State of New York v. Donald J. Trump ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STATE OF NEW YORK, et al.,
Plaintiffs,
v. No. 20-cv-2340(EGS)
JOSEPH R. BIDEN, JR., in his
official capacity as President
of the United States, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiffs the States of New York, Hawaii, and New Jersey;
the City of New York; and the City and County of San Francisco
filed this lawsuit against Defendants Joseph R. Biden, Jr., in
his official capacity as President of the United States; Louis
DeJoy (“Mr. DeJoy”), in his official capacity as Postmaster
General of the United States; and the United States Postal
Service (“USPS”) or (“Postal Service”) alleging the following
claims: (1) Ultra Vires Agency Action—Postal Accountability and
Enhancement Act; (2) Ultra Vires Agency Action—Postal
Reorganization Act; and (3) violation of the Elections Clause of
the United States Constitution. See Compl., ECF No. 1 at 59-61.
Currently pending before the Court are the parties’ cross-
motions for summary judgment. See Pls.’ Mot. Summ. J., ECF No.
1
58; Defs.’ Cross Mot. Summ. J., ECF No. 66. 1 Upon consideration
of the motions, the responses and replies thereto, the
applicable law, the entire record, and for the reasons stated
below, the Court GRANTS IN PART AND DENIES IN PART Plaintiffs’
Motion for Summary Judgment and GRANTS IN PART AND DENIES IN
PART Defendants’ Cross-Motion for Summary Judgment.
I. Background
A. Statutory and Regulatory Framework
In the Postal Reorganization Act (“PRA”), Public Law 91-
375, 84 Stat. 719 (Aug. 12, 1970), Congress replaced the Post
Office Department with the Postal Service as “an independent
establishment of the executive branch of the Government of the
United States, under the direction of a Board of Governors, with
the Postmaster General as its chief executive officer.” 39
C.F.R. § 1.1. The PRA also created an independent oversight body
for the USPS, the Postal Rate Commission. 39 U.S.C. § 501.
Congress passed the PRA to “[i]nsulate” the management of the
USPS “from partisan politics . . . by having the Postmaster
General responsible to the [Postal Rate] Commission, which
represents the public interest only, for his conduct of the
affairs of the Postal Service.” H.R. Rep. No. 91-1104, 3660-61
(1970).
1 When citing electronic filings throughout this Memorandum
Opinion, the Court cites to the ECF page number, not the page
number of the filed document.
2
The PRA defines the “postal polic[ies]” of the Postal
Service. Section 101 of the Act provides that the USPS “shall
provide prompt, reliable, and efficient services to patrons in
all areas and shall render postal services to all communities,”
and “shall provide a maximum degree of effective and regular
postal services to rural areas, communities, and small towns
where post offices are not self-sustaining.” 39 U.S.C. § 101(a)-
(b). In addition, Section 101(e) directs that, “[i]n determining
all policies for postal services, the Postal Service shall give
the highest consideration to the requirement for the most
expeditious collection, transportation, and delivery of
important letter mail.” Id. § 101(e). Section 403 further
defines USPS’s “[g]eneral duties.” Section 403 provides:
(a) The Postal Service shall plan, develop,
promote, and provide adequate and efficient
postal services at fair and reasonable rates
and fees. The Postal Service shall receive,
transmit, and deliver throughout the United
States, its territories and possessions, and,
pursuant to arrangements entered into under
sections 406 and 411 of this title, throughout
the world, written and printed matter,
parcels, and like materials and provide such
other services incidental thereto as it finds
appropriate to its functions and in the public
interest. The Postal Service shall serve as
nearly as practicable the entire population of
the United States.
(b) It shall be the responsibility of the
Postal Service—
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(1) to maintain an efficient system of
collection, sorting, and delivery of the
mail nationwide;
(2) to provide types of mail service to meet
the needs of different categories of mail
and mail users; and
(3) to establish and maintain postal
facilities of such character and in such
locations, that postal patrons throughout
the Nation will, consistent with reasonable
economies of postal operations, have ready
access to essential postal services.
