF PRISONS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 06–9130. Argued October 29, 2007—Decided January 22, 2008
The Federal Tort Claims Act (FTCA) waives the United States’ sover
eign immunity for claims arising out of torts committed by federal
employees, see 28 U. S. C. §1346(b)(1), but, as relevant here, exempts
from that waiver “[a]ny claim arising in respect of the assessment or
collection of any tax or customs duty, or the detention of any . . . prop
erty by any officer of customs or excise or any other law enforcement
officer,” §2680(c). Upon his transfer from an Atlanta federal prison to
one in Kentucky, petitioner noticed that several items were missing
from his personal property, which had been shipped to the new facil
ity by the Federal Bureau of Prisons (BOP). Alleging that BOP offi
cers had lost his property, petitioner filed this suit under, inter alia,
the FTCA, but the District Court dismissed that claim as barred by
§2680(c). Affirming, the Eleventh Circuit rejected petitioner’s argu
ment that the statutory phrase “any officer of customs or excise or
any other law enforcement officer” applies only to officers enforcing
customs or excise laws.
Held: Section 2680(c)’s text and structure demonstrate that the broad
phrase “any other law enforcement officer” covers all law enforcement
officers. Petitioner’s argument that §2680(c) is focused on preserving
sovereign immunity only for officers enforcing customs and excise
laws is inconsistent with the statute’s language. “Read naturally, the
word ‘any’ has an expansive meaning, that is, ‘one or some indis
criminately of whatever kind.’ ” United States v. Gonzales, 520 U. S.
1, 5. For example, in considering a provision imposing an additional
sentence that was not to run concurrently with “any other term of
imprisonment,” 18 U. S. C. §924(c)(1), the Gonzales Court held that,
notwithstanding the subsection’s initial reference to federal drug
trafficking crimes, the expansive word “any” and the absence of re
2 ALI v. FEDERAL BUREAU OF PRISONS
Syllabus
strictive language left “no basis in the text for limiting” the phrase
“any other term of imprisonment” to federal sentences. 520 U. S., at
5. To similar effect, see Harrison v. PPG Industries, Inc., 446 U. S.
578, 588–589, in which the Court held that there was “no indication
whatever that Congress intended” to limit the “expansive language”
“ ‘any other final action’ ” to particular kinds of agency action. The
reasoning of Gonzales and Harrison applies equally to 28 U. S. C.
§2680(c): Congress’ use of “any” to modify “other law enforcement of
ficer” is most naturally read to mean law enforcement officers of
whatever kind. To be sure, the text’s references to “tax or customs
duty” and “officer[s] of customs or excise” indicate an intent to pre
serve immunity for claims arising from an officer’s enforcement of tax
and customs laws. The text also indicates, however, that Congress
intended to preserve immunity for claims arising from the detention
of property, and there is no indication of any intent that immunity for
those claims turns on the type of law being enforced. Recent amend
ments to §2680(c) restoring the sovereign immunity waiver for offi
cers enforcing any federal forfeiture law, see §2680(c)(1), support the
Court’s conclusion by demonstrating Congress’ view that, prior to the
amendments, §2680(c) covered all law enforcement officers. Against
this textual and structural evidence, petitioner’s reliance on the can
ons of statutory construction ejusdem generis and noscitur a sociis
and on the rule against superfluities is unconvincing. The Court is
unpersuaded by petitioner’s attempt to create ambiguity where the
statute’s structure and text suggest none. Had Congress intended to
limit §2680(c)’s reach as petitioner contends, it easily could have
written “any other law enforcement officer acting in a customs or ex
cise capacity.” Instead, it used the unmodified, all-encompassing
phrase “any other law enforcement officer.” This Court must give ef
fect to the text Congress enacted. Pp. 3–13.
204 Fed. Appx. 778, affirmed.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, GINSBURG, and ALITO, JJ., joined. KENNEDY, J., filed
a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ.,
joined. BREYER, J., filed a dissenting opinion, in which STEVENS, J.,
joined.
Cite as: 552 U. S. ____ (2008) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 06–9130
_________________
ABDUS-SHAHID M. S. ALI, PETITIONER v. FEDERAL
BUREAU OF PRISONS ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[January 22, 2008]
JUSTICE THOMAS delivered the opinion of the Court.
This case concerns the scope of 28 U. S. C. §2680, which
carves out certain exceptions to the United States’ waiver
of sovereign immunity for torts committed by federal
employees. Section 2680(c) provides that the waiver of
sovereign immunity does not apply to claims arising from
the detention of property by “any officer of customs or
excise or any other law enforcement officer.” Petitioner
contends that this clause applies only to law enforcement
officers enforcing customs or excise laws, and thus does
not affect the waiver of sovereign immunity for his prop
erty claim against officers of the Federal Bureau of Pris
ons (BOP). We conclude that the broad phrase “any other
law enforcement officer” covers all law enforcement offi
cers. Accordingly, we affirm the judgment of the Court of
Appeals upholding the dismissal of petitioner’s claim.
I
Petitioner Abdus-Shahid M. S. Ali was a federal pris
oner at the United States Penitentiary in Atlanta, Geor
gia, from 2001 to 2003. In December 2003, petitioner was
scheduled to be transferred to the United States Peniten
2 ALI v. FEDERAL BUREAU OF PRISONS
Opinion of the Court
tiary Big Sandy (USP Big Sandy) in Inez, Kentucky.
Before being transferred, he left two duffle bags contain
ing his personal property in the Atlanta prison’s Receiving
and Discharge Unit to be inventoried, packaged, and
shipped to USP Big Sandy. Petitioner was transferred,
and his bags arrived some days later. Upon inspecting his
property, he noticed that several items were missing. The
staff at USP Big Sandy’s Receiving and Discharge Unit
told him that he had been given everything that was sent,
and that if things were missing he could file a claim.
Many of the purportedly missing items were of religious
and nostalgic significance, including two copies of the
Qur’an, a prayer rug, and religious magazines. Petitioner
estimated that the items were worth $177.
Petitioner filed an administrative tort claim. In denying
relief, the agency noted that, by his signature on the re
ceipt form, petitioner had certified the accuracy of the
inventory listed thereon and had thereby relinquished any
future claims relating to missing or damaged property.
Petitioner then filed a complaint alleging, inter alia, viola
tions of the Federal Tort Claims Act (FTCA), 28 U. S. C.
§§1346, 2671 et seq. The BOP maintained that petitioner’s
claim was barred by the exception in §2680(c) for property
claims against law enforcement officers. The District
Court agreed and dismissed petitioner’s FTCA claim for
lack of subject-matter jurisdiction. Petitioner appealed.
The Eleventh Circuit affirmed, agreeing with the Dis
trict Court’s interpretation of §2680(c). 204 Fed. Appx.
778, 779–780 (2006) (per curiam). In rejecting petitioner’s
arguments, the Court of Appeals relied on this Court’s
broad interpretation of §2680(c)’s “detention” clause in
Kosak v. United States, 465 U. S. 848, 854–859 (1984), on
decisions by other Courts of Appeals, and on its own deci
sion in Schlaebitz v. United States Dept. of Justice, 924 F.
2d 193, 195 (1991) (per curiam) (holding that United
States Marshals, who were allegedly negligent in releas
Cite as: 552 U. S. ____ (2008) 3
Opinion of the Court
ing a parolee’s luggage to a third party, were “law en
forcement officers” under §2680(c)). See 204 Fed. Appx.,
at 779–780.
We granted certiorari, 550 U. S. ___ (2007), to resolve
the disagreement among the Courts of Appeals as to the
scope of §2680(c).1
II
In the FTCA, Congress waived the United States’ sover
eign immunity for claims arising out of torts committed by
federal employees. See 28 U. S. C. §1346(b)(1). As rele
vant here, the FTCA authorizes “claims against the
United States, for money damages . . . for injury or loss of
property . . . caused by the negligent or wrongful act or
omission of any employee of the Government while acting
within the scope of his office or employment.” Ibid. The
FTCA exempts from this waiver certain categories of
claims. See §§2680(a)–(n). Relevant here is the exception
in subsection (c), which provides that §1346(b) shall not
apply to “[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.”
§2680(c).
