Kosak v. United States

RESPONDENT: United States
LOCATION: U.S. District Court for the Western District of Oklahoma

DOCKET NO.: 82-618
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 465 US 848 (1984)
ARGUED: Nov 07, 1983
DECIDED: Mar 21, 1984

Jeffrey L. Naftulin - on behalf of the Petitioner
Ms. Kathryn A. Oberly - on behalf of the Respondent

Facts of the case


Media for Kosak v. United States

Audio Transcription for Oral Argument - November 07, 1983 in Kosak v. United States

Warren E. Burger:

We will hear arguments first this morning in Kosak against the United States.

Mr. Naftulin, you may proceed whenever you are ready.

Jeffrey L. Naftulin:

Mr. Chief Justice, and may it please the Court:

When we got back Mr. Kosak's oriental and art collection in its damaged condition, we had a decision we had to make.

Could we force the government or get some kind of trial to make the government pay for the damage that they did to Mr. Kosak's collection.

We came up with one viable alternative in which we could file a suit and that was the claim under the Federal Torts Claims Act.

This case comes down to a case of statutory construction.

Eventually we reached the point of just determining the exact language of an exemption in the statute, but before I get to that exact language, which should be the starting point, there are a couple of principles which I think this Court should keep in mind and that is the Federal Torts Claims Act itself which gave the citizens the right to sue the government for negligence in the same way as if they were suing a private individual.

There is one main reason... There is one main area in which we disagreed with the Third Circuit and that is whether the waiver of sovereign immunity was a broad concept or not.

We took the position that sovereign immunity... That the Federal Torts Claims Act waived sovereign immunity broadly.

The Third Circuit said, no, that this was just a narrow restriction and our position was that they were misreading the teachings of this Court, although they accused us of doing the same.

When Congress passed the Federal Torts Claims Act, they did it for several reasons, one being that the prevalent feeling at that time was that it should be fundamental to a democracy that an individual who is injured should not be deprived of redress merely because that injury was caused by the government.

William H. Rehnquist:

What has that got to do with democracy?

I thought democracy was the idea that the majority rules and that if the majority decides that a person can't sue the government, that certainly is perfectly democratic, isn't it?

Jeffrey L. Naftulin:

Well, there are certain principles that come into a democracy of providing for the common good.

Warren E. Burger:

Well, how does the the principle... Up to the time of the Federal Tort Claims Act that they could not sue.

Jeffrey L. Naftulin:

That is correct, but you could bring a private bill before the Congress, which was the second reason why the Act came into being, because--

William J. Brennan, Jr.:

Yes, but, Mr. Naftulin, isn't your difficulty here with the language of the Tort Claims Act as far as any claim... this is the language of it... arising in respect of detention of any goods or merchandise by any officer of Customs.

Isn't that your problem?

Jeffrey L. Naftulin:

--Exactly, Justice Brennan.

William J. Brennan, Jr.:

On the face of it that seems... What happened here was there was a detention of your client's goods or merchandise by an officer of Customs, wasn't there?

Jeffrey L. Naftulin:

That is correct.

William J. Brennan, Jr.:

Then why doesn't that preclude recovery under that Act?

Jeffrey L. Naftulin:

Okay, for the following reasons: First of all, the exemption should be narrowly construed.

Now, what we did was we approached it several different ways.

The first way we used the exact words.

We went to the exact wording,

"any claim arising in respect of the detention. "

Now, we went to the dictionary definition of the words "in respect of".

We looked at several dictionary definitions, but what we say cited to the Court were the words that Judge Weis used in his dissent.