Appellate Case: 24-4041 Document: 61-1 Date Filed: 06/10/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 10, 2025 _________________________________ Christopher M. Wolpert Clerk of Court RAPID ENTERPRISES, LLC, a Utah limited liability company, d/b/a Express One,
Plaintiff - Appellant,
v. No. 24-4041 (D.C. No. 2:22-CV-00627-JNP) UNITED STATES POSTAL SERVICE; (D. Utah) UNITED STATES OF AMERICA,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HOLMES, Chief Judge, KELLY, and FEDERICO, Circuit Judges. _________________________________
Plaintiff-Appellant Rapid Enterprises, LLC, dba Express One (“Express One”)
sued the United States Postal Service (“USPS”) for ten tort and contract claims. II Aplt.
App. 312–31. Express One appeals the district court’s orders dismissing all ten of these
claims for either lack of subject matter jurisdiction or failure to state a claim. Aplt. Br. at
17–18. Exercising our jurisdiction under 28 U.S.C. § 1291, we affirm.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-4041 Document: 61-1 Date Filed: 06/10/2025 Page: 2
Background
The parties are familiar with the facts, and we need not restate them at length here.
Suffice it to say that, since 2013, Express One has contracted with USPS through a
“reseller program,” which enabled Express One to purchase USPS products at discounted
rates and sell them to private parties, retaining the difference as profit. II Aplt. App. 387.
In 2019, the parties entered into a new contract (“the Contract”) to continue their reseller
business. Id. at 449. Both parties had the right to terminate the Contract at any time
upon 90 days’ notice. Id. at 361–62. In June 2022, USPS informed Express One that it
was discontinuing the reseller program and terminating the Contract. Id. at 407–08.
Express One filed suit alleging that USPS implemented a scheme to steal its
clients and destroy its business. Id. at 286–333. After the district court denied injunctive
relief, IV Aplt. App. 845–47, Express One filed an amended complaint, asserting claims
for: (1) breach of contract under the Postal Accountability and Enhancement Act
(“PAEA”), (2) breach of the implied covenant of good faith and fair dealing, (3) breach of
the implied duty to disclose superior knowledge, (4) misrepresentation in the inducement
of a contract, (5) unjust enrichment, (6) misappropriation of trade secrets under the
Defend Trade Secrets Act (“DTSA”), (7) misappropriation of trade secrets under Utah
law, (8) common law misappropriation of trade secrets, (9) misappropriation of trade
secrets as a Constitutional takings claim, and (10) estoppel.1 II Aplt. App. 312–31.
1 Express One’s eleventh claim did not state a cause of action, and merely requested declaratory and injunctive relief. II Aplt. App. 331–32. Express One does not appeal the dismissal of this claim, nor does it appeal the dismissal of claim five for unjust enrichment. See generally Aplt. Br. 2 Appellate Case: 24-4041 Document: 61-1 Date Filed: 06/10/2025 Page: 3
The district court dismissed all of Express One’s claims in two orders. First, the
district court dismissed claims one, four, six, seven, eight, nine, and ten, for lack of
subject matter jurisdiction.2 III Aplt. App. 706–36. In a separate order, the district court
dismissed Express One’s remaining claims for failure to state a claim. Id. at 750–75. We
discuss the district court’s reasoning further below as it is relevant to this appeal.
Discussion
I. The district court properly dismissed most of Express One’s claims for lack of subject matter jurisdiction.
We review de novo the district court’s dismissal for lack of subject matter
jurisdiction. Kline v. Biles, 861 F.3d 1177, 1180 (10th Cir. 2017). The party asserting
jurisdiction bears the burden of establishing that subject matter jurisdiction exists. Id.
