United States Postal Service et al. v. Konan
Oral argument transcript · No. 24-351 · October Term 2025 · argued October 8, 2025 · the petitioner won
Our full case page and synced audio · Official transcript (PDF) · Argument audio at the Supreme Court
Advocates
- Frederick Liu, Assistant to the Solicitor General, for the petitioner
- Easha Anand, Menlo Park, California, for the respondent
Transcript
From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.
Chief Justice Roberts: We'll hear argument next in Case 24-351, United States Postal Service versus Konan. Mr. Liu. ORAL ARGUMENT OF FREDERICK LIU ON BEHALF OF THE PETITIONERS
Frederick Liu: Mr. Chief Justice, and may it please the Court: The postal exception to the Federal Tort Claims Act preserves the United States' immunity for any claim arising out of the loss, miscarriage, or negligent transmission of mail. Respondent alleges that her mail didn't reach its destination because postal employees intentionally withheld the mail and returned it to sender. That allegation falls within the postal exception for two reasons. First, Respondent alleges a miscarriage of mail. When Congress enacted the FTCA in 1946, "miscarriage" had a specific meaning in the mail context. It meant the failure of something sent to arrive or to be carried 1 properly. Indeed, pre-FTCA decisions used "miscarriage" to describe the facts alleged here, mail that wasn't delivered because it was intentionally returned to sender. Second, Respondent alleges the loss of mail. Her own complaint uses the word "loss," and she doesn't dispute that she alleges a loss for purposes of the FTCA's sovereign immunity waiver. There's no reason to give "loss" a different meaning in the postal exception. In fact, the presumption of consistent usage, contemporaneous dictionaries, and pre-FTCA decisions all support reading "loss" to have the same meaning. Respondent's claims, therefore, satisfy two out of the postal exception's three prongs, which is no surprise given that "loss" and "miscarriage" were understood to be overlapping terms when Congress enacted the FTCA. Respondent's contrary view that her claims satisfy none of the exception's prongs can't be reconciled with that historical understanding or with Congress's belt-and-suspenders approach to protecting postal operations from disruptive damages 1 suits. I welcome the Court's questions.
Justice Thomas: Mr. Liu, what would we -- what should we do if we find ourselves in equipoise on this?
Frederick Liu: Well, I -- I would hope because -- I would hope that the -- there were enough votes that there was a judgment as to whether the facts here fall within the exception, even if there's some disagreement about which particular prong it fell in, and that that bottom-line judgment would control the disposition.
Justice Thomas: Do we give any special weight because this is a waiver of sovereign immunity?
Frederick Liu: Well, this Court in Dolan rejected the notion that the exception should be interpreted differently because it implicates a waiver of sovereign immunity. We haven't taken issue with that here. We do think, if there is a tie-breaker sort of canon at play, it is the canon that rules that govern jurisdictional issues -- and sovereign immunity, of course, is a 1 jurisdictional issue -- that those rules should be made as simple as possible. And, in our view, we've submitted the most simple rule. It's simply the rule this Court articulated on page 4 -- 489 of Dolan, which is that injuries arising directly or consequentially from the mail not arriving at all or from the mail arriving late or damaged or to the wrong address, fails to get to the right address, that those are the types of injuries that are covered and it doesn't extend any further.
Chief Justice Roberts: But loss doesn't typically convey -- I mean, technically, I suppose it can -- malfeasance involved. I mean, if I say I lost my car, people aren't going to think somebody stole his car. They're going to think I forgot where it was or -- or something like -- like that. In other words, it doesn't say something bad has happened other than, you know, your own, you know, fact of paying attention to something. If somebody said I lost my -- I lost the mail, I -- I would not think necessarily -- I wouldn't think right away somebody stole it.
Frederick Liu: Well, our -- our submission, Mr. Chief Justice, isn't that "loss" necessarily encompasses malfeasance or intentionally conduct -- intentional misconduct, just that it can refer to it. And -- and we know it can refer to -- to both intentional or unintentional conduct because, for one thing, Congress used it that way. In Section 1346(b)(1), which is F -- the FTCA's principal provision, the provision that Respondent has to get through just to be able to assert a claim, Congress used the phrase "loss of property" and then made clear that those losses encompass deprivations caused intentionally or negligently by federal employees.
Justice Gorsuch: But, Mr. Liu, if you agree that "loss" doesn't generally refer to intentional actions and, as the Chief Justice said, generally doesn't refer to them, but we all admit it can, what do we do with negligent transmission? Why bother with that if loss covers that? There's a lot of surplusage in -- in your reading of this statute.
Frederick Liu: So --
Justice Gorsuch: Not just with "loss" but with "miscarriage" too for that matter. So help me out.
Frederick Liu: Yeah. So I'm happy to go through it. With respect to your specific question about any overlap between "loss" and "negligent transmission," we don't think there's any overlap there. We think "loss" covers any deprivation, outright deprivation, of mail, just I didn't get the mail, and "negligent transmission" covers I did get the mail, but I got it late or I got it damaged. So we don't think there's any overlap there. You're right that there is overlap in other parts of -- of --
Justice Gorsuch: Like "miscarriage."
Frederick Liu: "Miscarriage." And -- and -- and we think what Congress presumably was thinking --
Justice Gorsuch: Maybe with "negligent transmission" too if transmission might include something more than it -- it arrived, if it means it didn't arrive through negligence, it wasn't fully transmitted properly.
Frederick Liu: That's why we need --
Justice Gorsuch: So there's -- there's -- there is still surplusage there too, honestly, I think, but -- but certainly with "miscarriage."
Frederick Liu: Well, the -- the way I would --
Justice Gorsuch: And -- and if we have any presumptions about statutory interpretation, it's generally to try and give effect to each of these words, right?
Frederick Liu: That -- that's right, but I think, in this case, you know, the Court has said that's not the be all/end all. And I think, in this case, it would be wrong to apply the -- the surplusage canon here because we know what the historical meanings of these words were in 1946. Judicial decisions like the opinion by -- by Judge Cardozo on the New York Court of Appeals used these change -- used some of these terms interchangeably.
Justice Gorsuch: All right.
Frederick Liu: He referred --
Justice Gorsuch: I'll let you go with this one then. If we're going to go back to 1 1946 --
Frederick Liu: Yeah.
Justice Gorsuch: -- there was a big distinction between, gosh, I mean, boy, between "miscarriage" and "detention," right? And this doesn't strike me as a miscarriage case in 1946. This strikes me as a detention case in 1946. If we're going to play -- go back -- and I'm -- we should.
Frederick Liu: Yeah.
Justice Gorsuch: It was an important case, but this doesn't strike me as miscarriage. If we're going to go to 1946 under your regulations, it's -- it's a detention case.
Frederick Liu: Well, two responses to that. I think, just as a definitional matter, there's a difference between "miscarriage" and "detention." Miscarriage implies that something bad happened to the mail. Detention might be a perfectly appropriate thing to do to the mail. The second point I'd make -- and this goes to the historical usage -- is that there are cases, and we cite them on page 7 of our 1 reply brief, where mail getting stuck at the post office, i.e., being detained at the post office, is referred to a miscarriage. That's the Cardozo case. There, the mail got stuck behind a radiator at the post office. And the way Judge Cardozo described it was that the -- the checks in the mail had miscarried for that reason.
