United States Court of Appeals 

for the Federal Circuit 

__________________________ 

MAJD KAM-ALMAZ, 

Plaintiff-Appellant, 

v. 

UNITED STATES, 

Defendant-Appellee. 

__________________________ 

2011-5059 

__________________________ 

Appeal from the United States Court of Federal 

Claims in Case No. 09-CV-007, Judge Lawrence M. 

Baskir. 

__________________________ 

Decided: June 20, 2012 

__________________________ 

MATTHEW J. DOWD, Wiley Rein LLP, of Washington, 

DC, argued for plaintiff-appellant. Of counsel on the brief 

was BRUCE W. MCLAUGHLIN, Law Offices of Bruce 

McLaughlin, of Leesburg, Virginia. 

JEANNE E. DAVIDSON, Director, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, of Washington, DC, argued for defendantappellee. With her on the brief were TONY WEST, Assistant Attorney General, PATRICIA M. MCCARTHY, Assistant 

Director, and SARAH A. MURRAY, Trial Attorney. 
KAM-ALMAZ v. US 2

AMJAD M. KHAN, Latham & Watkins LLP, of Los Angeles, California, for amicus curiae. With him on the brief 

were ABID RIAZ QURESHI, of Washington, DC, GHAITH 

MAHMOOD, of Los Angeles, California, and YUSUF ZAKIR, 

of Costa Mesa, California. 

__________________________ 

Before NEWMAN, LOURIE, and PROST, Circuit Judges. 

Opinion for the court filed by Circuit Judge LOURIE. 

Dissenting opinion filed by Circuit Judge NEWMAN. 

LOURIE, Circuit Judge. 

Majd Kam-Almaz appeals from the final decision of 

the United States Court of Federal Claims dismissing his 

breach of contract and Fifth Amendment taking claims. 

We affirm. 

BACKGROUND

Kam-Almaz alleged the following facts in his pleadings before the Court of Federal Claims. See Compl., Jan. 

5, 2009, ECF No. 1; Am. Compl., Jan. 25, 2010, ECF No. 

23. Kam-Almaz is a United States citizen employed in 

the business of international disaster relief assistance. 

On April 7, 2006, Kam-Almaz returned home from an 

overseas business trip. At Dulles International Airport in 

Loudoun County, Virginia, Agent Craig Muldowan of the 

United States Immigration and Customs Enforcement 

(“ICE”) detained Kam-Almaz, informing him that he was 

a “person of interest to ICE.” Compl. ¶ 8. Muldowan 

seized Kam-Almaz’s laptop and two flash drives for review by ICE. Before Muldowan seized the equipment, 

however, Kam-Almaz informed him that it contained the 

only copies of his business files; in response, Muldowan 

permitted Kam-Almaz to copy and retain one computer 
3 KAM-ALMAZ v. US

file. Upon seizing the equipment, Muldowan provided to 

Kam-Almaz a signed Customs Form 6051D indicating 

that the equipment would be detained for up to thirty 

days. Muldowan also verbally assured Kam-Almaz that 

the equipment would be held for no more than seven days. 

While the laptop was detained, its hard drive failed, 

destroying much of Kam-Almaz’s business software. On 

May 15, 2006, a representative from the U.S. Customs 

and Border Protection (“Customs”) sent Kam-Almaz a 

letter seeking to assure him that a prompt resolution of 

the issue would be addressed by Muldowan. On June 21, 

2006, about ten weeks after its seizure, the laptop was 

returned to Kam-Almaz. On June 24, 2006, the Director 

of Investigations for ICE sent Kam-Almaz a letter representing that “ICE has made every attempt to minimize 

the inconvenience to [Kam-Almaz]. ICE copied the files 

and provided them to Mr. Kam-Almaz during the initial 

border stop.” Compl. ¶¶ 18–19. 

On January 5, 2009, Kam-Almaz filed suit in the 

Court of Federal Claims, alleging breach of an implied-infact contract. On January 25, 2010, he amended his 

complaint and included a takings claim. Kam-Almaz 

alleged damages totaling $469,480.00 due to lost business 

contracts resulting from his inability to access his computer files as well as replacement hardware, software, 

and warranty costs. On June 30, 2010, the government 

moved to dismiss, arguing that the Court of Federal 

Claims lacked jurisdiction over Kam-Almaz’s complaint, 

and that the complaint failed to state a claim upon which 

relief could be granted. 

In a decision dated January 7, 2011, the Court of Federal Claims granted the government’s motion to dismiss. 

Kam-Almaz v. United States, 96 Fed. Cl. 84, 86 (2011). 