A. PAEA claims.
Express One’s PAEA claims arose under 39 U.S.C. § 404a, which restricts the
Postal Service’s ability to establish rules precluding competition and prohibits it from
offering services based on information obtained without consent. See id. at § 404a(a)(1)
& (3). In turn, section 3662 of Title 39 of the United States Code provides that an
individual who believes that the Postal Service has violated § 404a “may lodge a
complaint with the Postal Regulatory Commission[.]” Id. at § 3662(a). Accordingly, the
district court dismissed Express One’s § 404a claims because it found that the Postal
2 The district court noted that although Express One based only claim one in the PAEA, reference to the PAEA was interspersed throughout the amended complaint. III Aplt. App. 713. Accordingly, its ruling extended to claims two, three, four, and ten to the extent that they were based in the PAEA. 3 Appellate Case: 24-4041 Document: 61-1 Date Filed: 06/10/2025 Page: 4
Regulatory Commission (“PRC”) had mandatory, exclusive jurisdiction over those
claims. III Aplt. App. 715.
On appeal, Express One argues that the PRC’s jurisdiction under § 3662 is not
mandatory, and thus the district court was not deprived of jurisdiction. Aplt. Br. at 23.
Express One focuses on § 3662’s “permissive” language, stating that an individual suing
under § 404a “may lodge a complaint with the [PRC].” 18 U.S.C. § 3662(a) (emphasis
added). Relatedly, 39 U.S.C. § 409(a), states that “[e]xcept as otherwise provided in this
title, the United States district courts shall have original but not exclusive jurisdiction
over all actions brought by or against the Postal Service.”
This court has never squarely addressed whether § 3662 vests the PRC with
mandatory, exclusive jurisdiction over § 404a claims. However, this court has held in
two unpublished decisions3 that the PRC has mandatory, exclusive jurisdiction over
claims arising under 39 U.S.C. § 403(c), which is enumerated alongside § 404a in § 3662.
See White v. United States Post Office, No. 23-1239, 2024 WL 2973705, at *2–3 (10th
Cir. June 13, 2024); Bovard v. U.S. Post Office, No. 94-6360, 1995 WL 74678, at *1
(10th Cir. Feb. 24, 1995). This is because “[t]he language of section 3662 makes clear
that a postal customer’s remedy for unsatisfactory service lies with the Postal
[Regulatory] Commission[.]” Bovard, 1995 WL 74678, at *1. The Federal Circuit
examined this same language in Foster v. Pitney Bowes Corp., 549 F. App’x 982 (Fed.
3 Although not precedential, we find the reasoning of these and the other unpublished opinions cited in this decision to be instructive. See 10th Cir. R. 32.1(A). 4 Appellate Case: 24-4041 Document: 61-1 Date Filed: 06/10/2025 Page: 5
Cir. 2013), and held that Congress intended a plaintiff alleging violations of § 404a “to
exhaust the PRC process before challenging an adverse ruling[.]” Id. at 984–86.
We agree that § 3662’s grant of jurisdiction over § 404a claims to the PRC is
mandatory and exclusive. “Generally, when Congress creates procedures designed to
permit agency expertise to be brought to bear on particular problems, those procedures
are to be exclusive.” Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 489
(2010) (quotations omitted). The district court correctly explained that “as used in
§ 3662, the term ‘may’ means only that an aggrieved party is not required to file a
complaint, but to the extent they elect to do so, it must be filed with the PRC.” III Aplt.
App. 715 n.3. Express One’s reliance on § 409 and its general grant of jurisdiction is
misplaced because that grant is subject to exceptions within the title. See 39 U.S.C.
§ 409(a). “Section 3662, with its grant of jurisdiction to the PRC over claims arising
under § 404a, provides such an exception.” Foster, 549 F. App’x at 986.
Resisting this conclusion, Express One argues that § 3662 does not apply to its
§ 404a claims because they are not “rate and service complaints” like the § 403(c) claims
at issue in White and Bovard. Aplt. Reply Br. at 7–8. This argument is unconvincing. To
be sure, § 3662 is titled “Rate and Service Complaints.” 39 U.S.C. § 3662. But this does
not mean that only rate and service complaints are covered by § 3662. Congress
explicitly enumerated § 404a claims in § 3662 even though § 404a deals with
anticompetitive activity and misappropriation of information rather than “rate and service
complaints.” See id. at § 404a. Thus, the district court properly dismissed Express One’s
PAEA claims because the PRC has mandatory, exclusive jurisdiction over such claims.