——————
1 The Eleventh Circuit joined five other Courts of Appeals in constru
ing §2680(c) to encompass all law enforcement officers. See Bramwell
v. Bureau of Prisons, 348 F. 3d 804, 806–807 (CA9 2003); Chapa v.
Dept. of Justice, 339 F. 3d 388, 390 (CA5 2003) (per curiam); Hatten v.
White, 275 F. 3d 1208, 1210 (CA10 2002); Cheney v. United States, 972
F. 2d 247, 248 (CA8 1992) (per curiam); Ysasi v. Rivkind, 856 F. 2d
1520, 1525 (CA Fed. 1988). Five other Courts of Appeals reached the
contrary conclusion, interpreting the clause as limited to officers
performing customs or excise functions. See ABC v. DEF, 500 F. 3d
103, 107 (CA2 2007); Dahler v. United States, 473 F. 3d 769, 771–772
(CA7 2007) (per curiam); Andrews v. United States, 441 F. 3d 220, 227
(CA4 2006); Bazuaye v. United States, 83 F. 3d 482, 486 (CADC 1996);
Kurinsky v. United States, 33 F. 3d 594, 598 (CA6 1994).
4 ALI v. FEDERAL BUREAU OF PRISONS
Opinion of the Court
This case turns on whether the BOP officers who alleg
edly lost petitioner’s property qualify as “other law en
forcement officer[s]” within the meaning of §2680(c).2
Petitioner argues that they do not because “any other law
enforcement officer” includes only law enforcement officers
acting in a customs or excise capacity. Noting that Con
gress referenced customs and excise activities in both the
language at issue and the preceding clause in §2680(c),
petitioner argues that the entire subsection is focused on
preserving the United States’ sovereign immunity only as
to officers enforcing those laws.
Petitioner’s argument is inconsistent with the statute’s
language.3 The phrase “any other law enforcement officer”
suggests a broad meaning. Ibid. (emphasis added). We
have previously noted that “[r]ead naturally, the word
‘any’ has an expansive meaning, that is, ‘one or some
indiscriminately of whatever kind.’ ” United States v.
Gonzales, 520 U. S. 1, 5 (1997) (quoting Webster’s Third
——————
2 We assume, without deciding, that the BOP officers “detained” Ali’s
property and thus satisfy §2680(c)’s “arising in respect of . . . detention”
requirement. The Court of Appeals held that the “detention” clause
was satisfied, and petitioner expressly declined to raise the issue on
certiorari. See 204 Fed. Appx. 778, 779–780 (CA11 2006) (per curiam);
Brief for Petitioner 10–11, n. 9.
3 We consider this question for the first time in this case. Petitioner
argues that this Court concluded in Kosak v. United States, 465 U. S.
848 (1984), that the phrase “any other law enforcement officer” is
ambiguous. Reply Brief for Petitioner 4. In that case, the Court
construed a portion of the same clause at issue here, but the decision
had no bearing on the meaning of “any other law enforcement officer.”
465 U. S., at 853–862 (holding that “detention” encompasses claims
resulting from negligent handling or storage). Indeed, the Court
expressly declined to reach the issue. Id., at 852, n. 6 (“We have no
occasion in this case to decide what kinds of ‘law-enforcement officer[s],’
other than customs officials, are covered by the exception.” (alteration
in original)). Petitioner’s reliance on the footnote as concluding that the
phrase is ambiguous reads too much into the Court’s reservation of a
question that was not then before it.
Cite as: 552 U. S. ____ (2008) 5
Opinion of the Court
New International Dictionary 97 (1976)). In Gonzales, we
considered a provision that imposed an additional sen
tence for firearms used in federal drug trafficking crimes
and provided that such additional sentence shall not be
concurrent with “any other term of imprisonment.” 520
U. S., at 4 (quoting 18 U. S. C. §924(c)(1) (1994 ed.) (em
phasis deleted)). Notwithstanding the subsection’s initial
reference to federal drug trafficking crimes, we held that
the expansive word “any” and the absence of restrictive
language left “no basis in the text for limiting” the phrase
“any other term of imprisonment” to federal sentences.
520 U. S., at 5. Similarly, in Harrison v. PPG Industries,
Inc., 446 U. S. 578 (1980), the Court considered the phrase
“any other final action” in amendments to the Clean Air
Act. The Court explained that the amendments expanded
a list of Environmental Protection Agency Administrator
actions by adding two categories of actions: actions under
a specifically enumerated statutory provision, and “any
other final action” under the Clean Air Act. Id., at 584
(emphasis deleted). Focusing on Congress’ choice of the
word “any,” the Court “discern[ed] no uncertainty in the
meaning of the phrase, ‘any other final action,’ ” and em
phasized that the statute’s “expansive language offer[ed]
no indication whatever that Congress intended” to limit
the phrase to final actions similar to those in the specifi
cally enumerated sections. Id., at 588–589.
We think the reasoning of Gonzales and Harrison ap
plies equally to the expansive language Congress em
ployed in 28 U. S. C. §2680(c). Congress’ use of “any” to
modify “other law enforcement officer” is most naturally
read to mean law enforcement officers of whatever kind.4
——————
4 Of course, other circumstances may counteract the effect of expan
sive modifiers. For example, we have construed an “any” phrase
narrowly when it included a term of art that compelled that result. See
Circuit City Stores, Inc. v. Adams, 532 U. S. 105, 115–116 (2001)
(construing “any other class of workers engaged in . . . commerce,” 9
6 ALI v. FEDERAL BUREAU OF PRISONS
Opinion of the Court
The word “any” is repeated four times in the relevant
portion of §2680(c), and two of those instances appear in
the particular phrase at issue: “any officer of customs or
excise or any other law enforcement officer.” (Emphasis
added.) Congress inserted the word “any” immediately
before “other law enforcement officer,” leaving no doubt
that it modifies that phrase. To be sure, the text’s refer
ences to “tax or customs duty” and “officer[s] of customs or
excise” indicate that Congress intended to preserve immu
nity for claims arising from an officer’s enforcement of tax
and customs laws. The text also indicates, however, that
Congress intended to preserve immunity for claims arising
from the detention of property, and there is no indication
that Congress intended immunity for those claims to turn
on the type of law being enforced.
Petitioner would require Congress to clarify its intent to
cover all law enforcement officers by adding phrases such
as “performing any official law enforcement function,” or
“without limitation.” But Congress could not have chosen
a more all-encompassing phrase than “any other law
enforcement officer” to express that intent. We have no
reason to demand that Congress write less economically
and more repetitiously.
——————
U. S. C. §1, narrowly based on the Court’s previous interpretation of “in
commerce” as a term of art with a narrower meaning). We also have
construed such phrases narrowly when another term in the provision
made sense only under a narrow reading, see United States v. Alvarez-
Sanchez, 511 U. S. 350, 357–358 (1994) (limiting “any law-enforcement
officer” to federal officers because the statute’s reference to “delay”
made sense only with respect to federal officers), and when a broad
reading would have implicated sovereignty concerns, see Raygor v.
Regents of Univ. of Minn., 534 U. S. 533, 541–542 (2002) (applying the
“clear statement rule” applicable to waivers of sovereign immunity to
construe the phrase “all civil actions” to exclude a category of claims,
“even though nothing in the statute expressly exclude[d]” them). None
of the circumstances that motivated our decisions in these cases is
present here.
Cite as: 552 U. S. ____ (2008) 7
Opinion of the Court
Recent amendments to §2680(c) support the conclusion
that “any other law enforcement officer” is not limited to
officers acting in a customs or excise capacity. In the Civil
Asset Forfeiture Reform Act of 2000, Congress added
subsections (c)(1)–(c)(4) to 28 U. S. C. §2680. §3(a), 114
Stat. 211. As amended, §2680(c) provides that the
§1346(b) waiver of sovereign immunity, notwithstanding
the exception at issue in this case, applies to:
“[A]ny claim based on injury or loss of goods, mer
chandise, or other property, while in the possession of
any officer of customs or excise or any other law en
forcement officer, if—
“(1) the property was seized for the purpose of for
feiture 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 forfei
ture law.”
