JOSEPH A. KOSAK, PETITIONER V. UNITED STATES OF AMERICA

   No. 82-618

   In the Supreme Court of the United States

   October Term, 1982

   On Writ of Certiorari to the United States Court of Appeals for the
Third Circuit

   Brief for the United States

            TABLE OF CONTENTS
   Opinion below
   Jurisdiction
   Statutes involved
   Statement
   Summary of argument
   Argument:
      I. 28 U.S.C. 2680(c) precludes claims against the United
          States under the Federal Tort Claims Act for negligent
          damage to property being detained for investigation by
          the Customs Service
          A. The plain language of Section 2680(c)
            unambiguously covers negligent damage to property
            being detained for investigation by the Customs
            Service
          B. The legislative history supports the plain
            meaning of Section 2680(c)
          C. The congressional purposes behind the FTCA
            exemptions support the plain meaning of Section
            2680(c)
          II. The district court correctly dismissed the
          entire complaint
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 1-11) is reported at
679 F.2d 306.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 12) was entered on
May 19, 1982, and a petition for rehearing was denied on June 24, 1982
(Pet. App. 13).  The petition for a writ of certiorari was docketed on
October 7, 1982, retroactive to September 21, 1982.  The petition was
granted on January 10, 1983.  The jursidiction of this Court rests on
28 U.S.C. 1254(1).

                           STATUTES INVOLVED

   The Federal Tort Claims Act provides in pertinent part:

      1. 28 U.S.C. 1346(b):

         (T)he district courts * * * shall have exclusive jursidiction
      of civil actions on claims against the United States, for money
      damages * * * for injury or loss of property, or personal injury
      or death caused by the negligent or wrongful act or omission of
      any employee of the Government while acting within the scope of
      his office or employment, under circumstances where the United
      States, if a private person, would be liable to the claimant in
      accordance with the law of the place where the act or omission
      occurred. 2.28 U.S.C. 2680:

         The provisions of this chapter and section 1346(b) of this
      title shall not apply to --

                      * * * * *

         (c) Any claim arising in respect of the assessment or
      collection of any tax or customs duty, or the detention of any
      goods or merchandise by any officer of customs or excise or any
      other lawenforcement officer.

                          QUESTIONS PRESENTED

   Whether the provision of the Federal Tort Claims Act, 28 U.S.C.
2680(c), that bars "(a)ny claim arising in respect of the assessment
or collection of any tax or customs duty, or the detention of any
goods or merchandise by any officer of customs" precludes a claim
against the United States for negligent damage to property being
detained for investigation by the Customs Service.

                               STATEMENT

   When petitioner, then a member of the Navy, was transferred to
Philadelphia, Pennsylvania, from his former station in Guam, he
brought with him a number of items of oriental art.  /1/ On February
28, 1978, agents of the United States Customs Service, acting under
the authority of a search warrant, seized from petitioner's house
certain of those art objects on suspicion that petitioner had brought
them into the United States intending to resell them, contrary to the
statements contained in his customs declarations indicating that he
intended to keep them for his personal collection (Pet. 2-3;  J.A. 8,
11).  /2/ Following a jury trial, petitioner was acquitted of the
charge of smuggling the goods into the country in violation of 18
U.S.C. 545 (Pet. App. 2).  Thereafter, the Customs Service notified
petitioner that the goods were subject to civil forfeiture for
violation of 19 U.S.C. 1592.  /3/ Petitioner filed a petition for
relief from the forfeiture under 19 U.S.C. 1618, /4/ which the Customs
Service subsequently granted.  The Service returned the goods on June
1, 1979 (J.A.4).

   On September 21, 1979, petitioner filed an administrative claim
with the Customs Service, alleging that some of the art objects had
been damaged while being seized or while in the Service's possession.
Relying on the preservation of sovereign immunity contained in 28
U.S.C. 2680(c), the Customs Service denied the claim (J.A. 8-9).
Petitioner then filed suit in the United States District Court for the
Eastern District of Pennsylvania, seeking approximately $12,000 for
alleged damage to the property.  Petitioner also sought $300 to cover
the amount he paid for the repair of a stereo receiver, which he
alleged he could not get repaired for free under warranty because the
Customs Service had seized the sales receipt he needed to prove the
date of purchase 0J.A. 5).  The United States moved to dismiss the
complaint or for summary judgment on the basis of 28 U.S.C. 2680(c)
(C.A. App. 13, 15).  The district court granted the government's
motion to dismiss the complaint (Pet. App. 14), and petitioner
appealed.

   The court of appeals affirmed, with one judge dissenting (Pet. App.
1-11).  Noting (id. at 4 & n.3) that the lower courts have disagreed
as to the scope of Section 2680(c), and that this Court declined to
resolve that disagreement in Hatzlachh Supply Co. v. United States,
444 U.S. 460, 462-463 n.3 (1980), the court of appeals aligned itself
with the decisions holding that the exception embraces all claims for
damages arising out of the detention of goods in the custody of the
Customs Service, and not merely claims for damages caused by the fact
of detention alone.  The court declined to follow Alliance Assurance
Co. v. United States, 252 F.2d 529 (2d Cir. 1958), the first of the
cases holding that Section 2680(c) preserves sovereign immunity only
for claims arising out of the mere fact of detention, and not for
claims of damage to or loss of the property.  /5/ The court concluded
that the rationale of Alliance ignored "the clear language of Section
2680(c), the legislative intent, and specific teachings of the Supreme
Court regarding interpretation of exceptions to the FTCA" (Pet. App.
5).  Accordingly, the court held (id. at 6):

         (T)he language of the statute covers all claims arising out
      of detention of goods by customs officers and does not purport
      to distinguish among types of harm.

         Moreover, the legislative history of Section 2680(c) reveals
      no "clearly expressed legislative intention" (quoting Consumer
      Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102,
      108 (1980)) contrary to the ordinary meaning of the section's
      language.  * * * There is nothing in the legislative history to
      show that this exemption was to be restricted to claims in
      conversion.

                          SUMMARY OF ARGUMENT

   When it enacted the Federal Tort Claims Act, making the United
States generally liable for torts committed by federal employees under
circumstances in which a private person would be liable, Congress
chose to proceed cautiously by excepting certain core governmental
activities from the general waiver of sovereign immunity.  Torts
"arising in respect of the assessment or collection of any tax or
customs duty, or the detention of any goods or merchandise by any
officer of customs" (28 U.S.C. 2680(c)) were among the specific
exceptions Congress enacted.  To prevail here, therefore, petitioner
must demonstrate that the plain language employed by Congress does not
mean what it says.  All relevant evidence precludes such a showing.

                                  I.

   A. The language of Section 2680(c) is exceedingly broad.  It
encompasses "any" claim arising "in respect of" the assessment or
collection of customs duties or the detention of property by customs
officers.  The ordinary meaning of the words employed by Congress
necessarily encompasses negligent damage to goods while they are in
the custody of the Customs Service pursuant to an investigation of the
appropriate customs duty.