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B. Intentional tort claims.
It is axiomatic that the United States can only be sued to the extent that it has
waived its sovereign immunity. See Garling v. United States Env’t Prot. Agency, 849
F.3d 1289, 1294 (10th Cir. 2017). Though the FTCA waives sovereign immunity for
certain state law tort claims, “[t]his provision is subject to 28 U.S.C. § 2860(h), which
lists exceptions to waiver for various intentional torts,” including “[a]ny claim arising out
of . . . misrepresentation[.]” Id. at 1294–95 (quotations omitted). Here, the district court
dismissed Express One’s intentional tort claims (entitled “Misrepresentation in the
Inducement of a Contract” and “Estoppel” respectively) because it found that these
claims fell within this “intentional tort exception” such that there was no waiver of
sovereign immunity. III Aplt. App. 717–21.
As it did in the district court, Express One relies on Union Pacific Railroad Co. v.
U.S. ex rel. U.S. Army Corps of Engineers, 591 F.3d 1311 (10th Cir. 2010), for the
proposition that “where a claim is founded upon a contract, it falls outside the scope of
the FTCA.” Aplt. Br. at 29. But unlike the claims in Union Pac. R.R. Co., Express One’s
intentional tort claims do not arise from any duties under the Contract. See 591 F.3d at
1315. Indeed, these claims contain no reference to any contractual provisions. II Aplt.
App. 318–20, 330–31. Thus, we reject Express One’s attempt to reframe its intentional
tort claims as claims arising out of the Contract. III Aplt. App. 718–21.
Express One also argues that, at the very least, the district court had jurisdiction
over its estoppel claim (claim ten). Aplt. Br. at 30–31. But Express One ignores Office
of Personnel Management v. Richmond, 496 U.S. 414 (1990), where the Court held that
6 Appellate Case: 24-4041 Document: 61-1 Date Filed: 06/10/2025 Page: 7
the FTCA barred a claim which, although labeled “estoppel,” was “in practical effect one
for misrepresentation[.]” Id. at 430. Here too, although claim ten is labeled “estoppel,” it
alleges the same misrepresentations as claim four and is in practical effect a claim for
misrepresentation. II Aplt. App. 428–29, 416–17. And Express One does not challenge
the district court’s conclusion that it was bound by Block v. Neal, 460 U.S. 289, 295–97
(1983), where the Court held that the FTCA does not waive sovereign immunity where a
claim relies on government misrepresentations. III Aplt. App. 720–21. Thus, the district
court properly dismissed Express One’s intentional tort claims for lack of jurisdiction.
D. Remaining tort claims.
Through 28 U.S.C. § 2675(a), the FTCA requires a party suing the United States
for money damages to first exhaust administrative remedies. This court has consistently
described this exhaustion requirement as a “jurisdictional prerequisite.” Duplan v.
Harper, 188 F.3d 1195, 1199 (10th Cir. 1999); Lopez v. United States, 823 F.3d 970, 976
(10th Cir. 2016). Relying on this precedent, the district court dismissed Express One’s
remaining tort claims because it found that those claims were subject to the FTCA’s
exhaustion requirements and remained unexhausted. III Aplt. App. 722–24.
We recognize that the Supreme Court’s recent decision in Santos-Zacaria v.
Garland, 598 U.S. 411 (2023), may call into question our precedent classifying the
FTCA’s exhaustion requirements as jurisdictional. The Court explained that
“jurisdictional” rules “set[] the bounds of the court’s adjudicatory authority,” while
“nonjurisdictional rules govern how courts and litigants operate within those bounds.”
Id. at 416 (quotations omitted). Even nonjurisdictional exhaustion requirements are
7 Appellate Case: 24-4041 Document: 61-1 Date Filed: 06/10/2025 Page: 8
mandatory, but they are subject to waiver and forfeiture. Id. at 422–23. Critically, the
Court held that exhaustion requirements are only “jurisdictional” if Congress states so
explicitly. Id. at 416–19.
