Opinion
SA-21-CV-00742-FB
03-15-2022
FAIRMONT-IMANUEL BANKHOUSE, Plaintiff, v. UNITED STATES OF AMERICA; UNITED STATES POSTMASTER GENERAL, U.S. POSTAL SERVICE, Defendants.
To the Honorable United States District Judge Fred Biery:
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ELIZABETH S. ("BETSY") CHESTNEY, UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation concerns the Motion to Dismiss [#37] filed by Defendants the United States of America and the United States Postal Service. All pretrial matters in this case have been referred to the undersigned for disposition pursuant to Western District of Texas Local Rule CV-72 and Appendix C [#4]. The undersigned has authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). In issuing this recommendation, the undersigned has also considered the pleadings, Plaintiff's Response [#59], and Defendants' Reply in Support of its Motion [#61]. For the reasons set forth below, it is recommended that the motion be GRANTED.
I. Background
Plaintiff Fairmont-Immanuel Bankhouse originally filed this action in the 25th Judicial District Court of Gonzales County, Texas, regarding delivery of his mail to the physical address of his residence. (Orig. Pet. [#1-1], at 3.) Due to the location of his residence, Mr. Bankhouse currently is only able to receive mail through the use of a Post Office box. (Def. Motion [#37], at 1.) The United States Postal Service has clarified that Mr. Bankhouse's mail can be delivered to a Post Office Box, which it will provide to him free of charge. Id. Mr. Bankhouse insists that he has a constitutional right to have his mail delivered to his residential address and not a post office box. (2nd Am. Compl. [#38], at 21-22.)
In Mr. Bankhouse's Original Petition, the named defendants were “All administrative-machinery and property, instrumental to entities, agents and persons of the United States Postal Service”; the Leesville, Texas, Post Office; and Postal Code 78122. (Orig. Pet. [#1-1].) The United States of America and United States Postal Service (“USPS”), although they had not been properly served, removed Plaintiff's Petition to this Court pursuant to 28 U.S.C. § 1442, which authorizes the removal of any proceeding brought against the United States. (Notice of Removal [#1].) After removal, Mr. Bankhouse filed an Amended Complaint [#17], and the United States and USPS promptly filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction [#37], asserting their sovereign immunity from suit. In response Mr. Bankhouse filed his Second Amended Complaint, which remains the live pleading. (2nd Am. Compl. [#38].)
The United States and USPS thereafter filed an Advisory indicating their position that Mr. Bankhouse's Second Amended Complaint does not overcome the deficiencies identified in their motion and that the Court should apply the motion to the live pleading. (Advisory [#49].) The undersigned agrees that requiring the filing of an amended motion to dismiss is unnecessary. See 6 Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice & Procedure § 1476 (1990) (“[D]efendants should not be required to file a new motion to dismiss simply because an amended pleading was introduced while their motion was pending. If some of the defects raised in the original motion remain in the new pleading, the court may simply consider the motion as being addressed to the amended pleading. . . . To hold otherwise would be to exalt form over substance.”). Accordingly, the undersigned will evaluate the arguments in the motion to dismiss in light of the factual allegations in Mr. Bankhouse's most recent pleading, the Second Amended Complaint.
The Second Amended Complaint names the following defendants: (1) the United States of America; (2) the United States Postmaster General (in an official capacity); (3) “all administrative-machinery and property, instrumental to entities, agents and persons of the United States Postal Service”; (4) the Leesville, Texas, Post Office; (5) Postal Code 78122; and (6) 1-100 Named Individuals or Entities involved in the processing of mail (in their official capacities). (Second Am. Compl. [#38], at 1 -2.) Because the Postmaster and other officials Mr. Bankhouse has named as defendants are all sued in their official capacities, these claims are all properly construed as claims against the United States of America and the United States Postal Service. See Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999) (“Official capacity suits generally represent another way of pleading an action against an entity of which an officer is an agent.”) (citing Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690 n.55 (1978)). The recommendation therefore refers to the United States and USPS together as “Defendants.”
Mr. Bankhouse names the remaining Defendants as in rem Defendants, yet the pleadings do not set forth a valid basis to assert claims directly against the property of the USPS or the United States, the Leesville Post Office, or Postal Code 78122. See Pennoyer v. Neff, 95 U.S. 714, 734 (1877) (explaining that in rem proceedings are “actions between parties, where the direct object is to reach and dispose of the property owned by them, or of some interest therein”).
