# Konan v. United States Postal Service

> District Court, N.D. Texas · January 19, 2023

URL: https://www.frixlaw.com/law-library/cases/10452338

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** January 19, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

United States District Court
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
LEBENE KONAN §
§
Vv. §
§
UNITED STATES POSTAL SERVICE, § CIVIL ACTION NO, 3:22-CV-0139-8
UNITED STATES OF AMERICA, §
RAYMOND “RAY” ROJAS, and JASON §
DRAKE §
MEMORANDUM OPINION AND ORDER
Before the Court are the Motion to Dismiss of Defendant United States of America [ECF
No. 15], the Motion to Dismiss of Defendant United States Postal Service [ECF No. 17], and the
Motion to Dismiss of Defendants Raymond “Ray” Rojas and Jason Drake [ECF No. 22]
(collectively, “Motions”). The Court has considered Plaintiffs First Amended Complaint [ECF
No. 7], the Motions, Plaintiff's Brief in Opposition to Defendant United States of America’s
Motion to Dismiss [ECF No. 19], Appendix to Plaintiffs Brief in Opposition to the United States
of America’s Motion to Dismiss Pursuant to FED, R. Civ. P. 12(b)(1) [ECF No, 20], Plaintiff's
Response to the Motion to Dismiss Filed by the United States Postai Service [ECF No. 21], Reply
in Support of Motion to Dismiss of Defendant United States of America [ECF No. 24], Plaintiffs
Surreply Brief in Opposition to Defendant United States of America’s Motion to Dismiss [ECF
No. 27], Reply in Support of Defendant United States Postal Service’s Motion to Dismiss [ECF
No. 28], Plaintiff's Response in Opposition to the Motion to Dismiss Filed by Defendants Rojas
and Drake [ECF No. 29], Reply in Support of Motion to Dismiss of Defendants Raymond “Ray”
Rojas and Jason Drake [ECF No. 30], and the applicable law. For the reasons set forth below, the
Court GRANTS the Motions.

I BACKGROUND
Plaintiff Lebene Konan brings this tort and discrimination action against Defendants
United States of America (“United States”); United States Postal Service (“USPS”); Raymond
“Ray” Rojas (“Rojas”), a mail carrier for USPS; and Jason Drake (“Drake”), a Postmaster for
USPS. See Plaintiff's First Amended Complaint (““Compl.”) [ECF No. 7] {ff 2-5. Plaintiff alleges
that Rojas and Drake (collectively, “Individual Defendants”), “acting in their capacities as
employees of the USPS{,]” intentionally withheld and refused to deliver Plaintiffs mail to two
residences she owned and leased to tenants in Euless, Texas (“Residences”). /d. | 49; see id. J] 13,
20, 23-25, 37-38, 49. According to Plaintiff, Rojas and Drake failed to deliver her mail because
“[t]hey do not like the idea that a black person owns the Residences, and leases rooms in the
Residences to white people.” Jd. 4 28.
Plaintiff alleges that the discrimination against her began when Rojas unilaterally changed
the lock on a mailbox belonging to one of her Residences, located at 1207 Saratoga Drive
(“Saratoga Residence”), without her permission. /d. { 13. Plaintiff claims that on information and
belief, Rojas did not change the iock on mailboxes belonging to any other residence owner on his
route or refuse to deliver mail to similar multi-family residences owned by “white people.” □□□
{ 16. Plaintiff states that on May 15, 2020, she went to the Post Office to inquire why the lock to
her mailbox was changed without notice or consent. Jd. § 17. Plaintiff alleges the personnel at the
Post Office advised her that USPS would not deliver any mail to the Saratoga Residence until its
ownership was “investigated by USPS’s Inspector General and conclusively established.” fd. 4 19.
While the Inspector General conducted the investigation over the next two to three months,
Plaintiff contends that no mail was delivered to the Saratoga Residence. /d. 420. Plaintiff claims
she lost expected rental income when several of her tenants moved out as a result. Jd. According