But we need not weigh in on whether the FTCA’s exhaustion requirements are
jurisdictional because that issue is not outcome determinative in this case. Indeed,
neither party so much as mentions Santos-Zacaria in their briefing. And we agree with
the district court that these claims were subject to the FTCA’s exhaustion requirements
but were unexhausted. We reject Express One’s arguments to the contrary.
i. Express One did not exhaust its administrative remedies.
First, Express One argues that it satisfied the exhaustion requirements. These
requirements “can be satisfied by a claimant filing (1) a written statement sufficiently
describing the injury to enable the agency to begin its own investigation, and (2) a sum
certain damages claim.” Lopez, 823 F.3d at 976 (quotations omitted). Similarly, Postal
Service regulations provide that:
[A] claim shall be deemed to have been presented when the U.S. Postal Service receives from a claimant . . . an executed Standard Form 95, Claim for Damage or Injury, or other written notification of an incident, accompanied by a claim for money damages in a sum certain[.]
39 C.F.R. § 912.5(a). This claim “should be filed with the Tort Claims Coordinator for
the Postal Service District Officer where the accident occurred, but may be filed at any
office of the Postal Service, or sent directly to the Chief Counsel, Torts, General Law
Service Center, USPS National Tort Center[.]” Id. at § 912.4 (emphasis added).
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Express One argues that it satisfied these requirements when it sent a letter
describing its claims to the USPS Pricing Classification and Service Center (“PCSC”).
Aplt. Br. at 35–37. The parties dispute whether the PCSC is “any office of the Postal
Service” within the scope of 39 C.F.R. 912.4. But even assuming without deciding that
the PCSC is “any office of the postal service,” Express One’s letter to the PCSC did not
make a “claim for money damages in a sum certain.” Id. at § 912.5(a). Rather, the relief
requested in this letter was that “the USPS withdraw its Notice of Termination . . . so that
the parties may proceed according to the terms of the contract.” III Aplt. App. 615. And
this court has not found a claim for money damages in a sum certain elsewhere in this
letter, nor has Express One identified one. Id. at 614–29. Accordingly, Express One did
not satisfy the exhaustion requirements because it failed to properly present its claim.
ii. USPS did not waive the exhaustion requirements.
Express One argues in the alternative that USPS waived the FTCA’s exhaustion
requirements because the Contract provided that Express One must appeal through the
PCSC. Aplt. Br. at 37. Of course, if the FTCA’s exhaustion requirements are
jurisdictional, then this argument is meritless because jurisdictional requirements cannot
be waived. See Lopez, 823 F.3d at 976. But even if these requirements are
nonjurisdictional and subject to waiver, Santos-Zacaria, 598 U.S. at 422–23, Express
One’s argument for waiver is uncompelling. The contract stated:
Customer may appeal a Postal Service decision regarding the calculation of prices, the amount of postage paid, or other implementation or operational issues under this contract by submitting a written appeal . . . to [the PCSC].
9 Appellate Case: 24-4041 Document: 61-1 Date Filed: 06/10/2025 Page: 10
II Aplt. App. 461. This narrow clause regarding pricing and other operational issues
under the Contract cannot serve as a waiver of the administrative exhaustion
requirements found in 39 C.F.R. § 912 or the FTCA. III Aplt. App. 734.
iii. Express One did not primarily seek injunctive relief.
Express One next argues that the FTCA’s exhaustion requirements do not apply
because it sought injunctive relief rather than money damages. The FTCA applies only in
tort actions for money damages. 28 U.S.C. §§ 2675(a), 1346(b)(1). “[E]xclusive
jurisdiction may not be avoided by framing a complaint in the district court as one
seeking injunctive, declaratory, or mandatory relief when, in reality, the thrust of the suit
is one seeking money from the United States.” Burkins v. United States, 112 F.3d 444,
449 (10th Cir. 1997) (quotations omitted). The thrust of a suit is monetary “unless the
non-monetary relief sought has significant prospective effect or considerable value apart
from the claim for monetary relief.” Id. (quotations omitted). Here, Express One’s
amended complaint is plainly directed at obtaining money damages for claims based in
breach of contract and tortious misappropriation, and requests substantial monetary relief
in excess of $500,000,000. II Aplt. App. 430. We reject Express One’s attempt to
reshape its claim into one primarily for injunctive relief.
iv. Express One’s DTSA claim is not exempted from the FTCA.