On the breach of contract claim, the court dismissed 
KAM-ALMAZ v. US 4

under Rule 12(b)(6) of the United States Court of Federal 

Claims (“RCFC 12(b)(6)”) for failure to state a claim upon 

which relief can be granted. The court held that the 

complaint failed in several respects to allege facts sufficient to find a bailment contract. The court found that, 

because the complaint stated that his property was 

seized, Kam-Almaz did not “deliver[] personalty” to the 

government as a bailment requires. Id. at 88. The court 

further found that the complaint failed to allege that the 

government promised to return the computer in accordance with Kam-Almaz’s instructions or to guard or 

carefully handle the equipment. Again focusing on the 

fact that the complaint described the government’s act as 

a “seizure,” the court found that the complaint failed to 

allege facts demonstrating the required mutuality of 

intent between the parties. Finally, the court held that 

the complaint lacked the necessary allegations of Muldowan’s authority to enter into a bailment contract. 

The Court of Federal Claims also dismissed KamAlmaz’s takings claim under RCFC 12(b)(6). The court 

explained that property seized and retained pursuant to 

the government’s police power is not taken for a public 

use within the context of the Fifth Amendment’s Takings 

Clause. Noting that border agents do not have authority 

to seize property without having reasonable cause to 

suspect a violation of law, the court rejected Kam-Almaz’s 

theory that the laptop was seized, not according to the 

police power, but according to an administrative border 

search for security purposes. The court further explained 

that, if the seizure was unauthorized, then the Court of 

Federal Claims would lack jurisdiction, because due 

process and Fourth Amendment claims are reserved for 

district courts. Finally, the court held that even assuming 

the government’s actions were authorized and that an 

unreasonable delay in returning the property amounted 
5 KAM-ALMAZ v. US

to a taking, the court lacks jurisdiction over damage 

claims for due process violations. 

Kam-Almaz appealed. We have jurisdiction pursuant 

to 28 U.S.C. § 1295(a)(3). 

DISCUSSION

To avoid dismissal for failure to state a claim under 

RCFC 12(b)(6), “a complaint must allege facts ‘plausibly 

suggesting (not merely consistent with)’ a showing of 

entitlement to relief.” Acceptance Ins. Cos., Inc. v. United 

States, 583 F.3d 849, 853 (Fed. Cir. 2009) (quoting Bell 

Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). The 

facts as alleged “must be enough to raise a right to relief 

above the speculative level, on the assumption that all the 

allegations in the complaint are true (even if doubtful in 

fact).” Twombly, 550 U.S. at 555 (citations omitted). At 

the same time, a court is “‘not bound to accept as true a 

legal conclusion couched as a factual allegation.’” Id.

(quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). We 

review de novo a decision to dismiss a complaint for 

failure to state a claim under RCFC 12(b)(6). Hearts Bluff 

Game Ranch, Inc. v. United States, 669 F.3d 1326, 1328 

(Fed. Cir. 2012). We also review de novo the grant or 

denial of a motion to dismiss for lack of jurisdiction. See

Frazer v. United States, 288 F.3d 1347, 1351 (Fed. Cir. 

2002). 

I 

We first address Kam-Almaz’s claim for breach of an 

implied-in-fact bailment contract. “An implied-in-fact 

contract with the government requires proof of (1) mutuality of intent, (2) consideration, (3) an unambiguous offer 

and acceptance, and (4) actual authority on the part of the 

government’s representative to bind the government in 

contract.” Hanlin v. United States, 316 F.3d 1325, 1328 
KAM-ALMAZ v. US 6

(Fed. Cir. 2003) (internal quotation marks omitted). An 

implied-in-fact contract is founded upon a meeting of the 

minds and “‘is inferred, as a fact, from the conduct of the 

parties showing, in the light of the surrounding circumstances, their tacit understanding.’” Id. (quoting Balt. & 

Ohio R.R. v. United States, 261 U.S. 592, 597 (1923)). “A 

bailment relationship is said to arise where an owner, 

while retaining title, delivers personalty to another for 

some particular purpose upon an express or implied 

contract. The relationship includes a return of the goods 

to the owner or a subsequent disposition in accordance 

with his instructions.” Lionberger v. United States, 371 

F.2d 831, 840 (Ct. Cl. 1967); see also 19 Williston on 

Contracts § 53:1 (4th ed. 2012) (defining a bailment as “a 

delivery of personalty for some particular purpose, or on 

mere deposit, upon a contract, express or implied, that 

after the purpose has been fulfilled it shall be redelivered 

to the person who delivered it, or otherwise dealt with 

according to his directions, or kept until he reclaims it, as 

the case may be.” (international quotation marks omitted)). Kam-Almaz, as the plaintiff, bears the burden of 

proving the existence of an implied-in-fact contract. See

Hanlin v. United States, 316 F.3d 1325, 1330 (Fed. Cir. 

2003). 

