Case: 23-10179 Document: 60-1 Page: 1 Date Filed: 03/20/2024
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-10179
____________ FILED
March 20, 2024
Lebene Konan, Lyle W. Cayce
Clerk
Plaintiff—Appellant,
versus
United States Postal Service; Raymond Rojas, also known as
Ray; Jason Drake; United States of America,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:22-CV-139
______________________________
Before Wiener, Willett, and Douglas, Circuit Judges.
Dana M. Douglas, Circuit Judge:
Lebene Konan claims that United States Postal Service employees did
not deliver her mail for two years in violation of the Federal Tort Claims Act
and her equal protection rights. The district court dismissed her claims for
lack of subject matter jurisdiction and for failure to state a claim. For the
following reasons, we AFFIRM IN PART and REVERSE IN PART.
Case: 23-10179 Document: 60-1 Page: 2 Date Filed: 03/20/2024
No. 23-10179
I
Konan alleges that the United States Postal Service (USPS), and two
of its employees, Jason Rojas and Raymond Drake, intentionally withheld and
refused to deliver mail to two residences that she owned and leased to
individual tenants in Euless, Texas because they did not “like the idea that a
black person own[ed]” them.
Konan owns two rental properties, the “Saratoga Residence” and the
“Trenton Residence.” The mailboxes at the Saratoga Residence are
centrally located in a single, metal structure. Each residence is provided with
one key to access the mailbox. Konan possessed the key to the Saratoga
Residence’s mailbox and would daily distribute the mail to each tenant.
Konan also received “business mail” at the Saratoga Residence and stayed
there from “time to time,” but it was not her permanent home.
In May 2020, Rojas allegedly changed the lock on the mailbox at the
Saratoga Residence without her permission. According to Konan, Rojas did
not change the lock on mailboxes belonging to any other residence owner on
his route or refuse to deliver mail to similar multi-family residences owned
by white individuals. When Konan went to the Post Office to inquire as to
why the lock to her mailbox was changed without notice or consent, she was
advised that USPS would not deliver any mail to the Saratoga Residence
until its ownership was “investigated by USPS’s Inspector General and
conclusively established.”
USPS delivered no mail to the Saratoga Residence for the next two to
three months. When USPS confirmed that Konan owned the property and
the Inspector General instructed that mail be delivered to the Saratoga
Residence, Rojas and Drake allegedly refused to deliver Konan’s or her
tenants’ mail, instead marking it as undeliverable. As a result, Konan claims
that she lost expected rental income when several tenants moved and that she
2
Case: 23-10179 Document: 60-1 Page: 3 Date Filed: 03/20/2024
No. 23-10179
and her remaining tenants did not receive important mail including “doctor’s
bills, medications, credit card statements, car titles and property tax
statements.”
The situation continued to escalate. In April 2021, Konan alleges that
Rojas stopped delivering mail to her Trenton Residence, because Rojas
thought that something “nefarious” was afoot. 1 Konan alleges that Rojas
and Drake engaged in this behavior because she is African American, and
despite repeatedly advising USPS of this conduct, nothing has been done to
correct it. “To this day,” Konan alleges that “Rojas and Drake continue to
refuse to deliver properly-addressed mail” to both Residences.
Konan asserts common law tort claims against USPS and the United
States under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. (FTCA),
including nuisance, tortious interference with prospective business relations,
conversion, and intentional infliction of emotional distress. She also asserts
claims for denial of equal protection of law pursuant to
42 U.S.C. §§ 1981
and 1985 against Rojas and Drake.
USPS and the United States moved to dismiss Konan’s complaint
for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1). Rojas and Drake moved to dismiss for failure to state a
claim under Rule 12(b)(6).