Justice Jackson: So --
Justice Kavanaugh: Mr. Liu, Justice Gorsuch raises an important point about the surplusage. On the other hand, I guess Congress often drafts things to be redundant and overlap, and ordinary people communicate that way, particularly when they're giving instructions to. So both, you know, Congress would much rather have overlap than leave a hole.
Frederick Liu: Exactly. And I think there are two strong --
Justice Kavanaugh: But how do we know -- but, at the same time, we do have the surplusage --
Frederick Liu: Right.
Justice Kavanaugh: -- canon. I mean, 1 the Eskridge book says it's often unrealistic. The Scalia book says, you know, sometimes drafters do repeat themselves and do include words that add nothing of substance. And I think that's right, but how do we tell --
Frederick Liu: Yeah. I -- I --
Justice Kavanaugh: -- which is which?
Frederick Liu: -- I think, here, there are three clues as to why Congress embraced a belt-and-suspenders approach. One is the historical ordinary meaning and understanding of these terms. If you look at the dictionaries and the dictionaries that existed in 1946, these are overlapping terms, and Congress included them in this statute anyway. The second point I'd point to is the way -- the way Congress approached the intentional tort exception, which is in 2680(h). There, Congress used overlapping terms. It included both "deceit" and "misrepresentation," even though, as this Court pointed out, in page -- Footnote 16 of Neustadt, deceit encompassed all kinds of misrepresentation. That was the understanding 1 in the Restatement (First) of Torts. And the last thing I'd point to is the importance that Congress attached to the postal exception. This was not an afterthought exception. This was an exception that was in the earliest drafts of the FTCA. It's the very second exception listed. And you can understand why, in 1946, when writing a letter was the only way to communicate in writing, that Congress would have wanted to protect that postal function.
Justice Sotomayor: Counsel, let -- let's assume that your definition of "miscarriage" -- because this is what I'm assuming -- you define it as a failure to carry the mail properly. Then "loss" to me and "negligent transmission" are redundant and useless. Congress knew in the customs duties -- custom-handling exception, which we looked at in Kosak, how to write a very broad exception that covered everything, intentional and unintentional conduct, but it didn't. It chose very particular words here. And so let me give you some examples 1 I'm troubled by, why they would have imagined that intentional malfeasance would be accepted by this. By the way, I think intentional malfeasance often will be covered by a different exception in the FTCA. In some -- in many, some are discretionary. In others, they're outside the scope of employment. There's a lot of other exceptions that cover a lot of the intentional misconduct. But I'm troubled by this: A postal worker refuses to deliver any mail-in ballots from a county he associates with a certain political view, or, on Election Day, the postal worker postmarks some ballots but not others because he's favoring one side or another. This is a miscarriage, isn't it?
Frederick Liu: Yes.
Justice Sotomayor: Okay. So that's exempted. What about when a postal employee writes harassing messages on an individual's piece of mail every day that he delivers it?
Frederick Liu: I don't --
Justice Sotomayor: You are a thief. 1 You're a baby killer. Whatever other harassing messages you want. That's a miscarriage. He's not carrying the mail properly.
Frederick Liu: I'm struggling with that because the -- there's -- there's not really anything bad that's happened to the mail in the sense that the mail is getting there on time. It's getting there. The contents are -- are not damaged. It's getting to the right address.
Justice Sotomayor: But he's not carrying it properly, is he?
Frederick Liu: Well, I -- I -- I -- I think, when -- when it's being carried properly, it's referring to the duty that -- the duty of carriage that the post office has to both the sender and the recipient.
Justice Sotomayor: And -- and that includes not letting the mail intentionally be damaged. You've got to --
Frederick Liu: Yeah, I think that -- I think that would be the key question --
Justice Sotomayor: All right. How about when -- how about a postal --
Frederick Liu: -- in that hypothetical, whether you could count that as damage.
Justice Sotomayor: How about when a postal employee refuses to take a person's mail in a rural community? There's a post office there. There's -- he's supposed to do it. But he forces her to drive 30 minutes one way to a post office who will take her mail.
Frederick Liu: If -- if it's a situation where the sender has dropped off the mail and the post office --
Justice Sotomayor: No, don't -- don't qualify it. He just doesn't like this person, refuses --
Frederick Liu: Oh. No, no, we don't -- if the mail hasn't entered the mail system --
Justice Sotomayor: Well, it's there.
Frederick Liu: No.
Justice Sotomayor: But he's refusing to take it to her. That's a miscarriage according to your definition.
Frederick Liu: I don't think so because I think this implicates the line that this Court drew --
Justice Sotomayor: Counsel, you're 1 fighting the hypotheticals because you recognize, I think, that inherent in using the word "negligent transmission" there is a sense that Congress is using this as a verb to start with and that Congress is looking at these situations in their generally accepted terms. As Justice Gorsuch said, generally, we think of loss as negligence. Miscarriage, in all the cases you cite, they all involved non-intentional conduct except for one, which was a case 50 years before which really didn't have to do with miscarriage. It was a claim between newspapers or a newspaper claiming that the post office should have selected it to transmit a message and not someone else. And so, even in that case, it wasn't really a miscarriage of the advertisement. It was a failure-to-deal case. So I guess I'm having a problem with your starting proposition, which is that these terms have to encompass both intentional and unin- -- or negligent conduct.
Frederick Liu: Yeah. So, with the unintentional -- unintentional line, I would make three quick points. 1 One is that if you look at the traditional legal authorities, we look at the evidence of common usage at the time of 1946, none of those authorities draw a line between intentional and unintentional. That's true of the dictionaries. That's true of the decisions. We cite on page 9 a number of decisions that use "miscarriage" intentionally, to refer to intentional conduct. Later in our reply brief, we have examples of --
Justice Sotomayor: If all of those cases could be distinguished, do you lose?
Frederick Liu: I don't think so. I mean, you know, we cite a decision involving loss that involves a postal employee stealing the mail. I can't think of anything more willful than that.
Justice Sotomayor: Well, that would be outside the scope of his duties, so that would be exempted under a different exception.
Frederick Liu: Well, but I think it still goes to what the ordinary meaning of "loss" was at the time. Maybe another part of the FTCA 1 would kick it out, but our point is that "loss" had a settled historical meaning and it covered intentional conduct.
Justice Kagan: So, Mr. Liu, I mean, this is "loss" in a particular context. So there are three things, basically, that the Postal Service can do to your letters that we're not going to allow you to sue about, so here are the three things. They can negligently transmit your letters, and we're not going to allow you to sue about that. Or they can lose your letters, lose your letters there, definitely not intentional. It's like you lost your keys, you lost your pen, they lost your letters. We're not going to allow you to sue about that. And then there's this "miscarriage" word that's stuck in the middle of them that's kind of like, ooh, what does that mean? They miscarried your letters. It seems kind of a weird word. But I think I agree with you when you said these are supposed to be overlapping and there's -- it's not a big deal if there's some 1 redundancy here. I think that this is -- if you look at this statement, it's kind of words are known by the company they keep. On one side, they're losing your letters. On the other side, they're negligently transmitting your letters. And on the other side, they're miscarrying your letters. And miscarrying basically has the same kind of meaning, which is they did something mistakenly with respect to your letters. And that's the way that seems most natural to me to read this sentence.
