FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MB FINANCIAL GROUP, INC., a
Delaware Corporation doing
business as Union Affiliates
No. 06-56267
Mortgage Company,
Plaintiff-Appellant,
D.C. No.
CV-06-00266-DMS
v.
OPINION
UNITED STATES POSTAL SERVICE;
UNITED STATES OF AMERICA,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Argued and Submitted
March 4, 2008—Pasadena, California
Filed September 25, 2008
Before: Mary M. Schroeder, Kim McLane Wardlaw and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Schroeder;
Dissent by Judge Tallman
13761
13764 MB FINANCIAL GROUP v. USPS
COUNSEL
Steven S. Kane, San Diego, California, for the plaintiff-
appellant.
Ray E. Donahue, Washington, D.C., for the defendants-
appellees.
OPINION
SCHROEDER, Circuit Judge:
This is an unusual case involving the potential liability of
the United States Postal Service (“USPS”) for failing to make
available a post office box it was obligated to provide for
receipt of plaintiff’s business mail. The district court dis-
missed the complaint pursuant to Federal Rule of Civil Proce-
dure 12 for lack of jurisdiction and failure to state a claim,
MB FINANCIAL GROUP v. USPS 13765
holding that the USPS was immune under the provision of the
Federal Tort Claims Act (“FTCA”) that exempts the USPS
from liability arising from negligently transmitted mail. See
28 U.S.C. § 2680(b).
We reverse. The complaint alleges a tort that does not nec-
essarily arise out of the negligent transmission of mail. The
complaint also alleges a facially viable breach of contract
claim. The dismissal of the action at this preliminary stage,
before any discovery could reveal either the USPS records of
the transaction or the true nature of the parties’ understanding,
was erroneous.
I. Background
MB Financial Group, Inc. (“MB Financial”) sells mail
order mortgage loans to members of labor unions in the San
Diego area. Its business depends on receiving mailed-in
responses to its solicitations. It rented a post office box in a
USPS branch office in San Diego and paid for six months of
usage. The USPS, admittedly through its own fault, did not
make the box available for the full six months. MB Financial
alleges that, as a result, it lost hundreds of thousands of dol-
lars worth of business.
MB Financial, according to its complaint, rented the box on
June 30, 2004, and paid fifty dollars as a six month rental fee.
Some time later that year, one of its representatives contacted
the USPS branch office to complain about not receiving mail.
In a letter dated January 3, 2005, which was attached to the
complaint, the USPS apologized and acknowledged that it
“may have been at fault” for the “premature closure of [the]
PO Box” due to “improper handling of fees.”
MB Financial filed this action against the USPS and the
United States in federal district court in April 2006, alleging
two claims for relief. The first was a negligence claim under
the FTCA, 28 U.S.C. § 2671 et seq., alleging that the USPS
13766 MB FINANCIAL GROUP v. USPS
negligently denied MB Financial use of the post office box for
which MB Financial had paid rental fees. The second was a
claim for breach of contract, alleging that the USPS failed to
credit MB Financial’s payment, and wrongfully failed to
make the box available for plaintiff’s use. The complaint
prayed for damages of $263,092.05, representing the alleged
profits lost as a result of MB Financial’s not receiving
responses to its direct mail solicitations of prospective cus-
tomers.
The defendants moved to dismiss the action and the district
court granted the motion. The district court held that
§ 2680(b) barred relief on the tort claim on the ground that it
was essentially a claim for negligent mail transmission. The
court said, quoting the complaint, that the essence of Plain-
tiff’s claim is that it did not receive its mailed-in responses to
its direct mail solicitations due to the defendants’ negligence.
The district court held that § 2680(b) barred relief on the
breach of contract claim as well because it was “based on the
same facts as [the] negligence claim.” As an alternative
ground, the district court held that the Postal Reorganization
Act of 1971 (“PRA”), 39 U.S.C. § 401(1), did not provide
subject matter jurisdiction over the contract claim. Specifi-
cally, the Act’s “sue and be sued” clause did not provide any
“substantive basis for a claim against the Postal Service.”
Because the district court dismissed the action on the plead-
ings, the parties never engaged in any discovery. This appeal
followed.
