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BOGGS v. UNITED STATES SECRET SERV.

October 29, 1997

J.S.G. BOGGS, Plaintiff,
v.
UNITED STATES SECRET SERVICE, et al., Defendants.



The opinion of the court was delivered by: LAMBERTH

 This matter comes before the court on defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), (3), and (6), on cross-motions for summary judgment, and on defendants' motion to transfer the action to the Western District of Pennsylvania or the judicial district where plaintiff resides. For the reasons stated below, this court will: 1. deny defendants' 12(b)(1) motion to dismiss the Federal Tort Claims Act claim for lack of subject matter jurisdiction; 2. grant defendants' 12(b)(3) motion to dismiss the FTCA claim for improper venue; 3. grant defendants' motion for summary judgment as to the adequacy of the Freedom of Information Act searches; and 4. deny the cross-motions for summary judgment on the FOIA exemption claims until submission of proper Vaughn indices by defendants.

 I. BACKGROUND

 Plaintiff J.S.G. Boggs ("Boggs") is a visual and performance artist whose work is displayed in the permanent collections of the Smithsonian Institution, the Museum of Modern Art, the British Museum and the Art Institute of Chicago. This case centers around the pieces for which Mr. Boggs has received his greatest acclaim and notoriety: his works "in the image of money" -- so called "Boggs Bills" -- which are actual size, color reproductions of U.S. currency.

 Great minds have always differed as to the merit of art, and Mr. Boggs' travails demonstrate that adage. On or about December 2, 1992, special agents of the Secret Service executed search warrants for plaintiff's person, his residence and studio, and his office, all located in Pittsburgh, Pennsylvania. The Secret Service had probable cause to believe that the aforementioned locations contained hand drawn facsimiles, prints, photographs, photocopies and other impressions of United States obligations and securities including various denominations of United States currency in violation of 18 U.S.C. §§ 474 and 504. Pursuant to the warrant, the Secret Service searched the specified locations for more than three hours and seized over 100 drawings and numerous other items.

 In this action *fn1" , plaintiff has stated two claims. The first is asserted under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et. seq. ("FTCA"). Boggs alleges that in the course of their search, the Secret Service agents damaged or destroyed several items of Boggs' personal property through intentionally destructive conduct. He also claims that some of the items seized by the agents are now missing, and that there was negligent and/or wrongful interference with his property rights. These acts allegedly caused total property damages in the amount of $ 64,952.95. Boggs also contends that the agents engaged in negligent and/or wrongful conduct during the searches. For example, he states in his complaint that they improperly threatened him with arrest and made veiled threats about the unpleasantries of prison life. These threats and other acts of misconduct purportedly caused Boggs to suffer severe emotional distress, requiring hospitalization and other medical treatment. Boggs claims damages in the amount of $ 2,000,000 for this alleged misconduct.

 Boggs' second claim arises under the Freedom of Information Act and Privacy Acts ("FOIA"), 5 U.S.C. §§ 552 and 552a. Boggs, through counsel, made a written request on May 14, 1993 for all documents concerning this matter. The Secret Service withheld some of the requested materials, invoking 5 U.S.C. § 552(b)(7)(matters compiled for law enforcement purposes) *fn2" ; 552(b)(2)(information that pertains solely to the internal personnel rules and practices of an agency); 552(b)(5) (inter- and intra- agency materials that would not be available by law to a party other than an agency in litigation with the agency). On August 23, 1993, Boggs, through his attorney, filed an administrative appeal, and the Secret Service responded by providing some additional documents while also denying the appeal in part, citing the same exemptions.

 On March 10, 1995, Boggs made another written request pursuant to FOIA. Among other items, this request sought documents formerly withheld pursuant to the "enforcement proceedings" exemption of FOIA. The government provided some responsive documents, but again withheld certain information pursuant to 5 U.S.C. §§ 552(b)(5) and 552(b)(7)(C). Having properly exhausted his administrative remedies under 5 U.S.C. § 552(a)(6)(C), Boggs asks this court to declare the Secret Service's failure to disclose the requested records unlawful and order the agency to make the records available. In addition, Boggs questions the thoroughness of the Secret Service's effort and seeks to have this court order a more "complete" search for any additional relevant documents or records.

 II. SUBJECT MATTER JURISDICTION UNDER THE FEDERAL TORT CLAIMS ACT

 The Federal Tort Claims Act provides that the United States shall be liable to the same extent as a private party, "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 of employment . . . in accordance with the law of the place where the act or omission occurred" 28 U.S.C. § 1346(b). This congressional waiver of sovereign immunity is subject to thirteen exceptions, under which a federal court lacks subject matter jurisdiction over the claim. 28 U.S.C. §§ 2680(a)-(n). Defendant contends that the Secret Service's conduct in this matter falls under one of these exceptions, namely, § 2680(c), which proscribes suits involving:

 
any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of goods or merchandise by any officer of customs or excise or any other law-enforcement officer.

 Defendants' Motion to Dismiss and plaintiff's opposition engage in a debate over the sweep of this exception; specifically, whether the phrase "other law enforcement officer" should be interpreted broadly to apply to all law enforcement officers acting in any capacity, or narrowly, to only those officers acting in either a customs or tax capacity. The Supreme Court, in Kosak v. United States, 465 U.S. 848, 852 n.6, 79 L. Ed. 2d 860, 104 S. Ct. 1519 (1984), expressly left this question unanswered, and the circuits are split as to the proper interpretation.

