Ssebanakitta v. United States Postal Service

Filing 18

MEMORANDUM AND ORDER granting 12 Motion to Dismiss for Lack of Subject Matter Jurisdiction. Signed by District Judge Eric F. Melgren on 11/19/2020. Mailed to pro se party Fannie Ssebanakitta at PO Box 214, Burlington, CO 80807 by regular mail. (mam)

Case 6:20-cv-01167-EFM-GEB Document 18 Filed 11/19/20 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

FANNIE SSEBANAKITTA,
Plaintiff,

vs.

Case No. 20-1167-EFM-GEB

NAN RAYMOND (USPS),
Defendant.

MEMORANDUM AND ORDER
Plaintiff Fannie Ssebanakitta brought this pro se action against Defendant “Nan Raymond
(USPS)” (the United States Postal Service), claiming dissatisfaction with mail service, threats by
a mail carrier, and damage to mail and property. The government, on behalf of the United States
Postal Service (“Postal Service”), has filed a Motion to Dismiss for Lack of Subject Matter
Jurisdiction (Doc. 12). For the reasons stated below, the Court grants the Motion to Dismiss.
I.

Factual and Procedural Background

Ssebanakitta originally filed a small claims petition in Sherman County, Kansas, on May
11, 2020. The government removed the case to this Court under 28 U.S.C. § 1442 on June 24. In
her Petition, Ssebanakitta seeks $4,000.00 in damages for the Postal Service “refusing to deliver
our mail according to Doctor [sic] orders, not holding our mail according to our verbal agreement
along with their mail carrier destroy [sic] our property as well as interfering with our personel [sic]

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business while delivering our mail.” Ssebanakitta also seeks reimbursement for her time and
expense of traveling to and from the post office. Additionally, in response to the government’s
motion, Ssebanakitta alleges that a mail carrier threatened her, destroyed property by her house,
opened mail, and damaged boxes.
Defendant Nan Raymond is the Manager of Consumer and Industry for the Central Plains
Region of the Postal Service in Omaha, Nebraska. Raymond is not and never has been the carrier
who delivers mail to Ssebanakitta’s residential address.

The carrier who delivers mail to

Ssebanakitta’s address is an independent contractor and not an employee of the Postal Service.
Ssebanakitta did not file any administrative tort claims with the Postal Service prior to
bringing this action.
II.

Legal Standard

“Federal courts are courts of limited jurisdiction.”1

A presumption exists against

jurisdiction, and “the burden of establishing the contrary rests upon the party asserting
jurisdiction.”2 “Motions to dismiss for lack of subject matter jurisdiction ‘generally take one of
two forms: (1) a facial attack on the sufficiency of the complaint’s allegations as to subject matter
jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is
based.’ ”3 If the motion challenges the sufficiency of the complaint’s jurisdictional allegations,
the Court must accept all factual allegations as true.4 If challenging the facts allowing jurisdiction,

1

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

2

Id. (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 182–83 (1936)).

3

City of Albuquerque v. U.S. Dep’t of Interior, 379 F.3d 901, 906 (10th Cir. 2004) (quoting Ruiz v.
McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002), cert. denied, 538 U.S. 999 (2003)).
4

Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995).

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the Court is not required to accept the complaint’s factual allegations as true.5 When jurisdictional
facts are disputed, the Court has “wide discretion to allow affidavits, other documents, and a
limited evidentiary hearing” without converting the motion to a Rule 56 motion.6
Pro se complaints are held to “less stringent standards than formal pleadings drafted by
lawyers.”7 A pro se litigant is entitled to a liberal construction of his or her pleadings.8 If the
Court can reasonably read a pro se complaint in such a way that it could state a claim on which it
could prevail, the Court should do so despite “failure to cite proper legal authority . . . confusion
of various legal theories . . . or [Plaintiff’s] unfamiliarity with pleading requirements.”9 However,
it is not the proper role of the district court to “assume the role of advocate for the pro se litigant.”10
III.
A.

Analysis

The Postal Regulatory Commission has exclusive jurisdiction over Plaintiff’s claims.
Ssebanakitta’s claims are properly characterized as complaints regarding mail service. She

alleges problems with how her mail was delivered, as well as how her mail was held. She also
alleges problems with a mail carrier while her mail was being delivered. Complaints about how
the Postal Service holds and delivers mail are inherently mail service claims. In addition to these
allegations, Ssebanakitta’s requested relief includes reimbursement of travel to and from the post

5

Id. at 1003.

6

Id. (citing Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987), cert. denied, 484 U.S. 986 (1987)).

7

Haines v. Kerner, 404 U.S. 519, 520 (1972).

8

See Trackwell v. U.S. Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007) (“Because Mr. Trackwell appears pro
se, we review his pleadings and other papers liberally and hold them to a less stringent standard than those drafted by
attorneys.”).
9

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

10

Id.

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office. This requested relief indicates that Ssebanakitta’s ultimate harm was having to drive to the
post office, which overall is a mail service issue. Because Ssebanakitta’s claims relate to mail
service, the Postal Regulatory Commission has exclusive jurisdiction over them.11 Under § 3662
of the Postal Reorganization Act, “[a]ny interested person . . . who believes the Postal Service is
not operating in conformance with the requirements of the provisions of [the Postal Reorganization
Act] may lodge a complaint with the Postal Regulatory Commission in such form and manner as
the Commission may prescribe.”12 Because the Postal Regulatory Commission has exclusive
jurisdiction, the Petition must be dismissed for lack of subject matter jurisdiction.
B.

The Court does not have subject matter jurisdiction over Plaintiff’s tort claims.
In the alternative, to the extent any of Ssebanakitta’s claims are tort claims, they are not

cognizable under the Federal Tort Claims Act (“FTCA”).