   Petitioner's contrary construction would carve out the heart of
Section 2680(c) by eliminating from the exception direct and immediate
damages (such as injury to property), while retaining the exception
only for remote and consequential damages arising out of the mere fact
of detention (such as loss of the use of property).  The effect would
be to render Section 2680(c) mere surplusage because the United States
has waived sovereign immunity only for claims of "injury or loss of
property" (28 U.S.C. 1436(b)), and consequential damages caused by the
fact of detention alone involve no injury or loss of property.

   Thus, unless Section 2680(c) encompasses claims for negligent
damage to property, it serves no purpose in the statutory scheme.
Even without benefit of the rule requiring waivers of sovereign
immunity to be construed in the government's favor, petitioner's
reading of the statutory language is unnatural and perverse.

   B. The legislative history of the Federal Tort Claims Act confirms
that Section 2680(c) must be given its natural reading.  The
exemptions to the waiver of sovereign immunity were drafted by the
Department of Justice at Congress' request, and the materials relied
on by the Department in drafting the detention of property exemption
clearly reveal that the Department intended to exempt claims for
negligent damage to property while in the possession of the Customs
Service.  The Department used as its model a British bill that
exempted claims "for or in respect of the loss of or any deterioration
or damage occasioned to" goods or merchandise detained by customs
officers.  Nothing in the legislative history of the FTCA suggests
that Congress intended Section 2680(c) to have a narrower scope.

   C. Congress had multiple purposes in mind when it enacted the
exemptions to the Federal Tort Claims Act, and all of those purposes
are furthered by giving Section 2680(c) its natural meaning.  First,
Congress thought that certain governmental activities were too
important to be restrained by the threat of damages suits.
Enforcement of the customs laws of the United States is clearly one
such core governmental function.  Second, Congress was concerned that
certain types of tort suits would be difficult to defend against and
would lend themselves to fraudulent or excessive claims.  The wisdom
of Congress' concern is apparent in light of the enormous diversity of
items seized by the Customs Service, the vast number of seizures, and
the impossibility of conducting moment-of-detention inspections to
foreclose later disputes about whether property has been damaged.
Finally, Congress was aware that in certain instances alternative
remedies already existed, and it did not want to create overlapping or
duplicate remedies.  Congress undoubtedly knew that suits against the
customs collector in his personal capacity for the negligent loss of
or damage to goods had long been recognized at common law.  It thus
saw no need to create an additional remedy.

                                 II.

   The Court should not consider petitioner's argument that the
district court erred in dismissing the entire complaint because this
argument was not raised below.  In any event, the district court
correctly dismissed the entire complaint because all items of damage
claimed by petitioner arose "in respect of" the assessment or
collection of customs duties or the detention of his merchandise.
Indeed, the consequential damages allegedly caused by the detention of
the sales receipt for a stereo receiver are precisely the type of
damages attributable to the fact of detention alone and thus may not
be recovered even under petitioner's interpretation of Section
2680(c).  Moreover, because petitioner suffered no "injury or loss of
property" from the detention of the sales receipt, the claim does not
fall within the waiver of sovereign immunity contained in 28 U.S.C.
1346(b).

   Finally, petitioner did not claim in the lower courts that one of
his art objects was never "detained" because it was broken during
execution of the search warrant;  rather, he included this item along
with all other "detained" items.  In any event, inspection of an item
in order to execute a search warrant for possible violations of the
customs laws arises "in respect of" the assessment and collection of
customs duties and constitutes a "detention" within the meaning of
Section 2680(c).

                               ARGUMENT

       I.  28 U.S.C. 2680(c) PRECLUDES CLAIMS AGAINST THE UNITED

               STATES UNDER THE FEDERAL TORT CLAIMS ACT FOR NEGLIGENT

               DAMAGE TO PROPERTY BEING DETAINED FOR INVESTIGATION BY

               THE CUSTOMS SERVICE

   In 1946, following nearly 30 years of congressional consideration,
see Dalehite v. United States, 346 U.S. 15, 24 (1953), Congress
enacted the Federal Tort Claims Act, making the United States
generally liable, to the same extent as a private party, for money
damages "for injury or loss of property" caused by negligent acts of
federal employees acting within the scope of their employment (28
U.S.C. 1346(b)).  At the same time, Congress preserved sovereign
immunity for "certain governmental activities which should be free
from the restraint of damage suits or for which adequate remedies are
already available." Tort Claims:  Hearings on H.R. 5373 and H.R. 6463
Before the House Comm. on the Judiciary, 77th Cong., 2d Sess. 33
(1942) (hereinafter "1942 Hearings").  /6/ See also S. Rep. No. 1196,
77th Cong., 2d Sess.  7 (1942);  H.R. Rep. No. 1287, 79th Cong., 1st
Sess. 6 (1945);  S. Rep. No. 1400, 79th Cong., 2d Sess. 33 (1946).

   Among the governmental activities for which Congress chose to
preserve sovereign immunity was the assessment or collection of taxes
and customs duties and the detention of property by customs, tax and
other law enforcement officers (28 U.S.C. 2680(c)).  /7/ These core
governmental functions are recognized in the Constitution itself:
Article I, Section 8, Clause 1 ("Congress shall have Power To lay and
collect Taxes, Duties, Imposts and Excises");  Article I, Section 8,
Clause 3 (Congress shall have power to "regulate Commerce with foreign
Nations");  and the Fourth Amendment ("persons or things to be
seized").  Indeed, the first substantive statute adopted by the First
Congress was "An Act for laying a Duty on Goods, Wares, and
Merchandises imported into the United States." Act of July 4, 1789,
ch. 2, 1 Stat. 24 et seq.  The second substantive statute was "An Act
imposing Duties on Tonnage." Act of July 20, 1789, ch. 3, 1 Stat. 27
et seq.  The fourth substantive act of the First Congress, following
creation of the Department of Foreign Affairs (Act of July 27, 1789,
ch. 4, 1 Stat. 28 et seq.), established the positions of customs
collectors.  Act of July 31, 1789, ch. 5, 1 Stat. 29 et seq.  Although
customs revenues are no longer the primary source of the government's
revenue, they still provide the federal government with almost $10
billion a year in income.  U.S. Customs Service, Customs U.S.A.: A
Report on the Activities of the U.S. Customs Service During Fiscal
Year 1982, at 5, 34 (hereinafter cited as "Customs U.S.A.").  /8/ The
Customs Service continues to be the principal border enforcement
agency, assisting in the administration and enforcement of some 400
provisions of law on behalf of more than 40 government agencies;
assessing and collecting customs duties on imported merchandise;
preventing fraud and smuggling;  and controlling carriers, persons,
and articles entering and departing the United States (id. at 5).  /9/
In 1982, the Customs Service made more than 59,000 seizures, involving
almost $240 million in property, for violations of the laws it
enforces (not including drug laws) (id. at 36).

   That the other governmental functions covered by Section 2680(c),
taxation and the seizure of property either as contraband or as
evidence of crime, are core governmental activities cannot be
gainsaid.  Thus, when Congress preserved sovereign immunity for "any
claim arising in respect of the assessment or collection of any * * *
customs duty, or the detention of any goods or merchandise by any
officer of customs or excise or any other law-enforcement officer," it
was acting to protect governmental activities of the most fundamental
importance.  It is against this background that the scope of Section
2680(c) must be considered.

