United States Court of Appeals

For the First Circuit

No. 08-1266

JOSEPH K. LEVASSEUR,

Plaintiff, Appellant,

v.

U.S. POSTAL SERVICE,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

 Lipez, Selya and Howard,

Circuit Judges.

John K. Levasseur on brief pro se.

Michelle A. Windmueller, Attorney, Appellate Division, Hélène

Kazanjian, Special Attorney to the United States Attorney General,

and Lori J. Dym, Chief Counsel, Appellate Division, on brief for

appellee.

October 1, 2008
-2-

Per Curiam. We affirm the judgment substantially for the

reasons enumerated in the district court's opinion, see 2007 WL

2011273 (D.N.H. 2007), adding only the following comments. 

This case raises a single issue involving the so-called

"postal-matter exception" to the Federal Tort Claims Act. That

exception preserves sovereign immunity for "[a]ny claim arising out

of the loss, miscarriage, or negligent transmission of letters or

postal matters." 28 U.S.C. § 2680(b). The question is whether the

theft or concealment of mail--in this case, political campaign

flyers that were diverted by a partisan postal employee to prevent

them from being delivered to voters shortly before a municipal

election--falls within that provision. The district court deemed

the exception applicable and thus dismissed for lack of

jurisdiction. 

Levasseur contends that the postal-matter exception does

not apply to intentional torts. In his view, the plain meaning of

the statutory language supports such a conclusion. To the

contrary, as the district court explained, the fact that the word

"negligent" only modifies the word "transmission" indicates that

intentional acts of "loss" and "miscarriage" are also covered.

See, e.g., Watkins v. United States, 2003 WL 1906176, at *4 (N.D.

Ill. 2003). Levasseur has offered no rebuttal to this line of

reasoning. 
-3-

Levasseur also relies on a comment in Birnbaum v. United

States, 588 F.2d 319 (2d Cir. 1978). Under challenge there was a

CIA program in which letters to and from the Soviet Union were

opened, photocopied, and then returned to the mail for delivery.

In concluding that the postal-matter exception did not bar suit,

the court stated as follows:

The language of the exception itself

indicates that it was not aimed to encompass

intentional acts. Had Congress intended to

bring intentional disturbance of the integrity

of a letter within the postal exception, it

would not have used the term "negligent

transmission." Nor were the letters lost or

miscarried. "Miscarriage" in the context of

mail means misdelivery.

Id. at 328 (emphasis added and deleted). Levasseur relies on the

emphasized sentence. Yet it seems clear that this remark pertained

solely to the "negligent transmission" factor, for it otherwise

would have conflicted with Marine Ins. Co. v. United States, 378

F.2d 812 (2d Cir. 1967). It was there held that the § 2680(b)

exception applied to the theft of postal matter by a governmental

employee. The Birnbaum court was able to distinguish that decision

because, unlike in the case before it, the claim in Marine had

involved the package's "'loss' from the postal system." Birnbaum,

588 F.2d at 328 n.20; accord C.D. of NYC, Inc. v. U.S.P.S., 2005 WL

3322993, at *1 (2d Cir. 2005) (applying Marine and holding that

theft of mail by postal employees involved "loss"; distinguishing

Birnbaum on ground that mail there "was not lost"), cert. denied,
-4-

127 S. Ct. 346 (2006); see also Georgacarakos v. United States, 420

F.3d 1185, 1188 (10 Cir. 2005) (distinguishing Birnbaum on same th

basis). Since Birnbaum did not involve a loss, the remark in

question also would have been dicta if it was meant to apply

thereto. Levasseur thus derives no support from that decision.

Indeed, the cases holding that theft of mail is a "loss"

for purposes of § 2680(b) directly undermine Levasseur's position,

since theft is of course a form of intentional misconduct. We

think it entirely reasonable to say, as these cases have, that mail

that is stolen by a postal employee is thereby "lost" from the

postal system.

The Supreme Court has stated that, as a general rule, the

postal-matter exception preserves immunity for "injuries arising,

directly or consequentially, because mail either fails to arrive at

all or arrives late, in damaged condition, or at the wrong

address." Dolan v. U.S.P.S., 546 U.S. 481, 489 (2006). It

provided several examples of such injuries, including "harms

arising from nondelivery or late delivery of sensitive materials or

information (e.g., medicines or a mortgage foreclosure notice)."

Id. The claim here, which similarly complains of the "nondelivery

... of sensitive materials," falls squarely within this category.

Affirmed.