The amendment does not govern petitioner’s claim
because his property was not “seized for the purpose of
forfeiture,” as required by paragraph (1). Nonetheless, the
amendment is relevant because our construction of “any
other law enforcement officer” must, to the extent possible,
ensure that the statutory scheme is coherent and consis
tent. See Robinson v. Shell Oil Co., 519 U. S. 337, 340
(1997) (citing United States v. Ron Pair Enterprises, 489
U. S. 235, 240 (1989)). The amendment canceled the
exception—and thus restored the waiver of sovereign
immunity—for certain seizures of property based on any
8 ALI v. FEDERAL BUREAU OF PRISONS
Opinion of the Court
federal forfeiture law. See 28 U. S. C. §2680(c)(1) (except
ing property claims if “the property was seized for the
purpose of forfeiture under any provision of Federal law
providing for the forfeiture of property” (emphasis added)).
Under petitioner’s interpretation, only law enforcement
officers enforcing customs or excise laws were immune
under the prior version of §2680(c). Thus, on petitioner’s
reading, the amendment’s only effect was to restore the
waiver for cases in which customs or excise officers, or
officers acting in such a capacity, enforce forfeiture laws.
This strikes us as an implausible interpretation of the
statute. If that were Congress’ intent, it is not apparent
why Congress would have restored the waiver with respect
to the enforcement of all civil forfeiture laws instead of
simply those related to customs or excise. Petitioner’s
interpretation makes sense only if we assume that Con
gress went out of its way to restore the waiver for cases in
which customs or excise officers, or officers acting in such
a capacity, enforce forfeiture laws unrelated to customs or
excise. But petitioner fails to demonstrate that customs or
excise officers, or officers acting in such a capacity, ever
enforce civil forfeiture laws unrelated to customs or excise,
much less that they do so with such frequency that Con
gress is likely to have singled them out in the amend
ment.5 It seems far more likely that Congress restored the
——————
5 JUSTICE KENNEDY’S dissent (hereinafter the dissent) argues that,
during border searches, customs and excise officers “routinely” enforce
civil forfeiture laws unrelated to customs or excise. Post, at 12–13. But
the examples the dissent provides do not support that assertion. The
dissent maintains that a customs officer who seizes material defined as
contraband under 49 U. S. C. §80302 et seq., is one such example. Post,
at 12–13. But a customs officer’s authority to effect a forfeiture of such
contraband derives from a specific customs law. See 19 U. S. C.
§1595a(c)(1)(C). Similarly, the dissent suggests that a DEA agent
“assisting a customs official” in a border search who seizes drug-related
contraband under 21 U. S. C. §881 is acting in a “traditional revenue
capacity.” Post, at 12–13. But that argument is based on the assump
Cite as: 552 U. S. ____ (2008) 9
Opinion of the Court
waiver for officers enforcing any civil forfeiture law be
cause, in its view, all such officers were covered by the
exception to the waiver prior to the amendment.
Against this textual and structural evidence that “any
other law enforcement officer” does in fact mean any other
law enforcement officer, petitioner invokes numerous
canons of statutory construction. He relies primarily on
ejusdem generis, or the principle that “when a general
term follows a specific one, the general term should be
understood as a reference to subjects akin to the one with
specific enumeration.” Norfolk & Western R. Co. v. Train
Dispatchers, 499 U. S. 117, 129 (1991). In petitioner’s
view, “any officer of customs or excise or any other law
enforcement officer” should be read as a three-item list,
and the final, catchall phrase “any other law enforcement
officer” should be limited to officers of the same nature as
the preceding specific phrases.
Petitioner likens his case to two recent cases in which
we found the canon useful. In Washington State Dept. of
Social and Health Servs. v. Guardianship Estate of Keffe
ler, 537 U. S. 371, 375 (2003), we considered the clause
“execution, levy, attachment, garnishment, or other legal
——————
tion that an officer who assists in conducting a border search acts in a
customs capacity even if he is not a customs officer and is not enforcing
a customs law. That assumption, far from self-evident, only under
scores the difficulty that would attend any attempt to define the con
tours of the implied limitation on §2680(c)’s reach proposed by peti
tioner and embraced by the dissent. “Acting in a customs or excise
capacity” is not a self-defining concept, and not having included such a
limitation in the statute’s language, Congress of course did not provide
a definition. Finally, the dissent points out that a customs or excise
officer might effect a forfeiture of currency or monetary instruments
under 31 U. S. C. §5317(c). Post, at 12–13. But §5317(c) is hardly a
civil forfeiture law unrelated to customs or excise. See §5317(c)(2)
(authorizing forfeiture of property involved in a violation of, inter alia,
§5316, which sets forth reporting requirements for exporting and
importing monetary instruments).
10 ALI v. FEDERAL BUREAU OF PRISONS
Opinion of the Court
process” in 42 U. S. C. §407(a). Applying ejusdem generis,
we concluded that “other legal process” was limited to
legal processes of the same nature as the specific items
listed. 537 U. S., at 384–385. The department’s scheme
for serving as a representative payee of the benefits due to
children under its care, while a “legal process,” did not
share the common attribute of the listed items, viz., “utili
zation of some judicial or quasi-judicial mechanism . . . by
which control over property passes from one person to
another in order to discharge” a debt. 537 U. S., at 385.
Similarly, in Dolan v. Postal Service, 546 U. S. 481 (2006),
the Court considered whether an exception to the FTCA’s
waiver of sovereign immunity for claims arising out of the
“ ‘loss, miscarriage, or negligent transmission of letters or
postal matter’ ” barred a claim that mail negligently left on
the petitioner’s porch caused her to slip and fall. Id., at
485 (quoting 28 U. S. C. §2680(b)). Noting that “loss” and
“miscarriage” both addressed “failings in the postal obliga
tion to deliver mail in a timely manner to the right ad
dress,” 546 U. S., at 487, the Court concluded that “negli
gent transmission” must be similarly limited, id., at 486–
489, and rejected the Government’s argument that the
exception applied to “all torts committed in the course of
mail delivery,” id., at 490.
Petitioner asserts that §2680(c), like the clauses at issue
in Keffeler and Dolan, ‘ “presents a textbook ejusdem
generis scenario.’ ” Brief for Petitioner 15 (quoting An
drews v. United States, 441 F. 3d 220, 224 (CA4 2006)).
We disagree. The structure of the phrase “any officer of
customs or excise or any other law enforcement officer”
does not lend itself to application of the canon. The phrase
is disjunctive, with one specific and one general category,
not—like the clauses at issue in Keffeler and Dolan—a list
of specific items separated by commas and followed by a
general or collective term. The absence of a list of specific
items undercuts the inference embodied in ejusdem
Cite as: 552 U. S. ____ (2008) 11
Opinion of the Court
generis that Congress remained focused on the common
attribute when it used the catchall phrase. Cf. United
States v. Aguilar, 515 U. S. 593, 615 (1995) (SCALIA, J.,
concurring in part and dissenting in part) (rejecting the
canon’s applicability to an omnibus clause that was “one of
. . . several distinct and independent prohibitions” rather
than “a general or collective term following a list of spe
cific items to which a particular statutory command is
applicable”).
Moreover, it is not apparent what common attribute
connects the specific items in §2680(c). Were we to use the
canon to limit the meaning of “any other law enforcement
officer,” we would be required to determine the relevant
limiting characteristic of “officer of customs or excise.” In
Jarecki v. G. D. Searle Co., 367 U. S. 303 (1961), for exam
ple, the Court invoked noscitur a sociis in limiting the
scope of the term “ ‘discovery’ ” to the common characteris
tic it shared with “ ‘exploration’ ” and “ ‘prospecting.’ ” Id.,
at 307. The Court noted that all three words in conjunc
tion “describe[d] income-producing activity in the oil and
gas and mining industries.” Ibid. Here, by contrast, no
relevant common attribute immediately appears from the
phrase “officer of customs or excise.” Petitioner suggests
that the common attribute is that both types of officers are
charged with enforcing the customs and excise laws. But
we see no reason why that should be the relevant charac
teristic as opposed to, for example, that officers of that
type are commonly involved in the activities enumerated
in the statute: the assessment and collection of taxes and
customs duties and the detention of property.
Petitioner’s appeals to other interpretive principles are
also unconvincing. Petitioner contends that his reading is
supported by the canon noscitur a sociis, according to
which “a word is known by the company it keeps.” S. D.
