Kosak v. United States

465 U.S. 848, 104 S. Ct. 1519, 79 L. Ed. 2d 860, 1984 U.S. LEXIS 45, 52 U.S.L.W. 4367

• Court: Supreme Court of the United States
• Decided: March 21, 1984
• Docket: 82-618
• Status: Published

Opinions

Justice Marshall

delivered the opinion of the Court.

The question presented in this case is whether 28 U. S. C. § 2680(c), which exempts from the coverage of the Federal Tort Claims Act “[a]ny claim arising in respect of . . . the detention of any goods or merchandise by any officer of customs,” precludes recovery against the United States for injury to private property sustained during a temporary detention of the property by the Customs Service.

HH

While a serviceman stationed in Guam, petitioner assembled a large collection of oriental art. When he was transferred from Guam to Philadelphia, petitioner brought his art collection with him. In his customs declaration,¹ petitioner stated that he intended to keep the contents of the collection for himself. Subsequently, acting upon information that, contrary to his representations, petitioner planned to resell portions of his collection, agents of the United States Customs Service obtained a valid warrant to search petitioner’s house. In executing that warrant, the agents seized various antiques and other objects of art.

Petitioner was charged with smuggling his art collection into the country, in violation of 18 U. S. C. § 545. After a jury trial, he was acquitted. The Customs Service then notified petitioner that the seized objects were subject to civil forfeiture under 19 U. S. C. § 1592, which at the time permitted confiscation of goods brought into the United States “by means of any false statement.” Relying on 19 U. S. C. § 1618, petitioner filed a petition for relief from the forfeiture.² The Customs Service granted the petition and returned the goods.

Alleging that some of the objects returned to him had been injured while in the custody of the Customs Service, petitioner filed an administrative complaint with the Service requesting compensation for the damage. The Customs Service denied relief. Relying on the Federal Tort Claims Act, 28 U. S. C. §§ 1346(b), 2671-2680 (1976 ed. and Supp. V), petitioner then filed suit in the United States District Court for the Eastern District of Pennsylvania, seeking approximately $12,000 in damages for the alleged injury to his property.³ The Government moved for a dismissal of the complaint or for summary judgment on the ground that petitioner’s claim was barred by § 2680(c). The District Court granted the Government’s motion.⁴

The Court of Appeals, with one judge dissenting, affirmed. 679 F. 2d 306 (CA3 1982). The Court of Appeals reasoned that the United States may be held liable for torts committed by its employees only on the basis of a statutory provision evincing a “‘clear relinquishment of sovereign immunity.’” Id., at 309 (quoting Dalehite v. United States, 346 U. S. 15, 31 (1953)). In the court’s view, the Federal Tort Claims Act, as qualified by § 2680(c), fails to provide the necessary relinquishment of governmental immunity from suits alleging that customs officials damaged or lost detained property. On the contrary, the court observed, the “clear language” of § 2680(c) shields the United States from “all claims arising out of detention of goods by customs officers and does not purport to distinguish among types of harm.” 679 F. 2d, at 308. On that basis, the Court of Appeals held that petitioner had failed to state a claim on which relief could be granted.

We granted certiorari to resolve a conflict in the Circuits regarding the liability of the United States for injuries caused by the negligence of customs officials in handling property in their possession.⁵ 459 U. S. 1101 (1983). We now affirm.

II

A

The Federal Tort Claims Act, enacted in 1946, provides generally that the United States shall be liable, to the same extent as a private party, “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.” 28 U. S. C. § 1346(b); see also 28 U. S. C. §2674. The Act’s broad waiver of sovereign immunity is, however, subject to 13 enumerated exceptions. 28 U. S. C. §§2680(a)-(f), (h)-(n). One of those exceptions, § 2680(c), exempts from the coverage of the statute “[a]ny claim arising in respect of . . . the detention of any goods or merchandise by any officer of customs . . . .”⁶ Petitioner asks us to construe the foregoing language to cover only claims “for damage caused by the detention itself and not for the negligent. . . destruction of property while it is in the possession of the customs service.” By “damage caused by the detention itself,” petitioner appears to mean harms attributable to an illegal detention, such as a decline in the economic value of detained goods (either because of depreciation or because of a drop in the price the goods will fetch), injury resulting from deprivation of the ability to make use of the goods during the period of detention, or consequential damages resulting from lack of access to the goods.⁷ The Government asks us to read the exception to cover all injuries to property sustained during its detention by customs officials.⁸

