FTCA Postal Exception Covers Intentional Nondelivery: “Loss” and “Miscarriage” Include Willful Withholding of Mail

I. Introduction

United States Postal Service et al. v. Konan (607 U. S. ___ (2026)) resolves a longstanding circuit split over the scope of the Federal Tort Claims Act (“FTCA”) postal exception, 28 U. S. C. §2680(b). Respondent Lebene Konan, a landlord in Euless, Texas, alleged that Postal Service employees intentionally withheld and interfered with mail delivery to two rental properties she owned, leading to lost tenants, lost rental income, and personal distress. After unsuccessful administrative efforts, she sued the United States in federal court asserting state-law tort claims (including nuisance, tortious interference, conversion, and intentional infliction of emotional distress).

The District Court dismissed on sovereign-immunity grounds, holding the claims fell within the FTCA’s postal exception. The Fifth Circuit reversed, reasoning that “loss,” “miscarriage,” and “negligent transmission” do not encompass intentional nondelivery. The Supreme Court granted certiorari because the First and Second Circuits had held otherwise, including Levasseur v. United States Postal Serv. and Marine Ins. Co. v. United States.

Core issue: Does §2680(b) preserve sovereign immunity when postal workers allegedly intentionally fail to deliver mail?

II. Summary of the Opinion

Justice Thomas, writing for the Court (Roberts, C. J., Alito, Kavanaugh, and Barrett, JJ., joining), held that the United States retains sovereign immunity for claims “arising out of the loss, miscarriage, or negligent transmission of letters or postal matter” even when the alleged wrongdoing is intentional nondelivery. The Court concluded that both “miscarriage” and “loss,” as used in 1946 when the FTCA was enacted, naturally encompass failures of mail to arrive and deprivations of mail regardless of intent.

The judgment of the Fifth Circuit was vacated and remanded. Importantly, the Court expressly did not decide whether all of Konan’s claims are barred, nor which arguments were preserved on appeal.

III. Analysis

A. Precedents Cited

  • Dolan v. Postal Service, 546 U. S. 481 (2006):
    • Role in Konan: The Court treats Dolan as the central interpretive guide to the postal exception’s purpose and general coverage. It reiterates Dolan’s description that the exception applies when the plaintiff is harmed “because mail either fails to arrive at all or arrives late, in damaged condition, or at the wrong address.”
    • Doctrinal move: Konan extends the practical reach of Dolan by clarifying that “fails to arrive” can include intentional failure to deliver, because “miscarriage” and “loss” are not limited to negligent mishandling.
  • Wisconsin Central Ltd. v. United States, 585 U. S. 274 (2018):
    • Role in Konan: Supplies the interpretive starting point: statutory terms are read according to their ordinary meanings at the time of enactment (here, 1946).
  • Barnhart v. Thomas, 540 U. S. 20 (2003):
    • Role in Konan: Anchors the grammatical rule that an adjective placed before the final noun in a series generally does not “travel” backward to modify earlier nouns. Thus, “negligent” modifies “transmission” but not “loss” or “miscarriage.”
  • Connecticut Nat. Bank v. Germain, 503 U. S. 249 (1992):
    • Role in Konan: Supports the Court’s refusal to force non-overlapping definitions to avoid redundancy; the “cardinal canon” is that Congress means what it says.
  • Azar v. Allina Health Services, 587 U. S. 566 (2019):
    • Role in Konan: Invoked for the presumption of consistent usage: the Court reasons that “loss” in the FTCA’s general waiver provision (§1346(b)(1)) includes losses caused by wrongful (including intentional) acts, supporting a similarly broad sense of “loss” in §2680(b).
  • Terry v. United States, 593 U. S. 486 (2021):
    • Role in Konan: Used to reject rewriting §2680(b) by “inserting” the Postal Service as subject and converting nouns (“loss,” “miscarriage”) into verbs describing only postal-worker actions.
  • S. D. Warren Co. v. Maine Bd. of Environmental Protection, 547 U. S. 370 (2006):
    • Role in Konan: Rejects the inference that pairing a broad term with a narrow term necessarily narrows the broad one; thus “negligent transmission” does not shrink the meaning of “loss” and “miscarriage.”
  • Levasseur v. United States Postal Serv., 543 F. 3d 23 (CA1 2008) (per curiam), and Marine Ins. Co. v. United States, 378 F. 2d 812 (CA2 1967):
    • Role in Konan: They frame the split. The Court’s holding aligns with these decisions’ broader application of the postal exception, including to harms arising from intentional misconduct.
  • National Rifle Association of America v. Vullo, 602 U. S. 175 (2024):
    • Role in Konan: Standard Rule 12(b)(1)/(b)(6) posture reminder: on dismissal, the Court accepts complaint allegations as true.
  • Additional authorities appear primarily as interpretive support (e.g., District of Columbia v. Heller, 554 U. S. 570 (2008); Bartenwerfer v. Buckley, 598 U. S. 69 (2023); Burnet v. Huff, 288 U. S. 156 (1933)), and as usage examples for “loss/miscarriage” in mail contexts (e.g., Heinrich v. First Nat. Bank, 219 N. Y. 1 (1916); Boerner v. United States, 117 F. 2d 387 (CA2 1941); Martin v. United States, 280 F. 513 (CA4 1922); Lake v. Lake, 63 Wyo. 375 (1947) (per curiam); Wagner v. Lucas, 79 Okla. 231 (1920)).

B. Legal Reasoning

1. Purpose and structure of the postal exception

Building on Dolan v. Postal Service, the Court frames §2680(b) as Congress’s policy choice to keep the government out of potentially massive, value-dependent tort exposure stemming from core mail-transport functions. The “burdensome suits” rationale matters because it makes intentionality less salient: if the harm category is “mail not arriving properly,” intent does not reduce case volume or valuation complexity.

