"Special" Delivery: New Interpretations of the "Postal Matter" Exception to the Federal Tort Claims Act

• Author: Patricia A. Walsh
• Position: J.D. Candidate, The University of Iowa College of Law
• Pages: 09

Patricia A. Walsh: J.D. Candidate, The University of Iowa College of Law, 2006; M.F.A. (Fiction), Iowa Writers' Workshop, 2001. With deep gratitude to the following customers of the United States Postal Service: the Walsh family, especially Mom, an inexhaustible user of Priority Mail to deliver Irish soda bread to her far-flung children; Peyton Munson Marshall and Ruth Brooks for letters of encouragement from both coasts; Catherine Theis and Michael Feagler for Note enthusiasm; Professor Arthur E. Bonfield and John Brogan, Esq., for helpful comments; Erin Rose Peterson for helpful breaks; the Iowa Young Writers' Studio team for nurturing the next generation of epistolarians and poets; the Iowa Law Review Editorial Board, present and past; and former teenaged fans of The Third Sex, the source of much cherished mail. To both my grandfathers, a mailman and a lawyer, whose interests intersect herein. Page 403

He goes off whistling, loving the weather.

Photons beat on his broad chest,

neutrinos penetrate black leather and swamp his toenails.

There is a secret to life, but he hasn't delivered it yet.¹

I Introduction

There is almost nothing better than discovering in your mailbox a first- class message addressed carefully and specifically to you, be it love letter, acceptance letter, fan mail (perhaps!), or correspondence from a sheep- herding friend in New Zealand. It is an affirmation that in the existential sense you are not alone, that someone thought of you enough to envelop the thought in paper: a feeling one rarely gets from being "Cc'd" on an e- mail. It is not solely the writer's labor that makes the letter so remarkable. Surely, the labor of the people who travel undeterred by neither "snow, nor rain, nor heat, nor gloom of night"² to hand-deliver it to you enhances the letter's special value. Writer Jonathan Franzen articulates this feeling cannily:

What makes the sight of a person in postal uniform a welcome one is not simply the possibility that he is bringing us a billet-doux³ or a sweepstakes check. It's the hope and faith that the Postal Service serves us. Ever since it came by stage rider to remote Appalachian settlements, the U.S. Mail has offered to a lonely people a universal laying on of human hands. It's as sacred as anything gets in this country.⁴

One need not be of a privileged class to experience this service. The mission of the United States Postal Service ("USPS") appeals to a democratic ideal: "The [USPS] shall be operated as a basic and fundamental service provided to the people by the Government of the United States. . . . The Postal Service shall have as its basic function the obligation to provide postal services to bind the Nation together . . . ."⁵

My grandfather,⁶ a rural route postal carrier in New York, prided himself on this "sacred trust,"⁷ and spent his free time cataloguing its Page 404 ephemera. When he entrusted me with his stamp collection, American commemoratives and definitives⁸ beginning in 1847, its weight I attributed not only to the bulk of the book, but also to the idea that he was giving me something important: a connection to my past. Philatelists⁹ in all spheres, from mailmen to constitutional law professors,¹⁰ appreciate the succinctness with which American commemoratives chronicle our cultural icons, from Walt Whitman to the Cabbage Patch Kid (and lament the arrival of the inelegant self-adhesive stamp). The Postal Service both reflects our culture and sees itself reflected back in art,¹¹ poetry,¹² and music.¹³ So much so, that Page 405 even the United Nations protects postage stamps by including them in the definition of "cultural property."¹⁴ Postmen abound in the imagined worlds of childrens' television and toys,¹⁵ inculcating in new generations warm feelings for the Postal Service. It is remarkable that a federal agency could cultivate such affection among the citizenry.