Warren Co. v. Maine Bd. of Environmental Protection, 547
U. S. 370, 378 (2006). But the cases petitioner cites in
12 ALI v. FEDERAL BUREAU OF PRISONS
Opinion of the Court
support of applying noscitur a sociis involved statutes with
stronger contextual cues. See Gutierrez v. Ada, 528 U. S.
250, 254–258 (2000) (applying the canon to narrow the
relevant phrase, “any election,” where it was closely sur
rounded by six specific references to gubernatorial elec
tions); Jarecki, supra, at 306–309 (applying the canon to
narrow the term “discoveries” to discoveries of mineral
resources where it was contained in a list of three words,
all of which applied to the oil, gas, and mining industries
and could not conceivably all apply to any other industry).
Here, although customs and excise are mentioned twice in
§2680(c), nothing in the overall statutory context suggests
that customs and excise officers were the exclusive focus of
the provision. The emphasis in subsection (c) on customs
and excise is not inconsistent with the conclusion that
“any other law enforcement officer” sweeps as broadly as
its language suggests.
Similarly, the rule against superfluities lends petitioner
sparse support. The construction we adopt today does not
necessarily render “any officer of customs or excise” super
fluous; Congress may have simply intended to remove any
doubt that officers of customs or excise were included in
“law enforcement officers.” See Fort Stewart Schools v.
FLRA, 495 U. S. 641, 646 (1990) (noting that “technically
unnecessary” examples may have been “inserted out of an
abundance of caution”). Moreover, petitioner’s construc
tion threatens to render “any other law enforcement offi
cer” superfluous because it is not clear when, if ever,
“other law enforcement officer[s]” act in a customs or
excise capacity.6 In any event, we do not woodenly apply
——————
6 As an example of “other law enforcement officer[s]” acting in an
excise or customs capacity, petitioner cites Formula One Motors, Ltd. v.
United States, 777 F. 2d 822, 823–824 (CA2 1985) (holding that the
seizure of a vehicle still in transit from overseas by Drug Enforcement
Administration (DEA) agents who searched it for drugs was “suffi
ciently akin to the functions carried out by Customs officials to place
Cite as: 552 U. S. ____ (2008) 13
Opinion of the Court
limiting principles every time Congress includes a specific
example along with a general phrase. See Harrison, 446
U. S., at 589, n. 6 (rejecting an argument that ejusdem
generis must apply when a broad interpretation of
the clause could render the specific enumerations
unnecessary).
In the end, we are unpersuaded by petitioner’s attempt
to create ambiguity where the statute’s text and structure
suggest none. Had Congress intended to limit §2680(c)’s
reach as petitioner contends, it easily could have written
“any other law enforcement officer acting in a customs or
excise capacity.” Instead, it used the unmodified, all-
encompassing phrase “any other law enforcement officer.”
Nothing in the statutory context requires a narrowing
construction—indeed, as we have explained, the statute is
most consistent and coherent when “any other law en
forcement officer” is read to mean what it literally says.
See Norfolk & Western R. Co., 499 U. S., at 129 (noting
that interpretive canons must yield “when the whole
context dictates a different conclusion”). It bears empha
sis, moreover, that §2680(c), far from maintaining sover
eign immunity for the entire universe of claims against
——————
the agents’ conduct within the scope of section 2680(c)”). But it is not
clear that the agents in that case were acting in an excise or customs
capacity rather than in their ordinary capacity as law enforcement
agents. It seems to us that DEA agents searching a car for drugs are
acting in their capacity as officers charged with enforcing the Nation’s
drug laws, not the customs or excise laws.
Similarly, the dissent notes that 14 U. S. C. §89(a) authorizes Coast
Guard officers to enforce customs laws. Post, at 5-6. But the very next
subsection of §89 provides that Coast Guard officers effectively are
customs officers when they enforce customs laws. See §89(b)(1) (provid
ing that Coast Guard officers “insofar as they are engaged, pursuant to
the authority contained in this section, in enforcing any law of the
United States shall . . . be deemed to be acting as agents of the particu
lar executive department . . . charged with the administration of the
particular law”). As a result, a Coast Guard officer enforcing a customs
law is a customs officer, not some “other law enforcement officer.”
14 ALI v. FEDERAL BUREAU OF PRISONS
Opinion of the Court
law enforcement officers, does so only for claims “arising
in respect of” the “detention” of property. We are not at
liberty to rewrite the statute to reflect a meaning we deem
more desirable.7 Instead, we must give effect to the text
Congress enacted: Section 2680(c) forecloses lawsuits
against the United States for the unlawful detention of
property by “any,” not just “some,” law enforcement
officers.
III
For the reasons stated, the judgment of the Court of
Appeals for the Eleventh Circuit is
Affirmed.
——————
7Congress, we note, did provide an administrative remedy for lost
property claimants like petitioner. Federal agencies have authority
under 31 U. S. C. §3723(a)(1) to settle certain “claim[s] for not more
than $1,000 for damage to, or loss of, privately owned property that . . .
is caused by the negligence of an officer or employee of the United
States Government acting within the scope of employment.” The BOP
has settled more than 1,100 such claims in the last three years. Brief
for Respondents 41, n. 17.
Cite as: 552 U. S. ____ (2008) 1
KENNEDY, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 06–9130
_________________
ABDUS-SHAHID M. S. ALI, PETITIONER v. FEDERAL
BUREAU OF PRISONS ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[January 22, 2008]
JUSTICE KENNEDY, with whom JUSTICE STEVENS,
JUSTICE SOUTER, and JUSTICE BREYER join, dissenting.
Statutory interpretation, from beginning to end, re
quires respect for the text. The respect is not enhanced,
however, by decisions that foreclose consideration of the
text within the whole context of the statute as a guide to
determining a legislature’s intent. To prevent textual
analysis from becoming so rarefied that it departs from
how a legislator most likely understood the words when he
or she voted for the law, courts use certain interpretative
rules to consider text within the statutory design. These
canons do not demand wooden reliance and are not by
themselves dispositive, but they do function as helpful
guides in construing ambiguous statutory provisions. Two
of these accepted rules are ejusdem generis and noscitur a
sociis, which together instruct that words in a series
should be interpreted in relation to one another.
Today the Court holds, if my understanding of its opin
ion is correct, that there is only one possible way to read
the statute. Placing implicit reliance upon a comma at the
beginning of a clause, the Court says that the two maxims
noted, and indeed other helpful and recognized principles
of statutory analysis, are not useful as interpretative aids
in this case because the clause cannot be understood by
what went before. In my respectful submission the
2 ALI v. FEDERAL BUREAU OF PRISONS
KENNEDY, J., dissenting
Court’s approach is incorrect as a general rule and as
applied to the statute now before us. Both the analytic
framework and the specific interpretation the Court now
employs become binding on the federal courts, which will
confront other cases in which a series of words operate in a
clause similar to the one we consider today. So this case is
troubling not only for the result the Court reaches but also
for the analysis it employs. My disagreements with the
Court lead to this dissent.
I
A
The Federal Tort Claims Act (FTCA) allows those who
allege injury from governmental actions over a vast sphere
to seek damages for tortious conduct. The enacting Con
gress enumerated 13 exceptions to the Act’s broad waiver
of sovereign immunity, all of which shield the Government
from suit in specific instances. These exceptions must be
given careful consideration in order to prevent interfer
ence with the governmental operations described. As
noted in Kosak v. United States, 465 U. S. 848, 853, n. 9
(1984), however, “unduly generous interpretations of the
exceptions run the risk of defeating the central purpose of
the statute.”
As the Court states, at issue here is the extent of the
exception for suits arising from the detention of goods in
defined circumstances. The relevant provision excepts
from the general waiver
“claim[s] arising in respect of the assessment or collec
tion of any tax or customs duty, or the detention of
any goods, merchandise, or other property by any offi
cer of customs or excise or any other law enforcement
officer.” 28 U. S. C. §2680(c).
Both on first reading and upon further, close considera
tion, the plain words of the statute indicate that the excep
Cite as: 552 U. S. ____ (2008) 3
KENNEDY, J., dissenting
tion is concerned only with customs and taxes. The provi
sion begins with a clause dealing exclusively with customs
and tax duties. And the provision as a whole contains four
express references to customs and tax, making revenue
duties and customs and excise officers its most salient
features. Cf. Gutierrez v. Ada, 528 U. S. 250, 254–255
(2000).
