CARPEZZI

v.

UNITED STATES OF AMERICA - U.S. POSTAL SERVICE

Plaintiff Robert Carpezzi, proceeding pro se, sues the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b). (Doc. 57.) Specifically, Mr. Carpezzi alleges that the United States Postal Service (“USPS”) is stealing or refusing to deliver his mail for political reasons. (Id. at 6–9.) The United States moves to dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing that it has not waived its sovereign immunity as to such claims and the Court thus lacks jurisdiction. (Doc. 60 at 1.) The Court agrees that the FTCA does not waive the United States’ sovereign immunity for the harms Mr. Carpezzi is alleging. Accordingly, the Court is without jurisdiction, the United States’ motion (Doc. 60) is GRANTED, and the Complaint (Doc. 57) is DISMISSED.

BACKGROUND¹

Mr. Carpezzi claims that the USPS has been tampering with his mail for years because of his attempts to “remedy” a situation wherein the “intelligence

LEGAL STANDARD

A motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure12(b)(1) may be either a facial or factual challenge to a complaint.

McElmurray v. Consol. Gov’t of Augusta-Richmond Cnty., 501 F. 3d 1244, 1251 (11th Cir. 2007). The United States is bringing a facial challenge (See Doc. 60 at 2) which means Mr. Carpezzi retains the “safeguards similar to those retained when a Rule 12(b)(6) motion to dismiss for failure to state a claim is raised.” McElmurray, 501 F. 3d at 1251 (quotation omitted). “A ‘facial attack’ on the complaint require[s] the [C]ourt merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.” Id. (quotation omitted).

DISCUSSION

“It is well settled that the United States, as a sovereign entity, is immune from suit unless it consents to be sued.” Zelaya v. United States, 781 F. 3d 1315, 1321 (11th Cir. 2015). “The FTCA operates as a limited waiver of the United States’ sovereign immunity. Unless the United States may be held liable pursuant to the terms of the statute, the sovereign’s immunity remains intact, and no subject matter jurisdiction exists.” Bennett v. United States, 102 F. 3d 486, 488 n.1 (11th Cir. 1996) (citations omitted).

Under the “postal matter exception,” the FTCA specifically preserves the United States’ sovereign immunity as to “[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.” 28 U.S.C. § 2680(b). “As a consequence, the United States may be liable if postal employees commit torts under local law, but not for claims defined by this exception.” Dolan v. U.S. Postal Serv., 546 U.S. 481, 485 (2006). As the Supreme Court has explained, this exception encompasses “injuries arising, directly or consequentially, because mail either fails to arrive at all or arrives late, in damaged condition, or at the wrong address.” Id. at 489. Here, Mr. Carpezzi alleges that “Mateo Naldo, representative from government mail,” changed the delivery address of his registered letter intended for Mr. Mulvaney. (Doc. 57 at 7.) Mr. Carpezzi also alleges that Mr. Naldo “signed for” this letter. (Id.) But even assuming that Mr. Naldo either stole the letter or intentionally failed to deliver it, the postal matter exception still applies. See Lopez v. U.S. Postal Regul. Comm’n, No. 18-22321-CV-MORENO, 2019 WL 11553449, at *2–3 (S.D. Fla. Sept. 23, 2019) (noting that “the interpretation adopted by nearly all district courts addressing this issue is that the postal matter exception applies to the intentional acts of postal employees” and collecting cases), adopted 2019 WL 11553447 (M.D. Fla. Nov. 21, 2019); see also James v. Jacksonville Bulk Mail Ctr., No. 3:06-cv-1120-J-34-JRK, 2009 WL 2901197, at *5 (M.D. Fla. Sept. 4, 2009) (“The ‘loss’ of postal matter even includes situations in which postal matter is stolen by a federal employee.” (citing Levasseur v. U.S. Postal Serv., 543 F. 3d 23, 24 (1st Cir. 2008))). Thus, Mr. Carpezzi’s argument that the FTCA is inapplicable because his letters were “intentionally . . . redirected” is unpersuasive. (Doc. 61 at 3.) Otherwise, Mr. Carpezzi references one letter that “was sitting in a vault against policy rules [but] was eventually delivered,” and another letter that “no longer existed.” (Doc. 57 at 8.) Regardless of the reason for these letters not reaching their intended destination, or how many times the USPS has “disappeared” Mr. Carpezzi’s letters (Doc. 61 at 5), the United States retains its sovereign immunity for “injuries arising . . . because mail either fails to arrive at all or arrives late.” Dolan, 546 U.S. at 489. The above cases show that this is true even when mail fails to arrive because of a USPS employee’s intentional acts. Mr. Carpezzi argues that the United States “acts as if they have enough stature to do as they please with impunity.” (Doc. 61 at 3.) “But in offering its consent to be sued,

the United States has the power to condition a waiver of its immunity as broadly or narrowly as it wishes, and according to whatever terms it chooses to impose.” Zelaya, 781 F. 3d at 1321–22. And those terms “define [the Court’s] jurisdiction to entertain [this] suit.” United States v. Sherwood, 312 U.S. 584, 586 (1941). For these reasons, the Court finds that the FTCA does not waive the United States’ immunity as to the injuries Mr. Carpezzi has alleged. And “[i]f there is no specific waiver of sovereign immunity as to a particular claim filed against the Government,” even accepting Mr. Carpezzi’s allegations as true, “the [C]ourt lacks subject matter jurisdiction over the suit.” Zelaya, 781 F. 3d at 1322.2 “A dismissal for lack of subject matter jurisdiction is not a judgment on the merits and is entered without prejudice.” Stalley ex rel. United States v. Orlando Reg’l Healthcare Sys., Inc., 524 F. 3d 1229, 1232 (11th Cir. 2008). Last, any amendment here would be futile given that the United States has not waived its immunity as to the harms Mr. Carpezzi alleges and an amended pleading would thus still be subject to dismissal. See Brooks v. Warden, 800 F. 3d 1295, 1300 (11th Cir. 2015). Accordingly, the United States’ motion to dismiss (Doc. 60) is GRANTED. This case is DISMISSED WITHOUT PREJUDICE. The Clerk is DIRECTED to terminate any pending deadlines and close the file. ORDERED at Fort Myers, Florida, on October 26, 2021. iy wf fof os oF. i & Lofilee, Lh

JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE