the denial to the Chicago Regional Rate and Classification Center and the claim was again denied. Westwood then filed this action.
On a motion to dismiss for lack of subject matter jurisdiction, the party seeking to invoke this court's jurisdiction has the burden of establishing the jurisdictional requirements. Kontos v. United States Department of Labor, 826 F.2d 573, 576 (7th Cir. 1987); Marks v. Turnage, 680 F. Supp. 1241, 1243 (N.D.Ill. 1988). Plaintiff claims this court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1339, 39 U.S.C. § 409(a) and D.M.M. § 147.221. Defendant argues that these statutes do not provide a basis for jurisdiction by themselves, without an independent basis for finding a cause of action against the Postal Service.
I. Jurisdiction Under 28 U.S.C. §§ 1331, 1339 and 39 U.S.C. § 409(a).
Westwood points to three cases where courts have found jurisdiction under similar circumstances. Defendant argues that the facts in these cases are distinguishable. Because of the relative lack of precedents on this issue we will review the relevant cases in detail.
In Schreiber v. United States, 129 F.2d 836 (7th Cir. 1942), the plaintiffs sued for a refund of extra postage paid for first class mail when they were entitled to mail the material as third class mail. The plaintiffs had previously protested the classification and filed claims for refunds. The Schreiber plaintiffs relied on the Tucker Act, presently codified as 28 U.S.C. § 1346(a)(2), not the postal refund statute, as their jurisdictional basis. The appellate court found that the district court did have jurisdiction to consider a suit for refund for a non-tort claim. Id. at 837-39.
The dissent, on the other hand, would have denied jurisdiction based on the then refund statute, 39 U.S.C.A. § 300 (West 1928), which left the refund decision to the discretion of the Postmaster General. Id. at 840 (Minton, J., dissenting).
The facts in the second case relied on by Westwood were similar. In Christian Beacon v. United States, 322 F.2d 512 (3d Cir. 1963), the court found that a cause of action for refund was barred by the statute of limitations. However, without any analysis, the appellate court stated that they had "no doubt that . . . the district court would have jurisdiction under either 28 U.S.C.A. § 1339 or 28 U.S.C.A. § 1346(a)(2)" (footnotes omitted). Id. at 513.
Conservative Caucus, Inc. v. United States, 228 Ct. Cl. 45, 650 F.2d 1206 (1981), the third case cited by plaintiffs, is more instructive because it was decided after the establishment of the United States Postal Service in 1970. In Conservative Caucus a holder of a special bulk third class permit sought a refund of over $ 400,000 because certain mailings which were not mailed at the appropriate post office were charged the higher regular third class rate. The plaintiff requested a refund and appealed the denial, as required by U.S.P.S. procedures, before filing suit. Id. at 1207-08. The Court of Claims found that it had jurisdiction under the Tucker Act. Id. at 1209 & n. 1. At issue was the proper interpretation and application of § 134.54 of the Postal Service Manual (subsequently replaced by the D.M.M.) concerning requirements for mailing at the special third class bulk rate. Id. at 1209. Only after finding jurisdiction did the court consider the refund regulation, D.M.M. § 147.2. The court ruled that the Postal Service had "wide discretion" in granting refunds and that the U.S.P.S. decision was final because the decision was "not clearly wrong, nor contrary to law." Id. at 1210.
Defendant also cites three cases as holding that we have no jurisdiction to consider this case. In Knight Newspapers, Inc. v. United States, 395 F.2d 353 (6th Cir. 1968), the plaintiff sought a refund based on an express contract. The court held that an action for a postal refund was founded on a quasi-contract or a contract implied in law
and not actionable under the Tucker Act. The court also found that the postal refund statute, then codified at 39 U.S.C.A. § 4055 (West 1962), committed refunds to the Postmaster General's sole discretion. Consequently, the court found that the refund statute did not create a cause of action upon which the plaintiff could base jurisdiction. Id. at 357-58.
The holding in Northwest Publications, Inc. v. United States, 253 F. Supp. 828 (D.D.C. 1966), is similar. There the plaintiff sought a refund for excess postage paid due to an error in computing the weight of its newspapers. The court interpreted this as an action based on a contract implied in law and found that there was no jurisdiction under the Tucker Act. Id. at 829. Cf. Rider v. United States, 7 Cl. Ct. 770, 774 (1985) (Claims Court has no jurisdiction over contracts implied in law), aff'd without opinion, 790 F.2d 91 (Fed.Cir. 1986). The court also found no jurisdiction under 39 U.S.C. § 4055, holding that the postal refund statute leaves the questions of refunds to the discretion of the Postmaster General. Northwest Publications, 253 F. Supp. at 829-30.
