Opinion
Civil No. 01-2428(JBS).
March 11, 2002
Mr. Louis R. De Mauro, Burlington, New Jersey, Plaintiff pro se.
Christopher J. Christie, United States Attorney, By: Irene E. Dowdy, Assistant United States Attorney, Trenton, New Jersey, Attorneys for Defendants.
OPINION
This matter comes before the Court upon motion by defendants the United States Postal Service, Postmaster Michael Herbert, and the United States of America, to dismiss and for summary judgment against plaintiff Louis R. De Mauro, who appears in this actionpro se. Mr. De Mauro brings this action as an appeal of the final decision rendered by Judicial Officer James A. Cohen of the United States Postal Service, which affirmed the Initial Decision of the Chief Administrative Law Judge Bruce R. Houston upholding Postmaster Herbert's determination to close plaintiff's post office box. Also before the Court is plaintiff's Motion to Vacate the Court's Decision to Substitute the U.S. Government in the Place of the Named Defendants in the Plaintiff's Complaint and for Sanctions. For the reasons discussed in this Opinion, defendants' motion to dismiss and for summary judgment will be granted, and plaintiff's motion to vacate and for sanctions will be denied.
BACKGROUND
Plaintiff had rented Post Office Box 1628 at the Burlington, New Jersey Post Office for several years, from November 1994 through July 1998. (Compl. ¶ 1c.) On June 30, 1999, Postmaster Michael Herbert placed a notice in Post Office Box 1628, addressed to plaintiff, which stated:
A recent audit of our Post Office Box records indicated that we do not have a current street address and or phone number for your physical address.
Postal regulations require that we maintain up to date accurate records of all box holders. Please complete the attached APPLICATION FOR POST OFFICE BOX OR CALLER SERVICE, PS Form 1093 (Update), and return it to a window clerk along with confirmation (e.g., a utility bill, current lease, mortgage, deed of trust, drivers license, or voter registration card) of your physical address, within five (5) business days.
(AR 32, 83, 135.) On July 20, 1999, Plaintiff returned Form 1093, stating his physical address as 22 Fountain Blvd., Burlington, New Jersey, and his business name as "Same as ever", without any documentation to confirm his physical address. (AR 32, 83, 84, 135.) Postmaster Herbert advised plaintiff that the form was incomplete, and returned the form to plaintiff for completion. (AR 135.)
The Court herein incorporates the exhibit numbers of the administrative record filed in this case.
On July 31, 1999, plaintiff resubmitted Form 1093 to Postmaster Herbert, with copies of letters he had written to the New Jersey Division of Motor Vehicles and the Federal Aviation Administration, requesting that their records reflect his change of address from 26 Fountain Blvd., to 22 Fountain Blvd. (AR 33, 85, 86, 135.) On August 5, 1999, Postmaster Herbert received a call from Margaret Mitchell, who stated that she was the homeowner of 22 Fountain Blvd., and that Mrs. De Mauro, who is Mr. De Mauro's ex-wife, did live with her, but that Mr. De Mauro never lived there, and that she did not want any of his mail delivered to her home. (AR 136.) In addition, a handwritten note was received by the USPS on August 5, 1999, which stated:
Please do not deliver mail with Louis De Mauro — 22 Fountain Blvd., Burlington, N.J., 08016 to my mailbox.
He does not live here.
Thank you.
[Signed by] Margaret A. Mitchell
(AR 87 (emphasis in original).) On August 9, 1999, Postmaster Herbert placed in Post Office Box 1628 a "Final Notice" for plaintiff to provide an accurate Form 1093 with confirmation of plaintiff's physical address. (AR 88, 136.) On August 17, 1999, after discussion with a Postal Inspector, Postmaster Herbert sent plaintiff a notice that stated, in part:
This letter will also serve notice that your Post Office Box 1628 has been terminated in accordance with the Domestic Mail Manual Section D910.8.2 for failing to provide proof of physical address, (DMM 910 Section 2.3). Notices were sent to you on June 30, 1999, July 20, 1999, and a final notice on August 9, 1999.