The district court granted the motions to dismiss, concluding that her
FTCA claim failed for lack of subject matter jurisdiction because it was
barred by sovereign immunity based on the postal-matter exception under 28
_____________________
1
Generally, a USPS employee, with proper notice, may withhold a resident’s mail
and require proof of identity if the employee feels threatened or believes there is illegal
activity underway. See 39 U.S.C. § 3003. There is no record that USPS either filed the
required order or gave notice of such a § 3003 claim being filed at either of Konan’s
residences.
3
Case: 23-10179 Document: 60-1 Page: 4 Date Filed: 03/20/2024
No. 23-10179
U.S.C. § 2680(b). It likewise determined that Konan had failed to state a
viable equal protection claim against Rojas and Drake.
On appeal, Konan concedes that USPS is the appropriate defendant
in this FTCA action but disputes whether sovereign immunity shields it
from liability. 2 Konan also challenges the district court’s conclusion that she
failed to state a valid equal protection claim against Rojas and Drake.
II
We review de novo the application of sovereign immunity. Russell v.
Jones, 49 F.4th 507, 512 (5th Cir. 2022); see also Moore v. La. Bd. of Elementary
& Secondary Educ.,
743 F.3d 959, 962 (5th Cir. 2014). When reviewing a
motion to dismiss for failure to state a claim, we apply de novo review and
“construe the complaint in the light most favorable to the plaintiffs.” Jones
v. Admin. of the Tulane Educ. Fund,
51 F.4th 101, 109 (5th Cir. 2022) (internal
citation omitted).
III
A. FTCA
This case raises an issue of first impression in our circuit: whether the
postal-matter exception to the FTCA’s immunity waiver applies to
intentional acts. The FTCA authorizes plaintiffs to obtain compensation for
the negligent or wrongful acts or omissions of the government and its
employees in limited circumstances. It nevertheless contains several
exceptions that categorically bar plaintiffs from recovering damages. Block v.
N.D. ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287 (1983); United States
_____________________
2
See Walters v. Smith, 409 F. App’x 782, 783 (5th Cir. 2011) (“It is well established
that FTCA claims may be brought against only the ‘United States,’ and not the agencies
or employees of the United States.”).
4
Case: 23-10179 Document: 60-1 Page: 5 Date Filed: 03/20/2024
No. 23-10179
v. Mitchell, 463 U.S. 206, 212 (1983). The postal-matter exception, at issue
here, retains sovereign immunity for “[a]ny claim arising out of the loss,
miscarriage, or negligent transmission of letters or postal matter.” 28
U.S.C.§ 2680(b); Dolan, 546 U.S. at 485 (“[T]he United States may be liable
if postal workers commit torts under local law, but not for claims defined by
the [postal-matter] exception.”).
But § 2680(b)’s plain language does not shield against all failures to
deliver mail; it preserves immunity only in the limited situations outlined by
its terms. The district court held that Konan’s claims were precluded by
sovereign immunity because the claims arose out of a “loss” or
“miscarriage.” We disagree. This case does not fall into one of those limited
situations. As discussed in detail below, there was no “loss” of mail because
the mail was not destroyed or misplaced by unintentional action. Dolan v.
U.S. Postal Serv., 546 U.S. 481, 487 (2006). Likewise, there was no
“miscarriage” because there was no attempt at a carriage.
Id. Finally, the
postal workers’ actions were intentional and thus cannot constitute a
“negligent transmission.” Birnbaum v. United States,
588 F.2d 319, 328 (2d
Cir. 1978). We address each in turn.
