Eure v. US Postal Service

• Decision Date: 24 January 1989
• Docket Number: H86-0070(W),H86-0226(W),and H86-0225(W).,Civ. A. No. H86-0066(W)
• Citation: 711 F. Supp. 1365
• Parties: Roby E. EURE, Plaintiff, v. UNITED STATES POSTAL SERVICE and United States of America, Defendants. Robert CARLISLE, Jr., Plaintiff, v. UNITED STATES POSTAL SERVICE and United States of America, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

711 F. Supp. 1365

Roby E. EURE, Plaintiff, v. UNITED STATES POSTAL SERVICE and United States of America, Defendants.

Robert CARLISLE, Jr., Plaintiff, v. UNITED STATES POSTAL SERVICE and United States of America, Defendants.

Civ. A. Nos. H86-0066(W), H86-0226(W), H86-0070(W), and H86-0225(W).

United States District Court, S.D. Mississippi, Hattiesburg Division.

January 24, 1989.

Kim T. Chaze, Hattiesburg, Miss., for plaintiffs.

Steven Graben, Asst. U.S. Atty., Biloxi, Miss., for defendants.

MEMORANDUM OPINION AND ORDER

WINGATE, District Judge.

Before the court for its considerations are motions to dismiss in the above causes pursuant to Rules 12(b)(1), (6), and (7) of the Federal Rules of Civil Procedure. On September 9, 1988, this court converted these motions to motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Having thoroughly reviewed all pleadings and memoranda submitted by the parties, this court hereby makes the following findings and conclusions.

The following issues frame the focus of this court's examination:

1. Whether it is proper for plaintiffs to name the United States Postal Service as defendant, or whether the United States of America should be properly joined and named as a defendant herein;

2. Whether the plaintiffs are prosecuting claims which "sound in tort" and are thereby required to meet the dictates of the Federal Tort Claims Act;

3. Whether the plaintiffs may maintain a federal constitutional tort cause of action against the defendants;

4. Whether plaintiffs may amend their complaints to name certain individual federal officials;

5. Whether plaintiffs' claims are barred by the applicable statute of limitations; and

6. Whether the plaintiffs, as former employees of the United States Postal Service, are bound by the exclusivity provisions of the Federal Employees' Compensation Act.

Consolidated for trial pursuant to Rule 42(a) of the Federal Rules of Civil Procedure and Uniform Local Rule 5, these cases urge similar factual circumstances and implicate the same juridical concerns.

Roby E. Eure

Plaintiff Eure brought an action (H86-0066/Eure I) against the Postal Service, his employer, on April 4, 1986, in which he alleged that the Postal Service had negligently failed to reasonably prevent its employees from "humiliating and/or harassing" the plaintiff; that such humiliation and harassment had caused the plaintiff physical pain and suffering, mental duress, and emotional anxiety which eventually compelled plaintiff's "constructive discharge and `disability' retirement on April 9, 1984;" that the Postal Service, by and through its employees, had intentionally inflicted this mental anxiety and emotional distress upon plaintiff; and that the conduct of the Postal Service's employees was so against public policy that "equitable relief is in order."¹

Subsequently, the plaintiff amended his complaint and alleged a federal constitutional tort. By this cause of action plaintiff charges that his First Amendment rights, his right of privacy, his right to substantive and procedural due process regarding his property interest in his employment, and his Fifth Amendment right of equal protection were all violated by employees of the Postal Service.

Plaintiff Eure then filed a separate but virtually identical cause of action (H86-0226/Eure II) against the United States as defendant on November 17, 1986. Clearly, this case, which realleged all the claims of H86-0066 (Eure I), including the federal constitutional claims, was filed as a band-aid to cover a sore spot in the initially filed case (H86-0066/Eure I) concerning exhaustion of administrative remedies. Prior to this second action being filed, plaintiff Eure exhausted his administrative remedies when he filed his administrative claim on May 6, 1986.

Robert Carlisle, Jr.

Plaintiff Carlisle brought essentially the same initial cause of action (H86-0070/Carlisle I) as Eure against the United States Postal Service on April 11, 1986. Carlisle also alleged that the Postal Service negligently failed to reasonably prevent the "humiliating and/or harassing" conduct of the Postal Service's employees and that this conduct caused plaintiff Carlisle physical pain and suffering, mental distress, and emotional anxiety. The principal difference between Carlisle's case and that of Eure's is that Carlisle did not allege constructive discharge from his job, since Carlisle did not resign from employment until March, 1988. Plaintiff Carlisle also points out that he was a representative of the postal workers' union.