(AR 89.) On August 19, 1999, plaintiff contacted Postmaster Herbert and stated that "you cannot close my box, I have given you my phone number, and that is all I have to give you." (AR 136.) Postmaster Herbert explained to plaintiff that the USPS required a physical address for a post office box holder and gave him an additional 10 days to provide that information. (AR 136.)
On August 25, 1999, plaintiff submitted another Form 1093, listing his address as 205 Nassau Street, Princeton, NJ 08542, without documentation that this was his physical address. (AR 136.) Postmaster Herbert faxed a PO Box Verification Request to the Postmaster, stating:
The below listed individual has applied for a post office box at Burlington, NJ, but did not provide proof of physical address or proper identification.
Please verify that this person either resides at or conducts business from the address given below. . . .
LOUIS DE MAURO 205 NASSAU ST PRINCETON, NJ 08542
Good as addressed: ________ (Please check one) Unknown at this address:
(AR 91.) The form was returned to Postmaster Herbert with an "X" placed next to "Unknown at this address." (AR 33, 91, 136.) Postmaster Herbert called the Princeton Post Office and was advised that 205 Nassau St. was an answering service with apartments on top. (AR 33, 136.)
On September 9, 1999, Postmaster Herbert issued a final notice to plaintiff advising him that his post office box service was terminated. (AR 136.) On September 13, 1999, Postmaster Herbert sent an amended notice of final determination which included notice of plaintiff's right to petition. (AR 136.) On September 20, 1999, Postmaster Herbert received plaintiff's petition, which was dated September 15, 1999. (AR 136.) Postmaster Herbert reopened Post Office Box 1628 to plaintiff pending the outcome of the petition, and the Post Office Box remains open pending the outcome in this litigation. (AR 137.) The petition was forwarded to the USPS Recorder, Judicial Officer Department. (AR 135-137.) The petition was assigned to Bruce R. Houston, the Chief Administrative Law Judge, as the presiding officer. (AR 133.) On October 13, 1999, plaintiff's "Petition to Amend" was filed. (AR 96-132.) Also on October 13, 1999, respondent agency's motion for summary judgment was docketed. (AR 79-95.) Plaintiff's opposition was docketed on November 10, 1999. (AR 37-74.)
The amended notice states:
I have reviewed your most recent Application for Post Office Box service dated August 25, 1999. Since you continually refuse to present two forms of identification showing your "physical address" as required, I sent an address verification request to the Princeton Post Office. The address you provided (205 Nassau St.) is that of an answering service. The Princeton Post Office returned the verification request marked "Unknown."
Official requests for an application update were sent to you on June 30, 1999, July 20, 1999, August 9, 1999. A notice of termination for failure to comply was sent to you on August 17, 1999. At that time I stated I would give you a ten day extension in order for you to make a final proper application.
Your failure to comply with the numerous requests leaves me no alternative but to discontinue your box service. Therefore, this letter will serve as final notice that your Post Office Box 1628 has been terminated in accordance with the Domestic Mail Manual Section D910.82 for failing to provide proof of physical address, (DMM 910 Section 2.3).
You may file a petition opposing this Determination within twenty (20) days (Sundays and holidays included) after the date you receive it. Your petition must be in writing and include a statement of your reasons for opposing the Determination. Your petition, signed by you or your attorney, must be filed in triplicate at the post office address given below. . . .
(AR 93.)
On December 14, 1999, the USPS Chief ALJ issued an Initial Decision granting the respondent's motion for summary judgment, upholding the Postmaster's determination to terminate post office box service to plaintiff. (AR 31-36.) Plaintiff then filed an administrative appeal, which was received by the USPS on December 22, 1999. (AR 28.) On January 11, 2000, USPS Judicial Officer James A. Cohen affirmed the Initial Decision. (AR 26-27.)
On February 2, 2000, plaintiff filed an appeal of the January 11, 2000 decision rendered by the USPS Judicial Officer. (AR 16.) By order dated February 7, 2000, the USPS Judicial Officer advised plaintiff that "[i]f Petitioner intends to appeal the final decision, he must file his appeal with the appropriate court. Final agency decisions of the Postal Service in post office box closing cases are subject to judicial review in the United States district courts in accordance with Chapter 7 of the Administrative Procedure Act." (AR 15.)
Plaintiff commenced this action in the Superior Court of New Jersey, Burlington County, Law Division, on April 26, 2001, naming the United States Postal Service ("USPS") and Postmaster Michael Herbert as defendants. (Dowdy Decl. Ex. 1, 2.) Plaintiff asserts 26 claims in his complaint, alleging that defendants "failed to make lawful delivery of mail to the Plaintiff and his family," (Compl. at iii), and that the USPS has "terminated mail service . . . to Plaintiff's Post Office Box 1628." (Id. at 9). Plaintiff states in his complaint that he "demands judgment against the Defendants in the amount of $7700.00 together with interest and costs of suit, and legal fees." (Id. at 13.) Plaintiff asserts that "[t]here is due and owing from the Defendant to Plaintiff the sum of $7000.00" for costs of remailing alleged business-related mail, (id. at 12), and that he "is entitled to specific performance including re-instatement of Defendants' all previous mail service to Plaintiff . . . [and] injunctive or other equitable relief as a remedy for any such breach." Id. at 13.
Plaintiff raises the following 26 claims: negligence; contract breach; money paid by mistake; money had and received; wrongful termination of service; [tortious] interference with business opportunities; disparagement of property; defamation; false light invasion of privacy; intentional infliction of emotional distress; civil violations of the Racketeering Influenced and Corrupt Organizations Act RICO; violation of First and Fifth Amendment rights; violation of Fourth Amendment rights; violation of Seventh Amendment rights; violation of Eighth Amendment rights; violation of Ninth Amendment rights; violation of Tenth Amendment rights; violation of Thirteenth Amendment rights; violation of Fourteenth Amendment rights; political corruption and influence; civil conspiracy; obstruction of justice; tampering with a witness; willful, outrageous, and malicious conduct; harassment; and seditious conspiracy, 18 U.S.C. § 2384, tyrannical cruel and unjust use of power and authority. (Compl. at iii, 11.)
On May 23, 2001, defendants filed a notice of removal with this Court under 28 U.S.C. §§ 1441(a) 1441(a)(1). On July 27, 2001, defendants filed the instant motion to dismiss and for summary judgment as well as a notice of substitution of the United States as defendant, in place of Michael Herbert, as to common law tort claims under 28 U.S.C. § 2679(d)(1). On January 22, 2002, plaintiff filed a Motion to Vacate the Court's Decision to Substitute the U.S. Government in the Place of the Named Defendants in the Plaintiff's Complaint and for Sanctions.
DISCUSSION
I. SUMMARY JUDGMENT STANDARD
A court may grant summary judgment when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rules of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.Id.
In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party.See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir. 1983), cert. dismissed, 465 U.S. 1091 (1984). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citing Liberty Lobby, 477 U.S. at 248).
The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989),cert. denied, 493 U.S. 1023 (1990). The non-moving party "may not rest upon the mere allegations or denials of" its pleading in order to show the existence of a genuine issue. Fed.R.Civ.P. 56(e). They must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985) (citation omitted). Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). If the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment.Liberty Lobby, 477 U.S. at 249-50.
II. Analysis
Defendants assert three arguments in their motion to dismiss and for summary judgment. First, defendants argue that, insofar as plaintiff seeks reinstatement of his post office box service, the decision to terminate the post office box service is supported by substantial evidence on the agency record under the Administrative Procedure Act and should be affirmed. Defendants also argue that this Court lacks subject matter jurisdiction insofar as plaintiff seeks monetary damages for alleged torts because plaintiff failed to file an administrative tort claim against the USPS and, moreover, plaintiff's tort claims are time-barred. In addition, defendants argue that plaintiff has failed to allege any conduct that violates a constitutional right and that defendant Herbert is entitled to qualified immunity as to any Bivens claims. In his motion to vacate and for sanctions, plaintiff argues that defendant Herbert was "unlawfully substituted" by the United States in this action, and that defendants should be sanctioned for their "harassment, and having caused unnecessary delays and unnecessary expenses of the Plaintiff, and of the court." (Pl.'s Notice of Motion, 1/22/02.)
A. Administrative Procedure Act
Defendants contend that final agency decisions of the Postal Service in post office box closing cases are subject to judicial review under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., and that the agency's decision is supported by substantial evidence in the record. Some circuits that have considered the issue have stated that the APA judicial review provisions may not apply to decisions of the USPS. See Top Choice Distributors, Inc. v. United States Postal Service, 138 F.3d 463, 465 n. 1 (2d Cir. 1998) (stating that 39 U.S.C. § 410(a), "might be read to preclude judicial review of Postal Service administrative actions under the APA"); Harrison v. United Postal Service, 840 F.2d 1149, 1155 (4th Cir. 1988) ("[T]he judicial review provisions of the APA . . . by virtue of 39 U.S.C. § 410(a), . . . do not apply to the Postal Service."); Carlin v. McKean, 823 F.2d 620, 622, 623 (D.C. Cir. 1987) (stating that "[a]part from two very limited exceptions, . . . the APA is not applicable `to the exercise of the powers of the Postal Service'" and that "we are quite certain that Congress intended affirmatively to preclude judicial review of the Governors' decisions to appoint and remove the Postmaster General"), cert. denied, 484 U.S. 1046 (1988); Kuzma v. United States Postal Service, 798 F.2d 29, 31 (2d Cir. 1986) (stating that "the Postal Service clearly is exempted from the procedures for rule-making, including public comment, established by the APA"),cert. denied, 479 U.S. 1043 (1987). In 1970, Congress reorganized the Postal Service so that it would operate more along the lines of a private company, although it still remains a government agency. See Carlin, 823 F.2d at 621, 622 (citing Postal Reorganization Act of 1970, Pub.L. No. 91-375, 84 Stat. 719 (codified as amended at 39 U.S.C. §§ 101- 5605 (1982))). 39 U.S.C. § 410(a) provides:
Except as provided by subsection (b) of this section, and except as otherwise provided in this title or insofar as such laws remain in force as rules or regulations of the Postal Service, no Federal law dealing with public or Federal contracts, property, works, officers, employees, budgets, or funds, including the provisions of chapters 5 and 7 of title 5, shall apply to the exercise of the powers of the Postal Service.39 U.S.C. § 410(a). Although there has been a long-standing presumption of reviewability, even before the enactment of the APA, "[t]hat does not mean . . . that courts should continue to indulge in a presumption of reviewability under the old administrative law principles when Congress has explicitly exempted an agency from the APA's coverage." Carlin, 823 F.2d at 623.
This Court need not determine whether § 410(a) renders the APA's judicial review provision inapplicable to the underlying administrative actions of the USPS, as defendants here concede that judicial review under the APA is appropriate in this action.See, e.g., Top Choice Distributors, 138 F.3d at 465 n. 1 ("[A]ny objection to the applicability of the APA here has been waived by the Postal Service's concession that judicial review of final agency actions pursuant to the APA is appropriate."); see also Air Courier Conference of America v. American Postal Workers Union, AFL-CIO, 498 U.S. 517, 522-23 n. 3 (1991) (holding that "a defense based on exemption from the APA can be waived by the Government" because the judicial review provisions of the APA are not jurisdictional); Harrison, 840 F.2d at 1155-56 (citing cases that have reviewed USPS actions by relying on "an implied nonstatutory right of judicial review").
The scope of review under the APA provides that the reviewing court shall set aside agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). "Grounds for concluding that the agency acted arbitrarily and capriciously include its reliance on factors outside those Congress intended for consideration, a complete failure by the agency to consider an important aspect of the problem, or an agency's explanation, contrary to, or implausible in light of, the evidence."Fertilizer Inst. v. Browner, 163 F.3d 774, 777 (3d Cir. 1998) (citing Motor Vehicle Mfrs. Ass'n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983);Pennsylvania Dep't of Pub. Welfare v. United States Dep't of Health and Human Servs., 101 F.3d 939, 943 (3d Cir. 1996)).
Here, the USPS issued an Initial Decision on December 14, 1999, which granted respondent's summary judgment motion and sustained the postmaster's decision to terminate post office box service to plaintiff. The Initial Decision cites Section D910.2.3 of the Domestic Mail Manual, which states:
An applicant for post office box service, . . . or a current box customer seeking renewal must identify his or her physical address (i.e., an individual's residence or a business's location) to the postmaster of the office where service is sought or provided. If the postmaster cannot confirm the physical address, the applicant or box customer must provide proof of the physical address (e.g., a utility bill, current lease, mortgage, deed of trust, a driver's license, or voter registration card).
DMM Section D910.2.3. The Domestic Mail Manual is incorporated by reference in the Code of Federal Regulations. 39 C.F.R. §§ 111.1, 111.5. DMM Section D910.8.2 provides further that:
A postmaster may terminate post office box service, including that of a customer paying a Group E fee, if the box customer or its representative falsifies the application for the box; physically abuses the box; refuses to update information on the box application; violates any standard on the care or use of the box; conducts himself or herself in a violent, threatening, or otherwise abusive manner on postal premises; or uses it for any unlawful activity as described in 3.6. The customer is notified of the postmaster's determination to refuse or terminate service and of the appeal procedures for that determination.
DMM Section 910.8.2 (emphasis added). Chief ALJ Houston considered the facts, undisputed by plaintiff De Mauro, that De Mauro provided no documentation as required by the Domestic Mail Manual, which is incorporated in the Code of Federal Regulations, to verify his physical address at the two addresses he listed on the PS Forms 1093. Chief ALJ Houston accordingly granted respondent's summary judgment motion.
After plaintiff filed an appeal of the Initial Decision, the USPS issued a Postal Service Decision that stated, "Although Petitioner filed an appeal from the Initial Decision, he did not present any specific exceptions within the time provided or request additional time as allowed by 39 C.F.R. § 958.10. A review of the record establishes that the evidence supports the Initial Decision." AR 27-27.
39 C.F.R. § 958.10 provides that "[e]ither party may file exceptions in a brief on appeal to the Judicial Officer within 5 days after receipt of the initial or tentative decision unless additional time is granted." 39 C.F.R. § 958.10.
A review of the administrative record indicates that Mr. De Mauro failed to provide appropriate documentation that could verify his physical address. Mr. De Mauro submitted the requested Form 1093, listing 22 Fountain Blvd. as his address, without any of the requested supporting documentation to verify this. Mr. De Mauro listed the business name as "Same as ever." Postmaster Herbert went to extraordinary lengths to encourage Mr. De Mauro to provide a good address verified by reliable documentation. After further requests by Postmaster Herbert, Mr. De Mauro later provided two of De Mauro's own letters addressed to the Federal Aviation Administration and the New Jersey Division of Motor Vehicles, in which he requested that their records reflect his change in address. However, the Postal Service correctly determined that these letters did not constitute proper proof of physical address, such as a utility bill or driver's license, under Domestic Mail Manual Section D910.2.3, nor under the mere application of common sense. After all, Mr. De Mauro had simply created these letters making the same claim as to his address for which the Postal Service was requesting actual verification. In addition, the USPS subsequently received two communications from a Margaret Mitchell that indicated Mr. De Mauro did not physically live at 22 Fountain Blvd., although Ms. Mitchell indicated that Mr. De Mauro's ex-wife lived at that address. Furthermore, Ms. Mitchell's communications with the USPS indicated that she did not wish to receive Mr. De Mauro's mail at her home. Mr. De Mauro later listed 205 Nassau St., Princeton, as his physical address, yet the USPS's attempts to verify this address showed that the address was for an answering service, not for Mr. De Mauro's physical address. The Postal Service therefore had a reasonable basis to discredit Mr. De Mauro's claims about 22 Fountain Blvd. and 205 Nassau St.
In light of the undisputed facts, as well as the procedures and requirements for post office box service as detailed in the Domestic Mail Manual, which is incorporated in the Code of Federal Regulations at 39 C.F.R. §§ 111.1 and 111.5, this Court finds that the Judicial Officer James A. Cohen did not act arbitrarily or capriciously in affirming the Initial Decision of the Chief ALJ Judge Houston, upholding the termination of post office box service to plaintiff. There is substantial evidence in the administrative record demonstrating that plaintiff did not comply with the regulations governing post office box service. Because there is no genuine issue of material fact, this Court will grant summary judgment to defendants on this ground.
B. Federal Tort Claims Act
Defendants argue that this Court lacks subject matter jurisdiction to the extent that plaintiff seeks monetary damages because plaintiff failed to file an administrative tort claim under the Federal Tort Claims Act and, alternatively, plaintiff's present action is time-barred under the Federal Tort Claims Act.
The Federal Tort Claims Act ("FTCA") represents a limited waiver of sovereign immunity that permits an individual to bring an action against an officer of the United States for alleged wrongful or negligent acts. See 28 U.S.C. §§ 2671- 2680. Because the FTCA represents a waiver of sovereign immunity, its provisions are strictly construed. See Pascale v. United States, 998 F.2d 186, 193 (3d Cir. 1993) (citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 94 (1990)). Under the FTCA,
An action shall not be instituted upon a claim against the United States for money damages 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, 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 in writing and sent by certified or registered mail.28 U.S.C. § 2675(a). In this case, defendants assert that the plaintiff's appeal of the decision to terminate post office box service does not constitute sufficient administrative tort notice to defendants as required under § 2675. However, assuming that plaintiff's appeal adequately notified the USPS of his tort claims against it, this Court nevertheless finds that plaintiff's claim is time-barred under the FTCA.
The Court will assume, without deciding, that plaintiff's Petition to Amend Chief ALJ Houston's decision, (AR 96-107), may constitute sufficient notice to the USPS of an administrative tort claim, containing a demand for money damages of $2 million and a reasonable specification of the alleged bases for such damages. However, the Court need not reach this issue here, given the determination that plaintiff's claims are time-barred.
The time for commencing a tort action against the United States is provided for in 28 U.S.C. § 2401:
A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.28 U.S.C. § 2401(b). The Third Circuit has concluded that "[s]ection 2401(b) specifically states that the six month statute of limitations begins to run only when the government agency sends notice of final denial by certified or registered mail."Pascale, 998 F.2d at 193 (citing Stahl v. United States, 732 F. Supp. 86 (D. Kan. 1990)). In Pascale, the Third Circuit considered the interplay of section 2401(b) and section 2675(a), holding that "the six-month statute of limitations in section 2401(b) for filing suit after a final agency denial does not apply to plaintiff's filing of a complaint after six months of agency inaction. . . ." 998 F.2d at 193. In this context, in which plaintiff filed suit after the USPS issued a final decision, and assuming plaintiff's appeal of post office box service termination also constituted an administrative tort claims notice, the six-month statute of limitations as found in 28 U.S.C. § 2401(b) applies to plaintiff's claim.
28 U.S.C. § 2675 provides, in part:
An action shall not be instituted upon a claim against the United States for money damages 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, 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 in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.28 U.S.C. § 2675(a).
Plaintiff's administrative tort claim (assumed for sake of argument) was received by the U.S. Postal Service on October 13, 1999. (AR 96.) The Final Determination rendered by the Judicial Officer regarding the termination of plaintiff's post office box service in the administrative proceeding below was sent to plaintiff via certified mail on January 11, 2000, and was received by plaintiff on January 18, 2000. See Dowdy Decl. Ex. 3. More than a year passed before plaintiff commenced this action in New Jersey Superior Court, Burlington County, Law Division, on April 26, 2001. See id. Ex. 2. The case was later removed to this Court on May 23, 2001. Plaintiff therefore filed this civil suit approximately 15 months after a final decision was rendered by the USPS. Because plaintiff brings his claims outside the time allowed by the applicable statute of limitations under 28 U.S.C. § 2401(b), plaintiff's tort claims against the United States are time-barred under the FTCA. Accordingly, defendants' motion to dismiss and for summary judgment will be granted on this ground.
C. Qualified Immunity Under Bivens
Defendants argue that to the extent that plaintiff seeks monetary damages from defendant Postmaster Herbert, plaintiff cannot recover damages because he has failed to demonstrate that a constitutionally protected right has been violated and that defendant Herbert is entitled to qualified immunity.
The Supreme Court in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics held that a plaintiff may seek money damages from individual federal officers for their alleged violation of plaintiff's constitutional rights. 403 U.S. 388 (1971). The Third Circuit has recognized that courts have generally relied upon the principles developed in the case law applying section 1983 to establish the outer perimeters of aBivens claim against federal officials. See Schrob v. Catterson, 948 F.2d 1402, 1409 (3d Cir. 1991) ("It would be untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials.") (citing Butz v. Economou, 438 U.S. 478, 504 (1978)). When the defendant asserts the affirmative defense of qualified immunity, as in the instant matter, a court must determine as a threshold matter whether the defendant is entitled to that defense. D.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1367-68 (3d Cir. 1992), cert. denied, 506 U.S. 1079 (1993). Under the doctrine of qualified immunity, "[o]fficials exercising discretionary powers are `shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" D.R., 972 F.2d at 1368 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see also Leveto v. Lapina, 258 F.3d 156, 161-62 (3d Cir. 2001) (citing Harlow, 457 U.S. at 818). This determination of whether qualified immunity applies is dependent upon whether plaintiff has alleged the "deprivation of any right secured by the constitution." D.R. 972 F.2d at 1368 (quoting Baker v. McCollan, 443 U.S. 137, 140 (1979)); see also Siegert v. Gilley, 500 U.S. 226, 231 (1991); Leveto, 258 F.3d at 162 (quoting Wilson v. Layne, 526 U.S. 603, 609 (1999)).
In this case, plaintiff alleges in his complaint violations of First, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth, Thirteenth, Fourteenth Amendment rights. Plaintiff asserts, in part:
Defendants have arbitrarily refused without good cause yet shown and even during due process to provide them at 26 Fountain any mail forwarding service to P.O. Box 1628 after July 31, 1999. . . .
The Defendants have never received any public complaint against De Mauro, but have nonetheless singled out De Mauro and the De Mauro family from the public and from De Mauro's competitors for Defendants' breach of the terms of its postal delivery contract and agreement of U.S. Postal Service. All such illegal acts of the Defendants are against the will of De Mauro and the whole De Mauro family and are certainly in abuse of the Defendants' monopoly of massed power.
Compl. at 8. Here, although plaintiff blanketly alleges the above constitutional violations, plaintiff fails to allege the contours of any deprivation of a constitutional right. Significantly, plaintiff fails to allege that he has a liberty interest in a post office box or that he has a constitutional right to post office box service; however, this Court notes further that plaintiff has cited no authority to support any proposed theory that refusal to provide post office box service constitutes a violation of a constitutional right or that one has a liberty interest in post office box service. See, e.g., Abram v. Handley, No. 92-2099(EEO), 1993 WL 141851, at *4 (D. Kan. Apr. 9, 1993) (dismissing Bivens action where federal agents seized plaintiff's post office box for failure to state a claim). Plaintiff clearly received all due process in the Postal Service's proceedings, and he was given repeated opportunities to comply with the constitutionally reasonable requirement of supplying a verified physical address. To the extent he seems to argue that he was singled out, he has not alleged that the postmaster waived the verifiable address requirement for any boxholder, nor that any such singling out, if it occurred, was based on invidious discrimination against De Mauro. Quite plainly a postal patron does not have a constitutional right to insist that the Postal Service waive a reasonable requirement for a verified physical address of each postal box holder.
Given that plaintiff has failed to allege any conduct that violates any constitutionally protected right, defendant Herbert is entitled to qualified immunity and will be shielded from damages. Accordingly, defendants' motion to dismiss and for summary judgment will also be granted on this ground.
D. Plaintiff's Motion to Vacate the Substitution of the U.S. Government and for Sanctions
Plaintiff claims that counsel for defendants "unlawfully substituted the United States as a Defendant in this case in violation of 39 U.S.C. § 409," and asserts that sanctions under Rules 1 and 11 of the Federal Rules of Civil Procedure should be imposed against them for "having caused unnecessary delays and unnecessary expenses of the Plaintiff, and the court." (Pl.'s Notice of Motion, 1/22/02.)
The FTCA provides that
Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.28 U.S.C. § 2679(d)(1). In this case, the record indicates that certification was provided by Assistant United States Attorney Michael A. Chagares, stating that "defendant Michael Herbert was acting within the scope of his employment as an employee of the United States at the time of the incidents alleged in the complaint." Chagares Cert. There is nothing in the record that indicates that defendant Herbert's actions were at any time outside the scope of his employment as postmaster. This is not a close question.