1. “Loss”
We begin with the definition of loss. To define “loss,” USPS points
to the definition in Webster’s Second New International Dictionary, published
in 1942, shortly before the 1946 enactment of the FTCA and the postal-matter exception. Webster’s Second New International
Dictionary 1460 (1942 ed.). Webster’s defines “loss” as the “[a]ct or
fact of losing . . . or suffering deprivation . . . unintentional parting with
something of value; as, the loss of property” and “that which is lost; of which
anything is deprived or from which something is separated, usually
unintentionally and to disadvantage.” Id. (emphasis omitted). And in Dolan
5
Case: 23-10179 Document: 60-1 Page: 6 Date Filed: 03/20/2024
No. 23-10179
v. United States Postal Service, the Supreme Court defined “loss” as mail that
is “destroyed or misplaced” by USPS. 546 U.S. at 487. Both definitions
carry the sense that the loss is unintentional. And they square with the plain
meaning of loss—no one intentionally loses something. Here, there are no
allegations that Konan’s mail was destroyed or that it was misplaced by
unintentional action. Instead, the facts present a continued, intentional effort
not to deliver Konan’s mail over a two-year period. Therefore, Konan’s
claims cannot be characterized as a “loss,” as defined in either the
contemporaneous dictionary definition or Dolan.
USPS relies on two circuit cases decided before Dolan to argue that
the postal-matter exception applies because there was a “loss.” Both are
distinguishable. The first is Ruiz v. United States, 160 F.3d 273 (5th Cir.
1998). There, a pro se incarcerated plaintiff argued that prison officials failed
to deliver his mail in violation of the FTCA.
Id. at 274. Ruiz involved a thirdparty intermediary in the form of the prison officials, unlike here, where
Konan alleges that USPS itself intentionally failed to deliver her mail.
Id.
Thus, Ruiz is inapposite.
Likewise, Marine Insurance v. United States, 378 F.3d 812 (2d Cir.
1967) is unpersuasive. There, mail stolen in regular transit triggered the
postal-matter exception’s “loss” provision.
Id. at 813. Here, Konan’s mail
was not stolen in transit. Instead, USPS never transmitted it to her address
in the first place. Konan’s damages arose from USPS’s intentional failure to
carry mail to her properties and thus do not constitute a “loss.”
2. “Miscarriage”
We next consider whether USPS’s actions constitute a
“miscarriage.” USPS contends that under a plain reading of § 2680(b), the
failure to deliver Konan’s mail constituted a miscarriage and thus her suit is
barred.
6
Case: 23-10179 Document: 60-1 Page: 7 Date Filed: 03/20/2024
No. 23-10179
To define “miscarriage,” USPS looks again to the definition
provided in Webster’s Second New International Dictionary. Webster’s defines
“miscarriage” as a “[f]ailure (of something sent) to arrive” or a “[f]ailure to
carry properly; as, miscarriage of goods.” Webster’s Second New
International Dictionary 1568 (1942 ed.) (emphasis omitted). In
Dolan, the Supreme Court opined that mail is “miscarried if it goes to the
wrong address,” and that the term “refer[s] to failings in the postal obligation
to deliver mail in a timely manner to the right address.” 546 U.S. at 487.
Under either definition, a carriage precedes the “miscarriage.” In other
words, there can be no “miscarriage” where there is no attempt at carriage.
Where USPS intentionally fails or refuses to deliver mail to designated
addressees, and never mistakenly delivers the mail to a third party, the mail is
not “miscarr[ied],” as it was not carried at all. Konan’s claims are not barred
because no miscarriage occurred.
3. “Negligent transmission”
Finally, we turn to “negligent transmission.” This phrase only covers
“negligence causing mail to be lost or to arrive late, in damaged condition, or
at the wrong address.” Dolan, 546 U.S. at 486. When the Supreme Court
interpreted this term in Dolan, it applied the associated-words canon and
determined that “loss” and “miscarriage” “limit the reach of
‘transmission.’ ‘[A] word is known by the company it keeps—a rule that is
often wisely applied where a word is capable of many meanings in order to
avoid the giving of unintended breadth to the Acts of Congress.’”
Id. Thus,
“negligent transmission” does not sweep so broadly as to encompass
“injuries that happen to be caused by postal employees but involve neither
failure to transmit mail nor damage to its contents.”
Id. at 487.
Here, Rojas and Drake intentionally chose not to deliver mail to Konan
and her tenants. They marked it undeliverable and returned to sender even
7
Case: 23-10179 Document: 60-1 Page: 8 Date Filed: 03/20/2024
No. 23-10179
after they were instructed to deliver the mail by the Inspector General.
