May 15, 2025 | Volume 32, Issue 11
This Report summarizes opinions issued on April 22, 29, and 30, 2025 (Part I); and cases granted review on April 21 and 28, 2025 (Part II).
Opinions
Feliciano v. Department of Transportation, 23-861.
The “differential pay” statute “requires the government to make up the difference between a federal civilian employee’s military and civilian pay in various circumstances, including when he is called to active duty ‘during a national emergency.’” By a 5-4 vote, the Court held that the statute “guarantee[s] a reservist differential pay when he serves on active duty while a national emergency is ongoing”; the reservist does not have “to prove that his service bears a ‘substantive connection’ to a particular national emergency.”
Nick Feliciano worked for the Federal Aviation Administration and served as a reserve petty officer in the U.S. Coast Guard. In July 2012, Feliciano was ordered to active-duty service under 10 U.S.C. §12301(d) and remained in service until February 2017. Feliciano’s §12301(d) orders noted that he was called to active duty “in support of” several “contingency operation[s]” including Operation Iraqi Freedom and Operation Enduring Freedom. Throughout his active-duty service, Feliciano served onboard a Coast Guard ship escorting vessels to and from harbor. While Feliciano served on active duty, the government did not afford him differential pay. Feliciano sought relief from the Merit Systems Protection Board, which rejected his claims. He appealed to the Federal Circuit, arguing that two statutes entitled him to differential pay. First, 5 U.S.C. §5538(a) requires the government to provide differential pay to a federal civil employee reservist when the military orders him to active-duty service “under . . . a provision of law referred to in section 101(a)(13)(B) of title 10.” Section 101(a)(13)(B), in turn, “forms part of the definition” of “contingency operation.” A “contingency operation” includes a “military operation that . . . results in the call or order to . . . active duty of members of the uniformed services under [various provisions] . . . or any other provision of law during a war or during a national emergency declared by the President or Congress.” Feliciano argued that the final portion of §101(a)(13)(B) entitled him to differential pay. The Federal Circuit disagreed, holding that when a reservist seeks differential pay for service “during a national emergency” he must show two things: (1) that he served on active duty while a national emergency was ongoing and (2) that there was a substantive connection between his service and a particular emergency. The Federal Circuit held that because Feliciano had not made the second showing, he was not entitled to differential pay. In an opinion by Justice Gorsuch, the Court reversed and remanded.
The Court noted that the word “during” ordinarily “denotes a temporal link” and means “contemporaneous with.” The Court saw “no evidence” that Congress meant to define “during” in a specialized way in this context. The Court also found that “contextual clues” supported the ordinary meaning of “during,” which “does not generally imply a substantive connection.” First, the Court noted that when Congress has insisted on a temporal and substantive connection in other settings it has expressly done so, such as using the phrase “during and in relation to.” The Court also observed that the federal government and the Federal Circuit supplied competing standards to apply if the provision required a substantive connection. The former argued that the reservist must show he served in support of a contingency operation, while the latter applied a more demanding test of showing the reservist served directly in a contingency operation. The Court found it could not pick between the tests, as Congress had supplied “no principled way” to determine what substantive connection would be required.
The Court then pointed to other sources. When the Congressional Budget Office, which provides cost estimates to Congress, “scored” legislation featuring similar terms it based its cost calculations on “the total number of reservists on active duty,” “not those who are personally engaged in emergency-related duties.” And the Court noted that a reservist’s active-duty service during a national emergency “bolsters” the government’s capacity to address that emergency regardless of whether his service directly relates to the emergency. The Court rejected the argument that its interpretation would have negative policy consequences, such as requiring differential pay for reservists called up for training or for courts martial. The Court reasoned that it was up to Congress, not the courts, to change and effect policy.
Justice Thomas authored the dissent, which Justices Alito, Kagan, and Jackson joined. The dissent believed that a reservist is called to serve “during a national emergency” “only if his call comes in the course of an operation responding to a national emergency.” The dissent criticized the majority’s definition of “during” as causing “superfluity” in the statute. Justice Thomas said that if Congress had intended to include all operations requiring calls to active-duty service as occurring “during a national emergency,” the list of enumerated provisions in §101(a)(13)(B) would be superfluous.
Advocate Christ Medical Center v. Kennedy, 23-715.