Kam-Almaz contends that the Court of Federal 

Claims erred by concluding that his complaint failed to 

allege facts sufficient to assert a plausible claim for 

breach of an implied bailment contract. Kam-Almaz 

asserts that his complaint plausibly alleges a bailment 

because Kam-Almaz “delivered personalty” by transferring possession of his laptop to ICE, and because his 

computer was expected to be held only for a short period 

of time and then returned in working condition. KamAlmaz further contends that his complaint plausibly 

alleges a breach of an implied-in-fact contract because the 
7 KAM-ALMAZ v. US

facts alleged demonstrate (1) mutuality of intent to contract, (2) a negotiation demonstrating offer, acceptance, 

and consideration, and (3) actual authority of Muldowan 

to bind the United States in contract. Finally, he contends that Supreme Court and Federal Circuit cases 

recognize that a party in Kam-Almaz’s shoes may be able 

to establish a breach of an implied contract when property 

temporarily detained by the government is damaged. 

The government, in response, contends that the Court 

of Federal Claims correctly dismissed Kam-Almaz’s 

complaint on the pleadings. According to the government, 

Kam-Almaz did not allege mutual intent to contract 

because the government lawfully seized the laptop pursuant to its police power. The government further asserts 

that Kam-Almaz failed to establish any other element of 

an implied-in-fact bailment contract, including an offer, 

acceptance, consideration, and actual authority to contract. 

We agree with the government that the Court of Federal Claims correctly dismissed Kam-Almaz’s complaint 

for failure to allege facts plausibly suggesting a breach of 

an implied-in-fact bailment contract. Like the Court of 

Federal Claims, we find numerous deficiencies in KamAlmaz’s complaint. The complaint does not plausibly 

allege the required elements of a bailment. Kam-Almaz 

did not voluntarily “deliver” his equipment to Muldowan. 

See Goudy & Stevens, Inc. v. Cable Marine, Inc., 924 F.2d 

16, 18 (1st Cir. 1991). Rather, as Kam-Almaz repeatedly 

alleged, it was involuntarily “seized.” See Compl. ¶¶ 4, 5, 

8, 10–12, 14, 16; Am. Compl. ¶ 3. The complaint further 

fails to allege facts indicating the mutual intent required 

for an implied-in-fact contract. A seizure, essentially by 

definition, lacks mutual intent. Thus, as the government 

correctly points out, a seizure pursuant to the government’s authority to police the border generally will not 
KAM-ALMAZ v. US 8

give rise to an implied-in-fact bailment contract. See

Llamera v. United States, 15 Cl. Ct. 593, 597 (1988); see 

also Alde, S.A. v. United States, 28 Fed. Cl. 26, 30 (1993) 

(collecting cases and observing that “[t]hese cases evince a 

uniform reluctance to find an implied bailment contract 

. . . where plaintiff’s property has been seized pursuant to 

the Government’s exercise of its police power”). Further, 

because Kam-Almaz did not voluntarily deliver his property to the government, his complaint fails to allege any 

valid consideration. See Llamera, 15 Ct. Cl. at 598. In 

summary, we agree with the Court of Federal Claims that 

“[t]he ‘purely unilateral act’ of seizing a person’s personal 

property does not evidence intent to enter into a bailment 

contract.” Kam-Almaz, 96 Fed. Cl. at 88 (quoting Alde, 28 

Fed. Cl. at 31). 

In support of his bailment claim, Kam-Almaz points 

to Muldowan’s statement that the laptop would be seized 

“for no more than seven days” and the document receipt 

stating that “shipments may be detained for up to thirty 

(30) days.” Compl. ¶ 12. Those estimates of when the 

seized property might be returned to Kam-Almaz, however, are insufficient to allege a bailment contract. See, 

e.g., Llamera, 15 Cl. Ct. at 597 (noting that even though 

the plaintiff received “a receipt” for his seized property, 

the facts “did not evidence any intent to enter into a 

bailment agreement”). Furthermore, as the relevant 

regulation indicates, the fact that Kam-Almaz received a 

receipt in no way diminishes the characterization of 

Muldowan’s actions as a unilateral seizure. See 19 C.F.R. 

§ 162.21(a) (“A receipt for seized property shall be given 

at the time of seizure to the person from whom the property is seized.”). Kam-Almaz also alleges that correspondence between him and the government supports the 

plausibility of his claim for an implied-in-fact bailment 

contract. But those letters do not evidence the govern-
9 KAM-ALMAZ v. US

ment’s intent to enter into an enforceable implied-in-fact 

contract with Kam-Almaz. See Hanlin, 316 F.3d at 1330 

n.3. 

We therefore conclude that Kam-Almaz failed to plausibly allege a mutual intent to contract, as an implied-infact contract requires, and further failed to plausibly 

allege a voluntary delivery of property, as needed for a 

bailment contract. We need not address the other deficiencies in Kam-Almaz’s pleadings identified by the Court 

of Federal Claims in order to conclude that the court 

correctly dismissed Kam-Almaz’s claim for breach of an 

implied-in-fact bailment contract. 

