When “Lost” Mail Isn’t Lost: The USPS v. Konan Decision and the Accidental Death of Accountability
Or: How the Supreme Court Decided That Intentionally Throwing Away Your Mail Is Just a Happy Little Accident
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The Facts, No Spin
On February 24, 2026, the United States Supreme Court ruled 5-4 in United States Postal Service v. Konan that the federal government cannot be sued when postal workers intentionally refuse to deliver your mail.
Yes, you read that correctly. Intentionally.
The decision was written by Justice Clarence Thomas, with Chief Justice Roberts, Alito, Kavanaugh, and Barrett joining. Justice Sotomayor dissented, joined by Kagan, Jackson, and—plot twist—Neil Gorsuch.
Here’s what happened in Euless, Texas: Lebene Konan, a Black landlord, alleged that postal workers deliberately withheld mail to her rental properties for two years because they “did not like the idea that a black person own[ed] [the properties]” and leased them to white tenants. Mail was returned to sender. Locks were changed on mailboxes. Doctor’s bills, medications, credit card statements—gone. Tenants moved out. She lost an estimated $50,000 in rental income.
She sued under the Federal Tort Claims Act (FTCA). The district court dismissed her case. The Fifth Circuit reversed, allowing it to proceed. The Supreme Court reversed the Fifth Circuit.
The legal question: Does the FTCA’s “postal exception”—which protects the government from lawsuits “arising out of the loss, miscarriage, or negligent transmission of letters or postal matter”—cover intentional nondelivery?
Thomas said yes. The words “loss” and “miscarriage” describe outcomes, not intent. If mail doesn’t arrive, it’s “lost,” regardless of whether someone accidentally misplaced it or deliberately threw it in the trash.
Sotomayor disagreed: “People lose their mail when it gets stuck behind a drawer, not when they intentionally throw it away.”
Three-Layer Dimensional Thinking
Layer 1: What’s the obvious answer? (Surface thinking)
Surface interpretation: Congress wrote “loss, miscarriage, or negligent transmission” in 1946 to protect USPS from being drowned in lawsuits every time a letter went missing. With billions of pieces of mail moving through the system annually, accidents happen. The exception makes sense as protection against frivolous litigation for routine mistakes.
The textualist argument: Justice Thomas says the plain meaning of “loss” is “deprivation of mail.” Whether that deprivation is accidental or deliberate is irrelevant—the mail is still “lost.” He cites two examples from the late 1800s where “miscarriage” was used to describe intentional acts.
What this means: Postal workers can now intentionally withhold your mail, and you have no civil recourse under federal tort law. You cannot sue the federal government for this harm.
Layer 2: What am I missing? (Blind spot angles)
The legislative intent blind spot: Congress in 1946 was addressing the problem of negligent mail handling overwhelming the courts. The exception lists “negligent transmission” as one of three protected categories. If Congress intended to protect intentional acts, why include the word “negligent” at all? As Sotomayor notes, “no one intentionally loses something.”
The immunity architecture blind spot: The FTCA itself is a waiver of sovereign immunity—Congress saying “you CAN sue us for torts committed by federal employees.” The postal exception then carves out an area where you cannot. But the FTCA already has an “intentional tort exception” (28 U.S.C. §2680(h)) that shields the government from most intentional torts—assault, battery, false imprisonment, etc. Why would Congress create both a general intentional tort shield AND separately protect intentional mail misconduct under “loss” and “miscarriage”? The structure suggests these are different things.
The accountability blind spot: In American law, we distinguish between negligence and intent across virtually every domain. It’s the difference between manslaughter and murder. Between a mistake and malice. Liability is how we create consequences that influence behavior. Companies maintain safety standards because they fear lawsuits. Doctors follow protocols because of malpractice liability. Removing liability for intentional misconduct doesn’t just eliminate a remedy—it eliminates a deterrent.
