Held: The United States may be held liable in an action
under the Tucker Act for breach of an implied contract of bailment
when goods are lost while held by the United States Customs Service
following their seizure for customs violations.
(a) Title 28 U.S.C. § 2680(c), which excepts from the
Government's tort liability under the Federal Tort Claims Act
(FTCA) any claim arising in respect of the detention of merchandise
by any customs officer, does not foreclose a remedy on an
implied-in-fact contract of bailment. Although the section excludes
certain claims from the statutory waiver of immunity from tort
liability, it does not limit or otherwise affect immunity waivers
contained in other statutes such as the Tucker Act, which invests
the Court of Claims with jurisdiction to render judgment "upon any
claim against the United States founded . . . upon any express or
implied contract with the United States." Neither does § 2680(c)'s
legislative history support the view that it was intended to
declare the immunity of the United States from express or implied
contracts with customs officers that would, or might, otherwise be
within the Court of Claims' jurisdiction under the Tucker Act, but,
on the contrary, it appears that, in exempting from the FTCA those
claims described in § 2680(c), Congress did not further intend to
disturb other existing statutory remedies.
(b) The fact that individual customs officers are subject to
tort liability for negligent loss of goods does not preclude a
contractual remedy against the Government, neither the existence
nor lack of a tort remedy being relevant to determining whether
there is an implied-in-fact contract of bailment upon which the
United States is liable pursuant to its waiver of sovereign
immunity under the Tucker Act.
217 Ct.Cl. 423, 579 F.2d 617, vacated and remanded.
Page 444 U. S. 461
PER CURIAM.
We granted certiorari in this case to consider whether the
United States may be held liable for breach of an implied contract
of bailment when goods are lost while held by the United States
Customs Service (USCS) following their seizure for customs
violations. 441 U.S. 942 (1979). The Court of Claims granted the
Government's motion for summary judgment, finding that petitioner
had failed to state a claim upon which the court could grant
relief. 217 Ct.Cl. 423, 579 F.2d 617 (1978). We vacate the Court of
Claims' judgment and remand the case for further proceedings.
Petitioner imported camera supplies and other items which USCS
seized upon their arrival in port and declared forfeited for
customs violations. On petitioner's appropriate procedure for
relief, USCS agreed to return the forfeited materials upon
petitioner's payment of a $40,000 penalty. When the shipment was
returned to petitioner, however, merchandise valued in excess of
$165,000 was missing. Petitioner brought suit under the Tucker Act,
28 U.S.C. § 1491, for the value of the missing merchandise,
[
Footnote 1] alleging breach of
an implied contract of bailment. [
Footnote 2]
The Court of Claims initially conceded that
"the statutes cited by the plaintiff, along with the action of
the USCS in agreeing to return the seized goods upon payment of a
$40,000 fine by Hatzlachh, could make a strong case for the
existence of an implied-in-fact contract properly to preserve and
redeliver all the goods to Hatzlachh."
217 Ct.Cl. at 428, 579
Page 444 U. S. 462
F.2d at 620. The court noted, however, that 28 U.S.C. § 2680(c)
excepts from the tort liability of the Government under the Federal
Tort Claims Act any claim "arising in respect of . . . the
detention of any goods or merchandise by any officer of customs."
Because, in its view, this provision would bar a tort claim for the
loss that occurred in this case, the court thought that it
"would certainly be a trespass on congressional prerogatives for
this court now to hold that, by seizing subject to forfeiture
certain merchandise, the Government assented to, or agreed to be
bound by, an implied-in-fact contract to return the merchandise
whole."
217 Ct.Cl. at 430, 579 F.2d at 621. The Court of Claims
accordingly declined to find an implied-in-fact contract, remarking
that it could not "judicially allow by the back door a claim which
was, rather clearly and explicitly, legislatively barred at the
front."
Ibid.
