Konan v. U.S. Postal Serv.

96 F.4th 799

Lebene KONAN, Plaintiff—Appellant, v. UNITED STATES POSTAL SERVICE; Raymond Rojas, also known as Ray;Jason Drake; United States of America, Defendants—Appellees.

No. 23-10179

United States Court of Appeals, Fifth Circuit

FILED March 20, 2024

Appeal from the United States District Court for the Northern District of Texas, USDC No. 3:22-CV-139, Karen Gren Scholer, U.S. District Judge

Robert Clary (argued), Attorney, Murphy, TX, for Plaintiff-Appellant.

Brian Walters Stoltz, U.S. Attorney's Office, Northern District of Texas, William Christopher Admussen (argued), U.S. Attorney's Office, Civil Division, Dallas, TX, for Defendants-Appellees.

Before Wiener, Willett, and Douglas, Circuit Judges.

Dana M. Douglas, Circuit Judge:

Lebene Konan claims that United States Postal Service employees did not deliver her mail for two years in violation of the Federal Tort Claims Act and her equal protection rights. The district court dismissed her claims for lack of subject matter jurisdiction and for failure to state a claim. For the following reasons, we AFFIRM IN PART and REVERSE IN PART.

I

Konan alleges that the United States Postal Service (USPS), and two of its employees, Jason Rojas and Raymond Drake, intentionally withheld and refused to deliver mail to two residences that she owned and leased to individual tenants in Euless, Texas because they did not "like the idea that a black person own[ed]" them.

Konan owns two rental properties, the "Saratoga Residence" and the "Trenton Residence." The mailboxes at the Saratoga Residence are centrally located in a single, metal structure. Each residence is provided with one key to access the mailbox. Konan possessed the key to the Saratoga Residence's mailbox and would daily distribute the mail to each tenant. Konan also received "business mail" at the Saratoga Residence and stayed there from "time to time," but it was not her permanent home.

In May 2020, Rojas allegedly changed the lock on the mailbox at the Saratoga Residence without her permission. According to Konan, Rojas did not change the lock on mailboxes belonging to any other residence owner on his route or refuse to deliver mail to similar multi-family residences owned by white individuals. When Konan went to the Post Office to inquire as to why the lock to her mailbox was changed without notice or consent, she was advised that USPS would not deliver any mail to the Saratoga Residence until its ownership was "investigated by USPS's Inspector General and conclusively established."

USPS delivered no mail to the Saratoga Residence for the next two to three months. When USPS confirmed that Konan owned the property and the Inspector General instructed that mail be delivered to the Saratoga Residence, Rojas and Drake allegedly refused to deliver Konan's or her tenants' mail, instead marking it as undeliverable. As a result, Konan claims that she lost expected rental income when several tenants moved and that she and her remaining tenants did not receive important mail including "doctor's bills, medications, credit card statements, car titles and property tax statements."

The situation continued to escalate. In April 2021, Konan alleges that Rojas stopped delivering mail to her Trenton Residence, because Rojas thought that something "nefarious" was afoot.¹ Konan alleges that Rojas and Drake engaged in this behavior because she is African American, and despite repeatedly advising USPS of this conduct, nothing has been done to correct it. "To this day," Konan alleges that "Rojas and Drake continue to refuse to deliver properly-addressed mail" to both Residences.

Konan asserts common law tort claims against USPS and the United States under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. (FTCA), including nuisance, tortious interference with prospective business relations, conversion, and intentional infliction of emotional distress. She also asserts claims for denial of equal protection of law pursuant to 42 U.S.C. §§ 1981 and 1985 against Rojas and Drake.

USPS and the United States moved to dismiss Konan's complaint for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Rojas and Drake moved to dismiss for failure to state a claim under Rule 12(b)(6).

The district court granted the motions to dismiss, concluding that her FTCA claim failed for lack of subject matter jurisdiction because it was barred by sovereign immunity based on the postal-matter exception under 28 U.S.C. § 2680(b). It likewise determined that Konan had failed to state a viable equal protection claim against Rojas and Drake.

On appeal, Konan concedes that USPS is the appropriate defendant in this FTCA action but disputes whether sovereign immunity shields it from liability.² Konan also challenges the district court's conclusion that she failed to state a valid equal protection claim against Rojas and Drake.

