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.