This is not to suggest that the Court’s reading is wholly
impermissible or without some grammatical support.
After all, detention of goods is not stated until the outset
of the second clause and at the end of the same clause the
words “any other law enforcement officer” appear; so it can
be argued that the first and second clauses of the provision
are so separate that all detentions by all law enforcement
officers in whatever capacity they might act are covered.
Still, this ought not be the preferred reading; for between
the beginning of the second clause and its closing refer
ence to “any other law enforcement officer” appears an
other reference to “officer[s] of customs or excise,” this
time in the context of property detention. This is quite
sufficient, in my view, to continue the limited scope of the
exception. At the very least, the Court errs by adopting a
rule which simply bars all consideration of the canons of
ejusdem generis and noscitur a sociis. And when those
canons are consulted, together with other common princi
ples of interpretation, the case for limiting the exception to
customs and tax more than overcomes the position main
tained by the Government and adopted by the Court.
The ejusdem generis canon provides that, where a seem
ingly broad clause constitutes a residual phrase, it must
be controlled by, and defined with reference to, the “enu
merated categories . . . which are recited just before it,” so
that the clause encompasses only objects similar in na
ture. Circuit City Stores, Inc. v. Adams, 532 U. S. 105, 115
(2001). The words “any other law enforcement officer”
immediately follow the statute’s reference to “officer[s] of
4 ALI v. FEDERAL BUREAU OF PRISONS
KENNEDY, J., dissenting
customs or excise,” as well as the first clause’s reference to
the assessment of tax and customs duties. 28 U. S. C.
§2680(c).
The Court counters that §2680(c) “is disjunctive, with
one specific and one general category,” rendering ejusdem
generis inapplicable. Ante, at 10. The canon’s applicabil
ity, however, is not limited to those statutes that include a
laundry list of items. See, e.g., Norfolk & Western R. Co. v.
Train Dispatchers, 499 U. S. 117, 129 (1991) (“[W]hen a
general term follows a specific one, the general term
should be understood as a reference to subjects akin to the
one with specific enumeration”). In addition, ejusdem
generis is often invoked in conjunction with the interpreta
tive canon noscitur a sociis, which provides that words are
to be “ ‘known by their companions.’ ” Washington State
Dept. of Social and Health Servs. v. Guardianship Estate
of Keffeler, 537 U. S. 371, 384 (2003) (quoting Gutierrez,
supra, at 255). The general rule is that the “meaning of a
word, and, consequently, the intention of the legislature,”
should be “ascertained by reference to the context, and by
considering whether the word in question and the sur
rounding words are, in fact, ejusdem generis, and referable
to the same subject-matter.” Neal v. Clark, 95 U. S. 704,
709 (1878) (internal quotation marks omitted)).
A proper reading of §2680(c) thus attributes to the last
phrase (“any other law enforcement officer”) the discrete
characteristic shared by the preceding phrases (“officer[s]
of customs or excise” and “assessment or collection of any
tax or customs duty”). See also Norton v. Southern Utah
Wilderness Alliance, 542 U. S. 55, 62–63 (2004) (applying
ejusdem generis to conclude that “ ‘failure to act’ ” means
“failure to take an agency action” (emphasis in original));
Washington State Dept. of Social and Health Servs., supra,
at 384–385 (holding that the phrase “other legal process”
in 42 U. S. C. §407(a) refers only to the utilization of a
judicial or quasi-judicial mechanism, the common attrib
Cite as: 552 U. S. ____ (2008) 5
KENNEDY, J., dissenting
ute shared by the phrase and the statutory enumeration
preceding it). Had Congress intended otherwise, in all
likelihood it would have drafted the section to apply to
“any law enforcement officer, including officers of customs
and excise,” rather than tacking “any other law enforce
ment officer” on the end of the enumerated categories as it
did here.
The common attribute of officers of customs and excise
and other law enforcement officers is the performance of
functions most often assigned to revenue officers, includ
ing, inter alia, the enforcement of the United States’ reve
nue laws and the conduct of border searches. Although
officers of customs and officers of excise are in most in
stances the only full-time staff charged with this duty,
officers of other federal agencies and general law enforce
ment officers often will be called upon to act in the tradi
tional capacity of a revenue officer. For example, Drug
Enforcement Administration (DEA) or Federal Bureau of
Investigation (FBI) agents frequently assist customs
officials in the execution of border searches. See, e.g.,
United States v. Gurr, 471 F. 3d 144, 147–149 (CADC
2006) (FBI involved in search of financial documents at
border); United States v. Boumelhem, 339 F. 3d 414, 424
(CA6 2003) (“FBI had been cooperating with Customs as a
part of a joint task force”); Formula One Motors, Ltd. v.
United States, 777 F. 2d 822, 824 (CA2 1985) (DEA agents
were performing functions traditionally carried out by
Customs officials where they seized and searched an
automobile that had been shipped from abroad and was
still in its shipping container). Cf. United States v.
Schoor, 597 F. 2d 1303, 1305–1306 (CA9 1979) (upholding
constitutionality of cooperation amongst federal agencies
in border searches). Similarly, 14 U. S. C. §89(a) grants
the Coast Guard plenary authority to stop and board
American vessels to inspect for obvious customs violations.
See, e.g., United States v. Gil-Carmona, 497 F. 3d 52 (CA1
6 ALI v. FEDERAL BUREAU OF PRISONS
KENNEDY, J., dissenting
2007) (Coast Guard assisted an Immigration and Customs
Enforcement patrol aircraft in interdicting a vessel off the
coast of Puerto Rico). To the extent they detain goods
whose possession violates customs laws, the Coast Guard
officers—while not “officer[s] of customs or excise,” 28
U. S. C. §2680(c)—are without doubt engaging in the
enforcement of the United States’ revenue laws.
The same is true in the tax context. Under 26 U. S. C.
§6321, a delinquent taxpayer’s property is subject to forfei
ture, see Glass City Bank v. United States, 326 U. S. 265
(1945), and may be seized by any federal agent assisting
the Internal Revenue Service (IRS) in executing the forfei
ture, cf. United States v. $515,060.42 in United States
Currency, 152 F. 3d 491, 495 (CA6 1998) (IRS and FBI
jointly seized currency). Thus, the final phrase “any other
law enforcement officer” has work to do and makes consid
erable sense when the statute is limited in this way.
B
The Court reaches its contrary conclusion by concentrat
ing on the word “any” before the phrase “other law en
forcement officer.” 28 U. S. C. §2680(c). It takes this
single last phrase to extend the statute so that it covers all
detentions of property by any law enforcement officer in
whatever capacity he or she acts. There are fundamental
problems with this approach, in addition to the ones al
ready mentioned.
First, the Court’s analysis cannot be squared with the
longstanding recognition that a single word must not be
read in isolation but instead defined by reference to its
statutory context. See King v. St. Vincent’s Hospital, 502
U. S. 215, 221 (1991) (“[T]he meaning of statutory lan
guage, plain or not, depends on context”); Dolan v. Postal
Service, 546 U. S. 481, 486 (2006) (“A word in a statute
may or may not extend to the outer limits of its defini
tional possibilities. Interpretation of a word or phrase
Cite as: 552 U. S. ____ (2008) 7
KENNEDY, J., dissenting
depends upon reading the whole statutory text, consider
ing the purpose and context of the statute, and consulting
any precedents or authorities that inform the analysis”).
This is true even of facially broad modifiers. The word
“any” can mean “different things depending upon the
setting,” Nixon v. Missouri Municipal League, 541 U. S.
125, 132 (2004); see also Small v. United States, 544 U. S.
385, 388 (2005) (citing cases), and must be limited in its
application “to those objects to which the legislature in
tended to apply them,” United States v. Palmer, 3 Wheat.
610, 631 (1818).
