MB Financial Group, Inc. v. United State Postal Service

Opinion by Judge SCHROEDER; Dissent by Judge TALLMAN.

SCHROEDER, Circuit Judge:

This is an unusual case involving the potential liability of the United States Postal Service (“USPS”) for failing to make available a post office box it was obligated to provide for receipt of plaintiffs business mail. The district court dismissed the complaint pursuant to Federal Rule of Civil Procedure 12 for lack of jurisdiction and failure to state a claim, holding that the USPS was immune under the provision of the Federal Tort Claims Act (“FTCA”) that exempts the USPS from liability arising from negligently transmitted mail. See 28 U.S.C. § 2680(b).

We reverse. The complaint alleges a tort that does not necessarily arise out of the negligent transmission of mail. The complaint also alleges a facially viable breach of contract claim. The dismissal of the action at this preliminary stage, before any discovery could reveal either the USPS records of the transaction or the true nature of the parties’ understanding, was erroneous.

I. Background

MB Financial Group, Inc. (“MB Financial”) sells mail order mortgage loans to members of labor unions in the San Diego area. Its business depends on receiving mailed-in responses to its solicitations. It rented a post office box in a USPS branch office in San Diego and paid for six months of usage. The USPS, admittedly through its own fault, did not make the box available for the full six months. MB Financial alleges that, as a result, it lost hundreds of thousands of dollars worth of business.

MB Financial, according to its complaint, rented the box on June 30, 2004, and paid fifty dollars as a six month rental fee. Some time later that year, one of its representatives contacted the USPS branch office to complain about not receiving mail. In a letter dated January 3, 2005, which was attached to the complaint, the USPS apologized and acknowledged that it “may have been at fault” for the “premature closure of [the] PO Box” due to “improper handling of fees.”

MB Financial filed this action against the USPS and the United States in federal district court in April 2006, alleging two claims for relief. The first was a negligence claim under the FTCA, 28 U.S.C. § 2671 et seq., alleging that the USPS negligently denied MB Financial use of the post office box for which MB Financial had paid rental fees. The second was a claim for breach of contract, alleging that the USPS failed to credit MB Financial’s payment, and wrongfully failed to make the box available for plaintiffs use. The complaint prayed for damages of $263,092.05, representing the alleged profits lost as a result of MB Financial’s not receiving responses to its direct mail solicitations of prospective customers.

The defendants moved to dismiss the action and the district court granted the motion. The district court held that § 2680(b) barred relief on the tort claim on the ground that it was essentially a claim for negligent mail transmission. The court said, quoting the complaint, that the essence of Plaintiffs claim is that it did not receive its mailed-in responses to its direct mail solicitations due to the defendants’ negligence. The district court held that § 2680(b) barred relief on the breach of contract claim as well because it was “based on the same facts as [the] negligence claim.” As an alternative ground, the district court held that the Postal Reorganization Act of 1971 (“PRA”), 39 U.S.C. § 401(1), did not provide subject matter jurisdiction over the contract claim. Specifically, the Act’s “sue and be sued” clause did not provide any “substantive basis for a claim against the Postal Service.” Because the district court dismissed the action on the pleadings, the parties never engaged in any discovery. This appeal followed.

II. Statutory Background

Since its founding, the Postal Service has been reorganized at various times. U.S. Postal Serv. v. Flamingo Indus. (USA) Ltd., 540 U.S. 736, 739-40, 124 S.Ct. 1321, 158 L.Ed.2d 19 (2004). In 1970 Congress passed the PRA, which created the structure of the modern postal service. Id. The PRA makes the USPS an “independent establishment of the executive branch of the Government of the United States.” 39 U.S.C. § 201. As such, the USPS enjoys sovereign immunity absent a waiver. Flamingo Indus., 540 U.S. at 744, 124 S.Ct. 1321.

Congress has provided for such a waiver. The PRA waives the immunity of the USPS by giving it the power “to sue and be sued in its official name.” 39 U.S.C. § 401(1); see also Flamingo Indus., 540 U.S. at 741, 124 S.Ct. 1321. The PRA also provides that the FTCA “shall apply to tort claims arising out of the activities of the Postal Service.” 39 U.S.C. § 409(c). The FTCA, in turn, provides a general waiver of sovereign immunity subject to specific exceptions. The FTCA gives federal courts exclusive jurisdiction to hear

civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, 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, in § 2680, qualifies this broad waiver by retaining sovereign immunity for thirteen categories of claims. One of those categories, described in § 2680(b), pertains to the operations of the USPS and is at issue in this suit. Section 2680(b) provides that the waiver of sovereign immunity in § 1346(b) “shall not apply to ... [a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.” The issue here is thus whether wrongful failure to provide a box at the Post Office arises out of the “negligent transmission” of the mail.