Id. § 403(a)-(b).
In the Postal Accountability and Enhancement Act (“PAEA”),
Pub. L. No. 109-435, 120 Stat. 3198 (Dec. 20, 2006) (codified at
39 U.S.C. § 3600 et seq.), Congress replaced the Postal Rate
Commission with the Postal Regulatory Commission (“PRC” or
“Commission”) and “strengthened its role.” Carlson v. Postal
Regul. Comm’n, 938 F.3d 337, 340 (D.C. Cir. 2019).
The USPS is responsible for “develop[ing] and promot[ing]
adequate and efficient postal services.” 39 U.S.C. § 3661(a).
“When the Postal Service determines that there should be a
change in the nature of postal services [that] will generally
affect service on a nationwide or substantially nationwide
basis,” it must “submit a proposal, within a reasonable time
prior to the effective date of such proposal, to the Postal
Regulatory Commission requesting an advisory opinion on the
change.” Id. § 3661(b). This provision was enacted in the PRA,
and the only change made in the PAEA was to replace the original
4
“Postal Rate Commission” with the “Postal Regulatory
Commission.”
Following the submission of a proposal, “[t]he Commission
shall not issue its opinion on any proposal until an opportunity
for hearing on the record under [the Administrative Procedure
Act] has been accorded the Postal Service, users of the mail,
and an officer of the Commission who shall be required to
represent the interests of the general public. The opinion shall
be in writing and shall include a certification by each
Commissioner agreeing with the opinion that in his judgment the
opinion conforms to the policies established under this title.”
39 U.S.C. § 3661(c).
B. Factual Background
1. The COVID-19 Pandemic
In response to the COVID-19 pandemic, Plaintiffs took
actions to mitigate the spread of the virus and promote social
distancing in 2020, and, as a result, increased their reliance
on the Postal Service to administer public benefits programs,
including “public assistance to low-income families, healthcare
assistance, child support enforcement, and drivers’ licenses.
See Pls.’ Mot., ECF No. 60 at 13 (citing See Adinaro Decl., ECF
No. 59-1 ¶ 12; Banks Decl., ECF No. 59-2 ¶¶ 3–5, 8, 10–12; Betts
Decl., ECF No. 59-3 ¶¶ 7–15; DiGiovanni-Abatto Decl., ECF No.
59-5 ¶¶ 3–5; Hein Decl., ECF No. 59-8 ¶¶ 2–3, 8, 13, 15; Jacobs
5
Decl., ECF No. 59-11 ¶¶ 4–10; Lau Decl., ECF No. 59-15 ¶¶ 3, 5–
9; Poole Decl., ECF No. 59-17 ¶¶ 2, 6–11; Roye Decl., ECF No.
59-18 ¶¶ 4-5, 12–13; Roye Suppl. Decl., ECF No. 59-14 ¶¶ 18–20;
Shah Decl., ECF No. 59-19 ¶¶ 3, 5–6, 10); see also N.Y. Exec.
Order No. 202.8; Hawaii Sixth Supplementary Proclamation
Relating to COVID-19; N.J. Exec. Order No. 107; San Francisco
Third Supplement to Mayoral Proclamation Declaring the Existence
of a Local Emergency dated Feb. 25, 2020; N.Y. City Emergency
Executive Order No. 100. Plaintiffs also devoted resources to
transforming their election processes to expand and encourage
absentee and mail voting. Adinaro Decl., ECF No. 59-1 ¶ 9;
Kellner Decl., ECF No. 59-13 ¶¶ 11, 16–17, 19; Ku Decl., ECF No.
59-14 ¶¶ 8–10.
2. USPS Postal Policy Changes
In June and July 2020, the Postal Service announced and
implemented several changes and strategies to how it collected,
processed, and delivered mail. At issue in this case are five
actions, which the Court refers to as the “Postal Policy
Changes.” See Pls.’ Mot., ECF No. 60 at 14.
First, on June 17, 2020, USPS announced that it would
eliminate more than 600 sorting machines in the United States
“over the next several months.” See Pls.’ Ex. 37, ECF No. 59-37.