The voting blind spot: We’re heading into 2026 midterm elections. Nearly 47 million Americans voted by mail in 2024. Trump has repeatedly claimed mail-in voting is “corrupt” and promised executive orders to “end mail-in ballots.” Multiple states have laws stating ballots postmarked by Election Day will count. A postal worker who disagrees with your politics can now intentionally “lose” your ballot with zero legal accountability. In 2008, a federal appeals court used this same reasoning to dismiss a case where a postal employee stole campaign fliers from a political candidate.
The racial justice blind spot: Konan explicitly alleged racial discrimination—that her mail was withheld because she was Black. The Court didn’t reach her discrimination claims (dismissed separately), but the practical effect is that a Black woman alleging years of racially motivated harassment by federal employees has no tort remedy. The government is protected. Sovereign immunity restored.
The Gorsuch wild card: Why did Neil Gorsuch—textualist, originalist, libertarian skeptic of government power—join the liberal justices in dissent? Perhaps because someone who spent years writing about government overreach recognizes the danger in insulating federal employees from consequences when they weaponize their authority against citizens.
Layer 3: What question should I actually be asking? (Reframe)
Not: “What does ‘loss’ mean linguistically?”
But: “What kind of government do we want to be?”
Not: “Did Congress intend this specific outcome in 1946?”
But: “Does reading a 1946 statute to immunize 2026 misconduct serve justice or merely serve power?”
Not: “What’s the plain text?”
But: “What are words for if not to create meaningful distinctions between accidents and deliberate harm?”
The real question: When a federal employee decides to use their position to harm you—not by mistake, not by negligence, but by choice—should you have any recourse at all?
Because the answer right now is: No. Not in federal court. Not under tort law. Not for this.
A Brief Absurdist Sketch
Scene: A British Post Office, circa 1897
CUSTOMER: I say, my letter to Aunt Mildred seems to have gone missing.
CLERK: Ah yes, I saw it. Frightful thing. Simply tossed it in the bin.
CUSTOMER: You... you what?
CLERK: Threw it away. Deliberately. Didn’t care for the look of it.
CUSTOMER: But... that’s... you can’t just—
CLERK: Oh, but I can! You see, it’s been lost. Quite lost, really.
CUSTOMER: No, “lost” means you don’t know where it is. You know exactly where it is. It’s in the bin. Right there.
CLERK: Technically lost from your perspective, though.
CUSTOMER: This is absurd!
CLERK: Well, you could always... (leans in conspiratorially) ...write another one?
CUSTOMER: What if you throw that one away too?
CLERK: (cheerfully) Then it shall also be lost! The beauty of the system, really. Quite foolproof.
CUSTOMER: That’s... that’s not what “lost” means!
CLERK: I believe you’ll find a gentleman named Thomas has recently clarified the definition. “Deprivation,” you see. Whether through accident or design is immaterial to the outcome.
CUSTOMER: Can I speak to your supervisor?
CLERK: He’s the one who told me to do it.
CUSTOMER: Well, I shall sue!
CLERK: (laughs) Oh, you can’t sue the Crown for this. That’s the postal exception. Now, next customer please!
Dimensional Storytelling: The Pattern Across Scales
Think about what this decision does at different levels:
Individual level: Lebene Konan lost two years of mail, tenants, and $50,000. No remedy.
Community level: In states with mail-in voting, any postal worker can now discard ballots they don’t like. No civil liability.
Institutional level: The Supreme Court just told federal employees: you can weaponize your authority with impunity, as long as you’re moving mail when you do it.
Systemic level: We’ve created a class of government workers who are more protected when they act intentionally than when they act negligently. This is the inverse of how liability usually works.
Constitutional level: We claim to have checks and balances, separation of powers, accountability structures. But sovereign immunity means “the King can do no wrong” unless he permits you to say otherwise. And this Court just narrowed that permission.
Now zoom out further: What other government services operate under similar exceptions? What happens when the principle—”deprivation is deprivation, regardless of intent”—spreads to other domains?
