Andrews v. United States

Filed: March 31, 2006

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-7269
(CA-03-859)

ANTHONY ANDREWS,

Plaintiff - Appellant,

versus

UNITED STATES OF AMERICA,
Defendant - Appellee.

O R D E R

The court amends its opinion filed January 25, 2006, as

follows:

On pages 2-15, the case caption header “United States v.

Andrews” is changed to “Andrews v. United States.”

For the Court

/s/ Patricia S. Connor
____________________________
Clerk
 Filed: February 28, 2006

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-7269
(CA-03-859)

ANTHONY ANDREWS,

Plaintiff - Appellant,

versus

UNITED STATES OF AMERICA,
Defendant - Appellee.

O R D E R

The court amends its opinion filed January 25, 2006, as

follows:

On the cover sheet, the party designation of the

United States is changed from “Plaintiff-Appellee” to “Defendant-

Appellee,” the party designation of Anthony Andrews is changed

from “Defendant-Appellant” to “Plaintiff-Appellant,” and the case

caption is realigned to reflect this change.

On page 3, line 1, the date “September 17, 2002" is replaced

with “January 7, 2003.”

For the Court

/s/ Patricia S. Connor
____________________________
Clerk
 PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

ANTHONY ANDREWS,
Plaintiff-Appellant,

v.
 No. 04-7269

UNITED STATES OF AMERICA,
Defendant-Appellee.

Appeal from the United States District Court for
the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CA-03-859)

Argued: September 22, 2005

Decided: January 25, 2006

Before WILLIAMS, KING, and SHEDD, Circuit Judges.

Reversed and remanded with instructions by published opinion. Judge
Williams wrote the majority opinion, in which Judge Shedd concurred.
Judge King wrote a dissenting opinion.

COUNSEL

ARGUED: Alistair Elizabeth Newbern, Supervising Attorney,
GEORGETOWN UNIVERSITY LAW CENTER, Appellate Litigation
Program, Washington, D.C., for Appellant. Robert P. McIntosh,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Steven
H. Goldblatt, Director, Heather Kissel, Student Coun-
2 ANDREWS V. UNITED STATES

sel, Randi Wallach, Student Counsel, GEORGETOWN UNIVER-
SITY LAW CENTER, Appellate Litigation Program, Washington,
D.C., for Appellant. Paul J. McNulty, United States Attorney, Alexan-
dria, Virginia, for Appellee.

OPINION

WILLIAMS, Circuit Judge:

Anthony Andrews, an inmate in the Federal Correctional Institute
— Petersburg, VA (FCI Petersburg), appeals the district court’s dis-
missal of his suit brought under the Federal Torts Claim Act (FTCA),
28 U.S.C.A. §§ 1346 and 2671-2680 (West Supp. 2005), against the
United States alleging that the negligence of a Bureau of Prison
(BOP) officer caused the loss of his property. The district court con-
cluded that the United States had not waived its sovereign immunity
because the BOP officer was covered by the exception to the FTCA
set forth in 28 U.S.C.A. § 2680(c), and it therefore dismissed
Andrews’s complaint for lack of subject-matter jurisdiction. Because
we conclude that the BOP officer here is not covered by § 2680(c),
we reverse.

I.

On August 27, 2002, Andrews was temporarily transferred from
FCI Petersburg to the Eastern District of North Carolina for a hearing.
Andrews had accumulated nearly two duffle bags of legal materials
related to his case. Recognizing that he could not take all of this mate-
rial with him to North Carolina, Andrews took only a stack of legal
materials and left in his cell locker all his other remaining legal mate-
rials and personal property. While he was in North Carolina, FCI
Petersburg needed additional cell space, so a BOP officer packed
Andrews’s belongings and prepared an Inmate Personal Property
Record. When completing the form, the BOP officer erroneously indi-
cated that Andrews had been permanently transferred from FCI
Petersburg. Because of this error, Andrews’s property was shipped
from FCI Petersburg and lost.
 ANDREWS V. UNITED STATES 3
On January 7, 2003, Andrews returned to FCI Petersburg and found
his possessions missing. On January 17, 2003, he filed an administrative
claim with the BOP seeking damages for the missing property. The BOP
denied his claim, and he filed suit against the United States under the
FTCA. On April 13, 2004, the United States moved to dismiss An-
drews’s suit on the ground of sovereign immunity.

