Lombardi et al v. United States Postal Service

Filing 10

-CLERK TO FOLLOW UP-DECISION AND ORDER: For the reasons stated in the attached Decision and Order, the Court does not adopt the April 6, 2016 Report and Recommendation 9 . The United States Postal Service's motion to dismiss 2 is granted. The Clerk of the Court shall take all steps necessary to close the case. SO ORDERED. Signed by Hon. Richard J. Arcara on 4/22/16. (LAS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
JACQUELYN LOMBARDI and
CHRISTOPHER LOMBARDI,
Plaintiffs,
v.

DECISION AND ORDER
15-CV-1047-A

UNITED STATES POSTAL SERVICE,
Defendant.
____________________________________
Pro se Plaintiffs Jacquelyn and Christopher Lombardi are newlyweds who have
sued the United States Postal Service for having failed to inform them that their
wedding invitations needed extra postage. Invitations to the Plaintiffs’ September 26,
2015 wedding were undelivered, delayed, defaced, and mutilated. Some intended
guests did not receive an invitation, and were offended. Plaintiffs seek damages of
$5,000.
Plaintiffs filed their pro se claims in small-claims court in Buffalo, New York.
Defendant Postal Service removed the proceeding to this Court pursuant to the Court’s
federal-agency removal jurisdiction at 28 U.S.C. § 1442(a)(1), and immediately moved
to dismiss for lack of subject-matter jurisdiction.
The action is before the Court for review of an April 6, 2016 Report and
Recommendation of Magistrate Judge Hugh B. Scott that concludes the Court has
subject-matter jurisdiction, but recommends dismissal on sovereign immunity grounds.
For the reasons that follow, the Court finds instead that it lacks derivative jurisdiction,
and grants the motion of Defendant Postal Service under Fed. R. Civ. P. 12(b)(1) to
dismiss for lack of subject-matter jurisdiction.

DISCUSSION
The April 6, 2016 Report and Recommendation concludes the Court has subjectmatter jurisdiction over Plaintiffs’ claims removed from small-claims court pursuant to 28
U.S.C. § 1442(a)(1), and recommends that the claims be dismissed as barred by the
sovereign immunity of the United States. Dkt. 9, pp. 5-6; Lombardi v. United States
Postal Service, 2016 WL 1365485 *3 (W.D.N.Y. April 6, 2016) (Scott, M.J.). However,
courts never have subject-matter jurisdiction over a claim barred by sovereign immunity.
United States v. Sherwood, 312 U.S. 584, 586 (1941) (“. . . the terms of consent [of the
United States, as sovereign] to be sued in any court define that court's jurisdiction to
entertain the suit”). “It is well established that in any suit in which the United States is a
defendant, a waiver of sovereign immunity with respect to the claim is a prerequisite to
subject matter jurisdiction.” Up State Fed. Credit Union v. Walker, 198 F.3d 372, 374
(2d Cir. 1999) (citations omitted); see also Petition of Abrams, 134 Misc.2d 841, 846
(N.Y. Sup. Ct. 1986).
It is also well established that suits against the United States Postal Service are
suits against the United States. Dolan v. United States Postal Serv., 546 U.S. 481,
484-85 (2006). “Consistent with this status, the Postal Service enjoys federal sovereign
immunity absent a waiver.” Id. at 1256 (citing Postal Service v. Flamingo Industries
(USA) Ltd., 540 U.S. 736, 741 (2004); FDIC v. Meyer, 510 U.S. 471, 475 (1994)).
Accordingly, the Court lacks subject-matter jurisdiction over claims against the
Defendant Postal Service unless the claims are within an express waiver of the
sovereign immunity of the United States.

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The Report and Recommendation erroneously concluded the Court has subjectmatter jurisdiction over the action because the claims against Defendant Postal Service
were removed pursuant to the Court’s federal-agency removal jurisdiction at 28 U.S.C.
§ 1442(a)(1). Dkt. 9, pp. 4-6; Lombardi v. United States Postal Service, 2016 WL
1365485 *3 (W.D.N.Y. April 6, 2016) (Scott, M.J.). But § 1442(a)(1) neither waives
sovereign immunity nor provides an independent basis for subject-matter jurisdiction.
See generally 14C Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 3726 (4th ed. 2015).1 And under the derivative jurisdiction doctrine, the
Court lacks subject-matter jurisdiction over any action if the court from which the action
was removed pursuant to § 1442(a)(1) lacked subject-matter jurisdiction. Mooney v.
G.A.C. Realty Corp., 2015 WL 1010486, *3 (W.D.N.Y. March 5, 2015) (“[D]istrict courts
within the Second Circuit have routinely and unanimously held that the derivative
jurisdiction doctrine remains applicable to cases removed under section 1442(a)(1), the
removal statute utilized in this case.”)
The specific allegations of the pro se Plaintiffs in their small-claims pleading are:
[a]fter not being informed our wedding invitations needed extra
postage, invites were sent back 1-5 at a time. Our wedding
was Sept. 26, 2015. We are still getting invites back to this
date: they are defaced with writing, stained +ripped. Some
never made it to their destination at all. Created chaos, some
guests never made it because of their lack of invite + were

