NOT FOR PUBLICATION CLOSED

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

______________________________ 

:

ELAINE IRIS KASSIN, :

:

Plaintiff, : Civil Action No. 11-01482 (JAP)

:

v. : OPINION

:

THE UNITED STATES :

POSTAL SERVICE, et al., :

: 

:

Defendants. :

 :

PISANO, District Judge.

This is an action brought by Elaine Iris Kassin against the United States Postal Service 

(the “Postal Service”); John Potter, Postmaster General; and the Attorney General of the United 

States (collectively, “Defendants”). Presently before the Court is a Motion to Dismiss pursuant 

to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6) and 8(a) by the Defendants. Plaintiff 

opposes the Motion. The Court decides the matter without oral argument pursuant to Federal 

Rule of Civil Procedure 78. For the reasons below, this case is dismissed with prejudice.

I. Factual Background

Plaintiff Elaine Iris Kassin filed the instant Complaint on March 16, 2011. In it, she 

alleged “wrongful termination by the USPS as a result of whistleblowing and firsthand 

knowledge of business practices which violate the terms of federal operation regulations set forth 

by the Office of the Inspector General (“OIG”) and the United States Government.” Compl. 3. 

The Complaint also makes clear that Plaintiff was not an employee of the Postal Service, but 

rather of “Federal Contracts Consultants, Inc.,” which had a contract with that agency. Kassin 

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states that she was employed from January 11, 2010 until April 15, 2010, when she was 

apparently terminated from her position “in the contract support area of the IT services support 

department.” Id. at 7.

Kassin alleges that the purchasing and contracting practices of the Postal Service are

riddled with unfair preferential treatment and incompetence, which result in wasteful government 

spending. She also refers to “wrong-doing and corruption as it relates to OSHA, labor 

regulations, contract fraud, favoritism, nepotism and other issues.” Id. at 6. The Complaint 

alleges “maltreatment” of employees and contractors, and suggests that her termination was a 

form of retaliation for her knowledge of the alleged practices. Kassin seeks “$100 million 

dollars in punitive damages for being subjected to the above acts of federal regulation and labor 

regulation violations and being wrongfully terminated for an act of ‘whistleblowing.’” Id. at 28. 

In addition, Kassin’s Complaint seeks an end to all the alleged unfair practices and violations, 

“removal” of the President of Federal Contracts Consultants (her former employer), and a letter 

of apology from a USPS employee. Id. at 30.

II. Motion to Dismiss for Failure to State a Claim

Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain a “short and 

plain statement of the claim showing that the pleader is entitled to relief.” Under Federal Rule 

of Civil Procedure 12(b)(6), a court may grant a motion to dismiss if the complaint fails to state a 

claim upon which relief can be granted. Recently, the Supreme Court refashioned the standard 

for addressing a motion to dismiss under Rule 12(b)(6). See Bell Atl. Corp. v. Twombly, 550 

U.S. 544 (2007). The Twombly Court stated that, “[w]hile a complaint attacked by a Rule 

12(b)(6) motion to dismiss does not need detailed factual allegations, . . . a plaintiff’s obligation 

to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, 

and a formulaic recitation of the elements of a cause of action will not do[.]” Id. at 555 (internal 

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citations omitted); see also Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007). More 

recently, the Supreme Court has emphasized that, when assessing the sufficiency of a civil 

complaint, a court must distinguish factual contentions and “[t]hreadbare recitals of the elements 

of a cause of action, supported by mere conclusory statements.” Ashcroft v. Iqbal, 129 S. Ct. 

1937, 1949 (2009). 

In determining the sufficiency of a pro se complaint, the Court must construe it liberally 

in favor of the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (following Estelle v. 

Gamble, 429 U.S. 97, 106 (1976) and Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). A pro se

complaint may be dismissed for failure to state a claim only if it appears “beyond doubt that the 

plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” 

Haines, 404 U.S. at 521 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Milhouse v. 

Carlson, 652 F.2d 371, 373 (3d Cir. 1981). However, where a complaint can be remedied by an 

amendment, a district court may not dismiss the complaint with prejudice, but must permit the 

amendment. Denton v. Hernandez, 504 U.S. 25, 34 (1992); Alston v. Parker, 363 F.3d 229 (3d 

Cir. 2004) (complaint that satisfied notice pleading requirement that it contain short, plain 

statement of the claim but lacked sufficient detail to function as a guide to discovery was not 

required to be dismissed for failure to state a claim; district court should permit a curative 

amendment before dismissing a complaint, unless an amendment would be futile or inequitable); 

Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002) (dismissal pursuant to 28 

U.S.C. § 1915(e)(2)); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000) (dismissal pursuant 

to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg County Police Dept., 91 F.3d 451, 453 (3d 

Cir. 1996).

Kassin’s Complaint poses the opposite problem for this Court than that addressed by the 

Supreme Court in Twombly and Iqbal; it recites factual allegations, but fails to identify any legal 

cause of action. The Plaintiff is not required to cite law in her Complaint, and this Court is 

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mindful that it must construe pro se complaints liberally. However, the Court is unable to 

construct a legal claim to match the facts she alleges. As the Government notes in its Motion to 

Dismiss, Kassin’s allegations do not fall under the Whistleblower Protection Act, 5 U.S.C. § 

2302, because she was not a federal employee, and because that Act does not apply to the Postal 

Service. Even if Kassin had sued her actual employer, she has not pled sufficient facts showing

any kind of wrongful termination. Rather, she has essentially stated the dates of her 

employment, along with her suspicion that her termination was due to her knowledge of certain 

government practices. 

The most detailed allegations in Kassin’s Complaint relate to what she believes to be 

inefficient and unfair Postal Service contracting practices. However, the Court cannot 

manufacture a fitting legal cause of action. It is also extremely unlikely that the Plaintiff would 

have standing to bring such a claim if it existed, as she cannot allege any personalized harm

arising from her allegations. Insofar as she would have standing to bring claims related to her 

own employment, her allegations fail to state a claim for the reasons stated above.1

 

III. Motion to Dismiss for Lack of Subject Matter Jurisdiction

Under Federal Rule of Civil Procedure 12(b)(1), a court may grant a motion to dismiss if

it lacks subject matter jurisdiction over the complaint. The Defendants’ Motion to Dismiss notes 

that the Plaintiff has failed to identify any waiver of sovereign immunity that would give the 

Court subject matter jurisdiction over her Complaint. Indeed, it is necessary for the Plaintiff to 

state a legal claim in order for the Court to identify any potential waiver of sovereign immunity 

that may correspond to the claim. As described above, the Plaintiff has failed to do so. Thus, 

lack of subject matter jurisdiction provides further grounds for granting this Motion to Dismiss.

 1 The Court further notes that it can discern no relation whatsoever between Plaintiff’s allegations and the Attorney 

General of the United States, who is one of the named Defendants.

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IV. Conclusion

Where a complaint can be remedied by an amendment, a district court must dismiss it

without prejudice, allowing the plaintiff time to amend. Denton, 504 U.S. at 34; Alston, 363 

F.3d 229. However, there is no conceivable circumstance in which the experiences cited by this 

Plaintiff allow her a cause of action against these Defendants. Therefore, the Court finds that 

allowing the Plaintiff to amend her Complaint would be futile, and this case is dismissed with 

prejudice. An appropriate Order follows.

/s/ Joel A. Pisano 

JOEL A. PISANO 

United States District Judge

Dated: November 30, 2011

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