On July 27, 2004, the district court granted the government’s motion
to dismiss. The court concluded that BOP officers were "law
enforcement officer[s]" for purposes of § 2680(c)’s exception to the
waiver of sovereign immunity. As a result, the court held that the United
States had not waived sovereign immunity for suits against BOP officers
for the detention of property, and it dismissed Andrews’s suit for lack of
subject-matter jurisdiction. Andrews noted a timely appeal.

II.

We review de novo the district court’s interpretation of § 2680(c) and
its resulting conclusion that it lacked subject-matter jurisdiction. See
Treacy v. Newdunn Assoc., LLP, 344 F.3d 407, 410 (4th Cir. 2003).
The first step in determining the meaning of a statute is to examine the
statute’s plain language. United Seniors Ass’n, Inc. v. Social Sec. Admin.,
423 F.3d 397, 402 (4th Cir. 2005). In doing so, we look at "the language
itself, the specific context in which that language is used, and the broader
context of the statute as a whole." Rob-inson v. Shell Oil Co., 519 U.S.
337, 341 (1997).

We begin our analysis with the text of § 2680(c) and its context in
the FTCA’s statutory scheme. The FTCA broadly waives the sovereign
immunity of the United States for monetary claims "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." 28 U.S.C.A. § 1346(b)(1). Congress limited this broad
waiver, however, by retaining sovereign immunity in thirteen distinct
areas. One such area is described in § 2680(c), which states:

The provisions of . . . [the FTCA] shall not apply to . . .
4 ANDREWS V. UNITED STATES

(c) Any claim 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 officer of cus-
toms or excise or any other law enforcement officer . . . .

Neither Andrews nor the Government disputes that Andrews’s negli-
gence claim "aris[es] in respect of . . . the detention . . . of property."
Rather, the single point of disagreement is whether the BOP officer
here is a "law enforcement officer" within the meaning of the subsec-
tion. If he is not such a "law enforcement officer," then sovereign
immunity does not bar Andrews’s complaint. If he is, the United
States has retained sovereign immunity from Andrews’s suit, and the
district court lacked subject-matter jurisdiction to hear it.

A.

Although the Supreme Court and this circuit previously have
addressed § 2680(c), neither court has decided the meaning of the
phrase "any other law enforcement officer."1 See Kosak v. United
States, 465 U.S. 848, 852 (1984) (holding that § 2680(c)’s exception
for claims "arising in respect of . . . the detention of goods" includes
a claim for damage to the goods during the detention); Perkins v.
United States, 55 F.3d 910, 915 (4th Cir. 1995) (holding that
§ 2680(c)’s reference to the assessment or collection of any tax bars
only those claims that are "related, however, remotely, to a bona fide
effort to assess or collect a particular tax debt"). In fact, in Kosak the
Supreme Court reserved the question of precisely what types of law
enforcement officers are covered by § 2680(c). See 465 U.S. 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." (quoting 28 U.S.C.A. § 2680(c))).

Although the Court in Kosak did not determine the meaning of the
phrase "any other law enforcement officer," the Court did establish an
important interpretative method by which we should construe the
phrase. Although it is a familiar canon of statutory construction that
ambiguities in waivers of sovereign immunity are to be "strictly con-

1Nine other circuit courts of appeals have addressed the meaning of 28
U.S.C.A. § 2680(c), as discussed infra at Part III.
 ANDREWS V. UNITED STATES 5
strued . . . in favor of the sovereign," see Lane v. Pena, 518 U.S. 187,
192 (1996), in Kosak, the Court rejected the Government’s argument
that the corollary of this canon was also true — that exceptions to
waivers of sovereign immunity should be broadly construed in favor
of the sovereign. 465 U.S. at 853 n.9. Instead, the Court instructed
that the correct approach in construing the meaning of § 2680(c) is "to
identify those circumstances which are within the words and reason
of the exception — no less and no more." Id. (internal quotation
marks omitted). Otherwise, "unduly generous interpretations of the
exceptions run the risk of defeating the central purpose of the
[FTCA]." Id. Under Kosak, then, our task is to interpret the phrase
"any other law enforcement officer" without placing a thumb on the
scale for the benefit of the sovereign.2 Instead, we must determine
precisely who is a "law enforcement officer" under § 2680(c).