Finally, Kam-Almaz contends that the Court of Federal Claims “treated the issue of the bailment as if such a 

claim were legally not viable,” and in so doing disregarded 

the Supreme Court’s opinions of Kosak v. United States, 

465 U.S. 848 (1984) and Hatzlachh Supply Co. v. United 

States, 444 U.S. 460 (1980) (per curiam), as well as our 

court’s decision in Acadia Technology, Inc. v. United 

States, 458 F.3d 1327 (Fed. Cir. 2006). Br. Pl.-Appellant 

Kam-Almaz at 14. Those opinions, however, merely 

suggested that the possibility of alleging an implied-infact bailment contract is not foreclosed when Customs 

detains property. In Kosak, a case involving a claim 

under the Federal Tort Claims Act, the Court noted the 

prospect of other remedies, including the possibility of 

bringing suit against an individual Customs official who 

negligently damaged detained goods and the possibility of 

bringing suit “[i]f the owner of property detained by the 

Customs Service were able to establish the existence of an 

implied-in-fact contract of bailment between himself and 

the Service . . . .” 465 U.S. at 860 & n.22. In Hatzlachh, 

which similarly involved the effect of a statutory exception to the Federal Tort Claims Act, the Court observed 

that “[t]he absence of Government tort liability has not 
KAM-ALMAZ v. US 10

been thought to bar contractual remedies on implied-infact contracts . . . .” 444 U.S. at 465. And finally, in 

Acadia, a case involving a takings claim under the Fifth 

Amendment, we noted “that an owner [of property detained by Customs] might be able to bring a suit under 

the Tucker Act for money damages under a theory of 

breach of an implied-in-fact contract of bailment between 

the owner and Customs,” but “we express[ed] no opinion 

as to whether the facts [alleged] might support such a 

claim.” 458 F.3d at 1334 n.2. In the present case, it is 

unnecessary to opine whether under some hypothetical 

set of alleged facts an implied-in-fact bailment contract 

could conceivably arise from the detainment of property 

by Customs. We merely hold, on the specific facts alleged 

and for the reasons stated, that Kam-Almaz’s complaint 

fails to state a claim for an implied-in-fact bailment 

contract. 

II 

We next turn to Kam-Almaz’s claim for a compensable 

taking. The Fifth Amendment to the United States 

Constitution provides in part, “nor shall private property 

be taken for public use, without just compensation.” The 

purpose of the Takings Clause is “to bar Government from 

forcing some people alone to bear public burdens which, in 

all fairness and justice, should be borne by the public as a 

whole.” Armstrong v. United States, 364 U.S. 40, 49 

(1960). 

Kam-Almaz asserts that the Court of Federal Claims 

erred by dismissing his takings claim for failure to state a 

claim under RCFC 12(b)(6). According to Kam-Almaz, the 

government’s seizure of his laptop constituted a physical 

taking for public use, for which just compensation is due. 

Kam-Almaz further contends that his claim alleges a 

compensable taking because, unlike cases such as Bennis 
11 KAM-ALMAZ v. US

v. Michigan, 516 U.S. 442 (1996), a crime was not committed using the seized property. In addition, KamAlmaz argues that the reasoning of the Court of Federal 

Claims was flawed because it did not define the extent of 

the government’s “police power.” 

The government, in response, contends that the Court 

of Federal Claims lacked jurisdiction over Kam-Almaz’s 

takings claim because Kam-Almaz asserted that the 

seizure of his laptop was unlawful and unjust. Assuming 

the court had jurisdiction, the government asserts that 

the court correctly dismissed Kam-Almaz’s claim. According to the government, the complaint failed to allege a 

constitutional taking because an authorized seizure of 

property pursuant to the government’s police power is not 

for public use, and thus cannot be a taking. In addition, 

the government argues that property detained or seized 

by ICE officials is necessarily taken pursuant to the 

government’s police power. 

As an initial matter, we agree with Kam-Almaz that 

the Court of Federal Claims possessed jurisdiction over 

his takings claim. The assertion in Kam-Almaz’s complaint that he suffered “an unjust and unlawful taking of 

his property,” Compl. at ¶ 22, could be read in at least two 

ways. On the one hand, as the government contends, it 

could be an assertion that the government’s seizure was 

unauthorized, in which case the district court, not the 

Court of Federal Claims, would possess jurisdiction. See

Acadia, 458 F.3d at 1331 (“[The] Tucker Act does not 

create jurisdiction in the Court of Federal Claims for a 

party contesting the propriety of a seizure.”). On the 

other hand, as Kam-Almaz asserts, the complaint may 

assert that the government’s seizure, although authorized, was compensable under the Fifth Amendment. 

Under the liberal standards applied to motions to dismiss, 

we conclude that the complaint does not dispute the 
KAM-ALMAZ v. US 12

propriety of the seizure itself, but rather seeks to challenge the failure of the government to compensate KamAlmaz for a presumptively lawful seizure. Thus, the 

Court of Federal Claims properly exercised its jurisdiction 

over Kam-Almaz’s complaint.