In Gutierrez, 528 U. S., at 254–255, for example, we held
that the phrase “in any election” in the Organic Act of
Guam, 48 U. S. C. §1422, does not refer broadly to all
elections but only to the election of Guam’s Governor and
Lieutenant Governor. The Court explained that the refer
ence to “any election” is preceded by two references to
gubernatorial elections and followed by four more refer
ences. In the context of such “relentless repetition,” the
Court concluded that the phrase must be “known by [its]
companions.” 528 U. S., at 255. Likewise, in United
States v. Alvarez-Sanchez, 511 U. S. 350, 357 (1994), the
Court addressed a phrase similar to the statutory provi
sion we interpret today. The Court noted that the respon
dent erred in “placing dispositive weight on the broad
statutory reference to ‘any’ law enforcement officer or
agency without considering the rest of the statute,” and
consulted instead “ ‘the context in which [the phrase] is
used.’ ” Id., at 358 (quoting Deal v. United States, 508
U. S. 129, 132 (1993); alteration in original).
As already mentioned, the context of §2680(c) suggests
that, in accordance with these precedents, the statutory
provision should be interpreted narrowly to apply only to
customs and revenue duties. Its first clause deals exclu
sively with customs and tax duties and, between the first
and second clauses, it refers two more times to customs
8 ALI v. FEDERAL BUREAU OF PRISONS
KENNEDY, J., dissenting
and tax. See Gutierrez, supra, at 254–255; A-Mark, Inc. v.
United States Secret Serv. Dept. of Treasury, 593 F. 2d
849, 851 (CA9 1978) (Tang, J., concurring) (“The clauses
both dwell exclusively on customs and taxes, except for the
final reference to other law-enforcement officers”).
Further, §2680(c) provides that there will be immunity
only where there has been a “detention” of goods, mer
chandise, or property. “[D]etention” is defined by legal
and nonlegal dictionaries alike as a “compulsory,” “forced,”
or “punitive” containment. Black’s Law Dictionary 459
(7th ed. 1999) (compulsory); American Heritage Dictionary
494 (4th ed. 2000) (forced or punitive). The issue whether
petitioner’s property was “detained” within the meaning of
the statute was not raised in this case; and so the Court
leaves for another day the exception’s applicability to
these facts. See ante, at 4, n. 2. It is important, however,
to bear in mind that, in the context of detention of goods
by customs and tax agents, it will be the rare case when
property is voluntarily turned over, rather than forcibly
appropriated; indeed, customs and tax agents are in the
regular business of seizing and forfeiting property, as are
law enforcement agents acting in the capacity of revenue
enforcement. See Dept. of Homeland Security, U. S. Cus
toms and Border Protection and U. S. Immigration and
Customs Enforcement, Mid-Year FY 2007—Top IPR
Commodities Seized (May 2007), online at http://www.
cbp.gov /linkhandler /cgov /import/commercial_enforcement/
ipr / seizure /07_ midyr_ seizures.ctt / 07_ midyr_ seizures.pdf
(all Internet materials as visited Jan. 10, 2008, and avail
able in Clerk of Court’s case file) (by midyear 2007, cus
toms officials had executed 7,245 commodity seizures,
worth a total of $110,198,350); GAO, Border Security:
Despite Progress, Weaknesses in Traveler Inspec-
tions Exist at Our Nation’s Ports of Entry 17 (GAD–08–
219, Nov. 2007), http://www.gao.gov/new.items/d08219.pdf
(“According to [U. S. Customs and Border Protection] CBP,
Cite as: 552 U. S. ____ (2008) 9
KENNEDY, J., dissenting
in fiscal year 2006, CBP officers . . . seized more than
644,000 pounds of illegal drugs, intercepted nearly 1.7
million prohibited agricultural items, and seized over $155
million in illegal commercial merchandise, such as coun
terfeit footwear and handbags” (footnote omitted)).
In other contexts, however, the word “detention” may or
may not accurately describe the nature of the Government
action. A prisoner’s voluntary decision to deliver property
for transfer to another facility, for example, bears a
greater similarity to a “bailment”—the delivery of personal
property after being held by the prison in trust, see
American Heritage Dictionary, supra, at 134—than
to a “detention.”
Not a single federal statute mentions the Federal Bu
reau of Prisons in the context of property detention. On
the other hand, the majority of the nine federal statutes
other than §2680(c) containing a reference to the detention
of goods, merchandise, or other property are specific to
customs and excise. Compare 19 U. S. C. §1499(a) (au
thorizing customs agents to examine and detain imported
merchandise); §1595a(c)(3) (authorizing customs officials
to detain merchandise introduced contrary to law); 26
U. S. C. §5311 (authorizing internal revenue officers to
detain containers containing distilled spirits, wines, or
beer where there is reason to believe applicable taxes have
not been paid); 50 U. S. C. App. §2411(a)(2)(A) (authoriz
ing customs officials to seize and detain goods at ports of
entry in the enforcement of war and national defense); 22
U. S. C. §464 (authorizing customs agents to detain armed
vessels and any property found thereon); with 18 U. S. C.
§981(e) (“The Attorney General, the Secretary of the
Treasury, or the Postal Service, as the case may be, shall
ensure the equitable transfer pursuant to paragraph (2) of
any forfeited property to the appropriate State or local law
enforcement agency . . . . The United States shall not be
liable in any action arising out of the seizure, detention,
10 ALI v. FEDERAL BUREAU OF PRISONS
KENNEDY, J., dissenting
and transfer of seized property to State or local officials”);
28 U. S. C. §524(c)(1) (2000 ed. and Supp. V) (appropriat
ing a special fund for the purpose of property detention
under any law enforced or administered by the Depart
ment of Justice); 31 U. S. C. §9703(a)(1)(A) (establishing a
Department of Treasury Forfeiture Fund to pay the ex
penses of property detention); 16 U. S. C. §§1540(e)(3),
3375(b) (authorizing the detention of goods and packages
for inspection where there is reason to believe there has
been a violation of laws governing fish, wildlife, and
plants).
This would seem to indicate that Congress contemplated
that the statutory provision considered here would apply
only in those narrow circumstances where the officer is in
the regular business of forfeiting property, namely reve
nue enforcement. At the very least, it demonstrates that
“detention” will be a difficult concept to apply case-by-case
under the majority’s interpretation of the statute—a
problem alleviated by limiting the statute to customs and
tax.
Second, the Court’s construction of the phrase “any
other law enforcement officer” runs contrary to “ ‘our duty
“to give effect, if possible, to every clause and word of a
statute.” ’ ” Duncan v. Walker, 533 U. S. 167, 174 (2001)
(quoting United States v. Menasche, 348 U. S. 528, 538–
539 (1955)). The Court’s reading renders “officer[s] of
customs or excise” mere surplusage, as there would have
been no need for Congress to have specified that officers of
customs and officers of excise were immune if they indeed
were subsumed within the allegedly all-encompassing
“any” officer clause. See Circuit City Stores, 532 U. S., at
114.
Third, though the final reference to “any other law
enforcement officer” does result in some ambiguity, the
legislative history, by virtue of its exclusive reference to
customs and excise, confirms that Congress did not shift
Cite as: 552 U. S. ____ (2008) 11
KENNEDY, J., dissenting
its attention from the context of revenue enforcement
when it used these words at the end of the statute. See,
e.g., S. Rep. No. 1400, 79th Cong., 2d Sess., 33 (1946) (in
discussing 28 U. S. C. §2680(c) referring only to “the de
tention of goods by customs officers”); A. Holtzoff, Report
on Proposed Federal Tort Claims Bill 16 (1931) (noting
that the property-detention exception was added to the
legislation to “include immunity from liability in respect of
loss in connection with the detention of goods or merchan
dise by any officer of customs or excise”).
Indeed, the Court’s construction reads the exception to
defeat the central purpose of the statute, an interpretative
danger the Court has warned against in explicit terms.
See Kosak, 465 U. S., at 854, n. 9 (the Court must identify
only “ ‘those circumstances which are within the words
and reason of the exception’—no less and no more” (quot
ing Dalehite v. United States, 346 U. S. 15, 31 (1953)). It
is difficult to conceive that the FTCA, which was enacted
by Congress to make the tort liability of the United States
“the same as that of a private person under like circum
stance[s],” S. Rep. No. 1400, at 32, would allow any officer
under any circumstance to detain property without being
accountable under the Act to those injured by his or her
tortious conduct. If Congress wanted to say that all law
enforcement officers may detain property without liability
in tort, including when they perform general law enforce
ment tasks, it would have done so in more express terms;
one would expect at least a reference to law enforcement
officers outside the customs or excise context either in the
text of the statute or in the legislative history. In the
absence of that reference, the Court ought not presume
that the liberties of the person who owns the property
would be so lightly dismissed and disregarded.
