PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GLOBAL MAIL LIMITED,

Plaintiff-Appellant,

v.

UNITED STATES POSTAL SERVICE,

No. 97-1146

Defendant-Appellee.

UNITED PARCEL SERVICE,

INCORPORATED; AIR COURIER

CONFERENCE OF AMERICA,

Amici Curiae.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan Jr., Senior District Judge.

(CA-96-1644-A)

Argued: July 14, 1997

Decided: April 23, 1998

Before MURNAGHAN, Circuit Judge, PHILLIPS,

Senior Circuit Judge, and BRITT, Senior United States District Judge

for the Eastern District of North Carolina, sitting by designation.

_________________________________________________________________

Vacated and remanded by published opinion. Senior Judge Phillips

wrote the opinion, in which Judge Murnaghan and Senior Judge Britt

joined.

_________________________________________________________________

COUNSEL

ARGUED: Edward Alan Pennington, MORGAN & FINNEGAN,

L.L.P., Washington, D.C., for Appellant. John Crawford Hoyle,
Appellate Staff, Civil Division, UNITED STATES DEPARTMENT

OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Frank

W. Hunger, Assistant Attorney General, Helen F. Fahey, United

States Attorney, Barbara C. Biddle, Appellate Staff, Civil Division,

UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Appellee. Hill B. Wellford, Jr., Wood W. Lay, HUNTON

& WILLIAMS, Richmond, Virginia; John E. McKeever, Kaethe B.

Schumacher, SCHNADER, HARRISON, SEGAL & LEWIS, Philadelphia, Pennsylvania, for Amicus Curiae UPS. L. Peter Farkas,

Michael H. Selter, Mary Boney Denison, FARKAS & MANELLI,

P.L.L.C., Washington, D.C., for Amicus Curiae Air Courier Conference.

_________________________________________________________________

OPINION

PHILLIPS, Senior Circuit Judge:

Global Mail Limited, a private courier service, brought this action

alleging that the United States Postal Service (USPS) had violated the

Lanham Act in advertising its international mailing service under the

name "Global Priority Mail." The district court determined that USPS

was immune from Lanham Act suits through its retained sovereign

immunity, and dismissed the suit. We reverse.

I

Global Mail Limited (Global), an enterprise primarily engaged in

the business of sending letters, packages and parcels to recipients in

other countries, entered the international mailing service market in

1987. Since that time it has continuously used the names "Global" and

"Global Mail," and a design including the name"Global Mail Ltd.,"

in connection with its services. Global has published these marks and

registered the design mark in the United States Patent and Trademark

Office on March 7, 1989. Headquartered in Vienna, Virginia, Global

has approximately 170 employees and totaled $32 million in service

volume in 1996. Until March 1996, the United States Postal Service

(USPS) operated an international mailing service under the name

"World Post" that served as a direct competitor to Global's services.

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That month, USPS changed the name of its international mailing service to "Global Priority Mail," and embarked on a widespread advertising campaign prominently featuring the new name.

Global filed a complaint in the Eastern District of Pennsylvania in

June 1996, alleging violations of the Lanham Act ("Act"), 15 U.S.C.

§§ 1051-1127 (1994). After the case was transferred to the Eastern

District of Virginia, USPS moved to dismiss the complaint alleging

sovereign immunity from suit under the Act. The district court

granted the motion and issued a four-page memorandum opinion.

Despite the alleged fact that USPS has filed for or registered 82 trademarks under the Lanham Act, and has filed at least six cancellation

or opposition proceedings to prevent competitors from registering

marks too similar to their own, the court found that a section of the

Postal Reorganization Act, 39 U.S.C. § 409(c) (1994), limits USPS's

tort liability to only those tort claims that are available under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-80 (1994). The

court opined that because Lanham Act claims are tort claims, but federally created, they are not viable under the FTCA and that USPS

therefore retains its sovereign immunity as to such claims. Said the

court: "This result seems harsh, particularly in light of the Postal Service's own activity in seeking protection of its own trademarks.

Harshness resulting from sovereign immunity, however, is not new,

and the court cannot as a matter of equity override what it concludes

to be a valid sovereign immunity defense." J.A. 218. The district court

therefore dismissed Global's action, and this appeal followed.

II

Challenging the district court's dismissal of its claim, Global

makes two related contentions: (1) that the Postal Reorganization Act

(PRA) included within its broad waiver of USPS's sovereign immunity all tort claims, and not just those cognizable under the FTCA;

and (2) that USPS is a "person" capable of being sued under the Lanham Act. Reviewing de novo the district court's dismissal of the complaint for lack of subject matter jurisdiction, see White v. United

States, 53 F.3d 43, 45 (4th Cir. 1995) (citing Ahmed v. United States,

30 F.3d 514, 516 (4th Cir. 1994)), we take these issues in turn.

 3
A.

As a governmental entity, USPS is entitled to sovereign immunity

unless Congress waives that immunity and authorizes consent to suit.

Sovereign immunity deprives a court of jurisdiction to hear a case.

See FDIC v. Meyer, 510 U.S. 471, 475 (1994); United States v.

Mitchell, 463 U.S. 206, 212 (1983). Congress has enacted a general

waiver of USPS's sovereign immunity through the Postal Reorganization Act of 1970 (PRA). Specifically, § 401(1) provides that USPS

shall have the power "to sue and be sued in its official name," 39

U.S.C. § 401(1), and "to settle and compromise claims by or against

it." 39 U.S.C. § 401(8). And, Section 409(c) of the PRA, under the

title "Suits by and against the Postal Service," provides: "The 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." "Chapter 171" refers to the FTCA which was itself enacted

to waive the federal government's sovereign immunity for certain tort

suits.

Meanwhile, the FTCA includes the provision, "The authority of

any federal agency to sue and be sued in its own name shall not be

construed to authorize suits against such federal agency on claims

which are cognizable under section 1346(b) of this title, and the remedies provided by this title in such cases shall be exclusive." 28 U.S.C.

§ 2679(a). This subsection was intended to"place torts of `suable'

agencies . . . upon precisely the same footing as torts of `nonsuable'

agencies." H.R. Rep. No. 1287, 79th Cong., 1st sess., 6 (1945)

(quoted in Loeffler v. Frank, 486 U.S. 549, 562 (1988)). In other

words, those agencies that have been given the general authority to

sue and be sued, and therefore have lost their general sovereign

immunity, remain subject to the terms of the FTCA for those claims

cognizable under that Act. See FDIC v. Meyer, 510 U.S. 471, 476-79

(1994).

The question then is the intended interrelationship of these PRA

and FTCA provisions in defining the scope of the USPS's sovereign

immunity from Lanham Act claims.

Although § 401(1) of the PRA is a general waiver of USPS's sovereign immunity, see Franchise Tax Bd. of California v. USPS, 467

 4
U.S. 512, 519 (1984), it is axiomatic that waivers of sovereign immunity are not necessarily total. See Ruckelshaus v. Sierra Club, 463

U.S. 680, 685-86 (1983). USPS contends that § 409(c) of the PRA,

making "[t]he FTCA provisions relating to tort claims" applicable to

tort claims "arising out of activities of the Postal Service," limits

USPS's tort liability to only those torts cognizable under the FTCA.

It is undisputed that the FTCA does not provide a waiver of sovereign

immunity for torts created under federal law, but only for those torts

cognizable under state law. As the Supreme Court recently noted, "to

be actionable under [the FTCA], a claim must allege . . . that the

United States `would be liable to the claimant' as `a private person'

`in accordance with the law of the place where the act or omission

occurred.' . . . Indeed, we have consistently held that § 1346(b)'s reference to the `law of the place' means law of the State -- the source

of substantive liability under the FTCA." Meyer, 510 U.S. at 477-78

(quoting 28 U.S.C. § 1346(a)).

The Lanham Act creates in essence a federal statutory tort, derived

from the common law tort of unfair competition. See, e.g., Bauer

Lamp Co., Inc. v. Shaffer, 941 F.2d 1165, 1170 (11th Cir. 1991);

Homeowners Group, Inc. v. Home Mktg. Specialists, Inc., 931 F.2d

1100, 1105 & n.1 (6th Cir. 1991); Toro Co. v. R. & R. Products Co.,

787 F.2d 1208, 1214 (8th Cir. 1986). And, because the FTCA does

not provide a cause of action for federal torts, federal agencies typically cannot be sued under the FTCA for Lanham Act violations. See

U.S. Gold & Silver Invs., Inc. v. United States ex rel. Director, U.S.

