United States Court of Appeals,
Fifth Circuit.
No. 92–8269
Summary Calendar.
Ronald K. HALVERSON, Plaintiff–Appellant,
v.
UNITED STATES of America, Defendant–Appellee.
Sept. 23, 1992.
Appeal from the United States District Court for the Western District of Texas.
Before KING, DAVIS and WIENER, Circuit Judges.
PER CURIAM:
In this Federal Tort Claims Act (FTCA) case, Plaintiff–Appellant Ronald K. Halverson
appeals the dismissal of his action against the government, Defendant–Appellee herein, for lack of
subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1). The district court's dismissal was
grounded in the exception found in § 28 U.S.C. § 2680(c) for claims based on loss of goods and
merchandise obtained by law enforcement officers, thus presenting this circuit its first opportunity to
consider that issue. We hold that the subject exception is not limited to losses resulting from
detention of goods and merchandise by customs or tax officers only, but is applicable to claims arising
from the det ention of goods and merchandise by any federal law enforcement officers in the
performance of their lawful duties, and therefore affirm the district court's dismissal.
I
FACTS AND PROCEEDINGS
Proceeding pro se and in forma pauperis, Halverson filed a complaint against the Immigration
and Naturalization Service (INS) under the FTCA, seeking $5,735 in damages for the alleged loss
of his personal property. Halverson had been arrested at an immigration checkpoint when Border
Patrol agents found cocaine concealed under the back seat of the car in which he was a passenger.
In seeking recompense for the loss of personal belongings, Halverson alleges that the arresting agent
took possession of the missing articles and that his resulting loss was caused by the arresting officers'
failure to follow proper inventory procedures.
The government filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) for Halverson's
failure to file his complaint within six months following the denial of his administrative claim.
Halverson responded to the government 's motion and also filed a motion of his own for summary
judgment. In its response to Halverson's summary judgment motion the government conceded that
his complaint was filed timely. The government alleged, however, that the district court lacked
subject matter jurisdict ion because Halverson's claim was barred by an exception contained in §
2680(c) of the FTCA and therefore should be dismissed pursuant to Rule 12(b)(1). The court denied
Halverson's motion for summary judgment and granted the government's Rule 12(b)(1) motion to
dismiss. Halverson's notice of appeal was timely filed.
II
ANALYSIS
Halverson insists that the § 2680(c) exception applies to property losses involving customs
or tax agents only, and is therefore inapplicable to the INS officers here implicated. The issue is res
nova in this circuit.
The FTCA is a waiver of sovereign immunity, providing general authority for tort suits against
the government: "The United States shall be liable, respecting the provisions of this title relating to
tort claims, in the same manner and to the same extent as a private individual under like
circumstances...."1 Section 2680, however, creates several exceptions to this broad waiver of
sovereign immunity, including one for damages resulting from the detention of goods:
1
28 U.S.C. § 2674.
The provisions of this chapter and section 1346(b) of this title shall not apply to—
.....
(c) Any claim arising in respect of the assessment or collection of any tax or customs duty,
or the detention of any goods or merchandise by any officer of customs or excise or any
other law-enforcement officer. 2
The Supreme Court has interpreted § 2680(c) to cover not only damages occurring in the act
of detention itself, but also those flowing from the detention, such as the negligent storing of antiques
or art objects.3 The Court did not address, however, whether the § 2680(c) exception applies when
the officers who detain such property are not customs or tax officials and are not acting in a customs
or tax capacity. In fact, the Court expressly refused to decide what types of officers other than
customs or tax were covered by the § 2680(c) exclusion.4
We have applied the § 2680 exclusion to IRS agents and customs officers,5 but have not
addressed its application to other law enforcement officers. Other circuits have found, however, that
"other law-enforcement officer" may include officers in other agencies performing their proper duties.
See, e.g., Schleaebitz v. United States,6 (luggage confiscated by U.S. Marshal); Ysasi v. Rivkind,7
(property confiscated by Immigration and Naturalization Service); Formula One Motors v. United
States,8 (merchandise destroyed by the Drug Enforcement Agency); United States v. 2,116 Boxes
2
28 U.S.C. § 2680 (emphasis added).
3
Kosak v. United States, 465 U.S. 848, 104 S.Ct. 1519, 79 L.Ed.2d 860 (1984).
4
465 U.S. at 852 n. 6, 104 S.Ct. at 1522 n. 6.
5
In B & F Trawlers, Inc. v. United States, 841 F.2d 626, 628 (5th Cir.1988), however, this
court applied the exclusion to Coast Guard officers after concluding that "[t]he provision [was]
relevant here because Coast Guard officers are also considered customs officers, 14 U.S.C. § 143,
and law enforcement officers, 14 U.S.C. §§ 2, 89." But we declined to apply the § 2680(c)
exception to the Suits in Admiralty Act or the Public Vessels Act which governed that case.
6
924 F.2d 193, 194 (11th Cir.1991).
7
856 F.2d 1520 (Fed.Cir.1988).
8
777 F.2d 822 (2nd Cir.1985).
of Boned Beef,9 (property seized by the Department of Agriculture).
We find persuasive the reasoning of the other circuits, not to mention the plain language of
§ 2680(c) that exempts "[a]ny claim arising in respect of ... the detention of any goods or merchandise
by ... any other law-enforcement officer."10 Halverson has not alleged that the Border Patrol agents
acted outside their lawful authority;11 he alleges only that they were negligent in failing to follow
proper inventory procedure. We hold that § 2680(c) exempts from the FTCA's waiver of sovereign
immunity any claim based on the detention of goods by any federal law enforcement officers in the
performance of their lawful duties. The district court, therefore, committed no error in dismissing
Halverson's claim for lack of subject matter jurisdiction.
AFFIRMED.
9
726 F.2d 1481 (10th Cir.) (cert. denied sub nom. Jarboe–Lackey Feedlots, Inc. v. United
States, 469 U.S. 825, 105 S.Ct. 105, 83 L.Ed.2d 49 (1984).
10
28 U.S.C. § 2680(c).
11
Employees of the Immigration and Naturalization Service are authorized to make arrests.
See 8 U.S.C. § 1356.