 A. The Plain Language Of Section 2680(c) Unambiguously Covers
Negligent Damage To Property Being Detained For Investigation By The
Customs Service

   If petitioner's claim for negligent damage to property being
detained for investigation by the Customs Service is a "claim arising
in respect of the assessment or collection of any * * * customs duty,
or the detention of any goods or merchandise," then it is barred by
the sovereign immunity of the United States.  As this Court has stated
on numerous occasions, "in all cases involving statutory construction,
'our starting point must be the language employed by Congress,' * * *
and we assume "that the legislative purpose is expressed by the
ordinary meaning of the words used.'" American Tobacco Co. v.
Patterson, 456 U.S. 63, 68 (1982), quoting Reiter v. Sonotone Corp.,
442 U.S. 330, 337 (1979), and Richards v. United States, 369 U.S. 1, 9
(1962).  /10/

   An examination of the text of Section 2680(c) demonstrates that it
would be difficult to draft a broader statute.  The section
encompasses "any claim" arising "in respect of" the assessment or
collection of any customs duty or the detention of any goods or
merchandise by any officer of customs.  "Any" indicates a thing (here,
a claim) "selected without restriction or limitation of choice."
Webster's Third New International Dictionary 97 (4th ed. 1976).  Thus,
when Congress said "any" claim, it plainly intended coverage "without
restriction or limitation." See Harrison v. PPG Industries, Inc., 446
U.S. 578, 589 (1980) (footnote omitted) ("the phrase() 'any other
final action,' in the absence of legislative history to the contrary,
must be construed to mean exactly what it says, namely any other final
action").

   In choosing the qualifier "in respect of," Congress employed a
phrase denoting a relationship in the broadest sense.  /11/ One court
considered this same language "broad enough to encompass any
activities of an IRS agent even remotely related to his or her
official duties." Capozzoli v. Tracey, 663 F.2d 654, 658 (5th Cir.
1981).  Thus, by its clear and unambiguous language Congress preserved
sovereign immunity for every claim in any way related to the
assessment or collection of customs duties and the detention of goods
and merchandise by customs officers.  In this case, the Customs
Service seized petitioner's property as part of an investigation into
the amount of customs duties owed by petitioner, and thus petitioner's
claim arises "in respect of" the assessment or collection of customs
duties.  Because the Service also detained petitioner's property as
part of its investigation, the claim likewise arises "in respect of"
the detention of goods or merchandise by customs officers.  /12/

   Despite this broad language, petitioner (Br. 13-15), citing the
dissent below, A-Mark, Inc. v. United States Secret Service, 593 F.2d
849 (9th Cir. 1978), and Alliance Assurance Co. v. United States, 252
F.2d 529 (2d Cir. 1958), seeks to limit the exemption, not by
restricting its breadth, but by carving out its center.  Thus,
according to petitioner, remote, consequential damages arising out of
the fact of detention alone (such as loss of use of the property)
would be included, but direct, immediate damages (such as injury to
the property) would not.  This inverted form of statutory construction
finds no support in the language of Section 2680(c) or, as we
demonstrate below (pages 19-23, infra), in the legislative history.
Indeed, petitioner's contention that Section 2680(c) is limited to
claims arising out of the fact of detention alone effectively renders
the exemption mere surplusage.  The United States has waived sovereign
immunity only for claims for damages "for injury or loss of property"
(28 U.S.C. 1346(b)).  See, e.g., Idaho ex rel. Trombley v. United
States Department of the Army, 666 F.2d 444 (9th Cir. 1982), cert.
denied, No. 81-1961 (Oct. 4, 1982) (costs of suppressing a fire
negligently started by employees of the United States do not involve
"injury or loss of property");  Oregon v. United States, 308 F.2d 568
(9th Cir. 1962), cert. denied, 372 U.S. 941 (1963) (same);  California
v. United States, 307 F.2d 941 (9th Cir. 1962), cert. denied, 372 U.S.
941 (1963) (same);  see also County of San Diego v. Castillo, 665 F.2d
1051 (9th Cir. 1981), cert. denied, 455 U.S. 1018 (1982) (alleged
negligent failure to keep illegal aliens out of the country, causing
county to expend substantial sums for aliens' health care, does not
give rise to a claim for "injury or loss of property").  Damages
attribuable to the temporary detention of goods do not involve "injury
or loss of property." Thus, Section 2680(c) must necessarily have a
broader reach than petitioner claims, or its enactment would have been
unnecessary.  /13/

   Nor can petitioner find solace in the more specific language of 28
U.S.C. 2680(b), which preserves immunity for "(a)ny claim arising out
of the loss, miscarriage, or negligent transmission of letters or
postal matter." Again, petitioner asks the Court to adopt a
topsy-turvy method of statutory construction whereby an exceedingly
broad statutory provision (Section 2680(c)) is sought to be construed
narrowly simply because another provision (Section 2680(b)) is drafted
narrowly.  Petitioner's argument seems to be that if Congress had
intended the broad provision to include the matters specified in the
narrow provision it would have specified them in the broad provision
too.  But the limitations in Section 2680(b) simply have no
relationship to the broad sweep of Section 2680(c).  Congress used the
specific language in Section 2680(b) because if it had retained
immunity for "any claim arising in respect of the transmission of
letters or postal matter," it probably would have barred suits for
automobile accidents caused by postal employees, and such suits were a
primary impetus for adopting the Federal Tort Claims Act.  See General
Tort Bill:  Hearings Before a Subcomm. of the House Comm. on Claims,
72d Cong., 1st Sess. 17 (1932) (hereinafter "1932 Hearings") ("I
suppose that the bulk of the cases we are trying to take care of are
personal-injury cases caused by the automobiles of the post-office
service.  There are no exceptions covering those.").

   In short, there is nothing in the text of Section 2680(c), or
elsewhere in the FTCA, even to suggest that Congress intended
something less than the comprehensive retention of sovereign immunity
created by the broad language of that section.  /14/ In the absence of
some extraordinary indication in the legislative history that Congress
intended to waive immunity for negligent damage to property detained
by the Customs Service, the broad statutory language must control.
/15/

 B. The Legislative History Supports The Plain Meaning Of Section
2680(c)

   The preservation of sovereign immunity for claims arising in
respect of the detention of property first appeared in bills
introduced on December 9, 1931.  H.R. 5065, 72d Cong., 1st Sess.
Section 206(2);  S. 211, 72d Cong., 1st Sess. Section 206(2).  The
language was the same as that found in Section 2680(c) today.  Prior
bills had contained the first clause ("(a)ny claim arising in respect
of the assessment or collection of any tax or customs duty"), but not
the detention of property clause.  See, e.g., S. 1912, 69th Cong., 1st
Sess. Section 8(a)(2) (1926);  H.R. 17168, 71st Cong., 3rd Sess.
Section 3(a)(2) (1931).