The starting point of our analysis of these competing interpretations must, of course, be the language of § 2680(c). “[W]e 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 Richards v. United States, 369 U. S. 1, 9 (1962)).⁹ At first blush, the statutory language certainly appears expansive enough to support the Government’s construction; the encompassing phrase, “arising in respect of,” seems to sweep within the exception all injuries associated in any way with the “detention” of goods. It must be admitted that this initial reading is not ineluctable; as Judge Weis, dissenting in the Court of Appeals, pointed out, it is possible (with some effort) to read the phrase, “in respect of” as the equivalent of “as regards” and thereby to infer that “the statutory exception is directed to the fact of detention itself, and that alone.” 679 F. 2d, at 310. But we think that the fairest interpretation of the crucial portion of the provision is the one that first springs to mind: “any claim arising in respect of” the detention of goods means any claim “arising out of” the detention of goods, and includes a claim resulting from negligent handling or storage of detained property.

Relying on the analysis of the Second Circuit in Alliance Assurance Co. v. United States, 252 F. 2d 529 (1958), petitioner argues that the foregoing reading of the plain language of § 2680(c) is undercut by the context in which the provision appears.

“That the exception does not and was not intended to bar actions based on the negligent destruction, injury or loss of goods in the possession or control of the customs authorities is best illustrated by the fact that the exception immediately preceding it expressly bars actions ‘arising out of the loss, miscarriage, or negligent transmission’ of mail. 28 U. S. C. A. § 2680(b). If Congress had similarly wished to bar actions based on the negligent loss of goods which governmental agencies other than the postal system undertook to handle, the exception in 28 U. S. C. A. § 2680(b) shows that it would have been equal to the task. The conclusion is inescapable that it did not choose to bestow upon all such agencies general absolution from carelessness in handling property belonging to others.” Id., at 534.¹⁰

We find the conclusion reached by petitioner and the Second Circuit far from “inescapable.” The specificity of § 2680(b), in contrast with the generality of § 2680(c), suggests, if anything, that Congress intended the former to be less encompassing than the latter. The motivation for such an intent is not hard to find. One of the principal purposes of the Federal Tort Claims Act was to waive the Government’s immunity from liability for injuries resulting from auto accidents in which employees of the Postal System were at fault.¹¹ In order to ensure that § 2680(b), which governs torts committed by mailmen, did not have the effect of barring precisely the sort of suit that Congress was most concerned to authorize, the draftsmen of the provision carefully delineated the types of misconduct for which the Government was not assuming financial responsibility — namely, “the loss, miscarriage, or negligent transmission of letters or postal matter” — thereby excluding, by implication, negligent handling of motor vehicles. The absence of any analogous desire to limit the reach of the statutory exception pertaining to the detention of property by customs officials explains the lack of comparable nicety in the phraseology of § 2680(c).

B

The legislative history of § 2680(c), though meager, supports the interpretation of the provision that we have derived from its language and context. Two specific aspects of the evolution of the provision are telling. First, the person who almost certainly drafted the language under consideration clearly thought that it covered injury to detained property caused by the negligence of customs officials. It appears that the portion of § 2680(c) pertaining to the detention of goods was first written by Judge Alexander Holtzoff, one of the major figures in the development of the Tort Claims Act. In his report explicating his proposals, Judge Holtzoff explained:

“[The proposed provision would exempt from the coverage of the Act] [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.” A. Holtzoff, Report on Proposed Federal Tort Claims Bill 16 (1981) (Holtzoff Report) (emphasis added).¹²

Though it cannot be definitively established that Congress relied upon Judge Holtzoff’s report, it is significant that the apparent draftsman of the crucial portion of § 2680(c) believed that it would bar a suit of the sort brought by petitioner.¹³

Second, the congressional Committees that submitted Reports on the various bills that ultimately became the Tort Claims Act suggested that the provision that was to become § 2680(c), like the other exceptions from the waiver of sovereign immunity, covered claims “arising out of” the designated conduct. Thus, for example, the House Judiciary Committee described the proposed exceptions as follows:

