Kosak v. United States

PETITIONER:Kosak
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

ADVOCATES:
Jeffrey L. Naftulin – on behalf of the Petitioner
Ms. Kathryn A. Oberly – on behalf of the Respondent

Facts of the case

Question

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.

Jeffrey L. Naftulin:

They mean as to, as regards, insofar as concerns, with respect to.

I think if you just look at the words themselves, they are going to the fact of the detention itself and not something that arises during the detention.

Our first argument is the words itself.

The second one, okay, is that you have to look at all of the exemptions under 2680 and see the language that was used there.

The Customs exemption, 2680(c), is the only one that speaks in terms of in respect of, arising in respect of.

The others are all any claim arising out of that they are speaking of in terms of the Postal Service.

Any claim for damages, period, when they are talking about the operations of the Treasury.

Any claim arising out of when they are talking the military or combatant activities, any claim arising in a foreign country, any claim arising from the Tennessee Valley Authority, any claim from with the Panama Canal Company, any claim arising from the activities of it.

There is a distinction.

There is a distinction in the language of the statute.

The exception for the Customs Service was the only one that used the words “in respect of”.

Now, Congress spent 30 years writing this Act and what I submit to this Court is that there is a reason for this distinction.

As subtle as it might be, there is a reason for this distinction.

So, aside from the plain meaning of the words itself, you then have, looking at the entire Act itself… In fact, in the Second Circuit decision, in the Alliance case… The Alliance case analyzed the exception for the Postal Service which was any claiming arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.

It actually used the word “negligent”, negligent transmission of letters.

And, the Alliance court’s argument was, well, if the Customs Service was going to be excused for their negligence, that that wording would have gone into the statute as well.

There is a couple of other things, too, that I want to point out to the Court.

For instance, this Court made a decision in the case of United States versus Munez in which the Court ruled that the Federal Tort Claims Act did not bar a case against the United States for the negligence of a federal employee, namely, a prisoner worker, someone working in a prison.

Now, one of these exceptions here says it bars under 2680(h) any claim arising out of a false imprisonment.

Now, go back to the Munez facts in which Mr. Munez was in prison and he was eventually beaten up in prison, he claimed, because of negligence of the guards.

Suppose Mr. Munez is put in the prison… that he is falsely in prison, that the government imprisoned the wrong Mr. Munez, all right?

Should that exemption, any claim arising out of false imprisonment now bar suit under these circumstances?

I think there is certain distinctions that are made in these exemptions and that these exemptions must be narrowly construed.

In fact, in the case of Block versus Neill, which was a decision by Justice Marshall, the government tried to assert the exemption, any claim arising out of the misrepresentation.

And, this Court again saw these distinctions and allowed the suit to be brought on another theory, on the good samaritan theory, because the government had agreed to undertake certain action in that case.

William H. Rehnquist:

But, there the Court held that what the Plaintiff was suing on was not a misrepresentation, so it simply wasn’t covered by that exception.

Jeffrey L. Naftulin:

That is right, but it is still arguable that it is any claim arising out of the misrepresentation.

And, what I am saying… My point is that these exemptions should not be broadly construed, but they should be very narrowly construed.

In fact–

William H. Rehnquist:

Why should they be very narrowly construed?

Jeffrey L. Naftulin:

–Because of the reasons for the exemptions themselves.

The exemptions are meant to prevent a harm to the government.

If there is no harm to the government, then the exemption shouldn’t bar the suit.

William H. Rehnquist:

Well, that really doesn’t make much sense to me.

I mean the exemption speaks for itself in its language and Congress has described in language what it thought might cause harm to the government in terms of allowing exemption.

And, if the thing is within the language of the exemption, the fact that arguable there is no harm to the government in this case, I don’t think would take it out of the exemption, do you?

Jeffrey L. Naftulin:

Well, I am not trying to tell you to take it out of the exemption.

It is a question of how you interpret the exemption.

If there is an exemption for this, then you just can’t bring the suit and that is actually what you have to determine.

But, if you went back to that Block versus Neill case, you could interpret it broadly of any act arising out of a misrepresentation or you can look at it much finer by saying, well, there is a second theory here on which to go to.

Therefore, that general language doesn’t block the suit.

There had to be a reason why Congress used the words “in respect to” here.

