United States Postal Service, et al. v. Lebene Konan

    Issues

    Can a plaintiff sue the United States Postal Service under the Federal Tort Claims Act when postal employees intentionally do not deliver the plaintiff’s mail?

    Oral argument:
    October 08, 2025
    Court below:
    United States Court of Appeals for the Fifth Circuit

     

    This case asks the Court to determine whether the Federal Tort Claims Act’s (“FTCA”) postal exception covers intentional failure to deliver mail. The FTCA prohibits tort claims against the government that arise out of the “the loss, miscarriage, or negligent transmission” of the mail. The United States Postal Service and the United States of America (collectively “USPS”) argue that the Court should adopt a broad reading of the statute’s language. USPS argues that intentional torts for withholding mail fit into the meanings of the words “miscarriage” or “loss.” Lebene Konan argues that such a broad reading would render the statute superfluous and depart from the ordinary meanings of “loss” and “miscarriage.” The outcome of this case could impact the USPS’s efficiency, and it will determine whether there is a legal remedy available for people harmed by a postal employee’s intentional tort. 

    Questions as Framed for the Court by the Parties

    Whether a plaintiff’s claim that she and her tenants did not receive mail because U.S. Postal Service employees intentionally did not deliver it to a designated address arises out of “the loss” or “miscarriage” of letters or postal matter under the Federal Tort Claims Act.

    Facts

    Congress enacted the Federal Tort Claims Act (“FTCA”) to waive the United States’s sovereign immunity when parties bring tort claims against the government for lost property damages caused by the conduct of federal employees.  The FTCA includes a postal exception, 28 U.S.C. § 2680(b), to the ability of parties to bring claims against the government arising from “the loss, miscarriage, or negligent transmission of letters or postal matter.”  Other circuits have interpreted the postal exception to cover both unintentional and intentional conduct, however the United States Court of Appeals for the Fifth Circuit permitted a suit alleging intentional conduct and held that the exception did not apply to intentional tort claims, creating a circuit split.

    Respondent Lebene Konan owned and leased two rental properties in Texas. Konan claimed that two United States Postal Service (“USPS”) employees, the postmaster of the local post office, and a mail carrier, had intentionally refused to deliver her mail to two of her addresses because she is African American. In response, Konan filed tort claims in the United States District Court for the Northern District of Texas against the USPS under the FTCA, alleging interference with her business relations, economic injuries of at least $50,000 from loss of business, as tenants leave when they don’t receive mail, and intentional infliction of emotional distress.

    In the United States District Court for the Northern District of Texas, Konan argued that the postal exception only applied to negligent conduct. In response, the USPS filed a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, arguing that Konan’s claims fell under the postal exception of the FTCA and therefore USPS did not waive sovereign immunity with respect to those claims. The District Court held that the terms of the postal exception covered intentional conduct, because the words “loss” and “miscarriage” were not qualified by the word “negligent,” unlike the word “transmission,” and subsequently dismissed the tort claims. Konan appealed to the United States Court of Appeals for the Fifth Circuit, which reversed the district court’s ruling, holding that the words “loss” and “miscarriage” both applied exclusively to unintentional conduct, and that Konan’s allegations were not “negligent transmissions.” The appellate court reasoned that “loss” was limited to unintentional misplacement, excluding intentional deprivations, and that “miscarriage” implied a precedent carriage or attempted carriage. Since Konan alleged that postal employees intentionally refused to deliver her mail, the appellate court held that her claims were not covered by the postal exception and therefore that the suit could proceed on remand to the district court.

    On September 27, 2024, USPS filed a petition to the Supreme Court of the United States to hear the case. The Supreme Court granted certiorari on April 21, 2025. 

    Analysis

    DEFINITION OF “MISCARRIAGE”