12 ALI v. FEDERAL BUREAU OF PRISONS
KENNEDY, J., dissenting
II
A
The 2000 amendments do not require a contrary conclu
sion. The Civil Asset Forfeiture Reform Act of 2000
(CAFRA), as applicable here, limits the operation of
§2680(c)’s exception. See §3(a), 114 Stat. 211. The limita
tion (i.e. the exception to the exception) applies where
there has been an injury or loss of goods and “the property
was seized for the purpose of forfeiture under any provi
sion of Federal law.” 28 U. S. C. §2680(c)(1). In my view
the amendment establishes that officers of customs and
excise, and law enforcement officials performing functions
traditionally reserved for revenue officers, shall be liable
in tort for damage to the property when the owner’s inter
est in the goods in the end is not forfeited (and when other
conditions apply). And this is so regardless of whether
the officer acted under the revenue laws of the United
States or, alternatively, another civil or criminal forfeiture
provision.
The majority’s reading of CAFRA for a contrary proposi
tion is premised on the assumption that there is no cir
cumstance in which a customs or excise officer, or a officer
acting in such a capacity, would “enforce civil forfeiture
laws unrelated to customs or excise.” Ante, at 9. But
customs and tax officials, along with law enforcement
officers performing customs and tax duties, routinely do
just that. See, e.g., Customs and Border Protection, Sei
zures and Penalties Links, http://www.cbp.gov/xp/cgov/
toolbox/legal/authority_enforce/seizures_penalties.xml (CBP
has “full authority to . . . seize merchandise for violation of
CBP laws or those of other federal agencies that are en
forced by CBP”). Indeed, the customs laws expressly
contemplate forfeitures and seizures of property under
nonrevenue provisions. See, e.g., 19 U. S. C. §1600 (“The
procedures [governing seizures of property] set forth in
[§§1602–1619] shall apply to seizures of any property
Cite as: 552 U. S. ____ (2008) 13
KENNEDY, J., dissenting
effected by customs officers under any law enforced or
administered by the Customs Service unless such law
specifies different procedures”).
By way of example, a customs or excise official might
effect a civil forfeiture of currency or monetary instru
ments under the Bank Secrecy Act, 31 U. S. C. §5317(c)
(2000 ed., Supp. V); or of counterfeit instruments, illegal
music recordings, or firearms under the Contraband Act,
49 U. S. C. §80302 et seq. Similarly, a DEA agent assist
ing a customs official in a border search (and thus acting
in a customs capacity) might effect a civil forfeiture of
vehicles or goods associated with the drug trade under
federal drug laws. See 21 U. S. C. §881; see also, e.g.,
Formula One Motors, 777 F. 2d, at 822–823. Though
acting pursuant to a civil forfeiture law that is not specific
to customs and taxes, the DEA agent would be covered by
§2680(c)’s exception to the exception because he or she
would be acting in a traditional revenue capacity—that of
conducting a routine search of persons and effects of per
sons crossing an international boundary.
The Court counters that the Bank Secrecy Act, 31
U. S. C. §5317(c), is not “unrelated to customs or excise”
because it cross-references a requirement for exporting
and importing monetary instruments, §5316. See ante, at
8, n. 5. But §5316, despite being “[r]elated” to customs
duties, is part of the federal Currency and Foreign Trans
actions Reporting Act, see §5311 et seq. (2000 ed. and
Supp. IV), not the United States’ customs laws.
The Court also notes that customs agents have the
authority to seize contraband under the customs laws,
particularly 19 U. S. C. §1595a(c)(1). I do not dispute that
customs agents often act under customs laws when seizing
property. My point, which goes unrefuted by the Court, is
that it was reasonable for Congress to have specified that
customs and excise officers would be covered by the excep
tion to the exception even when acting pursuant to federal
14 ALI v. FEDERAL BUREAU OF PRISONS
KENNEDY, J., dissenting
laws more generally. For instance, §1595a(c)(1) applies
only where “[m]erchandise . . . is introduced . . . into the
United States contrary to law,” which appears to target
the importation of property subject to duty or entry re
strictions. Title 28 U. S. C. §2680(c), by contrast, was
amended in 2000 to encompass not only the detention of
“goods or merchandise” but the detention of all “property.”
§3(a), 114 Stat. 211. In circumstances not involving im
ported “merchandise,” then, the customs official would be
acting pursuant to law enforcement authority derived not
from the customs laws but, inter alia, the Contraband and
Bank Secrecy Acts. The same is true of noncustoms offi
cers acting in a customs capacity.
At the very least this renders the Court’s reliance on the
views of a subsequent Congress suspect. We have said
“subsequent acts can shape or focus” the meaning of a
statute. FDA v. Brown & Williamson Tobacco Corp., 529
U. S. 120, 143 (2000). There is no indication, however,
that by adding a forfeiture exception to the exception,
Congress intended to broaden the scope of the original
immunity. Cf. SEC v. Capital Gains Research Bureau,
Inc., 375 U. S. 180, 199–200 (1963).
B
Though the Court does not much rely on the point,
perhaps it has concerns respecting suits like the one now
before us. Petitioner sues for lost property valued at about
$177. Law enforcement officers in the federal prison
system must take inventory of the property they store,
and with just under 200,000 persons in the federal
prison population, see Federal Bureau of Prisons, Weekly
Population Report, online at http://www.bop.gov/news/
weekly_report.jsp (reporting 199,342 federal inmates as of
January 7, 2008), the burden on the Government to ac
count for missing items of little value could be a substan
tial one.
Cite as: 552 U. S. ____ (2008) 15
KENNEDY, J., dissenting
There are sound reasons, though, for rejecting this
concern in interpreting the statute. To begin with, as
already discussed, if it were a congressional objective to
give a comprehensive exception to all officers who detain
property, Congress most likely would have written a spe
cific provision to address the point, quite apart from the
special concerns it had with customs and revenue. The
exception as the Court now interprets it extends not only
to trivial detentions, not only to prison officials, not only to
those in custody, but to all detentions of property of what
ever value held by all law enforcement officials, a reading
that simply does not comport with the plain text and
context of the statute.
Second, as the Court observed when interpreting an
other exception that raised the concern of numerous frivo
lous claims, liability for negligent transmission “is a risk
shared by any business [involved in management of deten
tion facilities],” including the Government. Dolan, 546
U. S., at 491.
Third, there are already in place administrative proce
dures that must be exhausted before the suit is allowed,
diminishing the number of frivolous suits that would be
heard in federal court. See 42 U. S. C. §1997e(a) (“No
action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law,
by a prisoner confined in any jail, prison, or other correc
tional facility until such administrative remedies as are
available are exhausted”). Under 28 CFR §543.31(a)
(2007), the “owner of the damaged or lost property” first
must file an FTCA claim with the Bureau of Prisons (BOP)
regional office; the BOP, in turn, is authorized by statute
to settle administrative claims for not more than $1,000,
see 31 U. S. C. §3723(a), which likely encompasses most
claims brought by federal prisoners. Only if the prisoner
is “dissatisfied with the final agency action” may he or she
file suit in an “appropriate U. S. District Court.” 28 CFR
16 ALI v. FEDERAL BUREAU OF PRISONS
KENNEDY, J., dissenting
§543.32(g).
* * *
If Congress had intended to give sweeping immunity to
all federal law enforcement officials from liability for the
detention of property, it would not have dropped this
phrase onto the end of the statutory clause so as to appear
there as something of an afterthought. The seizure of
property by an officer raises serious concerns for the lib
erty of our people and the Act should not be read to permit
appropriation of property without a remedy in tort by
language so obscure and indirect.
For these reasons, in my view, the judgment of the
Court of Appeals ought to be reversed.
Cite as: 552 U. S. ____ (2008) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 06–9130
_________________
ABDUS-SHAHID M. S. ALI, PETITIONER v. FEDERAL
BUREAU OF PRISONS ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[January 22, 2008]
JUSTICE BREYER, with whom JUSTICE STEVENS joins,
dissenting.