Turning to the matter of the court’s dismissal, however, we agree with the government that Kam-Almaz 

failed to state a Fifth Amendment takings claim. Our 

precedent is clear: “Property seized and retained pursuant 

to the police power is not taken for a ‘public use’ in the 

context of the Takings Clause.” AmeriSource Corp. v. 

United States, 525 F.3d 1149, 1153 (Fed. Cir. 2008); see 

also Acadia, 458 F.3d at 1331–32. Kam-Almaz appears to 

recognize as much, arguing that, “[t]o the extent the 

Court considers Acadia and AmeriSource to be controlling, Kam-Almaz respectfully submits that those cases 

should be overruled en banc.” Br. Pl.-Appellant KamAlmaz at 43. Of course, a panel of this court is powerless 

to overrule a precedent. See El-Shifa Pharm. Indus. Co. 

v. United States, 378 F.3d 1346, 1352 (Fed. Cir. 2004). 

In any event, Supreme Court precedent also supports 

the dismissal of Kam-Almaz’s complaint. In Bennis, the 

Court held that Mrs. Bennis, an innocent wife who had a 

property interest in a car that was forfeited after her 

husband used it in the commission of a crime, did not 

have a claim for a compensable taking. 516 U.S. at 452–

53. Mrs. Bennis’s innocence did not factor into the Court’s 

takings analysis. Rather, the Court held that “[t]he 

government may not be required to compensate an owner 

for property which it has already lawfully acquired under 

the exercise of governmental authority other than the 

power of eminent domain.” Id. at 452. In AmeriSource, 

we summarized the Court’s holding in Bennis as follows: 

“[in] case[s] involving governmental seizure of property 

for law enforcement purposes, the [takings] inquiry 
13 KAM-ALMAZ v. US

remains focused on the character of the government 

action, not the culpability or innocence of the property 

holder.” 525 F.3d at 1154. Accordingly, Kam-Almaz’s 

innocence does not convert ICE’s seizure into a compensable taking under the Fifth Amendment.1 

Kam-Almaz further asserts that the government’s seizure was not an exercise of its police power. We disagree. 

Customs officers unquestionably have the authority to 

search and seize property at our nation’s borders.2 See, 

e.g., 19 C.F.R. §§ 162.6, 162.21. Under the relevant 

regulation, “[p]roperty may be seized . . . by any Customs 

officer who has reasonable cause to believe that any law 

or regulation enforced by Customs and Border Protection 

or Immigration and Customs Enforcement has been 

violated . . . .” Id. § 162.21. Lawful seizures performed 

pursuant to such authority necessarily fall within the 

government’s power to police the border. The “police 

powers . . . are nothing more or less than the powers of 

government inherent in every sovereignty to the extent of 

its dominions.” The License Cases, 46 U.S. 504, 583 

 1 Kam-Almaz relies on Shelden v. United States, 7 

F.3d 1022 (Fed. Cir. 1993), in asserting that a takings 

claim may lie when property is seized by the government 

from an innocent owner pursuant to a criminal investigation. Shelden, however, was decided before Bennis. As 

we noted in AmeriSource, “[t]o the extent that [Shelden] 

purports to create any rules with respect to innocent 

owners in the takings context, it plainly lacks force.” 525 

F.3d at 1156. Kam-Almaz’s reliance on Shelden is therefore not persuasive. 

2 The parties do not dispute that Agent Muldowan 

of ICE served as a Customs officer in performing the acts 

alleged in Kam-Almaz’s complaint. See 19 C.F.R. 

§§ 162.6, 162.21; see also 19 U.S.C. § 1401(i). We therefore have no occasion in this case to distinguish between 

Customs and ICE concerning the authority of their officers to perform border searches and seizures. 
KAM-ALMAZ v. US 14

(1847) (opinion of Taney, C.J.). As we have noted, 

“[a]lthough the precise contours of the principle are 

difficult to discern, it is clear that the police power encompasses the government’s ability to seize and retain 

property to be used as evidence in a criminal prosecution.” 

AmeriSource, 525 F.3d at 1153. 

We therefore hold that the Court of Federal Claims 

correctly dismissed Kam-Almaz’s takings claim under 

RCFC 12(b)(6). Whatever claim Kam-Almaz may have 

against the United States, if any, it is not under a breach 

of an implied-in-fact contract or a takings theory. 

CONCLUSION

We have considered Kam-Almaz’s remaining arguments and find them unpersuasive. The judgment of the 

Court of Federal Claims dismissing Kam-Almaz’s complaint is affirmed. 

AFFIRMED 
United States Court of Appeals 

for the Federal Circuit 

__________________________ 

MAJD KAM-ALMAZ, 

Plaintiff-Appellant, 

v. 

UNITED STATES, 

Defendant-Appellee. 

__________________________ 

2011-5059 

__________________________ 

Appeal from the United States Court of Federal Claims 

in Case No. 09-CV-007, Judge Lawrence M. Baskir. 