In total, USPS reduced 711 sorting machines by mid-August 2020,
which was an approximately 14.7 percent reduction in the number
6
of machines across the country, as part of an initiative started
in 2017 to determine the optimum number of machines by running
computer models analyzing mail-flow volume. See DeChambeau
Decl., ECF No. 59-33 ¶ 15. Excluding fiscal year 2016, the total
number of letter and flat sorting machines USPS reduced exceeded
the rates of elimination in previous years. See id. ¶ 21 (3.3
percent in FY2020; 1.9 percent in FY2019; 6.5 percent in FY2018;
3.5 percent in FY2017, and 0 percent in FY2015). On August 18,
2020, USPS suspended all removals of equipment until after the
November 2020 election. Id. ¶ 22.
Second, on June 26, 2020, USPS held a teleconference with
Area Vice Presidents regarding strategies to reduce, among other
things, unearned overtime. See Pls.’ Ex. 39, ECF No. 59-39.
Unearned time is the “time that an employee takes to complete
[his or her] duties over and above the earned time.” Curtis Dep.
Tr., ECF No. 66-14 at 14. Those attending the teleconference
were asked to go “all in” on these strategies. Id.; June 26,
2020 Presentation, Pls.’ Ex. 39, ECF No. 59-39 at 7. On
September 21, 2020, USPS issued “Clarifying Operational
Instructions” stating that “[o]vertime use has not been banned,
nor have any caps been placed on overtime hours.” USPS
Clarifying Operational Instructions, Defs.’ Ex. 12, ECF No. 66-
16 at 2.
7
Third, on July 10, 2020, USPS held a teleconference with
Area Vice Presidents during which the agency’s chief operating
officer gave a presentation regarding the elimination of late
and extra trips. 2 See Cintron Suppl. Decl., ECF No. 66-19 at 2.
The slides presented at the teleconference stated “NO EXTRA
TRANSPORTATION” and “NO LATE TRANSPORTATION,” advising that
“[e]ffective July 13 all extra trips and Postal caused late
trips are unauthorized contractual commitments.” See July 10,
2020 Presentation, Pls.’ Ex. 41, ECF No. 59-41 at 10-11. Some
USPS employees distributed instructions the same day in line
with the presentation’s directives. See Email, Pls.’ Ex. 42, ECF
No. 59-42 at 2 (“[T]here is no more waiting on mail and there is
no coming back for parcels. The excuses of why people can’t get
done with their routes is gone. We NEED to start capturing the
downtime.”). Another employee distributed a “Mandatory Stand-Up
Talk: All Employees,” 3 stating that “[r]ight now, we are at a
critical juncture in our organization and must make immediate,
lasting, and impacting changes in our operations and in our
culture.” See Pls.’ Ex. 43, ECF No. 59-43. According to the
2 Late trips are trips that depart after their scheduled
departure time, and extra trips are additional trips that were
not originally scheduled to occur. See Coradi Decl., ECF No. 59-
4 ¶¶ 13–14.
3 USPS considers a “Stand-Up Talk” as a document with talking
points that local postal managers use to relay information to
employees. See Curtis Dep. Tr., ECF No. 66-14.
8
document, such “changes” included that “[a]ll trips will depart
on time (Network, Plant and Delivery); late trips are no longer
authority or accepted” and “[e]xtra trips are no longer
authorized or accepted.” Id. The document further instructed
that the transportation changes would be “implemented
immediately (today).” Id. Following the teleconference and the
Stand-Up Talk, some employees were confused about the parameters
of the policy regarding late and extra trips. See 66-19 at 2-3
(postal workers contacting USPS officials to get clarification
on whether late and extra trips were banned). On July 14, 2020,
Robert Cintron, the USPS Vice President of Logistics,
distributed via email a document entitled “Keys to Success for
Elimination of Extras and Lates” (the “Cintron Guidelines”),
stating that the “focus is to eliminate unplanned extra
transportation, “[d]eviations to the extent possible should be
utilized to eliminate extras,” and “[t]rips must depart on
time.” See Pls.’ Ex. 45, ECF No. 59-45 at 2; Pls.’ Ex. 46, ECF
No. 59-46 at 2-3. The Cintron Guidelines included examples of
when a late or extra trip was acceptable or unacceptable. See
Pls.’ Ex. 46, ECF No. 59-46 at 2-3.