The pattern: Power protecting itself.
What Could This Have For Consequences (Or Not)
Immediate consequences:
No federal tort remedy for victims of intentional mail interference, including:
Stolen checks or valuable packages
Deliberately withheld medical information
Blocked legal notices
Political mail sabotage
Mail-in ballot vulnerability with no civil recourse. States with “postmarked by Election Day” laws are especially exposed. Track your ballot religiously.
Chilling effect on anyone who relies on USPS for time-sensitive materials. The expectation of delivery is now a hope, not a legal entitlement.
Longer-term consequences:
Congressional response? The ball is now in Congress’s court. They could amend 28 U.S.C. §2680(b) to explicitly exclude intentional acts from the postal exception. This doesn’t require a constitutional amendment—just a statute that says “we didn’t mean THAT.” Will they? Unclear. Some Republicans might not love the idea of their mail being thrown away either. But with Trump pushing to eliminate mail-in voting entirely, bipartisan support seems... optimistic.
Erosion of accountability architecture. We’re watching the infrastructure of consequence get dismantled piece by piece. If the only remaining remedy is criminal prosecution (which requires proving criminal intent beyond a reasonable doubt), we’ve made it very hard to hold anyone accountable for anything short of obviously criminal conduct.
Emboldening of bad actors. Right now, every postal worker in America just got the message: “You can intentionally not do your job when it comes to delivering mail, and the worst that might happen is... nothing.” Some will still do their job because professionalism. But some won’t. And the ones who won’t now have legal cover.
A note of optimism (I promised a little):
Sotomayor’s dissent matters. It’s being read. It’s being cited. It’s creating a record of what this decision cost. Sometimes dissents become majority opinions later. Sometimes they influence how lower courts apply narrow rulings. Sometimes they remind Congress: “You could fix this.”
And sometimes, the sheer absurdity of a result—postal workers can intentionally trash your mail without consequences—wakes people up to how far we’ve drifted from the basic social contract.
We’re not helpless. We’re just going to have to work harder.
Definitions Matter (I Hope So Anyway, It Gets Really Confusing Nowadays?)
Let’s be precise about words, since that’s supposedly what this case was about:
LOSS (noun): The fact or process of losing something or someone.
Key word: “losing.” This is typically understood as unintentional. When you lose your keys, you didn’t mean to. You didn’t deliberately throw them away. That would be “discarding” or “disposing of” your keys. “Loss” implies accident, misfortune, or at minimum a lack of deliberate action to deprive oneself.
MISCARRIAGE (noun - historical usage in shipping/mail context): Failure of something to reach its destination.
But here’s the thing: Historical legal texts using “miscarriage of mail” were describing system failures—mail that went to the wrong place, got stuck somewhere, or was delayed. Not mail that someone deliberately refused to send. The word “carriage” means transport. A “miscarriage” is a failure of transport. If there’s no attempt at transport because someone decided not to, that’s not a miscarriage—it’s a refusal.
NEGLIGENT (adjective): Failing to take proper care in doing something.
The smoking gun: Congress specifically wrote “negligent transmission.” They didn’t write “transmission or non-transmission.” They didn’t write “intentional or negligent transmission.” They wrote “negligent transmission.” In statutory interpretation, we presume every word matters. If “loss” and “miscarriage” already covered intentional acts, why add “negligent” at all? Either it’s redundant (which courts hate) or it’s specifying the type of loss/miscarriage that’s protected: the negligent kind.
INTENT (noun): The thing that you plan to do or achieve; an aim or purpose.
What matters: In criminal law, intent is often what separates freedom from prison. In tort law, it’s what separates a mistake from malice. In this case, the Court says intent doesn’t matter when interpreting “loss.” But intent is the entire point of having different words for different kinds of harm.
SOVEREIGN IMMUNITY: A legal doctrine that the government cannot be sued without its consent.