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The Report and Recommendation overlooked that removal pursuant to 28 U.S.C.
§ 1442(a)(1) is an exception to the general rule that state court actions can be removed to
federal court only if they allege a claim that could have been brought in federal court within a
grant of original jurisdiction. Dkt. No. 9, pp. 4-5; see e.g., Isaacson v. Dow Chem. Co., 517
F.3d 129, 138 (2d Cir. 2008); see also 28 U.S.C. § 1441(a) ("Except as otherwise expressly
provided by Act of Congress, any civil action brought in a State court of which the district courts
of the United States have original jurisdiction, may be removed . . . .”).
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offended. One invite was opened + subsequently arrived
taped.
Dkt. No. 1, Ex. 1 A. Plaintiffs jointly claim $5,000 in damages. Id.
Because Plaintiffs seek money damages for injuries allegedly caused by a
wrongful failure of Defendant Postal Service to inform them extra postage was required
for their wedding invitations, the allegations sound in tort. Tort claims against the
United States are within the Court’s subject-matter jurisdiction only if they are within the
waiver of sovereign immunity in the Federal Tort Claims Act, 28 U.S.C. §§ 2671–2680
(“FTCA”). See e.g., Dolan v. United States Postal Serv., 546 U.S. 481, 484-85 (2006).
There are three reasons Plaintiffs’ claims are not within the waiver of sovereign
immunity in the FTCA, and not within this Court’s derivative jurisdiction.
First, § 2680(b) of the FTCA expressly excludes from the waiver of sovereign
immunity claims “arising out of the loss, miscarriage, or negligent transmission of letters
or postal matter.” Id.; but see, Raila v. United States, 355 F.3d 118 (2004) (allegations
of negligent placement of a package causing a slip and fall injury not barred). Section
2680(h) similarly excludes from the waiver claims “arising out of . . . misrepresentation,
. . . or interference with contract rights . . . .” Id.; see e.g., Block v. Neal, 460 U.S. 289,
296 (1983) (“Section 2680(h) thus relieves the Government of tort liability for pecuniary
injuries which are wholly attributable to reliance on the Government's negligent
misstatements.”) In light of these provisions, the claims of Plaintiffs that Defendant
Postal Service failed to inform Plaintiffs their wedding invitations needed extra postage
are excluded from the waiver of the sovereign immunity in the FTCA. Plaintiffs’ claims
are therefore barred by sovereign immunity, and both the small claims court and this
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Court lack subject-matter jurisdiction. See Presidential Gardens Assocs. v. U.S. ex rel.
Sec'y of Hous. & Urban Deve., 175 F.3d at 139 (2d Cir. 1999); Mooney v. G.A.C. Realty
Corp., 2015 WL 1010486, *3 (W.D.N.Y. March 5, 2015).
Second, as Defendant Postal Service pointed out, exhaustion of administrative
remedies is a prerequisite to the waiver of sovereign immunity in the FTCA, and a
prerequisite to subject-matter jurisdiction over an FTCA claim. See Dkt. No. 4, pp. 5-6
(citing Dkt. No. 3, ¶ 5, Ex. B). “The [FTCA’s] limitations foreclose suit unless the tort
claimant has previously presented to the appropriate administrative agency a claim that
meets the specific statutory requirements as to its form, content, and timing.” Millares
Guiraldes de Tineo v. United States, 137 F.3d 715, 719 (2d Cir. 1998) (discussing 28
U.S.C. § 2675(a)). Plaintiffs failed to present an administrative claim to Defendant
Postal Service for their alleged damages. Dkt. No. 3, ¶ 5, Ex. B.2 For this additional
reason, the small-claims court lacked subject-matter jurisdiction over Plaintiffs’ claims,
and this Court lacks derivative jurisdiction.
Finally, federal district courts have exclusive jurisdiction over FTCA claims
against the United States. 28 U.S.C. § 1346(b). See generally Celestine v. Mount
Vernon Neighborhood Health Center, 403 F.3d 76, 80 (2d Cir. 2005) (“The FTCA
waives the United States's sovereign immunity for certain classes of torts claims and
provides that the federal district courts shall have exclusive jurisdiction over damages
claims against the United States for . . . personal injury or death ‘caused by the
negligent or wrongful act or omission of any employee of the Government while acting