Sandra Day O’Connor:

Mr. Naftulin, generally speaking, if you view the Federal Tort Claims Act as a whole, hasn’t this Court interpreted the waiver of sovereign immunity narrowly so that it is a little inconsistent to argue that you should view the exemption narrowly.

If you fit the exemption into the Act as a whole, hasn’t the Court generally given the waiver a narrow interpretation?

Jeffrey L. Naftulin:

No, I don’t think that this Court has given the waiver a narrow interpretation.

If you go into cases like Indian Telling versus the United States and Rainier, Inc. versus the United States, and even if you took the Dalehite case which is the leading case on sovereign immunity, it spoke in terms of the general grant of sovereign immunity.

The Indian Telling case spoke in terms of… used the word “broad” in talking about sovereign immunity.

The Rainier case spoke in terms of the new and novel theories of tort were going to come into being.

There is probably only–

Thurgood Marshall:

Well, maybe it is time for us to narrow it then.

Jeffrey L. Naftulin:

–I am sorry, I didn’t hear that, sir.

Thurgood Marshall:

Maybe it is time for us to narrow it so people like you won’t misunderstand it.

Jeffrey L. Naftulin:

Well–

Thurgood Marshall:

I never understood that when you waive sovereign immunity you do it on the broadest terms.

I have never heard that.

They don’t go together.

Sovereign immunity and waiver and moral rights and equity, they don’t all together.

They are different ball parks, aren’t they?

Jeffrey L. Naftulin:

–I don’t think that–

Thurgood Marshall:

Sovereign immunity just says that you can’t sue on anything.

Thurgood Marshall:

Is there anything broader than that?

Jeffrey L. Naftulin:

–That is correct.

Thurgood Marshall:

Well, now, when you waive that… They could have passed a law and said you can sue on anything, but Congress didn’t.

Do you know why?

They didn’t intend to waive everything.

What you want us to do is to rewrite the statute.

You can rewrite it, but we can’t.

Am I right?

Jeffrey L. Naftulin:

I don’t agree with you, Justice Marshall.

Thurgood Marshall:

You think we can rewrite statutes?

Jeffrey L. Naftulin:

I agree with you on that principle.

I am not asking you to rewrite the statute.

I am not asking you to do that.

But, when Congress says… When Congress passes a–

Thurgood Marshall:

You want us to do something about two words, in respect… three words.

You want us to rewrite those three words?

Jeffrey L. Naftulin:

–No, I don’t want you to rewrite them.

I just want you to apply them and interpret them the same way that Congress meant to do it.

That is all that I am asking this Court to do.

When Congress passed the Federal Torts Claims Act, it waived sovereign immunity except in certain specific situations, the exemptions under 2680.

There were also certain other safeguards, which I will call administrative safeguards, which were also put in such as the statute of limitations or you get a non-jury trial or you can’t get interest or penalties, but when they passed this Act, they said that you can sue the government in the same situation as if you were suing an individual if the individual was negligent.

They did away with sovereign immunity when they did that.

And, then they came up with these specifics–

Thurgood Marshall:

Where do we get all these cases on sovereign immunity if they waived it?

How did we get this case if they waived it?

Jeffrey L. Naftulin:

–Because sometimes these acts have to be interpreted by this Court.

William J. Brennan, Jr.:

Do I correctly understand, Mr. Naftulin, in essence what you are arguing is that the exception against any liability applies only to the fact of the tension of the group and–

Jeffrey L. Naftulin:

That is correct.

William J. Brennan, Jr.:

–And that harm is done while they are detained the exception doesn’t apply.

Jeffrey L. Naftulin:

That is correct.

William J. Brennan, Jr.:

And, you arrive at that primarily by emphasis on in respect of as distinguished from arising from?

Jeffrey L. Naftulin:

That is one of the ways I do it.

That is one of my arguments.

Another one of my arguments is the plain dictionary definition of the words.

I think that probably even more importantly than that we come to what I call the area of the legislative intent.

The exemptions were brought in because, as a policy matter, the government should be free from certain claims or that there is certain other machinery that is available in order to bring the claim.

When Judge Alexander Holtzoff was testifying before the Senate Judiciary Subcomittee, he made certain remarks which this Court even cited that footnote in the Hatzlachh decision where he brought in these two principles that as a policy matter the government should be free from claims or that there was other machinery and he gave certain examples.

He spoke about the Postal Service and he spoke about intentional torts and at that time he said as a policy matter the government should be free of all… free from suit, not situation.