Frederick Liu: And I would say a few things in response. One is I think that noscitur intuition works only if you -- as I think your premise of your question did -- buy in that "loss" refers only to unintentional conduct. We think that contradicts the meaning of "loss" in the FTCA's sovereign immunity waiver, and there's really --
Justice Kagan: Yeah, I don't think that that's an argument that works because, if you look at the sovereign immunity waiver, it's using "loss" in an entirely different way and 1 context. It says the district court shall have jurisdiction over claims for injury or loss of property or personal injury or death. So there, "loss" is functioning as just, like, one of a number of different kinds of harms that a person can suffer and bring suit about. But this is, like, losing your mail. That's what this is about. And when you lose your mail, you don't, like, destroy your mail or tear up your mail or purposefully put them in the trash chute. You lost your mail. They lost your mail. The Postal Service lost your mail. Sorry, you can't sue about that.
Frederick Liu: But I -- I -- I think -- I think that setup reveals one of the debates, is who -- who lost what. I think it is quite natural to say that Respondent lost her mail. Indeed, she uses that same phrase -- phraseology in her --
Justice Kagan: Oh, this has got to be, Mr. Liu, that the post office is doing these things. The post office is negligently transmitting, the post office is miscarrying, and the post office is losing your mail. And 1 notwithstanding that the post office did all those things to you, you can't sue.
Frederick Liu: I -- I don't think -- I don't think there's a reason to shift perspective from the waiver to the exception. I think --
Justice Kagan: You're -- you're -- these are three parallel terms. You're shifting perspective from "loss" as opposed to "miscarriage" or "negligently" -- or "negligent transmission." These three terms are the terms that have to be read in parallel form. The post office is doing these three things to your mail, and you can't sue about any of them.
Frederick Liu: Well, Your Honor, I think the better way to read them is that these are three harms, just as, in the waiver, "loss" -- "loss" is paired with injury in the waiver. "Loss" is paired here with two other types of more specific terms that describe injury to mail, i.e., "miscarriage" and "negligent transmission." Your Honor suggested that if you translated them into verbs, there's some parallel structure. That's actually not true. 1 I mean, no one in 1946 would have said the government miscarried the mail. The mail never took the government or the postal worker as its subject. The mail -- when "miscarry" is used as a verb, it takes the mail as its subject.
Justice Jackson: Okay. But, Mr. --
Frederick Liu: And that's -- and that's because, for -- for a reason Respondent points out on Footnote 19 of her brief, "miscarriage" is an intransitive verb. Just as you wouldn't say the government arrived the mail --
Justice Jackson: Mr. --
Frederick Liu: -- so too you wouldn't say the government miscarried it.
Justice Jackson: I'm sorry. Go ahead.
Frederick Liu: And so there really is nothing to be gained from trying to convert these nouns into verbs. There is no single --
Justice Jackson: Okay.
Frederick Liu: -- consistent way you can do it.
Justice Jackson: So, if I accept -- if I accept that textual reading and I also even start by accepting your argument that the 1 Postal Service -- or the postal exception immunizes intentionally caused losses and miscarriages, those harms happening to people could be intentional -- let's say I start there.
Frederick Liu: Right.
Justice Jackson: I guess I don't understand why all of Ms. Konan's claims here would be immunized under that exception. She has four claims here --
Frederick Liu: Correct.
Justice Jackson: -- only potentially one of which it seems to me even relates to the failure of her mail to arrive as the gravamen of her claim. The way we think about torts is people are bringing claims alleging that wrongful conduct or, you know, negligent conduct by the defendant is a breach of duty of care that has harmed them or breached -- breached a duty that harmed them. And I guess what I'm suggesting is that she's got claims here that really aren't about the loss of the mail, right? So they're not key to the failure of her mail to arrive. So the intentional infliction of emotional 1 distress claim, for example, seems related to her claim that postal employees carried out a campaign of racial harassment with respect to how they treated her mail. And, yes, we have the "my mail never arrived" as an allegation, but that's not her claim when it comes to intentional infliction of emotional distress. So I'm wondering why, even if you're right, she doesn't get to go forward on at least that claim.
Frederick Liu: So we think this is an issue that can be left on remand. Our -- the principle we're trying to vindicate here is simply the legal standard.
Justice Jackson: Mm.
Frederick Liu: And I don't think the Court really needs to --
Justice Jackson: So you're not saying that Postal Service knocks out her IIED claim?
Frederick Liu: We're not asking the Court to decide that.
Justice Jackson: Okay.
Frederick Liu: I think that's an issue that can be left for remand. On remand, we will make that argument.
Justice Jackson: Okay.
Frederick Liu: And we'll also make the argument that Respondent has forfeited any -- any contention that all her claims --
Justice Jackson: All right. So going to the -- going to the particular argument of the -- a claim -- assuming she has a claim in her complaint that actually is about the mail not arriving, as opposed to her IIED claim or her tortious interference claim -- those seem like they're talking about other things -- I guess I go back to Justice Sotomayor's suggestion that your argument indicates that Congress would -- would have intended to immunize a Postal Service worker who tears up a person's rent check or, you know, Social Security check in front of them on their porch right there intentionally. So it didn't -- you know, it doesn't get delivered. And you're saying, yes, that's in the exception?
Frederick Liu: Yeah. And I don't think that should come as a surprise. Congress immunized all sorts of intentional conduct in the FTCA's exceptions. So, in the intentional tort exception, it immunized assault and 1 battery and misrepresentation.
Justice Jackson: Yeah, but there has to be a reason that makes sense. And so they -- the whole thing is Congress -- the FTCA is Congress authorizing tort claims to be brought against the government. This is an exception. And so the exception kind of has to make sense.
Frederick Liu: Yeah.
Justice Jackson: And I guess what I'm trying to figure out is why Congress would have -- we understand why Congress would have wanted to immunize negligent loss of the mail, miscarriage. First of all, that happens all the time.
Frederick Liu: Right.
Justice Jackson: And you could imagine a rational Congress saying we just can't run a post office if everybody whose mail, you know, catalogue didn't get delivered can sue us, so we're not going to allow that. That makes perfect sense. What is hard to get one's mind around is, in a statute in which Congress was authorizing tort liability, that a classic 1 scenario in which the mail is actually being intentionally damaged, lost, not delivered, they also meant to --
Frederick Liu: Yeah.
Justice Jackson: -- to take that off the table.
Frederick Liu: So two -- two points. One is that Respondent's rule is so broad in how it determine -- how it identifies intentional that it would encompass not just the willfully malicious hypos that Your Honor gave but also routine application of postal regulations. Every day, the Postal Service intentionally withholds mail either because it can't identify the addressee, because it thinks a residence is vacant, because it thinks the mail --
Justice Jackson: I understand, but the question is how do -- which -- which overbroad rule are we going to go with? You're saying, because that's the case, we should allow the tear-up scenario to occur, that Congress could have wanted that. And I don't -- I guess I don't understand why we --
Frederick Liu: Well, that -- that gets to 1 my next point --
Justice Jackson: Yeah.
