Lebene Konan, a realtor and landlord in Euless, Texas, alleges that United States Postal Service employees have subjected her to a yearslong campaign of racial harassment. In a federal lawsuit she filed in 2022, Konan says that two postal workers “did not like the fact” that she, a Black woman, owned multiple properties and rented them out to white people. And so, beginning in May 2020, the USPS employees refused to deliver mail to her and her tenants. They changed the locks on her mailbox. They marked her mail undeliverable and returned it to the sender. They blocked her and her tenants from receiving doctor’s bills, medications, credit card statements, and more.
Frustrated, several tenants moved away, and took their rental income with them. In 2022, Konan sued the USPS under the Federal Tort Claims Act, alleging, among other things, tortious interference with prospective business relations and intentional infliction of emotional distress.
But on Tuesday, a divided Supreme Court ruled that Konan’s case cannot move forward. “The United States enjoys sovereign immunity and cannot be sued without its consent,” said Justice Clarence Thomas for the five-justice majority.
In dissent, the liberal appointees and Justice Neil Gorsuch contended that the United States did give its consent—in 1946, when Congress enacted the Federal Tort Claims Act. That law broadly waived sovereign immunity to allow people to sue the government if they’re injured by government employees.
One of the FTCA’s exceptions prohibits people from suing for claims “arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.” This carveout shields postal workers from liability if, for example, they accidentally drop a box containing glassware or misplace some correspondence from a pen pal. Yet in Postal Service v. Konan, Thomas used it to protect postal workers from tort lawsuits if they deny government services on the basis of race by intentionally withholding Black people’s mail.
Thomas argued that a “miscarriage” of mail refers not only to accidents, but to any situations in which mail does not arrive at its intended destination, “regardless of the carrier’s intent or where the mail goes instead.” Similarly, he said, “losses” of mail covered by the exception mean situations in which someone doesn’t get their mail, “regardless of how the deprivation was brought about.” According to the majority, limiting the words “loss” and “miscarriage” to unintentional conduct would have “no basis in the dictionaries or ordinary usage.”
As Fifth Circuit Judge Dana Douglas explained for the three-judge panel below (and as dictionaries do, in fact, confirm) this is simply not how ordinary people talk: There can be no “miscarriage” when “there was no attempt at a carriage,” and no “negligent transmission” when “the postal workers’ actions were intentional,” she wrote. Echoing Douglas, Justice Sonia Sotomayor wrote in dissent that “people lose their mail when it gets stuck behind a drawer, not when they intentionally throw it away.” Postal Service v. Konan runs away from the plain meaning of the text, and overrules the unanimous conclusion of the Fifth Circuit panel that “no one intentionally loses something.”
Congress created the postal exception because accidents are bound to happen, as USPS delivers over 100 billion pieces of mail per year. The word “loss,” as used in the statute, “plainly and sensibly denotes unintentional conduct, consistent with its ordinary meaning,” said Sotomayor. The Court’s decision in Postal Service v. Konan transforms that narrow exception into a sweeping allowance for intentional misconduct.
Thomas’s tortured reading of the FTCA cuts Konan off from recourse for tangible economic harm, all the while ignoring the incalculable indignity of racial discrimination by the government. And looking ahead, the Court’s decision may mean even more anti-democratic chaos. In 2008, a federal appeals court used the same rationale deployed by Thomas today to keep a political candidate out of court after a postal employee stole his campaign fliers, reasoning that mail “lost” to partisan theft was still “loss” within the meaning of FTCA’s postal exception. Elections are approaching in which millions of people plan to cast their ballots by mail. Thomas’s opinion puts that mail—and those voters—at risk.
