                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0596n.06

                                            No. 12-2056

                            UNITED STATES COURT OF APPEALS                                 FILED
                                 FOR THE SIXTH CIRCUIT                                 Jun 24, 2013
                                                                                 DEBORAH S. HUNT, Clerk
ANTHONY JOHNSON,                                   )
                                                   )
       Plaintiff - Appellant,                      )
                                                   )
v.                                                 )     ON APPEAL FROM THE UNITED
                                                   )     STATES DISTRICT COURT FOR THE
UNITED STATES OF AMERICA,                          )     EASTERN DISTRICT OF MICHIGAN
                                                   )
       Defendant - Appellee.                       )


Before: MARTIN and SUTTON, Circuit Judges; ADAMS, District Judge.*

       ADAMS, J. Anthony Johnson appeals the district court's grant of the government's motion

to dismiss for lack of subject-matter jurisdiction based on 28 U.S.C. § 2680(b). In his appeal,

Johnson asserts that the district court erred when it determined that the government has sovereign

immunity for his claim involving items allegedly within a package that were lost while in possession

of the United States Postal Service ("USPS"). For the reasons set forth below, we AFFIRM the

judgment of the district court.

                                      I. Standard of Review

       A district court's decision to dismiss for lack of subject matter jurisdiction is subject to a de

novo standard of review. Howard v. Whitbeck, 382 F.3d 633, 636 (6th Cir. 2004). For the purpose

of detemining whether the district court has subject matter jurisdiction over Johnson's claim, this
*
  The Honorable John R. Adams, United States District Judge for the Northern District of Ohio,
sitting by designation.

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Court takes the material allegations in the complaint as true and construes them in a light most

favorable to the non-moving party, Johnson. Ludwig v. Board of Trustees of Ferris State Univ., 123

F.3d 404, 408 (6th Cir. 1997).

                                        II. Background

       For the purpose of this appeal, the Court accepts the following facts as true. In July, 2009,

Johnson had a guest staying at his home in Detroit, Michigan. While there and without Johnson's

consent, the guest took items from Johnson's home, placed the items in two boxes, and mailed the

packages to her home in California. Upon learning of the theft, Johnson notified the USPS, which

then intercepted the packages before they were delivered. After being intercepted, one of the

packages alerted a drug-sniffing dog. The contents of that package were forfeited to the government

and were the subject of a separate case. The second intercepted package was also searched and held

by the USPS. Johnson has requested that the USPS return to him the items contained in that

package. Johnson states that the package contained the following personal property, excluding cash:

       !       (1) Rolex watch with diamonds (approx. $29,000.00)

       !       (1) White gold ring (approx. $10,000.00)

       !       (1) 10 karat gold chain with diamond cross (app. $25,000.00)

       !       (1) 14 karat gold chain with diamond cross (app. $18,000.00)

       !       (1) Men's 18 karat oyster professional date and time Rolex watch ($29,000.00)

       !       (1) Men's diamond and white gold ring ($10,000.00)

       !       (1) Men's 10 karat fancy link chain [with] gold and diamond cross ($25,000.00)

       !       (1) Men's 14 karat fancy link chain [with] gold and diamond cross ($18,000.00)

       !       (1) 1938 Joe DiMaggio card in mint condition (+$25,000.00)


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       !         (1) 1951 Mickey Mantle card ($25,000.00)

       !         (1) 1952 Mickey Mantle card, signed and in mint condition ($50,000.00)

       !         (1) 1967 Hank Aaron card, signed and in mint condition ($15,000.00)

       !         (1) 1952 Cookie Lavagetto card ($50,000.00)

The USPS states that although it intercepted a package, the above listed items were not in the

package. Johnson seeks damages in the amount of $329,000 together with interest, costs and

attorney fees.

                                      III. Law and Analysis

       "Under well-established and familiar principles of sovereign immunity, the United States may

not be sued without its consent, and the terms of this consent define the jurisdiction of the courts to

entertain a suit against the Government." Stocker v. United States, 705 F.3d 225, 230 (6th Cir. 2013)

(citing United States v. Testan, 424 U.S. 392, 399 (1976)). As an independent establishment of the

executive branch, the USPS enjoys federal sovereign immunity absent a waiver. Dolan v. United

States Postal Service, 546 U.S. 481, 483-484 (2006). There is no dispute that the Federal Tort

Claims Act ("FTCA") provides the USPS a limited waiver of sovereign immunity in tort. The

question, therefore, is whether 28 U.S.C. § 2680, which sets forth exceptions to the FTCA's waiver,

applies to Johnson's claim.

