Barbara Dolan; Michael Dolan, W/h v. the United States Postal Service

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PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
______________
No: 03-1840
______________
BARBARA DOLAN; MICHAEL
DOLAN, W/H,
Appellants
v.
THE UNITED STATES POSTAL
SERVICE;
UNITED STATES OF AMERICA
_____________________
Appeal from the United States
District Court for the Eastern
District of Pennsylvania
(D.C. Civil Action No. 02-cv-07891)
District Judge: Honorable Mary A.
McLauglin
_____________________
Submitted Under Third Circuit LAR
34.1(a)
on February 10, 2004
Before: SCIRICA, Chief Judge, ROTH
and McKEE, Circuit Judges
(Opinion filed August 2, 2004)
James R. Radmore, Esquire
Law Office of James R. Radmore, P.C.
Two Penn Center, Suite 312
1500 JFK Boulevard
Philadelphia, PA 1902
Counsel for Appellants
Patrick L. Meehan
United States Attorney
Laurie Magid
Deputy United States Attorney
for Policy and Appeals
Virginia A. Gibson
Assistant United States Attorney
Chief, Civil Division
Nancy L. Griffin
Assistant United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19016
Counsel for Appellees
_____________
OPINION
______________
ROTH, Circuit Judge:
Appellant Barbara Dolan was
injured allegedly as a result of mail
negligently placed on her porch by a
United States Postal Service (USPS)
employee. Having properly exhausted her

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administrative remedies, Dolan filed a
claim under the Federal Tort Claims Act
(FTCA) in the United States District Court
for the Eastern District of Pennsylvania.
Citing 28 U.S.C. § 2680(b)’s exception to
the FTCA for negligent transmission of the
mail, the government filed a Fed. R.Civ. P.
Rule 12(b)(1) motion to dismiss for lack of
subject matter jurisdiction and the District
Court granted it. Dolan appeals, arguing
that § 2680(b)’s exception does not
include immunity for the negligent
delivery or placing of the mail. This is an
issue of first impression in this Circuit
After careful consideration, we conclude
that the District Court was correct in its
determination and will affirm.
I. Factual and Procedural History
On August 25, 2001, Dolan fell
over letters, packages and periodicals
placed by a USPS employee on her porch.
As a result of the fall, Dolan suffered
serious injury.
In compliance with 28 U.S.C. §
2675, Dolan filed an administrative claim
prior to filing her FTCA complaint. This
administrative claim, however, was denied
on April 18, 2002. On October 15, 2002,
Dolan filed a complaint under the FTCA
against the United States and the USPS in
the United States District Court for the
Eastern District of Pennsylvania. Her
husband, Michael Dolan, also filed a
FTCA claim for loss of consortium.
On February 7, 2003, the
government filed its Rule 12(b)(1) motion
to dismiss for lack of subject matter
jurisdiction. The Dolans responded,
conceding that the United States was the
only appropriate defendant but otherwise
opposing the motion.
On March 19, 2003, the District
Court granted the government’s motion to
dismiss, holding that Barbara Dolan’s
claim was barred by 28 U.S.C. § 2680(b).
The District Court also dismissed Michael
Dolan’s claim because it was derivative of
his wife’s claim.
On appeal, the Dolans concede that
Michael Dolan did not timely exhaust his
administrative remedies. Thus, the only
the question before us is whether the
District Court properly dismissed Barbara
Dolan’s claim for lack of subject matter
jurisdiction.
II. Jurisdiction and Standard of
Review
Because the Dolans brought their
claim under the FTCA, the District Court
had jurisdiction pursuant to 28 U.S.C. §
1346(b). We have appellate jurisdiction
under 28 U.S.C. § 1291. Our review is
plenary where the District Court dismisses
for lack of subject matter jurisdiction.
Gould Elecs., Inc. v. United States, 220
F.3d 169, 176 (3d Cir. 2000).
III. Discussion
“It is a fundamental principle of
sovereign immunity that federal courts do
not have jurisdiction over suits against the
United States unless Congress, via a
statute, expressly and unequivocally
waives the United States’ immunity to
suit.” United States v. Bein, 214 F.3d 408,
412 (3d Cir. 2000) (citing United States v.