Because low-income patients are often costlier to treat, the Medicare program directs the federal government to reimburse hospitals that treat a disproportionate share of low-income patients at higher Medicare rates. A hospital qualifies for higher payments in part based on the number of days that a hospital provides inpatient care to the needy aged, blind, and disabled, measured as those who “were entitled to supplementary security income [SSI] benefits.” 42 U.S.C. §1395ww(d)(5)(F)(vi)(I). By a 7-2 vote, the Court held that the phrase “entitled to supplementary security income benefits” means only patients who are eligible to receive an SSI cash payment for the month of their hospital stay. The Court thus adopted the federal government’s interpretation, which leads to lower Medicare payments, rejecting the hospitals’ argument that the phrase “encompasses all patients enrolled in the SSI system at the time of their hospitalizations, even if those patients were not entitled to an SSI payment during that month.”
To elaborate: “The Medicare program reimburses hospitals that provide inpatient services to Medicare beneficiaries.” For hospitals that treat a disproportionate share of low-income Medicare beneficiaries, Medicare adjusts the rate of reimbursement as an incentive for providing care to that population. The adjustment is referred to as the “disproportionate share hospital” (DSH) adjustment, which is the sum of two fractions, expressed as a percentage. This decision concerned only the numerator of the first fraction, which the Court referred to as the “Medicare fraction.” Section 1395ww(d)(5)(F)(vi)(I) defines the numerator of the Medicare fraction as the number of hospital days attributable to Medicare patients who “were entitled to [SSI] benefits . . . under subchapter XVI” of Chapter 7, Title 42, Social Security. A group of hospitals sued the Department of Health and Human Services (HHS), arguing in relevant part that HHS incorrectly interpreted the meaning of the phrase “entitled to [SSI] benefits” for purposes of calculating the DSH adjustment. HHS’s Provider Reimbursement Review Board and the Centers for Medicare & Medicaid Services both rejected the hospitals’ challenge and, eventually, so did the federal district court. The D.C. Circuit also rejected the hospital’s challenge. In an opinion by Justice Barrett, the Court affirmed.
The Court explained that to interpret the entitled-to-SSI-benefits phrase it must identify what is meant by SSI benefits. The Court concluded that SSI benefits in this context means a cash payment. It noted that §1381a describes the “basic entitlement” to SSI benefits in terms of “paid benefits,” and the word “paid” “obviously connotes a cash benefit.” The Court also found support for this interpretation in §1382(b). That provision describes the “benefit” under subchapter XVI as a specific dollar amount; the Court reasoned that a “benefit quantified in dollar amounts is plainly a cash benefit.” The Court found additional support in other provisions within and outside subchapter XVI.
The Court next observed that a person’s eligibility for the cash benefit under subchapter XVI is determined on a monthly basis. It reached that conclusion partly due to the references to month-based determinations in §§1382(c)(1) and 1382(j)(1)(B), which respectively state that a person’s eligibility is based on the person’s “income, resources, and other relevant characteristics in such month,” and that a person’s benefits terminate when the person has been “ineligible for benefits . . . for a period of 12 consecutive months.” For these reasons, the Court concluded that, for purposes of calculating the Medicare fraction, a person is “entitled to [SSI] benefits” if he or she is eligible to receive an SSI cash payment during the month of the person’s hospitalization.
The Court rejected the hospitals’ broad interpretation. Their interpretation would result in a greater number for the numerator because (1) the hospitals interpreted SSI benefits to include noncash benefits that were not determined on a monthly basis, and (2) they interpreted eligibility to mean rolling eligibility that required reapplication only after 12 consecutive months of ineligibility. The Court first reasoned that none of the noncash benefits identified by the hospitals, specifically vocational rehabilitation services and continued Medicaid coverage, “fits the description of a supplemental security ‘income’ benefit.” “[N]one . . . is housed ‘under subchapter XVI’”; and none of “subchapter XVI’s other references to vocational rehabilitation services confer an SSI benefit.”
The Court then rejected the hospitals’ (and dissent’s) rolling-eligibility argument. Although a person must disclose his or her income for the calendar year, the person’s calendar-year income “does not render [the person] eligible for SSI benefits” or “establish that SSI benefits operate in intervals with a duration longer than one month.” Nor does the fact that a person must reapply after 12 consecutive months of ineligibility suggest otherwise because §1383(j)(1)(B) “does not say that an individual remains eligible until this 12-month period has lapsed.” In addition, the Court rejected the hospitals and the dissent’s view that SSI benefits operated like an income-insurance program, explaining that SSI benefits do not provide “an ongoing backstop against unexpected costs,” as does insurance; rather, the benefits “operate as a welfare payment that directly subsidizes recipients’ income.”