2. “Miscarriage” includes intentional non-arrival

Applying the “ordinary meaning in 1946” approach from Wisconsin Central Ltd. v. United States, the Court treats “miscarriage” as broadly meaning a failure of mail to reach its destination. It refuses to limit “miscarriage” either (i) to negligent failures, or (ii) to misdelivery to a wrong address. The Court relies heavily on contemporaneous dictionary definitions and historical usage examples, concluding that “failure to arrive” naturally includes scenarios where mail is held, returned, delayed, or otherwise does not reach the intended recipient—whether through mistake or intentional withholding.

3. “Loss” includes intentional deprivation

The Court reads “loss” as “suffering deprivation,” and holds that a recipient can be “deprived” of mail even if the deprivation is deliberate. It uses Konan’s conversion theory (“deprived of the use and possession of the property”) to link her allegations to “loss” of mail.

The Court also rejects respondent’s attempt to equate “loss” with “destruction” and its argument that the exception applies only when the government itself “lost” something. In the Court’s view, §2680(b) targets claims “arising out of” certain kinds of mail-related outcomes (loss/miscarriage/negligent transmission), rather than requiring any particular actor-centric narrative.

4. “Negligent” does not modify “loss” and “miscarriage”

The Court’s response to the Fifth Circuit’s approach is syntactic and structural. Under Barnhart v. Thomas, “negligent” modifies only “transmission,” not the earlier nouns. On policy coherence, the Court adds that “negligent transmission” likely exists to prevent “transmission” from sweeping too broadly (i.e., reaching mail-related claims where nothing went wrong with delivery), thereby keeping the exception focused on delivery problems—without implying an intent-based carveout.

5. Overlap is acceptable; surplusage canon yields

The Court acknowledges that “loss” and “miscarriage” can overlap in application, but treats this as consistent with ordinary language and with Dolan’s recognition that the terms “substantially overlap.” Invoking Connecticut Nat. Bank v. Germain, it subordinates the canon against surplusage to the “cardinal canon” that Congress means what it says, suggesting Congress may have chosen overlapping terms to more effectively keep mail-delivery complaints out of court.

6. The holding is categorical on intentional nondelivery, but the case is remanded

The Court’s holding establishes that the postal exception can bar claims premised on intentional nondelivery. Yet it deliberately avoids deciding whether all of Konan’s pleaded tort theories are barred (for example, whether any alleged injuries are independent of nondelivery), and avoids addressing preservation questions. This leaves lower courts room—on remand and in future cases—to litigate the “arising out of” nexus for particular tort theories and damages models.

C. Impact

  • Clarifies the circuit split and broadens immunity in intentional-misconduct scenarios: Plaintiffs cannot avoid §2680(b) merely by characterizing mail nondelivery as willful, malicious, or intentional; the relevant inquiry is whether the claim “arises out of” the “loss” or “miscarriage” of mail.
  • Shifts litigation from intent to causation (“arising out of”): Expect future cases to focus on whether particular harms are sufficiently independent of mail loss/miscarriage—e.g., reputational or economic harms allegedly caused by harassment campaigns—rather than on whether the conduct was intentional.
  • Constrains state-law tort pathways under the FTCA: Claims such as conversion, interference, and IIED that are factually tethered to nondelivery may face dismissal under §2680(b), even when pleaded as intentional torts under state law.
  • Heightens the practical importance of non-FTCA remedies: Because the decision closes the FTCA damages route for many intentional-withholding allegations, complainants may increasingly rely on internal USPS processes, Inspector General investigations, criminal statutes addressing mail theft/interference, or equitable/non-monetary strategies where available. (Konan’s separate discrimination claims were not before the Court.)
  • Confirms a methodology trend: The opinion exemplifies a historically anchored “ordinary meaning at enactment” approach and a willingness to accept overlap in statutory lists where historical usage supports it.

IV. Complex Concepts Simplified

  • Sovereign immunity: The United States cannot be sued for money damages unless Congress clearly permits it.
  • FTCA waiver and exceptions: The FTCA generally permits certain tort suits against the United States, but §2680 lists exceptions where immunity is retained. If an exception applies, courts lack authority to award damages.
  • Postal exception (§2680(b)): Keeps the government immune from claims “arising out of the loss, miscarriage, or negligent transmission” of mail.
  • “Arising out of”: A causal-link phrase; if the injury flows from mail loss/miscarriage, the exception can apply even if the plaintiff pleads different tort labels.
  • Ordinary meaning at enactment: Courts often interpret statutory words as they were commonly understood when enacted (here, 1946), consulting contemporaneous dictionaries and usage.
  • Grammar canon (Barnhart rule): In a list, an adjective placed before the final item usually modifies only that final item (so “negligent” modifies “transmission,” not “loss” or “miscarriage”).
  • Surplusage canon: Courts prefer interpretations that avoid redundancy, but the Court emphasized redundancy can be acceptable if ordinary usage and statutory design support overlapping terms.

V. Conclusion

Postal Service v. Konan establishes a clear rule: the FTCA’s postal exception in §2680(b) preserves sovereign immunity not only for negligent mishandling of mail, but also for claims arising from intentional nondelivery, because “loss” and “miscarriage” can occur through willful withholding. The Court reaches this result through historically grounded textual interpretation, rejecting attempts to import a negligence limitation from “negligent transmission” into the entire exception.

The decision significantly narrows the practical availability of FTCA damages actions for intentional mail-delivery interference, while leaving open (on remand and in future litigation) how far the “arising out of” requirement reaches across varied tort theories and alleged downstream harms.