II

We review de novo the application of sovereign immunity. Russell v. Jones, 49 F.4th 507, 512 (5th Cir. 2022); see also Moore v. La. Bd. of Elementary & Secondary Educ., 743 F.3d 959, 962 (5th Cir. 2014). When reviewing a motion to dismiss for failure to state a claim, we apply de novo review and "construe the complaint in the light most favorable to the plaintiffs." Jones v. Admin. of the Tulane Educ. Fund, 51 F.4th 101, 109 (5th Cir. 2022) (internal citation omitted).

III

A. FTCA

This case raises an issue of first impression in our circuit: whether the postal-matter exception to the FTCA's immunity waiver applies to intentional acts. The FTCA authorizes plaintiffs to obtain compensation for the negligent or wrongful acts or omissions of the government and its employees in limited circumstances. It nevertheless contains several exceptions that categorically bar plaintiffs from recovering damages. Block v. N.D. ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983); United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). The postal-matter exception, at issue here, retains sovereign immunity for "[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter." 28 U.S.C.§ 2680(b); Dolan, 546 U.S. at 485, 126 S.Ct. 1252 ("[T]he United States may be liable if postal workers commit torts under local law, but not for claims defined by the [postal-matter] exception.").

But § 2680(b)'s plain language does not shield against all failures to deliver mail; it preserves immunity only in the limited situations outlined by its terms. The district court held that Konan's claims were precluded by sovereign immunity because the claims arose out of a "loss" or "miscarriage." We disagree. This case does not fall into one of those limited situations. As discussed in detail below, there was no "loss" of mail because the mail was not destroyed or misplaced by unintentional action. Dolan v. U.S. Postal Serv., 546 U.S. 481, 487, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006). Likewise, there was no "miscarriage" because there was no attempt at a carriage. Id. Finally, the postal workers' actions were intentional and thus cannot constitute a "negligent transmission." Birnbaum v. United States, 588 F.2d 319, 328 (2d Cir. 1978). We address each in turn.

1. "Loss"

We begin with the definition of loss. To define "loss," USPS points to the definition in Webster's Second New International Dictionary, published in 1942, shortly before the 1946 enactment of the FTCA and the postal-matter exception. WEBSTER'S SECOND NEW INTERNATIONAL DICTIONARY 1460 (1942 ed.). Webster's defines "loss" as the "[a]ct or fact of losing . . . or suffering deprivation . . . unintentional parting with something of value; as, the loss of property" and "that which is lost; of which anything is deprived or from which something is separated, usually unintentionally and to disadvantage." Id. (emphasis omitted). And in Dolan v. United States Postal Service, the Supreme Court defined "loss" as mail that is "destroyed or misplaced" by USPS. 546 U.S. at 487, 126 S.Ct. 1252. Both definitions carry the sense that the loss is unintentional. And they square with the plain meaning of loss—no one intentionally loses something. Here, there are no allegations that Konan's mail was destroyed or that it was misplaced by unintentional action. Instead, the facts present a continued, intentional effort not to deliver Konan's mail over a two-year period. Therefore, Konan's claims cannot be characterized as a "loss," as defined in either the contemporaneous dictionary definition or Dolan.

USPS relies on two circuit cases decided before Dolan to argue that the postal-matter exception applies because there was a "loss." Both are distinguishable. The first is Ruiz v. United States, 160 F.3d 273 (5th Cir. 1998). There, a pro se incarcerated plaintiff argued that prison officials failed to deliver his mail in violation of the FTCA. Id. at 274. Ruiz involved a third-party intermediary in the form of the prison officials, unlike here, where Konan alleges that USPS itself intentionally failed to deliver her mail. Id. Thus, Ruiz is inapposite.

Likewise, Marine Insurance v. United States, 378 F.2d 812 (2d Cir. 1967) is unpersuasive. There, mail stolen in regular transit triggered the postal-matter exception's "loss" provision. Id. at 813. Here, Konan's mail was not stolen in transit. Instead, USPS never transmitted it to her address in the first place. Konan's damages arose from USPS's intentional failure to carry mail to her properties and thus do not constitute a "loss."

2. "Miscarriage"

We next consider whether USPS's actions constitute a "miscarriage." USPS contends that under a plain reading of § 2680(b), the failure to deliver Konan's mail constituted a miscarriage and thus her suit is barred.

To define "miscarriage," USPS looks again to the definition provided in Webster's Second New International Dictionary. Webster's defines "miscarriage" as a "[f]ailure (of something sent) to arrive"...