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
 
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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

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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...

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