At least some USPS employees knew that the process of
eliminating late and extra trips would result in delayed mail
delivery: “One aspect of these changes that may be difficult for
employees is that—temporarily—we may see mail left behind or
9
mail on the workroom floor or docks (in P&DCs), which is not
typical.” See Pls.’ Ex. 43, ECF No. 59-43. Following the
issuance of the above documents, the number of late and extra
trips dropped significantly. Cintron Dep. Tr., ECF No. 59-28;
Grimmer Decl., ECF No. 59-7 ¶ 19; Pls.’ Ex. 32, ECF No. 59-32;
Pls.’ Ex. 33, ECF No. 59-33; Pls.’ Ex. 53, ECF No. 59-53; Pls.’
Ex. 59, ECF No. 59-59. On September 21, 2020, USPS issued
“Clarifying Operational Instructions” that stated that “late or
extra trips that are reasonably necessary to complete timely
mail delivery, is not to be unreasonably restricted or
prohibited. Managers are authorized to use their best business
judgment to meet our service commitments.” Clarifying
Operational Instructions, Defs.’ Ex. 12, ECF No. 66-16.
Fourth, in July 2020, USPS announced an initiative entitled
“Expedited to Street/Afternoon Sortation” (or “ESAS”) at 384
facilities, including facilities in Plaintiff States. See Stand-
Up Talk, Expedited to Street/Afternoon Sortation, Pls.’ Ex. 47,
ECF No. 59-47. Pursuant to the initiative, city carriers were
prohibited from spending time in the morning sorting mail so
that they could leave for the street earlier. See id. After
completing their routes, city carriers would then return to the
office and stage mail for delivery the next scheduled day. Pls.’
Ex. 47, ECF No. 59-47. In effect, this meant that carriers were
being ordered to not deliver mail that had arrived overnight,
10
but rather sort it in the afternoon for delivery the next day.
Id. The initiative is no longer in effect. See Curtis Dep. Tr.,
ECF No. 66-14 at 27.
Fifth, on or around July 30, 2020, the USPS General Counsel
informed 46 states and the District of Columbia that if the
States did not pay First Class postage on ballots sent to
voters, there would be a risk that voters would not receive
their ballots in time to return them by mail. See Second Glass
Dep. Tr., ECF No. 59-30 at 9-10; Pls.’ Ex. 49, ECF No. 59-49.
USPS officials indicated that states should mail election mail
as First Class Mail, not Marketing Mail. See Pls.’ Ex. 38, ECF
No. 59-38 at 2. On September 21, 2020, USPS issued instructions
stating that it will prioritize Election Mail that is entered as
Marketing Mail, regardless of the paid class. Clarifying
Operational Instructions, Defs.’ Ex. 12, ECF No. 66-16.
USPS did not seek an advisory opinion pursuant to Section
3661(b) from the PRC prior to taking the above actions. See
Pls.’ Ex. 58, ECF No. 59-58 at 6.
C. Procedural History
Plaintiffs filed this lawsuit on August 25, 2020. On
September 2, 2020, they filed a motion for a preliminary
injunction, which requests that the Court enjoin the defendants
from enforcing the Postal Policy Changes. See Mot., ECF No. 12-
1. On September 27, 2020, the Court granted Plaintiffs’ motion
11
for a preliminary injunction. See New York v. Trump, 490 F.
Supp. 3d 225, 231 (D.D.C. 2020) (EGS). The Court held that
Plaintiffs were likely to succeed on the merits of their 29
U.S.C. § 3661(b) claim because (1) they had established a
likelihood of standing; (2) the Court likely had subject-matter
jurisdiction over the Section 3661(b) claim; (3) the claim was
likely reviewable pursuant to the ultra vires doctrine; and (4)
USPS decision to implement the Postal Policy Changes without
receiving a prior opinion from the PRC likely violated Section
3661(b). See id. at 236-43. The Court also held that Plaintiffs
faced irreparable harm in the absence of a preliminary
injunction and that the balance of equities and public interest
favored a preliminary injunction. See id. at 243-45.