to Plaintiff, while the investigation ultimately concluded that Plaintiff owned the Saratoga
Residence and mail delivery temporarily resumed, Drake instructed Rojas and other employees
working under him “not to deliver any mail properly addressed to the Saratoga Residence unless
the individuals to whom mail was addressed at the Saratoga Residence first provided proof that
they were actually living there.” /d. J 21-23.
Plaintiff alleges that Rojas, with Drake’s encouragement, refused to deliver Plaintiff's mail
and some of her tenants’ mail, returning the mail to the Post Office where he had it marked as
“undeliverable.” Id. Jf 24-25. Plaintiff claims that she and some of her tenants did not receive
important mail addressed to them including “doctor’s bills, medications, credit card statements,
car titles and property tax statements.” { 24.
Plaintiff alleges that in April 2021, Rojas discovered Plaintiff owned another residence
located at 1116 Trenton Lane in Euless, Texas, and, with Drake’s support, started to withhold mail
addressed to this location as well. Jd. ۤ 37-38. Plaintiff alleges Rojas and Drake have engaged in
this behavior because she is African American. Jd. § 39. Plaintiff alleges she repeatedly advised
USPS of Rojas and Drake’s intentional misbehavior, but nothing has been done to correct the
situation. Id. 42. “To this day,” Plaintiff claims, “Rojas and Drake continue to refuse to deliver
properly-addressed mail to” both Residences. /d. { 48.
Plaintiff asserts common law tort claims against USPS pursuant to the Federal Tort Claims
Act, 28 U.S.C. § 2671, et seg. (“FTCA”), including nuisance, tortious interference with
prospective business relations, conversion, and intentional infliction of emotional distress. Id.
68-96. Plaintiff also asserts these claims against the United States because she contends the
United States “is liable to Plaintiff for the payment of’ damages under these claims. Id. {| 71, 76,

1 As discussed more fully below, some confusion has arisen as to whether Plaintiff also intends to allege her state-law
tort claims against Rojas and Drake.

83, 96. Against Rojas and Drake, Plaintiff asserts claims for denial of equal protection of the law
pursuant to 42 U.S.C. § 1981 and 42 U.S.C, § 1985. Jd. J 97-104.
USPS and the United States now move to dismiss for lack of subject-matter jurisdiction
under Federal Rule of Civil Procedure 12(b)(1). The Individual Defendants move to dismiss for
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and based on qualified
immunity.”
Il. LEGAL STANDARD
A. Rule 12(b)()
“Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by
statute, lack the power to adjudicate claims.” La. Real Est. Appraisers Bd. v. Fed. Trade Comm’n,
917 F.3d 389, 391 (Sth Cir. 2019) (quoting Texas v. Travis Cnty., 910 F.3d 809, 811 (Sth Ci.
2018)). Courts “must presume that a suit lies outside this limited jurisdiction, and the burden of
establishing federal jurisdiction rests on the party seeking the federal forum.” Howery v. Allstate
Ins. Co., 243 F.3d 912, 916 (Sth Cir. 2001).
A motion to dismiss under Rule 12(b)(1) is the vehicle through which a party can challenge
a federal court’s subject-matter jurisdiction. See FED. R, Civ. P, 12(b)(1). The district court may
dismiss for lack of subject-matter jurisdiction based on the complaint alone. Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001) (citing Barrera-Montenegro v. United States, 74 F.3d
657, 659 (5th Cir. 1996)). The court must accept all factual allegations in the complaint as true.
See Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (Sth Cir. 2001). If the

? The Court does not reach the Individual Defendants’ qualified immunity arguments because it finds dismissal of the
First Amended Complaint proper on jurisdictional grounds and under Rule 12(b)(6).

court determines that it lacks subject-matter jurisdiction, it must dismiss the action. FED. R. Civ.
P. 12(h)(3).
B. Rule 12(b)(6)
To defeat a motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6), a
plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Ail.
Corp. v. Twombly, 550 U.S. 544, 570 (2007); Reliable Consultants, Inc. v. Earle, 517 F.3d 738,
742 (Sth Cir. 2008), To meet this “facial plausibility” standard, a plaintiff must “plead[] factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court must accept well-
pleaded facts as true and view them in the light most favorable to the plaintiff. Sonnier y. State
Farm Mut. Auto. Ins., 509 F.3d 673, 675 (5th Cir. 2007). However, the court does not accept as
true “conclusory allegations, unwarranted factual inferences, or legal conclusions.” Ferrer v.
Chevron Corp., 484 F.3d 776, 780 (Sth Cir. 2007) (citation omitted). A plaintiff must provide
“more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555 (citation omitted). “Factual allegations must be enough to
raise a right to relief above the speculative level . .. on the assumption that all the allegations in
the complaint are true (even if doubtful in fact).” Jd. (citations omitted).
In ruling on a Rule 12(b}(6) motion, the court limits its review to the face of the pleadings.
See Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). The pleadings include the complaint
and any documents attached to it. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (Sth
Cir. 2000). The ultimate question is whether the complaint states a valid claim when viewed in the
light most favorable to the plaintiff. Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co.,
313 F.3d 305, 312 (Sth Cir. 2002). At the motion to dismiss stage, the court does not evaluate the