Absent an unequivocal waiver,

sovereign immunity prohibits private lawsuits against the federal government and its agencies.13
The FTCA is a limited waiver of the federal government’s sovereign immunity.14 The Postal
Reorganization Act provides that the FTCA “shall apply to tort claims arising out of activities of
the Postal Service.”15 A claimant may bring suit under the FTCA for “injury or loss of property,

11

Naskar v. United States, 82 Fed. Cl. 319, 322 n.1 (2008) (“To the extent that plaintiff’s claim could be
construed as a service complaint against the United States Postal Service, the Postal [Regulatory] Commission (the
Commission) has exclusive jurisdiction over it.”); Bovard v. U.S. Post Office, 1995 WL 74678, at *1 (10th Cir. 1995)
(“The language of section 3662 makes clear that a postal customer’s remedy for unsatisfactory service lies with the
Postal [Regulatory] Commission, and that Congress did not intend to create a private right of action for service
complaints.”); Ahmad v. United States, 2015 WL 4528142, at *2 (D. Colo. 2015) (“[A] postal customer’s exclusive
remedy for unsatisfactory service lies with the Postal Regulatory Commission.”).
12

39 U.S.C. § 3662(a).

13

See Dolan v. U.S. Postal Serv., 546 U.S. 481, 484 (2006); United States v. Nordic Village, Inc., 503 U.S.
30, 33 (1992).
14

28 U.S.C. § 1346(b)(1).

15

39 U.S.C. § 409(c).

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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 . . . .”16
While the Postal Service may be sued under the FTCA, it cannot be sued here because
Ssebanakitta has not exhausted her administrative remedies. The FTCA requires claimants to first
exhaust their administrative remedies by presenting their claims to the appropriate federal agency
before bringing a claim against the United States.17 This exhaustion requirement is jurisdictional
and cannot be waived.18 Additionally, it is the plaintiff’s burden to both plead and prove
compliance with the requirements of the FTCA.19 Here, Ssebanakitta has not alleged that she
pursued her administrative remedies, and thus she has not met this statutory requirement of the
FTCA.
The FTCA also applies to employees of the United States and not to independent
contractors.20 Defendant Raymond is not and never has been the mail carrier for Ssebanakitta.
The mail carrier who delivers mail to Ssebanakitta and who is alleged to have conducted the acts
is an independent contractor. Thus, the FTCA does not apply to Raymond’s alleged actions.

16

28 U.S.C. § 1346(b)(1).

17

Id. § 2675(a).

18

See Lopez v. United States, 823 F.3d 970, 976 (10th Cir. 2016) (describing the exhaustion requirement as
“jurisdictional and cannot be waived”) (citations omitted).
19

See Johnson v. Potter, 2006 WL 1302120, at *3 (D. Kan. 2006) (quoting In re Agent Orange Prod. Liab.
Litig., 818 F.2d 210, 214 (2d Cir. 1987)).
20
Curry v. United States, 97 F.3d 412, 414 (10th Cir. 1996) (“The FTCA does not authorize suits based on
the acts of independent contractors or their employees.”) (citations omitted).

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Because Ssebanakitta’s claims are not cognizable under the FTCA, the Court does not have
subject matter jurisdiction over them.
C.
The Court does not have subject matter jurisdiction over Plaintiff’s breach of
contract claim.
Ssebanakitta alleges the Postal Service did not hold mail “according to our verbal
agreement.” To the extent this claim is construed as a breach of contract claim, the Court still does
not have subject matter jurisdiction.21 A plaintiff must pursue administrative remedies before
bringing a breach of contract claim against the United States.22 Ssebanakitta has not alleged that
she pursued administrative remedies, and by her not pursuing such remedies, the Court is without
subject matter jurisdiction.
In conclusion, the Court must grant the government’s Motion to Dismiss because the Postal
Regulatory Commission has exclusive jurisdiction over Ssebanakitta’s claims. In the alternative,
Ssebanakitta has not pursued administrative remedies for any tort or breach of contract claims,
leaving the Court without subject matter jurisdiction.
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss for Lack of Subject
Matter Jurisdiction (Doc. 12) is GRANTED.

21
The government argues that to the extent Plaintiff’s claim is based on “contract rights,” it is exempted
under the FTCA’s intentional tort exception found in 28 U.S.C. § 2680(h). However, the § 2680(h) exception refers
to interference with contract rights, not breaches of contract. Plaintiff alleges that the Postal Service did not act in
conformance with a verbal agreement, which is more properly characterized as a breach of contract claim and not as
an interference with contract rights claim.
22
The Tenth Circuit and the district courts in the Tenth Circuit have not considered whether a customer suing
the Postal Service must exhaust her administrative remedies before she files a breach of contract claim. But, other
district courts that have considered the issue require it. See Wiggins v. Brennan, 308 F. Supp. 3d 274, 276–77 (D.D.C.
2018) (“While the laws and regulations of the Postal Service do not expressly require exhaustion of remedies for
contract claims, other courts have held that in light of the general doctrine of exhaustion of administrative remedies
and the discussion of an administrative complaint procedure in the Postal Service’s manuals, a plaintiff is required to
follow the administrative complaint procedure prior to bringing a breach of contract claim.”); see also Ly v. U.S. Postal
Serv., 775 F. Supp. 2d 9, 12 (D.D.C. 2011); Simat USA, Inc. v. U.S. Postal Serv., 218 F. Supp. 2d 365, 368 (S.D.N.Y.
2002).

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IT IS SO ORDERED.
This case is closed.
Dated this 19th day of November, 2020.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

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