                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


                                                  )
ANTONIO COLBERT,                                  )
                                                  )
       Plaintiff,                                 )
                                                  )
               v.                                 )                  Civil Action No. 11-666 (JDB)
                                                  )
UNITED STATES POSTAL SERVICE,                     )
                                                  )
       Defendant.                                 )
                                                  )

                                  MEMORANDUM OPINION

I.     Introduction.

       Plaintiff Antonio Colbert commenced this case against Defendant the United States

Postal Service (USPS), alleging that it has failed to deliver his mail to him since December 6,

2010. Defendant has moved to dismiss this case alleging, among other things, that the Court

lacks subject-matter jurisdiction to consider this case. The motion will be granted. Defendant is

entitled to sovereign immunity from Plaintiff’s claims to the extent that Plaintiff alleges that

Defendant has lost, miscarried, or negligently transmitted his mail; moreover, as to any mail-

delivery claim Plaintiff might have, he has not pled that he exhausted his administrative

remedies. This case will therefore be dismissed for lack of subject-matter jurisdiction.

II.    Legal Standard.

       Under Federal Rule of Civil Procedure 12(b)(1), the party seeking to invoke the

jurisdiction of a federal court—Plaintiff here—bears the burden of establishing that the court has

jurisdiction. See U.S. Ecology, Inc. v. U.S. Dep’t of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000)

(citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103–04 (1998)); see also Grand
Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (“[A] Rule

12(b)(1) motion imposes on the court an affirmative obligation to ensure that it is acting within

the scope of its jurisdictional authority.”); Pitney Bowes, Inc. v. USPS, 27 F. Supp. 2d 15, 19

(D.D.C. 1998). Although a court must accept as true all the factual allegations contained in the

complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), Leatherman v. Tarrant

Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993), “‘Plaintiff[s’]

factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion’

than in resolving a 12(b)(6) motion for failure to state a claim.” Grand Lodge, 185 F. Supp. 2d

at 13–14 (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure

§ 1350 (2d ed. 1990)). At the stage of litigation when dismissal is sought, a plaintiff’s complaint

must be construed liberally, and the plaintiff should receive the benefit of all favorable

inferences that can be drawn from the alleged facts. See EEOC v. St. Francis Xavier Parochial

Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). Additionally, a court may consider material other than

the allegations of the complaint in determining whether it has jurisdiction to hear the case, as

long as it still accepts the factual allegations in the complaint as true. See Jerome Stevens

Pharm., Inc. v. FDA, 402 F.3d 1249, 1253–54 (D.C. Cir. 2005); St. Francis Xavier Parochial

Sch., 117 F.3d at 624–25 & n.3; Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir.

1992).

III.     Analysis.

         A.     Plaintiff’s Claim Will Be Evaluated Under the Federal Tort Claims Act.

         Plaintiff claims that Defendant has failed to deliver his mail to him since December 6,

2010. Compl., ECF No. 5-1 He seeks $5,000,000 in damages for that alleged failure. Id. The

Federal Tort Claims Act (FTCA) “shall apply to tort claims arising out of activities of the Postal



                                                  2
Service.” Id. 39 U.S.C. § 409(c); see 28 U.S.C. § 1346. Plaintiff’s claim against the USPS for

money damages will therefore be evaluated as a claim against the United States under the FTCA.

       B.      This Case Will Be Dismissed for Lack of Subject-Matter Jurisdiction.

       As “‘an independent establishment of the executive branch of the Government of the

United States’ . . . [h]olding a monopoly over carriage of letters,” Defendant “enjoys federal

sovereign immunity absent a waiver.” Dolan v. USPS, 546 U.S. 481, 484 (2006) (quoting 39

U.S.C. § 201). “Sovereign immunity is jurisdictional in nature.” Fed. Deposit Ins. Corp. v.

Meyer, 510 U.S. 471, 475 (1994). Therefore, “[a]bsent a waiver, sovereign immunity shields the

Federal Government and its agencies from suit.” Id.

       The FTCA contains a general waiver of sovereign immunity for

       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). However, that waiver does not apply to any claims “arising out of the

loss, miscarriage, or negligent transmission of letters or postal matter.” Id. § 2680(b). Defendant

has therefore moved to dismiss this case for lack of subject-matter jurisdiction based on

sovereign immunity. Mem. of P. & A. in Supp. of Def.’s Mot. to Dismiss at 7–9, ECF No. 3-1

[hereinafter Def.’s Mem.].

       “Mail is ‘lost’ if it is destroyed or misplaced . . . .” Dolan, 546 U.S. at 487. Mail is also

“lost” if it is stolen by a postal employee. See, e.g., Levasseur v. USPS, 543 F.3d 23, 24 (1st Cir.

2008) (“[M]ail that is stolen by a postal employee is thereby ‘lost’ from the postal system.”).

