[00:00:00] Speaker 03: Case number 12-1341, Roman Lopez petitioner versus postal regulatory commission. [00:00:06] Speaker 03: Mr. Burgess for the amicus pari, Ms. [00:00:08] Speaker 03: McNeil for responding. [00:00:37] Speaker 03: Good morning. [00:00:37] Speaker 00: Good morning, Your Honor. [00:00:38] Speaker 00: Brian Burgess on behalf of the court appointed Amicus in support of the petitioner, Ramon Lopez. [00:00:44] Speaker 00: This case arises from at one level a dispute about mail delivery, but it also implicates important questions of administrative law, including how the voluntary cessation doctrine applies in the administrative context. [00:00:55] Speaker 00: In this court's order appointing us as intermediates, it specifically asked us to address the issue of jurisdiction, so I'll briefly begin there. [00:01:02] Speaker 00: I note that it appears that the government agrees with us that the court does have jurisdiction in this case. [00:01:08] Speaker 00: 3663 provides that any person who is adversely affected or grieved by a final order of the Postal Regulatory Commission can bring an action within this court. [00:01:19] Speaker 00: Mr. Lopez brought a complaint under 3662 about the disruption of his mail service. [00:01:24] Speaker 00: that there's no dispute that it was proper to bring that action within the Postal Regulatory Commission. [00:01:30] Speaker 00: In fact, it has exclusive jurisdiction over those sorts of complaints. [00:01:33] Speaker 00: He was adversely affected by the commission's decision to dismiss his complaint, which was also clearly a final order of the commission, because it ended the matter and it fully resolved the commission's consideration of the issue. [00:01:45] Speaker 00: So we think on the plain text of the statute, this court has jurisdiction. [00:01:48] Speaker 01: So how has he agreed with respect to [00:01:52] Speaker 01: the aspect of his petition that requested that his mail service be resumed, because that was resumed, right? [00:02:02] Speaker 00: It was resumed, so we think that that goes to our challenge about whether the commission acted arbitrarily and capriciously in this case. [00:02:08] Speaker 00: The fact that the commission held that there was a jurisdictional problem there, that the complaint had become moot, and so it dismissed his action doesn't [00:02:18] Speaker 00: far this court's jurisdiction to decide whether the commission erred in that regard. [00:02:23] Speaker 00: And we cite in our briefs, in these sort of contexts in which an agency has decided whether a complaint has become moot in proceedings before it, it always applies the standard arbitrary and capricious standards. [00:02:34] Speaker 00: So this court, the basis that the commission relied on to make a decision, he's agreed because he filed a complaint. [00:02:42] Speaker 00: He was seeking relief and rather than providing an order granting him that relief, the commission dismissed his complaint. [00:02:49] Speaker 00: There's an argument and I can go into it about whether the commission was arbitrary and capricious in that regard to dismiss it. [00:02:55] Speaker 00: But we don't think that that fact can affect whether this court has jurisdiction under 3663. [00:03:00] Speaker 00: The other, just to finish the jurisdiction point, the other potential wrinkle is the fact that Mr. Lopez brought a claim for monetary damages, which all agree that was not properly before the commission and this court does not have jurisdiction to address, but we don't think that that can affect what [00:03:16] Speaker 00: whether the court has jurisdiction to review the claim that clearly is properly before it. [00:03:20] Speaker 00: The proper course there is simply to sever that aspect of the action. [00:03:25] Speaker 00: And as we note in the brief, it can be transferred under 1631 to a district court to bring a FTCA. [00:03:33] Speaker 01: So why isn't the proper resolution to do precisely that and remand that to the district court with respect to his claim for money damages? [00:03:45] Speaker 01: and dismiss the remainder of his petition. [00:03:52] Speaker 00: So we're fully in accord with the first part of that. [00:03:53] Speaker 00: We do think that that is the proper way to handle the claim for damages. [00:03:58] Speaker 00: All agree that it was not properly presented in the commission. [00:04:00] Speaker 00: All agree that the court has authority to transfer it under 1631. [00:04:04] Speaker 00: The government's only arguments in this regard is that [00:04:07] Speaker 00: transfer would be futile because they think the claim is frivolous, we've argued why there are at least substantial arguments of why they could go forward. [00:04:15] Speaker 00: So we completely