III. Analysis

A. The Tort Claim

The district court held that the USPS liability exception for negligent mail transmission barred MB Financial’s tort claim. MB Financial argues on appeal that § 2680(b) does not bar recovery because its claim does not arise out of mail “transmission,” but from failure to process properly the fee that would make the P.O. box available. The Postal Service counters that § 2680(b) does bar relief because the harm suffered by MB Financial was the nondelivery of mail.

There is scant authority interpreting this exception. The only Supreme Court case applying it is Dolan v. U.S. Postal Service, 546 U.S. 481, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006). Both sides argue that case controls, although they differ as to the result it requires. No federal court of appeals has interpreted § 2680(b) in a published opinion after Dolan.

In Dolan, the plaintiff sued the USPS for injuries she suffered when she tripped and fell over mail parcels left on her porch by postal employees. 546 U.S. at 483, 126 S.Ct. 1252. The district court and the court of appeals both concluded that the postal service exception barred her claim, because the negligent placement of the parcels was part of the transmission of mail. Id. at 483, 486, 126 S.Ct. 1252. The Supreme Court reversed, id. at 492, 126 S.Ct. 1252, construing the exception more narrowly.

The Court explained that, “in isolation, the phrase ‘negligent transmission’ [in § 2680(b)] could embrace a wide range of negligent acts committed by the Postal Service in the course of delivering mail, including creation of slip-and-fall hazards from leaving packets and parcels on the porch of a residence.” Id. at 486, 126 S.Ct. 1252. Such a reading, however, would sweep too far. The Court said, “context and precedent require a narrower reading.” Id.

As precedent, the Supreme Court looked to Kosak v. United States, 465 U.S. 848, 104 S.Ct. 1519, 79 L.Ed.2d 860 (1984), interpreting another FTCA tort liability exception, involving claims for the detention of property by customs officials. In Kosak, the Supreme Court had compared the customs service exception in § 2680(c) with the postal service exception in § 2680(b), concluding that the postal exception was narrower and more specific. Dolan, 546 U.S. at 487, 126 S.Ct. 1252 (citing Kosak, 465 U.S. at 855, 104 S.Ct. 1519). The Court in Kosak had looked to the history of the FTCA and the problems Congress had tried to resolve with the statute, particularly with respect to post office drivers. The Kosak Court had observed that “ ‘[o]ne of the principal purposes of the Federal Tort Claims Act was to waive the Government’s immunity from liability for injuries resulting from auto accidents in which employees of the Postal System were at fault.’ ” Id. at 487-88, 126 S.Ct. 1252 (quoting Kosak, 465 U.S. at 855, 104 S.Ct. 1519). In light of this purpose, the Supreme Court said in Dolan that it could not interpret the phrase “negligent transmission” in § 2680(b) as broadly as the USPS wished so as to cover all negligent acts that occur in the course of mail delivery. Id. at 488. The Dolan court explained: “Although postal trucks may well be delivering — and thus transmitting — mail when they collide with other vehicles, Kosak indicates the United States, nonetheless, retains no immunity.” Id. The negligence was in truck driving, not in mail transmission, so there was no immunity. On the basis of this analysis, the Supreme Court held that § 2680(b) did not bar the plaintiffs claim that negligent placement of mail at her home resulted in her personal injuries. Id. at 492, 126 S.Ct. 1252. Instead, her claim fell within the overarching principle of the FTCA that the government should be liable for the negligence of its employees in the same manner that private entities would be liable in similar circumstances. See id.

Dolan may also be read as distinguishing between the historically governmental service of carrying the United States mail and the performance of acts that may be related to delivery, but constitute more ordinary activities that private actors engage in as well. Hence, negligent driving of postal trucks was a principle activity for which Congress wanted to create liability when the FTCA waived sovereign immunity. The FTCA made the USPS liable for negligence of its drivers in the same manner that state law makes private employers liable for the negligence of their truck driver employees. See Restatement (Third) of Agency § 2.04. Construing the exception broadly, so as to cover delivery as well as transmission of the mail, would have immunized the negligence of drivers and frustrated the legislative purpose of the FTCA. The exception would have swallowed the rule.

The Supreme Court in Dolan quoted with approval an earlier decision of the Second Circuit in Raila v. United States, 355 F.3d 118 (2d Cir.2004). See Dolan, 546 U.S. at 486, 126 S.Ct. 1252. The Second Circuit had held that the Postal Service exception of § 2680(b) did not immunize the government from liability for a slip-and-fall caused by mail negligently left at the plaintiffs residence. Id. at 119. The court had observed that it was interpreting the postal service exception more narrowly than the language of the exception might suggest. Id. at 119, 120-21. As the Second Circuit had explained, the phrase “negligent transmission” in § 2680(b) could be read to encompass every negligent action taken by a postal worker “[bjecause a postal worker’s every step is, on some level, taken as part of the transmission of letters and postal matter— that being the business of the USPS.” Id. at 120 (internal alterations and quotation marks omitted). The court of appeals rejected this reading, concluding that Congress intended the language to be interpreted more narrowly. Id. The Supreme Court approved this analysis. See Dolan, 546 U.S. at 486, 126 S.Ct. 1252.

