Gildor v. United States Postal Service

179 F. App'x 756
CourtCourt of Appeals for the Second Circuit
DecidedMay 3, 2006
DocketNo. 05-4282-cv
StatusPublished
Cited by17 cases

This text of 179 F. App'x 756 (Gildor v. United States Postal Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gildor v. United States Postal Service, 179 F. App'x 756 (2d Cir. 2006).

Opinion

[758]*758SUMMARY ORDER

Plaintiff-Appellant Arieh Gildor, pro se, appeals from a judgment of the United States District Court for the Northern District of New York (Lawrence E. Kahn, Judge), granting summary judgment to Defendants-Appellees on Gildor’s tort and contract claims. See generally Gildor v. U.S. Postal Serv., 376 F.Supp.2d 284 (N.D.N.Y.2005). We assume familiarity with the underlying facts and procedural history.

We review a grant of summary judgment de novo, construing the record in the light most favorable to the non-moving party. See Devlin v. United States, 352 F.3d 525, 529 (2d Cir.2003). Summary judgment is appropriate when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). When, as here, a litigant is proceeding pro se, we construe that litigant’s appellate briefs and other pleadings liberally and read such submissions to raise the strongest arguments they suggest. See Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).

We note at the outset that the district court properly dismissed Gildor’s claims against the individual postal employees, see Gildor, 376 F.Supp.2d at 291, because it is evident that the employees acted in the scope of their authority within the United States Postal Service (“Postal Service”), and not in their individual capacities. See 28 U.S.C. § 2679(b)(1) (stating that an action brought directly against a federal employee based on the “negligent or wrongful act or omission” of such employee while acting within the scope of employment is “precluded”). We address each of Gildor’s claims against the Postal Service in turn below.

I. Tort claims

“It is ... ‘axiomatic’ under the principle of sovereign immunity ‘that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.’ ” Adeleke v. United States, 355 F.3d 144, 150 (2d Cir. 2004) (quoting United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983)); see also Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (“[t]he doctrine of sovereign immunity is jurisdictional in nature”). The Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671 et seq., waives the federal government’s sovereign immunity against certain tort claims arising out of the conduct of its employees. See 28 U.S.C. § 1346(b)(1); see. also Syms v. Olin Corp., 408 F.3d 95, 107 (2d Cir.2005); Devlin, 352 F.3d at 530.

However, Congress carved out explicit exceptions to this waiver of sovereign immunity, including the “postal matter exception,” which preserves 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); see Dolan v. U.S. Postal Serv., -U.S.-,-, 126 S.Ct. 1252, 1256, 163 L.Ed.2d 1079 (2006); Raila v. United States, 355 F.3d 118, 119 (2d Cir.2004). The federal government also retained sovereign immunity for “[a]ny claim arising out of ... misrepresentation.” 28 U.S.C. 2680(h); see Anglo-American & Overseas Corp. v. United States, 242 F.2d 236, 237 (2d Cir.1957) (per curiam) (both negligent and intentional misrepresentation claims are barred by sovereign immunity); Devlin, 352 F.3d at 543.

Accordingly, Gildor’s tort claims alleging negligence on the part of the Postal Service in mis-delivering his package, and his tort claims alleging fraud or misrepresentation by Defendants-Appellees in sug[759]*759gesting that insurance could be taken out on his package, were barred by sovereign immunity and properly dismissed by the district court for lack of jurisdiction.

II. Contract claim

In response to Gildor’s claim that the Postal Service is bound by a contract of insurance made by its employees, the government argues that Gildor is bound by the Postal Service regulations, which provide that the Postal Service does not ensure jewelry shipped by international Express Mail. According to the government, terms in small print on the reverse side of the customer copy of the mailing label gave Gildor notice of the relevant regulations and expressly provided that “[i]indemnity is not paid for ... jewelry” shipped by international Express Mail.2 Gildor argues in response that the conduct of the postal employees equitably estopped the Postal Service from relying on the regulations to deny payment.

The district court rejected equitable estoppel on two grounds. First, it concluded that “no reasonable trier of fact could conclude that Plaintiff reasonably relied on any representations by Defendants” because, had Gildor read the reverse side of the Express Mail Mailing Label, he would have learned that the Postal Service does not insure jewelry in international Express Mail shipments and that Postal Service personnel are not permitted to make an exception to such a restriction. Gildor, 376 F.Supp.2d at 290. We think that a reasonable trier of fact could find that it was reasonable for Gildor to rely on the assurances of the postal employees. Gildor could reasonably have assumed that these employees were familiar with the policies of their employer, all the more so when a postal worker charged Gildor $49.00 for the insurance and indicated on the front of the Mailing Label, in writing, that the package was insured for $5,000.00. We note that there was nothing on the label directing a customer to the restrictions on the reverse side,3 and that the language on the reverse side regarding restrictions on insurance coverage is very small and difficult to read. See Arthur Philip Export Corp. v. Leathertone, Inc., 275 A.D. 102, 87 N.Y.S.2d 665, 667 (N.Y.App.Div.1949) (“A party should not be bound by clauses printed on the reverse side of a document unless it be established that such matter was properly called to its attention and that it assented to the provisions there stated.”); Tri-City Renta-Car & Leasing Corp. v.

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Bluebook (online)
179 F. App'x 756, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gildor-v-united-states-postal-service-ca2-2006.