Mint, 885 F.2d 620, 621 (9th Cir. 1989) ("The sole basis for plaintiff's claim alleged in this complaint . . . is violation of . . . the Lanham Act. The FTCA is not intended to encompass such a claim."); see

also Beneficial Consumer Discount Co. v. Poltonowicz , 47 F.3d 91,

97 n.5 (3d Cir. 1995) (noting that "a showing of a violation of federal

law will not alone suffice to qualify a claim under the FTCA's

waiver"); Goldstar (Panama) S.A. v. United States, 967 F.2d 965, 969

(4th Cir. 1992) (same).

Global responds that § 409(c) does not limit§ 401(1)'s broad

waiver of immunity to only those torts cognizable under the FTCA.

Each of the circuits to have considered the issue has concluded that

§ 409(c) serves as a substantive limit on the types of suits to which

USPS must submit. In the context of an alleged "constitutional tort"

 5
under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388

(1971), the Eleventh Circuit held simply, "Section 409(c) applies the

[FTCA] to the Postal Service. Any tort claim against the USPS must

be cognizable under the FTCA." McCollum v. Bolger, 794 F.2d 602,

608 (11th Cir. 1986). In Insurance Co. of North America v. USPS,

675 F.2d 756, 758 (5th Cir. 1982), USPS was sued for misplacing a

bag containing $100,000 in the mails. The court observed that the

FTCA contained a provision that sovereign immunity was not waived

"with respect to claims involving negligent handling of the mails." Id.

The court then held that USPS's waiver of sovereign immunity under

§ 401(1) was "not complete; it is explicitly conditioned by § 409(c),

in which Congress has stated that in actions sounding in tort, the remedies and restrictions of the FTCA shall apply." Id. (citations omitted). See also Houston v. USPS, 823 F.2d 896, 898-99 n.1 (5th Cir.

1987) (citing McCollum and Insurance Co. and observing that Congress "condition[ed] the waiver of immunity for the USPS on the provisions of the FTCA"); Active Fire Sprinkler Corp. v. USPS, 811 F.2d

747, 753 (2d Cir. 1987) (noting in dictum in decision involving Miller

Act claim that by "incorporat[ing] the provisions of the [FTCA] . . .

Congress explicitly has narrowed the waiver of immunity contained

in the `sue or be sued' clause of section 401(1)") (citations omitted).*

Also in the context of a Bivens-type claim, the Ninth Circuit held

that the "`sue and be sued' language of the Postal Service's charter

should not be interpreted to enlarge the waiver of sovereign immunity

specified by the FTCA." Pereira v. USPS, 964 F.2d 873, 876 (9th Cir.

1992). That court, however, relied on the FTCA's§ 2679(a) and held

that for those suits for which it provided a cause of action under the

FTCA, "`sue and be sued' agencies would be subject to suit only to

the same limited extent as agencies whose sovereign immunity from

tort suits was being waived for the first time.'" Id. at 877 (quoting

Loeffler, 486 U.S. at 562) (internal quotations omitted)).

_________________________________________________________________

*In an unpublished opinion we have held, "Although [§ 401(1)] authorizes the USPS `to sue and be sued in its official name,' this Act does

not completely eviscerate sovereign immunity. Rather, [§ 409(c)]

restricts this waiver to tort claims cognizable under the [FTCA]."

Johnson v. Runyon, No. 95-3083, 1996 WL 405218, at *1 (4th Cir.

July 19, 1996) (citing Insurance Co.). As an unpublished opinion,

though, this case holds no precedential value. See 4th Cir. R. 36(c).

 6
While acknowledging these decisions, Global and amici insist the

legal landscape shifted dramatically with the Supreme Court's decision in FDIC v. Meyer, 510 U.S. 471 (1994). There the Court considered another Bivens-type constitutional tort claim brought directly

against the Federal Savings and Loan Insurance Corporation (FSLIC).

The Court noted that Congress had empowered the agency in 1934 to

sue and be sued, effecting a "broad" waiver of sovereign immunity.

See id. at 475. When Congress passed the FTCA, it included

§ 2679(a) to place "suable" and "nonsuable" agencies on precisely the

same footing "on claims which are cognizable" under the FTCA. Id.