__________________________ 

NEWMAN, Circuit Judge, dissenting. 

Mr. Kam-Almaz, a United States citizen, returning to 

Dulles International Airport from international business 

travel, was accused of no wrongdoing, and his property was 

seized, detained, and damaged. He was without fault and 

without accusation. The court now condones this action and 

injury, denying all remedy for the destruction of his hard 

drive and the loss of valuable business information on his 

computer. 

Mr. Kam-Almaz was travelling abroad for his work with 

the International Institute for Psychosocial Development, a 

non-profit organization that specializes in post-disaster 

mental health education and consulting. On his return to 
KAM-ALMAZ v. US 2

Dulles Airport, upon routine Customs inspection his laptop 

computer was seized by a Customs agent, the agent stating 

that the computer files would be reviewed because he was a 

“person of interest.” Mr. Kam-Almaz objected that the 

computer contained valuable business data, and the agent 

allowed him to copy one file but not all of the computer files. 

 The agent told Mr. Kam-Almaz that the laptop would be 

returned within seven days, and he was given a form receipt 

that said his property would be returned within thirty days. 

 The laptop was not returned for more than two months, 

after persistent inquiry by Mr. Kam-Almaz. When returned, the hard drive and many of the computer files had 

been destroyed. 

Mr. Kam-Almaz was accused of no wrongdoing, but his 

property was destroyed while in the custody of the government. The issue is not whether the government could have 

seized and detained his computer under its police power; the 

issue is whether the government, having taken possession of 

the computer and destroyed its hard drive and files, had any 

responsibility for the property and has any liability for the 

loss incurred. The court now condones and ratifies this 

injury to Mr. Kam-Almaz’s property, and holds that he is 

without remedy. I respectfully dissent. 

DISCUSSION

This suit is brought under the Tucker Act. The government’s position is that the government action is not a Fifth 

Amendment taking of property because the property was 

taken in exercise of police power. The government also 

states its action did not create an implied-in-fact bailment 

contract because the computer was seized without mutual 

consent, and that all contracts require consent. My colleagues agree, and since the Supreme Court has held that 

no remedy is available on a theory of tort, transfer to a 
3 KAM-ALMAZ v. US

district court is not available, depriving Mr. Kam-Almaz of 

all access to remedy. However, as I shall explain, the court 

errs in holding that Mr. Kam-Almaz is without Tucker Act 

remedy for the destruction of his property by the government. 

I. The Contract Claim 

The court holds that Mr. Kam-Almaz’s claim for breach 

of an implied contract of bailment cannot lie, because his 

complaint states that his property was seized. The court 

reasons that a “seizure, essentially by definition, lacks 

mutual intent,” maj. op. at 7, and thus that the government 

cannot be liable on contract theory because it took the 

property without consent. This holding is contrary to law 

and precedent. 

In several rulings, typified by Kosak v. United States, 

465 U.S. 848 (1984), the Court held, under circumstances of 

Customs seizure, that remedy may be available on a theory 

of implied-in-fact contract of bailment. In Kosak the Customs Service seized antiques and objects of art belonging to 

the plaintiff. The property was eventually returned, but 

was damaged while in the custody of the Customs Service. 

The plaintiff brought suit under the Federal Tort Claims 

Act. The Court held that the Tort Claims Act did not apply 

to injury to property detained by the Customs Service, but 

that “there exists at least one other remedial system,” 

including suit under the Tucker Act based on implied-in-fact 

contract: 

[T]here exists at least one other remedial system 

that might enable someone in petitioner’s position 

to obtain compensation from the Government. If 

the owner of property detained by the Customs Service were able to establish the existence of an im-
KAM-ALMAZ v. US 4

plied-in-fact contract of bailment between himself 

and the Service, he could bring suit under the 

Tucker Act, 28 U.S.C. §1491. See Hatzlachh Supply 

Co. v. United States, 444 U.S. 460 (1980). 

465 U.S. at 861 n.22. The Court observed that the Kosak 

property was “seized,” 465 U.S. at 849, and did not distinguish seizure from involuntary detention. 

In contrast, my colleagues hold that since Mr. KamAlmaz alleged a seizure of his property, he is precluded from 

seeking relief under a contract theory. This holding conflicts with Kosak, and with Hatzlachh Supply Co., Inc. v. 

United States, 444 U.S. 460 (1980), where the Court held 

that “the United States may be held liable for breach of an 

implied contract of bailment when goods are lost while held 

by the United States Customs Service (USCS) following 

their seizure for customs violations.” Id. at 461. The Court 

did not hold that “seizure” eliminated liability for breach of 

an implied contract of bailment of the seized goods. My 

colleagues have departed from clear precedent. 

These are not new theories of government obligation 

and liability. In Alliance Assurance Co. v. United States, 

252 F.2d 529 (2d Cir. 1958), suit was brought in the district 

court under the Tucker Act for the value of goods which, 

“while being inspected for entry into this country, disappeared from the possession of the United States Customs.” 