The Court concluded that its opinion was not inconsistent with Becerra v. Empire Health Foundation, for Valley Hospital Medical Center, 597 U.S. 424 (2022). Although Empire Health similarly concerned the numerator of the Medicare fraction, it concerned a different phrase: “entitled to benefits under [Medicare] part A.” Thus, the Court explained, Empire Health “turned on the specific features of Medicare Part A” and not the “specific features of SSI benefits” at issue here.
Justice Jackson issued a dissenting opinion, which Justice Sotomayor joined. She wrote that the majority, by reducing the SSI benefit to “nothing more” than a monthly check, has fundamentally misunderstood how the SSI cash-benefit program works. She said that Congress had understood that income is “highly volatile.” “[T]o address the often debilitating state of low-income volatility,” Congress designed the cash-benefit program as a “safety net” for the low-income population. Justice Jackson opined that the cash-benefit program “operates just like income insurance.” Therefore, in her view, the “true” benefit of the SSI program is the guarantee that a person enrolled in it will have “an annual income above the federal minimum.” Or, put differently, the benefit is an enrollee’s “right to receive SSI payments when his income falls below the federal minimum” in any given month. To fulfill that guarantee, SSI makes up the difference when an enrollee’s income drops below the federal minimum in a particular month. Justice Jackson highlighted that, regardless of whether a check is needed or received in any given month of enrollment, the guarantee remains while a person is enrolled in the program. She accordingly faulted the majority for reducing the program’s benefit to a monthly check.
Justice Jackson also criticized the majority’s “myopic” monthly on-off, cash-based approach as being contrary to the “statute’s plain text.” First, she stated that §1382(a), which defines eligibility based on a person’s “calendar year” income, “plainly establishes that eligibility for SSI benefits operates on a longer time horizon than the majority acknowledges.” She noted that, under §1383(j)(1), once a person is enrolled, he or she does not have to reapply for benefits every month but rather remains eligible “until [his or] her income is too high for one full year.” Second, HHS’s requirement that applicants grant HHS authorization to automatically monitor their income for an undetermined period of time serves no purpose unless eligibility extends beyond a month. Third, Justice Jackson stated that the fact that “SSI benefits are paid on the first day of the month” makes rational sense only if eligibility is determined the prior month. She added that paying benefits is efficient and administratively feasible under her interpretation, allowing for the payment of money when needed and any necessary adjustments in payments based on continuous income monitoring. Finally, Justice Jackson asserted that the majority’s opinion conflicts with Empire Health. She said that the “majority view in Empire Heath fully appreciated the insurance-like nature of the Medicare program, and its reasoning applies full bore to the question” here.
Monsalvo Velazquez v. Bondi, 23-929.
Title 8 U.S.C. §1229c(b)(2) authorizes the federal government to delay detention and deportation of an undocumented alien for up to “60 days” to allow those of “good moral character” to leave the country on their own terms. By a 5-2 vote, the Court held that when this voluntary-departure deadline falls on a weekend or legal holiday, it extends to the next business day. And by a 5-4 vote, the Court held that it had jurisdiction to resolve the issue.
Hugo Monsalvo Velazquez came to the United States unlawfully over 20 years ago. Since then, he married, raised a family, and owns and operates a small business in Denver. In 2011, the Government began proceedings to remove Monsalvo from the United States. Ultimately, in 2019, an immigration judge found Monsalvo removeable but also eligible for voluntary departure; the judge gave him 60 days to leave the country. The last day of the 60-day period fell on a Saturday, so the judge specified that Monsalvo had until the following Monday to depart. Monsalvo appealed to the Board of Immigration Appeals. When that appeal was unsuccessful, he was given a new period of 60 days from October 12, 2021, to voluntarily depart the U.S. The Board warned him that he would face serious penalties if he overstayed the voluntary-departure deadline and advised him of his right to file a motion to reopen his removal proceedings if he believed he had new evidence that could alter the assessment of his case. Monsalvo filed a motion to reopen, which he sent to the Board by overnight delivery on Friday, December 10; the Board accepted the motion for filing on Monday, December 13, 2021. The Board denied that motion in part because the Board held that the motion to reopen was untimely. The Board interpreted the statute to refer to calendar days, which would have expired on Saturday, December 11, 2021. The Board reasoned that Monsalvo had failed to leave the United States or file a motion to reopen within the voluntary-departure period; now he was subject to the penalties the Board had previously warned. Monsalvo petitioned the Tenth Circuit to review the Board’s order. The Tenth Circuit agreed with the Board and held that the provision of removal granting “60 days” to depart voluntarily meant calendar days. Thus, he had violated the voluntary-departure period. In an opinion by Justice Gorsuch, the Court reversed and remanded.