    Petitioner USPS argues that Respondent Konan’s claims arise out of the “miscarriage” of mail and therefore fall under the postal exception. Specifically, USPS claims that the ordinary meaning of “miscarriage” is a failure to arrive or to be carried properly, which does not turn on the intention of the action, only its result. USPS contends that here, Konan’s claims are that the mail failed to reach her two addresses because it was intentionally taken back to the post office, and therefore the claims fall under the ordinary meaning of “miscarriage.” In support of this interpretation, USPS provides examples of other words with the same prefix “mis-” that suggest intentional conduct, such as misdeeds, misbehavior, and misconduct. Moreover, USPS suggests that this reading better coheres with the surrounding text of the statute. First, USPS explains that this reading explicitly covers negligence by the inclusion of the qualifier “negligent” before “transmission.” Second, USPS argues that other exceptions in the FTCA include a negligence term and an intentional term, so the Court should presume Congress knew how to exclude intentional misconduct. According to USPS, this shows that Congress could have excluded intentional misconduct in creating the statute but chose to omit any qualifier for “miscarriage.” USPS contends that “miscarriage” does not require a preceding “carriage,” because first, the failure to pick up a letter, for instance, is ordinarily understood as the failure of a carrier, but does not involve a previous carriage, and second, other words with the same “mis-” prefix also do not require preceding conduct. “Misconduct,” for example, can describe an omission, according to USPS. USPS argues that even if the Court declines to adopt its reading, Konan’s claims still describe a “miscarriage” because Konan’s mail was in a preceding “carriage” since it was first deposited in the USPS system and then carried back to the post office instead of the correct mailboxes. Finally, USPS argues that “miscarriage” does not require that the mail be sent to the wrong address, because that is just one way a carrier can fail to deliver mail in a timely manner. USPS suggests, for instance, that a carrier might fail to deliver the mail at all and yet that would ordinarily still be considered a “miscarriage,” which shows that Konan’s claims do fall under “miscarriage.” Even if the term does require delivery to a wrong address, USPS points out that the mail did in fact arrive at a wrong address, namely the Euless Post Office where the mail was processed at first.

    Respondent Konan argues that her claims did not arise out of a “miscarriage” because a “miscarriage” only occurs when mail inadvertently arrives at an incorrect location.  Konan contends that since the mail was intentionally withheld, it was not delivered improperly anywhere. Konan contends thatif Congress wanted to include failure to deliver mail altogether within the postal exception, it would have included a word with the prefix “non-,” such as “non-delivery.” After all, Konan suggests, there are several words with the prefix “mis-” that, contrary to USPS’s position, do not encompass intentional wrongs, such as mistake, misunderstanding, or mishap. Konan also argues that a broader definition of “miscarriage” would subsume the meaning of the other terms such that the meaning of the statute would be identical if it only included the word “miscarriage.” Instead, on Konan’s reading, “loss,” “miscarriage,” and “negligent transmission” each have a distinct meaning that covers different conduct. Finally, Konan suggests that noscitur a sociis, a canon of statutory construction which requires that one look at the surrounding words in a list to discern a word’s meaning, applies to the postal exception statute, and therefore, since “transmission” is modified by “negligent,” the Court should read the term “negligent” into each term of the exception.  

    DEFINITION OF “LOSS” 

    USPS argues that alleged refusal to deliver mail was also a “loss” within the meaning of the postal exception statute despite being an intentional action. Specifically, USPS claims that the ordinary meaning of “loss” is simply akin to “deprivation.” USPS contends that, applied here, Konan was deprived of her mail since it did not arrive, and, therefore, her claim arises from a “loss.” In support of this position, USPS points out that “loss” can include an intentional deprivation such as intentionally destroying mail. Furthermore, USPS contends that the main provision of the FTCA, 28 U.S.C. §1346(b), which waives sovereign immunity for loss of property, defines loss to include losses caused by a “negligent or wrongful act or omission.” Therefore, USPS argues, the Court should presume Congress maintained a consistent usage of terms and kept the meaning of “loss” the same, namely broad enough to encompass intentional deprivations. USPS points out that both § 1346(b) and § 2680(b) were enacted at the same time, both cross-reference the other, and there is no evidence that Congress intended “loss” to have different meanings in different places. Finally, USPS suggests that just as it did not do with “miscarriage,” Congress did not qualify “loss” as it did with “transmission.” USPS argues that this omission is good evidence that Congress’s intent was not to limit the scope of the postal exception to unintentional losses of mail. Furthermore, USPS argues that it is not necessary that the postal employees have lost the mail themselves for Konan’s claim to fall under “loss,” but rather it is enough that Konan herself lost the mail as a result of their conduct. After all, USPS points out, Konan’s injury arises from her own “loss” of mail, so whether the postal employees lost the mail is not the relevant question. Finally, USPS contends that it is not necessary that Konan have prior physical possession of the mail to suffer a “loss,” given that the ordinary usage of “loss” includes simply a “failure to have” something.

