Frederic Paul Smith v. United States Postal Service

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FREDERIC PAUL SMITH,
Plaintiff-Appellant,
v.
UNITED STATES POSTAL SERVICE,
Defendant-Appellee.
No. 17-35004
D.C. No. 1:16-cv-00126-SPW
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Submitted December 18, 2017**
Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
Frederic Paul Smith appeals pro se from the district court’s judgment
dismissing on the basis of sovereign immunity his action against the United States
Postal Service (“USPS”) alleging that a USPS employee stole a sapphire he sent
through the U.S. mail. We have jurisdiction under 28 U.S.C. § 1291. We review
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
DEC 28 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 17-35004
de novo. Harger v. Dep’t of Labor, 569 F.3d 898, 903 (9th Cir. 2009). We affirm.
The district court properly dismissed Smith’s action on the basis of
sovereign immunity because the waiver of sovereign immunity under 28 U.S.C. §
1346(b) does not apply to “[a]ny claim arising out of the loss, miscarriage, or
negligent transmission of letters or postal matter.” 28 U.S.C. § 2680(b); see also
28 U.S.C. § 1346(b) (waiving United States sovereign immunity for certain tort
actions); Dolan v. U.S. Postal Serv., et al., 546 U.S. 481, 487 (2006) (discussing
meaning of “loss” under § 2680(b)).
Contrary to Smith’s contention, the USPS did not waive its sovereign
immunity in its letter denying Smith’s administrative claim. See Gilbert v.
DaGrossa, 756 F.2d 1455, 1460 n.6 (9th Cir. 1985) (“A claim for damages against
a federal agency is barred by sovereign immunity unless Congress has consented to
suit.”).
We do not consider documents not presented to the district court. See
United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not
presented to the district court are not part of the record on appeal.”).
AFFIRMED.

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