Frederick Liu: -- which I think, as to the egregiously willful conduct, Congress -- if I may finish, Mr. Chief Justice -- Congress made the same judgment in the postal exception as it did in -- in the intentional tort exception and, indeed, some of the other exceptions that -- that are far broader than the postal exception, which is that these damages suits aren't a good way for identifying who the bad actors are. It may well be that there are allegations that something willfully wrong happened. We're going to want to present evidence to refute that. It's going to be burdensome to the post -- Postal Service and -- and -- and to other parts of the government. And Congress didn't think this was the right way to go about identifying those cases.
Chief Justice Roberts: Thank you, counsel. Justice Thomas? Justice Alito?
Justice Alito: Well, as for the 1 possible reason for immunizing intentional conduct, the answer that I took from your brief was that allowing that would open the door to too many lawsuits and it would undermine the immunization for the negligent transmission of the mail. So I don't get my Christmas cards until three weeks after Christmas, and I can't sue on the ground that it's negligent, but if I say, well, the -- the delivery person doesn't like me for one reason or another, it was intentional, and then I'm in -- I'm in court.
Frederick Liu: Yeah. No, that -- that's true. I mean, we're talking about over 300 million pieces of mail delivered a day. We get over 300,000 complaints about the conduct of letter carriers a year. If -- if even 1 percent of those complaints results in a lawsuit, the number of suits that the Postal Service faces each year is going to quadruple. And as Your Honor's question suggests, things like intent are easy to allege and hard to disprove. It may well be at the end of the day we're going to be able to show that some alleged instance of intentional misconduct was, indeed, just a mistake. But, at that point, 1 we've defeated the purpose of having an immunity from suit, which was to relieve the Postal Service of the burden of having to take postal -- postal workers away from their day-to-day jobs and force them to become witnesses in court.
Chief Justice Roberts: Justice Sotomayor?
Justice Sotomayor: Counsel, you are forgetting, however, that there's a requirement of good-faith allegations. Merely saying someone dislikes me is not enough, correct?
Frederick Liu: That's right, and I think --
Justice Sotomayor: Now, putting that aside, so much else is -- as I pointed out, would be exempted by other provisions, correct?
Frederick Liu: I -- I don't think a lot of -- any of the other provisions is really going to address this problem, especially the -- the -- Congress's preference for these suits to be -- for this immunity to be an immunity from suit.
Justice Sotomayor: I go back to they could have said very simply anything having to do with mail delivery is out. But they used 1 something different than they did in customs.
Frederick Liu: Oh, but, to be clear, our position isn't that the exception should be read any broad -- more broadly than the Court read it in Dolan. Dolan -- the Court in Dolan limited the exception.
Justice Sotomayor: No, no. But -- but what else wouldn't be covered? Even in Dolan, I'm not sure how, accepting your definition of "miscarriage," we could have ruled the way we did and placed any limitation, because placing a package on the porch, not near the door, or on a step is a failure to properly carry the mail. You're supposed to deliver to the recipients and not to a porch step.
Frederick Liu: No. We -- we read Dolan to -- to say that these three terms -- and the Court described them as harms on page 490 -- these three harms are harms in the sense that they are bad things that happen to the mail. And I think the -- what the line the Court was drawing in Dolan is that if you're alleging a bad thing that happens to someone around the mail or just to something else, 1 you're outside the scope of the exception. But what's clearly within the exception are bad things that happen to mail. It doesn't arrive or it arrives, but it's damaged or it's late. And all we're saying is that's our simple rule. There's no more fine-grained analysis about why the mail didn't get there.
Justice Sotomayor: Thank you.
Chief Justice Roberts: Justice Kagan? Justice Gorsuch?
Justice Gorsuch: Briefly, not to belabor the point, Mr. Liu, but just following up on Justice Sotomayor's point. Would these three terms as you read them cover the waterfront of anything having to do with deliver the mail, so the government is effectively totally immunized, intentional, non-intentional actions in the delivery of the mail?
Frederick Liu: It would immunize us only as to bad things that happen to the mail --
Justice Gorsuch: And --
Frederick Liu: -- not as to auto accidents --
Justice Gorsuch: No, I understand 1 your Dolan point, but putting aside the Dolan point, in the -- in the delivery of mail, it would immunize everything?
Frederick Liu: Correct.
Justice Gorsuch: Okay.
Frederick Liu: So long as we're not including in delivery what the Court rejected in Dolan.
Justice Gorsuch: Dolan, yeah, okay. Isn't it an odd way to do it, though, to have three terms rather than just to say that?
Frederick Liu: I don't think so because these were the terms that was in the vocabulary in 1946. And if you compare the terms here to the terms of the -- of the waiver, all Congress is doing is coming up with two words, "miscarriage" and "negligent transmission," to -- to describe injury to mail. It's covered loss of mail by using the word -- same word, "loss," and now it --
Justice Gorsuch: I understand the point. Thank you. Appreciate it.
Chief Justice Roberts: Justice Kavanaugh?
Justice Kavanaugh: On Dolan, it's got a pretty straightforward sentence summarizing what it thought the rule would be. I mean, what -- deviating from that, what do you -- response? Should we -- what -- what concerns would you have about deviating from what the Court said in 2006?
Frederick Liu: Well, I think it would be a sea change in how the government has approached the postal exception from the very outset. The -- the way the Court described it in Dolan was to capture bad things that happen to mail and to leave the United States open to liability for other things, including slip-and-falls and auto accidents. And when you look at the composition of the cases that the Postal Service faces each year, it's about 900 cases. About 800 of them are about auto accidents, and another 70 or so are about slip-and-falls, and then there's a smaller category of other. But I think, if you look at that composition of cases, you would say the postal exception is working exactly how Congress intended. The main core function that I was 1 discussing with Justice Gorsuch is protected. And these other types of injuries that aren't about bad things happening to the mail are allowed to go forward in these lawsuits. I think, if you accept Respondent's rule, which would be to disregard the rule articulated in Dolan, we're into a universe, as Justice Alito suggested, where we're going to be faced with, I think, a ton of suits about mail. And they're not all going to be bad faith. They're going to be plaintiffs who simply aren't in a position to know what happened to their mail and they're just not going to give the government the benefit of the doubt. They're going to infer that their mail didn't arrive because of a rude comment that they heard or -- or what have you. And that's going to lead to discovery, a trial on what actually happened to that mail, which we think is going to be quite burdensome.
Justice Kavanaugh: Thank you.
Chief Justice Roberts: Justice Barrett? Justice Jackson?
Justice Jackson: In the case -- in 1 the cases that you just described, though, isn't that the work of Iqbal and Twombly in terms of the government's response? I mean, there -- if a plaintiff is just saying my mail -- the claim is my mail didn't arrive, that was harmful to me, I'm suing the post office, that seems to be heartland postal exception. I don't think anybody disagrees with that. But, if there's some allegation about intent with respect to the mail's not arriving, I would think there would have to be plausible allegations that there was some intent on the part of the post office and it would -- the delivering person and, surely, the government would not concede to go to trial over that issue just because the person says in their complaint my post -- postal worker intended not to deliver it to me.
Frederick Liu: That -- that -- that's true. We -- we -- we certainly would file a motion to dismiss.