B.

1.

Andrews claims that his property was lost due to the negligence of
a BOP officer, who in the abstract is assuredly a "law enforcement
officer." But before we can conclude that the BOP officer here is a
"law enforcement officer" within the meaning of § 2680(c), we must
determine whether the context of the statute limits the "any other law
enforcement officer" phrase. Examining the phrase in context is nec-
essary because "[w]e do not . . . construe statutory phrases in isola-
tion; we read statutes as a whole." United States v. Morton, 467 U.S.
822, 828 (1984). In fulfilling this requirement, we find particularly
applicable the ejusdem generis and noscitur a sociis canons of statu-
tory construction. These related canons remove the phrase from the
abstract and give it the meaning the context demands. Cf. Wash. State
Dep’t of Soc. and Health Servs. v. Keffeler, 537 U.S. 371, 383-84
(2003) (concluding after applying the canons of ejusdem generis and
noscitur a sociis that the contextual meaning of the term "other legal

2In Perkins v. United States, 55 F.3d 910 (1995), we stated that
"[§ 2680(c)], as with all provisions of the FTCA, must be . . . construed
in favor of the sovereign." Id. at 913 (internal quotation marks omitted).
As explained in the text, the Supreme Court has explicitly rejected this
approach. We therefore apply the approach directed by Kosak.
6 ANDREWS V. UNITED STATES

process" is more restrictive than the meaning the term would have in
the abstract). Applying these canons, we conclude that the meaning
of "law enforcement officer" in the context of § 2680(c) is narrower
than its meaning in the abstract.

According to the ejusdem generis canon, "[a] general word or
phrase [that] follows a list of specifics . . . will be interpreted to
include only items of the same type as those listed." Black’s Law Dic-
tionary 556 (8th ed. 2004). In other words, we apply the ejusdem
generis canon to determine the meaning of a catch-all phrase by look-
ing to the common elements among the specific things mentioned in
the list. For example, "if a statute lists ‘fishing rods, nets, hooks, bob-
bers, sinkers and other equipment,’ ‘other equipment’ might mean
plastic worms and fishing line, but not snow shovels or baseball bats."
Bazuaye v. United States, 83 F.3d 482, 484 (D.C. Cir. 1996) (internal
citation omitted); see also Reiche v. Smythe, 80 U.S. 162 (1871)
(applying the ejusdem generis canon to conclude that "birds" are not
"other live animals" for the purpose of a statute establishing customs
duties for "all horses, mules, cattle, sheep, hogs, and other live ani-
mals"). In these examples, isolating the general phrase from the spe-
cific things mentioned would result in the statute encompassing far
more than the context of the statute suggests the legislature intended.

Section 2680(c) presents a textbook ejusdem generis scenario. It
contains a general phrase — "any other law enforcement officer" —
that follows a recitation of specific things — "any officer of customs
or excise" — whose similar characteristic is that they are charged
with the function of enforcing the revenue laws (customs and tax,
respectively) of the United States. Applying the ejusdem generis
canon to § 2680(c), a DEA officer detaining property to enforce the
customs laws is a "law enforcement officer" because he is performing
a function similar to an "officer of customs or excise," see e.g., For-
mula One Motors, Ltd. v. United States, 777 F.2d 822, 824 (2d Cir.
1985), but the BOP officer moving Andrews’s belongings to make
room for another inmate would not be a "law enforcement officer"
because he is not performing a customs or excise function.