Finally, in Montgomery Ward & Co. v. United States, 94 Ct. Cl. 309 (1941), the court similarly held that the then-existing refund statute, 39 U.S.C.A. § 300 (West 1928), was discretionary, and that the court did not have the jurisdiction to review the Postmaster General's denial of a refund. Id. at 312-13.
In all the cases cited by the parties where review was allowed, there was some additional basis other than 28 U.S.C. §§ 1331, 1339 or 39 U.S.C. § 409 to create a cause of action. In Schreiber, the court found jurisdiction based on a non-tort action under the Tucker Act. Schreiber, 129 F.2d at 838. In Christian Beacon, the court also relied on the Tucker Act but never made clear its jurisdictional basis. The court gave no reasons for its conclusion of jurisdiction but simply cited to Schreiber and Teal v. Felton, 53 U.S. (12 How.) 284, 13 L. Ed. 990 (1851).
The court in Conservative Caucus found jurisdiction based on the application and interpretation of a section of the Postal Service Manual. Other cases involving the Postal Service also have relied on some additional basis specifying a cause of action. See Peoples Gas Light & Coke Co. v. United States Postal Service, 658 F.2d 1182, 1189 (7th Cir. 1981) (violation of U.S.P.S. publication no. 191, § 3.14); Rider, 7 Cl.Ct. at 774 (breach of contract under Contract Disputes Act of 1978, 41 U.S.C. § 601 et seq.); Combined Communications Corp. v. United States Postal Service, 686 F. Supp. 663, 666 (M.D.Tenn. 1988) (violation of 39 U.S.C. § 3623); Allied Coin Investment, Inc. v. United States Postal Service, 673 F. Supp. 982, 984 (D. Minn. 1987) (tort of negligent transmission under Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b)).
We believe the law in this circuit is clear. Neither 28 U.S.C. § 1339 nor 39 U.S.C. § 409(a) provides a cause of action to form a basis for jurisdiction. These statutes allow the Postal Service to sue or be sued, thus removing the barrier of sovereign immunity. However, they also require an independent basis for a cause of action. Peoples Gas, 658 F.2d at 1189. See also Roman v. United States Postal Service, 821 F.2d 382, 385 (7th Cir. 1987) (39 U.S.C. § 1339 requires other substantive basis for jurisdiction). But see Grasso v. United States Postal Service, 438 F. Supp. 1231, 1234 (D. Conn. 1977) (jurisdiction under 39 U.S.C. § 409(a) for non-tort claims of promissory estoppel and taking without compensation). Similarly, 28 U.S.C. § 1331 does not create a cause of action upon which to base jurisdiction. DeVilbiss v. Small Business Administration, 661 F.2d 716, 718 (8th Cir. 1981) (per curiam). Consequently, we agree with defendant that there must be an independent basis for jurisdiction other than the statutes relied on by plaintiff.
II. Is There a Cause of Action ?
As we discussed above, allegations of tortious conduct or breach of contract may provide a jurisdictional basis. Plaintiff may have implicitly stated such a basis for jurisdiction in the complaint. Consequently, we proceed to analyze each count for a jurisdictional basis.
A. Tortious Conduct (Count I)
In count I plaintiff alleges that defendant misclassified Westwood's mail. It is not clear from the complaint whether or not plaintiff is suing based on a tort. We discuss possible non-tort actions in part II(C) infra.
This court has jurisdiction to consider tort claims against the Postal Service under the FTCA. See Loeffler v. Tisch, 806 F.2d 817, 820 (8th Cir. 1986) (en banc), rev'd sub nom. on other grounds, Loeffler v. Frank, 486 U.S. 549, 108 S. Ct. 1965, 100 L. Ed. 2d 549 (1988); 39 U.S.C. § 409(c). Of course, the limitations of that Act would apply. Allied Coin, 673 F. Supp. at 986. Plaintiff has not argued jurisdiction under the FTCA and it has not shown facts granting this court jurisdiction. Because plaintiff bears the burden of establishing the jurisdictional requirements, we cannot at this time find jurisdiction on the basis of a tort action.
B. Violation of D.M.M. § 147 (Count II)
In this count Westwood claims that the Postal Service arbitrarily and capriciously denied its refund claim in violation of D.M.M. § 147. Plaintiff argues that D.M.M. § 147.221 provides a cause of action. Westwood apparently relies on subsection (b), which reads:
Refund of 100% will be made: