Plaintiff Peter N. Georgacarakos, a federal prisoner, sued the United States for the loss of 23 books and a manuscript allegedly caused by the Bureau of Prisons and the United States Post Office. In May 2002 personnel at the Bureau’s facility in Florence, Colorado, removed a box containing the books and manuscript from storage and mailed it to Plaintiffs family, apparently believing that they were acting at Plaintiffs request. The box came apart at the Florence Post Office, and all but seven of the books were lost.
Plaintiff claims that the Bureau caused his loss by mailing his box without authorization, failing to secure it properly, and failing to use certified mail so that it could be tracked, and that the Bureau compounded its errors by refusing to investigate the loss after it had occurred. He claims that the Post Office caused his loss by failing to secure his books and the manuscript after the box came apart, and compounded its error by failing to docu
The United States claims sovereign immunity. The district court dismissed for want of subject-matter jurisdiction on that ground. We review the district court’s grant of a motion to dismiss de novo, assuming the truth of all facts that Plaintiff alleges.
See Woodmen of World Life Ins. Soc’y v. Manganaro,
The Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), generally waives the United States’ sovereign immunity with respect to claims for money damages arising out of loss of property resulting from federal employee misconduct. 1 But the Bureau and Post Office rely on two exceptions to the Act, 28 U.S.C. § 2680(b), (c), which state:
The provisions of this chapter and section 1346(b) of this title [waiving sovereign immunity] shall not apply to—
(b) Any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.
(c) Any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer....
Subsection (b) is sufficient to protect the United States, so we need not consider subsection (c).
Plaintiffs claims arise out of the loss of the books and manuscript that the Bureau mailed. Once mailed, the books and manuscript became “postal matter” within the meaning of § 2680(b).
See Marine Ins. Co. v. United States,
It is irrelevant that the loss may also arise out of conduct for which there would otherwise be liability under the FTCA. For example, Plaintiff contends that the prison mailed his books without authorization. We can assume that he would have had a valid claim for expenses incurred in recovering books mailed to an unauthorized address. Moreover, we may assume that without the unauthorized mailing this claim would not exist. It is also true, however, that the claim that Plaintiff actually brought would not exist had the books not been lost in transmission. We note that the only damages he claims spring from the eventual loss of the books. Thus, Plaintiffs claim is one that was generated in part by an event covered by the exemption from liability provided by § 2680(b)— the loss of postal matter — and in part by an event not covered — unauthorized mailing. If § 2680(b) exempted liability only for a “claim arising
solely
out of the loss of postal matter,” Plaintiffs claim would sur
In insurance cases an analogous question arises when a policy excludes losses “arising out of’ some event and it must be decided whether the policy covers a loss caused in part by that event and in part by others. In that context the majority rule is that policy language excluding losses arising out of some event excludes losses caused by that event even when they are also caused by other events. In
All American Insurance Co. v. Burns,
We cannot agree with the [plaintiffs’] argument that the cases can be viewed as involving only the negligence allegations and the negligent entrustment theory. It is, instead, an essential element of the state court causes of action that [the driver] molested the girls and caused them injuries of mind and body.... The petitions here would not have stated the complete causes of action without alleging the molestation and resulting injuries....
Thus the penal violation exclusion logically and necessarily applies.
Id.
Similarly, in
American Commerce Insurance Co. v. Porto,
Likewise, we are not persuaded by Plaintiffs contention that his claim falls outside the statutory exception because
Cases in which appellate courts have held § 2680(b) inapplicable are quite different from the one before us. In
Birnbaum v. United States,
In
Raila v. United States,
Other cases are even farther afield.
See United States v. Cushman & Wakefield, Inc.,
Finally, we reject the contention that the postal-matter exception of § 2680(b) applies to the Post Office only. Section 2680’s language does not suggest any such limitation. By its terms it applies to any claim arising out of the loss of postal matter. The Fifth Circuit has held that the exception extends to an FTCA claim based on federal prison officials’ failure to deliver a prisoner’s litigation-related mail.
See Ruiz v. United States,
We hold that each of Plaintiffs claims is within the postal-matter exception to the Federal Tort Claims Act. Each claim is thus barred by the United States’ sovereign immunity.
We AFFIRM the district court’s dismissal for lack of subject-matter jurisdiction.
Notes
. Section 1346(b) states in pertinent part:
[T]he district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.