Justice Jackson: So the real, like, worry is in these, I would assume, rare cases. I mean, I can't imagine that the postal workers 1 are, you know, actually actively, intentionally withholding people's mail on a regular basis. So I just don't know how many cases we're talking about here.
Frederick Liu: Well, that -- that's part of the point I was making before. The -- as a matter of routine, the Postal Service intentionally hold -- withholds people's mail for all sorts of legitimate reasons.
Justice Jackson: Well, that's an easy defense then. I mean, there it is. And it's not intentional in the sense of a harm.
Frederick Liu: It's an easy defense --
Justice Jackson: Yeah.
Frederick Liu: -- once we've had discovery. It's not an easy defense when we're trying to fight off a complaint because, from the outside, that intentional withholding can easily be mistaken for something else.
Justice Jackson: All right. Let me ask you about a hypothetical because I -- I'm looking at your "miscarriage" definition and you define "miscarriage" as the fail -- failure of a mail -- the mail to arrive and you say even intentionally caused failures to arrive 1 would be covered. So let's say we have a mother who regularly writes her son who's in the military, and a postal employee maliciously, intentionally, and repeatedly returns her mail as undeliverable and stamps Deceased on it. Could she sue for intentional infliction of emotional distress under those circumstances? You're saying your case doesn't cover intentional infliction of emotional distress.
Frederick Liu: Right. I -- I don't -- I -- I think the postal exception would deem that as a miscarriage of mail. And, in fact, there are cases, believe it or not, from 1946 and before where an erroneous message is delivered, like Deceased.
Justice Jackson: Yeah.
Frederick Liu: And the plaintiff wants to recover consequential damages for that. And I think that is -- that is the heartland of -- of what --
Justice Jackson: Even -- even though she also meets the elements of IIED under those circumstances, that this is an extreme and 1 outrageous intentional act that causes her emotional distress? You're saying this would -- this -- even though that's a separate claim, it's not really about what happened to the mail, you're saying that would be covered? That's what I'm worried about with Ms. Konan.
Frederick Liu: Right. Well, the -- the -- this implicates a different part of the postal exception. And the language of the postal exception begins "any claim arising out of the loss, miscarriage, or negligent transmission." And if the damages, the injuries being asserted, the emotional distress arises out of --
Justice Jackson: Yeah, but I think you would have a Dolan problem if you did this. We'll -- we'll -- we -- I -- I'll figure it out. Thank you.
Frederick Liu: Okay. Thank you.
Chief Justice Roberts: Thank you, counsel. Ms. Anand. 25 1 ORAL ARGUMENT OF EASHA ANAND ON BEHALF OF THE RESPONDENT
Easha Anand: Mr. Chief Justice, and may it please the Court: Three things I want to highlight about the government's presentation. First, they did not dispute that no ordinary speaker of English would ever say Rojas lost Ms. Konan's mail. Now they point to 1346(b). That is specifically worded differently. The question there is did the government employee cause the loss. That's not how 2680(b) is worded. Second, the government has produced exactly zero examples, no cases, no books, no newspaper articles, of miscarriage of mail being used by an everyday speaker of English to describe wrongful conduct on the part of the postal worker, that is, postal workers choosing to put the package in the wrong place, not just intentional in the sense of I put it on the doorstep, it didn't fall out of my bag, but I thought it was at the right doorstep, right? We've never said, the Fifth Circuit's never said, no one has ever said that that is not a miscarriage but in the sense of wrongful, 1 which is our test for miscarriage. Third, my friend didn't dispute that on the government's reading, the term "miscarriage" renders both the term "loss" and the term "negligent transmission" entirely superfluous. So he says belt and suspenders. This is like not just two terms that have some overlap, but it's like belt and belt buckle, they're two terms that are completely overlapping. And even if we interpreted statutes that way, the government story for why Congress would do this makes no sense, right? If Congress is worried about "miscarriage" somehow being under-inclusive, it's worried about "miscarriage" only covering the negligence stuff, right? We give an unbroken string of examples from Henry the VIII, oh, negligence fit for a fool to fall by, to romance novels, to cases. Everyday speakers of English use "miscarriage" to refer to negligent conduct. And so, if you wanted a belt-and- suspenders "miscarriage," the term you add in is not "negligent transmission." It's something to do with wrongful conduct. 1 I welcome the Court's questions.
Justice Thomas: What do you do with Mr. Liu's argument that the waiver of immunity did not include things -- bad things that happen to the mail? He said that generally. And that Dolan, because it wasn't about bad things happening to the mail, was outside the waiver of immunity?
Easha Anand: So I think that's just a --
Justice Thomas: I'm sorry, was included in the waiver.
Easha Anand: I -- I understood.
Justice Thomas: Yeah.
Easha Anand: Thank you, Justice Thomas. So I think that's just an over-reading of Dolan. So the sentence says -- that -- that he points to says something like, as a general rule, these sorts of damages don't lie. It's using that hedging language because, again, as a general rule, we're talking about good-faith mistakes. We're not talking about the rare instance where a postal worker is using the mail to effectuate harassment on somebody. So I think even taking that sentence 1 of Dolan at face value, right, wrongful conduct was not before the Court in Dolan, but even as he was covering that, I think that's what the phrase, the general rule is doing. And I suppose I would say that feels passing strange given the rest of the statute and its emphasis on kind of specifically carving out property-related torts. So, for instance, 2680(h), the so-called intentional tort exception, conspicuously omits conversion and trespass, the two property torts. And so I think what my friend on the other side is saying is no one in the federal government can engage in conversion and be exempt from -- and have the United States be exempt from liability except for postal workers.
Justice Thomas: Is there a long history of Federal Tort Claims Act suits about the mail itself, delivery, non-delivery, loss?
Easha Anand: So there are some cases. We'll note that kind of in response to Justice Jackson's question, most of those don't even get into court under 1346(b). If you just say my package doesn't show up, it gets kicked out 1 of court because the -- you haven't even plausibly alleged negligence, let alone wrongful conduct, right?
Justice Thomas: But you would think that with 300 million pieces of mail per day, you would have a significant number of suits that do -- that do involve this level of harm.
Easha Anand: So I think you may have some number of suits that involve this level of harm, meaning enough to prompt someone to go to court and sue.
Justice Thomas: Yeah.
Easha Anand: But not that involve wrongful conduct within the scope of employment, right? That's a very narrow needle to thread. Think about what Ms. Konan alleged here, right? Two years of non-delivery, not just a one-off package. She's filed administrative complaint after administrative complaint. She can say, look, every single one of my neighbors is getting mail. She says, when you found out I owned this other property, mail stopped getting delivered there. She's got all this other kind of circumstantial evidence that doesn't have to do with the mail 1 delivery. Those sorts of allegations, I think, will be rare. And you know, remember, the government came before you in Dolan and said, if you rule for petitioner, frivolous claims will inundate the Postal Service. A decade later, they're coming and saying, actually, the postal exception is working just as it should. And so I'd be a little bit hesitant to believe those claims.
Justice Barrett: Ms. Anand, I think I -- I would really like to hear you address the presumption of consistent usage point in the waiver and the exception because I think that's a harder argument for you because, when you describe loss of property, loss of mail, whatever, as the kind of damage, then it can cover intentional and negligent torts. Now you handled that in your brief, but I would just like to hear you talk about it a little bit more because I think that is one of the hard parts of your argument.
