Abdoulai Bah v. UNITED STATES OF AMERICA On Appeal from the United States District Court for the…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-3162
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ABDOULAI BAH
Appellant
v.
UNITED STATES OF AMERICA
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-21-cv-02993)
District Judge: Honorable John M. Younge
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Argued: September 12, 2023
Before: JORDAN, BIBAS, and PORTER,
Circuit Judges.
(Filed: January 18, 2024)
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Judson D. Brown
Gabrielle Durling [ARGUED]
Karl Gunderson
Kirkland & Ellis
655 Fifteenth Street NW
Washington, DC 20005
Counsel for Appellant
Landon Y. Jones, III [ARGUED]
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
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OPINION OF THE COURT
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PORTER, Circuit Judge.
Abdoulai Bah, a US citizen originally from Sierra
Leone, was stopped by police, who discovered that he was
carrying $71,613 in cash. Bah was detained and then released,
but U.S. Customs and Border Protection (CBP) seized the cash.
CBP returned the money with interest two-and-a-half years
later. Bah commenced an action under the Detention Exception
of the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2680(c).
The District Court dismissed the case for lack of subject matter
jurisdiction, holding that the United States is immune from
Bah’s claims. We will affirm.

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I
Bah operated a cash-only car sales business through
informal Guinean networks without using a bank account. On
October 25, 2017, he was stopped on I-95 by Virginia State
Police, who discovered $71,613 in cash. That was Bah’s entire
life savings. Bah was released, but CBP seized the cash as the
“alleged proceeds of cigarette trafficking and drug related
activity.”
Bah petitioned the agency pro se, contending that the
sources of the funds were legitimate. CBP denied the petition,
notifying Bah that the funds were subject to forfeiture. Bah
sought reconsideration of the denial, but CBP denied
reconsideration and the seizure case was closed.
On April 2, 2020, Bah filed a complaint in the District
Court for the Eastern District of Virginia. On May 26, 2020,
under the terms of a settlement agreement, CBP vacated the
forfeiture and returned Bah’s money with interest. Bah
dismissed the lawsuit and released his claims, but reserved the
right to pursue an action under the FTCA. On July 13, 2020,
he presented an administrative claim to CBP, seeking $1
million for “personal injury” and $175,000 for “property
damage.” CBP denied the claim on the ground that Bah’s suit
was barred by the Detention Exception to the FTCA and the
pertinent statute of limitations.
Bah then filed this lawsuit, seeking the same damages
requested in his administrative claim. He alleges that because
he lost access to the seized money, he was unable to pay off
loans and do business, alienating his creditors and destroying
his livelihood. The stress of the ordeal allegedly left him

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homeless and harmed his health, exacerbating his diabetes and
headaches.
The District Court dismissed Bah’s complaint for lack
of jurisdiction. It held that 28 U.S.C. § 2680(c) immunizes the
United States from Bah’s claim that he could recover damages
based on deprivation of the $71,613 during the seizure. The
Court also held that the FTCA framework bars Bah’s claims
because they seek prejudgment interest—a type of relief for
which the United States has declined to waive sovereign
immunity.1 Bah appealed.
II
The District Court had jurisdiction to determine its own
jurisdiction over Bah’s claims arising under federal law. See
28 U.S.C. § 1331. We have appellate jurisdiction under
28 U.S.C. § 1291.
Our review of a District Court’s grant of a motion to
dismiss under Rule 12(b)(1) or 12(b)(6) is plenary. Free
Speech Coal., Inc. v. Att’y Gen., 677 F.3d 519, 529–30 (3d Cir.
2012). We accept as true the facts alleged in the complaint,
along with reasonable inferences that can be drawn from those
facts. Keystone Redev. Partners, LLC v. Decker, 631 F.3d 89,
95 (3d Cir. 2011). To state a viable claim, a plaintiff must offer
1 The District Court construed Bah’s claim as “comparable to
a claim for prejudgment interest” and as a “quasi-prejudgment
interest claim.” App. 7-8. It described Bah’s claim as “a desire
to be made whole for the opportunity costs and the
disadvantage or loss to Plaintiff that arose due to the two-year
gap between the seizure and return of Plaintiff’s money.” Id. at
8.

