Najbar v. The United States, Case No. 09-CV-3143 (PJS/RLE).
| Decision Date | 16 July 2010 |
| Docket Number | Case No. 09-CV-3143 (PJS/RLE). |
| Citation | 723 F.Supp.2d 1132 |
| Parties | Joan NAJBAR, Plaintiff, v. The UNITED STATES, Defendant. |
| Court | U.S. District Court — District of Minnesota |
OPINION TEXT STARTS HERE
Jeff H. Eckland, Mark J. Blando, Timothy M. Connelly, and Kate H. Kennedy, Eckland & Blando LLP, for plaintiff.
Mary Jo Madigan, United States Attorney's Office, for defendant.
AMENDED ORDER GRANTING MOTION TO DISMISS
Plaintiff Joan Najbar contends that the federal government committed various state-law torts when a letter that she sent to her son while he was serving in the United States Army in Iraq was returned to her stamped “deceased” even though her son was, in fact, alive. The government moves to dismiss under Fed.R.Civ.P. 12(b)(1) for lack of subject-matter jurisdiction. For the reasons that follow, the Court grants the motion and dismisses the case.
According to Najbar's complaint (which the Court takes as true for purposes of ruling on the government's motion), Najbar's son served in the United States Army in Iraq in 2006 and 2007. In September 2006, Najbar sent him a letter via the United States Postal Service. A few weeks later, the letter was returned to her by the Postal Service, and the word “DECEASED” (in all capital letters) was stamped in red ink on the envelope. Compl. ¶¶ 5-7.
Until she received the letter, Najbar had no reason to believe that her son had died. She became very upset upon receiving the letter and reading the “deceased” stamp. After failing to get information from the Postal Service about the letter, she soon learned from the Red Cross that her son was still alive. Id. ¶¶ 10-11, 14-16.
Najbar was already under the care of a psychiatrist when she received the letter. Id. ¶ 12. After she received the letter, though, Najbar's psychological problems got worse. Id. ¶ 13. Subsequently, she suffered emotional distress with accompanying physical manifestations, sought medical treatment for her condition, and lost income. Id. ¶¶ 18, 26.
Najbar filed an administrative claim for compensation with the Postal Service. The Postal Service denied the claim both initially and on request for reconsideration. Id. ¶¶ 20, 24. Najbar then brought this suit against the federal government. She asserts state-law claims that her complaint denominates as “intentional infliction of emotional distress,” “negligence,” “negligent infliction of emotional distress,” and “negligence per se.” Compl. Counts 1-4.
The appropriate standard for review of a Rule 12(b)(1) motion depends on the nature of the motion. When a defendant challenges the factual basis of the court's subject-matter jurisdiction-that is, when the defendant alleges that under the facts as they actually exist the court does not have subject-matter jurisdiction-the court may take evidence and decide any disputed issues of fact that relate to the existence of subject-matter jurisdiction. See Osborn v. United States, 918 F.2d 724, 729 n. 6 & 730 (8th Cir.1990). But when a defendant makes a so-called “facial attack” under Rule 12(b)(1)-that is, when the defendant argues that under the facts as they are alleged in the complaint the court does not have subject-matter jurisdiction-the court treats the factual allegations in the complaint as true and determines whether those allegations are sufficient to establish subject-matter jurisdiction. Id. at 729 n. 6 (internal quotation marks omitted); see also Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.1980).
In this case, the government brings a facial challenge to subject-matter jurisdiction. The Court therefore considers whether, as a matter of law, the Court would have subject-matter jurisdiction if all of the factual allegations in Najbar's complaint were true. Cf. Bear Medicine v. United States, 241 F.3d 1208, 1213 (9th Cir.2001) ().
Najbar brings four state-law tort claims against the United States and seeks damages for physical and emotional distress, medical expenses, and lost income. State-law tort claims against the federal government are generally permitted under the Federal Tort Claims Act (“FTCA”), which provides subject-matter jurisdiction over
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). The FTCA thus waives, in part, the federal government's sovereign immunity, which would otherwise prohibit state-law tort suits against the federal government. See United States v. Dalm, 494 U.S. 596, 608, 110 S.Ct. 1361, 108 L.Ed.2d 548 (1990) ().