“These exemptions cover claims arising out of the loss or miscarriage of postal matter; the assessment or collection of taxes or assessments; the detention of goods by customs officers; admiralty and maritime torts; deliberate torts such as assault and battery; and others.” H. R. Rep. No. 1287, 79th Cong., 1st Sess., 6 (1945).¹⁴

The Committees’ casual use of the words, “arising out of,” with reference to the exemption of claims pertaining to the detention of goods substantially undermines petitioner’s contention that the phrase, “in respect of,” was designed to limit the sorts of suits covered by the provision.¹⁵

Of perhaps greater importance than these two clues as to the meaning of the prepositional phrase contained in § 2680(c) is the fact that our interpretation of the plain language of the provision accords with what we know of Congress’ general purposes in creating exceptions to the Tort Claims Act.¹⁶ The three objectives most often mentioned in the legislative history as rationales for the enumerated exceptions are: ensuring that “certain governmental activities” not be disrupted by the threat of damages suits; avoiding exposure of the United States to liability for excessive or fraudulent claims; and not extending the coverage of the Act to suits for which adequate remedies were already available.¹⁷

The exemption of claims for damage to goods in the custody of customs officials is certainly consistent with the first two of these purposes. One of the most important sanctions available to the Customs Service in ensuring compliance with the customs laws is its power to detain goods owned by suspected violators of those laws.¹⁸ Congress may well have wished not to dampen the enforcement efforts of the Service by exposing the Government to private damages suits by disgruntled owners of detained property.

Congress may also have been concerned that a waiver of immunity from suits alleging damage to detained property would expose the United States to liability for fraudulent claims. The Customs Service does not have the staff or resources it would need to inspect goods at the time it seizes them. Lacking a record of the condition of a piece of property when the Service took custody of it, the Government would be in a poor position to defend a suit in which the owner alleged that the item was returned in damaged condition. ¹⁹ Congress may have reasoned that the frequency with which the Government would be obliged to pay undeserving claimants if it waived immunity from such suits offset the inequity, resulting from retention of immunity, to persons with legitimate grievances.

To a lesser extent, our reading of § 2680(c) is consistent with the third articulated purpose of the exceptions to the Tort Claims Act. At common law, a property owner had (and retains) a right to bring suit against an individual customs official who negligently damaged his goods.²⁰ Title 28 U. S. C. §2006 provides that judgments in such suits shall be paid out of the Federal Treasury if a court certifies that there existed probable cause for the detention of the goods and that the official was acting under the directions of an appropriate supervisor.²¹ Congress in 1946 may have concluded that this mode of obtaining recompense from the United States (or from an individual officer) was “adequate.”²² To be sure, there are significant limitations to the common-law remedy, the most important of which is the apparent requirement that the plaintiff prove negligence on the part of a particular customs official.²³ Such proof will often be difficult to come by. But Congress may well have concluded that exposing the United States to liability for injury to property in the custody of the Customs Service under circumstances in which the owner is not able to demonstrate such specific negligence would open the door to an excessive number of fraudulent suits.²⁴

rH HH HH

Petitioner and some commentators argue that § 2680(c) should not be construed in a fashion that denies an effectual remedy to many persons whose property is damaged through the tortious conduct of customs officials.²⁵ That contention has force, but it is properly addressed to Congress, not to this Court. The language of the statute as it was written leaves us no choice but to affirm the judgment of the Court of Appeals that the Tort Claims Act does not cover suits alleging that customs officials injured property that had been detained by the Customs Service.

It is so ordered.

1 Because Guam is outside the customs territory of the United States, all goods imported therefrom are subject to duties. 19 U. S. C. § 1202.

2 Section 1618 permits the Secretary of the Treasury to remit or mitigate a forfeiture “if he finds that such . . . forfeiture was 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 . . . .”

3 Petitioner also requested damages for two other alleged injuries related to the seizure and detention of his property: the destruction of a cork pagoda by customs officials during the search of petitioner’s house, and the accidental seizure of a sales receipt for a stereo receiver (without which petitioner was unable to obtain warranty repairs). App. 6-7. In his brief, petitioner argues that these two claims are segregable from his primary claim for damages resulting from the injury to the detained goods and merit separate analysis. Because petitioner did not present this argument to the Court of Appeals, we decline to consider it. See United States v. Lovasco, 431 U. S. 783, 788, n. 7 (1977).