Easha Anand: Sure. So we don't think the presumption applies, and if it applies, it's overcome. 1 So we don't think it applies because that presumption is where two words are being used in the same sense about the scope, right? So "interest" in the Internal Revenue Code. If it's talking about the stuff you get when you leave your money in the bank, in both places, it must cover compound interest or in neither place. But that doesn't mean that in the Internal Revenue Code someone can't use "interest" to mean, you know, present interest in an estate, right? A claim or entitlement. The presumption of consistent usage says, if both terms are being used in the same sense, then they cover the same terrain. Here, we submit that it's clear that "loss" in 1346(b) is being used in a different sense, the deprivation sense, than in 2680(b). And our kind of three textual clues for that, the first is that in 1346(b), there's a specific reference to wrongful conduct on the part of the government employee. Second, the sentence is structured differently, right? It's asking did the government employee cause the plaintiff to lose property, not just if the government employee 1 lost property. And, third, as the government itself acknowledges on page 11 of its reply, "loss of property" is something of a term of art, and when used that way, loss of property, "loss" invariably means deprivation.
Justice Kavanaugh: Your reading of that sentence from Dolan to Justice Thomas I thought was a bit aggressive on the -- on the general rule.
Easha Anand: Okay.
Justice Kavanaugh: I mean, I -- the Court was there specifically distinguishing the general rule from the -- like, having a case-by-case determination. I thought it was articulating a general rule, but that would apply across the board. But -- but, more importantly, kind of statutory stare decisis, even if that doesn't formally apply, just we set forth the rule and Congress hasn't changed it. And this would come, I -- I think, as a little bit of a surprise to Congress, which would probably have to address it pretty quickly. Thoughts?
Easha Anand: So -- so -- so let me take 1 each in turn, Dolan and then why I don't think this is a surprise to Congress. So, on Dolan, you know, that sentence has a lot of hedging language, right? It also says we think it more likely that Congress intended to remain immunity. And so, even if you think the Court was even contemplating wrongful conduct, right, I think that that hedging language does a lot of work. And if you're going to take that sentence in Dolan and say it was thinking of kind of all cases, I think you also have to take the part of Dolan where they say loss is destroyed or misplaced, and miscarriage is delivery to the wrong address, neither of which we fall into. On the Congress-would-be-surprised point, you know, I don't think so. Again, Congress specifically did not put conversion, for instance, in the FTCA's waiver provision. Every other kind of intentional tort, assault, battery, libel, slander, all that stuff, there's an exception for. There's no exception for conversion. And so I think Congress would actually 1 be surprised in the other direction if this Court were to say conversion, liability if anyone else does it, but not if the Postal Service does it.
Justice Jackson: So, Ms. Anand, I guess I'd like to get your thoughts on the theory that I shared with Mr. Liu, which is that in the context of a broad statute that is authorizing tort claims against the government, could it be that what Congress was actually doing with the postal exception was just immunizing the Postal Service for liability for a particular claim? If your tort claim has as its gravamen the loss, miscarriage, or negligent transmission of mail, I'm seeking damages because that happened to my mail, that's out, says Congress. This is my theory. But anything else that you're saying, even though it involves perhaps as an allegation that those things happened, if your claim is not that, then that's in. I kind of thought that's what Dolan was doing because, in Dolan, I guess there was an allegation that there was the negligent 1 transmission of mail in the sense that it was put on the step in the wrong place, and if she had just come in with no step -- you know, and just said the gravamen of my tort claim, the reason why they breached a duty and did something wrong, was because they negligently transmitted my mail, maybe that's out. But Dolan says no, her claim was really a slip-and-fall claim. It's a different kind of tort. And so, if that's the theory, I'm asking you, is Ms. Konan's four -- she has four claims. Are they all making the kind of "I'm suing you because you've lost, miscarried, or negligently transmitted my mail" claim?
Easha Anand: No, Your Honor. Three of the four certainly aren't. Conversion maybe, though, as I've explained, I think it -- it's a very weird result if you say that conversion falls out. And, you know, as -- as we pointed out at the BIO stage, that makes this a very strange case to think about the meaning of "loss" and "miscarriage" because, again, the gravamen of the harm here is, as you note, the kind of campaign of racial harassment.
Justice Jackson: Which fits, it seems, in the tort -- I mean, there are tort elements here for intentional infliction of emotional distress that is just the defendant acted intentionally or recklessly, the conduct was extreme and outrageous, and the actions caused the plaintiff emotional -- severe emotional distress.
Easha Anand: That's right. And we think so too with our nuisance claim and so too with our intentional interference with prospective economic relations.
Justice Jackson: Thank you.
Easha Anand: Now I do want to say I think that our conversion claim goes forward as well because, again, I think, at the point where the government doesn't give you any examples of an ordinary speaker of English -- I'm happy to address the reply nine examples; Justice Sotomayor, I don't even think Foster is such an example, the one case you pointed to -- where they've given you no examples of an ordinary speaker of English saying miscarriage of mail and meaning the postal worker did something wrong, I don't see how you can -- how 1 you can decide that our conversion claim doesn't go forward as well.
Justice Kavanaugh: If -- if miscarriage is -- I'm sorry.
Justice Alito: Go ahead.
Justice Kavanaugh: Are you sure?
Justice Alito: No.
Justice Kavanaugh: Go ahead.
Justice Alito: All right. I wanted to shift from "miscarriage" to "loss." "Miscarriage" is more a term of art. But it's not clear to me why a claim arising out of the loss of property cannot include intentional -- a loss that results from intentional conduct. That's just not the way the term is normally used. A claim arising out of a loss does not have to involve property that has been lost in the sense that it can't be found. It just means that there's been a deprivation in the value of the property, right? I can submit -- suppose vandals set my car on fire and I submit a claim to my insurance company. That is a claim arising out of the loss of my car even though I know where 1 my car is. It's in front of my house. But it's a burned-out hulk, right?
Easha Anand: Yes, Your Honor. But we would never say, and this is Justice Kagan's point, that the vandals lost your car, right? And that's the way that this -- this sort of whole statute is structured.
Justice Alito: No, but it doesn't. It says -- it doesn't talk about what somebody has done. It talks about the consequences of something, which is any claim arising out of the loss.
Easha Anand: So I think that this is sort of consistent throughout the statute. It's not just that you have to prove an assault happened in the abstract. You have to prove the government assaulted you, right? And so, here, it's the government lost your mail. Now, even if you don't agree with me on that, I think, if you agree with me on "miscarriage," that resolves the question. So that is, even if in some settings "loss" covers wrongful conduct, I don't think we have any story for why Congress would say wrongful conduct not counted under miscarriage, wrongful 1 conduct not counted under negligent transmission, but --
Justice Alito: Well, that's your surplusage argument. And, you know, the surplusage canon is of value, but it's not the way Congress always reads -- always writes statutes. It's not the way people always talk. So it -- it's valuable, but it's worth only so much. But I -- I'm really troubled by how you extract from -- how you read into the phrase "any claim arising out of a loss" to exclude intentional conduct.