 A number of circuits that have addressed the § 2680(c) issue have interpreted the exception broadly, concluding that the statute was meant to include all law enforcement officers, in any capacity, acting within the scope of their offices of employment. See, e.g., Ysasi v. Rivkind, 856 F.2d 1520, 1524-25 (Fed. Cir. 1988) (sovereign immunity reestablished for the acts of the Border Patrol division of the Immigration and Naturalization Service); United States v. $ 149,345 United States Currency, 747 F.2d 1278, 1283 (9th Cir. 1984) (applied to Drug Enforcement Administration agents pursuant to 21 U.S.C. § 881, and noting that the "apparent intent of § 2680(c) is to limit government liability and restrict claimants to the statutory procedures of the forfeiture laws") United States v. 2,116 Boxes of Boned Beef, 726 F.2d 1481, 1490-91 (10th Cir.), cert. denied sub nom. Jarboe-Lackey Feedlots, Inc. v. United States, 469 U.S. 825, 83 L. Ed. 2d 49, 105 S. Ct. 105 (1984) (section 2680(c) applied to seizures by the Department of Agriculture); United States v. Lockheed L-188 Aircraft, 656 F.2d 390, 397 (9th Cir. 1979)(applied to the FAA).

 Underpinning this interpretation of § 2680(c) is the general presumption that a congressional waiver of sovereign immunity should be interpreted narrowly. "We should also have in mind that the [Federal Tort Claims] Act waives the immunity of the United States and that . . . we should not take it upon ourselves to extend the waiver beyond that which Congress intended." U.S. v. Kubrick, 444 U.S. 111, 117-18, 62 L. Ed. 2d 259, 100 S. Ct. 352 (1979); see also 14 Charles Alan Wright et al., Federal Practice and Procedure § 3654 (1985) ("if Congress in fact has consented to a particular kind of suit . . . the general rule long has been that the government's consent is to be strictly interpreted."). Also supporting this conclusion is the argument that, if Congress did not intend to extend the exception to all law enforcement officers, the statute would have been written without the last six words. See Ysasi, 856 F.2d at 1524 ("Ysasi's interpretation would render the phrase 'or any other law enforcement officer' surplus age").

 This court, however, finds plaintiff's interpretation of the statute to be in accord with the law of this circuit, traditional canons of statutory interpretation, and the original rationale underpinning the FTCA's waiver of sovereign immunity. Consequently, this court holds that there is subject matter jurisdiction over Boggs' FTCA claim.

 Recognizing that the phrase "any other law enforcement officer" was open to two plausible interpretations, the D.C. Circuit held against the then-prevailing majority view in narrowing the § 2680(c) FTCA exception. In Bazuaye v. United States, 317 U.S. App. D.C. 370, 83 F.3d 482 (D.C. Cir. 1996), a postal inspector seized plaintiff's bail money, suspecting that the enclosed money orders, money transfers and U.S. currency were the ill-gotten gains of plaintiff's criminal activities. 83 F.3d at 483. Plaintiff subsequently filed suit under the FTCA, alleging that the postal inspector acted negligently and improperly in executing the seizure. In determining whether the phrase "any other law enforcement officer" included postal employees acting outside the customs or tax areas, the Court of Appeals relied on the principle of esjudem generis, which states that a general term should be read in the context of the specific terms preceding it. *fn3" The court noted:

 
In the clause "any officer of customs or excise or any other law-enforcement officer," the words "any other law-enforcement officer" might mean other officers involved in customs and excise work, but not officers in unrelated duties. Otherwise, "any officer of customs or excise" would be surplusage, subsumed by the more general "any other law enforcement officer."

 83 F.3d at 484 (citations omitted); See also Kurinsky v. United States, 33 F.3d 594, 598 (6th Cir. 1994) (the words "any other law enforcement officer" should be read as to include the detention of goods by only law enforcement officers acting in a tax or customs capacity).

 Had Congress intended § 2680(c) to have the scope suggested by defendants, the statute could have been drafted to read, simply, "any claim arising in respect to the detention of goods or merchandise by any law enforcement officer." The inclusion of the "law enforcement officer" language in a statute that otherwise focuses on tax and customs activity inexorably leads to the conclusion that the law enforcement activity hypothesized must have some nexus to customs or tax enforcement. If the greater (all law enforcement officers) was to include the lesser (customs and tax only), then the lesser would become, for all practical purposes, meaningless. Rather, the rationale behind the inclusion of the "other law enforcement officer" phrase was "Congress' recognition of the fact that federal officers, other than customs and excise officers, sometimes become involved in the activity of detaining goods for tax or customs purposes." Kurinsky, 33 F.3d at 597 (quoting A-Mark, Inc. v. United States Secret Service, 593 F.2d 849, 851 (9th Cir. 1978) (Tang, J., concurring). The phrase was not meant to be a broad re-establishment of sovereign immunity, but rather a recognition that many different types of law enforcement officials may from time to time be called upon ...


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