Recalling its holdings that constitutional torts are not "cognizable"

under the FTCA, the Court then held that plaintiffs were not limited

by the FTCA's restrictions on federally-created tort claims and could

properly bring such a claim against an agency whose sovereign

immunity had been waived through a "sue-and-be-sued" clause. Id. at

477-78. The Court specifically rejected the argument made by the

Federal Deposit Insurance Corporation (FDIC, FSLIC's successor)

that § 2679(a) evinced an intent for all agencies, suable and nonsuable, to be treated equally with regard to tort claims, that all claims

sounding in tort were claims "cognizable" under § 1346(b), and that

all federal agencies were therefore immune from suit for claims that

could not be brought under the FTCA. Id.

Instead, the Court held that the FSLIC's broad "sue-and-be-sued"

clause constituted a waiver of sovereign immunity for all torts, even

federal torts not cognizable under § 1346(b) of the FTCA. "[S]ue-andbe-sued clauses cannot be limited by implication unless there has

been a `clea[r] show[ing] that certain types of suits are not consistent

with the statutory or constitutional scheme, that an implied restriction

of the general authority is necessary to avoid grave interference with

the performance of a governmental function, or that for other reasons

it was plainly the purpose of Congress to use the sue-and-be-sued

clause in a narrow sense.'" Id. at 480 (quoting Federal Housing

Administration v. Burr, 309 U.S. 242, 245 (1940)). "Absent such a

showing, agencies `authorized to sue and be sued are presumed to

have fully waived immunity.'" Id. at 481 (quoting International Primate Protection League v. Administrators of Tulane Ed. Fund, 500

U.S. 72, 86 n.8 (1991)).

Citing Burr, Franchise Tax Board, and Loeffler (the latter two

involving USPS), the Court noted that "the claimants sought to sub-

 7
ject the agencies to a particular suit or incident of suit to which private businesses are amenable as a matter of course." Id. at 481. In

such a situation, "it was only natural for the Court to look to the liability of private businesses for guidance. It stood to reason that the

agency could not escape the liability a private enterprise would face

in similar circumstances." Id. at 482. Finding no plain evidence of

Congress's intention to limit the waiver of FSLIC's sovereign immunity, the court held that it was not immune as a sovereign to federal

torts, though the Court ultimately found that the plaintiff had no cause

of action.

The two lower federal courts that have considered USPS's liability

under the Lanham Act in light of Meyer have concluded that § 401(1)

operates as a waiver of the USPS sovereign immunity. In United

States v. Quick International Courier, Inc., 131 F.3d 770 (8th Cir.

1997), the court concluded that Congress's broad grant of authority

to sue and be sued was sufficient to evidence an intent by Congress

to waive the USPS' sovereign immunity for suits not cognizable

under the FTCA. The court rejected the USPS' argument that § 409

operated to preclude § 401's effect as a broad waiver of immunity,

concluding instead that "[n]othing in § 409(c) suggests that it

intended to forbid recovery against the Postal Service for tort claims

that are beyond the reach of the Federal Tort Claims Act." Id. at 775.

Similarly, in Federal Express Corp. v. USPS, 959 F. Supp. 832

(W.D. Tenn. 1997), the court held that the USPS was subject to Lanham Act claims in the wake of Meyer. Meyer's holding that agencies

with "sue and be sued" clauses could be liable for federally-created

tort claims and other claims not cognizable under the FTCA, along

with the PRA's statutory construction and legislative history, convinced the court that § 409(c) did not serve to limit § 401(1)'s waiver

of sovereign immunity to only those tort cases that could be brought

under the FTCA. Rather, § 409(c) only limited putative plaintiffs

suing USPS to remedies under the FTCA for those claims cognizable

under the FTCA. See id. at 835.

We agree with the holdings of Quick and Federal Express, but

must concede that Meyer does not flatly dictate them. USPS is correct

in observing that the FSLIC's waiver of sovereign immunity did not

include a provision comparable to § 409(c) of the PRA. Nevertheless

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Meyer does explain that the FTCA does not serve as the only means

by which a federal agency can be sued in tort, and torts that are not

cognizable under the FTCA still may be the sources of appropriate

claims. Courts must look to the scope of a waiver of sovereign immunity to determine whether a particular agency is amenable to suit for

a particular claim.

The issue before us thus narrows to the effect of§ 409(c) on the

PRA's broad waiver of USPS's sovereign immunity contained in

§ 401(1).