I agree with JUSTICE KENNEDY that context makes clear
that Congress intended the phrase “any other law en
forcement officer” to apply only to officers carrying out
customs or excise duties. See 28 U. S. C. §2680(c). But I
write separately to emphasize, as JUSTICE KENNEDY’s
dissent itself makes clear, that the relevant context ex
tends well beyond Latin canons and other such purely
textual devices.
As with many questions of statutory interpretation, the
issue here is not the meaning of the words. The dictionary
meaning of each word is well known. Rather, the issue is
the statute’s scope. What boundaries did Congress intend
to set? To what circumstances did Congress intend the
phrase, as used in this statutory provision, to apply? The
majority answers this question by referring to an amend
ment that creates an exception for certain forfeitures and
by emphasizing the statutory word “any.” As to the
amendment, I find JUSTICE KENNEDY’s counterargument
convincing. See ante, at 11–13. And, in my view, the word
“any” provides no help whatsoever.
The word “any” is of no help because all speakers (in
cluding writers and legislators) who use general words
such as “all,” “any,” “never,” and “none” normally rely
upon context to indicate the limits of time and place
2 ALI v. FEDERAL BUREAU OF PRISONS
BREYER, J., dissenting
within which they intend those words to do their linguistic
work. And with the possible exception of the assertion of a
universal truth, say by a mathematician, scientist, phi
losopher, or theologian, such limits almost always exist.
When I call out to my wife, “There isn’t any butter,” I do
not mean, “There isn’t any butter in town.” The context
makes clear to her that I am talking about the contents of
our refrigerator. That is to say, it is context, not a diction
ary, that sets the boundaries of time, place, and circum
stance within which words such as “any” will apply. See
United States v. Palmer, 3 Wheat. 610, 631 (1818) (Mar
shall, C. J.) (“[G]eneral words,” such as the word “ ‘any’,”
must “be limited” in their application “to those objects to
which the legislature intended to apply them”); Small v.
United States, 544 U. S. 385, 388 (2005) (“The word ‘any’
considered alone cannot answer” the question “whether
the statutory reference ‘convicted in any court’ includes a
conviction entered in a foreign court”); Nixon v. Missouri
Municipal League, 541 U. S. 125, 132 (2004) (“ ‘[A]ny’ ”
means “different things depending upon the setting”);
United States v. Alvarez-Sanchez, 511 U. S. 350, 357
(1994) (“[R]espondent errs in placing dispositive weight
on the broad statutory reference to ‘any’ law enforce-
ment officer or agency without considering the rest of the
statute”).
Context, of course, includes the words immediately
surrounding the phrase in question. And canons such as
ejusdem generis and noscitur a sociis offer help in evaluat
ing the significance of those surrounding words. Yet that
help is limited. That is because other contextual features
can show that Congress intended a phrase to apply more
broadly than the immediately surrounding words by
themselves suggest. See Circuit City Stores, Inc. v. Ad
ams, 532 U. S. 105, 138–140 (2001) (SOUTER, J., dissent
ing) (finding “good reasons” not to apply ejusdem generis
because the statute’s history and purposes make clear that
Cite as: 552 U. S. ____ (2008) 3
BREYER, J., dissenting
the words “any other class of workers” in the phrase “sea
men, railroad employees, or any other class of workers”
refer, not just to other transportation workers, but to
workers of all kinds including retail store clerks). It is
because canons of construction are not “conclusive” and
“are often countered . . . by some maxim pointing in a
different direction.” Id., at 115 (majority opinion). And it
is because these particular canons simply crystallize what
English speakers already know, namely, that lists often
(but not always) group together items with similar charac
teristics. (That is why we cannot, without comic effect,
yoke radically different nouns to a single verb, e.g., “He
caught three salmon, two trout, and a cold.”)
In this case, not only the immediately surrounding
words but also every other contextual feature supports
JUSTICE KENNEDY’s conclusion. The textual context in
cludes the location of the phrase within a provision that
otherwise exclusively concerns customs and revenue du
ties. And the nontextual context includes several features
that, taken together, indicate that Congress intended a
narrow tort-liability exception related to customs and
excise.
First, drafting history shows that the relevant portion of
the bill that became the Federal Tort Claims Act con
cerned only customs and excise. Initially, the relevant
provision of the bill exempted only claims “arising in
respect of the assessment or collection of any tax or cus
toms duty.” See, e.g., S. 4377, 71st Cong., 2d Sess., p. 4
(1930). In 1931, a Special Assistant to the Attorney Gen
eral, Alexander Holtzoff, wrote additional draft language,
namely, “or the detention of any goods or merchandise by
any officer of customs or excise or any other law enforce
ment officer.” Report on Proposed Federal Tort Claims
Bill 2 (1931) (emphasis added). Holtzoff, in a report to a
congressional agency, said that the expanded language
sought “to include immunity from liability in respect of
4 ALI v. FEDERAL BUREAU OF PRISONS
BREYER, J., dissenting
loss in connection with the detention of goods or merchan
dise by any officer of customs or excise.” Id., at 16. Holt
zoff explained that the language was suggested by a simi
lar British bill that mentioned only customs and excise
officials. Ibid. (referring to the bill proposed in the Crown
Proceedings Committee Report §11(5)(c), pp. 17–18 (Apr.
1927) (Cmd. 2842) (“No proceedings shall lie under this
section . . . for or in respect of the loss of or any deteriora
tion or damage occasioned to, or any delay in the release
of, any goods or merchandise by reason of anything done
or omitted to be done by any officer of customs and excise
acting as such”)); see Kosak v. United States, 465 U. S.
848, 857, n. 13 (1984) (While “the ideas expressed [in
Holtzoff’s report] should not be given great weight in
determining the intent of the Legislature,” at least in
some circumstances, “it seems to us senseless to ignore
entirely the views of [the provision’s] draftsman”). And
Members of Congress repeatedly referred to the exception
as encompassing claims involving customs and excise
functions. See, e.g., H. R. Rep. No. 2428, 76th Cong., 3d
Sess., p. 5 (1940); S. Rep. No. 1196, 77th Cong., 2d Sess.,
p. 7 (1942); H. R. Rep. No. 2245, 77th Cong., 2d Sess., p. 10
(1942); H. R. Rep. No. 1287, 79th Cong., 1st Sess., p. 6
(1945); S. Rep. No. 1400, 79th Cong., 2d Sess., p. 33 (1946).
Second, insofar as Congress sought, through the Act’s
exceptions, to preclude tort suits against the Government
where “adequate remedies were already available,” Kosak,
supra, at 858; see S. Rep. No. 1400, supra, at 33; H. R.
Rep. No. 1287, supra, at 6 (setting forth that purpose), a
limited exception makes sense; a broad exception does not.
Other statutes already provided recovery for plaintiffs
harmed by federal officers enforcing customs and tax laws
but not for plaintiffs harmed by all other federal officers
enforcing most other laws. See Bazuaye v. United States,
83 F. 3d 482, 485–486 (CADC 1996) (detailing history).
Third, the practical difference between a limited and a
Cite as: 552 U. S. ____ (2008) 5
BREYER, J., dissenting
broad interpretation is considerable, magnifying the im
portance of the congressional silence to which JUSTICE
KENNEDY points, see ante, at 11. A limited interpretation
of the phrase “any other law enforcement officer” would
likely encompass only those law enforcement officers
working, say, at borders and helping to enforce customs
and excise laws. The majority instead interprets this
provision to include the tens of thousands of officers per
forming unrelated tasks. The Justice Department esti
mates that there are more than 100,000 law enforcement
officers, not including members of the armed services.
See, e.g., Dept. of Justice, Bureau of Justice Statistics
Bulletin, Federal Law Enforcement Officers, 2004, p. 1
(July 2006). And although the law’s history contains
much that indicates the provision’s scope is limited to
customs and excise, it contains nothing at all suggesting
an intent to apply the provision more broadly, indeed, to
multiply the number of officers to whom it applies by what
is likely one or more orders of magnitude. It is thus not
the Latin canons, ejusdem generis and noscitur a sociis,
that shed light on the application of the statutory phrase
but JUSTICE SCALIA’s more pertinent and easily remem
bered English-language observation that Congress “does
not . . . hide elephants in mouseholes.” Whitman v. Ameri
can Trucking Assns., Inc., 531 U. S. 457, 468 (2001).
For these reasons, I dissent and I join JUSTICE KEN
NEDY’s dissent.