Similar to the canon of ejusdem generis is the canon of noscitur a
sociis. According to the noscitur a sociis canon, the meaning of an
undefined word or phrase "should be determined by the words imme-
 ANDREWS V. UNITED STATES 7
diately surrounding it." Black’s Law Dictionary 1087 (8th ed. 2004).
This canon infuses into "law enforcement officer" a "meaning [gath-
ered] from the words around it." Jarecki v. G.D. Searle & Co., 367
U.S. 303, 307 (1961) (concluding that in a statute referring to
"[i]ncome resulting from exploration, discovery, or prospecting" the
word "discovery" is limited to only drilling and mining activities
because the other words "strongly suggest that a precise and narrow
application [of the word ‘discovery’] was intended"). A more recent
example of the application of the noscitur a sociis canon is found in
Gutierrez v. Ada, 528 U.S. 250 (2000), in which the Supreme Court
examined the meaning of the phrase "in any election" as used in the
Guam Organic Act. Id. at 254-258. Despite the unqualified language
of the phrase, the Court instructed that "[t]he key to understanding . . .
the phrase" is to look at the references surrounding it in the statute.
Id. at 254. Because the other words in the statute related solely to
gubernatorial elections, the Court determined that Congress did not
"shift its attention" from the context of gubernatorial elections when
using the unqualified general phrase "in any election" but instead
intended for the phrase to refer only to gubernatorial elections. Id. at
255.

Applying the noscitur a sociis canon here, we are convinced that
§ 2680(c)’s specific references to the enforcement of tax and customs
laws indicates that the "law enforcement officer" referenced therein
should be limited to those officers acting in a tax and customs
enforcement capacity. The opening clause of § 2680(c) refers solely
to claims arising from the specific actions of assessing or collecting
a tax or customs duty. 28 U.S.C.A. § 2680(c) ("Any claim arising in
respect of the assessment or collection of any tax or customs duty
. . . ."). We have interpreted this clause to mean that the exemption
applies only to those actions that are "related, however remotely, to
a bona fide effort to assess or collect" a tax or customs duty. See Per-
kins, 55 F.3d at 915. The next clause of § 2680(c) makes reference to
the detention of property by specific government officials whose job
is to enforce the tax and customs laws. 28 U.S.C.A. § 2680(c)(". . .
any officer of customs or excise . . . ."). These "clauses both dwell
exclusively on customs and taxes," A-Mark, Inc. v. U.S. Secret Ser-
vice, 593 F.2d 849, 851 (9th Cir. 1978) (Tang, J., concurring), and the
fact that they have a clear and defined meaning limited to the enforce-
ment of the tax and customs laws confirms that Congress did not
8 ANDREWS V. UNITED STATES

"shift its attention" outside of the tax and customs context when it
added the unqualified "any other law enforcement officer" phrase.
Instead, the limitation of § 2680(c) to tax and customs activities indi-
cates that Congress intended the meaning of "law enforcement offi-
cer" to be limited to the specific focus of the rest of § 2680(c) — the
assessment or collection of tax or customs duties or the detention of
property associated with these activities. Because the BOP officer was
not performing such a function, he is not a "law enforcement officer"
for purposes of § 2680(c).3

2.

Our reading of § 2680(c) is in accord with a principal reason for
the subsection: to avoid extending the FTCA "to suits for which ade-
quate remedies were already available." Kosak, 465 U.S. at 858.4
Before the FTCA’s enactment, a property owner was able to bring
suit against individual customs or tax officers for property damage,
for which the United States provided indemnification through 28
U.S.C.A. § 2006 (West Supp. 2005) under certain conditions not rele-
vant here, and this right of action exists even now. Id. at 860-61;
Bazuaye, 83 F.3d at 485 (discussing the history of the rights of action
against customs and tax officers). The effect of this statutory indemni-
fication is to skirt the United States’ sovereign immunity by providing
a back-door entry to the federal fisc to obtain monetary damages: the
historical suit is against a customs or tax officer, but the United States
pays the judgment. Because "adequate remedies" existed for claims
arising from the enforcement of the customs or tax laws, it was

