In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-4782

DAVID S. DAHLER,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA

and FEDERAL BUREAU OF PRISONS,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Western District of Wisconsin

No. 05-C-0463-S—John C. Shabaz, Judge.

____________

SUBMITTED DECEMBER 15, 2006—DECIDED JANUARY 12, 2007

____________

Before BAUER, MANION, and WILLIAMS, Circuit Judges.

PER CURIAM. David Dahler, a prisoner at the Federal

Correctional Institution in Oxford, Wisconsin, claims

that Bureau of Prisons officials lost several pieces of his

property after detaining the items in a “shakedown.” He

sued the government under the Federal Tort Claims Act,

28 U.S.C. § 1346(b), to recover the value of those items. The

district court concluded that the government was immune from his suit. We reverse.

At issue in this appeal is whether the government is

immune from a tort suit arising out of the detention and
2 No. 05-4782

inadvertent destruction of a prisoner’s property by BOP

officials. According to Dahler, in February 2000 two

pairs of tennis shoes, three t-shirts, and one sweatshirt

were taken from his cell during a “shakedown” of the

prison. He sought to have these items returned, but the

prison could find no record of his property. He subsequently filed an administrative tort claim, which the

BOP denied in June 2005. That same month, Dahler filed

his complaint, under the FTCA, in district court.

Having found the government immune from Dahler’s

suit, the district court dismissed his complaint for lack of

subject matter jurisdiction. The court acknowledged our

holding in Ortloff v. United States, 335 F.3d 652 (7th Cir.

2003), that the government has waived its sovereign

immunity under the FTCA with regard to suits arising

from the tortious acts of BOP officials. Id. at 656-60. But

the district court went on to explain that Congress had

since enacted the Civil Asset Forfeiture Reform Act of 2000

(CAFRA), Pub L. No. 106-185, 114 Stat. 211, which among

other things amended the applicable provision of the

FTCA, 28 U.S.C. § 2680(c), that exempts the government

from tort liability for claims relating to the seizure of

property by certain law enforcement officers. The district

court concluded that the CAFRA amendments excluded

claims like Dahler’s from the FTCA’s waiver of immunity.

On appeal, Dahler argues that his case is controlled by

Ortloff. We understand him to contend that the CAFRA

amendments should not affect our prior interpretation

of § 2680(c).

The United States government may be sued only

where Congress has waived its sovereign immunity.

LaBonte v. United States, 233 F.3d 1049, 1051 (7th Cir. 2000).

The FTCA waives the government’s immunity, making
No. 05-4782 3

the government liable to the same extent as a private

party, “for injury or loss of property, or personal injury or

death caused by 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. § 1346(b).

But this general waiver of immunity is subject to several exceptions, only one of which—28 U.S.C. § 2680(c)—

is relevant here. Section 2680(c) provides that the government’s waiver of immunity “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.” 28 U.S.C.

§ 2680(c) (2000) (amended language in italics).

In Ortloff—where we construed the version of § 2680(c)

that existed before CAFRA’s amendments, see Ortloff, 335

F.3d at 657, n.2—we held that the term “any other law

enforcement officer” referred only to law enforcement

officers performing functions related to customs and excise

duties. Id. at 658. We so held for three reasons: (1) the

principles of statutory interpretation noscitur a sociis and

ejusdem generis counseled that the phrase “any other law

enforcement officer” must be read in light of § 2680(c)’s

opening reference to claims arising out of the “collection

of any tax or customs duty” and the specific class of

officers identified, namely “any officer of customs or

excise”; (2) the exceptions in § 2680 were carved out to

preclude tort suits where other remedies were already

available, which was the case for claims against officers

carrying out customs and tax laws, but not true for federal law enforcement officers acting outside the authority

of customs and tax laws; and (3) reading the exception to

include all other law enforcement officers would render
4 No. 05-4782

superfluous the “any officer of customs or excise” language. Id. at 658-59. Since BOP officials do not perform

“functions related to customs and excise duties”, we

concluded that the government could be held liable

under the FTCA for the acts of BOP officials. Id. at 661.

The government argues that the CAFRA amendments

compel a finding that Congress intended “any other law

enforcement officer” to be construed broadly to include

BOP officials. The government explains that CAFRA

added to § 2680(c) an exclusion to the exception which rewaives the government’s immunity for certain seizures of

property made in connection with asset-forfeiture laws.

This exclusion provides that the government’s immunity

is waived for:

any claim based on injury or loss of goods, merchandise, 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 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

forfeiture law.

Id.
No. 05-4782 5

According to the government, this exclusion to the

exception reflected Congress’s acknowledgment that prior

to the CAFRA amendments, officers who had been involved in asset forfeitures, but not necessarily involved

in taxation or customs, were immune under § 2680(c).

Based on our review of § 2680(c)’s text, the relevant

caselaw, and the legislative history of CAFRA, we conclude that the new language in § 2680(c) does not affect

the meaning of the phrase “any law enforcement officer.”

According to its plain language, the exclusion to the exception created by CAFRA merely ensures that § 2680(c)

does not foreclose claims related to property that has

been seized for forfeiture in the enumerated circumstances. The text of CAFRA says nothing about the type

of activities in which law enforcement officers must be

engaged in order for § 2680(c) to initially apply and thus

immunize the government from suit. In that vein, the

Fourth Circuit, in Andrews v. United States, 441 F.3d 220 (4th

Cir. 2006), recently found CAFRA unhelpful in interpreting § 2680(c) and eventually held, as we did in Ortloff,

that the FTCA waives the government’s sovereign immunity from suits involving the detention of a prisoner’s

property by BOP officials. See id. at 226-27. And tellingly,

two of our sister circuits did not even cite, let alone discuss, CAFRA’s exclusion from the exception when determining whether the term “law enforcement officer” in postCAFRA § 2680(c) includes BOP officials. See Bramwell v.

United States Bureau of Prisons, 348 F.3d 804, 806-07 (9th Cir.

2003); Chapa v. United States Dept. of Justice, et al., 339 F.3d

388, 389-90 (5th Cir. 2003). Indeed, Congress intended the

amendment to apply only to forfeitures—not to every

detention—of property. See CAFRA § 21, 114 Stat. at 225

(codified at 8 U.S.C. § 1324 note) (”. . . the amendments
6 No. 05-4782

made by [CAFRA] shall apply to any forfeiture proceeding . . .”) (emphasis added); H.R. Rep. No. 106-192,

at 18 (1999) (“The bill amends the [FTCA] to allow for

claims against the United States based on the destruction,

injury, or loss of goods, merchandise, or other property . . .

if the property has been seized for the purpose of forfeiture.”)

(emphasis added).

Having found nothing in the CAFRA amendments to

compel otherwise, we reaffirm our holding that the term

“any other law enforcement officer” in § 2680(c) applies

only to those officers performing customs or excise related functions. See Ortloff, 335 F.3d at 658. Section 2680(c)

therefore does not divest the district court of jurisdiction over Dahler’s complaint. Accordingly, we reverse

the district court’s order dismissing Dahler’s complaint

for lack of subject matter jurisdiction and remand for

proceedings consistent with this opinion.

REVERSED and REMANDED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-12-07