As the Court explained long ago in Burr and recently reiterated in

Loeffler:

[W]hen Congress establishes . . . an agency, authorizes it to

engage in commercial and business transactions with the

public, and permits it to "sue and be sued," it cannot be

lightly assumed that restrictions on that authority are to be

implied. Rather if the general authority to "sue and be sued"

is to be delimited by implied exception, it must be clearly

shown that certain types of suits are not consistent with the

statutory or constitutional scheme, that an implied restriction

of the general authority is necessary to avoid grave interference with the performance of a governmental function, or

that for other reasons it was plainly the purpose of Congress

to use the "sue and be sued" clause in a narrow sense. In the

absence of such showing, it must be presumed that when

Congress launched a governmental agency into the commercial world and endowed it with authority to "sue or be sued,"

that agency is not less amenable to judicial process than a

private enterprise under like circumstances would be.

Loeffler, 486 U.S. at 554-55 (quoting Burr 309 U.S. at 245). See also

Franchise Tax Bd., 467 U.S. at 520 (applying this presumption to

USPS's waiver of immunity). The Court relied on this presumption

in Loeffler to find USPS responsible for prejudgment interest in Title

VII actions, and in Franchise Tax Bd. to require the USPS to withhold

delinquent state income taxes, as any other employer would have to

do.

 9
As the Supreme Court and lower federal courts have noted, the legislative history surrounding the PRA is replete with evidence that

Congress intended that USPS "be run more like a business than had

its predecessor, the Post Office Department," Franchise Tax Bd., 467

U.S. at 520, and that the inclusion of the "sue and be sued" clause was

part of this "general design." Loeffler , 486 U.S. at 549. Of course,

USPS retains many features of a governmental entity. It remains

closely regulated, to be "operated as a basic and fundamental service

provided to the people by the Government of the United States . . . ."

39 U.S.C. § 101(a). As such, it is restricted in ways that many private

businesses are not: For example, the Postal Rate Commission is given

the authority to set rates for transporting mails, see 39 U.S.C. § 3621,

and USPS is required to send certain items, such as franked mail,

without a fee. See 39 U.S.C. §§ 3201-3219. And, USPS retains privileges that other private mailing services do not have, including the

right of eminent domain, 39 U.S.C. § 401(9), and legal representation

furnished by the Justice Department. See 39 U.S.C. § 409(d). Generally, however, "[b]y launching `the Postal Service into the commercial world,' and including a sue-and-be-sued clause in its charter,

Congress has cast off the Service's `cloak of sovereignty' and given

it the `status of a private commercial enterprise.'" Loeffler, 486 U.S.

at 556 (quoting Library of Congress v. Shaw, 478 U.S. 310, 317 n.5

(1986)).

As identified in Meyer, supra, there are three ways in which the

presumption of immunity suggested by the "broad" waiver may be

rebutted: (1) when the waiver would conflict with a statutory or constitutional scheme; (2) when there is plain evidence of congressional

intent to restrict the waiver; or (3) when a broad reading would lead

to "grave interference with performance of a governmental function."

510 U.S. at 480 (quoting Burr, 309 U.S. at 245; see also Beneficial

Finance Co. v. Dallas, 571 F.2d 125, 128 (2d Cir. 1978)). USPS

bases its argument on the alleged congressional intent to restrict the

waiver as demonstrated in the language of § 409(c); neither of the

other two means appear to be applicable here. USPS does not point

to any suggestion in the legislative history of the PRA to suggest that

§ 409(c) was intended as a limitation on the substantive claims that

might be brought against it; indeed it appears it cannot.

Rather, USPS argues that its construction of § 409(c) is the most

natural reading of the subsection's plain language and the only one

 10
that gives independent meaning to § 2679(a) of the FTCA. There are

two possible interpretations of that subsection: (1) that only those

torts cognizable by the FTCA are available to claimants against

USPS, and those claimants must utilize FTCA procedures in pursuing

their claims; and (2) that for those claims cognizable under the FTCA,

claimants against USPS must utilize FTCA procedures, but for other

tort claims for which they have a cause of action claimants may sue

USPS directly. As indicated, § 2679(a) of the FTCA provides that

independent waivers of a federal agency's sovereign immunity do not

authorize suits against that agency for claims cognizable under the

FTCA; rather a claimant must follow the procedures of the FTCA and

FTCA remedies are exclusive for such claims. As USPS urges, under

the second interpretation of § 409(c) that subsection would mirror

§ 2679(a). Nevertheless we find it to be the more reasonable reading

of the language. In the face of § 401(1)'s broad waiver of immunity,

this subsection does not facially purport to create any restriction of

that waiver. Rather, in a section of the PRA laying out general procedures to be used in suing USPS, we think the subsection is most logically interpreted as indicating that FTCA procedures should be used

in pursuing tort claims. We interpret the subsection to be simply an

additional "procedural guidepost for would-be plaintiffs" to ensure

that they do not misunderstand that FTCA procedures must be followed for cognizable tort claims. Federal Express, 959 F. Supp. at

835. Accordingly, we read § 409(c) to restrict§ 401(1)'s general

waiver of sovereign immunity only by requiring claimants to follow

FTCA procedures for those claims cognizable under the FTCA.