Accordingly, the Court preliminarily enjoined the Postal Policy
Changes. See Order, ECF No. 51. The Court clarified its Order on
August 23, 2021 to reflect that the preliminary injunction did
not prohibit the Postal Service from declining approval for
extra network trips pursuant to the following principles: (1)
where an extra trip would not be service responsive, and (2)
where not using an extra trip would delay a volume of mail that
is no greater than 15% of the truck’s total capacity. See Mem.
Op. & Order, ECF No. 98 at 16.
Plaintiffs filed their motion for summary judgment on
October 19, 2020, see Pls.’ Mot., ECF No. 58, and Defendants
12
filed a cross-motion for summary judgment on October 26, 2020,
see Pls.’ Mot., ECF No. 66. The motions are ripe for
adjudication.
II. Legal Standard
A. Summary Judgment
Pursuant to Federal Rule of Civil Procedure 56, summary
judgment should be granted if the moving party has shown that
there are no genuine issues of material fact and that the moving
party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a); Celotex Corp v. Catrett, 477 U.S. 317, 325 (1986). In
determining whether a genuine issue of material fact exists, a
court must view all facts in the light most favorable to the
non-moving party. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). In ruling on cross-motions
for summary judgment, a court shall grant summary judgment only
if one of the moving parties is entitled to judgment as a matter
of law upon material facts that are not genuinely disputed.
Shays v. FEC, 424 F. Supp. 2d 100, 109 (D.D.C. 2006); Winston &
Strawn LLP v. F.D.I.C., No. 06-1120 (EGS), 2007 WL 2059769, at
*3 (D.D.C. July 13, 2007).
B. Availability of Judicial Review
The Postal Service is “exempt from review under the
Administrative Procedure Act.” N. Air Cargo v. USPS, 674 F.3d
852, 858 (D.C. Cir. 2012); see also 39 U.S.C § 410(a). “However,
13
the case law in this circuit is clear that judicial review is
available when an agency acts ultra vires, or outside of the
authority Congress granted.” Nat’l Ass’n of Postal Supervisors
v. USPS, 26 F.4th 960, 970 (D.C. Cir. 2022) (quotation marks
omitted) (citation omitted). Ultra vires is available where “(i)
there is no express statutory preclusion of all judicial review;
(ii) there is no alternative procedure for review of the
statutory claim; and (iii) the agency plainly acts in excess of
its delegated powers and contrary to a specific prohibition in
the statute that is clear and mandatory.” Fed. Express Corp. v.
U.S. Dep’t of Commerce, 39 F.4th 756, 763 (D.C. Cir. 2022)
(cleaned up) (quoting Nyunt v. Broad. Bd. of Governors, 589 F.3d
445, 449 (D.C. Cir. 2009)).
Such claims are “confined to ‘extreme’ agency error where
the agency has ‘stepped so plainly beyond the bounds of [its
statutory authority], or acted so clearly in defiance of it, as
to warrant the immediate intervention of an equity court.’” Id.
at 764 (quoting Griffith v. Fed. Labor Relations Auth., 842 F.2d
487, 493 (D.C. Cir. 1988)). Only error that is “patently a
misconstruction of the Act,” that “disregard[s] a specific and
unambiguous statutory directive,” or that “violate[s] some
specific command of a statute” will support relief. Id. “[T]he
Supreme Court and [District of Columbia Circuit (“D.C.
Circuit”)] have long required in ultra vires cases that the
14
agency action go beyond mere legal or factual error and amount
to a clear departure by the agency from its statutory mandate or
be blatantly lawless agency action.” Id. (cleaned up) (citation
omitted).
