17-1894-cv
Cheng v. Flushing Main Street Post Office

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 18th day of April, two thousand eighteen.

PRESENT:            JOSÉ A. CABRANES,
                    RAYMOND J. LOHIER, JR.,
                                 Circuit Judges,
                    RICHARD M. BERMAN,
                                 District Judge.*


ZHIMIN CHENG,

                               Plaintiff-Appellant,

                               v.                                    17-1894-cv

FLUSHING MAIN STREET POST OFFICE,
UNITED STATES POSTAL SERVICE,

                               Defendant-Appellee.


FOR PLAINTIFF-APPELLANT:                                  Zhimin Cheng, pro se, Flushing, NY.

FOR DEFENDANT-APPELLEE:                                   Varuni Nelson, Rachel G. Balaban, Sean
                                                          P. Greene, Assistant United States



     *
    Judge Richard M. Berman, of the United States District Court for the Southern District of New
York, sitting by designation.

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                                                             Attorneys, for Bridget M. Rohde, United
                                                             States Attorney for the Eastern District of
                                                             New York, Brooklyn, NY.

       Appeal from a judgment of the United States District Court for the Eastern District of New
York (LaShann DeArcy Hall, Judge).

        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the April 13, 2017 judgment of the District Court be and
hereby is AFFIRMED.

        Plaintiff-appellant Zhimin Cheng, proceeding pro se, appeals from an April 13, 2017
judgment of the District Court dismissing her complaint against defendant-appellee Flushing Main
Street Post Office (“Post Office”) for lack of subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1). Cheng sued the Post Office in the Supreme Court of the State of New York,
County of Queens, alleging that the Post Office failed to timely deliver several letters she sent or
provide return receipts, and seeking $125,000 in damages. The Post Office removed the case to
federal court.

         Construing Cheng’s pro se complaint liberally, the District Court determined that Cheng
brought tort and contract claims against the Post Office. The District Court dismissed the tort claim
because the Federal Tort Claims Act (“FTCA”) expressly states that the statute’s waiver of sovereign
immunity does not apply to “[a]ny claim arising out of the loss, miscarriage, or negligent
transmission of letters or postal matter.” 28 U.S.C. § 2680(b). The District Court dismissed the
contract claim for failure to exhaust administrative remedies. This appeal followed. We assume the
parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on
appeal.

                                            *       *       *

        We review de novo a district court’s dismissal for lack of subject matter jurisdiction. Delgado v.
Quarantillo, 643 F.3d 52, 54 (2d Cir. 2011). We are “free to affirm a district court decision
on any grounds for which there is a record sufficient to permit conclusions of law, even grounds not
relied upon by the district court.” Gmurzynska v. Hutton, 355 F.3d 206, 210 (2d Cir. 2004) (internal
quotation marks omitted). We construe pro se “appellate briefs and submissions liberally and
interpret them to raise the strongest arguments they suggest.” Nowakowski v. New York, 835 F.3d
210, 215 (2d Cir. 2016) (internal quotation marks omitted).

                                            *       *       *

       On appeal, Cheng principally argues that the case should not have been removed to federal
court because she was entitled to a default judgment in state court. We conclude that this argument

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is without merit. The Post Office was statutorily entitled to remove the action to federal court. 39
U.S.C. § 409(a) (“Any action brought in a State court to which the Postal Service is a party may be
removed to the appropriate United States district court under the provisions of chapter 89 of title
28.”). Furthermore, as Cheng admits on appeal, the state court never granted her motion for default
judgment.

           To the extent that Cheng challenges the merits of the District Court’s dismissal of her
claims, we determine that her challenges are unavailing. The District Court correctly concluded that
the FTCA’s waiver of sovereign immunity does not extend to “[a]ny claim arising out of the loss,
miscarriage, or negligent transmission of letters or postal matter.” 28 U.S.C. § 2680(b). And Cheng’s
contract claim fails for the simple reason she does not identify any contract term that was violated.
See, e.g., Gordon v. Curtis, 893 N.Y.S.2d 6, 7 (1st Dep’t 2009).

         One final note: the District Court dismissed the case under Rule 12(b)(1), for lack of subject
matter jurisdiction, rather than under Rule 12(b)(6), for failure to state a claim. The District Court
had jurisdiction, at least over the contract claim. See 39 U.S.C. § 409(a) (“Except as otherwise
provided in this title, the United States district courts shall have original but not exclusive
jurisdiction over all actions brought by or against the Postal Service.”). The District Court
nevertheless correctly dismissed the case, for the merit-based reasons stated above. Accordingly, we
affirm the judgment of the District Court.

                                          CONCLUSION

       We have reviewed all of the arguments raised by Cheng on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the April 13, 2017 judgment of the District
Court.


                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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