But alas, this Note is more than a billet-doux to the Postal Service. In recent years the USPS has weathered some real storms, from "going postal"¹⁶to anthrax,¹⁷ and postal carriers have suffered a concomitant decline in status. This trend was apparent even twenty-five years ago. One mailman comments: Page 406

Postal servants . . . used to enjoy a status just a notch below the doctor, lawyer and minister. Abe Lincoln was proud to be postmaster of the little town of New Salem, Illinois. Being a postal worker was bonafide [sic] evidence of sterling character. But I am frank to admit that today public pride in the post office is not high.¹⁸

This Note discusses a new kind of slingshot aimed at the mailman: slip- and-fall tort claims against the government stemming from mail carriers' delivery of mail to addressees' porches. Improbably, such a fact pattern is the basis for a recent circuit court split over the meaning of the rarely controverted "postal matter" exception¹⁹ to the Federal Tort Claims Act ("F.T.C.A.").²⁰ Perhaps even more improbably, the split is slated for resolution by the United States Supreme Court in its October 2005 Term.²¹Specifically, this Note argues that the Third Circuit's decision in Dolan v. United States Postal Service²² correctly departs from the Second Circuit's decision in Raila v. United States²³ in protecting the government from increased USPS liability for personal injury. This conclusion is based on the courts' previous interpretations of the "postal matter" exception, the courts' consistently broad readings of other F.T.C.A. exceptions, the underlying purpose of the F.T.C.A., and the potential application of another F.T.C.A. exception. The most persuasive legal analysis, fortuitously, supports preserving a unique cultural institution. Page 407

II Background

A A Brief Retelling Of The Long History Of What Became The United States Postal Service; Or, Why The Usps Is Worthy Of Protection From The F.T.C.A

The present incarnation of the USPS was established in 1970 under the Postal Reorganization Act,²⁴ which converted the two-hundred-year-old federal agency called the United States Post Office Department²⁵ into a "hybrid entity" with characteristics of both a federal agency and a business.²⁶The USPS's origins, however, stretch back to colonial days: in 1639, the General Court of Massachusetts named Richard Fairbanks's Boston tavern the official holding station for mail to or from Europe, thereby creating what could be called the first early-American post office.²⁷ By 1683, a post road was established from Maine to Georgia.²⁸ The Continental Congress, in 1775, appointed Ben Franklin as its first Postmaster General,²⁹ and after the ratification of the Constitution, Congress, in 1794, permanently established the U.S. Post Office.³⁰ Postmasters hired letter carriers and paid them two cents for each letter they delivered.³¹

The USPS played an integral role in the development of the United States. President George Washington credited the Post Office with "diffusing a knowledge of the laws and proceedings of the Government" throughout the Union.³² Not only did the Post serve as an impetus for the development of roads, but postal contracts funded, to a significant degree, American technological advances in transportation.³³ It is difficult to imagine the Page 408 American folklore of westward expansion without the riders of the Pony Express.³⁴

When the Post Office headquarters moved from Philadelphia to Washington, D.C., in 1800, the entire operation could be carried in two horse-drawn wagons.³⁵ Today, the Postal Service handles 206 billion pieces of mail per year delivered to over 142 million addresses.³⁶ Each of its 300,000 mail carriers delivers approximately 2,300 pieces of mail per day to about 500 addresses.³⁷

Despite its longevity and central role in our nation's history, the postal system has faced serious challenges in recent years that potentially threaten its continued existence. Private expedited mail carriers like FedEx and UPS have forced the USPS to buy costly advertising to compete in the priority mail services market.³⁸ The anthrax incidents of 2001 followed on the heels of the USPS's second worst financial loss in its history.³⁹ Although the Postal Service has a government-sanctioned monopoly on "delivery of ordinary, first-class mail,"⁴⁰ alternative methods of information sharing, including fax and e-mail, have significantly decreased the Postal Service's first class business in the last decade.⁴¹ E-mail has quickly outpaced the Postal Service's handling of messages. E-mail users send nearly as many messages in a day as the USPS handles in a year.⁴² On this basis alone, some commentators have Page 409 forecasted that "snail mail"⁴³ may eventually "go the way of the Pony Express."⁴⁴ Even a USPS representative noted recently that "teens and people in their 20's . . . are typically doing business online and are...