Then he spoke about the Customs Service and when he spoke about the Customs Service he said, because this is an area in which other remedies are available.

Now, the only other remedies that were available at this time were remedies to challenge unlawful detentions or to challenge the amount of the duty.

John Paul Stevens:

On that point, may I ask you this question.

Toward the end of the government’s brief, they discussion a common law remedy against the Customs officer for negligence and then a provision, as I understand it, that the government would, in effect, pay the judgment if there was a recovery against the officer.

Would you comment on that argument?

You said when you started out that you thought your only remedy was under the Federal Tort Claims Act, but what about the existence of this common law remedy?

Jeffrey L. Naftulin:

I agree that there is that common-law remedy.

The problem that we had in our case was that when the Customs agents were executing the search warrant, one particular agent dropped a cork carving of a pagoda in front of him.

That was the only act of negligence that we actually saw.

Other than that, okay… Other than that, Your Honor, we couldn’t prove any specific act of negligence against any specific Customs agent and that is why we didn’t sue that.

If we could have done that, then we would have sued the individual Customs agents themselves.

John Paul Stevens:

But, you could have sue one of them for that one item then?

Jeffrey L. Naftulin:

Correct.

John Paul Stevens:

And, you couldn’t possibly in discovery in that case have asked questions about the handling of the other items?

Jeffrey L. Naftulin:

Well, we thought about that, but I am sure… We felt certain at that time that the answers that we would have gotten were that we know nothing about this.

We know nothing about how this happened or why this happened.

We considered that theory.

We considered filing an action under the Tucker Act for a breach an implied contract of filament.

We considered an action under the Federal Torts Claims Act.

And, this one really seemed to us to be the only viable alternative.

We figured that… Well, we really balanced whether the government… The reason is here really for the exemption.

We recognized the need for the Customs Service to be able to seize property.

Jeffrey L. Naftulin:

We really didn’t dispute that.

But, the reason why that is a necessity is so that it won’t hinder them in what they are doing.

They should have free reign in being able to seize and detain.

They shouldn’t have to worry about whether they are going to be sued for doing it.

But, after they do that, there is no reason why they shouldn’t have to handle the property with care.

Customs seizes items which are very valuable, which are worth a lot of money.

In fact, in this particular case, there was an oriental clock, the equivalent of a grandfather clock, which they just decided it was too impossible for them to move that clock, that it definitely would have been damaged if they did that.

You really have to balance what we are trying to protect here in determining whether the exemption applies or not.

And, our point is that the basis of the exemptions were in order to protect a harm against the government and when you are… Well, our point is that it wasn’t the intention of Congress to give the Customs Service a license to be negligent.

Sandra Day O’Connor:

Mr. Naftulin, the government also noted, I think, in its brief that Judge Holtzoff, who was apparently the drafter of this section, had analogized the draft to a provision in the British Tort Claims Act and patterned it after that under which very clearly damage caused by negligence of the Customs officers would not be covered.

Is that relevant to our inquiry then by way of the legislative history?

Jeffrey L. Naftulin:

I think it is to some extent.

And, I also felt that that section helped us to a great degree, Justice O’Connor, because the British Act, the Crown proceeding that the government was referring to there was speaking primarily of damages for deterioration to the property or damages for delay.

I will concede that the general language of the Crown proceeding said more than that, but the words about the detention or the detention were not in the part of the original statute.

They were added on and I think that it supports our position that they were added on to clearly specify that, well, you can’t sue them for the delay or for the deterioration of the goods.

It went to the fact of the detention, not so much during the detention.

Byron R. White:

Is there… Why was the seizure made in this case initially?

Jeffrey L. Naftulin:

The Customs agents accused Mr. and Mrs. Kosak of smuggling their collection into the country.

Byron R. White:

I suppose that you might say that in some cases an initial seizure would be negligently made in the sense that there really wasn’t any basis for it.

What if that were the case?

Jeffrey L. Naftulin:

It doesn’t go to the legality of the seizure, okay?

You have thrown the word “negligently” in there.

Byron R. White:

Well, if the agents had acted carefully, they wouldn’t have seized the goods.

They acted carelessly in seizing the goods.

Would you say that the… Assume that that were the case, that they acted… It was negligent.

Would you think that the government would be liable for deterioration?

Jeffrey L. Naftulin:

No, I wouldn’t in that situation.

