MOHAMED LY, P laintif f,

v. UNITED STAT ES POSTAL S ERVICE,

Defendan t. UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

Civil Action 09-02241 (HHK )

MEMORAN DUM OP INION Plaintiff Mohamed Ly , proce eding pro se , bring s this breac h of contra ct claim ag ainst the United States Postal Service (“ USPS ”), a ssertingthat the USPS unl awf ully ref uses to indemnify him for the conte nts of mail alleg edly lost by the USPS. Befor e the Court is the USPS’s mot ion to dismi ss, or in the alterna tive, for summary

judgme nt [ #10], seeking dismissal of the c ase on the g rounds that, inter alia , L y has not exhausted his administrative remedie s. Upon consideration of the motion, the oppositi on there to, and the re cord of the ca se, the Court conclude s that the USPS ’s motion must be g rante d. I. BACKG ROUND 1 On J anuar

y 26, 2009, L y

sent a pa ckag e fr om a USPS l ocation in Gaither sburg , Maryland to an addr ess in Pakistan. L y contends that he shipped ten “B lackbe rry Storms” in this packa g e valued at a total of $2,649.90. Ly spent $74.75 in postag e and pur chase d additional insurance for the pac kag e for

a fe e of $3.45, which entitled him to up to $1,000 in coverag e. At the time of the The Court take s these fa cts in larg e par t from the USPS’s moti on to dismi ss due to 1 the lack of

fac tual alleg ations in L y ’s complaint or brie fs. The Court unde rstands these f acts to be ac curate g iven Ly ’s observa tion, in responding to the U SPS ’s motion to dis miss, that “the fac ts of this case a

re not in dispute.” Pl.’s Opp’n to De f.’s Mot. to Dismiss at 1.mailing, Ly filled out an Express Mail L abel whic h stated that insuranc e cove rag e is only provided “ in acc ordanc e with postal regulations in the Domestic Mail Manual (D MM) and, for international shipments, the International Mail Manual (I MM).” De f.’s Mot. to Dismiss, Ex . 5. When the packa g e ar

rived in Pakistan on J anuar y 30, 2009, the addr essee ref used it beca

use he stated that conte nts were missing. On the same day or shortly

there afte r, Ly

contac ted the USPS International I nquiry

Center by

telephone to r eport that he had mailed ten c ell phones that we re missing upon deliver

y in Pakistan. I n response to an inquiry by the USPS I nterna

tional Inquiry Center, the Postal Administration of Pakistan indicated that the packa g e had a rrived in g ood condition and containe d only a computer

speake r and a

n answe ring machine. T he International Inquiry Center c ontacted L

y in Febr uary 2009 to obtain information verify ing the contents of the packa g e. Ac cordingto L y , he initiated a number of phone inquiries w ith the USPS and filled out a PS Form 1000 cla im form. There are no alleg ations that he pursue d the USPS claims and 2 appea ls processe s. II. LEGAL STANDARD The USPS moves to dis miss L y ’s complaint pursuant to F eder al Rules of Civil P roce dure 12(b)( 1) for

failure to exhaust hi s administrative reme dies. Although “ there is some uncer tainty 3 as to whethe r a f

ailure to e x haust administrative re medies is proper ly broug ht in a Rule 12(b)(1)

This claim form is attac hed as a n exhibi t to L y ’s complaint. I t is unclear where or 2 to whom he submitted this claim form, but written on the form is the notation “ha nd-deliver ed to Mr. Ramona on 4/15/09.”

The USPS also moves to dism iss under F eder al Rule of Civil P roce dure 12( b)(6) 3 on the g rounds that USPS reg ulations bar indemnity for shipments of prohibited a rticles, including c ellular phone s, and the USPS’s liabili ty is defined by

the terms of the postal laws and regulations. Bec ause the Court gr ants the USPS’s mot ion to dism iss on ex haustion g rounds, the Court does not rea ch this argument. 2motion, as a jurisdictional defe ct, or in a Rule 12( b)(6) motion for failure to state a c laim,” cour ts in this circuit tend to treat fa ilure to exhaust as a fa ilure to state a c laim rather than as a jurisdictional deficie ncy . See H all v. Sebelius , 689 F. Supp. 2d 10, 21 (D.D .C. 2009); Marce lus v. Corr. Corp. Of America/Corr. Tr eatment Fac ility , 540 F. Supp. 2d 231, 235 n.4 (D.D .C. 2008); see also Artis v. Bernanke , 630 F.3d 1031, 1034 n.4 ( D.C. Cir. 2011) (noting that “fa ilure to exhaust admini strative re medies is not jurisdictional under cur rent pre cede nts” unless the statute contains a c lear

statement to that eff

ect)

. There fore , the Court will treat the USPS’s 4 motion as broug ht under Rule 12(b) (6). Under Rule 12(b)(6) , a cour

t must di smiss a complaint, or any portion of it, if it fails to state a c laim upon which re lief may be g rante d. Fe d. R. Civ. P . 12(b)( 6). To survive a Rule 12(b)( 6) motion, “a c omplaint must contain suff icient fa ctual matter , acc epted a s true, to ‘state a claim to relief

that is plausible on its face.’ ” Ashcroft v. Iqbal , --- U.S. ---, 129 S. Ct. 1937, 1949 (2009) ( quoting Bell Atl. Corp. v. Tw ombly , 550 U.S. 544, 570 (2007)). III. ANALYSIS Ly seeks to re cover , throug h the insuranc e that he pur chase d from the USPS, the lost value of ten ce llular phones that he a lleg edly mailed to Pakistan. The USPS arg ues that Ly ’s claim must fail beca

use he did not exhaust his administ rative r emedies pur suant to the USPS ’s regulations as set forth in the I MM. L y does not contend that he followed the USPS proce dure for e x hausting his administrative remedie s, but avers that he “initiate[d] an inquiry with [ the] USPS , both locally

and throug h [t he USPS’s] toll free numbe r.” Pl.’s Opp’n a t 1. The Court

Even if this motion to di smiss i s proper ly addre ssed under

Rule 12(b)(1) , the 4 Court finds that the outcome in the ca se would be the same unde r either Rule 12(b)(6) or Rule 12(b)( 1). 3ag ree s with the USPS that L y failed to e x haust his administrative reme dies and will g rant the USPS ’s motion to dis miss on thi s basis. The postal re gulations gove rning international mail indemnity claims and pa

y ments are published in the USPS ’s I MM. The I MM has bee n incorporated by ref ere nce into the Code of Fe dera l Regulations. See39 C.F.R. § 20.1; see also id. § 211.2(a) (2) ( establishing that the regulations of the Postal Service c onsist of the I MM and other ma nuals). The I MM provides

5 specific proce dures f

or filing a cla im as well as subseque nt appea ls. See USPS , I MM §§ 920, 930 et seq . To initiate the claims proc ess, a c ustomer must file a cla im for indemnity by submitt ing “ a complete d PS Form 2855 with appropriate documentation” to International Claims, St. L ouis AccountingService s in St . L ouis, Missouri. Id. § 931.1; see also id. § 931.2 (noting that indemnity

claims for inter

national Reg istered Ma il and insured pac kag es ar e “a djudicated by the St. L ouis AccountingService Center” ). The c ustomer may appea l a claims dec ision by filing

a wr itten appea l within 60 day s of the date of the orig inal decision. Id. § 931.31. I f the a ppeal is denied, the c ustomer may submit another appe al within 60 day s “for final re view and de cision” to the Consumer Advocate of International Claims Appeals in W ashing ton, D.C. “who may waive sta ndards in fa

vor of the c ustomer.” Id. § 931.32. Although the laws and r egulations gove rning the USPS do not themselves expressly

At the time of the e vents g iving r ise to L y ’s claim in this case in January 2009, 5 I ssue 35 of the I MM was in eff ect. 39 C.F .R. § 20.1. The Court will therefor e re fer to and cite I ssue 35. SeeUSPS , Mailing Standa rds of the United States Postal S ervic e, International Mail Manual, I ssue 35 (May