II. Statutory Background
Since its founding, the Postal Service has been reorganized
at various times. U.S. Postal Serv. v. Flamingo Indus. (USA)
Ltd., 540 U.S. 736, 739-40 (2004). In 1970 Congress passed
the PRA, which created the structure of the modern postal ser-
vice. Id. The PRA makes the USPS an “independent estab-
lishment of the executive branch of the Government of the
United States.” 39 U.S.C. § 201. As such, the USPS enjoys
MB FINANCIAL GROUP v. USPS 13767
sovereign immunity absent a waiver. Flamingo Indus., 540
U.S. at 744.
[1] Congress has provided for such a waiver. The PRA
waives the immunity of the USPS by giving it the power “to
sue and be sued in its official name.” 39 U.S.C. § 401(1); see
also Flamingo Indus., 540 U.S. at 741. The PRA also pro-
vides that the FTCA “shall apply to tort claims arising out of
the activities of the Postal Service.” 39 U.S.C. § 409(c). The
FTCA, in turn, provides a general waiver of sovereign immu-
nity subject to specific exceptions. The FTCA gives federal
courts exclusive jurisdiction to hear
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. § 1346(b)(1).
[2] The FTCA, in § 2680, qualifies this broad waiver by
retaining sovereign immunity for thirteen categories of
claims. One of those categories, described in § 2680(b), per-
tains to the operations of the USPS and is at issue in this suit.
Section 2680(b) provides that the waiver of sovereign immu-
nity in § 1346(b) “shall not apply to . . . [a]ny claim arising
out of the loss, miscarriage, or negligent transmission of let-
ters or postal matter.” The issue here is thus whether wrongful
failure to provide a box at the Post Office arises out of the
“negligent transmission” of the mail.
13768 MB FINANCIAL GROUP v. USPS
III. Analysis
A. The Tort Claim
The district court held that the USPS liability exception for
negligent mail transmission barred MB Financial’s tort claim.
MB Financial argues on appeal that § 2680(b) does not bar
recovery because its claim does not arise out of mail “trans-
mission,” but from failure to process properly the fee that
would make the P.O. box available. The Postal Service count-
ers that § 2680(b) does bar relief because the harm suffered
by MB Financial was the nondelivery of mail.
There is scant authority interpreting this exception. The
only Supreme Court case applying it is Dolan v. U.S. Postal
Service, 546 U.S. 481 (2006). Both sides argue that case con-
trols, although they differ as to the result it requires. No fed-
eral court of appeals has interpreted § 2680(b) in a published
opinion after Dolan.
In Dolan, the plaintiff sued the USPS for injuries she suf-
fered when she tripped and fell over mail parcels left on her
porch by postal employees. 546 U.S. at 483. The district court
and the court of appeals both concluded that the postal service
exception barred her claim, because the negligent placement
of the parcels was part of the transmission of mail. Id. at 483,
486. The Supreme Court reversed, id. at 492, construing the
exception more narrowly.
The Court explained that, “in isolation, the phrase ‘negli-
gent transmission’ [in § 2680(b)] could embrace a wide range
of negligent acts committed by the Postal Service in the
course of delivering mail, including creation of slip-and-fall
hazards from leaving packets and parcels on the porch of a
residence.” Id. at 486. Such a reading, however, would sweep
too far. The Court said, “context and precedent require a nar-
rower reading.” Id.
MB FINANCIAL GROUP v. USPS 13769
[3] As precedent, the Supreme Court looked to Kosak v.
United States, 465 U.S. 848 (1984), interpreting another
FTCA tort liability exception, involving claims for the deten-
tion of property by customs officials. In Kosak, the Supreme
Court had compared the customs service exception in
§ 2680(c) with the postal service exception in § 2680(b), con-
cluding that the postal exception was narrower and more spe-
cific. Dolan, 546 U.S. at 487 (citing Kosak, 465 U.S. at 855).