Just as plaintiff Eure, Carlisle subsequently amended his complaint to allege a federal constitutional tort cause of action. And, as had Eure, Carlisle exhausted his administrative remedies by filing a claim with the Postal Service on May 6, 1986. Thereafter, Carlisle filed a second action (H86-0225/Carlisle II) on November 17, 1986. This second action named the United States of America as defendant and contained virtually the same claims as the first.

United States Postal Service as Defendant

The question is whether the first actions filed by Eure and Carlisle, H86-0066/Eure I and H86-0070/Carlisle I, respectively, are sufficiently pled in order that relief may be granted without the inclusion of the United States as a party, or whether the naming alone of the United States Postal Service is sufficient.

Section 401(1), Title 39, United States Code, provides that the Postal Service is empowered "to sue and be sued in its official name."² Hence, this statutory waiver of sovereign immunity indicates that when Congress "launched the Postal Service into the commercial world," it made the agency just as amenable to suit as any private sector business. Franchise Tax Board of California v. United States Postal Service, 467 U.S. 512, 518, 104 S.Ct. 2549, 2553, 81 L.Ed.2d 446 (1984). Additionally, such sue-and-be-sued clauses are liberally construed. 467 U.S. at 520, 104 S.Ct. at 2554. The presumption therefore is that the Postal Service is amenable to suit and is a proper defendant. Id. Therefore, as to defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) and (7) regarding this issue, the motion is denied.

Application of the Federal Tort Claims Act

A review of plaintiffs' complaints and amended complaints indicate that the averments are wholly void of any claims other than allegations which express some form of tortious conduct on the part of the Postal Service and its employees.³ Although plaintiff Eure speaks of a "constructive discharge," there are no pleadings pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.⁴ Also, plaintiff Carlisle speaks of his position as a union representative but seeks no relief under the Labor Management Relations Act, 29 U.S.C. § 158. So, plaintiffs' remonstrations sound in tort, since the gist of the allegations charges intentional conduct by the defendants and their agents.

Essentially being tort actions, plaintiffs' complaints attacking the Postal Service must be viewed under the gaze of the Federal Tort Claims Act (FTCA). Resort to the Postal Reorganization Act of 1970, Pub.L. 91-375, 84 Stat. 719 (now codified in 39 U.S.C.), explains why. Section 409(c), Title 39 U.S.C., part of the 1970 Act instructs that the provisions of the FTCA shall apply to tort claims arising out of activities of the Postal Service. Insurance Company of North America v. United States Postal Service, 675 F.2d 756, 757 (5th Cir.1982); Franchise Tax Board of California v. United States Postal Service, 467 U.S. at 518-19, 104 S.Ct. at 2553; Grasso v. United States Postal Service, 438 F.Supp. 1231, 1236-37 (D.Conn.1977). Although 28 U.S.C. § 1346(b) of the FTCA permits lawsuits for money damages for claims involving "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 employment ...," Section 2675(a) of the FTCA bars suit against a federal agency unless the claimant first has filed a claim with the agency.

Regarding the first Eure and Carlisle cases (H86-0066/Eure I and H86-0070/Carlisle I respectively) against the Postal Service, it is clear that plaintiffs filed suit before any claim was made with the agency. Plaintiffs' counsel even admitted as much at oral argument. This admission is evident since Eure filed suit on April 4, 1986, and Carlisle filed suit on April 11, 1986. Their claim letters were not presented to the Postal Service until May 6, 1986.

Plaintiffs argue that the complaints themselves served as written notification of a claim. If this argument were true, the simple filing of a lawsuit would effectively circumvent the FTCA procedural prerequisite. The statute's language is plain: "an action shall not be instituted against the United States ..., unless the claimant shall have first presented the claim to the appropriate Federal agency. ..." 28 U.S.C. § 2675(a). Accordingly, no subject matter jurisdiction is conferred upon this court. Reynolds v. United States, 748 F.2d 291, 292-93 (5th Cir.1984). Consequently, plaintiff Eure's first suit (H86-0066/Eure I) and plaintiff Carlisle's first suit (H86-0070/Carlisle I) are dismissed for failure to comply with the dictates of 28 U.S.C. § 2675(a).⁵

Defendants also campaign for the dismissal of the two remaining lawsuits, cause numbers H86-0226 (Eure II) and H86-0225 (Carlisle II). Defendants contend that plaintiffs' federal constitutional tort claims lack juridical basis, while the remaining FTCA claims are barred by the FTCA statute of limitations. Plaintiffs' arguments to the contrary aside, the court is convinced that plaintiffs' federal constitutional tort claims are not cognizable. Further, the court is persuaded that Eure's complaint in H86-0226 (Eure II) is time-barred. The reasoning employed by the court is set out below.

Plaintiffs' Federal Constitutional Tort...