*or how legislation encourages mediocrity
The movie Elf confirmed what we all suspected. Life at the North Pole is a pretty good life. Work hard and Santa and the Mrs. reward you. Quality is important. Timmy’s truck better have wheels that rotate; Susie’s oven (it is a land of traditional values) better have a working bell when the cupcakes are ready. Under the tutelage of Mr. and Mrs. Claus, Will Ferrell learned if you don’t succeed at first, you try, try again until you get it right. That way there are no disappointed children on December 25th.
To be sure, not everyone has painted such a rosy picture of working conditions in Santa Land. When not busy celebrating Festivus, Kramer and Mickey were doling out literature portraying Santa in cahoots with Rudolph the Red, as in Santa was a communist. But it was a short-lived campaign; Santa’s reputation withstood this two-person assault. Like David Sedaris, Kramer and Mickey were rapidly eliminated from the Santa-Christmas-kid supply chain. Now, all the elves are happy elves in Santa’s workshop.
However, Santa has some issues with entities not headquartered above the arctic circle. In particular with the United States Post Service. You see, there is a little-known back story to why Santa has to rely on Dasher, Dancer, Prancer, Vixen, Comet, Cupid, Ridden, Blitzen, and Rudolph to deliver all those gifts to the children of the world. It is because Santa learned the hard way that you can’t count on the USPS to deliver the goods. With the acme of reliable postal delivery, the pony express, long gone due to its displacement of human mail carriers, Santa had nowhere else to turn but to reindeer.
You may ask, why couldn’t Santa count on the USPS? Duh, because of 28 U.S.C.S. § 2680(b) of course. And what is 28 U.S.C.S. § 2680(b), you may ask. It is a statute that was passed by Congress in 1946 ensuring that the USPS would never attain a level of excellence in its primary function, the delivery of mail. It did so by protecting the USPS from the consequences of its incompetence. It said that no one can sue the post office if the post office fails to deliver mail. Think about that. No matter how egregious the acts of the post office may be, no matter how much the post office charges for a first-class stamp, no matter how much the post office might encourage you to purchase insurance on a package to protect against loss of that package, if the post office screws up and loses your package, or, if it doesn’t pay your insurance, you can’t do a darn thing about it. And it doesn’t matter if your name is Santa Claus. Santa had a better track record in court in Miracle on 34th Street than he had against the USPS.
Wait a second now, you might be thinking. Let’s slow down. Are you telling me that, if I were to insure a package for $2,000 and the post office were to lose the package and not pay me the $2,000 insured value of the package, that I am up the proverbial creek without a paddle? Even if I am Santa Claus? Are you telling me that?
I sure am. Actually, I am not telling you that. Congress is telling you that. I am just channeling the message of Congress. Congress told you that when it enacted 28 U.S.C.S. § 2680(b). It is one short sentence that states you cannot sue the USPS for “any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.” Technically it says the courts of the United States do not have jurisdiction to adjudicate a matter pertaining to the loss of mail. I suppose one could try to sue the USPS in the courts of another country, but to date, no one has tried that. After all, you would have to notify the USPS by mail that it was being sued overseas, and the letter probably wouldn’t get delivered to the right person.
It is the role of the judiciary to interpret the laws passed by Congress. The judiciary has felt pretty stymied by 28 U.S.C.S. § 2680(b). Judges have interpreted that law to mean that no matter how badly the USPS has screwed up, no matter how sympathetic the case of John Q. Public might be before the court, the courts aint the place for Mr. Public to get relief from the negligence of the post office.
For example, in the case of Bahiakina v. United States Post Service, Mr. Bahiakina sought to hold the post office accountable for losing his package and then, after he had purchased insurance from the post office, failing to pay him the insured amount of the package. Mr. Bahiakina lost. Like Santa Claus, he learned the hard way that you can’t sue the post office. It is not that Mr. Bahiakana didn’t garner support for his cause. He did. In the form of the judge who dismissed his case. Even though Judge Allison Burroughs felt compelled by 28 U.S.C.S. § 2680(b) to deny Mr. Bahiakina any remedy, she wrote:
The Court is sympathetic to Mr. Bahiakina’s situation. Having purchased insurance for the package, he no doubt assumed, as any reasonable Postal Service customer would, that he would be reimbursed if for some reason it did not arrive at its destination. When the package was not delivered, he apparently notified the Postal Service and went through an administrative claims and appeals process, which resulted in a denial of his claim.*
As bad as the post office treated Mr. Bahiakina, it outdid itself when handling a package sent by Ronald Young. Mr. Young made the mistake of sending an ipod via the USPS. According to Mr. Young, an employee of the USPS apparently knew a good ipod when he saw one, and stole the ipod Mr. Young had entrusted to the USPS. Of course, Mr. Young was irate and sued the USPS for theft of his goods. Verdict: for the USPS. Reason: 28 U.S.C.S. § 2680(b). The judge in Mr. Young’s case explained his decision this way: “The First Circuit has held that mail that is stolen is thereby ‘lost’ from the postal system, such that claims of stolen mail must fall within the postal matter exception.” (Note to guidance counselors: if Timmy’s or Susie’s psychological profile suggests larceny in their future, for their own safety, steer them in the direction of a career in the USPS, “where thieves become losers”.)
Adding insult to injury, Congress’s protective sheath removes the USPS from the scrutiny other insurers face when they do not fairly adjudicate insurance claims. Massachusetts, like many states, highly regulates the activities of insurance companies. If insurance companies do not adequately investigate and process a claim made by an insured, the insurance company can be held liable for treble damages and attorney’s fees. But not the USPS. Because of 28 U.S.C.S. § 2680(b), the USPS can charge a customer a fee to insure a package, and then refuse to investigate an insurance claim, all without fear of recourse from its customer. Not a bad business model.
Given the shield of immunity that 28 U.S.C.S. § 2680(b) provides to the USPS and its employees, why would anyone strive for excellence when there is no downside to mediocrity? Congress has insulated the USPS from the consequences of its mistakes. As psychologists like B. F. Skinner have taught us, avoidance of negative consequences plays a major role in shaping behavior. Remove those negative consequences and half of the reasons to improve performance are gone. With this background, is it any surprise the Boston Globe recently reported that an audit of Boston post offices found numerous problems “including mail left unprocessed for days and the incorrect processing of packages”?
What is a person to do if you want to send a package that absolutely has to get delivered to its addressee? Santa seems to have a monopoly on gravity-defying reindeer. Further, it costs a lot of money to maintain a crew of reindeer for those few situations when failure is not an option. And, come December, all reindeer are booked by the Claus-industrial complex. The Polar Express? In your dreams, Santa has that locked in with an exclusive through December 2099. But don’t despair, there are always the private carriers. They may cost more, but that is the price of accountability. It is a price I suspect Messrs. Bahiakina and Young wish they had paid.
- By Peter Kelman, Esq. © 2024. All rights reserved.
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* Judge Burroughs realized her decision might come as a surprise to the American public. To her credit, she suggested the USPS give notice of this policy to its patrons by modifying its motto this way:
Neither snow nor rain nor heat nor gloom of night
Shall impede a sender’s delight,
But if loss or theft befalls a letter’s plight,
A lawsuit against the USPS is not your right