agree with that aspect of the resolution. [00:04:18] Speaker 00: As to the first, the other part of it in terms of the Commission's decision that the claim is moot, we think that that was arbitrary and capricious because the Commission relied exclusively on the government's voluntary cessation of its conduct that was expressed in an informal letter by the Postal Service [00:04:35] Speaker 00: indicating that they would recommence delivery until they stopped it again. [00:04:40] Speaker 00: And we don't think that sort of a commitment meets the government's heavy burden to establish... What would be a permissible commitment? [00:04:50] Speaker 02: So I think there are... In other words, what would they have to say? [00:04:55] Speaker 00: Well, a couple things. [00:04:56] Speaker 00: I think there are things that could have been more robust, such as providing for a certain level of oversight about what, so the nature of Mr. Lopez's complaint is that the government claimed that his house was vacant. [00:05:09] Speaker 00: He denies that that was ever the case and makes certain assertions that, and allegations backed up in declarations that this might have been in part the result of discriminatory conduct. [00:05:19] Speaker 00: There are no findings by the commission to the contrary. [00:05:22] Speaker 00: So the concern is that given that the past [00:05:25] Speaker 00: The problem was by postal service workers on the ground making determinations to just put it back in their hands was inadequate. [00:05:32] Speaker 02: I take that point, but it seems like the postal service, all they can say is we're going to deliver the mail to the home. [00:05:41] Speaker 02: and less nail piles up there that shows that no one actually is at home for some period of time. [00:05:47] Speaker 02: I don't know what more they could necessarily say than that. [00:05:52] Speaker 00: Well, as I understand their letters and their regulations in their regard, there's no real guidance on what happens to determine that [00:06:00] Speaker 00: I think it's important to understand that there are processes in place for once that determination is made. [00:06:13] Speaker 00: more conditions built in such that rather than the individual postal service worker being able to make this determination in his or her own discretion, that if supervisors were able to sort of review that determination, if maybe an inquiry were made with Mr. Lopez to verify that in fact his house had become vacant. [00:06:32] Speaker 00: We think it's also possible, I'm an amicus so I feel able to say this, if the commission had made a determination that his allegations were incorrect, [00:06:41] Speaker 00: that in fact his house had been vacant, but now it no longer was, or that he had made allegations of discrimination, but those were unfounded. [00:06:49] Speaker 00: That would certainly go to the question of whether the Postal Service's insistence that, okay, now we know that it's vacant, that it's not vacant, so we're gonna restore mail. [00:06:59] Speaker 00: That would be much more credible and might go a long way to sort of satisfying voluntary cessation. [00:07:04] Speaker 00: But there just aren't those sorts of findings in the record. [00:07:07] Speaker 00: As the case came to the commission and as it comes to the court, [00:07:11] Speaker 00: there are unrebutted allegations that, despite the fact that his home, he says, was never vacant, that he tried over a number of years to convince the Postal Service of that fact. [00:07:22] Speaker 03: In the record, prior, before he brought his complaint, there are... So is your point that, other than a letter of apology, and I know you want affidavits, et cetera, are the Postal Services represented as restored service? [00:07:39] Speaker 03: and it will continue to provide service until circumstances change. [00:07:47] Speaker 03: That's right. [00:07:48] Speaker 03: And we're not dealing with the damages issue. [00:07:52] Speaker 03: And the legal question associated with that, or maybe we are, which I'll get to in a moment, but it's his point that [00:08:06] Speaker 03: his allegation about discrimination, and I'm not sure I understood it other than that the mailman who delivers to his house doesn't like him for some reason. [00:08:18] Speaker 03: Now, I'm serious about that. [00:08:19] Speaker 03: I don't know, is it racial, ethnic, or what is it? [00:08:25] Speaker 03: And I thought that was the reason that the commission could validly not address those issues because [00:08:35] Speaker 03: They're so vague and conclusory. [00:08:37] Speaker 03: I mean, maybe they just don't like each other as distinct from a legal discrimination that would adversely affect the delivery of his mail. [00:08:48] Speaker 