Easha Anand: So just to clarify, I just want to make clear that's not actually our superfluity argument. What I'm saying is, if you accept our miscarriage mens rea argument, then I think you've got -- you either have to accept that loss is limited to negligent conduct, or you've got a situation where, okay, postal worker takes a hammer to a package. Scenario 1, he just breaks off the handle of the mug. Scenario 2, he totally shatters the mug. Scenario 1, the government says that's 1 not a loss, he just broke off the handle of the mug, and so it's one or the other two terms. So wrongful conduct and so, therefore, it's -- it's not immunized from any liability.
Justice Alito: Well, that's a different --
Easha Anand: And then --
Justice Alito: -- that's a different -- it's a different question about whether the loss of the mail means the loss of all value of the mail or a diminution in the value of the mail.
Easha Anand: That's right. But Congress could not have wanted liability to turn on that fine a distinction. And if you say loss but only loss covers wrongful conduct, right, miscarriage, negligent transmission exclude wrongful conduct, then, at that point, what you're saying is Congress wanted liability to turn, in a case involving wrongful conduct, on this kind of fine distinction between destruction, loss, wrongful conduct covered, and diminution, not loss, wrongful conduct not covered.
Justice Kavanaugh: Assume --
Justice Alito: Go ahead.
Justice Kavanaugh: If -- if miscarriage does cover wrongful conduct, so let's assume that which is contrary to what you've been assuming, but assume miscarriage covers intentional wrongful conduct, then your arguments are?
Easha Anand: So assuming, again, contrary to --
Justice Kavanaugh: Yeah, I --
Easha Anand: -- a mountain of evidence, no evidence --
Justice Kavanaugh: -- I'm reserving, and you're not conceding anything.
Easha Anand: Okay.
Justice Kavanaugh: You're not conceding anything. Yeah.
Easha Anand: Then I think our fallback position is that you have to think about -- basically argue Dolan, right? Dolan says loss is destroyed or potentially misplaced. Miscarriage is delivery to the wrong address. We are neither of those two. So we are some kind of transmission error. At common law, this would be called 1 a willful refusal to transmit or a wrongful transmission. We give you case cites for that. Congress conspicuously doesn't include willful refusal to transmit in this list. It's only negligent transmission. So I think we still win, but I think, if you decide for us that miscarriage only is limited to negligent conduct, you don't have to get into the kind of fine distinctions between the three terms. If I may make one other point about the kind of structure of the FTCA. So the FTCA's exemptions are divided into kind of two categories. Some are very broad, right? Any activities of the Tennessee Valley Authority, fiscal operations of the Treasury, that sort of thing. The others list specific actions often with a mens rea, right? So 2680(a), you know, executing a statute with due care, 2680(h), battery but not negligent touching. This one, 2680(b), as Dolan said, is clearly in the latter mold, right? It's not saying any activities of USPS, any failings in the postal obligation, any mail-handling 1 activities. It's not doing that. It's listing three specific terms pegged to a mens rea the way the other provisions do throughout the FTCA.
Justice Barrett: Can I ask you a question about Mr. Liu's point that "miscarriage" wasn't used as a verb at the time the statute was enacted? You know, Justice Kagan said, well, you know, you can lose the mail, you can negligently transmit the mail if you're the postal worker, or you can miscarry the mail, as in, you know, misdirect it to the wrong place. And one of the responses that Mr. Liu had to that point was, well, miscarry wouldn't have been used as a verb. It was this term of art. What's your response to that? Because I do think it matters whether you view these words as something that happens to the recipient or something that was done by the postal worker.
Easha Anand: Right. So I'll say -- so I'll answer your mis- -- the miscarry question, and then I want to say one more word about 1 that. So he's right that, in general, it was seen as intransitive, but the Webster's First and Webster's Second Dictionaries we point to note that it was sometimes used transitively. So you could say -- I mean, in fact, Dolan says mail is miscarried if it goes to the wrong place. I'm not sure it matters a ton. You can kind of rephrase the question to get at the agent in a different way. You could say, did the letter miscarry by Rojas? Was the mail lost by Rojas? And I think you're still in the same place. And I think whatever you think about "miscarriage," it has to be clear that all the other nouns throughout the exceptions are not just did this happen, it's did the government employee do this, right? We give the example of assault. You would never -- you don't come into court and say, like, there was an assault. You have to say the government employee assaulted someone. And so we think the same thing is true of loss. Again, if you don't buy that argument, 1 I think the two other ways to think about the "loss" term, the first is sort of what we say in our brief, which is that, typically, loss is thought of as unintentional, and whether it's insurance contracts or cases or 1346(b) itself, people usually specify intentional loss or loss caused by wrongful conduct when they meant to change that default. And second, again, if you buy our miscarriage mens rea argument, there's just no good reason why Congress is saying one term encompasses wrongful conduct and the other two don't, particularly where, as Mr. Liu noted, there's some redundancy and certainly some overlap among the terms. If I can make one other point about consistent usage, and then I'll turn it over to seriatim questioning. In 1346(b), Congress is using "loss" in just a fundamentally different sense than it is in 2680(b). We know that because of the three textual clues that I gave you. And, as a result, I don't think that the presumption of consistent usage even attaches because it's only about where two terms are both being used 1 to mean, for instance, deprive and deprive, the same source of deprivations count. It doesn't say that anytime a term is used it must be used in the same sense.
Chief Justice Roberts: Thank you, counsel. Justice Thomas? Justice Alito?
Justice Alito: Do you want to say something in response to Mr. Liu's point about the consequences of adopting your interpretation, which is that it's going to be very easy for people who are unhappy with the delivery of mail to claim that they're not getting their letters because of intentional conduct as opposed to negligent conduct? Is that going to be hard for people to -- to plead consistent with Rule 11? I mean, a lot of people may think that it's -- that what's happening is intentional. I don't get my mail because I didn't give the mail carrier a tip at Christmas, or I have a big dog that ran up to the door and scared -- scared the mail carrier on one point, or I -- I point -- I complained to the -- to the mail 1 carrier that he or she was putting my neighbor's mail in my mailbox or putting my mail in the mailbox of my neighbors or she -- she or he looked askance at my holiday decorations, or there's some characteristic about me that the mail carrier doesn't like. Is that going to be hard? And what will the consequences be if all these suits are filed and they have to be litigated? Is the cost of a first class letter going to be $3 now?
Easha Anand: So I do think that's going to be hard. So, remember, even alleging negligent conduct is tricky here because, if all you have is my package didn't show up, you're going to get kicked out of court. Certainly, alleging wrongful conduct -- and so, again, we're not just -- I just want to clarify because I think Mr. Liu's presentation may have muddled these two things. We're not saying intentional just in the sense of, like, it didn't fall out of the bag. We're saying wrongful as in you knew you were putting it in the wrong place. I do think that the Iqbal standard 1 makes that quite tough. And that's particularly tough given the other FTCA guardrails, right? So still has to be within the scope of the employment, 2680(a), right, basically says kind of mistakes of law or anything that gives the government employee discretion doesn't count. And if there's some conduct left that makes it into court, we know Congress did not want to immunize USPS wholesale or even all failings in the postal obligation. It knew how to do that. It did that with the majority of the other exceptions and didn't do so here.