4 Civil Action No. 81-2054 (ED Pa. Oct. 15, 1981). The District Court did not identify the grounds for its ruling. We see no reason to doubt the inference drawn by the Court of Appeals that the District Court was persuaded by the Government’s argument that § 2680(c) barred the suit. 679 F. 2d 306, 307, and n. 2. It would have been better practice, however, for the District Court to have noted the reasons for its judgment.

5 In three cases, Courts of Appeals have construed § 2680(c) in ways that would not bar petitioner’s suit. A & D International, Inc. v. United States, 665 F. 2d 669 (CA5 1982); A-Mark, Inc. v. United States Secret Service, 593 F. 2d 849 (CA9 1978); Alliance Assurance Co. v. United States, 252 F. 2d 529 (CA2 1958). In two other cases, Courts of Appeals have read the provision as did the Third Circuit in this case. United States v. One (1) Douglas A-26B Aircraft, 662 F. 2d 1372 (CA11 1981); United States v. One (1) 1972 Wood, 19 Foot Custom Boat, FL 8443 AY, 501 F. 2d 1327 (CA5 1974). In Hatzlachh Supply Co. v. United States, 444 U. S. 460, 462, n. 3 (1980), we acknowledged the divergence in the views of the Circuits but expressly declined to decide the issue.

6 The full text of § 2680(c) provides:

“The provisions of [28 U. S. C. §§ 2671-2679] 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 law-enforcement officer.”

We have no occasion in this case to decide what kinds of “law-enforcement officer[s],” other than customs officials, are covered by the exception.

7 In view of the fact that the Tort Claims Act permits recovery only of “money damages ... for injury or loss of property, or personal injury or death,” 28 U. S. C. § 1346(b), it is unclear whether, even in the absence of § 2680(c), any of the foregoing sorts of damage would be recoverable under the Act. Cf., e. g., Idaho ex rel. Trombley v. United States Dept. of Army, Corps of Engineers, 666 F. 2d 444 (CA9) (adopting a restrictive interpretation of the language of § 1346(b)), cert. denied, 459 U. S. 823 (1982). If the sorts of damages that, under petitioner’s theory, are covered by § 2680(c) would not be recoverable in any event because of the limitation built into § 1346(b), § 2680(c) would be mere surplusage. The unattractiveness of such a construction of the statute, see Colautti v. Franklin, 439 U. S. 379, 392 (1979), would cast considerable doubt on petitioner’s position. However, because the question of the scope of § 1346(b) has not been briefed or argued in this case, we decline to rely on any inferences that might be drawn therefrom in our decision today.

8 Because petitioner conceded below that the injuries to his property occurred after it had been lawfully detained by customs officers, we need not consider the meaning of the term “detention” as used in the statute.

9 The Court of Appeals, while properly emphasizing the plain language of § 2680(c) as the basis for its ruling, suggested that the structure of the Tort Claims Act should affect how that language is read. Relying on the principles that “sovereign immunity is the rule, and that legislative departures from the rule must be strictly construed,” the Court of Appeals suggested that § 2680(c), as an exception from a statute waiving sovereign immunity, should be broadly construed. 679 F. 2d, at 308-309. We find such an approach unhelpful. Though the Court of Appeals is certainly correct that the exceptions to the Tort Claims Act should not be read in a way that would “‘nullif[y them] through judicial interpretation,’” id., at 309, unduly generous interpretations of the exceptions run the risk of defeating the central purpose of the statute. See United States v. Yellow Cab Co., 340 U. S. 543, 548, n. 5 (1951); cf. Block v. Neal, 460 U. S. 289, 298 (1983) (“‘The exemption of the sovereign from suit involves hardship enough where consent has been withheld. We are not to add to its rigor by refinement of construction where consent has been announced’ ”) (quoting Anderson v. Hayes Construction Co., 243 N. Y. 140, 147, 153 N. E. 28, 29-30 (1926) (Cardozo, J.)). We think that the proper objective of a court attempting to construe one of the subsections of 28 U. S. C. § 2680 is to identify “those circumstances which are within the words and reason of the exception” — no less and no more. See Dalehite v. United States, 346 U. S. 15, 31 (1953).