3Our dissenting colleague contends that "the plain meaning of the
phrase ‘any other law enforcement officer’ . . . is just that — any other
law enforcement officer." Post at 14. With respect, we cannot divorce the
plain words from their context. See Food and Drug Admin. v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) ("It is a fundamen-
tal canon of statutory construction that the words of a statute must be
read in their context and with a view to their place in the overall statu-
tory scheme." (emphasis added and internal quotation marks omitted)).
4The other reasons for the exception were to ensure that "certain gov-
ernmental activities [are] not disrupted by the threat of damage suits" and
to avoid exposing "the United States to liability for excessive or fraudu-
lent claims." Kosak v. United States, 465 U.S. 848, 858 (1984).
 ANDREWS V. UNITED STATES 9
unnecessary to include those claims within the FTCA’s waiver of sov-
ereign immunity. Conversely, at the time of the FTCA’s enactment,
plaintiffs enjoyed no similar right to sue law enforcement officers act-
ing outside a customs and tax enforcement capacity. Holding that
BOP officers are "law enforcement officer[s]" under § 2680(c) would,
at the time of the FTCA’s enactment, not have denied plaintiffs a
duplicate remedy, but rather would have denied them of any remedy
at all.5

C.

The Government argues that the meaning of "law enforcement offi-
cer" in § 2680(c) should be determined by construing that subsection
in light of § 2680(h), which defines an "investigative or law enforce-
ment officer" in terms that encompass BOP officers.6 Under the in

5Since 1922, Congress has authorized agency heads to settle, for not
more than $1000, claims involving the negligence of governmental
employees. See 31 U.S.C.A. § 3723 (West 2003); Bazuaye v. United
States, 83 F.3d 482, 486 n.3 (D.C. Cir. 1996). This administrative settle-
ment applies to loss of a prisoner’s property by the negligence of a BOP
officer. 31 U.S.C.A. § 3723 (authorizing an administrative settlement for
the ". . . loss of . . . property . . . caused by the negligence of an officer
or employee of the United States Government . . ."). Because, however,
this remedy does not allow a judicial suit and provides only limited
recovery, it has never been duplicative of the remedy available through
the FTCA. See Bazuaye, 83 F.3d at 486 n.3.
While other statutory or judicially created remedies may now exist for
plaintiffs such as Andrews, we are aware of no other remedy in existence
at the time of the FTCA’s enactment in which a plaintiff could receive
payment from the federal fisc.
6Section 2680(h) exempts from the FTCA’s waiver of sovereign
immunity,
Any claim arising out of assault, battery, false imprisonment,
false arrest, malicious prosecution, abuse of process, libel, slan-
der, misrepresentation, deceit, or interference with contract
rights: Provided, That, with regard to acts or omissions of inves-
tigative or law enforcement officers of the United States Govern-
ment, the provisions of this chapter and section 1346(b) of this
title shall apply to any claim arising . . . out of assault, battery,
10 ANDREWS V. UNITED STATES

pari materia canon, neighboring statutory subsections that refer to the
same subject matter "must be read . . . as if they were a single statute."
Virginia Int’l Terminals, Inc. v. Edwards, 398 F.3d 313, 317 (4th Cir.
2005). The Government’s proposed application of the in pari materia
canon is erroneous, however, because Congress expressly limited the
definition of "investigative or law enforcement officer" to § 2680(h).
See 28 U.S.C.A. § 2680(h) ("For the purpose of this subsection,
‘investigative or law enforcement officer’ means . . . ." (emphasis
added)). To apply the § 2680(h) definition beyond that subsection
would make meaningless the limitation that Congress placed on the
definition. Cf. United States v. Amada, 200 F.3d 647, 650-651 (9th
Cir. 2000) (refusing to apply the in pari materia canon to define a
term in another statute when the definition of the term in one statute
was expressly limited to that statute).