plaintiff's likelihood of success, It only determines whether the plaintiff has stated a claim upon
which relief can be granted. Mann v. Adams Realty Co., 556 F.2d 288, 293 (Sth Cir. 1977).
□□□ ANALYSIS
Plaintiff alleges four state-law claims: nuisance, tortious interference with prospective
business relations, conversion, and intentional infliction of emotional distress. Compl. ff 68-96.
She also asserts a “denial of equal protection” claim against the Individual Defendants, citing 42
U.S.C. §§ 1981 and 1985. fd. $4] 97-104. To the extent Plaintiff intended to allege her state-law
claims against the Individual Defendants, those claims fail because the FTCA does not provide a
jurisdictional basis for claims based on conduct falling outside the scope of a federal actor’s
employment or claims that name federal employees as defendants. The Court lacks subject-matter
jurisdiction over Plaintiff's state-law claims against USPS because, under the FTCA, the United
States is the only proper party to such claims. Plaintiff's state-law claims against the United States
fail for lack of subject-matter jurisdiction because they fall within the postal-matter exception to
the waiver of sovereign immunity under the FTCA. 28 U.S.C. § 2680(b). Plaintiff's constitutional
allegations against the Individual Defendants fail to state a claim upon which relief can be granted
because Sections 1981 and 1985 do not apply to federal actors and because Section 1985 does not
apply to individuals employed by the same legal entity.
A. FTCA Claims
The United States and its agencies generally enjoy sovereign immunity from suit. Block y.
North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287 (1983); United States v.
Mitchell, 463 U.S. 206, 212 (1983); In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 668
F.3d 281, 287 (5th Cir. 2012) (providing the government’s consent to be sued “is a prerequisite to
federal jurisdiction”). Absent a waiver of this immunity or consent to be sued, any suit brought

against the United States or any federal agency must be dismissed for lack of subject-matter
jurisdiction. See F.D.LC. v. Meyer, 510 U.S. 471, 475 (1994); Loeffler v. Frank, 486 U.S, 549, 554
(1988); Wagstaffv. U.S. Dep’t of Educ. , 509 F.3d 661, 664 (Sth Cir, 2007) (“[T]he absence of such
a waiver is a jurisdictional defect.” (quoting Lewis v. Hunt, 492 F.3d 565, 571 (Sth Cir. 2007)));
Chapa v. U.S. Dep’t of Justice, 339 F.3d 388, 389 (5th Cir. 2003) (“Sovereign immunity implicates
subject matter jurisdiction.”). The plaintiff bears the burden of showing a waiver of sovereign
immunity. Freeman v. United States, 556 F.3d 326, 334 (Sth Cir. 2009) (citation omitted).
The FTCA performs three main functions: it confers federal courts with exclusive
jurisdiction over state-law tort claims brought against the United States and its employees acting
in the scope of their employment, it designates suit against the United States as the exclusive
remedy for such claims, and it waives sovereign immunity from those claims, with certain
exceptions. The jurisdiction provision of the FTCA provides that:
[D]istrict courts ... shall have exclusive jurisdiction of civil actions
on claims against the United States, for money damages ... for injury
or loss of property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or
employment, under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with
the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1). Importantly, long-held precedent instructs that the phrase “the law of the
place” refers “exclusively to state law.” In re FEMA Trailer Formaldehyde Prod. Liab. Litig.
(Mississippi Plaintiffs), 668 F.3d 281, 287 (Sth Cir. 2012) (citing Brown v. United States, 653 F.2d
196, 201 (Sth Cir. 1981)). As such, the only “torts” contemplated by the FTCA are those arising
under state law.
The FTCA also “waives the United States’ sovereign immunity from tort suits” under 28
U.S.C. § 2674 and serves as “the exclusive remedy for compensation for a federal employee’s

_

tortious acts committed in the scope of employment” under 28 U.S.C. § 2674. McGuire v. Turnbo,
137 F.3d 321, 324 (Sth Cir. 1998). “To sue successfully under the FTCA, a plaintiff must name
the United States as the sole defendant.” Jd; see also Galvin v. Occupational Safety & Health
Admin., 860 F.2d 181, 183 (5th Cir. 1988) (“It is beyond dispute that the United States, and not
the responsible agency or employee, is the proper party defendant in a Federal Tort Claims Act
suit.”); see also Walters v. Smith, 409 F. App’x 782, 783 (Sth Cir. 2011) (“It is well established
that FTCA claims may be brought against only the ‘United States,’ and not the agencies or
employees of the United States.”).
i. Individual Defendants
The Court lacks subject-matter jurisdiction over Plaintiff's FTCA claims for nuisance,
tortious interference with prospective business relations, conversion, and intentional infliction of
emotional distress as to all Defendants, including the Individual Defendants. As a preliminary
matter, it is unclear whether Plaintiff meant to allege these claims against all Defendants or just
the United States and USPS. The Individual Defendants moved to dismiss only Plaintiff's
constitutional claim, asserting that no state-law claims are alleged against them. ECF No. 30 at 5.
In her Response to the Individual Defendants’ Motion to Dismiss, Plaintiff argues not only that
her claims against the Individual Defendants include torts governed by the FTCA, but also that the
Individual Defendants waived their immunity under the FTCA by declaring in their Motion to
Dismiss briefing that “Rojas and Drake are not arguing that Konan’s claims against them are
precluded by the immunity conferred in section 2679(b)(1).” ECF No. 29 at 6 n.2 (quoting ECF
No. 22 at 6 n.3.). Plaintiff avers that this “waiver” could allow her to “sue the federal employee
under any federal or state statute that may apply[.]” Jd at 7 n.4.

°

Assuming without finding that the First Amended Complaint plainiy manifests an intent to
allege state-law tort theories against the Individual Defendants, the Court finds that the quoted
sentence from the Individual Defendants’ Motion to Dismiss is not a waiver of immunity from
Plaintiff's state-law claims because the Individual Defendants did not move to dismiss those
claims. ECF No. 22 at 1. Rather, the Individual Defendants’ Motion to Dismiss, and any purported
waiver or concession contained therein, could only encompass the claim subject to the motion —
Plaintiff's constitutional claim — which has no relevance to Section 2679(b)(1) or any other FTCA
provision. Jd; Johnson v. Sawyer, 47 F.3d 716, 727 (5th Cir. 1995) (“[E]ven a violation of the
United States Constitution... is not within the FTCA unless the complained of conduct is
actionable under the local law of the state where it occurred.”).
Further, any state-law tort claims Plaintiff intended to assert against the Individual
Defendants must fail for lack of subject-matter jurisdiction regardless of whether or not the
Individual Defendants acted within the scope of their employment. The FTCA confers jurisdiction
over claims for tortious acts “committed in the scope of employment.” McGuire, 137 F.3d at 324.
Plaintiff raises alternative arguments in her Response suggesting that the Individual Defendants’
alleged conduct might fall outside the scope of their employment. See, e.g., ECF No. 29 at 16. If
the alleged conduct fell outside the scope of the Individual Defendants’ employment, the FTCA
would not cover Plaintiffs claims at all. Leleux v. United States, 178 F.3d 750, 757 (Sth Cir. 1999)
(citing Sheridan v. United States, 487 U.S. 392, 401 (1988) (interpreting statutory language of the
FTCA to conclude that “(t]he tortious conduct of [a federal employee], not acting within the scope
of his office or employment, does not in itself give rise to Government liability”). Without the
FTCA, Plaintiff's state-law tort claims do not “aris[e] under the Constitution, laws, or treaties of
the United States” for the purposes of 28 U.S.C. § 1331. The only other federal statute Plaintiff

cites as a jurisdictional basis for her claims is 39 U.S.C. § 409, which directs her claims back to
the FTCA, See § 409(c) (“The provisions of chapter 171 and all other provisions of title 28 relating
to tort claims shall apply to tort claims arising out of activities of the Postal Service.”). Thus, to
the extent the Individual Defendants’ alleged wrongful conduct falls outside the scope of their
employment, Plaintiff's state-law claims lack federal question jurisdiction.
Despite Plaintiff's exploration of the scope of employment issue in her Motion to Dismiss
briefing, she conceded on the face of the First Amended Complaint that, “fat all relevant times,”
the Individual Defendants “were acting in their capacities as employees of the USPS.” Compl.
49. By conceding that the Individual Defendants acted in their capacities as federal employees,
Plaintiff situated her state-law tort claims squarely within the ambit of the FTCA, which requires
her to name the United States as “the sole defendant.” McGuire, 137 F.3d at 324. “[T]he FTCA
does not provide a jurisdictional basis” for state-law tort claims naming federal employees as
defendants. Walters, 409 F. App’x at 784 (affirming dismissal of state-law tort claims alleged
against Veterans Affairs (VA) hospital and VA doctor for lack of subject-matter jurisdiction
because the FTCA only covers claims alleged against the United States and the plaintiff-appellants
offered no other basis for federal jurisdiction). Accordingly, even if Plaintiff had alleged her state-
law tort claims against the Individual Defendants, such claims could only survive in this Court as
FTCA claims alleged solely against the United States.
ii. USPS
Similarly, Plaintiff cannot pursue her state-law claims against USPS in this Court. Under
the FTCA, the United States is the sole party that may be sued for injuries arising out of the
negligent or wrongful act or omission of its employees. See 28 U.S.C. § 1346(b). USPS, as an
agency of the United States, may not be sued under the FTCA. Galvin, 860 F.2d at 183 (“It is

an

beyond dispute that the United States, and not the responsible agency or employee, is the proper
party defendant in a Federal Tort Claims Act suit.”); see also King v. U.S. Dep't of Veterans
Affairs, 728 F.3d 410, 413 n.2 (Sth Cir. 2013); Atorie Air, Inc. v. F.A.A. of U.S. Dep’t of Transp.,
942 F.2d 954, 957 (Sth Cir. 1991) (“All suits brought under the FTCA must be brought against the
United States.” (citation omitted)). Therefore, the Court lacks subject-matter jurisdiction over
Plaintiff's state-law claims against USPS.
ili. United States
The FTCA “waives sovereign immunity and permits suits against the United States
sounding in state tort for money damages.” Freeman, 556 F.3d at 335. “The FTCA subjects the
United States to liability for personal injuries caused by the negligent or wrongful act or omission
of any employee of the Government.” Metro. Life Ins. Co. v. Atkins, 225 F.3d 510, 512 (Sth Cir,
2000) (internal quotation marks and citation omitted). However, the FTCA exempts from this
waiver of sovereign immunity “[a]ny claim arising out of the loss, miscarriage, or negligent
transmission of letters or postal matter.” 28 U.S.C. § 2680(b). Thus, the United States may be
liable if postal workers “commit torts under local law, but not for claims defined by this exception.”
Doian v. U.S. Postal Serv., 546 U.S. 481, 485 (2006). When a claim falls within the statutory
exception to the FTCA’s waiver of sovereign immunity, the Court lacks subject-matter jurisdiction
to hear the case. See Cascabel Cattle Co., L.L.C. v. United States, 955 F.3d 445, 450 (5th Cir,
2020).
Plaintiff argues that her claims do not arise out of the “loss, miscarriage, or negligent
transmission of letters or postal matter” because she has alleged that USPS intentionally and
deliberately refused to deliver her mail. ECF No. 19 at 16-17. In her view, the “postal-matter
exception” apples only to negligent acts, not to intentional torts. See id. However, according to the

14

plain language of the statute, the word “negligent” modifies only the noun “transmission.” 28
U.S.C. § 2680(b). No such qualifier modifies the nouns “loss” or “miscarriage,” indicating an
intent to retain immunity for intentional acts of “loss” and “miscarriage” of “letters or postal
matter.” Jd.
The Fifth Circuit has not yet ruled on whether the postal matter exception applies to
intentional acts, but other courts have applied the exception in cases where the postal carrier
intentionally or purposefully failed to deliver mail. Levasseur v. USPS, 543 F.3d 23, 24 (1st Cir.
2008) (holding the exception barred claim alleging USPS employee had stolen or intentionally
hidden political campaign flyers to prevent flyers from being delivered to voters before the
election); C.D. of NYC, Inc. v. USPS, 157 F. App’x 428, 429 (2d Cir. 2005) (holding “theft of
parcels by a federal employee responsible for the supervision of mail... falls within the
exception”); Benigni v. United States, 141 F.3d 1167, 1998 WL 165159, at *1 (8th Cir. 1998)
(affirming dismissal of loss-of-mail claims against United States because postal-matter exception
barred suit for intentionally withheld mail); Valdez v. United States, 365 F. Supp. 3d 1181, 1185-
86 (D.N.M. 2019) (holding mail tampering and refusal to deliver mail claims were barred); Erlich
v. United States, No. 17-01245-RAJ, 2018 WL 3608404, at *4 (W.D. Wash. Jul. 26, 2018) (holding
temporary suspension of home mail delivery was barred by the postal-matter exception). The Court
finds the reasoning in the foregoing cases persuasive.
Plaintiff's allegations arise out of the “loss” and “miscarriage” of “letters or postal matter”
because they all relate to “personal or financial harms arising from nondelivery . . . of sensitive
materials or information (e.g., medicines or a mortgage foreclosure notice)” and other mail. Dolan,
546 U.S. at 489 (reasoning that Congress’s intent behind the postal-matter exception was to retain
immunity “for injuries arising, directly or consequentially, because mail either fails to arrive at all

or arrives late, in damaged condition, or at the wrong address,” since such harms relate to “the
Postal Service’s function of transporting mail” (emphasis added)). Plaintiff alleges that:

e She suffered loss of income after her tenants moved out because USPS continually failed
to deliver their mail. Compl. { 69.
e The mail delivery problems interfered with her ability to attract new tenants. fd. § 74.

e The Individual Defendants, acting in their capacity as employees of USPS, converted her
property by refusing to deliver, and retaining possession of, her personal mail. /d. {J 81-
82.
e She has suffered emotional distress and public humiliation because of USPS’s refusal to
step in and make Rojas deliver her mail to the Residences and because her tenants
“constantly bombard[]” her with questions about “why she cannot stop Rojas from
withholding and diverting their mail.” /d. {{] 88-89, 92-95.
All of these claims allege that Plaintiff suffered “personal! [and] financial harms arising
from nondelivery [of postal matter].” Dolan, 546 U.S. at 489. Thus, her FTCA claims against the
United States fall within the postal-matter exception and are barred by sovereign immunity.
B. Equal Protection Claim
Citing 42 U.S.C. §§ 1981 and 1985,3 Plaintiff alleges that the Individual Defendants
“conspire[ed] to deprive Plaintiff of her constitutional rights to equal protection of the laws and
the privileges and immunities guaranteed to her by the Fifth and Fourteenth Amendments to the
Constitution of the United States.” Compl. 30-31. Plaintiff's Section 1981 claim fails because the
plain language of the statute limits its applicability to violations occurring “under color of State
law.” Plaintiff's Section 1985 claim fails because Fifth Circuit precedent limits its applicability to
state actors and because the intracorporate-conspiracy doctrine bars Section 1985 claims against

3 Plaintiff also cites 28 U.S.C. § 2679(b)(2)(A), but that provision does not create an independent right of action. See
Hernandez v. Mesa, 140 8. Ct. 735, 748 n.9 (2020) (explaining that Section 2679(b)(2)(A} “is not a license to
create a new Bivens remedy in a context we have never before addressed”).

t9

individuals employed by the same agency. Therefore, Plaintiff fails to state a viable equal
protection claim.
i. 42US.C. $1981
Section 1981 states that “[a]ll persons within the jurisdiction of the United States shall have
the same right in every State and Territory . . . to the full and equal benefit of all laws and
proceedings for the security of persons and property as is enjoyed by white citizens.” 42 U.S.C.
§ 1981(a). Section 1981 also states that “[t]he rights protected by this section are protected against
impairment by nongovernmental discrimination and impairment under color of State law.” Jd.
§ 1981(c) (emphasis added). Plaintiff does not satisfy the “under color of State law” requirement
of a Section 1981 claim because, as she concedes in the First Amended Complaint, the Individual
Defendants were acting in their capacity as USPS employees, under color of federal law. Magassa
v. Mayorkas, 52 F.4th 1156, 1163 (9th Cir. 2022) (“There is simply no cause of action under § 1981
against federal actors[.]”); McCoy v. Zook, No. 3:20-CV-1051-B-BT, 2021 WL 811854, at *4 n.3
(N.D. Tex. Feb. 11, 2021) (noting that “[s]ection 1981 claims do not lie against federal actors”
(alteration in original) (citation omitted)), report and recommendation adopted, No. 3:20-CV-
1051-B (BT), 2021 WL 807249 (N.D. Tex. Mar. 3, 2021).4
Plaintiffs argument that “[flederal employees who commit criminal acts in furtherance of
their personal, nongovernmental, racially-motivated objectives are not acting within the scope of

