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Sovereign Immunity Bars FTCA Property Claims; S.Ct. Vacates Second Circuit Ruling

The Second Circuit Court of Appeals joined four other circuits in reversing a lower court’s dismissal of a Federal Tort Claims Act (FTCA) negligent property loss claim.

A federal prisoner, identified only as ABC, was transferred to a special housing unit for his own safety after other prisoners may have learned of his cooperation with government officials. ABC was told his property would be transferred with him.

Six weeks after his transfer, ABC received his property but many items were missing. He exhausted administrative remedies than brought an FTCA action against the government, the U.S. Department of Justice (DOJ) and the federal Bureau of Prisons (BOP). ABC alleged that BOP officials negligently lost his property, and he sought monetary damages.

The district court dismissed the claims against the BOP and DOJ because the FTCA does not permit suits against federal agencies. Mignogna v. Sair Aviation, Inc., 937 F.2d 37, 40 (2nd Cir. 1991) and 28 U.S.C. § 2679(a). The court noted that 28 U.S.C. §2680(c) provides an exception to the FTCA’s waiver of sovereign immunity, and determined that “the BOP official responsible for transferring ABC’s property was an ‘other law enforcement officer’ under § 2680(c).” Therefore, the district court held that sovereign immunity barred ABC’s FTCA claim against the United States. The ruling was appealed.

The Second Circuit observed a circuit split on the applicability of § 2680(c), with the Fifth, Eighth, Ninth, Tenth, Eleventh and federal circuits endorsing the broad reading of the statute adopted by the district court, and the Fourth, Sixth, Seventh and D.C. Circuits adopted the narrower reading the plaintiff had relied upon. The Second Circuit found § 2680(c) inapplicable to ABC’s claims, and reversed the district court’s dismissal. See: ABC v. DEF, 500 F.3d 103 (2nd Cir. 2007).

The U.S. Supreme Court had granted certiorari in Ali v. Federal Bureau of Prisons, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008) to resolve the split among the circuits. In Ali, the Supreme Court concluded that the phrase “other law enforcement officer” in § 2680(c) references all law enforcement officers, not only those whose function or authority are related to customs or excise functions. Therefore, the statute was applicable to BOP guards and there was no waiver of sovereign immunity for such defendants under the FTCA. The Second Circuit’s ruling was vacated and the case was remanded for reconsideration in light of Ali. See: United States v. ABC, 128 S.Ct. 2079 (2008).

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Related legal case

United States v. ABC

Order List, 128 S.Ct. 2079 (U.S. 04/28/2008)


[2] 07-745

[3] 128 S.Ct. 2079, 76 USLW 3579, 76 USLW 3315, 76 USLW 3581,

[4] April 28, 2008



[7] (ORDER LIST: 553 U.S.)


[9] The motion of the Solicitor General for leave to file Appendix B to the petition for a writ of certiorari under seal is granted. The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Second Circuit for further consideration in light of Ali v. Federal Bureau of Prisons, 552 U.S. ___ (2008).