Dillard E. Kelley, Sr., Plaintiff-appellant, v. Postal Service (u.s.), Department of the United States Mailand United States Postal Service, Postmastergeneral, Defendants-appellees, 21 F.3d 1121 (10th Cir. 1994)

ORDER AND JUDGMENT¹ 

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Mr. Kelley, a federal inmate and pro se litigant, appeals the dismissal of his complaint wherein he sued the Postal Service for non-delivery of mail. We grant Mr. Kelley permission to proceed in forma pauperis and affirm.

Mr. Kelley sued under the Federal Tort Claims Act to recover damages for the loss of legal papers sent by Mr. Kelley to his attorney by certified mail. The district court properly substituted the United States of America as a party (28 U.S.C. 2672) and in reliance upon 28 U.S.C. 2680(b) (provisions of Federal Tort Claims Act shall not apply to "Any claim arising out of the loss, miscarriage or negligent transmission of letters or postal matter") concluded the United States had not waived its sovereign immunity. The district court dismissed the complaint.

Mr. Kelley appeals this order with numerous creative arguments including equitable liability waives immunity and charging postage waives immunity. He also claims the statute is unconstitutional as it is not positive law and claims the postal service is a commercial enterprise. None of Mr. Kelley's arguments have merit under the law and none warrant discussion.

The judgment of the district court is AFFIRMED.