The Act didn’t mean to go to that, Justice White.

Byron R. White:

So, in any event, in some instances at least you would concede that the government would be immune from claims for negligence?

Jeffrey L. Naftulin:

Well, I don’t… You have thrown the word “negligence” in there.

Jeffrey L. Naftulin:

I don’t think–

Byron R. White:

You are quite right.

Jeffrey L. Naftulin:

–I don’t think that that is really a case of negligence.

You might be able to use negligence, okay, for a reason of illegality of a seizure, but the key words in that situation aren’t the negligence.

The keys words are the legality of the seizure.

And, it is for these reasons that we think the rights of the citizen–

John Paul Stevens:

The case Justice White poses, as I understand it, the test is probably cause, isn’t it?

And, if there was no probable cause, the agent is absolutely liable, isn’t he, as a matter of common law?

Isn’t that what the common-law remedy was?

Jeffrey L. Naftulin:

–I agree with that, Justice Stevens.

I will save the rest of my time for rebuttal.

Warren E. Burger:

Ms. Oberly?

Ms. Kathryn A. Oberly:

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

This is a straightforward case of statutory construction that is governed by the Plain Meaning Rule.

There is nothing the least bit ambiguous about the statutory language even if there were the legislative history and the policy reasons that lead Congress to enact the various exemptions to the Tort Claims Act.

All support the Court of Appeals construction–

Warren E. Burger:

Can you raise your voice a little, Ms. Oberly?

Ms. Kathryn A. Oberly:

–Yes, sir.

Turning first to the statutory language, the exemption in Section 2680(c) is about as broad as anything Congress could have written.

Congress retained sovereign immunity for any claim arising in respect to the detention of goods held by Customs officers.

Petitioner’s property in this case was seized and detained because the Customs Service suspected that he brought it into the country in violation of the Customs laws and clearly–

William H. Rehnquist:

Isn’t it possible to read that language though, Ms. Oberly, as dealing in kind of a common-law notion of detinue, intentional detention by the Customs agent and not reaching just negligent mishap while it is in the process of being detained?

Ms. Kathryn A. Oberly:

–It is our position, Justice Rehnquist, that there is just nothing in the wording of the statute or in its grammatical construction that supports a distinction between the fact of detention alone, such a delay damages, and damages that happen to property while it is in the possession or while it is being detained by the Customs Service.

William H. Rehnquist:

The language would certainly allow that distinction, don’t you think?

I mean it isn’t really terribly precise language.

Ms. Kathryn A. Oberly:

If the Court were to construe the language as allowing that distinction, it would simply be reading something into the language that is not there.

There is nothing in the language that purports to distinguish among different types of harm that might occur in relation to a detention.

In both situations–

William H. Rehnquist:

But, you are reading it as if instead of it saying in respect to it said in the course of, and, those are two different phrases I think.

Ms. Kathryn A. Oberly:

–Justice Rehnquist, one Petitioner’s main arguments was that there is some special significance to the phrase “in respect of”, and that somehow limits detention to damages caused by the fact of detention alone.

Ms. Kathryn A. Oberly:

And, the dissenting Judge in the Court of Appeals also relied on that same distinction.

But, in fact, throughout the legislative history of the Tort Claims Act, Congress described this exemption as barring claims arising out of the detention of property.

Congress interchangeably used in the legislative history in the statute the phrase “in respect of” and the description “arising out of”.

So, we think it is quite clear that by that interchangeable use that Congress could not have intended, or it would have said so, to be attaching some special limited significance to the phrase “in respect of”.

Whenever Congress described the exemption, it used the broad language that the dissenting opinion in the Court of Appeals would have found sufficient to bar Petitioner’s claim.

Just to repeat, there is simply nothing in the legislative history to suggest that Congress ever thought about making the sort of precise distinction you are talking about.

John Paul Stevens:

It is true though that there is a difference in the language.

Ms. Kathryn A. Oberly:

There is, but it is negated in this case by the fact that Congress in every committee report described this exemption, which is phrased “in respect of” as barring claims arising out of the detention of property.

William J. Brennan, Jr.:

You mean in effect that Congress, in saying “in respect of”, in fact, is simply using another way of saying from.

Ms. Kathryn A. Oberly:

Or arising out of or–

William J. Brennan, Jr.:

Arising out of or from.

Ms. Kathryn A. Oberly:

–Or from, that is correct.