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a short and plain statement showing that he is entitled to relief,
including “allegations plausibly suggesting (not merely
consistent with)” such entitlement. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 557 (2007). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556).
III
Bah’s claim falls outside of the government’s waiver of
sovereign immunity. The FTCA Detention Exception, 28
U.S.C. § 2680(c), waives sovereign immunity under certain
conditions for “injury or loss of goods, merchandise, or other
property, while in the possession of any officer of customs . . .
.”2 But Bah’s property—his currency—was not injured or lost,
and the plain text does not waive immunity for personal
“injury” or “loss” incurred as a consequence of the
government’s detention or forfeiture of property.
2 In his opening brief, Bah emphasized a third statute, 28
U.S.C. § 1346(b)(1). While both the Detention Exception and
28 U.S.C. § 1346(b)(1) address waiver of sovereign immunity,
the Detention Exception governs waiver as applied to this case.
Bah conceded this point in his reply brief. “Indeed, because 28
U.S.C. § 1346(b) provides that federal courts shall have
jurisdiction over FTCA claims ‘subject to,’ inter alia, section
2680, the exceptions found in that section define the limits of
federal subject matter jurisdiction in this area.” Hydrogen
Tech. Corp v. United States, 831 F.2d 1155, 1161 (1st Cir.
1987) (citing Dalehite v. United States, 346 U.S. 15, 24
(1953)).

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A different statute, 28 U.S.C. § 2465, delineates
government liability with respect to “any civil proceeding to
forfeit property under any provision of Federal law in which
the claimant substantially prevails,” including for “cases
involving currency.” See Id. § 2465(b)(1)(C). Successful
claimants may recover interest, attorney fees, and litigation
costs. Id. The statute decisively forecloses recovery of “the
value of any intangible benefits” and “any other payments to
the claimant not specifically authorized by this subsection.” Id.
§ 2465(b)(2)(A). Bah has already been paid interest for his
withheld cash but seeks additional monetary damages.
A
“Absent a waiver, sovereign immunity shields the
Federal Government and its agencies from suit.” FDIC v.
Meyer, 510 U.S. 471, 475 (1994); see also United States v.
Sherwood, 312 U.S. 584, 586 (1941). Because sovereign
immunity is jurisdictional in nature, Meyer, 510 U.S. at 475,
“the terms of [the government’s] consent to be sued in any
court define that court’s jurisdiction to entertain the suit.”
Sherwood, 312 U.S. at 586.
“To sustain a claim that the Government is liable for
awards of monetary damages, the waiver of sovereign
immunity must extend unambiguously to such monetary
damages.” Lane v. Pena, 518 U.S. 187, 192 (1996) (citing
United States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992)).
“A statute’s legislative history cannot supply a waiver that does
not appear clearly in any statutory text.” Id. (citing Nordic
Village, 503 U.S. at 37).
As originally enacted, the Detention Exception was a
categorical bar on lawsuits relating to Government detention

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of property. In 2000, Congress passed the Civil Asset
Forfeiture Reform Act (CAFRA), conditionally waiving
immunity and enabling recovery if four conditions are met.
The statute as amended reads in relevant part:
[Sovereign immunity extends 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, except that the provisions of
this chapter and section 1346(b) of this title apply
to 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 . . . ;
(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.
28 U.S.C. § 2680(c) (emphasis added). The parties agree that
Bah meets the four conditions required under § 2680(c). But