   H.R. 5065 (and presumably the identically-worded S. 211) was
drafted by the General Accounting Office and the Department of
Justice, at the request of Representative Collins, who introduced it.
The bill was a composite of the views of the Attorney General and the
Comptroller General.  1932 Hearings, supra, at 7, 22.  With regard to
the exceptions to the waiver of sovereign immunity in the bill,
Assistant Attorney General Rugg testified (id. at 17):

         (W)e have provided a list of 13 exceptions to liability and
      responsibility of the United States for tort actions.  Those
      were prepared quite thoughtfully after a conference with every
      department and independent establishment in Washington, and
      receiving their suggestions, to meet any case where there might
      be an opportunity for fraudulent and excessive claims and where
      there was not any genuine, moral responsibility on the part of
      the Government.

   In discussing the exceptions generally, Assistant Attorney General
Rugg did indicate that immunity would be waived for property damage
claims" arising out of the "taking of property" by the government "in
connection with war-time legislation." 1932 Hearings, supra, at 18.
But he made no such statement with regard to the customs exemption,
nor did he otherwise indicate that the broad language of the exemption
relating to the assessment or collection of customs duties and the
detention of property by customs, tax, and other law enforcement
officers would not have its apparent reach (ibid.).

   Although the Department of Justice added the detention of property
clause to the tort claims bills at about the time of the conferences
with the other Executive Branch establishments, the clause did not
actually originate with those conferences.  Rather, its origins trace
back to a 1927 British report recommending a tort claims bill for
Great Britain.  As Alexander Holtzoff /16/ explained, speaking of a
proposed bill he had drafted, which contained the exception as
introduced in H.R. 5065 and as finally enacted in Section 2680(c)
(Holtzoff, Report on Proposed Federal Tort Claims Bill 16;  emphasis
added) (hereinafter "Holtzoff Report") /17/:

         (The proposed bill excepts) (c)laims arising in respect of
      the assessment or collection of any tax or customs duty.  This
      exception appears in all previous drafts.  It is expanded,
      however, so as to include immunity from liability in respect of
      loss in connection with the detention of goods or merchandise by
      any officer of customs or excise. The additional proviso has
      special reference to the detention of imported goods in
      appraisers' warehouses or customs houses, as well as seizures by
      law enforcement officials, internal revenue officers, and the
      like.  This provision is suggested in the proposed draft of the
      bill submitted by the Crown Proceedings Committee in England in
      1927 * * * .

   The relevant section in the Report of the Crown Proceedings
Committee /18/ reads as follows (Crown Proceedings Comm., Report
Section 11(5)(c), at 18 (Apr. 1927);  emphasis added):

   No proceedings shall lie under this section --

                      * * * * *

         (c) for or in respect of the loss of or any deterioration or
      damage occasioned to, or any delay in the release of, any goods
      or merchandise by reason of anything done or omitted to be done
      by any such officer of customs and excise acting as such(.) /19/

   It was this subsection that prompted Judge Holtzoff to expand the
customs exemption expressly to cover "(a)ny claim arising in respect
of * * * the detention of any goods or merchandise by any officer of
customs or excise, or any other law enforcement officer" (Holtzoff
Report, supra, addendum entitled "A Bill to Provide for the Settlement
of Claims Against the United States on Account of Property Damage,
Personal Injury or Death" Section 4(2), at 2).  Nothing in Judge
Holtzoff's report, or anything else we have seen, even suggests that
this broad language was thought to exclude any of the specifics listed
in the British bill, and the natural reading of Judge Holtzoff's
language is, as we have demonstrated, all-inclusive.  And while there
is no evidence that Congress actually saw the British bill, it enacted
Judge Holtzoff's all-inclusive language in a bill that it had asked
the Department of Justice and the General Accounting Office to draft.
In essence, Congress intended to enact the proposal of the Department
of Justice, and the Department intended the provision that became
Section 2680(c) to exclude from the waiver of sovereign immunity all
claims relating in any way to detention of goods by customs agents,
including claims listed in the British report.  Thus, the legislative
history of Section 2680(c) fully supports the plain meaning of the
broad statutory language.

 C. The Congressional Purposes Behind The FTCA Exemptions Support The
Plain Meaning Of Section 2680(c)

   Congress enacted the Federal Tort Claims Act exemptions for a
number of reasons:  because certain governmental activities should be
free from the restraint of damages suits against the United States;
because certain claims would be difficult to defend against;  because
certain types of activities presented the opportunity for fraudulent
and excessive claims;  and because, with regard to certain activities,
adequate remedies already existed.  /20/ Each of these congressional
purposes supports the plain meaning of Section 2680(c).  /21/

   1. The preservation of sovereign immunity in Section 2680(c)
relates to the detention of property in connection with three
governmental activities:  customs, tax, and general law enforcement.
The core governmental nature of these activities has already been
discussed (see pages 10-12, supra).  Given the long history of
sovereign immunity for torts committed by federal employees, and in
light of the difficulties encountered by those attempting to pass a
general tort claims act, it is not surprising that Congress preserved
immunity for such core activities, "doubtless induced by the effort to
confine the new policy within a narrow range, dictated by caution."
Borchard, The Federal Tort Claims Bill, 1 U. Chi. L. Rev. 1, 4 (1933)
(commenting on S. 4567, 72d Cong., 1st Sess. (1932), one of the early
bills containing the detention of property exception).  Congress
obviously felt that such a "radical innovation" (Tort Claims Against
the United States:  Hearings on H.R. 7236 Before Subcomm. No. 1 of the
House Comm. on the Judiciary, 76th Cong., 3d Sess. 22 (1940)) as
making the sovereign answer generally for tort claims was too
"dangerous" (Tort Claims Against the United States:  Hearings on S.
2690 Before a Subcomm. of the Senate Comm. on the Judiciary, 76th
Cong., 3d Sess. 13 (1940)), at least with regard to such core
governmental activities.

   This view is confirmed by the subject matter covered in the other
express exemptions in the FTCA.  See, e.g., 28 U.S.C. 2680(a)
(exempting from the waiver of immunity claims arising out of the
non-negligent execution of a statute or regulation);  28 U.S.C.
2680(e) (exempting claims arising out of 50 U.S.C. (& Supp. V) App.
1-31 (Trading with the Enemy Act of 1917));  28 U.S.C. 2680(f)
(exempting claims arising out of quarantines);  28 U.S.C. 2680(i)
(exempting claims caused by fiscal operations of the Treasury or by
regulation of the monetary system);  28 U.S.C. 2680(j) (exempting
claims arising out of combatant activities during time of war).  As
with the exemption at issue in this case, these exemptions preserve
immunity for core governmental activities.  Clearly, it is for
Congress, should it choose, to extend the waiver of sovereign immunity
into these areas.  /22/

   2.  It would indeed be difficult for the Customs Service to defend
against many suits for damage to property that it detains.  Customs
detains all sorts of property:  vehicles, aircraft, vessels, general
merchandise, machinery, animals, plants.  The difficulties of
defending against negligence suits for damage to detained property are
obvious, for it is not always possible for Customs employees at the
moment of detention to make a thorough inventory of the property's
condition, and, after that moment passes, the matter becomes a
fruitless contest between the shipper or transporter, who "knows" the
property was in perfect condition when seized, and the Customs
employees, who "know" the property was handled carefully.  With regard
to perishable goods, property that might need special maintenance, or
animals and plants, there would be disputes over whether Customs
officials were advised of the property's special needs.  And all this
would be aggravated by the often adversary nature of Customs'
relationship with those from whom it seizes property.  Such persons
might well be motivated to attempt to recoup duties assessed or
collateral losses (or simply to vent their resentment) through
litigation over alleged damage to the property while in the hands of
Customs.  /23/ Cf. Briscoe v. LaHue, No. 81-1404 (Mar. 7, 1983), slip
op. 18;  Imbler v. Pachtman, 424 U.S. 409, 425 (1976).