00: Sure. [00:08:49] Speaker 00: So two points in response to that. [00:08:52] Speaker 00: One, this is at page 36 of the appendix where he does say that he believes there was discrimination on the basis of his status of being incarcerated and possibly ethnic discrimination. [00:09:04] Speaker 00: Possibly. [00:09:04] Speaker 00: I take Your Honor's point, but there is nothing in the Commission's decision to indicate that it made a determination on that or discredit it. [00:09:13] Speaker 03: But my point is we have all these cases about these vaguely [00:09:18] Speaker 03: made allegations. [00:09:19] Speaker 03: I mean, it's up to plaintiff to spell out what he's talking about at some point. [00:09:25] Speaker 00: Sure, if you look at what the postal services, if you look at their motion to dismiss, and I think this is on page 44 through 46 of the appendix, they make alternative arguments. [00:09:38] Speaker 00: They make the arguments sort of that your honor was postulating that there is no basis for this complaint and under our standard procedures it should simply be dismissed. [00:09:47] Speaker 00: Alternatively, and they specifically use the word alternatively, this case is now moved because we promised to restore service. [00:09:55] Speaker 00: The Commission, in its decision on page 50 of the appendix, relies exclusively on that second determination, exclusively on mootness. [00:10:03] Speaker 00: And crucially, uses mootness in what seems to be the ordinary sense of the word. [00:10:07] Speaker 00: The government makes arguments that, well, the Commission has more discretion than an Article III court to decline to adjudicate a case, even if it has not become formally moot. [00:10:18] Speaker 00: But there's just no indication that the Commission is exercising that sort of authority. [00:10:22] Speaker 02: Can I ask you a question on the damages part of this, which is, do you agree, first of all, with the law that we shouldn't transfer if that would be futile? [00:10:34] Speaker 00: We don't take issue with that. [00:10:35] Speaker 02: OK. [00:10:35] Speaker 02: And the next question is, why isn't it futile, given the text of 2680B? [00:10:39] Speaker 02: Sure. [00:10:41] Speaker 00: So that provision, the postal exception, provides an exception for lost miscarriage or negligent transmission of the mail. [00:10:51] Speaker 00: And we think, as Judge Bates indicated in his Colbert opinion, that there is, at the very least, a narrow gap that you can fit through there. [00:11:00] Speaker 00: negligent transmission, sort of there's an implicit implication that if it's not negligent that that might not be covered by the statute. [00:11:07] Speaker 00: We think Mr. Lopez's complaint falls within that scope. [00:11:10] Speaker 00: He's not arguing that the Postal Service lost his mail. [00:11:13] Speaker 02: Wouldn't it be miscarriage though? [00:11:15] Speaker 00: No, I don't think so. [00:11:16] Speaker 00: That term is defined in the Supreme Court's Dolan opinion. [00:11:20] Speaker 00: Miscarriage is when it's brought to the wrong place. [00:11:22] Speaker 00: I address it to Jones and it ends up going [00:11:25] Speaker 02: But it's really any claim that you failed to deliver the mail in a timely manner to the right address, isn't that the? [00:11:33] Speaker 00: Well, I think that negligent has to be doing some work. [00:11:36] Speaker 00: If that's the understanding, and this is sort of just encompassing any sort of circumstance in which the mail is not delivered to the proper address, I don't know what work negligent will be doing. [00:11:46] Speaker 02: Right, so your point is that it would be different if it said any claim arising out of the lost miscarriage or transmission. [00:11:52] Speaker 00: Exactly right. [00:11:53] Speaker 00: Negligence there must do something. [00:11:55] Speaker 00: And again, our burden here is minimal. [00:11:58] Speaker 00: All we need to show is that it is not frivolous. [00:12:00] Speaker 00: And the fact that there is a genuine textual question, the fact that at least some courts have, albeit not in holdings as the government notes, but have indicated that there is at least a narrow gap in which these claims can fit through, we think is enough to suggest that this should be resolved by a court that actually has jurisdiction rather than this court, which I'll agree does not. [00:12:21] Speaker 03: All right, thank you. [00:12:22] Speaker 03: We'll hear from counsel for respondent. [00:12:31] Speaker 04: Good morning. [00:12:31] Speaker 04: Sonia McNeil for the government. [00:12:33] Speaker 04: The Commission reasonably determined that there was no need to order the Postal Service to do what it had already done. [00:12:38] Speaker 04: Judge Kavanaugh, as you put it, the Commission noted that the Postal Service had said all it could say and, in fact, all that Mr. Lopez had asked them to say. [00:12:46] Speaker 04: The specific relief that Mr. Lopez requested was the restoration of mail delivery to his home, and that's exactly what happened. [00:12:53] Speaker 04: And the Postal Service's representation to the Commission was functionally identical to the representation that this Court accepted in Middleman [00:13:00] Speaker 04: applying Article 3 principles is sufficient to render the case moot. [00:13:05] Speaker 04: Now, as we've explained in our brief, the Commission is not bound by Article 3 principles. [00:13:10] Speaker 04: There's no reason, and the amicus has not cited any case that would support the proposition, that by using the shorthand moot, the Commission intended to import the complex doctrinal structure of Article 3 jurisprudence with all of its highly technical concepts, much less determine how those concepts apply. [00:13:28] Speaker 02: That's a generous description. [00:13:33] Speaker 04: With regard to transfer, the court should not transfer the case to district court because the claim is futile, and that's for a number of reasons. [00:13:40] Speaker 04: It's both because this claim is not one that the FDCA waives the government's sovereign immunity for. [00:13:46] Speaker 02: What about the negligent – I'm sorry to interrupt, but what about the negligent intentional distinction that counsel is drawing and saying maybe that's not a winner, but that's at least not frivolous or [00:13:58] Speaker 04: Well, I mean, the question, as this court put it in Wilson, is whether or not the person seeking a transfer has proffered a substantial basis upon which to convince the other court of the validity of the claim. [00:14:08] Speaker 04: And the Supreme Court in Dolan explained that the loss or miscarriage of mail is the failure to deliver mail in a timely manner to the right address. [00:14:15] Speaker 04: And as the first, second, third, and eighth circuits have explained, [00:14:18] Speaker 04: That forecloses a claim that there was an intentional interference with the mail. [00:14:25] Speaker 04: I mean, here I suppose Mr. Lopez's claim is that his mail went to the wrong address because it was returned to sender and not to him. [00:14:32] Speaker 02: One further point about... Well, the legal theory is broader than that. [00:14:35] Speaker 02: The facts may not be... [00:14:37] Speaker 02: The facts may be, as you say, who knows, but the legal theory that you're articulating would preclude even an intentional interference where the postal carrier said, I don't like this guy, I'm gonna throw his mail into the sewer. [00:14:54] Speaker 02: And you would say still that that's barred. [00:14:56] Speaker 02: And the question is, is that so, does that not even pass the bar of being more than frivolous? [00:15:05] Speaker 04: No, Your Honor. [00:15:06] Speaker 04: I mean, that result would be consistent with the Supreme Court's definition of loss and miscarriage and doling, and with, as I mentioned, the decisions of the other circuits considering intentional interference with the mail. [00:15:18] Speaker 01: With regard to the... Hasn't the Second Circuit come out in the opposite end, though, and said that intentional acts are covered by the exception? [00:15:27] Speaker 04: No, Your Honor. [00:15:27] Speaker 04: The Second Circuit, the more recent decision, expressed a distinguished and earlier case, which involved allegations that the mail was surreptitiously diverted by an intelligence agency, opened, returned to its envelope, and then delivered. [00:15:41] Speaker 04: Those facts are far afield from what we're dealing with here, of course. [00:15:46] Speaker 02: You had alternatives that you were going to articulate before I interrupted you, I think. [00:15:50] Speaker 04: Thank you, Your Honor. [00:15:52] Speaker 04: The claim is futile for the further reason that Mr. Lopez has never presented an FDCA claim to the Postal Service, which is the entity that would need to deny the claim in order for him to have the ability to sue. [00:16:06] Speaker 04: Furthermore, Mr. Lopez has not identified the right defendant, nor has he explained why there's a state law analogy here. [00:16:12] Speaker 04: and the Supreme Court of Florida case that Amicus sent in its reply brief, there the court expressly distinguished the instance of a rogue employee who commits a bad act from systemic malfeasance by a carrier. [00:16:28] Speaker 01: Why isn't his complaints to the Postal Service, why don't they satisfy and affect the presentment requirement, particularly since it's pro se? [00:16:40] Speaker 04: Well, Mr. Lopez's theory is