RECOMMENDATION REGARDING DEFENDANT'S MOTION TO DISMISS

CRAIG B. SHAFFER, Magistrate Judge.

INTRODUCTION

This matter comes before the court on the Motion to Dismiss [Doc. 17] filed by the United States ("Defendant"). The motion was referred to the Magistrate Judge by Order of Reference dated December 2, 2014. [Doc. 19]. Plaintiff filed a letter in response to the motion on March 16, 2015. [Doc. 24]. For the following reasons, the court recommends that Defendant's Motion to Dismiss be granted.

BACKGROUND

Plaintiff filed a small claims "Notice, Claim and Summons to Appear for Trial" in Arapahoe County Court alleging $450.00 in damages against Linda Delancy, the Postmaster of the Tower Station in Centennial, Colorado. [Doc. 1-1]. The complaint alleged that Defendant Delancy sent Plaintiff's son's green card to Plaintiff's previous address "even after the Post Office was notified of [Plaintiff's] change in address." Id. Plaintiff further alleged that the green card was lost and, consequently, he had to pay $450.00 to order a new card. Id. Defendant Delancy removed the action to this court on October 24, 2014. [Doc. 1]. Thereafter — because Defendant Delancy was acting in her official capacity at the time the alleged incidents occurred — the United States was substituted as the sole Defendant for all claims in the complaint. [See Doc. 6 (motion to substitute) and Doc. 10 (order granting motion to substitute)]. Defendant has now filed a motion to dismiss based on a lack of subject matter jurisdiction.1 [Doc. 17].

DISCUSSION

A. Standard of Review

Federal courts, as courts of limited jurisdiction, must have a statutory basis for their jurisdiction. See Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994) (citing Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994)). Pursuant to Federal Rule of Civil Procedure 12(b)(1), the court may dismiss a complaint for lack of subject matter jurisdiction. The determination of a court's jurisdiction over subject matter is a question of law. Madsen v. United States ex rel. U.S. Army, Corps of Eng'rs, 841 F.2d 1011, 1012 (10th Cir. 1987). "A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).

A motion to dismiss for a lack of subject matter jurisdiction may take two forms. See Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). It may facially attack a complaint's allegations or it may challenge the facts upon which subject matter jurisdiction depends. Id. at 1002-1003.

Id. at 1003 (internal citations omitted); see also Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987). "The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction." Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).

B. Exclusive Jurisdiction of the Postal Regulatory Commission

Plaintiff's complaint has alleged a customer service related claim arising out of Defendant's alleged failure to deliver Plaintiff's son's green card to the proper address. [See Docs. 1-1 and 24]. The court, however, lacks jurisdiction to adjudicate this claim because a postal customer's exclusive remedy for unsatisfactory service lies with the Postal Regulatory Commission. As the United States Court of Federal Claims explained in Naskar v. United States, 82 Fed. Cl. 319 (2008):

Naskar, 82 Fed. Cl. At 322 n.1; see also Bovard v. U.S. Post Office, 47 F.3d 1178 (10th Cir. 1995) (Table), 1995 WL 74678, at *1 (affirming that "[t]he language of section 3662 makes clear that a postal customer's remedy for unsatisfactory service lies with the Postal [Regulatory] Commission, and that Congress did not intend to create a private right of action for service complaints"). Accordingly, Plaintiff's action should be dismissed for lack of subject matter jurisdiction.

C. Sovereign Immunity

The United States, as sovereign, may only be sued if it consents. United States v. Dalm, 494 U.S.596, 608 (1990). "Such waiver of sovereign immunity must be strictly construed in favor of the sovereign and may not be extended beyond the explicit language of the statute." Fostvedt v. United States, 978 F.2d 1201, 1202 (10th Cir. 1992). In the absence of a waiver, the court does not have jurisdiction over a plaintiff's suit against the United States. See Dolan v. U.S. Postal Serv., 546 U.S. 481, 484-85 (2006). "Under the Postal Reorganization Act, 39 U.S.C. § 101 et seq., the Postal Service is `an independent establishment of the executive branch of the Government of the United States.'" Id. at 483-84. "Consistent with this status, the Postal Service enjoys federal sovereign immunity absent a waiver." Id. at 484.

In turn, the Federal Tort Claims Act (FTCA) — which applies to tort claims arising out of activities of the Postal Service — waives the federal government's immunity from tort suits. See 28 U.S.C. §§ 2671-80. However, the FTCA includes a number of exceptions, one of which pertains to postal operations, specifically "[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matters." 28 U.S.C. § 2680(b). See Dolan, 546 U.S. at 487 (under § 2680(b), "mail is `lost' if it is destroyed or misplaced and `miscarried' if it goes to the wrong address"). And the Tenth Circuit has recognized that once items are delivered to the Postal Service, they become "postal matters" within the meaning of § 2680(b). Georgacarakos v. United States, 420 F.3d 1185, 1186 (10th Cir. 2005) (concluding that the plaintiff's claims fell within the waiver exception because "[o]nce mailed, the [lost] books and manuscript became `postal matters'").

Here, Plaintiff alleges that Defendant "miscarried" his son's green card when it delivered the green card to the wrong address. See Dolan, 546 U.S. at 487. Assuming that Plaintiff's complaint could be construed as a tort under the FTCA, his claim would be subject to the exception in § 2680(b). Consequently, Plaintiff's claim is also barred by sovereign immunity.

D. Failure to Exhaust Administrative Remedies

In an abundance of caution, Defendant also argues that Plaintiff has failed to exhaust his administrative remedies under the FTCA. See 28 U.S.C. § 2675(a) (an action "shall not be instituted upon a claim against the United States for money damages for . . . loss of property . . . 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, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency"); see also Barnes v. United States, 776 F.3d 1134, 1139 (10th Cir. 2015) ("The administrative-exhaustion requirement applicable to FTCA claims `bars claimants from bringing suit in federal court until they have exhausted their administrative remedies.'") (quoting McNeil v. United States, 508 U.S. 106, 113 (1993)).

As Defendant points out — and Plaintiff does not dispute — Plaintiff did not present an administrative claim seeking damages for the acts alleged in his complaint. See Declaration of Hal vonHedemann (Doc. 17-1 at ¶ 4). Therefore, this is a third basis for granting Defendant's motion to dismiss.

CONCLUSION

WHEREFORE, for the foregoing reasons, the court RECOMMENDS that Defendant's Motion to Dismiss [Doc. 17] be GRANTED and that this case be dismissed with prejudice.

ADVISEMENT TO THE PARTIES

Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. Once Parcel of Real Prop. Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district court of the magistrate judge's proposed findings and recommendations and will result in waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court's decision to review a magistrate judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); One Parcel of Real Prop., 73 F.3d at 1059-60 (a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve the issue for de novo review by the district court or appellate review); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the magistrate judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the magistrate judge's ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).