The Court in Kosak had looked to the history of the FTCA
and the problems Congress had tried to resolve with the stat-
ute, particularly with respect to post office drivers. The Kosak
Court had observed that “ ‘[o]ne of the principal purposes of
the Federal Tort Claims Act was to waive the Government’s
immunity from liability for injuries resulting from auto acci-
dents in which employees of the Postal System were at
fault.’ ” Id. at 487-88 (quoting Kosak, 465 U.S. at 855). In
light of this purpose, the Supreme Court said in Dolan that it
could not interpret the phrase “negligent transmission” in
§ 2680(b) as broadly as the USPS wished so as to cover all
negligent acts that occur in the course of mail delivery. Id. at
488. The Dolan court explained: “Although postal trucks may
well be delivering—and thus transmitting—mail when they
collide with other vehicles, Kosak indicates the United States,
nonetheless, retains no immunity.” Id. The negligence was in
truck driving, not in mail transmission, so there was no immu-
nity. On the basis of this analysis, the Supreme Court held
that §2680(b) did not bar the plaintiff’s claim that negligent
placement of mail at her home resulted in her personal inju-
ries. Id. at 492. Instead, her claim fell within the overarching
principle of the FTCA that the government should be liable
for the negligence of its employees in the same manner that
private entities would be liable in similar circumstances. See
id.
Dolan may also be read as distinguishing between the his-
torically governmental service of carrying the United States
mail and the performance of acts that may be related to deliv-
ery, but constitute more ordinary activities that private actors
13770 MB FINANCIAL GROUP v. USPS
engage in as well. Hence, negligent driving of postal trucks
was a principle activity for which Congress wanted to create
liability when the FTCA waived sovereign immunity. The
FTCA made the USPS liable for negligence of its drivers in
the same manner that state law makes private employers lia-
ble for the negligence of their truck driver employees. See
Restatement (Third) of Agency § 2.04. Construing the excep-
tion broadly, so as to cover delivery as well as transmission
of the mail, would have immunized the negligence of drivers
and frustrated the legislative purpose of the FTCA. The
exception would have swallowed the rule.
[4] The Supreme Court in Dolan quoted with approval an
earlier decision of the Second Circuit in Raila v. United
States, 355 F.3d 118 (2d Cir. 2004). See Dolan, 546 U.S. at
486. The Second Circuit had held that the Postal Service
exception of § 2680(b) did not immunize the government
from liability for a slip-and-fall caused by mail negligently
left at the plaintiff’s residence. Id. at 119. The court had
observed that it was interpreting the postal service exception
more narrowly than the language of the exception might sug-
gest. Id. at 119, 120-21. As the Second Circuit had explained,
the phrase “negligent transmission” in § 2680(b) could be
read to encompass every negligent action taken by a postal
worker “[b]ecause a postal worker’s every step is, on some
level, taken as part of the transmission of letters and postal
matter—that being the business of the USPS.” Id. at 120
(internal alterations and quotation marks omitted). The court
of appeals rejected this reading, concluding that Congress
intended the language to be interpreted more narrowly. Id.
The Supreme Court approved this analysis. See Dolan, 546
U.S. at 486.
[5] The Court in Dolan also approved the Second Circuit’s
reasoning that focused on whether the plaintiff could insure
against the harm of which she complained. See id. at 490. The
Second Circuit had stated in Raila that “where the nature of
the injury was such that an injured party [cannot] protect him-
MB FINANCIAL GROUP v. USPS 13771
self or herself by registering the parcel, the postal matter
exception [does] not apply.” 355 F.3d at 122. The Second Cir-
cuit had explained that it is easier and more efficient to
encourage the purchase of insurance, rather than encourage
litigation to protect against the unavoidable mishaps that are
incident to the USPS’ ordinary function of mail delivery. Id.
However, where insurance was available to compensate the
plaintiff for her loss, the Postal Service exception was not
available to the USPS as a shield. Id. The sender’s registration
of the packages could not have compensated for the plaintiff’s
tripping over them.
[6] In this case, the alleged negligence was not in transmit-
ting the mail to the proper place of delivery. Rather, it was in
the admittedly improper handling of MB Financial’s payment
for its post office box, due to the failure to process the
renewal. The negligence occurred after the mail was transmit-
ted to the Post Office, and in this sense is similar to the negli-
gence of the postal delivery employees in Dolan who did not
put the boxes in an appropriate place after they had been
delivered to the right address. The policy of the FTCA sup-
ports the principle that the USPS should be liable on the same
basis that a private provider of mail box services would be lia-
ble under state law for failing to exercise reasonable care to
see that the box remained open to receive responses to MB
Financial’s solicitations.
