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United States District Court, N.D. California

March 1, 2004.


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 of law Page 2 cannot be found liable for her loss since it had no duty of care under state or federal law regarding non-mail.

  Factual Background

  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).

  Procedural History

  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 Page 3 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 mail.
  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 Page 4 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 Cir. 1985).

  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 sovereign immunity.)


The Postal Service has no duty to safeguard non-mail
  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 under FTCA).

  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 Page 5 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 action.

  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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