United States District Court, N.D. California
March 1, 2004.
NASIRA ABDUL-ALEEM, Plaintiff,
UNITED STATES POSTAL SERVICE, ET AL., Defendants
The opinion of the court was delivered by: JAMES LARSON, Magistrate Judge
Before the Court is the motion by Defendant United States Postal
Service ("Postal Service") to dismiss the complaint of Plaintiff Nasira
Abdul-Aleem. Plaintiff appeared pro se. Special Assistant U.S. Attorney
Katherine Dowling appeared for the Postal Service. Both parties consented
to this Court's jurisdiction as required by 28 U.S.C. § 636(c).
The Court considered the written pleadings and the arguments of the
parties and hereby grants the motion to dismiss. Plaintiff asserts a
claim for lost mail, when in fact she accidentally dropped her bank
deposit into the mailbox in an envelope without postage. Plaintiff's
deposit into the mailbox was not mail. The Postal Service as a matter
cannot be found liable for her loss since it had no duty of care
under state or federal law regarding non-mail.
On Saturday May 24, 2003, Plaintiff placed several pieces of mail into
a public mail box at the corner of Dwight and Shattuck Avenues in
Berkeley and then realized that she had inadvertently included with the
mail an envelope containing a bank deposit for $180 in cash. The cash was
in an envelope marked with her name, address and telephone number, but no
postage. Plaintiff concedes that "there was no question that it was
not a piece of mail." (Plaintiff's pleading filed September 25,
2003). This occurred at 6:30 p.m., after the last daily pick-up. She
examined the mailbox and read the posted time for the next pick-up, which
was 11:00 a.m. on Tuesday, since Monday was Memorial Day and there was
no time listed for a Sunday or holiday pick-up time.
She arrived at the mailbox at 10:55 a.m. on Tuesday and waited until
after the time had passed but no one came to pick up the mail. She then
contacted the Berkeley Post Office and was told that the mail had already
been picked up earlier as the Postal Service was on a holiday schedule
that day. She asked why this wasn't on the label on the box and the clerk
told her that the label was going to be updated. She checked back a few
months later but the label had not been updated.
She tried to contact the individual letter carrier, the supervisor and
any number of employees of the Postal Service on several occasions to
attempt to trace her deposit envelope. She was unable to receive any
information on the whereabouts of the mail from that particular mail box,
even after checking with the lost and found.
At the hearing before this Court on October 15, 2003, Plaintiff
admitted that she had no verifiable record of the deposit; it was all
cash, with no checks and she did not have a copy of the deposit slip.
(Reporter's Transcript at 7:18-24).
Plaintiff filed suit on August 5, 2003 in Alameda County Small Claims
Court, requesting a total of $280; $180 for the return of her money and
$100 for "trouble
recouping my money." (Ex. A to Notice of Removal). Defendant
removed the case to this Court on September 3, 2003. The procedural
defect of Plaintiffs failure to file an administrative claim was cured.
She filed her claim, which was denied by the Postal Service; and she then
re-filed her complaint in this Court and served the United States.
The Postal Service moves for dismissal for lack of subject matter
jurisdiction, that Plaintiff failed to serve the United States and that
there is no cause of action under the Federal Tort Claims Act,
28 U.S.C. § 2672 et seq. ("FTCA") for lost mail. The Government, as the
sovereign, is immune from suit except as it consents to be sued, and the
Postal Service does not consent to be sued for lost mail, unless the
claimant first files an administrative claim, as required by
28 U.S.C. § 2675(a).
Plaintiff in the case at bar initially failed to file her claim with
the Postal Service, as required by the FTCA. The Court then permitted her
to do so, her claim was denied by the Postal Service, and she re-filed
her complaint, all within the statutory time frame.
Defendant also contends that Plaintiff sued the wrong party, by suing
the Postal Service, when only the United States is the proper defendant
in a suit brought under the FTCA. 28 U.S.C. § 1346(b), 2679(a).