    Konan argues that her claims do not arise out of the “loss” of mail because “loss,” in her view, refers to mail that is either destroyed or misplaced inadvertently. Konan claims instead that the mail was not destroyed by accident, but simply returned to the local post office. Konan also argues that the mail was not misplaced because the postal employees intentionally failed to deliver the mail and returned it to the local post office. In support of this view, Konan contends that the ordinary usage of the term “loss” at the time of the enactment of the FTCA supports reading “loss” to mean “inadvertent destruction.” Konan provides as an example, for instance, that “loss” and “intentional loss” are distinguished in the insurance context. Konan argues that in this context, “loss” should be limited to negligence because the withholding of mail was frequently contrasted with “loss” in the 1940 Postal Laws and Regulations, which served as the backdrop for Congress’s enactment of the postal exception. Moreover, Konan contends, the statute fails to include any qualifiers one might typically expect if Congress intended “loss” to cover intentional destruction, such as “wrongful.” Also, Konan claims it would be contrary to ordinary usage to use the term “loss” to broadly refer to the failure to get something. However, according to Konan, even if the Court adopts USPS’s definition, her claims are outside the postal exception because the postal employees were not deprived of the mail. Konan argues that in that sense USPS did not “lose” the mail. Once again invoking the noscitur a sociis canon, Konan suggests the Court should read the word “loss” in the context of the surrounding words, and that if “negligent transmission” excludes intentional conduct, so too the Court should read “loss” to exclude intentional conduct.

    Discussion

    THE FTCA AS A CHECK ON THE POSTAL SERVICE

    USPS argues there are other remedies for harmed individuals to use instead of filing an intentional tort lawsuit against USPS based on the Federal Tort Claims Act (“FTCA”). USPS argues that individuals can purchase insurance for their mail, which allows them to file a claim with USPS for the insured mail if it “fails to arrive or arrives in a damaged condition.” USPS contends that this option is more encompassing because it allows claims for intentional or unintentional acts. USPS also argues that individuals seeking a remedy can file a complaint with the Postal Regulatory Commission in some situations. USPS contends that the Postal Regulatory Commission could take appropriate action if it finds a complaint to be justified, including disciplinary action or criminal charges. Finally, USPS maintains that individuals can also bring suits against postal employees for monetary damages if the employee committed the tort outside of their scope of employment.

    The Institute for Justice (“IJ”), in support of Konan, argues that applying the FTCA to situations like Konan’s is essential to keeping the government in check. The IJ cites debates made by the Framers, which indicated that tort suits against the federal government provide a check against government misconduct. The IJ argues that just as individuals could bring a tort suit against another private individual for violating their rights, individuals could similarly bring an FTCA suit against the government for violating their rights. The IJ contends that individuals suing the government for torts ensure that government actors are not behaving as if they were above the law, because the government actors can be sued just like a private individual. The IJ argues that FTCA suits are often the only option, because another path to sue the government, Bivens actions, are becoming increasingly difficult to prove. The IJ argues that fewer opportunities to sue the government can lead to the government being less accountable for its actions. IJ contends that without the threat of FTCA lawsuits, the government can commit torts without fear of being held accountable.

    THE POSTAL SERVICE’S OPERATIONS

    USPS argues that its work could be disrupted if the Court allows individuals to sue USPS for intentional torts involving the mail. Citing data from 2024, USPS demonstrates that individuals filed 942 suits against the USPS under the FTCA, with most claims related to auto accidents. USPS also maintains that it receives a number of complaints from customers related to employees’ wrongdoing or misconduct, as many as 335,000 in 2024. USPS contends that its mission would be disrupted if a small fraction of those complaints generated lawsuits. USPS argues these new lawsuits would disrupt mail services because of the discovery process. USPS contends that intentional torts require extensive discovery to prove intent, requiring postal employees to produce evidence for trial, such as sitting for a deposition or testifying as a witness. With postal employees being occupied with these obligations, USPS argues that it will be less efficient at completing its mission.

    The Taxpayers Protection Alliance (“TPA”), in support of Konan, counters that it is possible for USPS to take responsibility for cases involving intentional torts committed by postal employees. The TPA acknowledges that USPS appropriately uses sovereign immunity to protect itself against its employees’ negligence, which could result in cases that are more common and difficult. But the TPA counters that intentional torts are less common, and a postal employee would be more culpable for an intentional tort. Therefore, the TPA contends that it would make more sense to hold USPS accountable for intentional actions of employees. The TPA also contends that USPS may deny insurance claims for intentional torts because of language in USPS’s Domestic Claims guide. The TPA contends the FTCA’s purpose is to give individuals an opportunity to ask the government for monetary redress where no other option exists because of the federal government’s sovereign immunity. TPA argues that if the postal exception was interpreted to exclude intentional torts, it would undermine the FTCA’s intended purpose of providing a remedy.

    Conclusion

    Authors 

    Written by:    Leonardo Costa Lins Villa-Forte and Keaton J. Klaus

    Edited by:      Zachary Jacobson

    Additional Resources