“Mail is . . . ‘miscarried’ if it goes to the wrong address.” Dolan, 546 U.S. at 487. Mail is

“negligently transmitted” when the USPS commits negligence during and related to “the process

                                                 3
of conveying [letters or postal matter] from one person to another, starting when the USPS

receives the letter or postal matter and ending when the USPS delivers the letter or postal

matter.” Dolan v. USPS, 377 F.3d 285, 288 (3d Cir. 2004), rev’d on other grounds, Dolan, 546

U.S. 481. Notably, while the USPS is immune from claims arising out of transmission only if

such transmission is negligent, the USPS is immune from all claims arising out of loss or

miscarriage, regardless of intentionality or negligence. Levasseur, 543 F.3d at 24 (noting that

“the fact that the word ‘negligent’ only modifies the word ‘transmission’ indicates that

intentional acts of ‘loss’ and ‘miscarriage’ are also covered” by the exception to the waiver of

sovereign immunity).

       Plaintiff does not specify whether his claim arises out of loss, miscarriage, negligent

transmission, or intentional mis-transmission. He simply asserts that his mail has been “held up”

since December 6, 2010; that he has not “received mail since” that date; and that Defendant has

“declined to give me the mail.” Am. Compl; see also Opposing Dismissal, ECF No. 9

[hereinafter Opp’n] (arguing in opposition to Defendant’s motion that the USPS has “literally

robbed me of . . . my mail” and has “held my mail up”). Assuming that Plaintiff has, in fact, not

received his mail since December 6, 2010, it could be that his mail has been destroyed,

misplaced, or stolen—i.e., lost. It could also be that Plaintiff’s mail has been consistently

delivered to the wrong address, whether by accident or intentionally—i.e., miscarried. It could

be that his mail has not been delivered to him due to some ongoing negligence by the U.S. Postal

Service—i.e., negligently transmitted. But whether Plaintiff claims that his mail has been lost,

miscarried, or negligently transmitted, the result is the same—sovereign immunity bars the

claims and the Court lacks subject-matter jurisdiction over them.




                                                 4
        Of course, it could also be that the USPS has been intentionally interfering with the

transmission of Plaintiff’s mail, by some means short of stealing it. In that narrow window of

intentional mis-transmission, Defendant is not entitled to sovereign immunity. See LeRoy v. U.S.

Marshal’s Serv., No. 06-cv-11379, 2007 WL 4234127, at *1 n.2 (E.D. La. Nov. 28, 2007)

(noting that a postal employee’s “refusal to deliver plaintiff’s mail to him was an intentional act,”

not “‘the loss, miscarriage, or negligent transmission of letters or postal matter’” (quoting 28

U.S.C. § 2680(b)). However, Defendant has also moved to dismiss this case for lack of subject-

matter jurisdiction based on failure to exhaust administrative remedies. Def.’s Mem. at 9–10.

        “An action shall not be instituted” under the FTCA “unless the claimant shall have first

presented the claim to the appropriate Federal agency and his claim shall have been finally

denied by the agency.” 28 U.S.C. § 2675(a). This statutory requirement of administrative

exhaustion “is a jurisdictional prerequisite to the maintenance of a tort suit against the United

States.” GAF Corp. v. United States, 818 F.2d 901, 904 (D.C. Cir. 1987). A plaintiff must

therefore plead administrative exhaustion in an FTCA case. See Fed. R. Civ. P. 8(a)(1)

(requiring a plaintiff to plead “a short and plain statement of the grounds for the court’s

jurisdiction”); see also Eastridge v. United States, No. 06-cv-448, 2007 WL 495797, at *12

(D.D.C. Feb. 12, 2007) (dismissing FTCA claims “for lack of jurisdiction” where the plaintiff

had “not alleged that before filing suit in this Court he first presented his claims in writing to the

federal agency that allegedly caused the injury”).

       Plaintiff’s complaint does not contain any assertion that he has presented his claim to the

USPS or that the USPS has finally denied any such claim. See Am. Compl. Moreover, Plaintiff

has not responded to Defendant’s argument that the Court lacks subject-matter jurisdiction

because Plaintiff has not exhausted his administrative remedies. See Opp’n. Plaintiff has thus



                                                  5
conceded that he has not exhausted his administrative remedies. See, e.g., Kone v. District of

Columbia, No. 11-cv-54, 2011 WL 3841072, at *2 (D.D.C. Aug. 30, 2011) (treating as conceded

arguments for dismissal to which a pro se plaintiff did not respond). The Court therefore lacks

subject-matter jurisdiction to consider any of Plaintiff’s claims, whether they are construed as

claims for loss, miscarriage, negligent transmission, or intentional mis-transmission.1

IV.    Conclusion.

       Because the Court lacks subject-matter jurisdiction to consider this case, Defendant’s

motion to dismiss will be granted and this case will be dismissed. A separate order consistent

with this Memorandum Opinion shall issue this date.

DATE: December 22, 2011                                              /s/
                                                                     JOHN D. BATES
                                                                     United States District Judge




       1
        Because the Court will dismiss this case for lack of subject-matter jurisdiction, the
Court will not address Defendant’s other arguments in favor or dismissal.
                                                 6