   These same considerations relate to Congress' desire to preclude
suits presenting the opportunity for fraudulent and excessive claims.
The Court has expressly recognized that the government's need to
protect against false claims of lost or stolen property is "crucial."
South Dakota v. Opperman, 428 U.S. 364, 376 n.10 (1976).  In dealing
with so many seizures of so many different types of property under
such varied conditions from such a generally antagonistic clientele,
the government would, if it waived sovereign immunity, expose itself
to several thousand lawsuits a year, involving property valued at
hundreds of millions of dollars (see pages 11-12, supra).  /24/ A more
ready potential for fraudulent and excessive claims is difficult to
imagine.

   Only by vastly increasing its work force could the Customs Service
undertake the sort of moment-of-detention inspections that would be
needed to protect against such claims.  And it still would be
impossible, regardless of personnel availability, to protect against
fraudulent and excessive claims in all circumstances.  Determining the
condition of machinery, for example, could require its disassembly.
And even then, some items cannot be disassembled.  For all these
reasons, Congress could sensibly decide that it was unwilling to
impose burdens that would interfere substantially with the smooth
functioning of the Customs Service by allowing tort claims for damage
to property detained by customs officers.

   3.  Finally, Congress undoubtedly was familiar with the long
recognized common law tort action against the customs collector for
negligent loss of or damage to goods in his possession, and it likely
considered that as one of the "adequate remedies * * * already
available." 1942 Hearings, supra, at 33.

   Customs collectors were, at common law, considered "quasi-bailees"
of goods and merchandise detained for violations of the customs laws.
/25/ See J. Story, Law of Bailments Sections 613, 618, at 597, 599
(7th ed. 1863) (hereinafter "Story on Bailments").  If property was
properly seized by the collector and forfeited to the government, the
claimant was not, of course, entitled to its return.  But if the
property was not forfeited, then customs collectors could be held
"liable in their individual capacities for tortious conduct committed
in the performance of their duties." States Marine Lines, Inc. v.
Shultz, 498 F.2d 1146, 1149 (4th Cir. 1974).  If the customs officers
seized the property "tortious(ly), and without any reasonable cause"
(Story on Bailments, supra, Section 613, at 597), then they could be
held to answer for conversion or trespass and would be strictly liable
for goods lost or damaged while in their possession (id. at 599).  If
the seizure was justifiable (albeit ultimately held to have been
erroneous), the customs officers were liable only on a theory of
negligence for breach of the "official obligation, as imposed by law,"
to exercise "reasonable diligence" in the performance of the duties of
office.  United States v. Thomas, 82 U.S. (15 Wall.) 337, 342-343
(1873).  See also Story on Bailments, supra, Section 613, at 597;
Agnew v. Haymes, 141 F. 631, 641 (4th Cir. 1905).

   Congressional enactments have long assumed the quasi-bailee status
of the customs collector.  If, in a forfeiture proceeding. judgment is
entered for the claiment, the goods must be returned "forthwith." 28
U.S.C. 2465.  /26/ A customs officer who fails to do so may be sued
personally for damages.  States Marine Lines, Inc. v. Shultz, supra,
498 F.2d at 1148-1151.  In the personal action against the collector,
if the court holds that the seizure was made without probable cause,
the officer is strictly liable for the loss of or damage to goods in
his possession.  He may even be personally liable for consequential
damages arising out of the seizure.  See Agnew v. Haymes, supra, 141
F. at 641.  On the other hand, if there was probable cause for the
seizure, the officer is liable only for negligent loss of or damage to
the property while in his possession.  Moreover, the judgment entered
may not be executed against the collector, but "shall be paid out of
the proper appropriation by the Treasury." 28 U.S.C. 2006.  See States
Marine Lines, Inc. v. Shultz, supra, 498 F.2d at 1149-1150.

   As we have seen, there is no evidence in the language or
legislative history of the Federal Tort Claims Act to suggest that
Congress intended to shift to the United States the potential tort
liability of the collector.  If the Court were to accept petitioner's
construction of Section 2680(c), the established limitations on the
liability of the United States under 28 U.S.C. 2006 would be impliedly
repealed, i.e., the United States would be liable for negligent damage
to property seized without probable cause.  Repeals by implications
are, of course, disfavored (see, e.g., Watt v. Alaska, 451 U.S. 259,
273 (1981)), and thus Section 2680(c) should not be read to "drain 28
U.S.C. Sections 2006 and 2465 of any purpose." States Marine Lines,
Inc. v. Shultz, supra, 498 F.2d at 1150.

   It thus seems likely that Congress decided to preserve sovereign
immunity for all claims arising with respect to the assessment or
collection of customs duties and the detention of goods because it
deemed the existing remedies to be adequate.  /27/ Any shortcomings in
those remedies are for Congress to correct.  /28/

    II. THE DISTRICT COURT CORRECTLY DISMISSED THE ENTIRE COMPLAINT

   Petitioner contends (Br. 16-17) that even if the district court
correctly dismissed most of his complaint under 28 U.S.C. 2680(c), it
should not have done so with regard to two claims:  one for
consequential damages arising out of the apparently unintentional
detention of petitioner's receipt for the purchase of a stereo
receiver and the other for damage done to a piece of art (a cork
pagodo) during the execution of the search warrant.  Petitioner
contends that Section 2680(c), even as construed by the court of
appeals, does not encompass these claims.  This argument was not
raised in the lower courts.  Absent exceptional circumstances not
present here, this Court will not decide issues not presented below.
See, e.g., United States v. Lovasco, 431 U.S. 783, 788 n.7 (1977).  In
any event, petitioner's new argument is meritless.

