Summary
dismissing contract claim against Postal Service for failure to exhaust administrative remedies where plaintiff alleged mis-delivery of items she sent by certified mail
Summary of this case from Zangari v. U.S. Postal Serv.Opinion
Civil No. 03-71231.
July 3, 2003
OPINION AND ORDER
Plaintiff brings this pro se action for damages against the United States Postal Service ("Postal Service") for failure to deliver plaintiffs mail. Specifically, plaintiff seeks $750 in damages for alleged misdelivery of several items that he had sent by certified mail to the United States Supreme Court. Defendant has filed a motion to dismiss for lack of jurisdiction under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). For the reasons below, defendant's motion is GRANTED and plaintiffs claims are DISMISSED.
ANALYSIS
Motion to Dismiss Standard
When subject matter jurisdiction is challenged under Fed.R.Civ.P. 12(b)(1), plaintiff has the burden of proving jurisdiction in order to survive the motion. Michigan Southern R.R. Co. v. Branch St. Joseph, 287 F.3d 568, 573 (6th Cir. 2002).Jurisdiction over any suit against the federal government requires a clear statement from the United States waiving its sovereign immunity together with a claim falling within the terms of the waiver. United States v. White Mountain Apache Tribe, 537 U.S. 465, 123 S.Ct. 1126, 1131-32, 155 L.Ed.2d 40 (2003) (citations omitted). The terms of consent to be sued may not be inferred, but must be "unequivocally expressed." Id.
Tort Claim
While Congress, through the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 2671-80 (FTCA) waived its sovereign immunity against many torts, it expressly declined to waive sovereign immunity for "any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter." 28 U.S.C. § 2680(b). Since plaintiffs tort claim against the government arises from the loss, miscarriage, or negligent transmission of his postal matter, his claim is barred by sovereign immunity and I do not have jurisdiction.See Anderson v. United States Postal Service, 761 F.2d 527, 528 (9th Cir. 1985); Insurance Co. of North America v. United States Postal Service, 675 F.2d 756, 758 (5th Cir. 1982). Thus, plaintiffs tort claim is dismissed with prejudice.
Contract Claim
However, plaintiffs contract claim is not barred by sovereign immunity. Section 401(1) of the Postal Reorganization Act, 39 U.S.C. § 101 et seq., empowers the Postal Service "to sue and be sued in its official name." The United States Supreme Court has determined that "[b]y launching "the Postal Service into the commercial world,' and including a sue-and-be-sued clause in its charter, Congress has cast off the Service's "cloak of sovereignty' and given it the "status of a private commercial enterprise.'" Loeffler v. Frank, 486 U.S. 549, 108 S.Ct. 1965, 1970, 100 L.Ed.2d 549 (1988) (holding Postal Service subject to prejudgment interest in Title VII action) (quoting Library of Congress v. Shaw, 478 U.S. 310, 317 n. 5, 106 S.Ct. 2957, 2963 n. 5, 92 L.Ed.2d 250 (1986)). Thus, the Postal Service does not enjoy sovereign immunity against contract claims.
This general waiver of sovereign immunity, however, is superseded by the preservation of sovereign immunity against tort claims contained in the Federal Tort Claims Act, as discussed supra. In any event, even if plaintiffs tort claim is not barred by 28 U.S.C. § 2680(b), plaintiff still has not exhausted his administrative remedies.
Nevertheless, plaintiff has failed to exhaust his administrative remedies with the Postal Service. Thus, I do not have jurisdiction over plaintiffs contract claim at this time and it is dismissed without prejudice. See Dordjevic v. Postmaster General, 911 F. Supp. 72 (E.D.N.Y. 1995) (dismissing plaintiffs contract claim against the Postal Service arising out of lost international mail package for failure to exhaust administrative remedies).
CONCLUSION
For the foregoing reasons, defendant's motion to dismiss is GRANTED and this case is DISMISSED pursuant to Fed.R.Civ.P. 12(b)(1). Plaintiff's tort claim is dismissed with prejudice and plaintiffs contract claim is dismissed without prejudice.
IT IS SO ORDERED.