The Government also contends that the amendment to § 2680(c) in
the Civil Asset Forfeiture Act of 2000 (CAFRA), Pub. L. No. 106-
185, 114 Stat. 211 (April 25, 2000), compels us to conclude that BOP
officers are "law enforcement officer[s]" for purposes of § 2680(c).
CAFRA created an exception to § 2680(c) that re-waived sovereign
immunity for claims for property damage occurring while property
was detained for an ultimately unsuccessful civil forfeiture.7 The Gov-

false imprisonment, false arrest, abuse of process, or malicious
prosecution. For the purpose of this subsection, "investigative or
law enforcement officer" means any officer of the United States
who is empowered by law to execute searches, to seize evidence,
or to make arrests for violations of Federal law.
28 U.S.C.A. § 2680(h).
7CAFRA added, inter alia, the following exception to the end of
§ 2680(c):
[T]he provisions of this chapter and section 1346(b) of this title
apply to any claim based on injury or loss of goods, merchan-
dise, or other property, while in the possession of any officer of
customs or excise or any other law enforcement officer if —
(1) the property was seized for the purpose of forfeiture
under any provision of Federal law providing for the forfei-
ture of property other than as a sentence imposed upon con-
viction of a criminal offense;
 ANDREWS V. UNITED STATES 11
ernment argues that interpreting "law enforcement officer" to encom-
pass only those law enforcement officers acting in a tax or customs
capacity would make the CAFRA amendment meaningless because
adequate remedies already existed for property damage claims arising
from tax and customs enforcement. We disagree. The remedy created
by CAFRA is different from the historical remedy against customs
and tax officers. To recover against the United States through the his-
torical remedy, a plaintiff must show, inter alia, that the customs or
tax officer acted without probable cause. 28 U.S.C.A. § 2006. The
CAFRA remedy, however, has no such requirement. Instead, if a
plaintiff satisfies CAFRA’s four-part showing, he only need show that
the customs or tax officer acted negligently. See 28 U.S.C.A.
§ 2680(c). We therefore reject the Government’s argument that our
interpretation of "law enforcement officer" renders CAFRA superflu-
ous.8

(2) the interest of the claimant was not forfeited;
(3) the interest of the claimant was not remitted or miti-
gated (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 forfei-
ture under a Federal criminal forfeiture law.
28 U.S.C.A. § 2680(c).
8In addition to the arguments noted in the text, the Government also
argues that the legislative history of CAFRA supports an expansive con-
struction of "law enforcement officer" that includes the BOP officer in
this case. Because we conclude that the text of and reason for § 2680(c)
compels a narrow construction of "law enforcement officer," it is unnec-
essary for us to consider the legislative history. Even if we were to do
so, we note that the Government is mistaken to rely on CAFRA’s legisla-
tive history to determine the meaning of the "any other law enforcement
officer" phrase. The phrase is original to § 2680(c); therefore, it is the
intent of the Congress that enacted the original subsection that controls.
See Mackey v. Lanier Collection Agency, 486 U.S. 825, 840 (1988)
("[T]hese [Committee Report] views — absent an amendment to the
original language of the section — do not direct our resolution of this
case . . . . It is the intent of the Congress that enacted [the section] . . .
that controls." (internal quotation marks omitted, second alteration origi-
nal)).
12 ANDREWS V. UNITED STATES

D.

In accordance with the text of and reason for § 2680(c), we con-
clude that the phrase "any other law enforcement officer" is limited
to those officers acting in a tax or customs capacity. Because the BOP
officer who moved Andrews’s property was not acting in this capac-
ity, § 2680(c) does not bar Andrews’s complaint.

III.

Our decision places us in agreement with three Courts of Appeals
— the Sixth, Seventh, and District of Columbia Circuits — that have
held that "law enforcement officer" in § 2680(c) refers only to those
law enforcement officers acting in a tax or customs capacity. See
Kurinsky v. United States, 33 F.3d 594, 598 (6th Cir. 1994) (FBI
agents not included); Ortloff v. United States, 335 F.3d 652, 660 (7th
Cir. 2003) (BOP officers not included); Bazuaye, 83 F.3d at 486
(postal inspectors not included).9 These courts reached their decisions,
as we have, after applying the canons of ejusdem generis and noscitur
a sociis and after examining the reason Congress included the excep-
tion of § 2680(c) in the FTCA. Kurinsky, 33 F.3d at 596-98; Ortloff,
335 F.3d at 658-59; Bazuaye, 83 F.3d at 484-86.