We cannot agree with the Court of Claims that § 2680(c) is such
a major obstacle to awarding judgment against the Government on an
implied contract. Section 2680, which is entitled "Exceptions,"
declares that "[t]he provisions of this chapter . . . shall not
apply to" certain kinds of claims, which are then described. Among
the excepted claims are those specified in § 2680(c) -- claims
"arising in respect of . . . the detention of any goods or
merchandise" by any customs officer. The section, although
excluding certain claims from the statutory waiver of immunity from
tort liability, [
Footnote 3]
does
Page 444 U. S. 463
not limit or otherwise affect immunity waivers contained in
other statutes such as the Tucker Act, which invests the Court of
Claims with jurisdiction to render judgment "upon any claim against
the United States founded . . . upon any express or implied
contract with the United States."
Neither does its legislative history support the view that §
2680(c), first passed in 1946 as part of the Federal Tort Claims
Act, was intended to declare the immunity of the United States from
express or implied contracts with customs officers that would, or
might, otherwise be within the jurisdiction of the Court of Claims
under the Tucker Act. On the contrary, it appears that, in
exempting from the Tort Claims Act those claims described in §
2680(c), Congress did not further intend to disturb other existing
statutory remedies. H.R.Rep. No. 2245, 77th Cong., 2d Sess., 10
(1942); 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); 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); Tort Claims:
Hearings on H.R. 5373 and H.R. 6463 before the House Committee on
the Judiciary, 77th Cong., 2d Sess., 28, 44 (1942). [
Footnote 4] Nothing in these sources, nor
anything else
Page 444 U. S. 464
called to our attention, indicates that the Tort Claims Act
withdrew to any extent existing remedies for the breach of express
or implied contracts. Others have read the statute and its
legislative history to this effect.
See 2 L. Jayson,
Personal Injury: Handling Federal Tort Claims § 256 (1979);
Gellhorn & Schenck, Tort Actions Against the Federal
Government, 47 Colum.L.Rev. 722, 729-730 (1947); Gottlieb, The
Federal Tort Claims Act -- A Statutory Interpretation, 35 Geo.Law
J. 1, 45 (1946); Comment, The Federal Tort Claims Act, 42
Ill.L.Rev. 344, 360 (1947); Note, The Federal Tort Claims Act, 56
Yale L.J 534, 547-548 (1947).
The Court of Claims relied on
Stencel Aero Engineering Corp.
v. United States, 431 U. S. 666
(1977), where it was held that the United States is not liable
under the Tort Claims Act to indemnify a third party for damages
paid to a member of the Armed Forces who was injured in military
training. Recognizing that the Veterans' Benefits Act provided
compensation to injured servicemen, which we understood Congress
intended to be the sole remedy for service-connected injuries, we
declined to construe the Tort Claims Act to permit third-party
indemnity suits that in effect would expose the Government to
greater liability than that contemplated under the statutory
compensation scheme. In
Stencel, Congress had provided a
remedy, which we thought to be exclusive. Here, however, § 2680(c)
denies a tort remedy for certain
Page 444 U. S. 465
claims; and we fail to see how the
Stencel holding that
the existence of an exclusive statutory compensation remedy negates
tort liability supports the conclusion that, if the Tort Claims Act
bars a tort remedy, neither is there a contractual remedy.
The absence of Government tort liability has not been thought to
bar contractual remedies on implied-in-fact contracts, even in
those cases also having elements of a tort. In
Keifer &
Keifer v. RFC, 306 U. S. 381
(1939), the Government argued that, because a Government
corporation could not be sued for negligence, neither could it be
sued for breach of contract of bailment. The Court rejected the
argument, holding that even if there was tort immunity, the waiver
of immunity with respect to contract claims was not limited to
"suits on contract, express or implied, not sounding in tort."
See also Aleutco Corp. v. United States, 244 F.2d 674, 679
(CA3 1957);
New England Helicopter Service, Inc. v. United
States, 132 F.