In the live pleading Mr. Bankhouse reasserts that the lack of mail delivery to his residence causes constitutional injury in violation of the First and Fourteenth Amendments. (Second Am. Compl. [#38], at 15, 17.) As remedy for these alleged violations, Mr. Bankhouse seeks monetary damages in excess of one million dollars and equitable relief in the form of enjoining the USPS to deliver his mail to his residence. (Id. at 8, 34.)
II. Analysis
The Court should grant Defendants' motion to dismiss. Motions filed under Rule 12(b)(1), like Defendants' here, allow a party to challenge the subject-matter jurisdiction of the district court. See Fed. R. Civ. P. 12(b)(1). Sovereign immunity is jurisdictional in nature. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). The undersigned is mindful that in evaluating the merits of Defendants' motion to dismiss, a court views Plaintiff's pro se pleadings under a less stringent standard than those drafted by an attorney. Alexander v. Ware, 714 F.2d 416, 419 (5th Cir. 1983). As a result, Plaintiff's filings are entitled to a liberal construction that includes all reasonable inferences that can be drawn from these pleadings. See Id. Nevertheless, this Court lacks subject matter jurisdiction over the claims asserted by Plaintiff against the United States and USPS because Defendants are immune from suit. Because this Court does not have jurisdiction over any of the claims brought by Mr. Bankhouse, it must dismiss the case in its entirety. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).
Subject matter jurisdiction is the legal authority of a court to hear and decide a particular type of case. United States v. Morton, 467 U.S. 822, 828 (1984). Federal courts, by design, are courts of limited jurisdiction. Home Depot U.S.A., Inc. v. Jackson, 139 S.Ct. 1743, 1746 (2019). This means that they are restricted in what cases they may decide and may only exercise jurisdiction when specifically authorized. Before this Court can decide the merits of a case it must have the legal authority-that is, the jurisdiction-to do so. This Court does not have jurisdiction.
Contrary to Mr. Bankhouse's characterization of the undersigned's previous order regarding the pending motion to dismiss, no portion of Mr. Bankhouse's complaint has been stricken. (Resp. [#59], at 3.) The order instead emphasized to Mr. Bankhouse that he must respond to the specific jurisdictional issues raised in Defendants' motion because the question of jurisdiction must be addressed before any of Mr. Bankhouse's claims can be taken up by the Court on their merits.
The principal of sovereign immunity means that the United States (including federal agencies, like USPS) cannot be sued unless it expressly consents to be sued by an act of Congress. FDIC v. Meyer, 510 U.S. 471, 475 (1994). Without a statutory waiver of immunity, the principle of sovereign immunity “shields the Federal Government and its agencies from suit.” Id. If the government has not waived its immunity, the Court lacks subject matter jurisdiction over the governmental party, and the barred claims must be dismissed without prejudice under Rule 12(b)(1). Warnock v. Pecos County, Tex., 88 F.3d 341, 343 (5th Cir. 1996).
Mr. Bankhouse bears the burden of showing Congress's unequivocal waiver of immunity. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); Freeman v. United States, 556 F.3d 326, 334 (5th Cir. 2009). This burden is a heavy one. See Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 276 (1959) (“The conclusion that there has been a waiver of immunity will not be lightly inferred . . . .”). A waiver of sovereign immunity must be “unequivocally expressed in statutory text . . . and will not be implied.” Lewis v. Hunt, 492 F.3d 565, 570 (5th Cir. 2007) (quoting Lane v. Pena, 518 U.S. 187, 192 (1996)). Mr. Bankhouse has not demonstrated that the United States or USPS has waived its immunity for his claims.
i. Claim against the United States
The Court lacks subject matter jurisdiction over Plaintiff's claims against the United States because Mr. Bankhouse has not shown Congress waived the United States' sovereign immunity as it relates to his claims. Mr. Bankhouse argues that Defendants “have waived their immunity as it regards the constitutional rights and Article III injuries []presented here.” (2nd Am. Comp. [#38], at 27.) In his filings with this Court, Mr. Bankhouse points to only one statute, 42 U.S.C. § 1983. This statute does not waive the United States' sovereign immunity as it relates to this lawsuit. Section 1983 does not create jurisdiction; it creates a cause of action against persons who while acting under state authority violate federal law. See 42 U.S.C. § 1983. To state a claim under 42 U.S.C. § 1983, a plaintiff must (1) allege a violation of a right secured by the Constitution or laws of the United States, and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law. Doe ex rel. Magee v. Covington County Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th Cir. 2012). Mr. Bankhouse does allege that his constitutional rights have been violated, but he does not allege that this violation was committed by someone acting under state law; his complaints are against the federal government and its agency. Therefore, Section 1983 is irrelevant here and does not establish a waiver of the sovereign immunity of the United States.
