Opinion
Civil Action No. 99-1539 (NHP).
May 20, 1999.
Mr. Olivio Ippolito, Carlstadt, N.J., Plaintiff Pro Se.
Peter G. O'Malley, Assistant U.S. Attorney, FAITH S. HOCHBERG, UNITED STATES ATTORNEY, Newark, N.J., Attorneys for Defendant.
LETTER ORDER ORIGINAL ON FILE WITH CLERK OF THE COURT
Dear Litigants:
This matter comes before the Court on defendant Postmaster Ronald Chesney's Motion to Dismiss the Complaint of pro se plaintiff Olivio Ippolito. This matter was decided pursuant to Federal Rule of Civil Procedure 78. For the reasons stated herein, defendant Ronald Chesney's Motion to Dismiss is GRANTED and pro se plaintiff Olivio Ippolito's Complaint is DISMISSED. Furthermore, this case is CLOSED.
DISCUSSION
Pro se plaintiff Olivio Ippolito ("plaintiff") alleges, via Complaint, that because of a failure on the part of the Carlstadt Post Office, under the supervision of defendant Postmaster Ronald Chesney ("defendant"), to deliver a document relating to the suspension of motor vehicle insurance, he lost his driver's license for one year. Plaintiff further alleges an unspecified injury relating to "miscellaneous delivery problem not insured." Plaintiff claims damages in the amount of $1,086.00.Plaintiff's claim against defendant for the alleged misdelivery of mail is a claim against the government of the United States. See Anderson v. United States Postal Service, 761 F.2d 527, 528 (9th Cir. 1985). The United States, as sovereign, is "immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." Lehman v. Nakshian, 453 U.S. 156, 160 (1981).
By enacting the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346 and 2671, et seq., Congress provided a waiver of sovereign immunity in certain cases. See 28 U.S.C. § 1346(b). However, § 2680(b) of the FTCA specifically retains sovereign immunity for tort claims against the United States for "loss, miscarriage or negligent transmission" of the mails or postal matter. See § 2680(b). See also Anderson v. United States Postal Service, 761 F.2d 527, 528 (9th Cir. 1985); Insurance Co. of North America v. United States Postal Service, 675 F.2d 756, 759 (5th Cir. 1982); Djordjevic v. Postmaster General, United States Postal Service, 957 F. Supp. 31, 34 (E.D.N.Y. 1997). Accordingly, since plaintiff's claim sounds in tort, this Court lacks subject matter jurisdiction and, therefore, plaintiff's Complaint must be DISMISSED.
28 U.S.C. § 1346(b)(1) provides:
Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District of the Virgin Islands, shall have exclusive jurisdiction of civil actions on 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. § 2680(b) provides:
The provisions of this chapter and section 1346(b) of this title shall not apply to-
(b) Any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.
As an aside, tort actions may not proceed against the United States Postal Service under the "sue and be sued" clause set forth in the Postal Reorganization Act of 1970, 39 U.S.C. § 401(1) . See Allied Coin Investment, Inc. v. U.S. Postal Service , 673 F. Supp. 982 (D.Minn. 1987).