Congress… In the legislative history–

William J. Brennan, Jr.:

Is there any other subdivision or section where “in respect of” appears?

Ms. Kathryn A. Oberly:

–No, there isn’t, Your Honor, but it is clear, we think, from the legislative history that Congress had no special intention in mind when it used the phrase “in respect of”.

There is no explanation in the legislative history for one cause having “in respect of” and other having “arising out of”, but the most logical one is that these exemptions were not all enacted at the same time or by the same people.

William J. Brennan, Jr.:

And, some people used “from” rather than either “arising out of” or–

Ms. Kathryn A. Oberly:

I don’t believe that any of them use “from”.

“Arising out of” is the most common.

Byron R. White:

–Well, if you have to go to the legislative history, it is hardly a plain-language case, is it?

Ms. Kathryn A. Oberly:

I don’t think… I think “in respect of” is virtually identical to “arising out of” and I think it is quite a hypertechnical dictionary construction for the Court to conclude that “in respect of”, without regard to the legislative history, really has this special, limited meaning.

But, if the Court disagrees, the minute you turn to the legislative history, it is apparent that Congress didn’t view there to be any distinction between those two phrases because–

Byron R. White:

What would be the case if there were an intentional damage to the goods.

Ms. Kathryn A. Oberly:

–It would depend on the facts, but it is possible that it would be beyond… It would be possible that it would not be covered by the Tort Claims Act at all.

The agent might be acting beyond the scope of his employment.

It might be one of the intentional torts that is exempted by another section of the Tort Claims Act.

Warren E. Burger:

Or he might be subject… The agent might be subject to suit.

Ms. Kathryn A. Oberly:

He obviously would be subject to civil suit in any event just for negligence or for intentional damage.

Byron R. White:

I know, but I want to know what would you say about it in light of the “respect of” language?

Let’s assume that his only defense was that he has been exempted from liability by the statute.

Ms. Kathryn A. Oberly:

Well, the United States only generally waives sovereign immunity for the acts of its employees acting within the scope of their employment.

So, if you have as a hypothetical a customs agent who just comes to work one day and decides to smash every fifth object that passes by his inspection line, he might well not be–

Byron R. White:

That may be so.

That may be so, but would it be in respect of the detention?

I want to know how you would react to an intentional tort if the only defense was, well, the statute… I just listened to the Solicitor General’s representative say that this language is plain and it exempts all kinds of… It excludes any kind of–

Ms. Kathryn A. Oberly:

–The plain meaning of the statute would, in my view, be broad enough to cover the example you are giving, but that is not necessarily a reasonable construction and there would be other ways of dealing with an agent’s misconduct in those circumstances.

Byron R. White:

–You wouldn’t have to get into all those other difficult questions if this is a plain meaning of this statute at issue here is that it would also foreclose any actions for intentional torts.

That would be the end of the case.

Ms. Kathryn A. Oberly:

Congress, Your Honor, specified the situations in which it was willing to assume the common law liability of the Customs collector.

It specified those limitations in 28 U.S.C. 2006, which was enacted over 100 years ago in 1863.

And, one of the conditions for shifting the common-law liability of a collector to the United States is that the collector had made his seizure based on probable cause or on the directions of a superior officer.

In the example you are giving, his seizure or his detention almost certainly would not satisfy a probable cause requirement.

Byron R. White:

I just assume that if it was a proper seizure the only thing is the Custom officers… one of them deliberately damaged the goods.

Ms. Kathryn A. Oberly:

I think the most appropriate remedy in that case would be to sue him personally.

Byron R. White:

But, you would purport to… I take it you think the statute we are talking about here would bar an action for intentional torts as well as negligent.

Ms. Kathryn A. Oberly:

As well as Subsection (h) of the Tort Claims Act exemptions which also bars intentional torts.

John Paul Stevens:

May I ask a question on the legislative history.

You say that, as I understood you, that repeatedly in the legislative history Congress referred to arising out of rather than in respect of.

What is the clearest example in the legislative history that supports that statement?

Ms. Kathryn A. Oberly:

I can give you cites to a Senate report and a House report, senate Report No. 1400–

John Paul Stevens:

Is it quoted in your brief?

Ms. Kathryn A. Oberly:

–No, it is not, Your Honor.

John Paul Stevens:

So this is a new argument.

Ms. Kathryn A. Oberly:

So you should write it down.