Mr. Bankhouse also cites two Supreme Court cases that he contends establish this Court's jurisdiction and his constitutional right to mail delivery at his residential address: Marcus v. Search Warrant, 367 U.S. 717 (1961) and Lamont v. Postmaster General, 381 U.S. 301 (1965). Neither of these cases demonstrates an express waiver of sovereign immunity (or a constitutional right to have mail delivered to a residential address, as is explained below).
Marcus does not establish or discuss a waiver of sovereign immunity. In Marcus, the only discussion of jurisdiction is a cursory statement confirming that the Supreme Court has jurisdiction to hear appeals from the highest state court. Marcus, 367 U.S. at 721. Marcus does not address the issue of sovereign immunity in any capacity and does not establish jurisdiction in this Court for this case.
The question of subject matter jurisdiction was not explicitly addressed by the Supreme Court in Lamont either. In Lamont, the issue before the Supreme Court was whether a federal statute that permitted the filtering, retention, and destruction of mail based on the content of the correspondence violated the Constitution. The big difference between this case and Lamont is that Lamont involved only claims for injunctive relief against the Postmaster General in his official capacity, and not any claims for damages. Lamont, 381 U.S. at 304-305. Mr.
The claims in Lamont, although mail related, are also quite different from Plaintiff's claims. Lamont struck down as unconstitutional a statute that permitted the postal service to make delivery decisions contingent on the content of the communication. Lamont, 381 U.S. at 306. Plaintiff is not alleging that the decisions of USPS here to deliver to his residential address differ depending on the content of the mail.
Bankhouse may be arguing that there is jurisdiction here because there was jurisdiction in Lamont. But the federal government has statutorily waived its sovereign immunity only for injunctive relief under the Administrative Procedures Act, which was the basis of the Court's subject matter jurisdiction over the Postmaster General in Lamont.
The Administrative Procedure Act waives immunity and permits suits for nonmonetary, injunctive relief against the government. 5 U.S.C. § 702. While Mr. Bankhouse's Second Amended Complaint is titled as a “Petition for Equitable Relief, ” his only equitable demand is the delivery of his mail to the address of his residence-which is duplicative of his claim against USPS, and is addressed below. Therefore, his only claim against the United States is a claim for “monetary relief over $1,000,000 without limit.” (2nd Am. Compl. [#38], at 8.) The Administrative Procedure Act does not waive sovereign immunity for suits for monetary relief and therefore does not establish subject matter jurisdiction for Mr. Bankhouse's claim for damages against the United States.
The undersigned notes that Mr. Bankhouse also references nominal damages. Taken in context this appears to be a misunderstanding of the phrase “nominal damages” rather than an indication that monetary damages are not sought. Mr. Bankhouse uses the reference as support for his monetary damages claim, however “nominal damages” means an insignificant or very small amount. Damages, Black's Law Dictionary (11th ed. 2019). Given the context in which the phrase is used, there is no reason to construe the claim against the United States as anything other than a claim for monetary damages.
In summary, “the United States cannot be lawfully sued without its consent in any case” United States v. Lee, 106 U.S. 196, 204 (1882); Hill v. United States, 50 U.S. 386, 389 (1850). There is no consent to suit for monetary damages in this case, and the claims against the United States should be dismissed for lack of subject matter jurisdiction.
ii. Claims against the United States Postal Service.
This Court also lacks subject matter jurisdiction over Mr. Bankhouse's claims against the USPS, including his claims for injunctive relief. Assuming that Mr. Bankhouse's reference to Lamont was an attempt to invoke the waiver of suits for injunctive relief available through the Administrative Procedure Act, the Act is insufficient to establish a waiver of immunity as to the USPS. While Mr. Bankhouse does request injunctive relief from USPS-“I pray the Court grants me the relief, . . . of a proximate and public, USPS mailbox that receives all mail for my personal address” (2nd Am. Compl. [#38], at 34)-five years after Lamont, Congress, through statute, expressly provided that the Administrative Procedure Act does not authorize suit against the USPS. 39 U.S.C. § 410(a).