The Court in Dolan also approved the Second Circuit’s reasoning that focused on whether the plaintiff could insure against the harm of which she complained. See id. at 490,126 S.Ct. 1252. The Second Circuit had stated in Raila that “where the nature of the injury was such that an injured party [cannot] protect himself or herself by registering the parcel, the postal matter exception [does] not apply.” 355 F.3d at 122. The Second Circuit had explained that it is easier and more efficient to encourage the purchase of insurance, rather than encourage litigation to protect against the unavoidable mishaps that are incident to the USPS’ ordinary function of mail delivery. Id. However, where insurance was available to compensate the plaintiff for her loss, the Postal Service exception was not available to the USPS as a shield. Id. The sender’s registration of the packages could not have compensated for the plaintiffs tripping over them.

In this case, the alleged negligence was not in transmitting the mail to the proper place of delivery. Rather, it was in the admittedly improper handling of MB Financial’s payment for its post office box, due to the failure to process the renewal. The negligence occurred after the mail was transmitted to the Post Office, and in this sense is similar to the negligence of the postal delivery employees in Dolan who did not put the boxes in an appropriate place after they had been delivered to the right address. The policy of the FTCA supports the principle that the USPS should be liable on the same basis that a private provider of mail box services would be liable under state law for failing to exercise reasonable care to see that the box remained open to receive responses to MB Financial’s solicitations.

Furthermore, like Dolan and Raila, the plaintiffs losses are not compensable through insurance. Cf. Dolan, 546 U.S. at 490, 126 S.Ct. 1252 (“[L]osses of the type for which immunity is retained under § 2680(b) are at least to some degree avoidable or compensable through postal registration and insurance.”). The USPS conceded that MB Financial could not have purchased insurance to protect itself against the harm of which it complains. The complaint alleged that, as a result of negligence in record keeping, the plaintiff did not receive responses to its direct mail solicitations.

We stress that in holding the complaint states a claim for which the Postal Service is not immune, we are not holding that it is liable. The actual conduct of the postal employees is not yet known, beyond the admissions in the USPS’s apology, which was attached in the complaint, for “delay or loss of mail due to improper handling of fees.” Because this was a dismissal on the pleadings, however, we do not know the contours of the obligation or the duty the defendants owed the plaintiff. For example, we do not know if the plaintiff acknowledged any limitations on the liability of the post office. We do not know what, if any, representations were made to the plaintiff regarding the availability of the box and the duration of its access. We hold only that the allegations of the complaint indicate that the negligence did not arise out of the transmission of the mail within the meaning of § 2680(b), as construed in Dolan.

B. The Contract Claim

With respect to the contract claim, the district court held that because it was based on the same facts as the tort claim, the contract claim was also barred by § 2680(b). Since we hold that the tort claim is not barred by § 2680(b), the contract claim is also not barred.

The district court correctly noted that a plaintiff is generally entitled to plead alternative or multiple theories of recovery on the basis of the same conduct on the part of the defendant. See Fed.R.Civ.P. 8(d)(2) (“A party may set out [two] or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones.”); Ajax Hardware Mfg. Corp. v. Indus. Plants Corp., 569 F.2d 181, 185 (2d Cir.1977) (“Negligent performance of a contract may give rise to a claim sounding in tort as well as one for breach of contract.”)

The claims in this case arise out of the same situation but do not necessarily rest on the same facts. The tort claim seeks damages that resulted from the USPS’s alleged negligent record keeping that closed the box to MB Financial’s mail. The contract claim alleges that the post office breached an express agreement to provide a six-month rental of a post office box in exchange for MB Financial’s payment of the fee. Again, because the case was dismissed at the pleading stage we do not know the precise contours of that agreement.

The district court correctly recognized that the “sue and be sued” provision of the PRA does not create a cause of action against the USPS. It is merely waiver of sovereign immunity. See Flamingo, 540 U.S. at 743-44, 124 S.Ct. 1321. Here, the tort claim is asserted pursuant to the FTCA as it has been incorporated in the PRA. The contract claim rests on the alleged contractual agreement of the parties and common law principles of contract law. See Kerin v. U.S. Postal Serv., 116 F.3d 988, 990-91 (2nd Cir.1997). A substantive law foundation thus exists for both of MB Financial’s claims as alleged in the complaint.

REVERSED.