In determining whether defendant Herbert's challenged conduct falls within the scope of his employment, the Court looks to New Jersey law. See Biase v. Kaplan, 852 F. Supp. 268, 292 (D.N.J. 1994) ("For the purposes of section 2670, the scope of a defendant's employment is to be determined `in accordance with the law of place where the act or omission occurred.'") (citingMelo v. Hafer, 912 F.2d 628, 642 (3d Cir. 1990), cert. granted, 498 U.S. 1118, aff'd, 502 U.S. 21 (1991)). Under New Jersey law:
An employee is acting within the scope of [his or her] employment if the action is "of the kind that [the employee] is employed to perform; it occurs substantially within the authorized time and space limits; and it is actuated, at least in part, by a purpose to serve the master.Biase, 852 F. Supp. at 292 (quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 771 (1989)). In this case, plaintiff's complaint asserts no factual allegations of actions taken beyond defendant Herbert's duties as a postal employee and, moreover, fails to rebut the certification provided by AUSA Chagares. The facts as alleged demonstrate that defendant Herbert's conduct falls within the scope of his employment. Upon review of the record, this Court finds that substitution of the United States as defendant as to the common law tort claims is proper because all actions or omissions complained of were within the scope of federal employment and thus the United States is the sole proper defendant. Accordingly, this Court will deny plaintiff's motion.
Additionally, plaintiff asserts that defendants should be sanctioned under Rules 1 and 11, Fed.R.Civ.P., because they harassed plaintiff, and caused unnecessary delays and unnecessary expenses. Rule 11 authorizes sanctions against a signer of a pleading presented for an improper purpose and requires a showing of objectively unreasonable conduct. See In re Prudential Ins. Co. America Sales Practice Litig. Agent Actions, 278 F.3d 175, 187 n. 7 (3d Cir. 2002) (citing Fellheimer, Eichen Braverman v. Charter Technologies, Inc., 57 F.3d 1215, 1225 (3d Cir. 1995)); Fed.R.Civ.P. 11. Here, absent specific factual allegations that defendants engaged in objectively unreasonable conduct, and considering that the record demonstrates that defendant had just cause to institute substitution of the United States in place of defendant Herbert as to common law tort claims, this Court will deny plaintiff's motion for sanctions on this ground.
In addition, plaintiff moves for sanctions pursuant to Rule 1, Fed.R.Civ.P. To the extent that Rule 1 discusses the "Scope and Purpose of Rules" and does not permit any sanctions as contemplated by the plaintiff, see, e.g., Anderson v. Pierce, 815 F.2d 701, at *7 (6th Cir. 1987) (unpublished opinion) ("Rule 1 . . . has no bearing on sanctions."), this Court will also deny plaintiff's motion for sanctions on this ground.
Rule 1, Fed.R.Civ.P., provides:
These rules govern the procedure in the United States district courts in all suits of a civil nature whether cognizable as cases at law or in equity or in admiralty, with the exceptions stated in Rule 81. They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.
CONCLUSION
For the reasons discussed above, defendants' motion to dismiss and for summary judgment will be granted, and plaintiff's complaint will be dismissed. The accompanying Order is entered.
ORDER
THIS MATTER having come before the Court upon motion to dismiss and for summary judgment by defendants United States Postal Service, Postmaster Michael Herbert, and the United States of America, and plaintiff Louis R. De Mauro's Motion to Vacate the Court's Decision to Substitute the U.S. Government in the Place of the Named Defendants in the Plaintiff's Complaint and for Sanctions; and the Court having considered the parties' submissions; and for good cause shown; and for the reasons discussed in the Opinion of today's date;IT IS on this __ day of March, 2002, hereby
ORDERED that defendants' motion to dismiss or for summary judgment [Docket Item 11] be, and hereby is, GRANTED ; and it is
FURTHER ORDERED that plaintiff's Motion to Vacate the Court's Decision to Substitute the U.S. Government in the Place of the Named Defendants in the Plaintiff's Complaint and for Sanctions [Docket Item 14-1] be, and hereby is, DENIED ; and
IT IS FURTHER ORDERED that the entirety of plaintiff's complaint be, and hereby is, DISMISSED.