Furthermore, like Dolan and Raila, the plaintiff’s losses are
not compensable through insurance. Cf. Dolan, 546 U.S. at
490 (“[L]osses of the type for which immunity is retained
under § 2680(b) are at least to some degree avoidable or com-
pensable through postal registration and insurance.”). The
USPS conceded that MB Financial could not have purchased
insurance to protect itself against the harm of which it com-
plains. The complaint alleged that, as a result of negligence in
record keeping, the plaintiff did not receive responses to its
direct mail solicitations.
13772 MB FINANCIAL GROUP v. USPS
[7] We stress that in holding the complaint states a claim
for which the Postal Service is not immune, we are not hold-
ing that it is liable. The actual conduct of the postal employ-
ees is not yet known, beyond the admissions in the USPS’s
apology, which was attached in the complaint, for “delay or
loss of mail due to improper handling of fees.” Because this
was a dismissal on the pleadings, however, we do not know
the contours of the obligation or the duty the defendants owed
the plaintiff. For example, we do not know if the plaintiff
acknowledged any limitations on the liability of the post
office. We do not know what, if any, representations were
made to the plaintiff regarding the availability of the box and
the duration of its access. We hold only that the allegations of
the complaint indicate that the negligence did not arise out of
the transmission of the mail within the meaning of § 2680(b),
as construed in Dolan.
B. The Contract Claim
[8] With respect to the contract claim, the district court held
that because it was based on the same facts as the tort claim,
the contract claim was also barred by § 2680(b). Since we
hold that the tort claim is not barred by § 2680(b), the contract
claim is also not barred.
The district court correctly noted that a plaintiff is generally
entitled to plead alternative or multiple theories of recovery
on the basis of the same conduct on the part of the defendant.
See Fed. R. Civ. P. 8(d)(2) (“A party may set out [two] or
more statements of a claim or defense alternatively or hypo-
thetically, either in a single count or defense or in separate
ones.”); Ajax Hardware Mfg. Corp. v. Indus. Plants Corp.,
569 F.2d 181, 185 (2d Cir. 1977) (“Negligent performance of
a contract may give rise to a claim sounding in tort as well as
one for breach of contract.”)
The claims in this case arise out of the same situation but
do not necessarily rest on the same facts. The tort claim seeks
MB FINANCIAL GROUP v. USPS 13773
damages that resulted from the USPS’s alleged negligent
record keeping that closed the box to MB Financial’s mail.
The contract claim alleges that the post office breached an
express agreement to provide a six-month rental of a post
office box in exchange for MB Financial’s payment of the
fee. Again, because the case was dismissed at the pleading
stage we do not know the precise contours of that agreement.
[9] The district court correctly recognized that the “sue and
be sued” provision of the PRA does not create a cause of
action against the USPS. It is merely waiver of sovereign
immunity. See Flamingo, 540 U.S. at 743-44. Here, the tort
claim is asserted pursuant to the FTCA as it has been incorpo-
rated in the PRA. The contract claim rests on the alleged con-
tractual agreement of the parties and common law principles
of contract law. See Herin v. U.S. Postal Serv., 116 F.3d 988,
990-91 (2nd Cir. 1997). A substantive law foundation thus
exists for both of MB Financial’s claims as alleged in the
complaint.
REVERSED.
TALLMAN, Circuit Judge, dissenting in part:
The majority today circumvents express congressional
intent to immunize the Postal Service from liability arising
out of consequential damages claims for failure to deliver
mail after M.B. Financial’s (M.B.) post office box was closed
prematurely following M.B.’s submission of a check to renew
the rental period. I respectfully dissent from part III A of the
majority’s opinion. I otherwise concur in the result the major-
ity reaches.
13774 MB FINANCIAL GROUP v. USPS
I
A
As a society, we have entered into a social contract with the
federal government. We pay taxes and receive certain services
in return, some of which would never be provided unless the
government steps in to correct what economists term a “mar-
ket failure.” See U.S. Postal Serv. v. Council of Greenburgh
Civic Assoc., 453 U.S. 114, 121 (1981) (explaining that “[t]he
Post Office played a vital yet largely unappreciated role in the
development of our new nation”). At bottom, market failure
occurs when there is no incentive for private businesses to
provide a service. Historically, the provision of national and
international mail services at affordable prices has been
among the market failures the government has rectified. See
id. (noting that “[b]y the early eighteenth century, the posts
were made a sovereign function in almost all nations because
they were considered a sovereign necessity”). Creating what
is now called the United States Postal Service was the Ameri-
can answer. See id.