4 While the Fifth Circuit has not expressly interpreted the plain language of Section 1981’s “under color of State law”
requirement, other Courts of Appeal have held that it excludes federal actors. Magassa, 52 4th at 1163 (9th Cir.
2022); Sindram v. Fox, 374 F. App’x 302, 304 Gd Cir. 2010) (“[Section 1981] does not protect against
discrimination under color of federal law.”); Nghiem v. U.S. Dep't of Veterans Affs., 323 F. App’x 16, 18 (2d Cir.
2009) (“[Section 1981] appl{ies] only to state actors, and not federal officials.”); Kimboko v. United States, 26 F.
App’x 817, 819 (10th Cir. 2001) (“[Section 1981] is inapplicable to alleged discrimination under color of federal
law.”); Davis v. U.S. Dep’t of Just., 204 F.3d 723, 725 (7th Cir. 2000) (“[Bly its language, § 1981 does not apply to
actions taken under color of federal law.”); Lee v. Hughes, 145 F.3d 1272, 1277 (11th Cir. 1998) (“Section 1981
provides a cause of action for individuals subjected to discrimination by private actors and discrimination under
color of state law, but does not provide a cause of action for discrimination under color of federal law.”).

4A

their federal employment” and are thereby engaged in “nongovernmental discrimination” is
unavailing. See ECF No. 29 at 11-12. Her First Amended Complaint states otherwise:

e “Most critically, USPS, through the actions of mailman Rojas and Postmaster Drake,
is intentionally destroying the value of Ms. Konan’s properties . . . by driving both
existing and prospective tenants away.” Compl. 4 47.
e “At all relevant times, Rojas the mailman and Postmaster Jason Drake were acting in
their capacities as employees of the USPS.” Jd. at { 49.
e “By virtue of the USPS’s intentional misconduct through employees Rojas and
Postmaster Drake, USPS has interfered with Plaintiff's ownership of the Residences
and greatly diminished their value to her.” Jd. at 7 69.
e “Defendant USPS, through Rojas and Drake, assumed and exercised dominion and
control over Plaintiffs property in an unlawful and unauthorized manner, to the
exclusion of and inconsistent with Plaintiff's rights[.] ... Defendant USPS has refused
to deliver and has wrongfully withheld mail addressed to Plaintiff.” Jd at [9 79, 81.

e “USPS, through mailman Ray Rojas and Postmaster Drake (and perhaps other of its
personnel), has deliberately subjected Plaintiff Konan to humiliating treatment over a
period of almost two years.” /d. at { 85.
Moreover, “[e]xtensive precedent makes clear that alleging a federal employee violated
policy or even laws in the course of her employment—including specific allegations of defamation
or of potentially criminal activities—does not take that conduct outside the scope of employment.”
Bolton y, United States, 946 F.3d 256, 262 (Sth Cir. 2019) (quoting Smith v. Clinton, 886 F.3d 122,
126 (D.C. Cir. 2018)), Accordingly, the Court holds that Plaintiff fails to state a claim under
Section 1981 against the Individual Defendants.
ii. 42 USC. § 1985
Plaintiff's Section 1985 claim against the Individual Defendants similarly fails to state a
claim upon which relief can be granted. Section 1985(3) imposes liability on two or more persons
who “conspire ... for the purpose of depriving . . . any person or class of persons of the equal
protection of the laws.” 42 U.S.C. § 1985(3). In Mack v. Alexander, the Fifth Circuit held that