John Paul Stevens:

I was wondering because I hadn’t seen the argument before.

Ms. Kathryn A. Oberly:

Senate Report No. 1400, 79th Congress, 2d Session, at page 33 of the 1946 Report and House Report No. 1287, 79th Congress, 1st Session, at page 6, a 1945 Report.

There are other examples which I could provide by letter.

It was a constant repetition throughout the committee reports, but those–

William J. Brennan, Jr.:

Can you quote one?

Ms. Kathryn A. Oberly:

–I don’t have the reports with me.

John Paul Stevens:

This is really your principal argument though, because the language is different.

If one just looks at the “respect of” language and the “arising out of” language one would note immediately there is a difference and the “arising out of” is broader.

Would you also explain something else to me?

Do you agree that there is a common-law remedy against the individual officer which the government would actually have to pay the liability?

Ms. Kathryn A. Oberly:

Yes, Your Honor.

For more than 200 years there has been recognized a common-law tort action–

John Paul Stevens:

What is the force to your argument in the brief that one of the purposes of the exemption was to avoid all this kind of litigation?

Ms. Kathryn A. Oberly:

–It wasn’t just to avoid litigation.

It was to avoid creating additional or inconsistent remedies where Congress was satisfied that the existing remedies were adequate.

John Paul Stevens:

Well, do you think the existing remedy is adequate if there is some difficulty in identifying which officer caused the damage?

Ms. Kathryn A. Oberly:

I think there would be no problem in Petitioner suing the Customs Director for the Port of Philadelphia, who was clearly the superior–

John Paul Stevens:

So, what your case really boils down to is that they filed the wrong kind of complaint.

They should have sued the Customers officer in common law and asked for relief against the United States if they get the judgment.

Ms. Kathryn A. Oberly:

–That is correct and it makes a difference.

John Paul Stevens:

So what is all the fight about?

Ms. Kathryn A. Oberly:

It is not an academic distinction between our position and Petitioner’s.

The reason is that in 28 U.S.C. 2006 Congress attached conditions to the circumstances under which is was willing to accept the liability of the Customs collector.

John Paul Stevens:

Namely that there was probable cause for the seizure.

Ms. Kathryn A. Oberly:

That there was probable cause or he was acting on the orders of a superior officer.

John Paul Stevens:

Which is true in 99 percent of the cases, isn’t it?

So, what you are trying to do is preserve the government’s immunity in that one percent.

Ms. Kathryn A. Oberly:

I don’t know whether it is 99 percent.

I assume it is true in most cases.

John Paul Stevens:

Well, certainly they don’t seize property without probable cause very often.

Ms. Kathryn A. Oberly:

Most Customs searches are without warrants.

This case is somewhat unusual in that there was a search warrant.

I assume that they are usually with probable cause even though–

John Paul Stevens:

But, am I correct in believing that the practical significance of the government’s position relates only to those cases where the seizure itself was unjustified?

Ms. Kathryn A. Oberly:

–Yes, Your Honor, but it is significant because Congress has provided one remedy and attached a condition to it and it is… Under those circumstances we think it is inappropriate for the Court to wipe those conditions or those restrictions out of Congress’ earlier statute by providing Plaintiff with an additional remedy.

William H. Rehnquist:

Well, under 2006 do you get a jury trial?

Ms. Kathryn A. Oberly:

The Customs collector would.

William H. Rehnquist:

So that is an additional difference between the Tort Claims Act and–

Ms. Kathryn A. Oberly:

That is true.

It would be an ordinary tort action in state court which we might, if we were defending the Customs collector, might remove to federal court, but I would assume the Customs collector is entitled to a jury trial.

But, it is particularly inappropriate for the courts to imply out of this Tort Claims Act an additional remedy for the Plaintiff here or any similar plaintiff when Congress specifically said that one of the reasons it was enacting this exemption was that it was satisfied that the existing remedies were adequate.

We would be completely undoing Congress’ decision that it was perfectly happy to rest on the existing remedies and not add an additional remedy if the Court were to take the position that really there is no difference between these two remedies and so will we let Petitioner or any other plaintiff have access to his choice of remedies.

Congress didn’t intent for there to be a choice of remedies in this situation, because, in fact, it knew about and was satisfied with the long-standing common-law remedy and the conditions under which it was willing to assume the Custom collector’s liability.