Finally, Express One argues that claim six is outside the scope of the FTCA
because it alleges a violation of the DTSA.4 Aplt. Br. at 32. Under 18 U.S.C.
4 At the district court, Express One also argued that its constitutional takings claim (claim nine) was exempt for the same reasons. III Aplt. App. 729. But Express One has 10 Appellate Case: 24-4041 Document: 61-1 Date Filed: 06/10/2025 Page: 11
§ 2679(b)(2)(B), the FTCA does not provide the exclusive remedy for civil actions
brought against an employee of the government “for a violation of a statute of the United
States under which such action against an individual is otherwise authorized.” As a
threshold issue, Express One does not meaningfully challenge the district court’s
conclusion that § 2679(b)(2) is inapplicable because it “clearly limits such actions that
can be maintained independent of the FTCA to those brought against ‘an employee of the
government.’” III Aplt. App. 726 (emphasis added); see generally Aplt. Br.
But we agree with the district court that, assuming arguendo that claim six can be
considered independently of the FTCA, USPS cannot be sued under the DTSA based on
the two-step test from U.S. Postal Service v. Flamingo Industries (USA) Ltd., 540 U.S.
736 (2004). Under Flamingo, to determine whether USPS can be sued pursuant to the
DTSA, “[w]e ask first whether there is a waiver of sovereign immunity for actions
against the Postal Service.” Id. at 743. “If there is, we ask the second question, which is
whether the substantive prohibitions of the [federal law] apply to an independent
establishment of the Executive Branch of the United States.” Id.
As to the first step, Express One points to Flamingo, where the Supreme Court
held that the “sue-and-be-sued clause” of § 401 waived USPS’s immunity to suit under
the Sherman Act. Id. at 744; 39 U.S.C. § 401(1) (granting USPS the power “to sue and
be sued in its official name”). But the Sherman Act at issue in Flamingo is plainly
distinguishable from the tort claims at issue here. While 39 U.S.C. § 409(a) waives
waived this issue on appeal by failing to raise it until its reply brief. See United States v. Leffler, 942 F.3d 1192, 1200 (10th Cir. 2019). 11 Appellate Case: 24-4041 Document: 61-1 Date Filed: 06/10/2025 Page: 12
USPS’s sovereign immunity to civil suits generally, this waiver does not apply to “tort
claims arising out of activities of the postal service.” Id. at § 409(c). Claim six is a tort
claim, and thus there is no waiver of sovereign immunity. III Aplt. App. 727.
II. The district court properly dismissed Express One’s remaining contract claims for failure to state a claim.
“We review a Rule 12(b)(6) dismissal de novo.” Thomas v. Kaven, 765 F.3d 1183,
1190 (10th Cir. 2014). “[W]e must accept all the well-pleaded factual allegations of the
complaint as true and must construe them in the light most favorable to the plaintiff.” Id.
(quotations omitted). “[A] complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” Id. (quotations omitted).
“Obligations to and rights of the United States under its contracts are governed
exclusively by federal law.” United States v. Turley, 878 F.3d 953, 956 (10th Cir. 2017)
(quotations omitted). However, “there is a presumption that state law should be
incorporated into federal common law.” Id. (quotations omitted). Here, to the extent that
state law must be incorporated, the relevant state’s law would be Utah. III Aplt. App. 755
n.6. The following results would be the same under either federal law or Utah law.