Id. at 531. The government was held liable for breach of an 

implied contract, the court explaining: 

The obligation of the government was not artificially 

created by law but rather stemmed from an implied 

promise to redeliver the goods as soon as customs 

had checked them against the invoice. Such a 

promise need not be formalized in a written agree-
5 KAM-ALMAZ v. US

ment or even made the subject of a specific conversation. It arises from the implied promise to return 

the goods to the lawful owner after the customs inspection has been completed. 

Id. at 532. The court held that the government “voluntarily 

undertook a bailment of the goods in question, a promise on 

its part to use due care during the term of the bailment can 

and should be implied.” Id.

Contrary to precedent, my colleagues hold that “because 

Kam-Almaz did not voluntarily deliver his property to the 

government, his complaint fails to allege any valid consideration.” Maj. op. at 8. In Alliance the court explained that 

“the owner’s trusting him with the goods is a sufficient 

consideration to oblige him to a careful management,” and 

that “compelling reason to find consideration exists here 

because the bailment, although gratuitous, was compulsory 

and for the exclusive benefit of the bailee.” Id. at 533. This 

reasoning applies in Customs’ detention of Mr. Kam-Almaz’s 

computer and files, for the bailment was compulsory and 

solely for the benefit of the government. 

The panel majority is incorrect in holding that Mr. KamAlmaz’s claim is barred because he “did not voluntarily 

‘deliver’ his equipment to Muldowan,” maj. op. at 7, for, as 

the Supreme Court and other courts have explained, the 

involuntary detention with a promise to return the property 

confirms the implied-in-fact bailment. Mr. Kam-Almaz was 

given a written receipt for the laptop, stating in writing that 

it would be returned within thirty days. This is written 

confirmation of the contract of bailment. 

The fact that Mr. Kam-Almaz did not voluntarily part 

with his laptop does not absolve the government from 

liability for the injury to his property. Acquiescence in 
KAM-ALMAZ v. US 6

Customs’ seizure for inspection of the property does not 

include authorization to destroy the property. As the Court 

stated in Kosak, the “owner of property detained by the 

Customs Service” has “at least” an implied-in-fact contract 

remedy. 

Ignoring this direct precedent, my colleagues dismiss 

Mr. Kam-Almaz’s contract claim, seeking support in seizures of contraband or illegal activity. In Llamera v. United 

States, 15 Cl. Ct. 593 (1988), the Court of Federal Claims 

held that the government was not liable on a bailment 

theory for loss of a vessel that was seized by the Coast 

Guard for violation of law. The Court of Federal Claims 

found that the Coast Guard had told the plaintiff that the 

Coast Guard “was assuming no responsibility whatsoever 

for the vessel” it had seized, and “told plaintiff’s brother that 

he could stay with the vessel or have someone board the 

vessel to watch it for him.” 15 Cl. Ct. at 597-98. Such 

explicit statement of absence of responsibility for the vessel 

is far removed from the facts of this case. 

The panel majority also places inappropriate reliance on 

the criminal seizure in Alde, S.A. v. United States, 28 Fed. 

Cl. 26 (1993), where the government seized an aircraft from 

the Dominican Republic, on its arrival in Puerto Rico, on 

warrant for suspected violation of law. While in government control, the aircraft was damaged in a hurricane. The 

court held that the government was not liable on either 

contract or takings theory, because: 

The Customs Service eventually did seek forfeiture 

of the aircraft. In light of these facts, it is difficult 

to fathom how plaintiff believed the Customs Service was indicating that it would safeguard the aircraft and its contents for later return to plaintiff. 

Quite to the contrary, the Customs Service was ac-
7 KAM-ALMAZ v. US

tively seeking to permanently deprive plaintiff of 

ownership of the aircraft through forfeiture proceedings. 

28 Fed. Cl. at 32. The Alde ruling provides no support for 

this court’s holding that the government has no liability for 

the destruction of Mr. Kam-Almaz’s detained property, with 

no accusation of wrongdoing, before or after the detention. 

The record supports Mr. Kam-Almaz’s position that the 

Customs agent stated the intent to return his property in a 

short time. The Customs agent was told that the computer 

held important and valuable business information, for the 

government permitted Mr. Kam-Almaz to copy one but not 

all of his files. The Complaint states: 

At the time of seizure of his computer, Agent Craig 

Moldowan orally promised to return it to the Plaintiff within seven (7) days after a security review of 

its contents was performed by the Defendants. 

Agent Moldowan signed a written Customs Form 

6051D, evidencing his written offer not to detain the 

Plaintiff’s computer for longer than thirty days. . . . 

The Defendants breached their implied contract 

with Plaintiff when they failed to use due care in a 

prompt manner in the handling of the Plaintiff’s 

computer, due to a Government, operator-caused 

system crash. . . . In addition, the Defendants failed 

to mitigate these damages by simply allowing the 

Plaintiff to make a copy of his operating software 

and data files, as he requested the defendants do. 

