Attorney General: Honorable Gene Gavin, Department of Revenue Services, 2000-028 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

September 26, 2000

Honorable Gene Gavin
Department of Revenue Services
25 Sigourney Street
Hartford, Connecticut 06106

Dear Commissioner Gavin:

In your letter dated August 31, 2000, you asked whether the state can recover interest from the United States Postal Service as a result of the late delivery of certified mail containing tax returns and $140 million in tax payments. In analyzing this issue, it must be noted that any action against the United States Postal Service is, in fact, an action against the United States. See Anderson v. United States Postal Service, 761 F.2d 527, 528 (9th Cir. 1985). It is well settled that the United States may not be sued unless Congress by specific legislation has consented to be sued. United States v. Lee, 106 U.S. 196, 205 (1882). Also, see generally, Erwin Chemerinsky, Federal Jurisdiction §9.2 (1989). Congress by passing the Federal Tort Claims Act (hereinafter "FTCA") 28 U.S.C. §1346(b),1 2671 et seq., generally waived the sovereign immunity of the United States for claims resulting from the negligence of its employees with certain specific exceptions, Forrest City Machine Works, Inc. v. United States, 953 F.2d 1086, 1087 (8th Cir. 1992). 39 U.S.C. §409(c) states that "[t]he provisions of Chapter 171 and all other provisions of Title 28 relating to Tort Claims shall apply to Tort Claims arising out of activities of the Postal Service."

Therefore, the FTCA applies to the activities of United States Postal Service. However, 28 U.S.C. §2680 lists numerous exceptions to the applicability of the FTCA, including Section 2680(b), which specifically exempts "any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter." Anderson v. United States Postal Service, 761 F.2d at 528 (by 28 U.S.C. §2680(b) United States retains sovereign immunity for "loss, miscarriage or negligent transmission” of the mail."

In Birnbaum v. United States, 436 F.967 (E.D. 1977), affirmed in part and reversed in part, 588 F.2d, 319 (C.A.2.N.Y. 1978), the Court stated that:

. . . 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 operation of delivering millions of packages and letters each year. The kind of problem that was anticipated under the heading of "loss, miscarriage or negligent transmission" was suggested by a representative of the Department of Justice during hearings on the Act:

Every person who sends a piece of postal matter can protect himself by registering it, as provided by the postal laws and regulations. It would be intolerable, of course, if in any case of loss or delay, the Government could be sued for damages. Consequently, this provision was inserted.

Hearings before Senate Committee on the Judiciary on S. 2690, 76th Cong., 3d Sess. 38 (1940) testimony of A. Holtzoff, Special Assistant to Attorney General of the United States.)

Id. 974 (emphasis added).

As the Court stated in Hudak v. U.S., 1994 U.S. Dist. Lexis 1442, under 28 U.S.C. §2680(b) "the postal service is immune from any claim arising out of loss, miscarriage, or negligent transmission of postal matter." Id. at 2. The Court went on to state in Hudak that:

The postal service is only liable for damaged, lost, or late mail to the extent it has agreed to be liable. Marine Ins. Co. v. United States, 410 F.2d 764, 765 (Ct. Cl. 1969), Marine Ins. Co. v. United States, 378 F.2d 812, 814, (2d Cir. 1969), cert. denied, 389 U.S. 953, 88 S.Ct. 335, 19 L.Ed.2d 361 (1967). To what extent the postal service agrees to liability is spelled out in the postal laws and regulations. Twentier v. United States, 109 F.Supp. 406, 408 (Ct. Cl. 1953). Postal service laws and regulations are found in 39 C.F.R. et. seq. Regulations include such things as manuals, handbooks, directives, and other issuances. 39 C.F.R. §211.2 (1993).

Id. at 2-3 (emphasis added).

Under the postal regulations, and in the Domestic Mail Manual (hereinafter DMM) which is incorporated into the C.F.R. (see 39 C.F.R. §111.1), the United States Postal Service only agrees to very limited liability on a contractual basis with the senders of certain types of mail. For instance, it agrees to certain limited liability to postal patrons who send express or registered and insured mail. The DMM Section S-500 provides that the maximum liability for lost or late express mail is $5,000, and DMM Section S-911 allows senders to insure against risk of loss on registered mail up to $25,000. See, e.g., Mapoma v. U.S. Postal Services, et alia, 1996 U.S. Dist. Lexis 20254, Allied Coin Investment, Inc. v. U.S. Postal Service, 673 F.Supp. 982, 987 (D.Minn. 1982); Mastoloni & Sons, Inc. v. U.S. Postal Service, 546 F.Supp. 415, 419 (S.D.N.Y 1982). Section S-912 and Section P-014.2 of the DMM only provide for liability to the sender of certified mail to the extent of the postage paid. Nowhere in the DMM or the postal regulations does the United States Postal Service agree to any liability to the recipient of certified mail.

Hence, we must unfortunately and regretfully conclude that the United States Postal Service is immune from suit and is not liable to the State of Connecticut for lost interest income due to the late delivery of the certified mail containing tax payments.

In light of the sizable magnitude of the financial loss, we recommend that federal legislative remedies be pursued, which we stand ready to assist you in doing.

We trust that this fully answers the question raised in your letter.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Robert L. Klein
Assistant Attorney General

RB/rlk


128 U.S.C. §1346(b) states that:

(b) Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 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 and 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.


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