A. Claim for breach of contract.
To state a claim for breach of contract, Express One needed to allege “(1) a
contract, (2) performance by the party seeking recovery, (3) breach of the contract by the
other party, and (4) damages.” Am. W. Bank Members, L.C., v. State, 342 P.3d 224, 230–
31 (Utah 2014). Express One alleged that USPS breached the Contract in four ways: (1)
wrongful termination, (2) misappropriating confidential information, (3) violating the
12 Appellate Case: 24-4041 Document: 61-1 Date Filed: 06/10/2025 Page: 13
PAEA, and (4) implementing a “scheme” to cancel the Contract and take control of
Express One’s clients. III Aplt. App. 757. We address each allegation in turn.
i. Wrongful termination and “scheme” to cancel the Contract.
The district court addressed together Express One’s first and fourth breach of
contract claims regarding wrongful termination and a “scheme” to cancel the Contract.
Id. Both failed to state a claim because they did not rely on any contractual provisions,
but instead on extrinsic statements made by USPS. Id. at 758–59. On appeal, Express
One simply claims that it made adequate allegations as to each of these claims. Aplt. Br.
at 49–50. Express One has waived these arguments by failing to adequately develop
them. See Nelson v. City of Albuquerque, 921 F.3d 925, 931 (10th Cir. 2019).
ii. Misappropriation.
In arguing that USPS breached the Contract by misappropriating confidential
customer information, Express One points to Section I(N) of the contract, which reads:
Customer shall provide the Postal Service with all Tier 2 Merchants, Tier 3 Merchants, and Platforms along with their associated volumes, spend, MIDs, permits or meters, PCIDs where available, and all other information the Postal Service determine necessary for the purposes of validating Merchant and Platform shipping volume and spend per product.
II Aplt. App. 295 (emphasis added). Express One argues that, under the doctrine of
expressio unius, the Contract’s identification of this permitted use of the information
excludes all other uses of the information. Aplt. Br. at 43. It further argues that because
its interpretation of Section I(N) is “reasonable,” the district court erred in resolving the
Contract’s ambiguous language on a motion to dismiss. Id. at 42; McAuliffe v. Vail
Corp., 69 F.4th 1130, 1143 (10th Cir. 2023).
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However, we agree with the district court that expressio unius “does not [] provide
a sword by which Express One can assert the existence of other duties imposed on its
contractual counterparty.” III Aplt. App. 761. Section I(N) simply does not prohibit
USPS from using Express One’s information in the way that it did. See II Aplt. App. 295.
And Section I(N) does not become ambiguous simply because Express One seeks to
interpret it in accordance with its own interests. See Holladay Bank & Tr. v. Gunnison
Valley Bank, 319 P.3d 747, 751 (Utah Ct. App. 2014). As a freely contracting party,
Express One had the opportunity to include a term limiting USPS’s use of its information,
but it failed to do so. Accordingly, the district court properly found that Express One
failed to state a claim for breach of contract under this misappropriation theory.
iii. PAEA violation.
Express One argues that USPS breached the Contract by violating the PAEA,
which it claims was incorporated into the Contract. Aplt. Br. at 46. The PAEA was
referenced only in the introductory recital to the Contract, which read:
[I]t is the intention of the Parties to enter into a shipping services contract that will benefit the Postal Service, the postal system as a whole, and Customer, and that will comply with the requirements of Title 39 of the United States Code[.]
II Aplt. App. 449 (emphasis added).
Courts are “reluctant to find that statutory or regulatory provisions are
incorporated into a contract with the government unless the contract explicitly provides
for their incorporation.” St. Christopher Assocs., L.P., v. United States, 511 F.3d 1376,
1384 (Fed. Cir. 2008). Here, “the [C]ontract’s passing reference to the entire corpus of
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[the PAEA] did not automatically result in wholesale incorporation of that statute.”
Precision Pine & Timber, Inc. v. United States, 596 F.3d 817, 826 (Fed. Cir. 2010)
(quotations omitted). The Contract undoubtedly makes explicit mention of the PAEA,
but it does not explicitly incorporate the PAEA into its terms. Thus, the district court
properly dismissed Express One’s breach of contract claim for failure to state a claim.