Applying law and precedent to the pleadings, Mr. KamAlmaz has stated a claim for relief on an implied-in-fact 

contract theory. The complaint was improperly dismissed 

for failure to state a claim. 
KAM-ALMAZ v. US 8

II. The Takings Claim 

The panel majority also dismisses Mr. Kam-Almaz’s 

Fifth Amendment takings claim, on the ground that his 

property was “seized and retained pursuant to the police 

power.” Maj. op. at 12. However, this court has recognized 

that “it is insufficient to avoid the burdens imposed by the 

Takings Clause simply to invoke the ‘police powers’ of the 

state, regardless of the respective benefits to the public and 

burdens on the property owner.” Acadia Tech., Inc. v. 

Global Win Tech., Ltd., 458 F.3d 1327, 1330, 1332-33 (Fed. 

Cir. 2006) (“[A] taking does not result simply because the 

government acted unlawfully, nor does a takings claim fail 

simply because the government's conduct is subject to 

challenge as unlawful.”). 

Although protection of the nation’s borders is a police 

activity, when the government in its performance injures an 

innocent person, that person is not required to “bear public 

burdens which, in all fairness and justice, should be borne 

by the public as a whole.” Armstrong v. United States, 364 

U.S. 40, 49 (1960). Mr. Kam-Almaz is not excluded from 

access to his Fifth Amendment rights, for the Fifth Amendment applies to government actions which seize and injure 

private property. See, e.g., Kimball Laundry Co. v. United 

States, 338 U.S. 1, 3-4 (1949) (ordering just compensation 

when the government took temporary possession of a laundry plant); United States v. General Motors Corp., 323 U.S. 

373, 375 (1945) (requiring compensation from the government for using a portion of a building leased by the plaintiff). 

The cases relied on by the panel majority all involve a 

seizure of contraband or other violation of law. Neither Mr. 

Kam-Almaz nor his property has been accused of or implicated in any wrongdoing. In Acadia, supra, the seized 
9 KAM-ALMAZ v. US

property allegedly bore a counterfeit trademark. In AmeriSource Corp. v. United States, 525 F.3d 1149, 1150 (Fed. 

Cir. 2008), drugs were seized pursuant to charges of “conspiracy, unlawful distribution of prescription pharmaceuticals, operating an unregistered drug facility, and conspiracy 

to commit money laundering.” In Bennis v. Michigan, 516 

U.S. 442 (1996), the Court upheld the forfeiture of an automobile that had been used in criminal activity, although the 

other owner of the automobile was innocent. These cases all 

relate to confiscation or seizure based on unlawful acts. In 

contrast, no wrong by Mr. Kam-Almaz or his computer was 

alleged by the government. 

It is incorrect to apply criminal law when no crime is alleged. Precedent supports Mr. Kam-Almaz’s pleading of a 

takings claim. 

III. Other Possible Remedies? 

The panel majority refers to “whatever claim KamAlmaz may have against the United States,” as if he simply 

chose the wrong forum. However, Customs injury cannot be 

remedied by tort claim, for in Kosak the Court established 

that “the Tort Claims Act does not cover suits alleging that 

customs officials injured property that had been detained by 

the Customs Service.” 465 U.S. at 862. As mentioned 

supra, the Kosak Court stated that “at least” the Tucker Act 

might provide a remedy. Id. at 861 n.22. 

Whatever the remedial theory, the government is not 

absolved of responsibility for its misfeasance in dealing with 

its citizens. The Court of Claims “holds and speaks a nation’s conscience,” see tribute to Chief Judge Peele, 48 Ct. Cl. 

XXV (Feb 11, 1913). The court has fulfilled this proud 

tradition since its inception: 
KAM-ALMAZ v. US 10

A unique and permanent contribution that the 

Court of Claims has made over the span of its long 

life as a public institution is in how it helps make 

Government officials accountable to the citizens 

whose servants they are, but whose relationship to 

their masters is sometimes forgotten. In helping to 

inspire a high standard of conduct for Government 

officials, it serves the nation well. If there is a constant thread running through the court’s decisions, 

it would seem to be in holding the Government and 

its officials to a strict code of conduct in their relations with citizens. 

Judge Marion Bennett, in The United States Court of 

Claims: A History 170-72 (1978). The History explained 

that “[s]uch a court is the flower of a free society.” Id.

Persons injured by unjustified damage to their property 

detained by Customs agents are not excluded from access to 

the courts. This court’s endorsement of such exclusion 

misconstrues traditional and constitutional theory, and 

denies the responsibility carved into this court’s entrance, 

that: “It is as much a duty of government to render prompt 

justice against itself, in favor of citizens, as it is to administer the same, between private individuals.” Abraham 

Lincoln, Dec. 3, 1861. 

I respectfully dissent.