yo

Section 1985(3) is inapplicable to federal actors. 575 F.2d 488, 489 (Sth Cir. 1978) (holding
Section 1985 “provide[s] a remedy for deprivation of rights under color of state law and does not
apply when the defendants are acting under color of federal law”). Plaintiff correctly states that, in
Canti v. Moody, the Fifth Circuit acknowledged criticism of Mack's holding for “failing to grapple
with Supreme Court precedent” in Griffin v. Breckenridge, 403 U.S. 88 (1971), which held that
Section 1985(3) reaches private conspiracies, 933 F.3d 414, 419 (Sth Cir. 2019), cert. denied, 141
S. Ct. 112 (2020) (noting that Mack’s holding has not “aged well”); see also Ziglar v. Abbasi, 137
S. Ct. 1843, 1865-69 (2017) (assuming that Section 1985(3) could apply to federal officials).
However, the Cantu court recognized that, ultimately, “[o]ur precedent holds § 1985(3) does not
apply to federal officers.” 933 F.3d at 419.
Even if Section 1985(3) did apply to federal actors, Plaintiff's claim also fails under the
well-established intracorporate-conspiracy doctrine, which precludes plaintiffs from bringing
conspiracy claims under Section 1985(3) against multiple defendants employed by the same
governmental entity. See Thornton v. Merchant, 526 F. App’x 385, 388 (5th Cir. 2013). According
to Fifth Circuit precedent, a governmental entity and its employees constitute “a ‘single legal entity
which is incapable of conspiring with itself.’” Jd. (quoting Benningfield v. City of Houston, 157
F.3d 369, 378 (5th Cir. 1998)). Here, the Individual Defendants are both employees of USPS.
Compl. €49. As such, Plaintiff cannot meet the Section 1985(3) requirement that the alleged
conspiracy involve “two or more persons” because, “where all of the defendants are members of
the same collective entity, the conspiracy does not involve two or more people.” Reynosa v. Wood,
134 F.3d 369 (5th Cir. 1997) (internal citations omitted).
Plaintiff's only arguments against the application of this doctrine are that the Individual
Defendants were not acting in their official capacities and that they were engaging in unauthorized

acts. ECF No. 29 at 23-24. However, as outlined above, the First Amended Complaint contradicts
her argument that the Individual Defendants were not acting “in the course of their official duties.”
Ziglar, 137 S. Ct. at 1867; see supra §§ ILA, U.B.i. And Plaintiff's “unauthorized acts”
argument is foreclosed by Fifth Circuit precedent. Tex. Democratic Party v. Abbott, 961 F.3d 389,
410 (5th Cir. 2020) (holding that the intracorporate-conspiracy doctrine applied to bar Section
1985 voter-intimidation claim where the plaintiff accused a state official of conspiring with his
employees to “issu[e] his threats”). Therefore, Plaintiff fails to state a claim under Section 1985.
IV. CONCLUSION
While “[t]he court should freely give leave [to amend] when justice so requires,” it need
not do so when amendment would be futile. See FED. R. Crv, P. 15(a)(2); DEC. v. Conner, 20
F.3d 1376, 1385 (Sth Cir. 1994), In determining whether amendment would be futile, the Court
considers whether “the amended complaint would fail to state a claim upon which relief could be
granted.” Stripling v. Jordan Prod. Co., 234 F.3d 863, 873 (Sth Cir. 2000), Plaintiff's FTCA claims
fail for lack of subject-matter jurisdiction because the FTCA does not provide a jurisdictional basis
for Plaintiff's claims against individuals or federal agencies and the United States has retained
sovereign immunity from such claims. Plaintiff's equal protection claim fails because the statutes
by Plaintiff do not apply to the Individual Defendants due to the nature of their employment—
the very means by which they were able to cause Plaintiff's alleged injuries. Such fundamental
defects go to “the core of [Plaintiff's] claims” and render them “clearly foreclosed by settled law.”
Ariyan, Inc. v. Sewerage & Water Bd. of New Orleans, 29 F 4th 226, 232 (Sth Cir.), cert. denied,
143 S. Ct. 353 (2022). Therefore, the Court finds that amendment would be futile and DISMISSES
WITH PREJUDICE Plaintiff's claims against all Defendants.

4-7

For the reasons stated above, the Court GRANTS Defendant United States of America’s
Motion to Dismiss [ECF No. 15], Defendant United States Postal Service’s Motion to Dismiss
{ECF No. 17], and Defendants Raymond “Ray” Rojas and Jason Drake’s Motion to Dismiss [ECF
No, 22].
SO ORDERED.
SIGNED January 19, 2023.

KAREN GREN SCHOLER
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10452338. Public record. Not legal advice.