that his complaint to the Public Regulatory Commission is what satisfied the requirement to present. [00:16:47] Speaker 04: And that complaint, as the court can tell, which is on pages A2 and A3, is quite narrow and specific. [00:16:54] Speaker 04: Mr. Lopez makes clear that he believes his claim arises under the APA and the PAEA. [00:16:59] Speaker 04: And the Postal Service had no obligation to second-guess Mr. Lopez as to what he believed his theory of liability would be. [00:17:08] Speaker 04: I'm happy to answer any further questions. [00:17:11] Speaker 04: Thank you. [00:17:21] Speaker 00: Thank you, Your Honor. [00:17:22] Speaker 00: Briefly, just a few points. [00:17:24] Speaker 00: My friend mentioned the Middleman decision from this court in terms of voluntary cessation context. [00:17:29] Speaker 00: I think one crucial difference there is there the representation was that in order for the government to reinstate its policy, it was going to have to go through a full APA notice and comment process, which is quite different from a situation here where nothing stopped the government from simply engaging in the same conduct that had led to Mr. Lopez's complaint in the first place. [00:17:48] Speaker 00: There was no sort of process that would [00:17:50] Speaker 00: It would stop that. [00:17:52] Speaker 00: Also on the mootness issue and the question of whether this article three concept should be read into the agency's decision, we did set a case to that point, page eight in our reply brief, the 11 circus decision, which noted that in an instance in which the agency uses mootness in its ordinary sense, [00:18:11] Speaker 00: you take them at their word, that they are using a legal concept that has well-established meaning and you don't sort of get into the exercise of whether an agency might have had discretion to act apart from that. [00:18:23] Speaker 00: On the damages claim and first dealing with the FDCA exception, Judge Wilkins, you mentioned the Second Circuit and my friend argued that it [00:18:34] Speaker 00: that it has sort of distinguished that. [00:18:36] Speaker 00: The case from the Second Circuit that was distinguished involved deliberate theft of the mail, which has been equated by some circuits to loss. [00:18:43] Speaker 00: Now, you could quibble about whether that fits within the loss section of 268, 268B, but that's not what Mr. Lopez is arguing here. [00:18:51] Speaker 00: Again, he's not arguing that his mail was lost or stolen. [00:18:54] Speaker 00: He's arguing that it was not transmitted, and intentionally so, and so that that should fit within the scope of the statute. [00:19:01] Speaker 00: Regarding the other sort of objections to the [00:19:04] Speaker 00: whether there is a proper claim under the FTCA. [00:19:07] Speaker 00: We think all those are best addressed by the transfer report, including whether the sort of pleading could be amended to add the United States and have it relate back, including questions of Florida law. [00:19:18] Speaker 00: Under the venue provision for the FTCA, this would be going to a Florida court. [00:19:23] Speaker 00: So we think they're in a much better position to address whether there's a potentially valid claim under Florida state law. [00:19:30] Speaker 00: And as far as presentment, [00:19:32] Speaker 00: The regulations for the FTCA provide that if the complaint is provided to the wrong agency, it is supposed to be transferred. [00:19:41] Speaker 00: That's exactly what happened here. [00:19:42] Speaker 00: The Postal Service did get notice of Mr. Lopez's claim. [00:19:46] Speaker 00: It is true that he did not identify the right legal theory, but that isn't the requirement. [00:19:51] Speaker 00: The requirement is that he noted clearly that he had a claim for damages against the Postal Service. [00:19:56] Speaker 00: And crucially, and what distinguishes [00:19:58] Speaker 00: sort of all the other cases that the government had relied on, he presented a sum certain. [00:20:03] Speaker 00: He said, I am entitled to $2,500 of consequential damages because of the effect that the non-transmission of mail has had on me. [00:20:12] Speaker 00: And I've lost various tax exemptions and had to incur various expenses. [00:20:16] Speaker 00: That's quite different from a generalized claim that occurs in the other cases of I'm entitled to benefits. [00:20:22] Speaker 00: He requested damages, he gave us some certain. [00:20:26] Speaker 00: That claim was presented to the Postal Service on a timely basis, and it was then effectively denied. [00:20:31] Speaker 00: The court has no further questions. [00:20:34] Speaker 03: Thank you. [00:20:34] Speaker 03: Mr. Burgess, you were appointed by the court to represent appellant.