The Court first addressed a newly raised jurisdiction question. Section 1252(a)(1) allows an individual to petition for judicial review of a “final order of removal” in the appropriate court of appeals. Such a petition supplies the exclusive means for obtaining “[j]udicial review of all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United States.” §1252(b)(9). The Government argued that the Tenth Circuit lacked statutory jurisdiction over Monsalvo’s petition under that provision. The Government did not dispute that the Board entered a final order of removal or that Monsalvo asked the court to review how long he had to depart before facing that removal. But, argued the Government, Monsalvo needed to challenge the merits of his “removability” for the circuit court to have jurisdiction over the timeliness question in the same petition. He did not do so, “press[ing] only a question about his voluntary-departure deadline.” The Court disagreed with the Government’s position. The Court found that §1252 authorizes courts to review final orders of removal and address “questions of law . . . arising from” them. The Court held that “pretty plainly” this language gives the courts the ability to review all the terms in a final order without qualification.
Turning to the question presented, the Court held that the term “days” in §1229c(b)(2) has a specialized meaning that extends deadlines falling on a weekend or legal holiday to the next business day. The Court recognized that the statute could be understood as having either the specialized meaning or the ordinary meaning, i.e., calendar days. But the Court found that “evidence” supported the specialized meaning commonly found in legal settings. The Court pointed to the ”longstanding administrative construction” of immigration laws and regulations, which have provided for calculating deadlines in the specialized way. The Court also noted that Congress had employed the same term “days” in the same section of the law. The maximum number of days for a voluntary departure is found in §304, and two other provisions in §304 “operate to roll a deadline falling on a weekend or legal holiday over to the next business day.” The Court found that if Congress used the term “days” in this manner twice, it is “all the more sensible to think a third provision in the same section does as well.” The Court further noted that the Government’s own regulations provide that regulatory deadlines defined in terms of days do not expire on weekends or legal holidays. In responding to the dissent, the Court said that while making a distinction between procedural rules and substantive duties may be a sound policy decision, no distinction can be found in the statute or regulatory background.
Justice Thomas wrote a dissent, which Justice Alito joined and Justices Kavanaugh and Barrett joined as to Parts I and II. Justice Thomas believed that the “novel jurisdictional objection” should have been remanded for the Tenth Circuit’s consideration; the Court should not have resolved it. In Part III, Justice Thomas wrote that if required to decide the jurisdictional issue, he would have concluded that the circuit court lacked jurisdiction because the term “final order of removal” refers only to the portion of the decision “that finds or orders removability, not the entirety of that decision.”
Justice Alito and Justice Barrett also wrote dissents, both of which Justice Kavanaugh joined. Justice Alito’s dissent also believed that the Court should have remanded the jurisdictional question to the circuit court to determine. On the merits, Justice Alito asserted that there was no reason for the term “days” not to have its ordinary meaning. He wrote that the justification for the specialized meaning of “days” has “no application where the task that must be accomplished may be done just as easily on any day of the week,” as opposed to deadlines for court filings.
Finally, Justice Barrett wrote to agree with Justice Thomas, but for a different reason. She maintained that the Tenth Circuit lacked jurisdiction to review the final order of removal because Monsalvo cannot seek judicial review “of his final order of removal while conceding that his final order of removal was lawful.” She found his decision not to challenge anything in the order except “how to count days” as dispositive for the jurisdictional question, without deciding how much of the final order is susceptible to review.
II. Cases Granted Review
The Hain Celestial Group v. Palmquist, 24-724.