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they dispute whether he suffered “injury or loss” under the
statute. We now turn to that question.
B
Bah argues that the ordinary meaning of “injury” and
“loss” is sufficiently broad for § 2680(c) to encompass his
claims. He also contends that Congress used “injury or loss”
formulations in other statutory contexts enabling recovery for
personal injury, supporting broad construction of this phrase as
it appears in § 2680(c).
Bah’s suggested constructions of “injury” and “loss”
under 28 U.S.C. § 2680(c) are textually implausible. The
language of the statute is not conducive to reading “injury”
more broadly than injury to property because of the dependent
clause, “while in possession of any officer of customs or excise
or any other law enforcement officer.” Construing “injury” as
encompassing injury to person would countenance “claim[s]
based on [personal] injury . . . while in the possession of any
[customs officer].” The redefinition of “injury” turns the
“officer of customs” phrase into a dangling modifier—what is
in the possession of a customs officer? Further, Bah’s
suggested severing of “injury” from the surrounding words
implies a comma that does not exist. The plain meaning of the
statute might change if it waived immunity for “injury[,] or loss
of goods, merchandise, or other property. . . .” See Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 161 (the Punctuation Canon).
The heading of CAFRA Section 3—the legislation
amending the statute—is “Compensation for Damage to Seized
Property.” Pub. L. No. 106-185, 114 Stat. 202, 211 (2000); see
Thorne v. Pep Boys Manny Moe & Jack Inc., 980 F.3d 879,

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891 (3d Cir. 2020) (“The title of a statute and the heading of a
section are ‘tools available for the resolution of [] doubt’ about
the meaning of a statute.” (quoting Almendarez-Torres v.
United States, 523 U.S. 224, 234 (1998)). If there were any
doubt, this further suggests that an injury to person falls outside
the scope of “injury” as used in the statute. Bah may have been
injured, but his cash was not.
Bah’s suggested construction of “loss” is also textually
dubious. The statute waives immunity for “loss of goods,
merchandise, or other property . . . .” Bah does not allege a
literal “loss of . . . property.” Rather, he effectively seeks to
recover for loss of use of his cash.
While “‘loss’ can mean different things in different
contexts,” United States v. Riccardi, 989 F.3d 476, 486 (6th
Cir. 2021), the ordinary meaning of “loss” does not connote
“loss of use.” See, e.g., Terry Black’s Barbecue, L.L.C. v. State
Auto. Mut. Ins. Co., 22 F.4th 450, 458 (5th Cir. 2022) (The
“distinction [between ‘loss of property’ and ‘loss of use of
property’] is clear enough that had the parties intended the
policy to cover a loss of use of property, they would have said
so explicitly.”).
Notwithstanding Bah’s arguments to the contrary,
Congress has directly distinguished “loss of property” and
“loss of use of property” in other statutory contexts.3 Bah’s
3 See 42 U.S.C. § 2014(q) (“The term ‘nuclear incident’ means
any occurrence . . . causing . . . bodily injury, sickness,
disease, or death, or loss of or damage to property, or loss of
use of property . . . .”) (emphasis added); 42 U.S.C. §
2243(d)(1) (requiring uranium-enrichment facilities to obtain
insurance that covers “loss of or damage to property” and “loss

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position implicates the rule against surplusage: if “loss of
property” encapsulated loss of use, then “loss of use of
property” would be an extraneous formulation when otherwise
included in statutory language.
Bah’s broad reading § 2680(c), enabling recovery for
any “injury” or “loss,” ignores other relevant statutory
provisions. The FTCA Detention statutory scheme elsewhere
addresses the government’s liability for “any civil proceeding
to forfeit property under any provision of Federal law in which
the claimant substantially prevails[.]” 28 U.S.C.
§ 2465(b)(1)(A–B) (“Return of property to claimant; liability
for wrongful seizure”). As noted above, concerning seized hard
currency, claimants are entitled to interest as well as attorney
fees and litigation costs; the statute bars any further relief
beyond this. See id. § 2465(b)(2)(A).
The § 2465(b) remedy for detention of Bah’s currency
undermines his claim for further damages. Bah was already
paid interest for his seized cash. That accords with the relief
available under § 2465(b).
We will affirm the District Court’s order dismissing
Bah’s action with prejudice.
of use of property”); 2 U.S.C. § 6627(a) (“Any amounts
received by the Sergeant at Arms and Doorkeeper of the
Senate . . . for compensation for damage to, loss of, or loss of
use of property of the Sergeant at Arms ….”) (emphasis
added).

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