   Petitioner's claim for consequential damages flowing from the
detention of the sales receipt involves no "injury or loss of
property" and thus does not fall within the waiver of sovereign
immunity contained in 28 U.S.C. 1346(b).  See pages 15-16, supra.  And
even assuming that petitioner had suffered some injury or loss of
property," the injury claimed arose out of the fact of detention alone
-- precisely the type of claim that petitioner contents is the sole
purpose of the FTCA's exception for the detention of goods or
merchandise.  Petitioner seeks to avoid the exception by arguing (Br.
17) that the receipt does not fall within the meaning of the term
"goods or merchandise." But there is no evidence to support the
improbable proposition that Congress intended to exclude from that
phrase the papers relating to the goods or merchandise detained.  On
the contrary, the Customs Service normally would seize papers relating
to the seized goods or merchandise because they are the primary
indicator of value, of the nature of the goods, and of the date and
place of purchase.  Although the receipt in this case was apparently
seized by accident, during the course of the search for and seizure of
20 boxes of art objects, Section 2680(c) bars "any claim" and admits
no exception for accidental detentions.  /29/

   Petitioner contends (Br. 16) that the cork pagoda was broken while
the search warrant was being executed and, therefore, that it was not
"detained" by Customs.  This argument is multiply flawed.  First,
whether or not the item was detained, petitioner overlooks the first
clause of Section 2680(c), barring claims "in respect of the
assessment or collection of any * * * customs duty." See page 14,
supra.  Second, petitioner's complaint did not allege that the cork
pagoda was damaged during the search or that it was not "detained."
Rather, this item, for which $110 in damages was claimed, was simply
listed with all the other "detained" items that petitioner alleged
were damaged during the detention (J.A. 5, at Paragraph 13m).  /30/
Nor did petitioner's response to the government's motion for summary
judgment or to dismiss, which was based solely on the Section 2680(c)
defense, allege other than that the cork pagoda was damaged during a
detention (C.A. App. 27-34).  And, we can see why:  if the pagoda was
broken during the course of the search and while being examined to see
whether it fell within the limits of the search warrant, which seems
likely, then it was being "detained" by a customs officer, albeit
perhaps only momentarily, and would be covered by the preservation of
sovereign immunity in Section 2680(c).  Since there has been no trial,
the facts are not known.  But petitioner should not be permitted so
late in the proceedings to argue a legal theory inconsistent with that
asserted in his complaint and in pleadings before the district court.
/31/

   In sum, the district court correctly dismissed the entire complaint
because the consequential damages alleged with regard to the detention
of the receipt for the stereo receiver involved no "injury or loss of
property" and, in any event, arose "in respect of * * * the detention
of any goods or merchandise," and because petitioner never asserted
other than that the cork pagoda was damaged during a detention by (an)
officer of customs."

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   J. PAUL McGRATH

      Assistant Attorney General

   KENNETH S. GELLER

      Deputy Solicitor General

   KATHRYN A. OBERLY

      Assistant to the Solicitor General

   ROBERT S. GREENSPAN

   MARC RICHMAN

      Attorneys

   JUNE 1983

   /1/ Pursuant to 19 U.S.C. 1202, Guam is outside the customs
territory of the United States, and all goods imported therefrom are
potentially dutiable.

   /2/ Petitioner accuses the customs agents of acting in a
"reprehensible manner" (Br. 9).  But the affidavit supporting the
search warrant indicates that the customs agents had ample cause to
believe that petitioner, contrary to his sworn customs declaration,
intended to resell the 20 boxes of oriental art he was importing.  The
items had an estimated value of $98,000.  The size and value of the
shipment alone raised the possibility that it was being made for
commercial purposes.  And when one of the customs agents, acting in an
undercover capacity, delivered the shipment to petitioner, petitioner
made a number of incriminating statements, including an offer to sell
some of the items to the agent.  Petitioner also told the agent that
it was necessary to "lie a little" in order to "beat Customs." A copy
of the affidavit in support of the search warrant has been lodged with
the Clerk of this Court and Served on petitioner's counsel.

   /3/ Section 1592 permits the forfeiture of goods whenever they are
brought into the United States "by means of any false statement."
Petitioner's acquittal on the criminal charge would not, of course, be
binding in a civil forfeiture proceeding because of the different
standards of proof.  See One Lot Emerald Cut Stones and One Ring v.
United States, 409 U.S. 232, 234-235 (1972).

   /4/ Section 1618 authorizes the Secretary of the Treasury to remit
or mitigate a forfeiture "if he finds that such * * * forfeiture 0as
incurred without willful negligence or without any intention on the
part of the petitioner to defraud the revenue or to violate the law,
or finds the existence of such mitigating circumstances as to justify
the remission or mitigation of such * * * forfeiture * * * ."

   /5/ Alliance was followed by the Ninth Circuit in a short, per
curiam opinion that quotes the entire discussion of the issue in
Alliance but adds no additional discussion.  A-Mark, Inc. v. United
States Secret Service, 593 F.2d 849 (1978).  See also A & D
International, Inc. v. United States, 665 F.2d 669 (5th Cir. 1982).
On the other hand, the position adopted by the Third Circuit in the
instant case was also taken in United States v. One (1) Douglas A-26B
Aircraft, 662 F.2d 1372 (11th Cir. 1981);  United States v. One (1)
1972 Wood, 19 Foot Custom Boat, 501 F.2d 1327, 1330 (5th Cir. 1974);
and S. Schonfeld Co. v. SS Akra Tenaron, 363 F. Supp. 1220 (D.S.C.
1973).

   /6/ Of course, sovereign immunity was not preserved for ordinary
torts dissociated from administration of the governmental duties
involved.  See Note, The Federal Tort Claims Act, 56 Yale L.J. 534,
548 n.90 (1947) ("Thus a customs official who through negligence
mistakenly thought a bottle to contain contraband and smashed it,
would thereby impose no liability upon the Government under this Act.
But if in so doing he negligently hurt a bystander, this exception
would not deny jurisdiction to the courts in an action by the
bystander against the United States").

   /7/ The courts have generally held that Section 2680(c) applies to
all federal "law enforcement officers." See cases cited in A-Mark,
Inc. v. United States Secret Service, 593 F.2d 849, 851 (9th Cir.
1978) (Tang, J., concurring).  But cf. ibid. (expressing the view that
the section should be limited to law enforcement officers "acting in a
customs or tax capacity").  Although any such limitation is not
relevant to this case, we believe Judge Tang was in error, and we
assume that Section 2680(c) means what it says, i.e., that it
encompasses detentions by any officer of customs or excise "or any
other law enforcement officer" (emphasis added).

   /8/ A copy of this report has been lodged with the Clerk of this
Court and served on counsel for petitioner.

   /9/ "(I)n addition to enforcing the Tariff Act of 1930 and other
customs statutes, the Customs Service enforces export control laws and
intercepts illegal high technology exports to Soviet Bloc countries;
cooperates with other Federal agencies and foreign governments in
suppressing the traffic in illegal narcotics;  enforces reporting
requirements of the Bank Secrecy Act;  * * * and enforces a wide range
of requirements to protect the public, such as auto safety and
emission control standards, radiation and radioactive material
standards, counterfeit money instruments, flammable fabric
restrictions, animal and plant quarantine requirements, and food,
drug, and hazardous substance prohibitions." Customs U.S.A., supra, at
5.

   /10/ It is also an elementary rule of statutory construction "that
a statute should be interpreted so as not to render one part
inoperative." Colautti v. Franklin, 439 U.S. 379, 392 (1979).
Petitioner's contention (Br. 11) "that the successive Congresses which
considered the Federal Tort Claims Act provisions in the several years
prior to its passage viewed subsection (c) as granting no real
exemption" is thus totally untenable.

