IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

ALMA T. MCBROOM, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO.: 2:06-CV-767-F

)

JOHN E. POTTER, POSTMASTER )

GENERAL, et al., )

)

Defendants. )

MEMORANDUM IN SUPPORT OF 

DEFENDANT JOHN E. POTTER’S MOTION TO DISMISS

INTRODUCTION

Plaintiff’s claims against the Postmaster General should be dismissed because

Bivens-type constitutional tort claims are not available against federal agencies. FDIC v.

Meyer, 510 U.S. 471, 484-86 (1994). Plaintiff, Alma T. McBroom, is a former postal

worker. Complaint ¶ 6. She alleges that she injured her back at work in 2003 and has not

been properly compensated by the Postal Service. Complaint ¶¶ 7-8, 10-11. She brings

claims for money damages against John E. Potter in his official capacity as Postmaster

General of the United States alleging that the Postal Service deprived her of property

without due process of law in violation of her constitutional rights. Complaint ¶¶ 10 - 11

(a), (b). Plaintiff’s claims are due to be dismissed because constitutional tort claims may

not be maintained against the Postal Service. Meyer, 510 U.S. at 484-86. 

Case 2:06-cv-00767-MEF-SRW Document 25 Filed 11/27/2006 Page 1 of 4
John E. Potter has not been personally served and this motion does not constitute an 1

appearance in his individual capacity. See, Fed. R. Civ. P. 4(i)(2)(A), (B).

Page 2 of 4

ARGUMENT

Bivens-type Constitutional Tort Claims Are 

Not Available Against Federal Agencies.

Plaintiff brings constitutional tort claims against John E. Potter in his official

capacity as Postmaster General of the United States. Complaint ¶¶ 10-11 (a), (b). “[A]n

official-capacity suit is, in all respects other than name, to be treated as a suit against the

entity.” Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). Official-capacity suits are

simply “‘another way of pleading an action against an entity of which an officer is an

agent.’” Id. (quoting Monell v. New York Dept. of Soc. Serv., 436 U.S. 658, 690 n. 55). 

Plaintiff makes it abundantly clear that she is bringing an official-capacity claim

against the Postmaster General. In section V, the “Causes of Action” section of her

complaint, she identifies her claim as being a “Claim Against the Postal Service.” 

Complaint at p. 3, § V, Causes of Action. In addition, in section III of the complaint, she

states that “Defendant, John Potter, is the Postmaster General . . . and in his capacity as

such, is responsible for the actions of his employees [.]” Complaint at pp. 1-2, § III,

Parties (emphasis added). Furthermore, in the caption, plaintiff names Mr. Potter as

Postmaster General. Plaintiff makes no allegations of personal involvement by the

Postmaster General. Accordingly, this lawsuit should be treated as a suit against the

Postal Service. Graham, 473 U.S. at 165-66. 1

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Page 3 of 4

 Plaintiff alleges that the “refusal of the postal service to compensate her for the

time while she was unable to work . . . deprived her of her property without being

accorded the procedural protections guaranteed by the United States Constitution.” 

Complaint ¶ 10. She seeks $300,000 and other unspecified damages. Complaint ¶ 11 (a),

(b). In Meyer, the Supreme Court held that it would not extend the damages remedy for

constitutional violations that it recognized in Bivens v. Six Unknown Federal Narcotics

Agents, 403 U.S. 388 (1971), to suits against federal agencies. 510 U.S. at 484-86. The

Court held that “an extension of Bivens to agencies of the Federal Government is not

supported by the logic of Bivens itself,” and that “even if such a remedy were consistent

with Bivens . . . there are special factors counseling hesitation in the creation of a

damages remedy” against federal agencies. Id. at 486 (internal quotation and citation

omitted).

The Postal Service is “an independent establishment of the executive branch of the

Government of the United States.” 39 U.S.C. § 201. The Supreme Court has explicitly

held that Meyer governs claims against the Postal Service. United States Postal Service v.

Flamingo Industries, 540 U.S. 736, 744 (2004). Accordingly, plaintiff’s Bivens-type

constitutional claim against the Postal Service should be dismissed for failure to state a

claim upon which relief can be granted. Fed. R. Civ. P. 12 (b)(6).

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CONCLUSION

For the above reasons, plaintiff’s claims against Postmaster General John E. Potter

should be dismissed in their entirety with prejudice.

Respectfully submitted this 27th day of November, 2006. 

LEURA G. CANARY 

United States Attorney

 By: /s/Stephen M. Doyle 

STEPHEN M. DOYLE

Chief, Civil Division

Assistant United States Attorney

Attorney for Defendant

Post Office Box 197

Montgomery, AL 36101-0197

District of Columbia Bar No. 422474 

Telephone No.: (334) 223-7280

Facsimile No.: (334) 223-7418

E-mail: stephen.doyle@usdoj.gov

CERTIFICATE OF SERVICE

I hereby certify that on November 27, 2006, I electronically filed the foregoing

with the Clerk of the Court using the CM/ECF system which will send notification of

such filing to Anton Hajjar, Esq., Brenda Zwack, Esq., Patricia K. Nakamura, Esq., and

William Post Roberts, II, Esq., and mailed a copy of same, first class, postage prepaid,

addressed as follows:

Alma T. McBroom, Pro se

921 Hugh Street

Montgomery, AL 36108

 /s/Stephen M. Doyle 

Assistant United States Attorney

Case 2:06-cv-00767-MEF-SRW Document 25 Filed 11/27/2006 Page 4 of 4