Because Konan’s damages arise from USPS’s intentional failure to transmit
mail to her and her tenants, “negligent transmission” does not apply to
Konan’s claim and sovereign immunity does not apply.
Because the conduct alleged in this case does not fall squarely within
the exceptions for “loss, miscarriage, or negligent transmission,” sovereign
immunity does not bar Konan’s FTCA claims.
Our determination that the intentional conduct in this case is not
covered by the postal-matter exception puts us at odds with some of our sister
circuits. See Levasseur v. U.S. Postal Serv., 543 F.3d 23, 23-24 (1st Cir. 2008)
(determining that the postal-matter exception applied where an employee
stole campaign flyers and refused to deliver them until after the election);
C.D. of NYC, Inc. v. USPS,
157 F. App’x 428, 429 (2d Cir. 2005)
(determining the postal-matter exception applied where a diamond store
employee conspired with USPS employees to steal jewelry); Benigni v.
United States,
141 F.3d 1167, 1167 (8th Cir. 1998) (determining the postal-matter exception applied where USPS intentionally withheld his mail from
home delivery). 3 With respect to these courts, we hold that the terms
“loss,” “miscarriage,” and “negligent transmission” do not encompass the
intentional act of not delivering the mail at all.
B. Equal Protection Claim
_____________________
3
The D.C. Circuit has favorably cited district court cases that conclude that
“miscarriage” does not encompass intentional acts. See Lopez v. Postal Regul. Comm’n, 709
F. App’x 13, 15-16 (D.C. Cir. 2017) (citing Colbert v. USPS,
831 F.Supp.2d 240, 243
(D.D.C. 2011) (“In th[e] narrow window of intentional mis-transmission, [the Postal
Service] is not entitled to sovereign immunity.”) and LeRoy v. U.S. Marshal’s Serv.,
2007
WL 4234127, at *1 n.2 (E.D. La. 2007) (noting that a postal employee’s “refusal to deliver
plaintiff’s mail to him was an intentional act,” not “‘the loss, miscarriage, or negligent
transmission of letters or postal matter’”)).
8
Case: 23-10179 Document: 60-1 Page: 9 Date Filed: 03/20/2024
No. 23-10179
Next, Konan appeals the district court’s dismissal of her § 1981 and
§ 1985 claims against Rojas and Drake in their individual capacities. The
district court dismissed those claims for failure “to state a viable equal
protection claim.” The court also found that “the intracorporate-conspiracy
doctrine bars Section 1985 claims against individuals employed by the same
agency.” We agree.
1. Section 1981
Section 1981 provides the right “to the full and equal benefit of all laws
and proceedings for the security of persons and property as is enjoyed by
white citizens.” 42 U.S.C. § 1981(a). These rights “are protected against
impairment by nongovernmental discrimination and impairment under color
of State law.” § 1981(c) (emphasis added). We have consistently found that
federal employees acting “under color of State law” are protected from
liability even if there are “specific allegations of defamation or of potentially
criminal activities.” Bolton v. United States,
946 F.3d 256, 262 (5th Cir. 2019)
(quoting Smith v. Clinton,
886 F.3d 122, 126 (D.C. Cir. 2018)); Lugar v.
Edmondson Oil Co., Inc.,
457 U.S. 922, 945 n.3 (1982).
The following elements must be met for a successful § 1981 claim:
“(1) the plaintiff is a member of a racial minority; (2) an intent to discriminate
on the basis of race by the defendant; and (3) the discrimination concerns one
or more of the activities enumerated in the statute.” Green v. State Bar of
Tex., 27 F.3d 1083, 1086 (5th Cir. 1994).
Here, Konan is African American and thus satisfies the first element.
