United States Court of Appeals
Fifth Circuit
F I L E D
August 5, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 02-30931
Summary Calendar
ARNULFO CHAPA,
Plaintiff-Appellant,
versus
UNITED STATES DEPARTMENT OF JUSTICE; ET. AL.,
Defendants,
UNITED STATES OF AMERICA,
Defendant-
Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
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Before JONES, STEWART and DENNIS, Circuit Judges.
PER CURIAM:
Arnulfo Chapa, a federal prisoner, filed a suit under the Federal Tort Claims Act (“FTCA”)
alleging that he had tendered two boxes of personal items to employees of the Bureau of Prisons
(“BOP”) prior to being transferred from one correctional facility to another, but that only one box
of his belongings was given to him at the new facility. By bringing his suit, Chapa sought to recover
damages for the loss of his personal property. Upon the Government’s motion under FED. R. CIV.
P. 12(b)(1), the district court dismissed Chapa’s suit for lack of subject matter jurisdiction. Chapa
now appeals that dismissal.
In dismissing Chapa’s suit, the district court reasoned that Chapa’s claim was contained within
an exception created by 28 U.S.C. § 2680(c) to the FTCA’s waiver of sovereign immunity. Under
28 U.S.C. § 2680(c), any claim arising from “the detention of any goods, merchandise, or other
property by any officer of customs or excise or any other law enforcement officer” is excluded from
the FTCA’s broad waiver of sovereign immunity.
Chapa contends that, as a result of its settlement offer, the Government was barred from
raising the sovereign immunity defense. This contention is without merit. Sovereign immunity
implicates subject matter jurisdiction. See Broussard v. United States, 989 F.2d 171, 176 (5th Cir.
1993). Thus, the issue is not waivable and the Go vernment may raise it at any stage of the
proceedings. See id.
We review de novo the issue whether a federal court has subject matter jurisdiction. Price
v. United States, 69 F.3d 46, 49 (5th Cir. 1995). “Courts must strictly construe all waivers of the
federal government’s sovereign immunity, [resolving] all ambiguities in favor of the sovereign.”
Linkous v. United States, 142 F.3d 271, 275 (5th Cir. 1998).
Chapa argues that his claim is not barred by 28 U.S.C. § 2680(c) because BOP employees are
not law enforcement officers withing the meaning of the statute. This court has applied § 2680(c)
to law enforcement officers other than customs or tax agents. In Halverson v. United States, 972
F.2d 654, 656 (5th Cir. 1992), we held that 28 U.S.C. § 2680(c) bars claims arising from the
detention of goods by any federal law enforcement officers in the performance of their lawful duties.
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Id. Other circuits have also broadly interpreted the term “law enforcement officer” in applying 28
U.S.C. § 2680(c). See Schlaebitz v. United States Dep’t of Justice, 924 F.2d 193, 194 (11th Cir.
1991) (federal Marshals included); see also Ysasi v. Rivkind, 856 F.2d 1520, 1525 (Fed. Cir. 1988)
(INS border patrol agents included); Formula One Motors, Ltd. v. United States, 777 F.2d 822, 823
(2nd Cir. 1985) (DEA agents included); United States v. 2,116 Boxes of Boned Beef, 726 F.2d 1481,
1490-91 (10th Cir. 1984) (USDA inspectors included); United States v. Lockheed L-188 Aircraft,
656 F.2d 390, 397 (9th Cir. 1979) (FAA employees included).
Although the term “law enforcement officer” is not defined in the text of 28 U.S.C.
§ 2680(c), that term is defined in 28 U.S.C. § 2680(h) as “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. § 2680(h). The Supreme Court has held that a victim of unlawful conduct,
at the hands of BOP officials, would have a cause of action against the United States under 28 U.S.C.
§ 2680(h). See Carlson v. Green, 446 U.S. 14, 17, 20 (1980). Thus, as defined in § 2680(h), a BOP
official is a federal law enforcement officer. Although Carlson relied on 28 U.S.C. § 2680(h), and
not on 28 U.S.C. § 2680(c), the two sections should be considered in pari materia, and the holding
of Carlson is therefore instructive in construing the term “law enforcement officer” under 28 U.S.C.
§ 2680(c).
We also find instructive the fact that BOP employees are considered “law enforcement
officers” in various other co ntexts. Congress has determined that BOP employees are “law
enforcement officers” for purposes of eligibility for Civil Service premium pay, for retirement benefits,
and for survivorship annuities. See 5 U.S.C. §§ 5541(3), 8331(20) and 8401(17)(D)(i). BOP
employees are also “law enforcement officers” whose surviving spouses and minor children may claim
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eligibility for “Public Safety Officers’ Death Benefits.” See 42 U.S.C. § 3796(b)(5). Additionally,
one who fatally injures a BOP employee, while the employee is engaged in his official duties, can be
charged with the offense of killing a “law enforcement officer,” with the potential for a federal death
penalty upon a finding of guilt. See 18 U.S.C. § 3592(c)(14)(D); 21 U.S.C. § 848(e)(2). Construing
the FTCA’s waiver of sovereign immunity strictly, we hold that BOP employees are “law enforcement
officer[s]” for purposes of 28 U.S.C. § 2680(c).
Chapa also argues that because the BOP’s process of inspection and inventory before shipping
a prisoner’s property is not a search, seizure, or arrest, his property was not “detained” within the
meaning of 28 U.S.C. § 2680(c). As the Sixth Circuit noted in Kurinsky v. United States, 33 F.3d
594, 597 (6th Cir. 1994), 28 U.S.C. § 2680(c) uses the word “detention,” which is generally
associated with a period of temporary custody or delay, and not “seizure,” which is the act of taking
possession of property, for example, by virtue of execution or for a violation of the law. Pursuant
to the process of inspection and inventory, BOP officials took temporary custody of and detained
Chapa’s property. Resolving, as we must, any ambiguity in favor of sovereign immunity, Linkous,
142 F.3d at 275, we hold that there was a detention for purposes of 28 U.S.C. § 2680.
The district court did not err in finding that Chapa’s claim was barred by 28 U.S.C. § 2680(c)
and that it thus lacked subject matter jurisdiction over his suit. Accordingly, we affirm the district
court’s dismissal of Chapa’s suit.
AFFIRMED.
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