Legal Docket: Signed, sealed, disputed

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MUSIC: Stop! Whoa, yes, wait a minute, Mr. Postman! Wait! Waaa-a-a-ait, Mr. Postman! 

NICK EICHER, HOST: It’s The World and Everything in It for November 3rd. We’re so glad you’ve joined us today. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket.

MUSIC: Come on deliver the let-tah, the sooner the bet-tah. 

Today, three disputes pending at the U.S. Supreme Court.

First, a fight involving Mr. Postman ,and what he puts or doesn’t put, into the neighborhood mailboxes.

ROBERTS: We'll hear argument next in Case 24-351, United States Postal Service versus Konan.

Lebene Konan. She owns several rental properties in the Dallas/Fort Worth area, including two in Euless, Texas. She rents out rooms and sometimes stays there herself.

EICHER: These are multi-resident homes, so the Postal Service uses centralized mailboxes instead of door to door delivery. Konan would pick up the mail and hand it out to her tenants.

Now, with hundreds of millions of pieces of mail moving into and out of the Postal Service every day, some are bound to go missing.

REICHARD: And when that happens, some may see malice behind a mistake … which may or may not be true.

Here’s what happened to Konan: Five years ago, two postal workers changed the ownership records on one of her properties. They listed her white tenant as the owner instead of Konan, who is black.

She says mail stopped coming for months: No bills, no medication, no tax notices. So she sued the Postal Service under the terms of a 1946 law known as the Federal Tort Claims Act.

Her lawyer, Easha Anand:

ANAND: 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 delivery.

EICHER: The Post Office tells a different story. It says Konan didn’t keep an up-to-date list of tenants. That’s a requirement for large, multi-unit homes. Once she did, the Post Office says, mail delivery resumed.

But that claim isn’t part of the record yet. For now, the justices have to assume Konan’s story is true.

RIEHCARD: Back to the law at the center of the case, the Federal Tort Claims Act: The FTCA allows citizens to sue the government for negligence. But there’s an exception. It’s literally called the “postal exception.”

It blocks suits for “loss, miscarriage, or negligent transmission” of mail.

The fight is over the meaning of those four words.

Theft or withholding mail are intentional acts, but do they add up to “loss, miscarriage, or negligent transmission”?

EICHER: Konan says no, the postal exception does not apply here. The exception applies only to negligence, not deliberate wrongdoing.

Chief Justice John Roberts raised that point with Frederick Liu, arguing for the Postal Service.

ROBERTS: 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 (sic) car. They're going to think I forgot where it was or something like --like that…. If somebody said I lost the mail, I --I would not think necessarily -I wouldn't think right away somebody stole it.

REICHARD: Liu argued the postal exception ought to be read broadly—to include intentional acts. Without it, the Postal Service will be flooded with lawsuits.

He also said it’s a big stretch to turn the nouns in the FTCA into verbs to fit Konan’s allegations.

LIU: The words work perfectly well as nouns. They describe the consequences that certain negligent or wrongful acts can have…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.

EICHER: Justice Samuel Alito pressed that point:

ALITO: 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.

The post office lawyer ran with that:

LIU: …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….things like intent are easy to allege and hard to disprove….

REICHARD: Going on to say that even if the Postal Service could later prove misconduct was just a mistake …

LIU: 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.

Justice Alito saw all sorts of mischief rooted in human nature if the landlady’s theory were to win:

ALITO: 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 the mail carrier on one point, or I complained to the mail 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… 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?

The landlady’s side dismissed that as unlikely. Justice Ketanji Brown Jackson agreed with that in this exchange with the Postal Service lawyer:

JACKSON: I can’t imagine that the postal workers are actually actively intentionally withholding people’s mail on a regular basis. 

LIU: As a matter of routine, the Postal Service intentionally --withholds people's mail for all sorts of legitimate reasons.

JACKSON: Well, that's an easy defense then. I mean, there it is. And it's not intentional in the sense of a harm.

LIU: It's an easy defense -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…

EICHER: Well, that’s the thing: discovery hasn’t happened yet … meaning the lawyers have yet to exchange evidence or take testimony. So the court is first having to decide a threshold question: That is, can Konan sue under this law, with these facts?

If she can … the case moves forward in the lower courts. If not, she’ll have to pursue another remedy.

Next, two disputes that involve robbery, each raising different legal questions.

REICHARD: Michael Bowe pleaded guilty to several crimes, earning 24 years in federal prison … 10 of those years for using a gun in what the law calls a “crime of violence.”

But later court decisions changed the way that term is defined. Bowe says his crimes no longer fit … so his sentence should be reduced.

He’s tried to make that argument before, but lower courts have rejected it—saying they’ve already heard the claim. So now the question is whether the rule against repeat habeas petitions for state inmates also applies to federal inmates. (Reminder that a habeas petition simply means asking a court to review the legality of one’s imprisonment.)

EICHER: Justice Alito’s prosecutorial edge came through in this exchange with the lawyer for the convicted criminal:

ALITO: But you applied for authorization, right?

ADLER: Correct.

ALITO: To file a second or successive?

ADLER: That’s correct.

ALITO: And is that still on the docket of the court of appeals?

ADLER: No, it is not.

ALITO: So it was denied, right?

ADLER: No, Your Honor. There’s a distinction between a dismissal and a denial in the statute.

ALITO: Well, it was effectively denied. What you’re saying is it was denied on an improper ground.

EICHER: It’s that familiar tug between fairness and procedure that often plays out at the Supreme Court. Justice Amy Coney Barrett picked up that theme:

BARRETT: So Congress… can really never deprive this Court of certiorari to resolve questions of federal law because that would deprive us of our ability to ensure the uniformity of federal law?

ADLER: I think there’s at least a serious question about that, and that’s because, whenever lower courts are deciding issues of federal law and this Court cannot step in, then this Court ceases to be the Supreme Court. The courts of appeals then become their own mini Supreme Courts. Thank you.

REICHARD: Final case today goes back thirty years. A man named Holsey Ellingburg Junior robbed a bank. He was caught and prosecuted. Part of the sentence required him to repay seventy-five hundred dollars in restitution under the Victim and Witness Protection Act.

Years later — after serving his term and paying about a quarter of that debt — Ellingburg argued the payment period had expired. Enforcing it now, he said, would amount to retroactive punishment.

EICHER: The government disagreed. Timing isn’t the issue, it said. The point is to restore victims, not to punish offenders.

That’s what the argument mostly came down to.

Listen to this exchange between Justice Alito and the lawyer for the bank robber:

ALITO: Doesn’t the fact that victims can enforce the restitution order themselves cut strongly against your argument that restitution is penal rather than remedial?

She went on to concede the point that if victims can enforce restitution themselves, sure, that’s more of a civil action. But if not paying can land you back in prison, then it starts to look more like punishment.

REICHARD: Then came the question of timing—and whether applying a newer, longer enforcement period would violate the Constitution’s ban on what’s called ex-post facto punishment?

Justice Brett Kavanaugh pointed out to the government lawyer that retroactive laws raise serious concerns about fair notice, civil or criminal.

KAVANAUGH: Even if this were civil, civil retroactivity is not something that we countenance without a clear statement, right?

ROBERTSON: The Court has been clear that the Ex Post Facto Clause itself only applies to criminal punishment.

KAVANAUGH: But Landgraf and other cases, civil retroactivity is something that’s antithetical to basic rule-of-law notions….

Round and round they went, trying to decide what’s criminal, what’s civil, what violates the Ex Post Facto Clause, and what’s fair.

And that’s this week’s Legal Docket.

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