To be sure, in modern times, private players have partially
entered the market. Consistent with rational economic incen-
tives to seek the highest returns, these private companies have
cornered the express post market niche. They do not, how-
ever, deliver letters at the current first class rate of 42 cents
anywhere in the country. Typically, private companies pro-
vide rush service at much higher rates and do not possess the
infrastructure nor economic incentive to deliver mail on the
same scale as the Postal Service. Tellingly, they limit by con-
tract of carriage their liability to a modest fixed amount.
The Postal Service provides cheap rates because “it does
not seek profits, but only to break even.” U.S. Postal Serv.
Inc. v. Flamingo Indus. (USA) Ltd., 540 U.S. 736, 747 (2004).
We benefit from these discounted rates at a cost. In exchange
for universal mail delivery at artificially low but affordable
MB FINANCIAL GROUP v. USPS 13775
prices, which the market left to its own devices has no incen-
tive to provide, we may not sue the Postal Service for dam-
ages if our mail is not delivered. See 28 U.S.C. § 2680(b).1 Of
course, those seeking greater protection, such as a guarantee
that overnight mail will be delivered, may pay the premiums
that private companies charge. The Postal Service itself offers
for additional payment insurance and a guarantee that mail
will be delivered.
The Postal Service has grown and become a competitive
business in its own right. See Council of Greenburgh, 453
U.S. at 122 (stating that “[t]he Postal Service today is among
the largest employers in the world”). Immunity from all types
of law suits, Congress has recognized, is no longer appropri-
ate. See 39 U.S.C. § 401(1). For example, the Postal Service
is not immunized when, while driving in the course of deliv-
ering mail, a postal employee negligently operates a postal
vehicle resulting in personal injury to another driver. See, e.g.,
Kosak v. United States, 465 U.S. 848 (1984). At the same
time, Congress has left undisturbed immunity for the Postal
Service’s core function — the delivery of mail. See 28 U.S.C.
§ 2680(b). The majority distorts these carefully drawn lines
and now exposes the Postal Service to liability where Con-
gress intends none.
B
This is at heart a simple claim that the Postal Service failed
to deliver commercial mail. The mail did not reach the postal
patron because the postmaster prematurely closed the rented
post office box following M.B.’s attempts to renew the rental
term.
1
Title 28, section 2680(b) of the United States Code provides that the
Federal Tort Claims Act’s waiver of immunity found in 28 U.S.C.
§ 1346(b) “shall not apply to . . . [a]ny claim arising out of the loss, mis-
carriage, or negligent transmission of letter or postal matter.”
13776 MB FINANCIAL GROUP v. USPS
M.B. Financial Group, Inc. had rented a post office box for
an additional six-month term from a San Diego, California
branch station of the U.S. Postal Service. It paid some fifty
dollars monthly for the privilege. M.B. hoped to receive
responses (and profit) from its direct mail solicitations entic-
ing members of local unions to apply for and secure mortgage
loans it offered.
No one disputes that the Postal Service botched the pro-
cessing of the renewal rental payment and M.B. did not
receive the extension of its lease. The post office box was
closed too soon; M.B. did not receive all of its mail. No mat-
ter the legal characterization, however, M.B. wants as conse-
quential damages the money it thinks it would have realized
had it actually received the responses from mortgage-seeking
union members, issued mortgages to qualified borrowers, and
earned commissions, fees, and interest from the loans. It esti-
mates the loss to be millions of dollars.
Although the facts, if proven, may well state a viable claim
for breach of the post office box rental agreement, there can
be no viable cause of action for millions of dollars in conse-
quential damages as a result of the postmaster’s negligence.
It would be astounding to learn that Congress intended other-
wise when it enacted § 2680(b).
II
The majority correctly describes the statutory scheme codi-
fying the basic principles discussed above. The analytic start-
ing point is that, as an “independent establishment of the
executive branch of the Government of the United States,” the
U.S. Postal Service is protected from suit by the doctrine of
sovereign immunity unless Congress has specifically waived
immunity. 39 U.S.C. § 201; Flamingo Indus., 540 U.S. at 740.