Supp. 938, 939 (RI 1955). [
Footnote 5]
The United States does not now defend the reasoning of the Court
of Claims that § 2680(c) forecloses a remedy on an implied-in-fact
contract of bailment. Tr. of Oral Arg. 37-38. It does support the
judgment on a ground concededly not urged in the Court of Claims:
that the contractual remedy should be rejected because individual
customs officers are subject to tort liability and because 28
U.S.C. § 2006 provides that judgments against customs officers for
negligent
Page 444 U. S. 466
loss of goods, where seizure was made with probable cause, shall
be paid by the United States. The existence of this private
recourse, it is urged, counsels against recognizing a contractual
remedy under the Tucker Act. We find the argument unpersuasive.
There is no inconsistency between a contractual remedy against the
Government and a tort remedy against customs officers.
Cf.
Keifer Keifer, supra. Without more, neither the existence of a
tort remedy nor the lack of one is relevant to determining whether
there is an implied-in-fact contract of bailment upon which the
United States is liable in the Court of Claims pursuant to its
waiver of sovereign immunity contained in the Tucker Act.
Because the Court of Claims' judgment rested heavily on a
mistaken view of the legal significance of § 2680(C), and because
the Court of Claims should first address the question of an
implied-in-fact contract without regard to that section, we vacate
the judgment of the Court of Claims and remand the case to that
court for further proceedings consistent with this opinion.
[
Footnote 6]
So ordered.
[
Footnote 1]
Petitioner also sought damages, no longer in issue, for loss of
"face and good will."
[
Footnote 2]
As a second cause of action, petitioner alleged a capricious and
arbitrary seizure, "unreasonable detainer" of property, and
"deprivation without due process." Petitioner does not challenge
the dismissal of this cause of action.
[
Footnote 3]
We proceed in the text on the assumption, but without deciding,
that the Court of Claims was correct in holding that the loss
alleged in this case was a claim arising from the detention of
goods by a customs officer, and hence within the exception carved
out by § 2680(c). Petitioner disputes this holding, claiming that
the section is limited to wrongful detentions and does not deal
with losses, and that the courts are divided on the interpretation
of the section.
A-Mark, Inc. v. United States Secret
Service, 593 F.2d 849 (CA9 1978), and
Alliance Assurance
Co. v. United States, 252 F.2d 529 (CA2 1958), it is said,
permit recovery under the Tort Claims Act for the loss of goods
detained by customs officers; whereas this case,
United States
v. One(1) 1972 Wood, 19 Foot Custom Boat, FL844AY, 501 F.2d
1327 (CA5 1974), and
S. Schonfeld Co. v. S.S. Akra
Tenaron, 363 F.
Supp. 1220 (SC 1973), construe § 2680(c) to except such losses
from the Tort Claims Act.
We need not resolve the conflict. If petitioner is correct in
its interpretation, § 2680(c) would itself present no barrier to
either contractual or tort liability. Nor would the existence of a
Tort Claims Act remedy in this case be preclusive of preexisting
contractual remedies under the Tucker Act, at least absent some
reasonably clear evidence that Congress intended to foreclose
contractual remedies in the circumstances obtaining here.
[
Footnote 4]
When Congress first considered the exception in 1940, Judge
Alexander Holtzoff, then a Special Assistant to the Attorney
General, testified before the Senate Judiciary Subcommittee
considering the bill. As the then Mr. Holtzoff described the
intended effect of the various exemptions, certain of them, such as
the loss or miscarriage of postal matter and certain intentional
torts, were included because they related to activities for which,
as a policy matter, the Government should be free from tort claims.
Other exemptions, such as the assessment or collection of taxes or
customs duties, the detention of goods by customs officers, and
admiralty or maritime torts, were included because various other
laws provided the machinery for recovery on these claims and
"[t]here was no purpose in interfering with that machinery." Tort
Claims Against the United States: Hearings on S. 2690 before a
Subcommittee of the Senate Committee on the Judiciary, 76th Cong.,
3d Sess., 339 (1940). The purpose was to avoid duplication; there
was no indication that existing remedies, if any, were
withdrawn.