The Court will resolve whether a district court’s final judgment must be vacated when it is later determined that a nondiverse party’s dismissal—a ruling that enabled removal of the case to federal court—was erroneous. Texas citizens Sarah and Grant Palmquist filed suit on behalf of their minor son, E.P., in Texas state court, naming as defendants Hain Celestial Group, a Delaware/New York citizen, and Whole Foods, Inc., a Texas citizen. The suit concerned a specific brand of baby food, which Hain manufactured, Whole Foods sold, the Palmquists purchased, and E.P. ate. Against Whole Foods, the Palmquists claimed negligence and breach of warranty. Hain removed the case to the U.S. District Court of the Southern District of Texas, asserting diversity jurisdiction and arguing that Whole Foods, while a nondiverse party, did not destroy diversity. Hain argued that Whole Foods had been improperly joined because the complaint did not assert a claim against it cognizable under state law for Texas generally barred seller liability. The Palmquists later amended their complaint: they added factual allegations and modified their breach-of-warranty claim to address the state seller-liability bar. They then moved to remand the case to state court. The district court denied the motion to remand and dismissed Whole Foods, finding the Palmquists had not asserted a cognizable state claim against it. The court applied the “time of filing” rule when it reached that conclusion and considered only the original complaint; it found in the alternative that the amended complaint suffered from the same pleading deficiency. The Palmquists’ case against Hain proceeded in federal court and—after lengthy discovery and litigation—concluded with a final judgment on the merits in Hain’s favor.
The Palmquists appealed. They argued (among other things) that the district court’s holding regarding Whole Foods was erroneous, and the erroneous dismissal deprived the district court of subject-matter jurisdiction. The Fifth Circuit agreed, concluding that the Palmquists had asserted a viable state claim against Whole Foods, which meant that Whole Foods had not been improperly joined. This meant diversity did not exist at the time of removal, and the district court did not have subject-matter jurisdiction when it entered the final judgment. The Fifth Circuit vacated the district court’s judgment, without considering its merits, and remanded the case to state court. 103 F.4th 294.
Hain asks the Court to reverse the Fifth Circuit’s decision vacating the district court’s final judgment. Hain relies heavily on Caterpillar, Inc. v. Lewis, 519 U.S. 61 (1996), which “held that the court of appeals should preserve the district court’s final judgment as to the parties that were completely diverse in order to avoid wasting judicial and party resources for the sake of finality.” Hain argues that the final judgment should be preserved because when the district court entered it the court had subject-matter jurisdiction. Hain maintains that there was jurisdiction because complete diversity existed between the parties that had participated in the litigation through final judgment, with Hain being a non-Texas citizen and the Palmquists being Texas citizens. Hain insists that, even if Whole Foods was erroneously dismissed, it was wrong for the Fifth Circuit to hold that this defeated jurisdiction. Rather, Hain says, the existence of complete diversity through final judgment cured any jurisdictional defect. Lastly, Hain opines that the Fifth Circuit’s holding “guarantees immense waste of judicial and party resources” for similarly situated parties to come. Hain notes that it and the Palmquists endured “two additional years of federal-court litigation and a two-week jury trial” following Whole Foods’ dismissal, only to have the Fifth Circuit hold that they now must repeat these proceedings in state court.
The Palmquists respond that the Fifth Circuit got it right because the district court did not have subject-matter jurisdiction at any time during the proceedings, including when it entered final judgment. They contend that Caterpillar is factually distinguishable. In Caterpillar, “the claims against the nondiverse defendant were settled and voluntarily dismissed,” whereas the Palmquists “never voluntarily withdrew their claims against Whole Foods, and the court neither dropped Whole Foods under Fed. R. Civ. P. 21 nor severed it from the rest of the case.” The Palmquists contend that a jurisdictionally curative act must be voluntary in nature. Specifically, they suggest that a plaintiff’s voluntary actions, such as withdrawing claims against the nondiverse defendant, may cure a jurisdictional defect but an “involuntary action, such as the opposed dismissal of a nondiverse party,” does not. They reason that involuntary dismissals by a court—such as the one in this case—are interlocutory decisions subject to change at any time before the entry of final judgment, which in turn means a nondiverse party’s joinder could be revived to defeat diversity jurisdiction. The Palmquists therefore maintain that the lack of diversity in this case had not been cured by the time final judgment was entered―a jurisdictional defect that requires vacatur and remand.
United States Postal Service v. Konan, 24-351.
At issue is whether a plaintiff’s claim that she and her tenants did not receive mail because Postal Service (USPS) employees intentionally did not deliver it to a designated address arises out of “the loss” or “miscarriage” of letters or postal matter within the meaning of the Federal Tort Claims Act (FTCA). The FTCA generally waives the United States’ sovereign immunity for suits seeking damages “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission” of an employee of the federal government “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). The FTCA, however, excepts from that waiver of immunity “[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.” 28 U.S.C. §2680(b). The question here is whether intentional acts are included in that exception to the waiver.