This defect was also cured, after Plaintiff re-filed her complaint.
There is no cause of action under the FTCA for lost
Generally the United States has sovereign immunity from being sued
except as it consents to be sued. Lehman v. Nakshian,
453 U.S. 156
, 160 (1981). The Postal Reorganization Act of 1970,
39 U.S.C. § 401(1) authorizes the Postal Service to sue or be sued in its
official name. This provision does not amount to consent to all types of
lawsuits, however. Section 409(c) of Title 39 restricts tort claims to those
which may be brought under the Federal Tort Claims Act,
28 U.S.C. § 1346(b). Loeffler v. Frank, 486 U.S. 549
at 557 n. 4 (1988);
Insurance Co. of North America v. United States Postal Service,
675 F.2d 756
, 758 (5th Cir. 1982). Under 28 U.S.C. § 2680(b), no
claim may be brought under the
Federal Tort Claims Act which arises from the "loss, miscarriage,
or negligent transmission of letters or postal matter."
Even if Plaintiff's envelope had been stolen by someone who broke into
the mailbox, the Postal Service could not be liable. The Ninth Circuit
has held that a tort claim against the Postal Service for loss of a
package during the robbery of a postal carrier was barred by sovereign
immunity. Anderson v. U.S. Postal Service, 761 F.2d 527 (9th
If Plaintiff had sent her cash deposit through the mail, she couldn't
sue the Postal Service for her loss. Insurance Co. of North America
v. U.S. Postal Service, 675 F.2d 756 (5th Cir. 1982) (holding that
since subsec. (b) of this section retained sovereign immunity with
respect to claims of negligent handling of the mails, a suit by an
insurer against the Postal Service seeking to recover on a negligence
theory for a lost bag of currency sent by registered mail was barred by
The Postal Service has no duty to safeguard
The duty of care in an FTCA case is determined by reference to state
law; in this case, California law. Cameron v. Janssen Bros.
Nurseries, Ltd., 7 F.3d 821
, 825 (9th Cir. 1993). The Postal Service
may be liable under the FTCA for violation of its own regulations if the
violation gives rise to a duty under state law. Mines v. U.S.,
60 F.3d 1442
, 1449 (9th Cir. 1995) (In suit for death of wife and child
in accident caused by intoxicated trucker contracted to carry mail, court
held that Postal Service had a duty under its own regulations to screen
drivers for violations related to alcohol, leading to potential liability
However, there are no regulations which require the Postal Service to
take responsibility for any object dropped into a mailbox. In fact, the
depositor may be liable, for example, for placing a dangerous object or
substance into a mailbox.18 U.S.C.A. § 1716.
Plaintiffs bank deposit envelope does not constitute mail. It carried
no postage and she did not intend to mail it. She dropped it into the
mailbox accidentally with mail. If something that is not mail is dropped
inadvertently into a mailbox, is the Postal Service
liable for the subsequent theft or loss of the item? Unfortunately
for Plaintiff, the answer is "No." Even though she appears to have taken
every step to recover the envelope, she was unsuccessful. The failure of
the Postal Service to be more helpful, alas, does not create a cause of
Conclusion and Order
In the case at bar, Plaintiff did not entrust her envelope to the
Postal Service for delivery, she accidentally dropped it into a mailbox.
No duty is created on the part of the Postal Service for the security of
envelopes or packages which are not consigned to it for mailing.
This Court also considered the broader policy ramifications of
permitting a suit like Plaintiff's to proceed. While the Court does not
doubt plaintiff's bona fides, anyone could claim without corroboration
that she dropped an envelope containing a diamond necklace into a
mailbox; a cashier's check for one million dollars; a winning lottery
ticket. Would or should the Postal Service become responsible for the
safety of these items? In other words, does the corner mailbox become a
public safe deposit box?
For all the above reasons including sovereign immunity and
failure to state a claim under either state or federal law
Plaintiff's complaint unfortunately must be dismissed with prejudice.
IT IS SO ORDERED. The clerk shall close the file.
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