We recognize that six other Courts of Appeals — the Fifth, Eighth,
Ninth, Tenth, Eleventh, and Federal Circuits — have concluded that
"law enforcement officer" is not limited to officers acting in a tax or
customs capacity.10 See Chapa v. U.S. Dep’t of Justice, 339 F.3d 388,

9In Formula One Motors, Ltd. v. United States, 777 F.2d 822, 824 (2d
Cir. 1985), the Second Circuit reached a decision consistent with the
minority view, but did not expressly adopt this view. Id. at 823-24
("[W]e are satisfied that the detention of the automobile and its search
by DEA agents fell within the scope of section 2680(c), without deter-
mining whether the exemption would apply to searches by law enforce-
ment officers with no relationship to the customs or excise functions . . . .
The seizure of an automobile still in transit from overseas and a search
of that automobile for narcotics are sufficiently akin to the functions car-
ried out by Customs officials to place the agents’ conduct within the
scope of section 2680(c).").
10We have uncovered no First or Third Circuit decisions addressing the
meaning of § 2680(c)’s "any other law enforcement officer" phrase. Cf.
 ANDREWS V. UNITED STATES 13
390 (5th Cir. 2003) (BOP officers included); Cheney v. United States,
972 F.2d 247, 248 (8th Cir. 1992) (federal drug task force officers
included); Bramwell v. U.S. Bureau of Prisons, 348 F.3d 804, 807
(9th Cir. 2003) (BOP officers included); Hatten v. White, 275 F.3d
1208, 1210 (10th Cir. 2002) (same); Schlaebitz v. U.S. Dep’t of
Justice, 924 F.2d 193, 195 (11th Cir. 1991) (United States Marshals
included); Ysasi v. Rivkind, 856 F.2d 1520, 1525 (Fed. Cir. 1988)
(determining that the 11th Circuit would conclude that Border Patrol
Agents are "law enforcement officer[s]"). With respect to these
courts, we agree that "[w]hile the quantity of circuits favors the gov-
ernment’s position, the quality of decisions favors [Andrews’s] view."
Ortloff, 335 F.3d at 659. None of the courts adopting the majority
view applied the ejusdem generis or noscitur a sociis canons. In fact,
the only canons of construction applied by any of the courts that have
adopted the majority view are that § 2680(c) should be construed in
favor of the sovereign, see, e.g., Chapa, 339 F.3d at 390, and that
§ 2680(c) should be construed in pari materia with § 2680(h), see,
e.g., id.; Bramwell, 348 F.3d at 807. In Kosak, the Supreme Court
rejected this application of the first canon, and for the reasons dis-
cussed in Part II.C., supra, we believe that the application of the in
pari materia canon is improper.

IV.

Andrews also claims that the district court docket sheet incorrectly
lists that his suit was "dismissed as frivolous pursuant to [the] Pris-
oner Litigation Reform Act."11 Because we conclude that the district
court erred in dismissing Andrews’s suit, it necessarily follows that
Andrews’s suit was not frivolous. See Adepegba v. Hammons, 103
F.3d 383, 387 (5th Cir. 1996) (concluding that when a case dismissed
as frivolous under PLRA is reversed on appeal, the "strike" is nulli-

United States v. Bein, 214 F.3d 408, 415-416 (3d Cir. 2000) (noting in
dicta that "[i]f a party were to proceed under the FTCA on a negligence
theory, then his or her claim might be barred because the lost or damaged
property was detained by law enforcement officials" (emphasis added)).
11The district court’s order never specifically characterized Andrews’s
suit as frivolous; instead, it simply directed the clerk to note the disposi-
tion of the case for purposes of the PLRA.
14 ANDREWS V. UNITED STATES

fied). On remand, the district court should make the necessary correc-
tions to the records.

V.