Under our reading, admittedly, § 2679(a) and§ 409(c) have substantially the same effect. But USPS's preferred interpretation of

§ 409(c) would have more of an impact than we believe was intended,

considering its ambiguous language and the general purpose of the

PRA. In interpreting a statute we must consider both the plain language of the provisions and "its object and policy." United States v.

Turpin, 65 F.3d 1207, 1210 (4th Cir. 1995) (citing Crandon v. United

States, 494 U.S. 152, 158 (1990)). And, it is undisputed that the Congress's overarching object and policy in enacting the PRA was to

loosen restrictions on USPS so that it might compete as a business.

Accordingly "we must presume that the Service's liability is the same

as that of any other business." Franchise Tax Bd., 467 U.S. at 520.

Such anomaly as may be involved in interpreting§ 409(c) to have pri-

 11
marily the same effect with regard to USPS as does a FTCA provision

is simply too slim a reed to support USPS's burden of proffering

"plain evidence of congressional intent" to restrict the waiver of sovereign immunity contained in § 401(1) beyond applying FTCA procedures and limitations to those torts cognizable by the FTCA.

USPS is not an enterprise that occasionally affects commercial

firms indirectly in its endeavors. Rather, the language and the legislative history of the PRA make clear that Congress intended USPS to

be a full-fledged competitor in the business of carrying letters, parcels

and packages, and USPS has fulfilled that intention by competing

head-to-head with a host of private courier services. In competing

with private firms USPS advertises aggressively on television, in

print, on billboards and even by sponsoring a professional cycling

team. And, USPS has utilized the Lanham Act to register its marks

and to ensure that other firms do not infringe upon them. We cannot

conclude that Congress intended § 409(c) simultaneously to "launch

[USPS] into the commercial world" and also to immunize USPS from

liability for federally-created commercial torts such as the Lanham

Act. Such a reading would be wholly inconsistent with Congress's

stated purpose in enacting the PRA.

In sum, we hold that § 409(c) does not limit the PRA's waiver of

sovereign immunity such that USPS is liable in tort only for those

torts cognizable by the FTCA. Consequently, USPS is not immune

from Global's Lanham Act claim.

B.

The question remains whether USPS is a "person" capable of being

sued under the Lanham Act. Aside from the sovereign immunity

issue, USPS argues that the Lanham Act's prohibitions by their terms

do not apply to the federal government and its agencies, including

itself. USPS relies primarily on the Eighth Circuit's decision in

Preferred Risk Mut. Ins. Co. v. United States, 86 F.3d 789 (8th Cir.

1996), cert. denied, 117 S. Ct. 1245 (1997). There a private insurer

had filed trademark applications for names of policies including the

phrase "preferred risk." The Federal Emergency Management Agency

(FEMA) also used the phrase "preferred risk" in providing flood

insurance through the National Federal Flood Insurance Program.

 12
After complaining to FEMA for several years about the likelihood of

confusion, the private insurer sued FEMA for Lanham Act violations.

Because Congress had not broadly waived FEMA's sovereign immunity through a "sue and be sued" clause, the claim proceeded on the

theory that FEMA's actions were arbitrary, capricious, and not in

accordance with law under the Administrative Procedure Act (APA).