Respondent Lebene Konan is the owner of several properties where she rents individual rooms to tenants. Konan alleges that two USPS employees intentionally refused to deliver mail to two of those properties because she is a black landlord renting rooms to white tenants. One USPS employee changed the designated owner of one of Konan’s properties to one of her white male tenants and changed the mailbox lock so Konan could not access it. When Konan complained, the USPS Inspector General confirmed she owned the property and ordered the mail to be delivered. The local postmaster, however, continued to encourage his subordinates to ignore the order and to not deliver mail. The local USPS “harassment campaign” continued, and they refused to deliver mail to two of Konan’s addresses and resisted her attempts to retrieve her mail in person. Konan filed this suit against USPS and the two employees in federal district court, asserting claims under the FTCA against USPS and the United States (collectively, USPS), including for nuisance, tortious interference with prospective business relations, conversion, and intentional infliction of emotional distress. She alleges that each of her claims arises from intentional misconduct by USPS employees in refusing to deliver mail to her and her tenants. The district court granted the USPS’s motion to dismiss for lack of subject-matter jurisdiction. The court held that Konan’s claims “fall within the postal-matter exception to the waiver of sovereign immunity under the FTCA” because they arose from the “loss” and “miscarriage” of postal mail. The district court rejected Konan’s argument that the postal exception applies only to negligent acts, not intentional torts. The Fifth Circuit reversed. 96 F.4th 799.
The Fifth Circuit first held that Konan’s claims do not involve a “loss” of mail because the mail was “not destroyed or misplaced by unintentional action.” Because “there are no allegations that Konan’s mail was destroyed or that it was misplaced by unintentional action,” her “claims cannot be characterized as a ‘loss.’” Second, the court of appeals held that Konan’s claims do not arise from a “miscarriage” of mail. The court stated that “[w]here USPS intentionally fails or refuses to deliver mail to designated addresses, and never mistakenly delivers the mail to a third party, the mail is not ‘miscarr[ied],’ as it was not carried at all.” Finally, the court concluded that “the postal workers’ actions were intentional and thus” could not “constitute a ‘negligent transmission’” within the meaning of the exception.
USPS argues that the Fifth Circuit incorrectly interpreted the postal exception and the ordinary definitions of the terms “miscarriage” and “loss.” USPS maintains that at the time Congress enacted the postal exception the ordinary meaning of “miscarriage” was the “[f]ailure (of something sent) to arrive” and “[f]ailure to carry properly.” And it argues that at that time, “loss” was known to be “that of which anything is deprived or from which something is separated, usually unintentionally and to disadvantage.” USPS believes the statute’s reference to “loss” is Konan’s loss of her mail, not USPS’s loss of the mail. Thus, it reasons, Konan lost her mail regardless of the cause. USPS believes it should win under either theory, because Konan’s claims are both a “loss” of her mail and a “miscarriage” of delivery regardless of whether it was the result of intentional acts. USPS also notes that the exception expressly applies to “negligent transmission,” but Congress did not include a negligent qualifier for “miscarriage” and “loss” of mail. USPS thus concludes that Congress intended to cover all losses of mail regardless of intent.
Konan disagrees and argues that USPS’s intentional refusal to deliver her mail was neither a “loss” nor a “miscarriage” by the plain meaning of each word. Under her interpretation, “loss” is an “unintentional parting with something of value.” And she disagrees with USPS’s focus on “loss” as her loss, rather than USPS “losing” the mail. She submits that she cannot lose mail she never had, and that the statute speaks to whether the USPS lost the mail. Konan also argues that USPS’s overbroad definition of “miscarriage” swallows “loss.” She submits that the Fifth Circuit got it right when it said there can be no “miscarriage” where there is no attempt to “carriage” or carry the mail. Finally, Konan states that Congress could have used “sweeping language” to preserve immunity for “any claim arising out of the mail handling activities of USPS,” but it did not; thus, she says, intentional acts are not exempt from the FTCA.
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Lauren Campbell, Supreme Court Fellow
- Gracynthia Claw, Supreme Court Fellow
The views and opinions of authors expressed in this newsletter do not necessarily state or reflect those of the National Association of Attorneys General (NAAG). This newsletter does not provide any legal advice and is not a substitute for the procurement of such services from a legal professional. NAAG does not endorse or recommend any commercial products, processes, or services.Any use and/or copies of the publication in whole or part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in the publications.
