No cause of action under Federal Torts Claims Act for emotional distress based on mistaken information about son's death in Iraq

Back in December of 2009, I reported on a newspaper article on a mother who was considering suing the US Government for the emotional distress she suffered when a mix-up resulted in the delivery of a message to her saying her son had died while in the military in Iraq.  What happened was that she sent her son a letter and the US Postal Service returned it undelivered and stamped "DECEASED."  Not having been informed that her son had died, this caused the mom emotional distress.  The mom asked the USPS for more information but it was not helpful and eventually, using other resources, she found out her son was alive.

Back when I heard this story, I wrote that the viability of the case would depend on whether the argument was based on negligence or intent and whether the alleged conduct was by the military or the postal service.

I never heard what happened after that until today when I saw the blog Day on Torts recently reported the case has been decided. 

The case was dismissed by the trial court and the United States Court of Appeals for the Eighth Circuit affirmed.

I understand the dismissal of the intentional infliction of emotional distress claim, since the FTCA is pretty clear that the US is immune from intentional torts [there are exceptions, but they would not apply to a case like this one].  But I thought the negligence claims might present an interesting issue, particulary if the defendant was the Postal Service because of the FTCA's exception regarding "postal matters."  More on that later.

Perhaps not too surprisingly, the government tried to avoid liability by asking the court to reinterpret the claims to be based on an intentional theory of liability - even if the plaintiff did not argue them that way.  Thus, it argued that the case was really about "misrepresentation" and that "the FTCA's waiver of sovereign immunity does not apply to "[a]ny claim arising out of . . . misrepresentation," 28 U.S.C. § 2680(h). 

This argument is nonsense.  Given the text of the statute, the misrepresentation it refers to must be intentional.  By definition, this misrepresentation requires a showing of intent, which means voluntary conduct with desire to cause harm or with knowledge to a substantial certainty that the conduct would cause harm.  I doubt that is what happened here.  The fact the information is false, or wrong, does not make the conduct misrepresentation, it just makes the information false.
To its credit, however, the court of appeals did not address this issue and decided the case on the basis of the other question presented by the case:  whether the claim should be dismissed because the FTCA does not allow any claims "arising out of the loss, miscarriage, or negligent transmission of letters or postal matter," 28 U.S.C. § 2680(b).

This is more interesting and debatable.  What happened here was that the USPS delivered a letter that had incorrect information.  The letter was not lost, or miscarried, so that part of the statute is out.  The question is whether delivering a letter with incorrect information constitutes "negligent transmission" of the letter.

Personally, I don't find that interpretation convincing but I don't know if there are other cases out there supporting it.  In my mind, negligent tranmission of letters refers to delivering it late, delivering it to the wrong address or something like that. 

But the main problem I see with the case, is that I am not sure the plaintiffs really identified the proper conduct upon which to base their claim.  It seems to me the conduct that caused the injury was not the delievery of the information, but the negligence in figuring out whether the soldier was dead before returning the letter.  The question is whether going through that process is part of what Congress had in mind when it wrote "miscarriage or negligent transmission of" letters. 

I guess the argument for the government is that the process of stamping letters with the "undeliverable" stamp is part of "handling" the mail and thus should fall within the text of the statute.  Here some postal worker mishandled the letter when he or she used the wrong stamp before he or she put it in a pile of undeliverable letters. 

I can see that argument, but before I decide whether I am convinced by it, I'd like to know more about the policy and actual practice of the USPS for determining when to use the stamp that says DECEASED in red ink.

The case is Najbar v. United States, No. 10-3015 (8th Cir. Aug. 12, 2011) and it is available here.


Thanks to Day on Torts for the update and link.