Accepting that the APA might serve as a vehicle to pursue valid

Lanham Act claims, the Preferred Risk court determined that the Lanham Act prohibitions were not redressable against the federal government. The Lanham Act's provisions apply to any "person," defined as

a natural person or a "juristic person," including "a firm, corporation,

union, association, or other organization capable of suing and being

sued in a court of law." 15 U.S.C. § 1127. To fit within this definition,

a federal agency would have to be included within the phrase, "organization capable of being sued." The court rejected this proposition,

noting that "[t]he principle of ejusdem generis dictates that a general

term following a list of particulars be interpreted as a reference to

subjects akin to those specifically enumerated." Id. at 794 (citation

omitted). Because the specifically enumerated groups in the Lanham

Act definition are private entities, "this rule of statutory construction

would counsel against an interpretation that includes the federal government." Id. The court also observed that Congress had amended the

Lanham Act in 1992 specifically to include state governments, and

that the principle of negative implication suggested that Congress

intended to omit the federal government from its subjection to the

Lanham Act, especially "against a legal backdrop of cases holding

that the Lanham Act did not apply to state or federal governments."

Id. (citing Serra v. GSA, 667 F. Supp. 1042, 1048-49 (S.D.N.Y.

1987), aff'd, 847 F.2d 1045 (2d Cir. 1988) (dismissing a Lanham Act

suit against the General Services Administration because it had not

waived its sovereign immunity) (emphasis in original) (additional

citations omitted)).

However, the Eighth Circuit found "[m]ost important" the "fact that

interpreting the Lanham Act to include the United States within the

definition of `person' would create a right of action against the United

States under the terms of the Act. Providing such a right of action

against the United States requires an express and unequivocal waiver

of its sovereign immunity." 86 F.3d at 795 (citation omitted). Because

 13
the Lanham Act did not expressly waive the federal government's

sovereign immunity, the court held that FEMA could not be liable

under the Lanham Act.

It is evident that the Eighth Circuit relied on the fact that the Lanham Act did not contain an express waiver of the federal government's sovereign immunity to conclude that no federal agency could

be a "juristic person" under the Act. See Quick, 131 F.3d at 775 (distinguishing its own decision in Preferred Risk because unlike FEMA

the "postal service is outfitted with a sue-and-be-sued clause waiving

its traditional sovereign immunity"). We agree that the Lanham Act

itself contains no waiver of sovereign immunity for the federal government, and that the Act's definition of "person" as an "organization

capable of being sued" falls short of the standard of explicitness

required for such a waiver. But those agencies whose immunity has

already been waived, and are capable of suing and being sued, fall

squarely within the plain language of the Lanham Act's definition of

"juristic persons." While we have applied the rule of ejusdem generis

to interpret general statutory terms "`in light of the specific terms that

surround it,'" United States v. Parker, 30 F.3d 542, 553 n.10 (4th Cir.

1994) (quoting Hughey v. United States, 495 U.S. 411, 419 (1990)),

we conclude that a federal agency whose sovereign immunity has

been waived unambiguously falls within that definition. Even applying the rule to the definition of "juristic persons," a governmental

agency engaged in a commercial enterprise, as is USPS, is indistinguishable in kind from a private "firm" or"association." USPS's

effort to limit the application of the Lanham Act's definition to

exclude itself therefore must fail.

Also, the fact that Congress amended the Act in 1992 to include

states within its purview, but not the federal government, only indicates it did not intend to include a waiver of sovereign immunity for

Lanham Act violations for the whole of the federal government.

Again, we acknowledge that the Lanham Act itself does not include

a waiver of sovereign immunity for federal agencies. But it also does

not proscribe suits to enforce its provisions against agencies that are

capable of being sued. Construing the Lanham Act's definition of "juristic person" to exclude the USPS, a governmental corporation

actively engaged in competition in the private market, would lead to

the same "inherent inequity" that served as a catalyst for Congress'

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amendment of the Lanham Act in favor of suits against states for violation of the Act. S. Rep. No. 102-280 (1992). For those agencies

whose sovereign immunity has been independently waived, therefore,

we hold that they are "juristic persons" under the terms of the Lanham

Act, and may be sued to enforce the provisions of the Act. Because

we find that Congress waived USPS's immunity as to Lanham Act

claims, it must defend against Global's action on the merits.

III

Because we conclude that Congress waived USPS's sovereign

immunity in the PRA, we need not consider and therefore express no

opinion on Global's arguments that the USPS is "judicially estopped"

from denying its status as a "person" under the Act, or that holding

USPS not to be liable under the Lanham Act would create an unlawful "taking" of Global's rights in violation of the Fifth Amendment.

IV

In conclusion, we hold that the PRA constituted a waiver of

USPS's immunity as to Lanham Act claims and USPS is a "person"

within the Lanham Act. We therefore vacate the judgment of the district court and remand for further proceedings consistent with this

opinion.

VACATED AND REMANDED

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