UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ JAMES L. WHITE, Plaintiff - Appellant,

v. UNITED STATES POST OFFICE, Defendant - Appellee. No. 23-1239 (D.C. No. 1:22-CV -01248-CNS-NRN) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MORITZ , ROSSMAN , and FEDERICO , Circuit Judges.

________________ _________________ James L. White appeals the dismissal of his pro se action against the United States Postal Service under Federal Rule of Civil Proce dure 12(b)(6) for failure to state a claim. Exercising jurisdiction under 28 U.S.C. § 1291, we vacate the district court’s merits dismissal and remand with inst ructions to dismiss th e action for lack of jurisdiction.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 13, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-1239 Document: 010111064643 Date Filed: 06/13/2024 Page: 12 I White asserted four claims alleging th at Postal Service employees rendered poor customer service because of discrimination. Claim one alleged he is a Black man who went to the post office “to start a new 30 day hold” on his mail. R. at 31. He waited in line behind a white woman w ho had no problems with the white postal clerk, but when it was White’s turn, the postal clerk “gave [him] an unfavorable look[,] slammed the window[,] and came b ack with a” Black postal clerk “so it wouldn’t look like discrimination.” Id. The Black clerk falsely told him they could not hold his mail, making him f eel disrespected and treated differently because of his race. Claims two, three, and four simila rly attributed poor customer service to discrimination after White di d not receive his mail and postal employees entered incorrect information in to the system for holding his mail. All four claims asserted violations of Title II of th e Civil Rights Act of 1964, 42 U.S.C. §§ 2000a to 2000a-6. The district court adopted a magistra te judge’s recomme ndation to dismiss claims two, three, and four for failure to comply with Federal Rule of Civil Procedure
8. 1 The Postal Service then moved to di smiss claim one under Rule 12(b)(6), arguing that Title II prohibits di scrimination in any “place of public accommodation” under the statutory definition, which does not incl ude post offices. 42 U.S.C. § 2000a(b). The magistrate judge agreed and recommended dismissal. The district court adopted the recommendation and dismissed the case. White appealed.

