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April 18, 1996

MITZI BAKER, Plaintiff,
MARVIN T. RUNYON, in his official capacity as Postmaster General of the United States, Defendant.

The opinion of the court was delivered by: BOBRICK

 Before the court is the motion of defendant Marvin T. Runyon to strike the claim of plaintiff Mitzi Baker for punitive damages


 Plaintiff filed her complaint under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("1964 Act"), and the Civil Rights Reform Act of 1991, 42 U.S.C. § 1981a, et seq. ("1991 Act"), alleging sex discrimination and retaliation. She seeks both compensatory and punitive damages against her employer, the United States Postal Service ("Postal Service"). The only issue defendant presents in his motion to strike is whether punitive damages are available against the Postal Service in this case. At the outset, we note that defendant fails to suggest under what rule he is moving. Pursuant to Fed.R.Civ.P. 12(f), a party must file its motion to strike prior to responding to the targeted pleading or within 20 days after the service of that pleading. Here, plaintiff filed her complaint on June 25, 1995, and defendant filed his answer thereto on September 25, 1995. The instant motion, then, is untimely under Rule 12(f). Defendant's motion is silent as to why such untimeliness should be overlooked in this case. Because the question of whether the Postal Service enjoys sovereign immunity from punitive damages is jurisdictional in nature, Edwards v. U.S. Dept. of Justice, 43 F.3d 312, 317 (7th Cir. 1994), the court may address it any time. Fed.R.Civ.P. 12(h)(3). We choose to do so.


 Ordinarily, sovereign immunity protects the federal government from suit. Loeffler v. Frank, 486 U.S. 549, 554, 108 S. Ct. 1965, 1969, 100 L. Ed. 2d 549 (1988). This immunity, however, may be waived. Under the Federal Tort Claims Act ("FTCA"), the government is liable for tort claims but retains its immunity from liability for interest prior to judgment or for punitive damages. 28 U.S.C. § 2674. Congress has also waived the sovereign immunity of some federal entities by providing, in their enabling legislation, that they may sue and be sued. Loeffler, 486 U.S. at 554, 108 S. Ct. at 1969. The Supreme Court has explained that:

such waivers by Congress of governmental immunity . . . should be liberally construed . . . Hence, when Congress establishes an agency, authorizes it to engage in commercial and business transactions with the public, and permits it to 'sue and be sued,' it cannot be lightly assumed that restrictions on that authority are to be implied. Rather if the general authority to 'sue and be sued' is to be delimited by implied exceptions, it must clearly be shown that certain types of suits are not consistent with the statutory or constitutional scheme, that an implied restriction of the general authority is necessary to avoid grave interference with the performance of a governmental function, or that for other reasons it was plainly the purpose of Congress to use the 'sue and be sued' clause in a narrow sense. In the absence of such a showing, it must be presumed that when Congress launched a governmental agency into the commercial world and endowed it with authority to 'sue and be sued,' that agency is not less amenable to judicial process than a private enterprise under like circumstances would be.

 F.H.A. v. Burr, 309 U.S. 242, 245, 60 S. Ct. 488, 490, 84 L. Ed. 724 (1940), quoted in Loeffler, 486 U.S. at 554-55, 108 S. Ct. at 1969. The defendant herein, the Postal Service, is subject to just such a "sue-and-be-sued" clause.

 The plaintiff's claim for punitive damages herein was created by the 1991 Act. Under the 1964 Act, Title VII relief was limited to "equitable" remedies--primarily backpay. 1964 Act, 42 U.S.C. § 2000e-5(g); Landgraf v. USI Film Products, 511 U.S. 244, , 128 L. Ed. 2d 229, 114 S. Ct. 1483, 1490 (1994). The 1991 Act significantly expanded the monetary relief potentially available, to include compensatory damages for future pecuniary loss, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses. 1991 Act, 42 U.S.C. § 1981a(b)(3); Landgraf 114 S. Ct. at 1491. In addition, the 1991 Act made punitive damages available as follows:

A complaining party may recover punitive damages under this section against a respondent (other than a government, government agency or political subdivision) if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or reckless indifference to the federally protected rights of an aggrieved individual.

 42 U.S.C. 1981a(b)(1). The question here is whether the Postal Service is exempted from exposure to punitive damages as a "government, government agency or political subdivision."

 To defendant, it is self-evident that the Postal Service is exempt from punitive damage liability under § 1981a(b)(1), because it is a federal entity that is part of the federal government. (Memorandum in Support of Defendant's Motion ("Def Mem."), at 2). It is, in fact, "an independent establishment of the Executive Branch of the government of the United States . . ." 39 U.S.C. § 201. We are not as unhesitatingly convinced that an "independent establishment" is the same as a "government, government agency or political subdivision." Defendant does little to support its contention.

 The cases upon which defendant relies are less than convincing. (Def.Mem. at 2-3 ). In Montalvo v. U.S. Postal Service, 887 F. Supp. 63 (E.D.N.Y. 1995), the question of the Postal Service's status was not litigated, but conceded by the plaintiff therein. 887 F. Supp. at 66. In Suhr v. Runyon, 1995 U.S. Dist. LEXIS 15548, No. 95 C 50087 (N.D.Ill. Oct. 12, 1995) 1995 WL 617478, the court found that a suit against the Postal Service was "in essence a suit against a federal agency," citing Beth v. Espy, 854 F. Supp. 735, 737 (D.Kan. 1994). Beth dealt with a suit against the Department of Agriculture which, unlike the Postal Service, actually is a government agency and is quite unlike a "sue-and-be-sued" entity in that it had sovereign immunity from punitive damages prior to the 1991 Act. See Doe v. American Nat. Red Cross, 847 F. Supp. 643, 648 (W.D.Wis. 1994) (distinguishing federal instrumentalities from federal agencies); ...

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