And there can be no dispute that Congress has waived cer-
tain aspects of the Postal Service’s immunity from suit. The
MB FINANCIAL GROUP v. USPS 13777
Postal Reorganization Act of 1971, 39 U.S.C. § 401(1), recog-
nized that the Postal Service could “sue and be sued in its
official name.” See also Flamingo, 540 U.S. at 741. Indeed,
Congress provided, the waiver of sovereign immunity codi-
fied in the Federal Tort Claims Act “shall apply to tort claims
arising out of the activities of the Postal Service.” 39 U.S.C.
§ 409(c). Nevertheless, Congress was unwilling to extend lia-
bility to “any claim arising out of the loss, miscarriage, or
negligent transmission of letters or postal matter.” 28 U.S.C.
§ 2680(b). That is what happened here. Nonetheless, my col-
leagues misread the scope of this bar to revive M.B.’s suit.
III
The majority’s reading of Dolan v. U.S. Postal Serv., 546
U.S. 481 (2006), the one case in which the Supreme Court has
interpreted the contours of the negligent transmission excep-
tion, goes too far. In that case, the plaintiff tripped and fell
over packages that a Postal Service employee placed on her
porch. The Supreme Court explained that “in isolation, the
phrase ‘negligent transmission’ could embrace a wide range
of negligent acts committed by the Postal Service in the
course of delivering mail, including creation of slip-and-fall
hazards from leaving packets and parcels on the porch of a
residence.” Dolan, 546 U.S. at 486. After reviewing both
“context and precedent,” the Court was persuaded that “a nar-
rower reading [of the bar to suit]” was required; one that
would permit the type of slip-and-fall claim that Dolan urged.
Id.
In reaching this conclusion, as the majority correctly notes,
the Court drew on its decision in Kosak v. United States, 465
U.S. 848 (1984). In that case, the Court observed that “ ‘[o]ne
of the principal purposes of the Federal Tort Claims Act was
to waive the Government’s immunity for liability for injuries
that arise from auto accidents in which employees of the
Postal System were at fault.’ ” Dolan, 546 U.S. at 487-88
(quoting Kosak, 465 U.S. at 855). This stated purpose led the
13778 MB FINANCIAL GROUP v. USPS
Court in Dolan to reject a broad reading of the bar to suit, rea-
soning that “[a]lthough postal trucks may well be delivering
—and thus transmitting—mail when they collide with other
vehicles, Kosak indicated the United States, nonetheless,
retains no immunity.” Id. at 488. Understandably, Dolan’s
claim was not barred.
We confront a very different factual situation that does not
easily lend itself to analogy with automobile accidents result-
ing from postal employee tortious negligence or slip and falls
resulting from negligent placement of postal articles. Indeed,
Dolan itself recognized situations, similar to this one, in
which the Postal Service would retain immunity:
We think it more likely that Congress intended to
retain immunity, as a general rule, only 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. Illustrative
instances of the exception’s operation, then, would
be personal or financial harms arising from nonde-
livery or late delivery of sensitive materials or infor-
mation ( e.g., medicines or a mortgage foreclosure
notice) or from negligent handling of a mailed par-
cel ( e.g., shattering of shipped china). Such harms,
after all, are the sort primarily identified with the
Postal Service’s function of transporting mail
throughout the United States.
Id. at 489 (emphasis added).