There is another statutory remedy which we also did not mention in our brief and which would not have afford complete relief to Petitioner, but is, in fact, useful in the type of situation we are talking about.

Before Congress enacted the Tort Claims Act in 1946, it had passed a Small Claims Act in 1922.

That statute was for the most part repealed when the Tort Claims Act was passed, but there was one important exception to the repeal.

Congress provided that the Small Claims Act could still be used by agency heads as a grant of discretionary authority to settle any tort claims that were for less than $1,000 and that could not be brought under the Tort Claims Act because of one of the exemptions.

That statute is now codified at 31 U.S.C. 3723 and what it allows the Customs Service or any other federal agency to do is grant them discretionary authority to settle claims for under $1,000–

William J. Brennan, Jr.:

–Was that remedy available to this Petitioner?

Ms. Kathryn A. Oberly:

–Yes, it was, if he was willing to waive $11,000 of his claim, because there is no judicial review under that statute and acceptance of the settlement under that statute constitutes final settlement of the claim.

William J. Brennan, Jr.:

The limit here is $1,000, is it?

Ms. Kathryn A. Oberly:

Yes.

So, we recognize that it wouldn’t have provided the complete relief he wanted, but what is worth noting about the statute is that the Customs Service frequently does use it to compensate similar types of accidents.

For example, if a traveler is passing through Customs inspection at an airport and a Customs inspector accidentally drops the traveler’s camera, if the value of the camera is less than $1,000, the agency can and does use the authority of the Small Claims Act to reimburse that traveler for the injury or damage to his camera.

We thinks that represents a reasonable compromise that Congress was willing to undertake.

John Paul Stevens:

May I ask again, this is 31 U.S.C. 3723?

Ms. Kathryn A. Oberly:

Right.

And, that is the most–

John Paul Stevens:

Is that statute cited in your brief?

Ms. Kathryn A. Oberly:

–No, it is not, Your Honor.

John Paul Stevens:

This is another new argument?

Ms. Kathryn A. Oberly:

Yes, although I called Petitioner’s counsel on Friday and told him about the statute.

We think this is a reasonable compromise legislative judgment that Congress made, whereby it is willing to assume or have agency heads assume liability for small claims under $1,000, but it is not willing to assume liability for the potentially much larger claims like Petitioner’s or others, and the reason Congress would not have wanted to do that is the vast scope of Customs Service operations.

As we pointed out in our brief, Customs last year, in 1982, made 59,000 separate seizures, not including seizures related to the drug laws.

This is really one’ of the most enormous programs the government runs and Congress could reasonably decide that it was unwilling to assume responsibility for such a large program.

John Paul Stevens:

May I ask one other question about 2680(c)?

John Paul Stevens:

Is the exemption there limited to Customs officers or does it apply to any seizure by any law enforcement officer?

Ms. Kathryn A. Oberly:

It is the government’s position that it applies to any seizure by any law enforcement officer.

It clearly covers Internal Revenue officers as well as Customs officers by its expressed terms.

And, then the phrase, “any other law enforcement officer”, we think means what it says, any other law enforcement officer–

John Paul Stevens:

Well, does that mean that if there is an… An FBI agent executes a warrant and gets custody of some physical objects and they are negligently damaged while in his custody, is there any remedy in that situation?

Ms. Kathryn A. Oberly:

–I don’t think so, Your Honor.

I think–

John Paul Stevens:

That is unlike the other, there is no common-law remedy of any kind there?

Ms. Kathryn A. Oberly:

–Well, there might be a Bivens action or something against the agent, but I don’t think–

John Paul Stevens:

No, no, I am assuming that there was probable cause, but he just dropped the clock or something like that.

Ms. Kathryn A. Oberly:

–The Ninth Circuit, which is the only court to address this, originally in a concurring opinion by Judge Tang… Judge Tang expressed the view that it did not include any other law enforcement officer, that it was limited to Customs or Revenue officers or other officers acting in that capacity.

But, in the subsequent opinion, the Ninth Circuit, noting Judge Tang’s opinion, said it disagreed with that and that the plain language of the statute did, in fact, cover any other law enforcement agency.

So, the statute frequently has been used to cover agencies like the Food and Drug Administration when they seize potentially adulterated food.

John Paul Stevens:

It would clearly protect them for the delay and the alleged conversion, but it also has been held that it protects them from damage to the proper–

Ms. Kathryn A. Oberly:

Yes.

