United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
United States of America seeks dismissal of the Complaint,
asserting that this Court lacks subject matter jurisdiction
because the United States is immune from suit. Doc. 7.
Proceeding pro se, plaintiff Spyros Andreou opposes.
13, 2016, Androu mailed a package through the United States
Postal Service (USPS) to his brother in the Republic of
Cyprus. Doc. 1-1 at ¶ 5. It was twice returned to him;
once in July due to a "paperwork error" and a
second time in August marked "No deliveries to Turkish
Occupied Sections of Nicosia. Prohibited." Id. at
¶¶ 6-8. When he went to the USPS office at 2 N.
Fahm Street, plaintiff was variously informed that no
deliveries were being made to the Republic of Cyprus (which
was apparently occupied by Turkish military forces deployed
because of the coup d'etat progressing on mainland
Turkey) and that the USPS "system" does not
recognize "Nicosia" as a destination. Id.
at ¶¶ 9. After a heated exchange with USPS staff,
plaintiff was asked to leave the building and the police were
called to ensure his compliance. Id. at ¶¶
10-11. Plaintiffs wife was given a refund of the $148.05 paid
for shipment, and he then successfully shipped his package
through private carrier, the United Parcel Service (UPS), for
$296.61. Id. at ¶¶ 10-12. A UPS agent
informed Andreou that there were no interruptions in delivery
service to Nicosia, Cyprus. Id. at ¶ 12.
contends defendant is not entitled to "Sovereign
Immunity" because the USPS "committed severe
violations of the Federal law, " and he seeks $50, 000
plus costs of suit and an award of punitive damages for that
violation. Id. at ¶ 16, A-D (seeking damages
for discrimination, humiliation, threat of arrest by calling
police, defamation of character, being banned from visiting
the post office, false information, paying UPS $296.61 versus
$148.05 with USPS, and "not performing their work
court, like all federal courts, is a court of limited subject
matter jurisdiction. U.S. CONST, art. 3, section 2. It is
axiomatic that if the Court lacks subject matter jurisdiction
over a case, the Court must dismiss it." Robinson v.
United States, 849 F.Supp. 799, 800 (S.D. Ga. 1994).
Where a defendant challenges the Court's subject matter
jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), the Court
must read the Complaint in a light most favorable to the
plaintiff and accept all factual allegations as true.
Douglas v. United States, 814 F.3d 1268, 1275-76
(11th Cir. 2016); see also United States v. Gaubert,
499 U.S. 315, 327 (1991).
the Court draws all factual inferences in plaintiffs favor,
"[i]n the face of a factual challenge to subject matter
jurisdiction, the burden is on the plaintiff to prove that
jurisdiction exists." OSI, Inc. v. United
States, 285 F.3d 947, 951 (11th Cir. 2002);
Robinson, 849 F.Supp. at 801. This Court lacks
subject matter jurisdiction over any action against the
United States for which it has not waived sovereign immunity.
See JBP Acquisitions, LP v. United States, 224 F.3d
1260, 1263 (11th Cir. 2000). Thus, if the Government invokes
its sovereign immunity, based on an exception to the Federal
Tort Claims Act's (FTCA) general waiver of that immunity,
plaintiff must prove that the exception invoked by the
Government does not apply. See Id. Stated otherwise,
it is plaintiffs burden to allege facts falling outside the
FTCA exceptions. Finally, while courts are obligated to
liberally construe pro se complaints, they may not
serve "as de facto counsel for the litigant or
rewrite an otherwise deficient pleading in order to sustain
an action." Campbell v. Air Jamaica Ltd., 760
F.3d 1165, 1168 (11th Cir. 2014).
contends this Court lacks jurisdiction to hear Andreou's
claims because the FTCA does not waive sovereign immunity for
"claims arising from the loss, miscarriage, or negligent
transmission of postal matter." Doc. 7 at 4; see
Zelaya v. United States, 781 F.3d 1315, 1321 (11th Cir.
2015) (barring an applicable waiver, sovereign immunity
protects the United States from any claim). Plaintiff
responds that "the written arguments are rubbish"
and "are all desperate motions" because "due
to multiple violations of Federal Law by the employees of the
USPS, the Doctrine of Sovereign Immunity fails." Doc. 8
FTCA "makes the United States liable for money damages
'caused by the negligent or wrongful act or omission of
any employee of the Government.'" Logue v.
United States, 412 U.S. 521, 525-26 (1973). However,
there are many statutory exceptions to this waiver of
immunity, "which must be strictly construed in favor of
the United States." JBP Acquisitions, 224 F.3d
at 1263 (internal quotes and cites omitted). "If the
alleged conduct falls within one of these statutory
exceptions, the court lacks subject matter jurisdiction over
the action" under the FTCA. Id. at 1263-64
(cites omitted). In other words, "when an exception
applies to neutralize what would otherwise be a waiver of
immunity, a court will lack subject matter jurisdiction over
the action." Zelaya, 781 F.3d at 1322 (cites
the FTCA's exceptions is one for "any claim arising
out of the loss, miscarriage, or negligent transmission of
letters or postal matter." 28 U.S.C. § 2860(b).
This postal-matter exception preserves immunity for
"injuries arising, directly or consequentially, because
mail either fails to arrive at all or arrives late, in
damaged condition, or at the wrong address." Dolan
v. United States Postal Serv., 546 U.S. 481, 489 (2006)
("Illustrative instances of the exception's
operation, then, would be personal or financial harms arising
from nondelivery or late delivery of sensitive materials or
information (e.g., medicines or a mortgage
foreclosure notice) or from negligent handling of a mailed
parcel (e.g., shattering of shipped china). Such
harms, after all, are the sort primarily identified with the
Postal Service's function of transporting mail").
plaintiffs entire Complaint revolves around the USPS's
failure to deliver a package to his brother in the Republic
of Cyprus --the very essence of the postal-matter exception.
Thus, there is no waiver of sovereign immunity under the
FTCA. Guest v. United States, 615 F.App'x 656,
657 (11th Cir. 2015). Because the United States has not
waived its sovereign immunity, the Court lacks subject matter
jurisdiction over Andreou's postal-matter claim.
Accordingly, this claim should be DISMISSED
with prejudice from the Complaint. Dolan, 546 U.S.
State Law Claims
does not address plaintiffs myriad state law claims for
discrimination, humiliation, intimidation, threat of arrest,
defamation of character, "being banned from visiting his
local post office, " and "false information"
or his request for punitive damages, which do not fall under
the penumbra of the postal-matter exception. See
Dolan, 546 U.S. at 485 (while the USPS cannot be held
liable for claims related to ...