Although not cited by Mr. Bankhouse in his briefing, the undersigned acknowledges that Congress has explicitly waived sovereign immunity for certain types of claims against the USPS through the Postal Reorganization Act. 39 U.S.C. § 401; Insurance Co. of N. Am. v. United States Postal Serv., 675 F.2d 756, 758 (5th Cir. 1982) (“The use of the term ‘sue and be sued' in § 401(1) does constitute a waiver of the sovereign immunity of the Postal Service.”). This waiver, however, does not mean that any and all suits against the USPS may proceed. Other provisions of the Act establish administrative procedures that must be exhausted before the USPS may be sued, and even then, only certain types of claims are permitted.
Other claims are expressly prohibited. By enacting 39 U.S.C. § 3662, Congress removed from this Court's jurisdiction any suits about the rates and services provided by the USPS. Instead of filing suit in federal court, Section 3662 of the Postal Reorganization Act provides that “[i]nterested parties . . . who believe that they are not receiving postal service in accordance with the policies of this title may lodge a complaint with the Postal Rate Commission.” 39 U.S.C. § 3662. This remedy is exclusive. Foster v. Pitney Bowes Corp., 549 Fed.Appx. 982, 986 (Fed. Cir. 2013) (collecting cases); Lemay v. United States Postal Serv., 450 F.3d 797, 800 (8th Cir. 2006); see also Powell v. United States Postal Serv., 2016 WL 409672, at *1 (D. Mass. Feb. 2, 2016) (Postal Rate Commission is the exclusive remedy for complaints that local post office refuses to deliver mail.). The gravamen of Mr. Bankhouse's complaint is that the USPS will not deliver mail at his residential address, only to a (free) post office box. This is a claim about the services provided by USPS, and he is therefore limited to the procedures and remedies authorized by the Postal Reorganization Act.
Mr. Bankhouse disagrees, arguing his concerns are constitutional in nature rather than service-related and so not subject to administrative remedies. He relies on Lamont as establishing a constitutional right to receive mail at one's residence. Lamont establishes no such right. Again, in Lamont, the Supreme Court did not address delivery of mail generally, it addressed the constitutionality of a specific statute that provided for content-based handling of mail. Lamont, 381 U.S. at 302. The statute permitted USPS employees to open mail from certain foreign countries and review the correspondence to determine if the content was “communist political propaganda” as defined by the statute. Id. at 303. Then, any mail determined to be communist propaganda was withheld from delivery and a notice was sent to the recipient. Id. The recipient was required to formally attest that they chose to receive communist propaganda in order to have the withheld item delivered to them. Id. This content-based filtering of the mail was a violation of the First Amendment. Id. at 305. Lamont affirmed that delivery of mail cannot be conditioned on the content-speech-contained in the mailed items. Id. at 306-307. It did not establish a right to receive mail at one's residential address.
In addition to Lamont, Mr. Bankhouse cites five other Supreme Court cases as support for his assertion that the First Amendment guarantees him the right to receive mail at his home and that his complaints are constitutional in nature, rather than subject to an administrative process. None of these cases support that proposition. See Brnovich v. Democratic National Committee, --U.S.--, 141 S.Ct. 2321 (2021) (upholding as constitutional an Arizona statute requiring in-person voters who voted on election day to vote in their precincts); Procunier v. Martinez, 416 U.S. 396 (1974), (holding that censorship of prison mail must be no greater than necessary to protect an important or substantial penological interest) overruled in part by Thornburgh v. Abbott, 490 U.S. 401 (1989); Kleindienst v. Mandel, 408 U.S. 753 (1972) (holding that denial of a visa to a Marxist who had been invited to the United States to speak at a university is not a violation of the First Amendment freedom of speech protections); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, (1969) (holding that the Federal Communications Commission's application of the fairness doctrine and right of reply to radio broadcasts was not a violation of the First Amendment); Martin v. City of Struthers, 319 U.S. 141 (1943) (striking down as unconstitutional Ohio ordinance that prohibited door-to-door distribution of flyers).
Mr. Bankhouse also cites three cases from the Eighth Circuit as support for his argument that delivery of mail at one's residential address is a First Amendment right and therefore a claim that need not be administratively exhausted. None of these decisions are binding on this Court, but even if they were, they do not establish that any such right exists. Each of the Eighth Circuit cases Mr. Bankhouse cited concern mail delivery to prisoners. Specifically, they address the limitations that may be placed on a prisoner's First Amendment right to access the mail system. Benton v. Kelley, 784 Fed.Appx. 472 (8th Cir. 2019) (dealing with page limitations on prisoner mail); Kaden v. Slykhuis, 651 F.3d 966 (8th Cir. 2011) (per curiam) (determining that a prisoner's allegation that his mail was withheld due to a content-based policy was sufficient to plausibly state a claim and permit service on the defendant); Weiler v. Purkett, 137 F.3d 1047 (8th Cir. 1998) (upholding prison officials' qualified immunity because their refusal to deliver a package to an inmate did not violate a constitutional right). Mr. Bankhouse has not been denied access to the mail. His own pleadings establish that he has access to and receives mail. (2nd Am. Comp. [#38], at 22.) His pleadings establish that he wants his mail delivered in a different manner-delivery to his residential address and not a Post Office Box. The First Amendment creates no such right.
Mr. Bankhouse also argues that the failure to have his mail delivered to his residential address is a violation of his Fourteenth Amendment rights. (2nd Am. Comp. [#38], at 17.) This argument fails because the Fourteenth Amendment applies to the actions of States and not the Federal government or its agencies, like the USPS. See U.S. Const. amend. XIV (“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”).
In summary, Mr. Bankhouse's claim that the USPS cannot deliver his mail to a Post Office Box or a mailbox cluster as opposed to his residential address is a dispute about the USPS's service, not a First or Fourteenth Amendment right. As such, it is subject to the requirements of 39 U.S.C. § 3662 and must be administratively exhausted by filing a complaint with the Postal Regulatory Commission.
Mr. Bankhouse also argues against administrative remedy by way of hypothetical. He imagines a scenario where he is gravely assaulted and nearly killed by a Social Security Administration employee. He then makes the leap that since he could not be forced to pursue those claims in an agency proceeding with the Social Security Administration, he cannot be forced to pursue his present claims in an agency proceeding with the USPS. (2nd Am. Comp. [#38], at 26-27.) While he is correct, if he were assaulted by a Social Security Administration employee, he would not pursue an administrative remedy. That is because assault is not within their administrative jurisdiction. Similarly, if an employee of the USPS committed the same imagined grave assault, that would not fall within the USPS administrative remedies. But that is not the situation here. Here, the issue is the services of the USPS, including delivery, and those are squarely within the administrative jurisdiction as outlined by Congress in 39 USC § 3662.
To the extent that Mr. Bankhouse wants to assert a claim under Section 3662 of the Postal Reorganization Act that USPS is violating its procedures, that claim would fail as well because it is unexhausted. While the requirement of administrative exhaustion is not always jurisdictional, the Circuits that have considered the question have found that the requirement of administrative exhaustion divests the district courts of jurisdiction over claims regarding USPS services. See Lemay v. United States Postal Serv., 450 F.3d at 800; Bovard v. United States Post Office, 47 F.3d 1178 (10th Cir. 1995) (affirming the district court's dismissal for lack of subject matter jurisdiction); Enterprise, Inc. v. Bolger, 774 F.2d 159, 161 (6th Cir. 1985). If Mr. Bankhouse is unsatisfied with the outcome of the administrative proceeding, then, after the Postal Regulatory Commission has issued its decision, he can seek appellate review with the United States Court of Appeals for the District of Columbia, which is the court designated by Congress to hear all appeals from Commission decisions. 39 U.S.C. § 3663.
In summary, Mr. Bankhouse has not exhausted his administrative remedies as required by statute. Therefore, this Court lacks subject matter jurisdiction over his claims against the USPS and they should be dismissed.
Due to the findings that the United States has not waived sovereign immunity and that Mr. Bankhouse has not exhausted his administrative remedies against the USPS, the undersigned need not, and has not, addressed the other issues raised in Defendants' motion to dismiss.
IV. Conclusion and Recommendation
Having considered the United States' motion, Mr. Bankhouse's response, the pleadings, and the governing law, the undersigned recommends that Defendants the United States of America and the United States Postal Service's Motion to Dismiss for Lack of Subject Matter Jurisdiction [#37] be GRANTED and Mr. Bankhouse's pending motions-Proposed Motion for Settlement [#62] and Motion for Declaratory Judgment [#65]-be DISMISSED AS MOOT.
V. Instructions for Service and Notice of Right to Object/Appeal.
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The party shall file the objections with the clerk of the court and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusive or general objections. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).