   /11/ Congress has used the phrases "arising in respect" or "arising
with respect" to express the broadest sorts of relationships.  See,
e.g., 12 U.S.C. 1744 (in exchange for payment of government insurance
to lender for defaulted loan, lender must transfer to the Secretary of
Housing and Urban Development all rights and interest arising "with
respect to" tht loan so in default);  27 U.S.C. 207 (authority of
Secretary of Treasury to compromise liability "arising with respect
to" violations of laws relating to commerce in intoxicating liquors);
42 U.S.C. 295d-2 (Advisory Council on Family Medicine to advise and
assist Secretary of Health and Human Services on policy matters
"arising with respect to" the administration of the statute);  42
U.S.C. 299(c) (National Advisory Council on Regional Medical Programs
to advise the Secretary of HHS on policy matters "arising with respect
to" the administration of the act);  42 U.S.C. 3532(b) (Secretary of
HHS to arrange for special working groups to consider special problems
"arising with respect to" matters described in the statute).

   /12/ There surely is no basis in the text of Section 2680(c) for
severing "detention" from "of any goods or merchandise," in order to
focus on the mere fact of detention.  As noted below (see pages 16-17,
infra), such a reading of Section 2680(c) would render the exemption
meaningless because the mere fact of detention would not even give
rise to a claim for "injury or loss of property," as required by 28
U.S.C. 1346(b).  Moreover, it is reasonable to assume that Congress,
by preserving immunity for the detention of goods, intended also to
preserve immunity for those activities that invariably follow from the
detention, such as storage and movement of the goods, and from the
injuries that are statistically bound to arise from those activities.
Indeed, the law of bailments stands as testament to the fact that
claims for loss or damage to property given over to another are part
and parcel of the entrusting of property to another.

   Judge Weis, dissenting below, was able to construe the clause
"arising in respect of * * * the detention of goods" contrary to our
position only by severing "the detention" from its immediate modifier,
"of goods," and then focusing exclusively on "the detention" (Pet.
App. 9).  While that might be appropriate had Congress precluded
claims arising out of "the fact of the detention of goods," the
dissent cited no basis whatsoever for rewriting the statute.  Nor did
Judge Weis cite any authority for his conclusion that the broad
indicator of relationship, "arising in respect of," is somehow
narrower than other language Congress might have chosen, such as
"arising out of" (id. at 10).  In our view, the language Congress
employed and the slightly different hypothetical language stressed by
Judge Weis constitute equally broad restrictions on the waiver of
sovereign immunity.

   Judge Weis found it anomalous that there is no recovery for
negligence in this case, but that "(i)f a traveller handed an
expensive oriental vase to a customs officer for inspection at a port
of entry, and the officer carelessly dropped the vase, damages would
be payable under the Federal Tort Claims Act" (Pet. App. 8).  But it
is not at all clear that an action would lie under the Federal Tort
Claims Act in the situation described in Judge Weis's hypothetical
example.  Damages caused during inspection at a port of entry arise
"in respect of" the assessment or collection of customs duties and the
detention (albeit momentary) of property as clearly as damages
occasioned by negligence during a longer period of detention.  There
is nothing in the language of the statute to suggest that Congress
intended to treat the negligent actions of customs agents at ports of
entry any differently than the negligent actions of customs agents
engaged in a more comprehensive investigation over a prolonged period
of time.  Neither situation involves the sort of ordinary tort
disassociated with the performance of the agents' duties that Congress
intended to be within the waiver of sovereign immunity under the FTCA
(see page 10 note 6, supra).

   /13/ Of course, Section 2680(c) also bars suits under the FTCA for
damages attributable to a customs detention, and a few courts have
dismissed such claims on the basis of that exemption.  United States
v. 1500 Cases, More or Less, 249 F.2d 382 (7th Cir. 1957);  Jones v.
FBI, 139 F.Supp. 38 (D. Md. 1956);  United States v. One 1951 Cadillac
Coupe de Ville, 125 F.Supp. 661 (E.D.Mo. 1954).

   /14/ Although we agree with the court of appeals (Pet.App. 6) that
the exceptions to the FTCA, being reservations of sovereign immunity,
must be construed broadly in the government's favor, we believe our
construction of Section 2680(c) should prevail under any reasonable
rule of statutory construction.

   /15/ The cases, textbooks and law review articles cited by
petitioner (Br. 12-13) do not advance his case.  The cases all rely on
the Second Circuit's decision in Alliance Assurance Co. v. United
States, supra.  Alliance, in turn, disregarded the statutory language,
the legislative history, and Congress' purposes in enacting the FTCA
exemptions generally (see pages 23-32, infra).  The decision rested
almost entirely on the court's comparison of the language of Section
2680(c) and Section 2680(b) (Alliance Assurance Co. v. United States,
supra, 252 F.2d at 534.  As we have shown above, however, the specific
language of Section 2680(b) in no way limits the much broader language
of Section 2680(c).  2 L. Jayson, Personal Injury:  Handling Federal
Tort Claims Section 256 (1983), simply cites Alliance (see id. Section
256.03), the Yale Law Journal Note supports our position (see page 10
note 6, supra), and the other law review articles do not address the
precise issue presented by this case.

   /16/ Judge Holtzoff, then a Special Assistant to the Attorney
General, played a critical role in the development of the Federal Tort
Claims Act.  See Borchard, The Federal Tort Claims Bill, 1 U. Chi. L.
Rev. 1 n.2 (1933) ("Great credit is also due to Mr. Alexander Holtzoff
of New York, Special Assistant to the Attorney General, who was
assigned by Attorney General Mitchell to the special task of
co-ordinating the views of the Government departments and whose
detailed criticisms of the bill helped greatly in the formulation of
the latest, and possibly, final draft" (referring to S. 4567, 72d
Cong., 1st Sess. (1932), one of the early bills containing the
detention of property clause)).

   /17/ A copy of this report has been lodged with the Clerk of this
Court and served on petitioner's counsel.  The Holtzoff Report,
containing Judge Holtzoff's proposed bill, is undated, but a cover
memorandum indicates that it was submitted to Assistant Attorney
General Rugg on September 25, 1931.  Assistant Attorney General Rugg,
in turn, sent it to the General Accounting Office (an arm of Congress)
sometime prior to October 27, 1931 (see Memorandum for the Attorney
General, In re Tort Claims Act (Oct. 27, 1931)).  Although we have
been unable to find any record of the report's transmission to
Congress itself, it seems more probable than not that Congress
received the report because Congress never considered a bill with the
detention of property clause until it took up H.R. 5065, 72d Cong.,
1st Sess. (1931).  As noted (page 19, supra), that bill was drafted by
the Department of Justice and the General Accounting Office and was
introduced a few months after the Holtzoff Report appears to have been
written.

   /18/ A copy of the Report of the Crown Proceedings Committee has
been lodged with the Clerk of this Court and served on petitioner's
counsel.

   /19/ Apparently, the detention of goods proposal in the British
bill was never enacted into law in Great Britain.  See Crown
Proceedings Act, 1947, 10 & 11 Geo. 6, ch. 44.

