A-Mark, Inc. v. United States Secret Service Department of the Treasury

concurring:

I concur in the result. The majority, following the reasoning of Alliance Assurance Co. v. United States, 252 F.2d 529 (2nd Cir. 1958), holds that 28 U.S.C. § 2680 (c) excludes only damages arising from the fact of detention itself, not damages due to negligent handling during detention. In my view, a better rationale is to read § 2680(c) as covering only those detentions which occur within the context of customs and tax activities. The governmental function of assessing and collecting customs duties necessarily requires some period of detention when the imported item is in *851 speeted for purposes of evaluation. A similar situation often arises when property must be levied against for tax purposes. It follows that where the ultimate act of assessing the tax or duty is rendered exempt, the incidental activity of detention must also be protected. § 2680(c) contains parallel clauses which cover “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.” (emphasis added). The clauses both dwell exclusively on customs and taxes, except for the final…

This appeal has been taken from an order dismissing the action for lack of subject-matter jurisdiction.

Appellant seeks recovery from the United States under the Tort Claims Act for negligent damage to a rare silver dollar entrusted by appellant to Treasury officials in May, 1971, for authentication as to its genuineness. Appellant alleged that the coin, when given to the government officers was numismatically rated as “brilliant, uncirculated and semi-prooflike”; that while in the possession of the government it was severely damaged, resulting in a loss of value in the sum of $29,000.

In August, 1971, a technical consultant to the Director of the Mint examined the coin *850 and gave his opinion that the coin was genuine but that the “S” mint mark was counterfeit. Because of this finding the coin was detained by the United States Secret Service pending investigation into possible fraudulent alteration, mutilation or falsification in violation of 18 U.S.C. § 311 . Upon completion of the investigation, the coin was returned to appellant. This action was brought April 14, 1974.

28 U.S.C. § 2680 (c) provides that the Tort Claims Act shall not apply to “Any claim arising in respect…

593 F.2d 849 A-MARK, INC., Plaintiff-Appellant, v. UNITED STATES SECRET SERVICE DEPARTMENT OF the TREASURY, Defendant-Appellee. No. 77-2152. United States Court of Appeals, Ninth Circuit. Nov. 13, 1978. Theodore B. Olson (argued), of Gibson, Dunn & Crutcher, Los Angeles, Cal., for plaintiff-appellant. Roger E. West, Asst. U. S. Atty. (argued), Los Angeles, Cal., for defendant-appellee. On Appeal from the United States District Court for the Central District of California. Before MERRILL, GOODWIN and TANG, Circuit Judges. PER CURIAM: 1 This appeal has been taken from an order dismissing the action for lack of subject-matter jurisdiction. 2 Appellant seeks recovery from the United States under the Tort Claims Act for negligent damage to a rare silver dollar entrusted by appellant to Treasury officials in May, 1971, for authentication as to its genuineness. Appellant alleged that the coin, when given to the government officers was numismatically rated as "brilliant, uncirculated and semi-prooflike"; that while in the possession of the government it was severely damaged, resulting in a loss of value in the sum of $29,000. 3 In August, 1971, a technical consultant to the Director…