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Mitchell, 463 U.S. 206, 212 (1983)).
“[W]hen the Government does consent to
be sued, ‘the terms of [the] waiver of
sovereign immunity define the extent of
the court’s jurisdiction.’” Id. (quoting
United States v. Mottaz, 476 U.S. 834, 841
(1986)). “Waivers of the Government’s
sovereign immunity, to be effective, must
be unequivocally expressed, and any such
waiver must be construed strictly in favor
of the sovereign.” Id. (quoting United
States v. Nordic Village, Inc., 503 U.S. 30,
33-34 (1992)) (internal quotation marks
omitted). The FTCA waives the
government’s sovereign immunity when
government employees act negligently
within the scope of their official duties. 28
U.S.C. § 1346(b).
At issue here is an exception to the
FTCA which provides that this waiver
shall not apply to “[a]ny claim arising out
of the loss, miscarriage, or negligent
transmission of letters or postal matters.”
28 U.S.C. § 2680(b). Dolan contends that
the words “negligent transmission” in §
2680(b) do not include a USPS employee’s
negligent placing of the mail. In essence,
she invites us to read § 2680(b) as only
providing the government immunity for
mail lost, delayed or damaged in transit.
Relying on United States v. Yellow
Cab Co., 340 U.S. 543, 554 (1951), Dolan
argues that, under the FTCA, immunity is
generally waived in favor of the injured
party. Dolan also cites § 2680(b)’s
legislative history as discussed in
Suchomajcz v. United States, 465 F. Supp.
474, 476 (E.D. Pa. 1979), in support of her
more narrow definition of “negligent
transmission.” She points out that the
District Court in Suchomajcz noted that in
passing § 2680(b) “Congress was
concerned with shielding the courts from
the potential landslide of lawsuits that
might be generated by the unavoidable
mishaps incident to the ordinary accepted
operations of delivering millions of
packages and letters each year.” Id., 465
F. Supp. at 476 (quoting Birnbaum v.
United States, 436 F. Supp. 967, 974
(E.D.N.Y. 1977)). Dolan maintains that
this history indicates Congress only
intended § 2680(b) to protect the
government from claims resulting from the
loss or delay of mail, not torts resulting
from negligently placed mail. While she
concedes that Bono v. United States, 145
F. Supp. 2d 441 (D.N.J. 2001), the only
prior case in this Circuit to substantially
address the facts and issue at hand,
interpreted § 2680(b) to bar the type of suit
she now brings, Dolan argues that both
Bono court and the District Court in this
case erred in reading the statutory
definition of “transmission” to include
negligent placing or delivery of the mail.
Finally, she alleges that the FTCA’s
underlying objectives are not served by a
b r o a d d e f i n i t io n o f “ n e g l ig e n t
transmission.” See Kozak v. United States,
465 U.S. 848, 858 (1984).
While we note that the Second
Circuit Court of Appeals recently held in
Raila v. United States, 355 F.3d 450 (2d
Cir. 2004), that the words “negligent
transmission” are limited to the loss or
miscarriage of postal material, we disagree
with that holding. To the extent that
“negligent transmission” is ambiguous at

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all, any ambiguities in the language of a
purported waiver of sovereign immunity
must be construed in favor of the
government. Lane v. Pena, 518 U.S. 187,
192 (1996). Construing 2680(b) in such a
way is made all the easier by the statute’s
expansive language. The phrase “[a]ny
claim arising out” evinces Congress’s
intent to broaden rather than limit the
exception for “negligent transmission of
letters or postal matter.”1
Moreover, § 2680(b)’s legislative
history makes plain that Congress intended
to protect the government from lawsuits
that might be generated by the unavoidable
mishaps incident to the ordinary accepted
operations of delivering millions of
packages and letters each year.
Suchomajcz, 465 F. Supp. at 476.
Notwithstanding Dolan’s arguments to the
contrary, the USPS’s “ordinary accepted
operations” of necessity must encompass
more than merely the mechanical sorting
and transfer of the mail. Indeed, it is hard
to imagine a more ordinary accepted
operation incident to delivering millions of
packages and letters each year than the
ultimate act of delivery by USPS
employees.
We thus agree with the District
Court that there is nothing out of the
ordinary about a US PS employee
delivering the mail or placing the mail on
the porch instead of in the mailbox.
Dolan’s accident was incidental to the
USPS employee placing the mail on the
porch. Because USPS employees do not
monitor how the mail they deliver is
retrieved by third-parties, mishaps related
to the retrieval of the mail may be
unavoidable.
We hold therefore that in the
context of delivering letters or postal
matter, “transmission” means the process
of conveying 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.
Such an interpretation of § 2680(b)
furthers the FTCA’s underlying objectives,
particularly those of ensuring that a key
governmental activity will not be disrupted
by damage suits and of limiting the
exposure of United States to excessive or
fraudulent claims. See Kozak, 465 U.S. at
858.
IV. Conclusion
For the foregoing reasons, we will
affirm the judgment of the District Court.
1Robinson v. United States, 849 F.
Supp. 799 (S.D. Ga. 1994), reached a
similar interpretation of § 2680(b)’s
language. Id. at 802 (citing Kosak, 465
U.S. at 854).

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