Opinion
No. 17-35004
12-28-2017
FREDERIC PAUL SMITH, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee.
NOT FOR PUBLICATION
D.C. No. 1:16-cv-00126-SPW MEMORANDUM Appeal from the United States District Court for the District of Montana
Susan P. Watters, District Judge, Presiding Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Frederic Paul Smith appeals pro se from the district court's judgment dismissing on the basis of sovereign immunity his action against the United States Postal Service ("USPS") alleging that a USPS employee stole a sapphire he sent through the U.S. mail. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Harger v. Dep't of Labor, 569 F.3d 898, 903 (9th Cir. 2009). We affirm.
The district court properly dismissed Smith's action on the basis of sovereign immunity because the waiver of sovereign immunity under 28 U.S.C. § 1346(b) does not apply to "[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter." 28 U.S.C. § 2680(b); see also 28 U.S.C. § 1346(b) (waiving United States sovereign immunity for certain tort actions); Dolan v. U.S. Postal Serv., et al., 546 U.S. 481, 487 (2006) (discussing meaning of "loss" under § 2680(b)).
Contrary to Smith's contention, the USPS did not waive its sovereign immunity in its letter denying Smith's administrative claim. See Gilbert v. DaGrossa, 756 F.2d 1455, 1460 n.6 (9th Cir. 1985) ("A claim for damages against a federal agency is barred by sovereign immunity unless Congress has consented to suit.").
We do not consider documents not presented to the district court. See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) ("Documents or facts not presented to the district court are not part of the record on appeal.").
AFFIRMED.