       Section 2680, in pertinent part, states that the FTCA'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." Johnson argues that § 2680 does not apply for several reasons: 1) the government

admits that it is in the possession of the package that Johnson claims contained the missing items,

andtherefore it is not lost; 2) the items were lost after the USPS intercepted them, not during the


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transmission of the package; 3) the package is not "letters or postal matter" since the items shipped

were stolen and placed in the mail without Johnson's consent; and 4) Dolan limits the exception to

claims for which insurance is available and Johnson could not have insured against the alleged loss

of his property.

        Here, Johnson claims that the government has possession of the mailed packages and that

certain contents of the packages are no longer present. Assuming that the items were, in fact, in the

package when mailed, the particular items went missing while the package was in the possession of

the USPS. Although the USPS is in possession of the package, it is not in possession of certain items

that had allegedly been inside the package. Johnson claims that these items were lost "due to the

negligent acts or omissions of USPS employees while acting in the scope of their employment." R-1,

¶ 13. Johnson claims that items were given to the USPS for delivery and that at some point those

items went missing. If the items were found in the package, they would not be lost, and Johnson

would have no claim. Accordingly, the Court finds that the § 2680(b) exception applies when

contents of a package are lost, but the entire package itself is not.

        Johnson argues that because the items were lost after the package was intercepted, it was no

longer in the possession of the USPS for "delivery,"and, therefore, § 2680(b) does not apply. We

disagree. Even accepting as true Johnson's allegation that the items were lost after the package had

been intercepted by the USPS, there is no language in § 2680(b) that suggests it applies only when

items are lost during the transmission, or delivery, of the mail. In fact, the text of § 2680(b) creates

an exception for claims arising out of any "loss...of letters or postal matter[.]" The fact is that the

items were allegedly placed in the possession of the USPS and lost during the performance of its

governmental duties. We see no reason to arbitrarily limit § 2680(b) to letters or postal matter lost


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during its straight-line delivery from point A to point B. Moreover, from the Court's perspective,

the immunity is intended to apply to all functions associated with delivery of the mail. As Dolan

explained, delivery of the mail includes an array of governmental powers such as "the power of

eminent domain, the authority to make searches and seizures in the enforcement of laws protecting

the mails, the authority to promulgate postal regulations, and, subject to the Secretary of State's

supervision, the power to enter international postal agreements." 546 U.S. at 484. Accordingly, the

fact that Johnson's alleged claim arises out of the performance of the USPS's authority to perform

a search and seizure of the mail falls squarely within the exception of § 2680(b).

       Johnson further argues that the exception does not apply because the items were mailed

without his permission. The Court finds that an item given to the USPS to be mailed is a "letter or

postal matter" for the purpose of § 2680, regardless of whether the person mailing the item did so

without the authority of the item's owner. See Georgacarakos v. United States, 420 F.3d 1185 (10th

Cir. 2005) ("Once mailed, the books and manuscript became 'postal matter' within the meaning of

§ 2680(b)" despite the books and manuscript being mailed without permission from the owner.).

Section 2680(b) does not distinguish between a "customer" and a "non-customer." The focus is on

the item being shipped, not the person shipping it. Thus, Johnson's claim arises out of the loss of

postal matter, and the § 2680(b) exception applies.

       The Court also rejects Johnson's argument that Dolan limits the § 2680(b) exception to

claims for which insurance is available. Johnson alleges that the missing items were stolen from him

and shipped by the thief without his permission. Because he did not consent to the items being

placed in the mail, or mail the items himself, Johnson did not have an opportunity to insure the items

against loss or damage. Johnson argues that because he did not have the opportunity to insure the


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items against loss, § 2860(b) does not bar his claim. Nothing in Dolan hints that the inability to gain

insurance impacts the scope of immunity. In fact Dolan recognizes that the losses are only "to some

degree avoidable[.]" 546 U.S. at 482. Moreover, as explained above, the identity of the person who

mailed the package does not control whether § 2680(b) applies. As such, the Court declines to limit

the exception by arbitrarily imposing an insurability analysis.

                                          IV. Conclusion

       For the reasons stated above, the judgment of the district court is AFFIRMED.




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