United States Court of Appeals
For the First Circuit
No. 08-1266
JOSEPH K. LEVASSEUR,
Plaintiff, Appellant,
v.
U.S. POSTAL SERVICE,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Lipez, Selya and Howard,
Circuit Judges.
John K. Levasseur on brief pro se.
Michelle A. Windmueller, Attorney, Appellate Division, Hélène
Kazanjian, Special Attorney to the United States Attorney General,
and Lori J. Dym, Chief Counsel, Appellate Division, on brief for
appellee.
October 1, 2008
Per Curiam. We affirm the judgment substantially for the
reasons enumerated in the district court's opinion, see 2007 WL
2011273 (D.N.H. 2007), adding only the following comments.
This case raises a single issue involving the so-called
"postal-matter exception" to the Federal Tort Claims Act. That
exception preserves sovereign immunity for "[a]ny claim arising out
of the loss, miscarriage, or negligent transmission of letters or
postal matters." 28 U.S.C. § 2680(b). The question is whether the
theft or concealment of mail--in this case, political campaign
flyers that were diverted by a partisan postal employee to prevent
them from being delivered to voters shortly before a municipal
election--falls within that provision. The district court deemed
the exception applicable and thus dismissed for lack of
jurisdiction.
Levasseur contends that the postal-matter exception does
not apply to intentional torts. In his view, the plain meaning of
the statutory language supports such a conclusion. To the
contrary, as the district court explained, the fact that the word
"negligent" only modifies the word "transmission" indicates that
intentional acts of "loss" and "miscarriage" are also covered.
See, e.g., Watkins v. United States, 2003 WL 1906176, at *4 (N.D.
Ill. 2003). Levasseur has offered no rebuttal to this line of
reasoning.
-2-
Levasseur also relies on a comment in Birnbaum v. United
States, 588 F.2d 319 (2d Cir. 1978). Under challenge there was a
CIA program in which letters to and from the Soviet Union were
opened, photocopied, and then returned to the mail for delivery.
In concluding that the postal-matter exception did not bar suit,
the court stated as follows:
The language of the exception itself
indicates that it was not aimed to encompass
intentional acts. Had Congress intended to
bring intentional disturbance of the integrity
of a letter within the postal exception, it
would not have used the term "negligent
transmission." Nor were the letters lost or
miscarried. "Miscarriage" in the context of
mail means misdelivery.
Id. at 328 (emphasis added and deleted). Levasseur relies on the
emphasized sentence. Yet it seems clear that this remark pertained
solely to the "negligent transmission" factor, for it otherwise
would have conflicted with Marine Ins. Co. v. United States, 378
F.2d 812 (2d Cir. 1967). It was there held that the § 2680(b)
exception applied to the theft of postal matter by a governmental
employee. The Birnbaum court was able to distinguish that decision
because, unlike in the case before it, the claim in Marine had
involved the package's "'loss' from the postal system." Birnbaum,
588 F.2d at 328 n.20; accord C.D. of NYC, Inc. v. U.S.P.S., 2005 WL
3322993, at *1 (2d Cir. 2005) (applying Marine and holding that
theft of mail by postal employees involved "loss"; distinguishing
Birnbaum on ground that mail there "was not lost"), cert. denied,
-3-
127 S. Ct. 346 (2006); see also Georgacarakos v. United States, 420
F.3d 1185, 1188 (10th Cir. 2005) (distinguishing Birnbaum on same
basis). Since Birnbaum did not involve a loss, the remark in
question also would have been dicta if it was meant to apply
thereto. Levasseur thus derives no support from that decision.
Indeed, the cases holding that theft of mail is a "loss"
for purposes of § 2680(b) directly undermine Levasseur's position,
since theft is of course a form of intentional misconduct. We
think it entirely reasonable to say, as these cases have, that mail
that is stolen by a postal employee is thereby "lost" from the
postal system.
The Supreme Court has stated that, as a general rule, the
postal-matter exception preserves immunity for "injuries arising,
directly or consequentially, because mail either fails to arrive at
all or arrives late, in damaged condition, or at the wrong
address." Dolan v. U.S.P.S., 546 U.S. 481, 489 (2006). It
provided several examples of such injuries, including "harms
arising from nondelivery or late delivery of sensitive materials or
information (e.g., medicines or a mortgage foreclosure notice)."
Id. The claim here, which similarly complains of the "nondelivery
... of sensitive materials," falls squarely within this category.
Affirmed.
-4-