649 F.3d 868 (8th Cir. 2011), 10-3015, Najbar v. United States

Docket Nº:10-3015.
Citation:649 F.3d 868
Opinion Judge:WOLLMAN, Circuit Judge.
Party Name:Joan NAJBAR, Appellant, v. The UNITED STATES of America, Appellee.
Attorney:Jeff Howard Eckland, argued, Kate H. Kennedy, on the brief, Minneapolis, MN, for appellant. Mary J. Madigan, AUSA, argued, Minneapolis, MN, for appellee.
Judge Panel:Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.
Case Date:August 12, 2011
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 868

649 F.3d 868 (8th Cir. 2011)

Joan NAJBAR, Appellant,

v.

The UNITED STATES of America, Appellee.

No. 10-3015.

United States Court of Appeals, Eighth Circuit.

August 12, 2011

Submitted: March 16, 2011.

Page 869

Jeff Howard Eckland, argued, Kate H. Kennedy, on the brief, Minneapolis, MN, for appellant.

Mary J. Madigan, AUSA, argued, Minneapolis, MN, for appellee.

Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.

WOLLMAN, Circuit Judge.

Pursuant to the Federal Tort Claims Act (the FTCA), Joan Najbar filed this lawsuit against the United States alleging four state-law causes of action. The district court granted the government's motion to dismiss for lack of subject-matter jurisdiction, and Najbar appeals. We affirm, although on a ground different from that relied on by the district court.

I.

The government argues that the factual allegations in Najbar's complaint, even if true, are insufficient to establish subject-matter jurisdiction. We therefore treat them as true and proceed to consider whether the government's argument is correct. See Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir.1990).

Najbar's complaint alleges that on September 29, 2006, she mailed a letter to her son, a soldier serving with the United States Army in Iraq. Two weeks later that letter was returned to her, undelivered. The envelope had been stamped, in red ink: " DECEASED." This was the first that Najbar had heard of her son's death.

Distraught at the news that her son had died, Najbar contacted the United States Postal Service (the Postal Service) requesting additional information. When it was unable to help her, she called the Red Cross. After some investigation, the Red Cross discovered that Najbar's son was, in fact, alive. As a result of receiving the erroneously stamped letter, Najbar suffered severe emotional distress requiring medical treatment.

Najbar filed an administrative claim with the Postal Service, but it was denied. A request for reconsideration was also denied. Having exhausted those administrative

Page 870

remedies, Najbar filed suit under the FTCA, asserting four state-law causes of action: (1) intentional infliction of emotional distress; (2) negligence; (3) negligent infliction of emotional distress; and (4) negligence per se.

The government moved to dismiss the lawsuit on the ground that the United States' sovereign immunity deprived the district court of subject-matter jurisdiction. Pointing out that the FTCA's waiver of sovereign immunity does not apply to " [a]ny claim arising out of ... misrepresentation," 28 U.S.C. § 2680(h), or " [a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter," 28 U.S.C. § 2680(b), the government argued that Najbar's claims arose out of either a misrepresentation ( i.e., my son was alive when you told me he was dead), or lost, miscarried, or negligently transmitted mail. The district court agreed in part, concluding that Najbar's claims arose from a Postal-Service " misrepresentation," but not from its " loss, miscarriage, or negligent transmission" of her letter.

II.

" The United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941) (citations omitted). Because the Postal Service " is an independent establishment of the executive branch of the Government of the United States," with " significant governmental powers," it " enjoys federal sovereign immunity absent a waiver." Dolan v. U.S. Postal Serv., 546 U.S. 481, 483-84, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006) (internal quotation marks omitted).

Such a waiver is provided by the FTCA, which " appl[ies] to tort claims arising out of activities of the Postal Service," 39 U.S.C. § 409, and permits:

civil actions on claims against the United States, for money damages ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b)(1).

That waiver is limited, however, by a number of exceptions, see 28 U.S.C. § 2680, two of which the government says apply here. The first preserves the government's immunity from " [a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." Id. § 2680(h) (the misrepresentation exception). The second preserves the same for " [a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter." Id. § 2680(b) (the postal-matter exception).

If either exception applies, then the district court properly dismissed Najbar's suit for want of jurisdiction. If neither applies, then Najbar's suit may proceed. We review the applicability of these exceptions de novo. Hart v. United States, 630 F.3d 1085, 1088 (8th Cir.2011).

We begin with the postal-matter exception, which the government argued before the district court and in its brief to this court.1 Najbar cannot sue on " [a]ny

Page 871

claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter." 28 U.S.C. § 2680(b). Although there is a " general rule that a waiver of the Government's sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign, ... this principle is unhelpful in the FTCA context, where unduly generous interpretations of the exceptions run the risk of defeating the central purpose of the statute, which waives the Government's immunity from suit in sweeping language." Dolan, 546 U.S. at 491-92, 126 S.Ct. 1252 (citations and internal quotation marks omitted). " Hence, the proper objective of a court attempting to construe one of the subsections of 28 U.S.C. § 2680 is to identify those circumstances which are within the words and reason of the exception— no less and no more." Id. at 492, 126 S.Ct. 1252 (internal quotation marks omitted).

Accordingly, in Dolan, the Supreme Court " identif[ied] those circumstances which are within the words and reason of the [postal-matter] exception," id. (internal quotation marks omitted), concluding that it was " likely that Congress intended to retain immunity, as a general rule, only for injuries arising, directly or...

To continue reading

FREE SIGN UP