Beyond that, however, her allegations fall short. Specifically, no facts
support her assertion that Rojas and Drake continued to deliver mail to any
similarly situated white property owners while denying her delivery of mail.
Jackson v. City of Hearne, Tex., 959 F.3d 194, 201–02 (5th Cir. 2020); Arguello
v. Conoco, Inc.,
207 F.3d 803, 807 (5th Cir. 2000). Nor does Konan allege that
9
Case: 23-10179 Document: 60-1 Page: 10 Date Filed: 03/20/2024
No. 23-10179
the discrimination concerns her right to any of the enumerated provisions of
§ 1981(a). 4 Therefore, Konan fails to state a § 1981 claim, and she does not
explain how amending the complaint would address the deficiencies in her
argument.
2. Section 1985(3)
Section 1985(3) imposes liability on “two or more persons in any State
or Territory [who] conspire . . . for the purpose of depriving . . . any person
or class of persons of the equal protection of the laws.” 42 U.S.C. § 1985(3).
We have consistently held that § 1985(3) does not apply to federal actors.
Mack v. Alexander,
575 F.2d 488, 489 (5th Cir. 1978).
While Konan is correct that Mack’s holding has been widely
questioned, it has not been overturned. Cantu v. Moody, 933 F.3d 414,419
(5th Cir. 2019), cert. denied,
141 S. Ct. 112 (2020) (stating that Mack has not
“aged well” but our circuit holds that § 1985(3) does not apply to federal
actors); Carpenters v. Scott,
463 U.S. 825, 828 (1983) (applying § 1985(3) and
finding there was no animus, so it was inapplicable to the federal actors); see
also Ziglar v. Abbasi,
137 S. Ct. 1843, 1865-69 (2017) (applying § 1985(3) to
protect federal officers).
Konan contends that we should ignore this circuit’s precedent in
Mack and apply the Supreme Court’s decision in Griffin v. Breckenridge, 403
U.S. 88 (1971), which pre-dates Mack by several years. Mack,
575 F.2d at 488.
However, absent a Supreme Court decision or our court sitting en banc and
providing an “intervening contrary or superseding decision,” we “cannot
_____________________
4
The enumerated rights of the statute include: “to make and enforce contracts, to
sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings
for the security of persons and property as is enjoyed by white citizens, and shall be subject
to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no
other.” 42 U.S.C. § 1981(a).
10
Case: 23-10179 Document: 60-1 Page: 11 Date Filed: 03/20/2024
No. 23-10179
overrule a prior panel’s decision.” Burge v. Par. of St. Tammany, 187 F.3d
452, 466 (5th Cir. 1999).
Furthermore, as the district court noted, even if § 1985(3) applied to
federal actors, Konan’s claim is barred by the “intracorporate-conspiracy
doctrine, which precludes plaintiffs from bringing conspiracy claims []
against multiple defendants employed by the same governmental entity.”
Konan also claims that the intracorporate-conspiracy doctrine does not bar
her claim because Rojas and Drake were conspiring to commit a criminal act
against Konan outside of their official duties. However, we have consistently
held that an agency and its employees are a “single legal entity which is
incapable of conspiring with itself.” Thornton v. Merchant, 526 F. App’x 385,
388 (5th Cir. 2013) (quoting Benningfield v. City of Hous.,
157 F.3d 369, 378
(5th Cir. 1998)); see also Tex. Democratic Party v. Abbott,
961 F.3d 389, 410
(5th Cir. 2020) (holding “a corporation cannot conspire with itself any more
than a private individual can” quoting Hilliard v. Ferguson,
30 F.3d 649, 652–
53 (5th Cir. 1994)).
Therefore, the district court correctly concluded that Konan’s § 1981
and § 1985(3) equal protection claims fail.
IV.
Accordingly, we REVERSE the judgment of the district court as to
Konan’s FTCA claim and REMAND for further proceedings consistent
with this opinion. We AFFIRM the district court’s dismissal of Konan’s
equal protection claims.
11
