Arguing for the petitioner, Jean-Claude Andre emphasized that, as in its decision in Circuit City v. Adams, the Court should apply the statutory construction canon of ejusdem generis, which provides that when general words follow a list of specific items, the general words apply to other items similar to those specifically mentioned. His client would also prevail, Andre noted, if the Court applied the noscitur a sociis canon, which provides that when a word is ambiguous, its meaning may be determined by reference to the rest of the statute. Justice Scalia then asked about the significance of the "exception to the exception" "“ which allows lawsuits against the United States when the property at issue was seized under "any" federal civil forfeiture law and was lost or damaged in the possession of "any officer of customs or excise or any other law enforcement officer." In particular, he inquired, "[w]hy do you need that exception to the exception if the exception doesn't cover anything except customs and tax in the first place?"

Andre posited that Congress included the "exception to the exception" to make clear that it applied when customs and tax officers use other forfeiture statutes "“ which, he explained, they routinely do.

Justice Souter asked Andre to provide examples of circumstances in which law enforcement officers who were not customs or tax officers would detain property while enforcing customs and tax laws. Andre's example was pre-September 11 immigration officials, who could be involved in seizing, e.g., prohibited alcoholic beverages at the border.

Justice Alito then wondered aloud whether the term "any other law enforcement officer" could be interpreted as limited to law enforcement officers whose duties generally involve the detention of goods. After Andre responded that the meaning of the word "detention" was not part of the question presented, Alito mused aloud that Ali's property did not appear to have been "detained"; instead, he gave them to the BOP so that they could be sent to his new prison. Andre quickly agreed. Justice Stevens later returned to this question as well, asking Andre why no one had previously argued that his property had not been "detained." Andre explained that Ali had represented himself below, and that at the Supreme Court stage he "didn't believe that that issue had percolated enough in the courts of appeals to warrant petitioning on."

Chief Justice Roberts asked Andre to explain why Congress's use of the term "any" didn't undermine his case. Andre had two explanations: the word "any" is essentially irrelevant to the functioning of the statute; and, in any event, it was not inconsistent with Ali's construction of the statute as applying to other law enforcement officers "performing their ordinary functions . . . akin to customs laws."

Andre then reiterated that the legislative history "“ and in particular several committee reports "“ favored his interpretation of the statute, and that the history was relevant because the statute is ambiguous. His interpretation was also, he noted, consistent with the purpose of the statute "“ "to avoid the creation of a redundant federally funded remedy."

Arguing for the Bureau of Prisons, Assistant to the Solicitor General Kannon Shanmugam opened by emphasizing that the government's broad interpretation of the phrase "any law enforcement officer" was most consistent with both the plain language of the statute and Congress's intent in creating the exception.

Justice Souter queried, however, whether it might have been clearer for Congress to have referred first to "any law enforcement officer" and then made clear that customs and tax officers were included as "law enforcement officers." Given that the statute as enacted is less clear, Justice Souter continued, why isn't it a likely interpretation that Congress worded the statute as it did to encompass law enforcement officers who were acting as customs or tax officers? Shanmugam conceded that Congress "could have written the statute that way and indeed could have omitted the customs or excise officers entirely," but he downplayed the significance of Congress's choice, noting that the U.S. Code is "replete with provisions that fit this model, that start with specific examples and then contain a general residual clause." Justice Scalia then chimed in that when the statute was enacted, customs and tax officers would have been the federal officers primarily responsible for the detention of property by the federal government.

Justice Breyer then turned the discussion to a slightly different topic: who was a federal law enforcement officer in the 1940s, when the statute was enacted. Shanmugam explained that although he had been unable to find any exact numbers, there were far fewer federal criminal statutes (and thus far fewer law enforcement officers) at the time. Justice Breyer noted that a report by Judge Holtzoff, by contrast, indicated that the provision was intended to be limited to customs and excise officers; Justice Scalia countered, however, that the report was written fifteen years before the statute was actually enacted. Shanmugam emphasized that "at most, the legislative history is simply silent," whereas the phrase "or any other law enforcement officer" is unambiguous.

After Shanmugam sought to explain "“ in response to a question from Justice Ginsburg "“ why it is a "rare occurrence" for other law enforcement officers to assist customs and excise officers, he then had an exchange with Justice Souter regarding whether the statute was ambiguous: Shanmugam contended that because the phrase "any other law enforcement officer" is unambiguous, "that is the end of the inquiry." In Justice Souter's view, however, "the question of . . . what is ambiguous or not it . . . a question of context" that needs to take into account the references to customs and excise officers.

Finally, Shanmugam "“ in response to another question from Justice Ginsburg "“ emphasized that Ali had an administrative remedy to obtain compensation for his lost property.

In his rebuttal, Andre sought to emphasize that the statute is ambiguous, citing "“ among other things "“ as proof the sixteen court of appeals judges who have so found. Seeking to reassure the Court that his interpretation of the statute would not open up the floodgates to an onslaught of prisoner litigation, he also emphasized the relative dearth of cases by federal prisoners under the statute: only sixteen in 2006.

Posted in Ali v. Federal Bureau of Prisons, Everything Else