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 reference to other law-enforcement officers. The “any other law-enforcement officer” phrase should be viewed as Congress’ recognition of the fact that federal officers, other than customs and excise officers, sometimes become involved in the activity of detaining goods for tax or customs purposes.

This reading is supported by what little legislative history there is on § 2680(c). The Senate Report to the Legislative Reorganization Act of 1946 had only the following to say about the tort claim exceptions:

S.Rep. No. 1400, 79th Cong., 2d Sess. 33 (1946). See also Hearings Before House Committee on the Juridicary on H.R. 5373 and H.R. 6463, 77th Cong.2d Sess. 44 (1942); Gottlieb, The Federal Torts Claims Act — A Statutory Interpretation, 35 Geo.L.Rev. 1, 45 (1946).

It is noteworthy that the report speaks of the detention of goods only by customs officers. If Congress had intended the exception to extend to detentions by “any law-enforcement officer” outside the area of tax or customs, one would expect a more encompassing explanation.

It is true that the few cases on point have applied § 2680(c) to law-enforcement officials other than customs and tax officials. See, e. g., United States v. 1500 Cases, More or Less, etc., 249 F.2d 382 (7th Cir. 1957) (FDA); United States v. Articles of Food, etc., 67 F.R.D. 419 (D.Idaho 1975) (same); Van Buskirk v. United States, 206 F.Supp. 553 (E.D.Tenn.1962) (FBI); Jones v. Federal Bureau of Investigation, 139 F.Supp. 38 (D.Md.1956). All of these cases, however, relied on language in Chambers v. United States, 107 F.Supp. 601 (D.Kan.1952), which was clearly dictum. None of them discuss the legislative history of the statute and only one addresses the issue, and that in dictum. Van Buskirk v. United States, supra, 206 F.Supp. at 556 . It is submitted that they are wrongly decided and that § 2680(c) should be limited to detentions of goods by law-enforcement officers acting in a customs or tax capacity.

Under such an analysis, the detention of the coin here was not for a customs or tax purpose and § 2680(c) exception would be inapplicable.