1 White does not challenge this ruling. Appellate Case: 23-1239 Document: 010111064643 Date Filed: 06/13/2024 Page: 23 II Our analysis begins and ends with a juri sdictional defect. Although the district court did not address the jurisdictional ques tion, we have an independent obligation to examine subject matter jurisdiction. Garling v. U.S. Env’t Prot. Agency , 849 F.3d 1289, 1293 (10th Cir. 2017). Indeed, “on every app eal, the first and fundamental question is that of jurisdicti on, first, of this court, a nd then of the court from which the record comes.” In re Lang , 414 F.3d 1191, 1195 (10th Cir. 2005) (brackets, ellipsis, italics, and internal quotation marks omitted). We have jurisdiction to review the district court’s Rule 12(b)(6) dismissal. See, e.g. , Garling , 849 F.3d at 1292 (exercising appellate ju risdiction over a Rule 12(b )(6) dismissal and remanding to dismiss for lack of subj ect matter jurisdiction). Th e Postal Service contends, however, that the district court lacked jurisdiction because the Postal Regulatory Commission has exclusive jurisdiction over ma il service complaints like White’s. We review de novo whether subject matter jurisdiction was proper. 1mage Software, Inc. v. Reynolds & Reynolds Co. , 459 F.3d 1044, 1048 (10th Cir. 2006). Under 39 U.S.C. § 3662(a), the Postal Regulatory Commission has exclusive jurisdiction over claims regardi ng postal rates and services. See LeMay v. United States Postal Serv. , 450 F.3d 797, 799-800 (8th Cir. 2006); McDermott v. Potter , No. C09-0776RSL, 2009 WL 2971585, at *3 (W.D. Wash. Sept. 11, 2009), aff’d sub nom ., McDermott v. Donahue , 408 F. App’x 51 (9th Cir. 2011) (unpublished). The statute provides: “Any interested pers on . . . who believes the Postal Service is not operating in conformance with the requi rements of the provis ions of sections Appellate Case: 23-1239 Document: 010111064643 Date Filed: 06/13/2024 Page: 34 101(d), 401(2), 403(c), 404a, or 601, or this chapter . . . may lodge a complaint with the Postal Regulatory Commissi on . . . .” 39 U.S.C. § 36 62(a). In turn, § 403(c) states that “[i]n providing serv ices . . . , the Postal Serv ice shall not . . . make any undue or unreasonable discrimi nation among users of the ma il, nor shall it grant any undue or unreasonable preferen ces to any such user.” A ppellate review of decisions rendered by the Postal Regulatory Commissi on lies in the United States Court of Appeals for the Distri ct of Columbia. Id. § 3663. And dist rict courts have jurisdiction to enforce, enjoin , and restrain the Postal Se rvice from violating orders issued by the Postal Regulatory Commission. Id. § 3664. Under this statutory scheme, the district courts lack jurisdiction to consider service-related complaints against the Postal Service in the first instance. Rodriguez v. Hemit , No. C16-778 RAJ, 2018 WL 3618260, at *2 (W.D. Wash. July 30, 2018) (unpublished). The question, then, is whether White’s claim is properly characterized as a service-related complaint that falls within the scope of § 3662(a). In discerning the nature of his claim, we evaluate the s ubstance of his allega tions, not the labels attached to them. Weaver v. United States , 98 F.3d 518, 520 (10t h Cir. 1996). White alleged the Postal Service clerks refused to hold his mail. He asse rted one clerk gave him a bad look, slammed the window closed , and returned with another clerk who falsely told him they could not hold his mail . He averred that th e white customer in line before him faced no such difficulty, so he attributed the poor service to discrimination. However, White’s allega tions in substance describe a customer service complaint for the refusal to hold hi s mail. Indeed, “[c]omplaints about how Appellate Case: 23-1239 Document: 010111064643 Date Filed: 06/13/2024 Page: 45 the Postal Service holds and de livers mail are inherently mail service claims [that fall under § 3662(a)].” Ssebanakitta v. Raymond , No. 20-1167-EFM-GEB, 2020 WL 6798819, at *2 (D. Kan. Nov. 19, 2020), aff’d , 845 F. App’x 797, 798 (10th Cir. 2021) (unpublished). Althou gh White attributed the poor service he received to discriminatory animus—alleging the postal clerks slammed the window closed and refused to hold his mail—hi s allegations place his claim squarely within the parameters of § 403(c) and § 3662(a). See Murphy v. United States Postal Serv. , No. C 14-02156 SI, 2014 WL 4437731, at *3-4 (N.D. Cal. Sept. 9, 2014) (unpublished) (holding that , because § 3662 requires serv ice-related claims to be filed with the Postal Regulatory Commission, the district court lacked jurisdiction over plaintiff’s claim “tha t defendant unlawfully disc riminated among postal customers when a Postal Service clerk cl osed a service window and did not return while plaintiff attempted to obtain service” ). The exclusive remedy for such claims lies with the Postal Regulat ory Commission, and thus th e district court lacked jurisdiction to consider th e merits of the claim. We reached a similar conclusion in Bovard v. United States Post Office , No. 94-6360, 1995 WL 74678 (10th Cir. Feb. 24, 1995) (unpublished). In Bovard , the plaintiffs alleged they were subjected to unreasonable discri mination in violation of § 403(c) because the postmaster change d the morning mail delivery service to afternoon delivery. Id. at *1. We held that, “[w]hile th e plaintiffs have alleged unreasonable discrimination, . . . their clai m [was] more appropriately characterized as a complaint regardi ng their mail service.” Id. We further noted that “[t]he Appellate Case: 23-1239 Document: 010111064643 Date Filed: 06/13/2024 Page: 56 language of § 3662 makes clear that a pos tal customer’s reme dy for unsatisfactory service lies with the Postal [Regulator y] Commission, and that Congress did not intend to create a private right of action for service complaints.” Id. We therefore concluded that the district court lacked jurisdiction to consider the claim. Id. The Eighth Circuit followed a similar approach in LeMay . Citing our decision
in Bovard , the Eighth Circuit held the Postal Regulatory Commission has exclusive jurisdiction over mail service complaints. See LeMay , 450 F.3d at 800. The court thus examined what was ostensibly a cont ract claim and determined the allegations that “the Postal Service had a contractua l obligation to provide priority services” “echo[ed] contract, but the issues [were] classic questions of postal rates and services.” Id. at 800-01 (internal quotation mark s omitted). Hence, the court concluded that the district court lacked jurisdiction to consider the claim, which should have been brought before th e Postal Regulatory Commission. Id. at 801; accord Foster v. Pitney Bowes Corp. , 549 F. App’x 982, 986 (Fed. Cir. 2013) (unpublished) (affirming dismissal of § 404a claim because § 3662(a) conferred exclusive jurisdiction over such claims to the Postal Regulatory Commission, with appellate review in the D.C. Circuit under § 3663). These cases confirm our conclusion: White’s allegati ons present a mail service complaint that falls under the exclus ive jurisdiction of the Postal Regulatory Appellate Case: 23-1239 Document: 010111064643 Date Filed: 06/13/2024 Page: 67 Commission. Therefore, the action shoul d have been dismissed for lack of jurisdiction. 2
III Accordingly, the district court’s judgment is vaca ted, and this case is remanded to the district court with instru ctions to dismiss the action for lack of jurisdiction. White’s motion to proceed on appeal without prepayment of costs and fees is granted. Entered for the Court
Nancy L. Moritz Circuit Judge

2 We note, however, that 39 U.S.C. § 3662(a) would have no relevance to a non-service related discrimina tion claim. Moreover, dism issal of White’s claim in this case does not necessarily preclude hi m from voicing his con cerns about alleged discrimination in an appropriate forum. For example, the magistrate judge observed—and the district court reiter ated—that in addition to submitting a complaint to the Postal Regulatory Commis sion, White could c ontact “the Postal Service’s district consumer affairs office[,] . . . the he adquarters Consumer Advocate office[,] [or] [the] Office of the Insp ector General . . . .” R. at 82. Appellate Case: 23-1239 Document: 010111064643 Date Filed: 06/13/2024 Page: 7