12, 2008), available at http://pe.usps.com/I MM_Archive /PDF/I MM_Archive _2008/imm/ immTOC.P DF. 4require the exhaustion of the administrative claims proc ess for c ontrac t claims ag ainst the USPS , 6

when a n administrative re medy

proce ss exi sts, “the exhaustion requireme nt ‘may be wa ived in only the most ex ceptional c ircumstance s.’” Commc’ns W orkers of Am. v . Am. Tel. &Tel. Co. , 40 F.3d 426, 432 ( D.C. Cir. 1994) (citing Peter Kiewit Sons’ Co. v. U.S. Army Corps of Eng’rs , 714 F.2d 163, 168–69 ( D.C. Cir. 1983)). The doc trine of e x haustion of administrative re medies “prote ct[s] administrative ag ency authority and promot[es] j udicial ef ficienc y ,” McCarthy v

. Madigan , 503 U.S. 140, 145 (1992), and e nsures that “ ag encie s — and not the fe dera l courts — take pr imary

responsibility

for implementingthe re gulatory prog rams assig ned by

Congr ess.” Ass’n of Flight Attendants-CW A, AFL-CIO v. Chao , 493 F.3d 155, 158 ( D.C. Cir. 2007) (citing McCarthy , 503 U.S. at 145). Ly has established no e x ceptional c ircumstance s that would

war rant wa iver of the administrative proc ess. There fore , Ly must ex haust the USPS’s 7 administrative claims proc ess bef ore suing the USPS i n fede ral c ourt. Cf. Simat v. USPS , 218 F. Supp. 2d 365, 367 (S.D.N.Y. 2002) (“ I t is well-established that [postal] claimants must first

The Court construe s L y ’s claim as a contra ct claim bec ause the USPS has wa ived 6 sovere ign immunity

for c ontrac t claims. See 39 U.S.C. § 401(1). To the extent that L y ’s claim could be c onstrued as a

tort claim, his claim is barre d by the doctrine of sover eig n immunit y . The United States ha s expl icitly ref used to waive its sovereig n immunit y under the Fe dera l Tort Claims Act with reg ard to “ any claim ar ising out of the loss, miscar riag e, or ne g lige nt transmission of letters or postal matter .” 28 U.S.C. § 2680(b); see also Mc Bride v. USP

S , 2007 WL1965337, at *2 (E.D.N .Y. J une 29, 2007) ( noting that sove reig n immunit y barr ed tort cla im, but not contrac t claim, ag ainst the USPS ).

There are a number

of circ umstances unde r which the g ener al rule r equiring 7 exhaustion m ay

be wa ived, including delay that either is excessive or leads to irre para

ble injury ; inability of the a g ency

to gr ant ef

fec tive relief

; or bias within or prede termination by the ag ency . See Tesoro Re

f. &Mktg. Co. v. FER C , 552 F.3d 868, 872 ( D.C. Cir. 2009). L y has invoked none of these c ircumstance s and none a ppear to apply to the case

. 5pursue a dminist rative r emedies be fore proper ly seekingrelief

at the district cour

t.”). 8 Ly has not alleg ed — and the re is no evide nce to sug g est — that he instituted an appropr iate cla im or any

appea ls pursuant to the I MM. His submis sion of the wrongclaims form and subseque nt phone inquiries do not constitute exhaustion of the available a dminist rative

reme dies. Acc ording ly , the Court will dism iss Ly ’s complaint for f ailure to e x haust the administrative claims proc ess pre scribed in the IMM. III. CONCLUSION For the fore g oing r easons, USPS’s motion t o dismiss is GR ANTED . An appr opriate order acc ompanies this memorandum opinion. Henr y H. Kenne dy , J r. United States District J udg e

Other c ourts have r outinely found a pla intiff’s fa ilure to exhaust the 8 administrative re medies ava ilable under the postal regulations before commencinga lawsuit in district court to be g rounds for dismissal. See, e .g. , McBridev. USPS, 2007 WL 1965337, at *2 (E.D.N.Y . J une 29, 2007) ( dismiss ing c ontrac t claim ag ainst the USPS for mishandling of packa g es bec ause pla intiff failed to e x haust administrative re medies); Simat , 218 F. Supp. 2d at 368 (dismissing contra ct ac tion ag ainst the USPS alleg ing the USPS failed to de liver pac kag es based on pla intiff’s fa ilure to exhaust administ rative r emedies) ; Breaux v. USPS, 46 F. Supp. 2d 641, 643 (E.D. Te x . 1999) (dismissing c omplaint seekingref und of Express Mail postag e beca use of plaintiff’ s failure to exhaust admini strative re medies). 6