Missing Canons of Construction in Ali v. Federal Bureau of Prisons?

This past Monday, October 29, the Supreme Court heard oral arguments in a little-noticed case that raises fascinating questions of statutory interpretation: Ali v. Federal Bureau of Prisons . Ali is a prisoner in the custody of the United States Bureau of Prisons. During a transfer between prisons, he handed over his property to Bureau of Prisons officials for transportation to his new prison. Ali alleges that when his property was handed back to him at the new prison, several religious and personal items, including (as Justice Ginsburg noted during oral argument) a Koran and prayer rug, were missing. After exhausting his administrative remedies, Ali filed suit in federal district court against the United States, the Bureau of Prisons, and three Bureau of Prisons officials for the value of his lost property.

Enter the Federal Tort Claims Act (FTCA), 28 U.S.C. §1346(b), 2671-2680, which waives the United States government’s sovereign immunity for lawsuits in which the petitioner alleges “injury or loss of property” that was “caused by the negligence or wrongful act or omission” of employees of the federal government — except for thirteen specified categories of governmental activity. One of the thirteen excepted categories is for “[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.” (Emphasis added).

So the $64,000 Question is: Does the phrase “any other law enforcement” officer include Bureau of Prisons officials, or is it limited, as Ali argues, to law enforcement officers who are acting in a customs or tax capacity?

The parties’ briefs, and the Justices’ questions at oral argument, offer a juicy exegesis into numerous textual canons of statutory construction. It’s the kind of romp through the canons that can make statutory interpretation professors like myself positively giddy: Is the statute’s reference to “customs or excise” officers an Example, or a List? Does the hoary (if unpronounceable to law students) ejusdem generis canon of construction apply here, or not? Does Congress’ use of the broad, encompassing word “any” before “other law enforcement officer” make the statute’s meaning plain and eliminate the need for (or the appropriateness of) further inquiry? Does Congress’ subsequent passage of an “exception to the exception” that circles back and waives sovereign immunity for civil forfeitures made by “law enforcement officers” shed light on the meaning of the original exception set forth in §2680(c)?

Unsurprisingly, the Justices seem split on which way to read the statute. (See Scorecard below). When the opinions are released next June, both the majority and the dissent undoubtedly will grapple extensively with the answers to the above questions. But what I want to raise in this post is the possibility —and even the likelihood— that the Justice’s forthcoming opinions will rely in important ways on some canons not discussed in either party’s briefs or at oral argument. The “Missing Canons” to which I allude are policy-based canons, or what William Eskridge calls “substantive canons” because they are based on background policy norms, rather than on linguistic or grammatical rules. Two substantive canons seem particularly likely to rear their heads this June: (1) The canon directing that waivers of sovereign immunity should be construed narrowly (likely to be invoked in favor of applying the exception to Bureau of Prisons officials, thereby subjecting the government to less litigation); and (2) On the flip side, the Due Process-based canon favoring availability of judicial review / keeping the courtroom doors open (likely to be invoked in favor of allowing suit against Bureau of Prisons officials). Breyer (who has discussed this Due Process canon before in the context of the Antiterrorism and Effective Death Penalty Act) and Ginsburg (who asked pointedly at oral argument what remedy Ali would have if the FTCA were read to bar suits against Bureau of Prison officials) seem most likely to rely on the latter canon, while Scalia and Thomas (and probably the Chief Justice) seem likely to embrace the former. Even if the Justices do not openly employ these canons in their opinions, readers should look for subtle (or not-so-subtle) statements indicating that these canons are doing at least some of the work in pushing the Justices towards their preferred readings of the statutory text.

A third substantive canon, advocated independently by both Cass Sunstein and William Eskridge , would look to the fact that prison inmates are a politically weak / underrepresented group and direct the Court thus to resolve any statutory ambiguity in their favor. I have argued that this suggested substantive canon is inappropriate and overinclusive and have proposed a legislative solution to address the concerns of underrepresented groups in a recent paper.

And last, some predictions:


(Justices’ Expected Votes):

For Federal Bureau of Prisons

(Exception applies to BOP officials)



Alito (a soft vote, expressed concerns about the word “detention”)


For Ali

(Exception limited to officials acting in tax or customs capacity)




On the Fence

(Indiscernable Based on Oral Argument)

Kennedy (silent at oral argument)

Ginsburg (seemed skeptical of Ali’s proffered statutory reading, but also was concerned with what remedy he would have if his suit were deemed barred)

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2 Responses

  1. Mike O'Shea says:

    Good post. Very interesting issues, especially for those of us who eagerly seek clues about the two new Justices’ approaches to statutory interpretation.

    My early sense is that Chief Justice Roberts is closer to the self-conscious, formal textualism of Scalia, Thomas and Easterbrook than is Justice Alito. Check out the Zuni case, last Term’s big textualism smackdown, with Roberts joining Scalia, Thomas, and (bravo!) Souter in dissent. Justice Breyer wrote a very un-textualist majority opinion — in which Kennedy and Alito concurred with some reservations.

    Here, though, Alito’s qualm about the effect of the word choice “detention” is quite consistent with textualism, and I think he was right to express some frustration that the petitioner didn’t press this point below. Notice Justice Stevens cannily swooping in to reinforce Alito’s concerns at this point.