[
Footnote 5]
The Tucker Act itself is only a jurisdictional statute, of
course, and does not create a substantive right to money damages.
United States v. Testan, 424 U. S. 392,
424 U. S. 398
(1976). The enforceable claim in this case must arise from the
alleged contract. Moreover, the Court of Claims' jurisdiction with
respect to contracts extends only to actual contracts, either
express or implied in fact; it does not reach claims on contracts
implied in law.
Alabama v. United States, 282 U.
S. 502,
282 U. S. 507
(1931);
Goodyear Tire & Rubber Co. v. United States,
276 U. S. 287,
276 U. S.
292-293 (1928);
United States v. Minnesota Mutual
Investment Co., 271 U. S. 212,
271 U. S. 217
(1926);
Hill v. United States, 149 U.
S. 593,
149 U. S. 598
(1893).
[
Footnote 6]
We indicate no view, one way or the other, as to whether an
implied-in-fact contract could be found on the record in this
case.
MR. JUSTICE BLACKMUN, dissenting.
I do not disagree with the legal principles pronounced by the
Court in its per curiam opinion to the effect that 28 U.S.C. §
2680(c) is not an obstacle to the awarding of judgment against the
Government on an implied contract,
ante at
444 U. S. 462;
or that, in exempting from the Tort Claims Act those claims
described in § 2680(c), Congress did not also intend to disturb
other existing statutory remedies,
ante at
444 U. S. 463;
or that
Stencel Aero Engineering Corp. v. United States,
431 U. S. 666
(1977), does not control this case,
ante at
444 U. S.
464-465; or that the absence of governmental tort
liability does
Page 444 U. S. 467
not bar contractual remedies on implied-in-fact contracts,
ante at
444 U. S. 465;
or that there is no inconsistency between a contractual remedy
against the Government and a tort remedy against customs officers,
ante at
444 U. S. 466.
But I dissent from the Court's vacating the judgment of the Court
of Claims and its remanding the case to that court for further
proceedings.
I dissent because I am persuaded that an implied-in-fact
contract is not to be found on the record in this case, and because
I believe the remand is, or should be, a useless exercise leading
to an inevitable result.
It is clear that jurisdiction of the Court of Claims extends to
contracts implied in fact but not to those implied in law,
See
United States v. Minnesota Mutual Investment Co., 271 U.
S. 212,
271 U. S.
217-218 (1926);
Merritt v. United States,
267 U. S. 338,
267 U. S. 341
(1925). Here, the Customs Service seized the goods and declared
them forfeited for customs violations. There is no question as to
the legality of that seizure.
See One Lot Emerald Cut Stones v.
United States, 409 U. S. 232,
409 U. S. 234
(1972). Indeed, petitioner has admitted that the customs
declaration was improper. 217 Ct.Cl. 423, 425, 579 F.2d 617, 618
(1978); App. 11a, 18a. The Government's action, thus, was a claim
of forfeiture and an assertion of ownership. There was no
uninterrupted title in petitioner, recognized by the parties, as
would constitute the basis of a contract implied in fact to return
the goods.
See Baltimore & Ohio R. Co. v. United
States, 261 U. S. 592,
261 U. S. 597
(1923). If the forfeiture is not upheld, the duty to return the
goods is one implied, not in fact, but in law, and is so implied
from the duty imposed upon the Customs Service by statute.
See 28 U.S.C. § 2465. Any recovery for failure on the part
of the Service to fulfill that duty would be founded in tort, or
perhaps in equity, but not in contract.
It therefore seems to me inevitably to follow that there is no
jurisdiction over this case in the Court of Claims.
See
Baltimore Ohio R. Co. v. United States, supra; Russell
Page 444 U. S. 468
Corp. v. United States, 210 Ct.Cl. 596, 609, 537 F.2d
474, 482 (1976),
cert. denied, 429 U.S. 1073 (1977). Any
remedy for petitioner lies elsewhere. Accordingly, I would affirm
the judgment of the Court of Claims, albeit on a different ground
from the one advanced by that court.