Levasseur v. US Postal Service, No. 08-1266. This case would be interesting but for the fact that the plaintiff is a pro se. As you know, there is an exception in the FTCA for that preserves sovereign immunity for "[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matters." 28 U.S.C. § 2680(b). The plaintiff claims that “political campaign flyers that were diverted by a partisan postal employee to prevent them from being delivered to voters shortly before a municipal election.” The District Court said the exception applied, because that exception didn’t apply to intentional torts. The First says that Birnbaum v. United States, 588 F.2d 319 (2d Cir. 1978) doesn’t applying because Birnbaum didn’t involve a loss but rather CIA agents (many of whom were paid less than first year associates looked at peoples’ mail).
As I said, this is an interesting question, but the First seems to not be taking it seriously. There are serious issues at stake here. Some postal workers were trying to take mail for partisan purposes. The best the First can muster is “We think it entirely reasonable to say, as these cases have, that mail that is stolen by a postal employee is thereby ‘lost’ from the postal system.”