B. Claim for breach of the implied covenant of good faith and fair dealing.
The implied covenant of good faith and fair dealing “requires a party to not
interfere with another party’s rights under the contract.” Id. at 828. However, this
implied duty “cannot expand a party’s contractual duties beyond those in the express
contract or create duties inconsistent with the contract’s provisions.” Id. at 831. “Cases
in which the government has been found to violate the implied duty of good faith and fair
dealing typically involve some variation on the old bait-and-switch.” Id. at 829.
Express One argues that this case presents the “classic bait-and-switch scenario.” 5
Aplt. Br. at 52. As “bait,” USPS threatened to terminate the 2016 contract and “forced”
Express One to accept terms in the 2019 Contract such that it would provide information
about its customers. Id. Then as the “switch,” USPS terminated the Contract once it had
this information. Id. We disagree. First, there was no “bait” because Express One was
not “forced” to sign the 2019 Contract in bad faith. See II Aplt. App. 292–93. Indeed,
5 Express One alleged that USPS violated this duty in “at least nine ways.” Aplt. Br. at 51; III Aplt. App. 764. On appeal however, Express One seems to focus only on its claim (h) alleging that USPS planned to terminate the Contract after capturing Express One’s confidential information. Aplt. Br. at 50–52; III Aplt. App. 764. Express One has waived its arguments as to the other allegations by failing to raise them until its reply brief. See Aplt. Reply Br. at 25; Leffler, 942 F.3d at 1200. 15 Appellate Case: 24-4041 Document: 61-1 Date Filed: 06/10/2025 Page: 16
counsel for Express One recanted this allegation at oral argument. See Oral Arg. at
01:05–02:10. There was also no “switch” because Express One willingly entered into the
Contract which expressly allowed USPS to terminate at any time upon 90 days’ notice.
III Aplt. App. 771. “Where the parties themselves have agreed to terms that address the
circumstance that gave rise to their dispute . . . the court has no business injecting its own
sense of what amounts to ‘fair dealing.’” Young Living Essential Oils, LC v. Marin, 266
P.3d 814, 817 (Utah 2011). Thus, the district court properly dismissed this claim.
C. Claim for breach of the implied duty to disclose superior knowledge.
To plead a breach of the implied duty to disclose superior knowledge, Express One
needed to allege that it:
(1) undertook to perform [the contract] without vital knowledge of a fact that affects performance costs or direction, (2) the government was aware that the contractor had no knowledge of and had no reason to obtain such information, (3) any contract specification misled the contractor, or did not put it on notice to inquire, and (4) the government failed to provide the relevant information.
GAF Corp v. United States, 932 F.2d 947, 949 (Fed. Cir. 1991). The district court
dismissed this claim for failure to allege the third element because “no contract
specification supplied by USPS could have reasonably misled Express One regarding the
fact of any internal discussions . . . to end the reseller program.” III Aplt. App. 773. We
agree with the district court that Express One “merely allege[d] deliberations regarding
the possibility of future dissemination, which is not vital knowledge of a fact about which
the Contract misled Express One.” Id. at 773–74.
III. Motions to Seal.
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Also pending before this court are two motions to seal filed by Express One. See
Dkt. Nos. 28 & 50; see also 10th Cir. R. 25.6. “A party seeking to file court records
under seal must overcome a presumption long supported by courts, that the public has a
common-law right of access to judicial records.” Eugene S. v. Horizon Blue Cross Blue
Shield of New Jersey, 663 F.3d 1124, 1135 (10th Cir. 2011). Accordingly, the party
“must articulate a real and substantial interest that justifies depriving the public of access
to the records[.]” Id. at 1135–36.
Here, Express One moves to seal the briefs and appendix on behalf of USPS
because “[t]here is one document in this case that may contain privileged material.” Dkt.
No. 28, at 2–3. Indeed, Express One does not believe the document to be privileged, and
instead requests to file under seal to protect USPS’s ability to argue it is privileged. Id. at
3; Dkt. No. 50, at 3. The Clerk of Court invited USPS to file a brief within 14 days
responding to the motion to seal and providing further factual or legal basis in support of
sealing the materials. See Dkt. No. 52. Our review of the docket sheet indicates that no
response was filed. Accordingly, we deny the motions to seal.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr. Circuit Judge