The historical roots: The King can do no wrong. Literally. Medieval legal fiction that the monarch is incapable of wrongdoing, so you can’t sue him. We’re a republic. We rejected monarchy. We created the FTCA specifically to say “the government CAN be sued sometimes.” But we’ve preserved enough of sovereign immunity that when the Court says “nope, not for this,” that’s the end of it. You’re back to begging the King for mercy—or waiting for Congress to change the law.
The Bigger Picture
This isn’t just about mail. It’s about accountability.
We live in a system where liability—the risk of being sued—is one of the primary mechanisms for ensuring people and institutions behave responsibly. Doctors carry malpractice insurance. Companies recall dangerous products. Engineers build to code. Why? Because if they don’t, they can be sued.
Remove liability, and you remove a deterrent.
The Supreme Court just removed a deterrent for federal employees who might weaponize their authority. And they did it right before an election where millions will vote by mail, in a political climate where the President is openly trying to eliminate mail-in voting, in a case involving alleged racial discrimination.
The timing is not lost on anyone.
What You Can Do
Track your ballot. If you vote by mail in 2026, use your state’s ballot tracking system religiously. If your ballot doesn’t arrive at the election office, go vote provisionally in person. Most states allow this.
Support election officials. Your local election administrators are under siege. They need resources, legal support, and political backing. Show up to city council meetings. Volunteer as a poll worker. Make it harder for federal interference to succeed.
Demand Congressional action. Contact your representatives. Ask them to amend 28 U.S.C. §2680(b) to explicitly state that intentional acts are not covered by the postal exception. This is fixable with a statute. It doesn’t require a constitutional amendment.
Stay informed. This decision didn’t get much media coverage. Most people don’t know it happened. Share information. Explain what it means. Democracy dies in darkness, but it also dies in complexity. Simplify the message: They can throw away your mail on purpose now, and you can’t sue.
Vote. Obviously. But also: vote early if possible. Vote in person if you can. Don’t give anyone an opportunity to “miscarry” your ballot.
Further Reading & Sources
Primary Sources:
Case Background:
SCOTUSblog Case Page - United States Postal Service v. Konan
University of Chicago Law Review Analysis - “Snow, Rain, and Theft”
Election Security & Mail Voting Context:
Votebeat: What Election Officials Are Worried About for 2026 Midterms
Democracy Docket: Democrats Warn USPS Changes Could Threaten Mail Voting
Legal Analysis:
Historical Context:
Dolan v. United States Postal Service, 546 U.S. 481 (2006) - The precedent case on FTCA postal exception
Levasseur v. United States Postal Service, 543 F.3d 23 (1st Cir. 2008) - First Circuit applying exception to intentional conduct
Marine Insurance Co. v. United States, 378 F.2d 812 (2nd Cir. 1967) - Second Circuit precedent
Final Thoughts
The Supreme Court has decided that “lost” mail includes mail that was deliberately thrown away. That “miscarriage” includes deliberate refusal to carry. That Congress in 1946, when writing an exception for negligent handling, actually meant to protect intentional sabotage too.
This interpretation requires us to believe:
Congress used three terms—loss, miscarriage, negligent transmission—to mean the same thing
The word “negligent” is mere surplusage
Intentional deprivation is just a species of “loss”
Sovereign immunity should shield federal employees who weaponize their authority
Or we could believe the Fifth Circuit got it right: “No one intentionally loses something.”
Occam’s Razor suggests the simpler explanation: Congress meant what it said. Accidents are protected. Negligence is protected. Intentional sabotage is not.
But we don’t live in a world governed by Occam’s Razor. We live in a world where five justices can decide that words mean their opposite, and the rest of us have to live with the consequences.
So here we are. Mail can be intentionally destroyed. You cannot sue. The King can do no wrong.
Welcome to 2026.
Truth matters.
🪶 Peace, Love, and Respect
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P.S. - If you found this useful, share it. Most people don’t know this happened. And in an election year where mail-in voting is under attack from multiple directions, knowledge is the best defense we have.