10 For reiterations of this argument, see A & D International, Inc. v. United States, 665 F. 2d, at 672; A-Mark, Inc. v. United States Secret Service, 593 F. 2d, at 850.

11 See General Tort Bill: Hearing before a Subcommittee of the House Committee on Claims, 72d Cong., 1st Sess., 17 (1932) (testimony of Assistant Attorney General Rugg).

12 Judge Holtzoff went on to explain that “[t]his provision is suggested in the proposed draft of the bill submitted by the Crown Proceedings Committee in England in 1927. ...” Holtzoff Report, at 16. The relevant portion of the bill to which Holtzoff referred was even more explicit:

“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 officer of customs and excise acting as such . . . .” Report of Crown Proceedings Committee §ll(5)(c), pp. 17-18 (Apr. 1927). (It appears that this bill was never enacted into law in England.)

13 Mr. Holtzoff wrote his report while serving as Special Assistant to the Attorney General. He had been “assigned by Attorney General Mitchell to the special task of co-ordinating the views of the Government departments” regarding the proper scope of a tort claims statute. See Borchard, The Federal Tort Claims Bill, 1 U. Chi. L. Rev. 1, n. 2 (1983). Holtzoff submitted his report, in which his draft bill was contained, to Assistant Attorney General Rugg, who in turn transmitted it to the General Accounting Office of the Comptroller General. Insofar as Holtzoff’s report embodied the views of the Executive Department at that stage of the debates over the tort claims bill, it is likely that, at some point, the report was brought to the attention of the Congressmen considering the bill. We agree with the dissent that, because the report was never introduced into the public record, the ideas expressed therein should not be given great weight in determining the intent of the Legislature. See post, at 863-864. But, in the absence of any direct evidence regarding how Members of Congress understood the provision that became § 2680(c), it seems to us senseless to ignore entirely the views of its draftsman.

14 See also S. Rep. No. 1400, 79th Cong., 2d Sess., 33 (1946); S. Rep. No. 1196, 77th Cong., 2d Sess., 7 (1942); H. R. Rep. No. 2245, 77th Cong., 2d Sess., 10 (1942).

15 Cf. 679 F. 2d, at 809 (Weis, J., dissenting) (discussed, supra, at 854).

16 The dissent objects to our effort to test our interpretation of § 2680(c) for conformity with the legislative purposes that underlie § 2680 as a whole, principally on the ground that we take inadequate account of the “central purpose” of the Tort Claims Act. Post, at 866-869. The dissent mistakes the nature of our analysis. Our view is that the language of § 2680(c) is inclusive enough to exempt the United States from liability for negligence in the handling or storage of goods detained by the Customs Service, see supra, at 854. Our purpose in looking to the legislative history is merely to ensure that our construction is not undercut by any indication that Congress meant the exception to be read more narrowly. Because of the sparseness of the evidence regarding the purpose of § 2680(c) itself, see supra, at 855-858, we consider it advisable to consider Congress’ more general objectives in excluding certain kinds of claims from the broad waiver of sovereign immunity effected by the Tort Claims Act. Because we find that our reading of § 2680(c) is consistent with those objectives, we see no need to throw our analytical net any wider.

17 For a variety of expressions of these three purposes, see S. Rep. No. 1400, 79th Cong., 2d Sess., 33 (1946); Tort Claims: Hearings on H. R. 5373 and H. R. 6463 before the House Judiciary Committee, 77th Cong., 2d Sess., 33 (1942) (testimony of Assistant Attorney General Shea); Tort Claims Against the United States: Hearings on H. R. 7236 before Subcommittee No. 1 of the House Judiciary Committee, 76th Cong., 3d Sess., 22 (1940) (testimony of Alexander Holtzoff); Hearings, supra n. 11, at 17 (testimony of Assistant Attorney General Rugg); Holtzoff Report, at 15. To our knowledge, the only arguably relevant specific statement as to the purpose of § 2680(c) appears in the testimony of Alexander Holtzoff before a Subcommittee of the Senate Judiciary Committee. Holtzoff emphasized the adequacy of existing remedies as a justification for the portion of the provision pertaining to the recovery of improperly collected taxes; he did not proffer an explanation for the portion of the provision pertaining to the detention of goods. Tort Claims Against the United States: Hearings on S. 2690 before a Subcommittee of the Senate Committee on the Judiciary, 76th Cong., 3d Sess., 38 (1940).

