Law Life: Post office gaff: Soldier's mom gets letter marked 'DECEASED'

By Pat Murphy
The Daily Record Newswire

Most mistakes made by the U.S. Postal Service are harmless enough.

The neighbors get your letters. You get the neighbors’ letters. A package left out in the rain.

But it’s unforgiveable when a mom’s letter to a soldier fighting in Iraq gets returned with the rubber stamp “DECEASED” when the young man is alive.

And you’d think that the Postal Service would be on the hook for some hefty damages for causing the mom’s emotional distress.

That’s what Joan Najbar wanted when she sued the Postal Service in federal court.

Yes, the Duluth, Minnesota mom alleged that she was the victim of just such a turn of events described above.

Najbar’s son served in the U.S. Army in Iraq in 2006 and 2007 when there was tough fighting and casualties were being reported virtually every day.

In September 2006, Najbar mailed her son a letter.

She claims that, a few weeks later, the letter was returned to her by the Postal Service, and the word “DECEASED” was stamped in red ink on the envelope.

One can only imagine the emotional turmoil at the moment she saw that letter.

Fortunately, the Red Cross was soon able to confirm that her son was alive, but that was only after the Postal Service proved unhelpful in determining that there had been a mistake.

Najbar told The Minneapolis-St. Paul Star Tribune that the Postal Service didn’t even apologize for the gaff.

According to Najbar, she was already under the care of a psychiatrist when she received the letter. Of course, receiving the letter didn’t help her condition.

Najbar claimed that receiving the letter made her psychological problems worse, and that her emotional distress required additional medical treatment and cost her income.

So she sued the Postal Service for $118,000 under the Federal Tort Claims Act.

‘Negligent transmission’ of mail?
The Postal Service responded to Najbar’s emotional distress claim by citing two exceptions under 28 U.S.C. §2680 to the government’s waiver of sovereign immunity under the Act.
Section 2680(b) forecloses “[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.”

Section 2680(h) forecloses “[a]ny claim arising out of ... misrepresentation.”

Earlier this month, U.S. District Judge Patrick J. Schiltz ruled that the Postal Service was not protected under §2680(b)’s “postal matter” exception.

The court found that application of the postal matter exception to Najbar’s emotional distress claim was precluded under the U.S. Supreme Court’s decision in Dolan v. United States Postal Service.

In Dolan, the Court allowed the claim of a woman who was injured when she tripped over letters and packages allegedly left on her porch by a U.S. Post Office employee.

Judge Schiltz in this case concluded that the Najbar’s emotional distress claim did not pertain to the “negligent transmission” of mail under Dolan.

“Najbar’s letter was not lost, nor was it miscarried. ... [T]he Court finds that the ‘deceased’ stamp on the letter is not the kind of ‘damage’ to postal matter that qualifies as “negligent transmission,’” the judge wrote.

Judge Schiltz explained that Dolan “described § 2860(b) as reaching harms of the sort ‘primarily identified with the Postal Service’s function of transporting mail throughout the United States,’ and offered the ‘shattering of shipped china’ as an example of a claim arising from the delivery of mail ‘in damaged condition. ...’

“When, as in this case, a claim is based not on damage to the contents of an envelope or package but only to markings on the exterior of the envelope or package, the claim does not arise from the ‘negligent transmission’ of mail and does not fall within § 2680(b).”

‘Misrepresentation’ exception applies
The Postal Service fared much better on its second ground for dismissal.

Judge Schiltz found that Najbar’s emotional distress lawsuit fit within the FTCA’s “misrepresentation” exception.

Najbar argued to no avail that §2860(h) only applies in the context of a claim for commercial damages.

The judge first construed the substance of Najbar’s claim.

“Najbar became ‘extremely distressed’ because the government was telling her, by returning the envelope stamped ‘deceased,’ that her son was dead. Had Najbar never seen the letter, or had she seen the letter only after having been warned by the government that someone mistakenly stamped ‘deceased’ on a letter to her son but he was in fact alive, she would not have suffered any damages,” the judge wrote.

He proceeded to conclude that Najbar’s lawsuit fell within §2860(h)’s misrepresentation exception.

“Congress used the word ‘misrepresentation,’ and that word is broad enough to reach all types of claims for misrepresentation, whether those claims seek recovery for commercial injury, physical injury, or emotional injury.

“Further, the word is broad enough to reach a claim based on a misrepresentation regardless of how, or even whether, the plaintiff relied on the misrepresentation. The Court therefore rejects Najbar’s (dubious) argument that her claim does not fit within the misrepresentation exception because the injuries she suffered were not caused by her reliance on the ‘deceased’ stamp,” the judge wrote. (Najbar v. U.S.)

This is a tough result to stomach given the extreme emotional distress that Najbar obviously must have experienced upon receiving the returned letter.

We’ll probably never know how it came to be that some Postal Service functionary precipitated a heart-rending emotional crisis by stamping “DECEASED” on Najbar’s letter.

But given the extraordinary circumstances of her case, you’d think that the law would afford her a remedy.


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