2

The Court may consider matters outside the pleadings when assessing subject-matter
jurisdiction. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
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within the scope of his office or employment.’ ” (quoting 28 U.S.C. § 1346(b)(1))). The
small-claims court therefore lacked subject-matter jurisdiction over Plaintiffs’ tort claims.
Because the court from which this action was removed under 28 U.S.C. § 1442(a)(1)
lacked subject-matter jurisdiction, this Court lacks derivative jurisdiction. See e.g.,
Mooney v. G.A.C. Realty Corp., 2015 WL 1010486, *3 (W.D.N.Y. March 5, 2015); see
also In re Backer, No. 10 Civ. 0862, 2010 WL 2816789, at *9 (S.D.N.Y. July 16, 2010).
Plaintiffs did not respond to the motion filed by Defendant Postal Service
pursuant to Fed. R. Civ. P. 12(b)(1) to dismiss for lack of subject-matter jurisdiction.
The Magistrate Judge ordered Plaintiffs to respond to the Defendant’s motion. After
Plaintiffs failed to respond, the Magistrate Judge gave Plaintiffs additional time out of
concern for their pro se status. He cautioned Plaintiffs their action could be dismissed if
they failed to respond. Plaintiffs still did not respond.
The Report and Recommendation further cautioned the Plaintiffs that failure to
object could waive their objections to the recommendation to dismiss the action. Dkt.
No. 9, p. 9. Plaintiffs have not timely responded or objected to the Report and
Recommendation. It appears they have abandoned their claims.
Nevertheless, pro se claims are interpreted “to raise the strongest arguments
they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)
(per curiam) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (quoting
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)); see also Johnson v. City of
Shelby, Miss., 135 S. Ct. 346, 346 (2014). The Court has therefore considered whether
the claims in Plaintiffs’ small-claims pleading may qualify as contract-based claims for a
postage refund under the Little Tucker Act at 28 U.S.C. § 1346(a)(2). See Blanc v.
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United States Postal Service, No. 14-CV-1404 (ARR), 2014 WL 931220 *2 (S.D.N.Y.
2014) (pro se plaintiff's explicit allegation of an invalid tort theory of recovery for failure
to deliver mail matter construed liberally also to allege a Little Tucker Act claim); see
also Krue v. West Seneca Branch Post Office, 15-CV-921-A, slip op. at 5-6 (March 9,
2016) (regarded as removed pursuant to 28 U.S.C. § 1441). However, the waiver of
sovereign immunity in the Little Tucker Act is exclusive to claims brought in federal
district courts or the Court of Federal Claims. 28 U.S.C. § 1346(a); see United States v.
Bormes, 133 S.Ct. 12, 16 n.2 (2012). The Court therefore lacks derivative jurisdiction
over a Little Tucker Act postage-refund claim removed from state court pursuant to 28
U.S.C. § 1442(a)(1).3
CONCLUSION
For the reasons stated above, the Court does not adopt the April 6, 2016 Report
and Recommendation (Dkt. No. 9), and grants the motion of the United States Postal
Service to dismiss (Dkt. No. 2) for lack of subject-matter jurisdiction pursuant to Fed. R.
Civ. P. 12(b)(1) and 12(h)(3). The Clerk shall close the case.
SO ORDERED.

Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: April 22, 2016
3

A federal court has an independent duty to determine whether it has subject-matter
jurisdiction, regardless of the parties’ positions. See e.g., Bender v. Williamsport Area Sch.
Dist., 475 U.S. 534, 541 (1986). Because the Court dismisses for lack of derivative jurisdiction,
the Court finds its obligation to remand to state court under 28 U.S.C. § 1447(c) is moot. But
see Hexamer v. Foreness, 981 F.2d 821 (5th Cir. 1993) (reversing dismissal for lack of subjectmatter jurisdiction with instructions to remand pursuant to 28 U.S.C. § 1447(c)).
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