Property Damage Claims Against the Customs Service: Are There Adequate Remedies?
This Note explores the availability of adequate property damage remedies following the United States Supreme Court's decision in Kosak v. United States, denying property owners the right to recover under the Federal Tort Claims Act (FTCA)." The Note also proposes several alternative remedies, including judicial adjustments to claims brought under the Tucker Act' and fifth amendment "takings" clause,, tort claims against individual customs officials, and legislative adjustments to the administrative settlement process under the Small Claims Act." Part II of this Note traces the judicial treatment of property damage claims brought against the United States Government under the FTCA, as well as constitutional and contractual sources of relief under the Tucker Act. In addition, Part II explores tort claims against customs officials in their individual capacities. Part III briefly discusses the right of a claimant to petition Congress for private relief legislation. Part IV examines administrative relief through remission and mitigation procedures as well as settlement opportunities under the Small Claims Act. Finally, Part V concludes that the judiciary may make recovery available under an "ad hoc" plaintiff-oriented approach to the fifth amendment "takings" clause. The judiciary could also provide a remedy by relaxing proof standards in "Bivens" actions against customs officials individually. Yet, the better solution to the current lack of adequate remedies would be a legislative increase in the funds available to injured plaintiffs and tightened procedures for administrative settlement under the Small Claims Act.