Justice Alito: All right. Thank you.
Chief Justice Roberts: Justice Sotomayor?
Justice Sotomayor: No. Thank you.
Chief Justice Roberts: Justice Kagan? Justice Gorsuch?
Justice Gorsuch: Very quickly, I promise.
Easha Anand: Yeah.
Justice Gorsuch: So there are various grades of mens rea.
Easha Anand: Yes.
Justice Gorsuch: You knew this was coming, didn't you?
Easha Anand: Uh-huh.
Justice Gorsuch: Yeah. All right. So you say this is negligence. Reckless? Knowing? Thoughts?
Easha Anand: Right. So this is a general problem with the FTCA. 1346(b) carves the world into negligent and wrongful, right? This is written before Restatement (Second), before the model penal code. People didn't really think of recklessness as a different mens rea. What courts have said for purposes of 1346(b), right, no one said: Well, Congress said negligent and they said wrongful, so I guess reckless conduct is out. What they said is, at the time, you know, tort law equated recklessness with gross negligence, which is a species of negligence, and so recklessness kind of falls into the negligence bucket. I'll be candid, I haven't seen litigation over reckless conduct and whether or not it counts as miscarriage, but I'd assume it would operate the same way; that is, I think 1 miscarriage covers a bunch -- covers good-faith mistakes even if they're, like, really bad mistakes.
Justice Kavanaugh: Just to follow up quickly on Justice Alito's question, if you allege that you exchanged words with your mail carrier at one point and so you're alleging that he intentionally mis-delivered or did not deliver the mail, is that enough?
Easha Anand: I certainly don't think if it's a -- first of all, I don't think the one-off package gets into court because no one's going to pay a $400 filing fee and hire a lawyer if it's, like, one package that just gets --
Justice Kavanaugh: Well, say it's a consistent slowness. You're alleging your mail is delivered slowly because you exchanged words with your mail carrier one time.
Easha Anand: I think it depends on the extent. I think, if it's a -- if it's two years and you can say every single one of my neighbors gets their mail faster than I do, I do think you get past the pleading stage.
Justice Kavanaugh: How about if it's 1 just a week?
Easha Anand: You know, I think the Iqbal standard is fuzzy. I would suspect a week is probably not long enough. And, remember, this is not just allegations because this goes to jurisdiction. You know, the way that all the other exceptions that turn on mens rea work is that, you know, the government can demand at a very early stage some sort of proof. It's not just you allege and you get into court. You can do jurisdictional --
Justice Kavanaugh: The proof will be I had a negative conversation with my nail -- mail carrier. You're not going to know -- and that my mail was delivered more slowly or some important piece was not delivered at all. That's all you got, but that's all you can have. Is that enough? Get discovery?
Easha Anand: I don't think one week would be long enough. But, again, I think what Dolan said in response to precisely this argument, right, frivolous claims are going to inundate the Postal Service. Dolan says the ordinary protections against frivolous 1 litigation must suffice. And it turns out in the decade since, there hasn't been a problem with a flood of claims, contrary to the government's prediction.
Justice Kavanaugh: Thank you.
Chief Justice Roberts: Justice Barrett?
Justice Barrett: No.
Chief Justice Roberts: Justice Jackson? Thank you, counsel. Rebuttal, Mr. Liu? REBUTTAL ARGUMENT OF FREDERICK LIU ON BEHALF OF THE PETITIONERS
Frederick Liu: Thank you, Mr. Chief Justice. Just a few quick points. First, on miscarriage, we've pointed to dictionary definitions and pre-FTCA cases that show what the ordinary meaning of "miscarriage" was. The meaning was broad enough to encompass anytime the failed -- the mail failed to arrive. I think the burden is really on Respondent to point to something that justifies 1 giving "miscarriage" a narrower reading than those historical sources show. She hasn't pointed to anything. I think the idea that "miscarriage" somehow incorporated some sort of model penal code-esque distinction between negligence all the way to willfulness is just wrong. Anytime the courts saw the mail not arriving, they labeled it a miscarriage, and that's how we think Congress used it in the FTCA. On loss, on consistent usage, I didn't hear any reasons to give "loss" a different meaning in the postal exception than in the sovereign immunity waiver. I think the main reasons my friend pointed to was that there is language in the waiver that doesn't appear in the postal exception, but that's built in to the presumption of consistent usage. The -- the presumption has work to do only when the word as it appears in Provision A is clarified by language in Provision A, but that language doesn't appear in Provision B. If that language did appear in Provision B, you wouldn't have to apply the presumption of 1 consistent usage. This is a heartland application of that presumption. And the next point on loss has to do with this -- this whole business of converting the -- the words Congress used into -- into verbs. The words work perfectly well as nouns. They describe the consequences that certain negligent or wrongful acts can have. For miscarriage, it captures the consequence of the mail not arriving, arriving late, arriving damaged. Negligent transmission, the mail arriving late or damaged. There's just no one consistent way to take Congress's language and convert it into verbs. And it's for the reason that Justice Barrett mentioned, you can't just convert all these nouns into did the government X the mail. It doesn't work with miscarry because miscarry wasn't used in that way. If you said that to a listener in 1946, they wouldn't know what you were talking about. Judge Cardozo's example in Heinrich is a good example. It talks about checks being lost in the mail, and it says the checks 1 miscarried. And so there's no one way to redo Congress's language to make sense as nouns. I think what that tells us is just adhere to the -- the -- the language Congress used. It used nouns; treat it as nouns. And if you treat "loss" as a noun, there's no reason to give it a different meaning than the way Congress used it as a noun in the -- in the -- in the sovereign immunity waiver. Finally, just a couple points on my friend's approach to the exception as a whole. This whole set -- separate ambit approach we think is misguided. The way I would think about Congress's thinking when it wrote the provision was it had -- it wanted to cover loss or injury to mail. Loss or injury is the -- the wording of the -- of the waiver. And so, when it got to the exception, "loss" is a perfectly good word to use when describing something that happens to mail. It thought we can -- we can describe injury using even more precise terms because there are words in our lexicon that describe bad things that happen to mail. So it picked up "miscarriage" and "negligent transmission." 1 Does this mean that miscarry -- they could have -- after written the three terms, just gone back and erased "loss" and "negligent transmission"? I mean, maybe if they were really confident in how courts would interpret the language, but by including "loss" and "miscarriage" in addition to -- "loss" and "negligent transmission" in addition to "miscarriage," Congress guarded against three arguments that they were worried might have narrowed the scope of the exception. One is the very argument Respondent is making in this case that "miscarriage" should be limited to mail going to the wrong place. Another argument that they wanted to guard against, presumably, is the argument that the Fifth Circuit accepted, which is that "miscarriage" is limited to instances where there is some preceding carriage or some preceding attempt at carriage. And the third argument they wanted to guard against was the idea that by including "miscarriage," the only types of injuries to mail that they were including were intentional ones, and so let's -- let's use "negligent 1 transmission" as well. I think our -- our position gives a coherent reading to the -- the postal exception that avoids the deluge of suits that Congress was trying to avoid by putting the exception in the statute in the first place. And for all those reasons, we'd ask the Court to reverse.
Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 12:57 p.m., the case was submitted.)