18 See, e. g., 19 U. S. C. § 1594 (authorizing seizure of “a vessel or vehicle” to force payment of assessed penalties); 19 U. S. C. § 1595a(a) (authorizing seizure of property used to facilitate the illegal importation of other goods).

19 The Government’s vulnerability to fraudulent claims would be especially great in a case in which the Customs Service took custody of the goods from a shipper rather than from the owner. The shipper would contend that it exercised due care in the handling of the goods. The owner would demonstrate that he received the goods in damaged condition. In the absence of an extensive system for accounting for the movements and treatment of property in its custody, the Customs Service would be hard pressed to establish that its employees were not at fault. We do not suggest that such a dilemma would automatically give rise to liability on the part of the United States; that of course would depend upon the substance of the pertinent state tort law. See 28 U. S. C. §§ 1346(b), 2674. But uneasiness at the prospect of such scenarios may have influenced Congress when it carved out this exception to the Tort Claims Act.

20 See, e. g., States Marine Lines, Inc. v. Shultz, 498 F. 2d 1146, 1149 (CA4 1974); Dioguardi v. Durning, 139 F. 2d 774, 775 (CA2 1944); J. Story, Commentaries on the Law of Bailments §§ 613, 618, pp. 387, 390 (1832).

21 See States Marine Lines, Inc. v. Shultz, supra, at 1149-1150.

22 We note that there 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 implied-in-fact contract of bailment between himself and the Service, he could bring suit under the Tucker Act, 28 U. S. C. § 1491 (1976 ed., Supp. V). See Hatzlachh Supply Co. v. United States, 444 U. S. 460 (1980).

23 At oral argument, the Government contended that a property owner could recover against the United States under this theory by bringing suit against the relevant District Director of the Customs Service and would not be obliged to prove negligence on the part of any specific customs official. Tr. of Oral Arg. 28-29. Though we do not decide the issue, such an interpretation of the common-law doctrine appears questionable to us. Except in cases in which the property owner could demonstrate that the Director expressly authorized tortious conduct by a subordinate, it seems likely that the owner would be obliged to identify and bring suit against the individual whose malfeasance caused the injury to his goods.

24 The dissent finds “internally inconsistent” the foregoing “hypothetical rationales” for § 2680(c). Post, at 865. Thus, the dissent suggests that the fact that an owner of goods damaged by the Customs Service might recover from the United States under the Tucker Act, see n. 22, supra, makes it unlikely that Congress would have been chary of creating a remedy under the Tort Claims Act because of the risk of exposing the Government to an excessive number of fraudulent suits. Post, at 865-866. But the requirement that an owner, to recover under the Tucker Act, prove that the Service entered into an implied-in-fact contract of bailment would operate to screen out many fraudulent claims; Congress rationally could have concluded that, in view of the absence of any comparable filter in the Tort Claims Act, it was inadvisable to extend the coverage of the latter to owners of detained goods. Similarly, the dissent finds it implausible that Congress might have feared that the creation of a remedy against the United States under the Tort Claims Act would inhibit vigorous enforcement of the customs laws, see supra, at 859, when there already existed a common-law remedy against customs officials for negligence in the handling of goods, see supra, at 860-861. Post, at 866. But, as explained above, the apparent requirement that the owner, to recover under the common law, prove negligence on the part of a specific customs official, see supra, at 860-861, and n. 23, combined with the obligation of the United States to indemnify the official if he acted under proper authority, see supra, at 860, would have minimized the effect of the extant remedies on the willingness of the Service to adopt vigorous enforcement policies and the willingness of its officials to implement those policies. Congress might well have feared that the creation of a remedy under the Tort Claims Act would have increased the liability of the United States to such a degree as to curtail the exercise by the Service of its authority to detain goods.

25 Comment, Governmental Liability for Customs Officials’ Negligence: Kosak v. United States, 67 Minn. L. Rev. 1040 (1983); Note, Using the Federal Tort Claims Act to Remedy Property Damage Following Customs Service Seizures, 17 U. Mich. J. of L. Ref. 83 (1983).