Ali v. Federal Bureau of Prisons (06-9130) and order list

January 23, 2008 Supreme Court Update

Greetings, Court Fans!
The Court's out for a brief recess again, but it left us with one decision yesterday, holding 5-4 in Ali v. Federal Bureau of Prisons (06-9130) that the Federal Tort Claims Act (FTCA) does not allow for lawsuits based on the wrongful detention of property by federal law enforcement officials, broadly defined. The holding itself is not as interesting as the Justices' various exchanges on statutory interpretation – with Justice Kennedy writing the principal dissent, meaning that his remarkable streak of effectively deciding every 5-4 case has ended. The FTCA waives U.S. sovereign immunity for torts committed by federal employees, subject to certain exceptions including a so-called "detention clause" barring claims arising from the detention of property by "any officer of customs or excise or any other law enforcement officer." Ali, a federal prisoner, filed an administrative tort claim when prison officials lost some of his personal items. He argued that his claim escaped the detention clause because the words "any other law enforcement officer" were limited to the customs or excise context mentioned earlier in the provision. The Bureau of Prisons, the District Court, and the Eleventh Circuit all disagreed, holding that the exemption applied to all law enforcement officials regardless of context. The Court affirmed, in an opinion by Justice Thomas that focused on the "natural," expansive meaning of "any," finding that Congress's choice of words was all-encompassing. The majority rejected Ali's effort to rely on a number of canons of statutory construction, including (get ready to brush up on your Latin): (1) esjudem generis (general terms following specific ones should be read in the context of the specific), because the detention clause was not a list of specific items but rather a disjunctive phrase with one specific and one general category; (2) noscitur a sociis ("a word is known by the company it keeps"), because the detention clause did not have strong "contextual cues"; and (3) the rule against superfluities (if "any" really meant "any," why did Congress need to list customs and excise officials?), because Congress may have wanted to remove any doubt that customs and excise officials were, in fact, law enforcement officers. In short, the Court was unmoved by contextual arguments regarding the detention clause.
Kennedy's dissent was joined by Justices Stevens, Souter and Breyer (that's right: Justice Ginsburg joined the majority). Kennedy thought that the detention clause's many references to customs or excise matters made clear that Congress intended it to apply only in those contexts, and that esjudem generis and noscitur a sociis underscored the point. Whereas the majority focused on the single word "any" before "law enforcement officers," Kennedy focused on the overall statutory context – many federal statutes refer to the detention of property by customs or excise officials, but none refer to the Bureau of Prisons. Suggesting that perhaps the majority was motivated by a concern that the courts would be inundated with petty claims by prisoners, Kennedy noted that there were administrative provisions to guard against that risk without barring all claims. Breyer also dissented, largely echoing Kennedy but adding his own rhetorical flourishes to the defense of context ("When I call out to my wife, ‘There isn't any butter,' I do not mean ‘There isn't any butter in town.' The context makes clear to her that I am talking about . . . our refrigerator."), especially in lists (one does not, "without comic effect," say "He caught three salmon, two trout, and a cold").
The Court's order lists this week included six cert grants. The new cases are:
MetLife v. Glenn (06-923): (1) Whether the Sixth Circuit erred in holding, in conflict with two other Circuits, that the fact that a claim administrator of an ERISA plan also funds the plan benefits, without more, constitutes a "conflict of interest" which must be weighed in a judicial review of the administrator's benefit determination under Firestone Tire & Rubber v. Bruch, 489 U.S. 101 (1989)? (2) If an administrator that both determines and pays claims under an ERISA plan is deemed to be operating under a conflict of interest, how should that conflict be taken into account on judicial review of a discretionary benefit determination?
Wyeth v. Levine (06-1249): Whether the prescription drug labeling judgments imposed on manufacturers by the Food and Drug Administration ("FDA") pursuant to FDA's comprehensive safety and efficacy authority under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., preempt state law product liability claims premised on the theory that different labeling judgments were necessary to make drugs reasonably safe for use.
Meacham v. Knolls Atomic Power Laboratory (06-1505): Whether an employee alleging disparate impact under the ADEA bears the burden of persuasion on the "reasonable factors other than age" defense, as held by the Second Circuit in this case in conflict with the decisions of other circuits and a regulation of the Equal Employment Opportunity Commission.
Crawford v. Nashville & Davidson County, Tennessee (06-1595): Does the anti-retaliation provision of section 704(a) of Title VII of the 1964 Civil Rights Act protect a worker from being dismissed because she cooperated with her employer's internal investigation of sexual harassment?
Sumers v. Earth Island Institute (07-463): (1) Whether the Forest Service's promulgation of 36 C.F.R. 215.4(a) and 215.12(f), as distinct from the particular site-specific project to which those regulations were applied in this case, was a proper subject of judicial review. (2) Whether respondents established standing to bring this suit. (3) Whether respondents' challenge to 36 C.F.R. 215.4(a) and 215.12(f) remained ripe and was otherwise judicially cognizable after the timber sale to which the regulations had been applied was withdrawn and respondents' challenges to that sale had been voluntarily dismissed with prejudice pursuant to a settlement between the parties. (4) Whether the court of appeals erred in affirming the nationwide injunction issued by the district court.
Altria Group, Inc. v. Good (07-562): Whether state-law challenges to FTC-authorized statements regarding tar and nicotine yields in cigarette advertising are expressly or impliedly preempted by federal law.
Finally, the Court invited the SG to brief the cert petitions in the following cases:
Pacific Bell Telephone Co. v. Linkline Communications, Inc. (07-512): Whether a plaintiff states a claim under Section 2 of the Sherman Act by alleging that the defendant – a vertically integrated retail competitor with an alleged monopoly at the wholesale level but no antitrust duty to provide the wholesale input to competitors – engaged in a "price squeeze" by leaving insufficient margin between wholesale and retail prices to allow the plaintiff to compete.
AT&T Corp. v. Hulteen (07-543): (1) Whether an employer engages in a current violation of Title VII when, in making [post-Pregnancy Discrimination Act ("PDA")] eligibility determinations for pension and other benefits, the employer fails to restore service credit that female employees lost when they took pregnancy leaves under lawful pre-PDA leave policies. (2) Whether the Ninth Circuit's finding of a current violation of Title VII in such circumstances gives impermissible retroactive effect to the PDA.
That's all for now. Until next time, thanks for reading!
Ken & Kim

For more information, contact Kim, Ken, or any other member of Wiggin and Dana's Appellate Practice Group at 203-498-4400