Let’s say that the food is stored in a negligent manner so that it becomes worthless even though it is ultimately returned to the claimant.

It has been held that this section bars actions for the value of the lost food.

John Paul Stevens:

–And, drawing the distinction between conversion and property damage.

Ms. Kathryn A. Oberly:

That is correct.

The vast scope of Customs operations that I was referring to a moment ago is another important policy reason that supports our reading of the statute.

In the legislative history of the Tort Claims Act, Congress expressed considerable concern that certain types of claims offered great potential for abuse and for fraudulent or excessive claims.

Given the number of Customs seizures each year, that certainly is a realistic possibility in this situation.

The problems of proof for the government would be enormous because it is simply not realistic to expect a Customs inspector to be able to remember the details of every inspection and yet when the owner of property comes into court in a tort claims action and claims that his property was in perfect condition and the Customs Service really can’t remember what happened with that seizure, it has no effective way of rebutting the claim.

John Paul Stevens:

Yes, but they will be liable under the common-law theory in all of those situations, won’t they?

I mean, they have the same problem if it is common-law theory or a tort claim.

Ms. Kathryn A. Oberly:

Except that the government has protected itself to some extent by imposing limitations on when it is willing to shoulder the Customs collectors’ common-law liability.

John Paul Stevens:

But, in all the cases in which the seizure was lawful, the problem is identical?

Ms. Kathryn A. Oberly:

That is correct.

John Paul Stevens:

Which is most cases.

Ms. Kathryn A. Oberly:

That is correct.

Byron R. White:

Well, your answer to Justice Stevens indicates that if this suit had been brought against the individual Customs officer in this case, it would not have been affected by this statute.

Ms. Kathryn A. Oberly:

By the Tort Claims Act, that is right, it would not have been.

Byron R. White:

And, he might have won it?

Ms. Kathryn A. Oberly:

If he could have proved negligence, he might have won and almost certainly the United States would have paid the judgment in this case.

Byron R. White:

Is that action still open?

Ms. Kathryn A. Oberly:

No, it is not open to him because the Pennsylvania statute of limitations has expired.

It is a two-year statute.

We think what would be the applicable statute–

Byron R. White:

It hasn’t been tolled by this suit.

Ms. Kathryn A. Oberly:

–I would see no basis on which it could be considered tolled.

It is an action under Pennsylvania law.

It is a two-year statute of limitations.

William H. Rehnquist:

The filing of one suit doesn’t toll another of the statute of limitations.

Ms. Kathryn A. Oberly:

No.

Byron R. White:

But, the suit, you say, would be under Pennsylvania law?

Ms. Kathryn A. Oberly:

Pennsylvania seems the logical place to me because the seizure occurred there, Petitioner lives there, the Customs agents responsible are there from the Philadelphia Customs office.

Byron R. White:

So, it wouldn’t be state law barred for federal law or anything?

Ms. Kathryn A. Oberly:

No.

Justice Stevens, it may appear to be an academic distinction but that is simply no justification for the Court to rewrite the Tort Claims Act.

Even if in–

John Paul Stevens:

Well, it is no justification for rewriting assuming this is what Congress intended, of course, but Congress did use different words in this section than used in any other section.

And, of course, we weren’t aware of this legislative history that you mentioned until today.

Ms. Kathryn A. Oberly:

–It came to my attention through a student note on this case and which the student said he submitted to the Court.

But, I can also provide additional citations for the Court after the–

John Paul Stevens:

What is the student’s bottom line in that note?

[Laughter]

He thought the government was wrong, I believe.

Ms. Kathryn A. Oberly:

–Students tend to sympathize with Mr. Kosak.

The students seem to think that perhaps it would be appropriate for this Court to sit as a committee of Congress and rewrite the statute.

I really have very little further except to note that it is our position that Congress has made a reasonable legislative judgment about the limits of liability that it was willing to undertake.

Ms. Kathryn A. Oberly:

That judgment has to be respected by this Court.

And for the remainder of Petitioner’s arguments about the stereo receiver and the court pagoda we are willing to rely on our brief.

Thank you.

Warren E. Burger:

Do you have anything further, Mr. Naftulin?

Jeffrey L. Naftulin:

I have nothing further, Mr. Chief Justice.

John Paul Stevens:

Thank you, counsel, the case is submitted.

We will hear arguments next in Daily Income Fund against Fox.