As noted, the FTCA does not entirely waive the federal government's sovereign immunity. Specifically, 28 U.S.C. § 2680 carves out various types of claims from the FTCA's sovereign-immunity waiver and effectively deprives district courts of jurisdiction over those carved-out claims. Two subsections of § 2680 are relevant to this case. First, subsection (b) forecloses “[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.” 28 U.S.C. § 2680(b). Second, subsection (h) forecloses “[a]ny claim arising out of ... misrepresentation....” 28 U.S.C. § 2680(h).
The government contends that Najbar's claims fall within both of these exceptions and that, as a result, the Court lacks subject-matter jurisdiction. The Court disagrees with respect to the postal-matter exception (subsection (b)), but agrees with respect to the misrepresentation exception (subsection (h)).
Najbar's claims stem from the return to her by the United States Postal Service of a letter that she had sent her son-a letter that, when it was returned, bore a stamp saying “deceased.” According to the government, § 2680(b) applies because Najbar essentially asserts that the letter was “damaged or mishandled.” Def. Reply Mem. at 2 [Docket No. 11].
Section 2680(b) does not actually use the words “damaged” or “mishandled.” Rather, the statute precludes claims arising from three causes: the “loss” of mail, the “miscarriage” of mail, and the “negligent transmission” of mail. 28 U.S.C. § 2680(b). The Supreme Court interpreted this very language in Dolan v. United States Postal Service, 546 U.S. 481, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006).
The plaintiff in Dolan sued the Postal Service for injuries she received when she tripped over a package that had been left on her front porch. Id. at 483, 126 S.Ct. 1252. Dolan rejected the government's argument that the plaintiff's claim arose from negligent transmission of the mail and was therefore barred under § 2680(b). Id. at 486-87, 126 S.Ct. 1252. Dolan noted that “[i]f considered in isolation, the phrase ‘negligent transmission’ could embrace a wide range of negligent acts committed by the Postal Service in the course of delivering mail,” including the kind of acts alleged by the plaintiff. Id. at 486, 126 S.Ct. 1252. But Dolan embraced a “narrower reading” of the statutory language and held that “ ‘negligent transmission’ does not go beyond negligence causing mail to be lost or to arrive late, in damaged condition, or at the wrong address.” Id. Dolan also explained that the words “lost” and “miscarried” have their ordinary meaning: “mail is ‘lost’ if it is destroyed or misplaced and ‘miscarried’ if it goes to the wrong address.” Id. at 487, 126 S.Ct. 1252.
Najbar's letter was not lost, nor was it miscarried. (If the “deceased” stamp had been accurate, the Postal Service's delivery would have likewise been accurate). And given Dolan's discussion of “negligent transmission,” the Court finds that the “deceased” stamp on the letter is not the kind of “damage” to postal matter that qualifies as “negligent transmission.” Dolan described § 2680(b) as reaching harms of the sort “primarily identified with the Postal Service's function of transporting mail throughout the United States,” and offered the “shattering of shipped china” as an example of a claim arising from the delivery of mail “in damaged condition....” Id. at 489, 126 S.Ct. 1252. When, as in this case, a claim is based not on damage to the contents of an envelope or package but only to markings on the exterior of the envelope or package, the claim does not arise from the “negligent transmission” of mail and does not fall within § 2680(b). Cf. Barbieri v. Hartsdale Post Office, 856 F.Supp. 817, 818 (S.D.N.Y.1994) ().
The government also argues that Najbar's claims are barred by 28 U.S.C. § 2680(h), which precludes claims “arising out of ... misrepresentation....” 28 U.S.C. § 2680(h). The government's argument is straightforward: Najbar alleges that she suffered damages when the government, by returning her letter stamped “deceased,” effectively-and inaccurately-told her, “Your son has died.” To say that a person is dead when the person is alive is to make a misrepresentation, and thus (says the government) Najbar's claims fall within § 2680(h).
Najbar makes two arguments in response. First, Najbar denies that her claim arises out of a misrepresentation in any sense of the word. Rather, says Najbar, her claim is based on “actionable negligence [that] occurred at an operational level before the envelope was stamped ‘DECEASED.’ ” Pl. Mem. Opp. Mot Dism. at 14 [Docket...
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