The financial harm suffered by M.B. arose from non-
delivery of its mail. Stated another way, the damages that
M.B. seeks arise “consequentially, because mail either fail[ed]
to arrive at all or arrive[d] late, in damaged condition, or at
MB FINANCIAL GROUP v. USPS 13779
the wrong address.” For this occurrence, Congress has not
waived sovereign immunity. See 28 U.S.C. § 2680(b).2
The majority insists that we make this case more compli-
cated than it is. It reads Dolan “as distinguishing between the
historically governmental service of carrying the United
States mail and the performance of acts that may be related
to delivery, but constitute more ordinary activities that private
actors engage in as well.” Op. at 13769-70. This observation
may be correct as far as it goes. But it is the majority’s appli-
cation that fails to persuade. The majority concludes that “the
alleged negligence was not in transmitting the mail to the
proper place of delivery. Rather, it was in the admittedly
improper handling of MB Financial’s payment for its post
office box, due to the failure to process the renewal. The neg-
ligence occurred after the mail was transmitted to the Post
Office, and in this case is similar to the negligence of the
postal delivery employees in Dolan who did not put the boxes
in an appropriate place after they had been delivered to the
right address.” Op. at 13771. That the complaint pleads a
cause of action for negligence based on allegations that the $
50 rental renewal fee was improperly processed does not
speak to the nature of the damages sought. The damages arise
in this case solely because the mail failed to reach its destina-
tion point, and for that occurrence the Postal Service is
2
The majority laments my reading of Dolan as incomplete because, my
colleagues argue, Dolan further stands for the proposition that “losses of
the type for which immunity is retained under § 2680(b) are at least to
some degree compensable through postal registration and insurance.” 460
U.S. at 490. I am unpersuaded that this statement, or the fact that the par-
ties appear to agree that no insurance was available, changes the outcome.
Insurance for the early closing of a post office box may not be available,
but that is not the risk for which M.B. now seeks indemnification. It
wanted its mail to arrive, mortgages to be placed through its offices, and
to thereby derive financial benefit from its direct mail solicitations. There
were a number of ways M.B. could have structured its business transac-
tions to protect itself from this risk. For example, rather than look to the
Postal Service, M.B. could have purchased business loss insurance.
13780 MB FINANCIAL GROUP v. USPS
immune. We were reversed in Flamingo Industries (USA) Ltd.
v. U.S. Postal Service because we thought the Postal Service
would face similar antitrust liability to that of its competitors
when Congress said the corporation could “sue and be sued”
as if it were a private entity rather than part of the govern-
ment. 302 F.3d 985 (9th Cir. 2002), rev’d, 540 U.S. at 744.
We were wrong then. We are wrong now.
The majority’s rule would have us engage in a type of
highly particularized and complicated temporal debate about
when transmission ends and delivery-related activity begins—
the former protected by sovereign immunity and the latter not.
The majority’s reading of Dolan, by way of example, would
have to mean that transmission ended at the porch steps. That
interpretation could have force if the postal employees, say,
took a break at the porch and then continued on to place the
mail on the porch. Yet, what would be the result if the postal
employees walked, without pause, from the Jeep onto the
porch, placing the parcels along the sidewalk leading up to the
porch? Would the Postal Service escape liability because the
mail was still in transit?
There is, in my view, no way to reach a reasoned result
under such an analogy. Neither Dolan nor the statutory
scheme compel the result the majority reaches, and a more
workable solution is apparent from the case law. The common
thread among the cases is that where the damages that flow
from the alleged negligence are injuries distinct from non-
delivery, late delivery, or loss of mail, the exception to immu-
nity does not apply. In Dolan, the damages sought surely
sounded in pain and suffering and had nothing to do with the
mail other than it was placed in a negligent manner and cre-
ated a trip-and-fall hazard that proximately caused the pain
and suffering. Similarly, in the illustrative situation described
in Kosak, the damages from the auto accident were unrelated
to the mail; they too were pain and suffering and other atten-
dant tort damages.
MB FINANCIAL GROUP v. USPS 13781
The commercial damages M.B. wants here, no matter how
liberally we construe the complaint, are the value of the mort-
gage business lost when the mail was not placed in its rented
mailbox. In other words, M.B. prays for damages consisting
of “financial harms arising from nondelivery or late delivery
of sensitive materials or information.” Dolan, 546 U.S. at 489.
Recovery on those grounds, no matter how artfully the plain-
tiff might choose to plead the alleged negligence claim, is
foreclosed because “[s]uch harms, after all, are the sort pri-
marily identified with the Postal Service’s function of trans-
porting mail throughout the United States.” Id. Congress has
not waived its sovereign immunity for this kind of action. 28
U.S.C. § 2680(b).
IV
Because the majority would allow recovery of enormous
consequential commercial damages for what amounts to a
simple claim of failure to deliver mail, I respectfully dissent
from part III A of the opinion. Although M.B. states no color-
able claim with respect to its negligence claim, I agree that
M.B. may recover under a state law breach of contract theory
for premature loss of its post office box. Damages would be
limited to a refund of the fee to renew the post office box.