   /20/ See 1942 Hearings, supra, at 33.  See also Tort Claims Against
the United States:  Hearings on H.R. 7236 Before Subcomm. No. 1 of the
House Comm. on the Judiciary, 76th Cong., 3d Sess. 22 (1940) ("The
theory of these exemptions is that, since this bill is a radical
innovation, perhaps we had better take it step by step and exempt
certain torts and certain actions which might give rise to tort claims
that would be difficult to defend, or in respect to which it would be
unjust to make the Government liable").  Immunity was also retained to
guard against those situations "where there might be an opportunity
for fraudulent and excessive claims * * * ." 1932 Hearings, supra, at
17.

   Regarding the exemption for "the assessment or collection of any
tax or customs duty," O.R. McGuire, counsel to the Comptroller
General, indicated that injuries arising out of those activities were
"taken care of under the taxation and customs laws, and the Government
does not want to provide for a tort action in those instances, because
there is a civil action that would take care of the situation to a
large extent, though not fully." 1932 Hearings, supra, at 18.
Although it is not clear, McGuire's reference to an existing civil
action may have been to the traditional common law remedy against
customs collectors.  See pages 29-32, infra.  It is also not clear
whether his statement was meant to encompass the detention clause of
the customs exception, or only the assessment and collection clause,
but his statement explicitly referenced only the latter.

   /21/ Petitioner assumes (Br. 10-12) that the only reason Congress
preserved immunity for the detention of goods was because other
alternative remedies existed.  But the legislative history shows that
Congress adopted the FTCA exceptions to address a variety of concerns,
and there is no basis for assuming that these concerns did not apply
to the assessment or collection of customs duties and the detention of
goods.  In any event, whatever uncertainty exists with respect to
Congress' specific purpose in enacting Section 2680(c) only
underscores the need to rely on the most certain indicator of
legislative intent, the statutory language.  Some congressmen may have
felt that Section 2680(c) would protect core governmental activities
from the danger of private lawsuits;  some may have believed that
there was no need to provide yet another remedy;  some may have been
persuaded by the distinctions between suits against the collector and
suits against the United States (see page 13, infra).  We cannot be
sure.  But what we do know is that Congress decided that there should
be a broad preservation of sovereign immunity for "any claim arising
in respect of the assessment or collection of any * * * customs duty,
or the detention of goods and merchandise by any officer of customs"
(emphasis added).

   /22/ That Congress in 1974 eliminated from Section 2680(h) the
exception for claims arising out of assault, battery, false
imprisonment, false arrest, abuse of process, or malicious prosecution
committed by federal investigative or law enforcement officers does
not detract from the fundamental importance of law enforcement
activities.  Rather, it demonstrates a degree of congressional
responsiveness to the need for periodic reconsideration of the
assumptions underlying the original FTCA exemptions.

   /23/ Petitioner argues (Br. 10) that if he has "no recourse for the
damages he sustained, then there is nothing to prevent the Customs
Service from smashing or destroying any items it seizes as evidence
before returning (them) to (their) rightful owner." But any employee
who deliberately damaged or destroyed property detained by Customs
would probably be acting outside the scope of his employment, and thus
his actions would not fall within the waiver of sovereign immunity in
the FTCA in any event (28 U.S.C. 1346(b)).  Moreover, the deliberate
destruction of property might give rise to an action against the
officer in his personal capacity (see pages 29-32, infra).

   In any event, it is not at all clear that persons in petitioner's
position would be benefitted by the construction of Section 2680(c)
that he advocates.  The return of petitioner's property under 19
U.S.C. 1618 was essentially a matter of grace, committed to the
discretion of the Secretary of the Treasury.  If the Customs Service
is to be held liable for negligent damage to goods in its possession,
it seems likely that discretionary forfeiture remissions would occur
less frequently than they do now because the government could avoid
liability simply by carrying the forfeiture proceedings to conclusion.
 (In 90% of all customs seizures, the claiment files an administrative
petition for remission or mitigation.  The Customs Service in turn
grants at least partial relief for approximately 75% of the petitions.
 United States v. $8,850, No. 81-1062 (May 23, 1983), slip op.3.  By
contrast, Customs advises us that it is successful in about 80% of all
contested forfeiture actions.) And even if the Customs Service did
return the property, it would seem to open to the government to prove
that no damages were sustained because the property was subject to
complete forfeiture.  In petitioner's case, this would mean that his
claim of $12,000 in damages could be negated by the government's
ability to prove its entitlement to his entire shipment, valued at
approximately $100,000.

   /24/ To these figures, of course, must be added the number and
value of detentions made by tax and other federal law enforcement
officers.

   /25/ As agents of the government, customs collectors are true
bailees for the government of property seized under a claim of
government title.  As owner, the government has the right to demand
immediate possession.  See United States v. Thomas, 82 U.S. (15 Wall.)
337, 352 (1873).

   /26/ However, "if it appears that there was reasonable cause for
the seizure," the court must enter a certificate to that effect, and
the customs officer will thereby be free, as a matter of law, from an
award of costs and from suit or judgment on account of the forefeiture
proceeding. 28 U.S.C. 2465.

   /27/ In addition to suits against the customs collector personally,
there may be an alternative remedy.  In Hatzlachh Supply Co. v. United
States, 444 U.S. 460 (1980), the Court held that Congress' passage of
Section 2680(c) was not intended to bar the filing of an action for
breach of contract under the Tucker Act, 28 U.S.C. 1491, based on the
loss of goods seized for customs violations.  The Court remanded the
case to the Court of Claims to determine whether a customs seizure
gives rise to an implied-in-fact contract of bailment.  Justice
Blackmun dissented (444 U.S. at 466-468).  He agreed that the FTCA did
not bar resort to the Tucker Act, but concluded that no
implied-in-fact contract could arise from the seizure and forfeiture
of goods under the customs laws.  Because the Court of Claims has no
jurisdiction over contracts implied in law, see United States v.
Minnesota Mutual Investment Co., 271 U.S. 212, 217-218 (1926), Justice
Blackmun thought that the Court's remand in Hatzlachh "is, or should
be, a useless exercise leading to an inevitable result" (444 U.S. at
467).  The remand proceedings in Hatzlachh are still pending.  On
remand, the government has argued, as suggested by Justice Blackmun,
that the seizure for forfeiture of goods under the custom laws does
not create an implied-in-fact contract of bailment.  Should that
argument prove unsuccessful, however, persons such as petitioner will
be able to seek redress under the Tucker Act as well as through
private damages actions against customs officials.

   /28/ Indeed, it was explicitly recognized that some of the existing
remedies to which potential claimants were being remitted "would take
care of the situation to a large extent, though not fully." 1932
Hearings, supra, at 18 (emphasis added).  Nevertheless, Congress chose
not to extend the waiver of sovereign immunity to such claims.

   /29/ Moreover, petitioner has not shown why he could not have given
other evidence of the date of purchase in order to obtain warranty
repairs of the receiver, or submitted the receipt to the company when
Customs returned it, with a request for a refund of the $300 paid.

   /30/ By contrast, petitioner separately pleaded the claim for
consequential damages due to the seizure of the stereo receiver
receipt (J.A.5, at Paragraph 14).

   /31/ Petitioner faulted the district court (Pet. 10) for not giving
reasons for the dismissal of the complaint.  But since the government
moved to dismiss only on the basis of Section 2680(c), the reason for
the dismissal was obvious.