For the foregoing reasons, we hold that § 2680(c) did not divest the
district court of jurisdiction over Andrews’s complaint because the
BOP officer who allegedly caused the loss of his property is not a
"law enforcement officer" within the meaning of that subsection. We
therefore reverse the district court’s order dismissing Andrews’s com-
plaint for lack of subject-matter jurisdiction and remand for proceed-
ings consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS

KING, Circuit Judge, dissenting:

Although I appreciate the panel majority’s thoughtful analysis of
the general purposes of the Tort Claims Act and the various canons
of statutory construction, I view such an analysis as unnecessary to
resolve this appeal. In my view, the plain meaning of the phrase "any
other law enforcement officer," as found in 28 U.S.C. § 2680(c), is
just that — any other law enforcement officer. As we have consis-
tently recognized, when statutory language is plain and unambiguous,
our inquiry is at its end, and we then simply apply the statute accord-
ing to its terms. See Stiltner v. Beretta U.S.A. Corp., 74 F.3d 1473,
1482 (4th Cir. 1996) (en banc) ("If the [statutory] language is plain
and unambiguous, we look no further.").

The majority finds ambiguous the phrase "any other law enforce-
ment officer," drawing its view from the fact that it is found in a stat-
ute principally concerning the Government’s customs and excise
activities.* However, that fact alone is not enough to render ambigu-
ous an otherwise unambiguous phrase. In ruling that the immunity

*Although the majority does not expressly conclude that the phrase
"any other law enforcement officer" is ambiguous, it does so by implica-
tion in applying the canons of statutory construction. It is settled law that
we only apply the canons of construction if we first conclude that the
statutory language is ambiguous. See Stiltner, 74 F.3d at 1482.
 ANDREWS V. UNITED STATES 15
protections accorded the Government and its officials by § 2680(c)
does not reach the detention of property claim in this proceeding, the
panel majority essentially adds the words "acting in a customs or
excise capacity" to that provision’s concluding phrase, "any other law
enforcement officer." Our task in the judiciary, of course, is to inter-
pret a statute as enacted — not to rewrite it.

Although I am a lone voice on this panel, I am not alone in espous-
ing this position. Six of the nine courts of appeal to have addressed
this issue agree with my view. See Halverson v. United States, 972
F.2d 654, 656 (5th Cir. 1992) (concluding that "plain language" of
§ 2680(c) encompasses property detentions by law enforcement offi-
cers acting in any capacity); see also Bramwell v. U.S. Bureau of
Prisons, 348 F.3d 804, 806-07 (9th Cir. 2003); Hatten v. White, 275
F.3d 1208, 1210 (10th Cir. 2002); Cheney v. United States, 972 F.2d
247, 248-49 (8th Cir. 1992); Schlaebitz v. U.S. Dep’t of Justice, 924
F.2d 193, 194-95 (11th Cir. 1991); Ysasi v. Rivkind, 856 F.2d 1520,
1524-25 (Fed. Cir. 1988).

If Congress had intended § 2680(c) to apply only to those law
enforcement officers acting in a customs or excise capacity, it could,
and would, have done so explicitly. Because it failed to do so, I would
have our Court adopt the majority view — that adhered to by the
Fifth, Eighth, Ninth, Tenth, Eleventh, and Federal Circuits — and
enforce § 2680(c) according to its plain terms; withholding jurisdic-
tion over (and according sovereign immunity for) claims arising out
of detentions of property by a federal law enforcement officer acting
in any capacity. In this proceeding, Andrews, a federal prisoner, seeks
to sue the United States for an alleged property loss caused by an offi-
cer of the Federal Bureau of Prisons. In my view, and in the view of
six of our sister circuits, such an officer is "any other law enforcement
officer" under § 2680(c), and the United States is thus entitled to
claim sovereign immunity on the cause of action asserted here. See
Bramwell, 348 F.3d at 806-07 (according immunity to United States
under § 2680(c) for acts of Bureau of Prisons officer). I would there-
fore affirm the district court’s dismissal of Andrews’s complaint for
lack of subject matter jurisdiction.

I respectfully dissent.