III. Analysis
A. Plaintiffs Have Standing
To establish standing, “a plaintiff must show (1) an
‘injury in fact,’ (2) a sufficient ‘causal connection between
the injury and the conduct complained of,’ and (3) a
‘likel[ihood]’ that the injury ‘will be redressed by a favorable
decision.’” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 134
(2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61 (1992)). “The party invoking federal jurisdiction bears
the burden of establishing these elements.” Lujan, 504 U.S. at
561 (citations omitted). “Since they are not mere pleading
requirements but rather an indispensable part of the plaintiff’s
case, each element must be supported in the same way as any
other matter on which the plaintiff bears the burden of proof,
i.e., with the manner and degree of evidence required at the
successive stages of the litigation.” Id. “Now, on summary
judgment, the plaintiffs must prove injury in fact with
‘specific facts’ in the record.” Humane Soc’y of the U.S. v.
Perdue, 935 F.3d 598, 602 (D.C. Cir. 2019) (quoting Lujan, 504
U.S. at 561).
15
Defendants contend that Plaintiffs lack standing for three
reasons. First, Defendants argue that “Plaintiffs cannot
establish that the alleged USPS policy changes at issue have
caused any material mail delays.” Defs.’ Reply, ECF No. 74 at
10. They contend that “the lack of a causal relationship is
shown by the numerous injunctions that have been issued against
the Postal Service in this and related cases.” Defs.’ Mot., ECF
No. 66-1 at 23. Further, Defendants argue that any mail delays
could have been caused by several unrelated issues, such as the
COVID-19 pandemic, wildfires, and inclement weather. Id. at 25.
Plaintiffs, however, have provided evidence establishing
that the implementation of the Postal Policy Changes, and
specifically the changes to and impacts on the USPS
transportation schedule, in the summer of 2020 were a de facto
cause of the decline in on-time delivery rates. See Dep’t of
Commerce v. New York, 139 S. Ct. 2551, 2566 (2019) (“Article III
‘requires no more than de facto causality . . . .” (quoting
Block v. Meese, 793 F.2d 1303, 1309 (D.C. Cir. 1986)); see also
USPS Office of Inspector General, Operational Changes to Mail
Delivery (October 19, 2020), ECF No. 63-1 at 5 (“The Postal
Service’s mail service performance significantly dropped
beginning in July 2020, directly corresponding to implementation
of the operational changes and initiatives.”). Defendants
themselves have stated that the initial drop in service scores
16
in late July 2020 was connected to USPS’s efforts to mitigate
late and extra trips nationwide. See, e.g., Pls.’ Ex. 43, July
10, 2020 Mandatory Stand-up Talk, ECF No. 59-43 at 2 (stating
that because “late trips are no longer authorized or accepted”
and “[e]xtra trips are no longer authorized or accepted,” there
would be “mail left behind or mail on the workroom floor or
docks (in P&DCs), which is not typical”); Pls.’ Ex. 52, Aug. 13,
2020 Message from the Postmaster General, ECF No. 59-52 at 2-3
(noting that USPS had “reduced extra trips by 71 percent” and
that “this transformative initiative has had unintended
consequences that impacted our overall service levels”); Defs.’
Ex. 13, Transcript of Senate Homeland Security and Governmental
Affairs Committee Hearing (Aug. 21, 2020), ECF No. 66-17
(explaining that delays in mail delivery were due to the
mitigation of extra trips, the COVID-19 pandemic, and employee
availability, and that USPS “all feel . . . bad about what the .
. . dip in our service level has been”). Indeed, after the
changes were implemented, the record shows that service scores
precipitously declined in late July and had not fully rebounded
by October 2020. See, e.g., Grimmer Suppl. Decl., ECF No. 59-23.
And though Defendants argue that “the historical evidence
demonstrates that these USPS policy changes cannot be causing
the mail delays,” Defs.’ Reply, ECF No. 74 at 10, the Court
disagrees. Though mail delays continued after multiple courts,
17
including this Court, enjoined the alleged policy changes, as
Plaintiffs point out, the record also demonstrates confusion
following USPS’s conflicting messaging regarding whether late
and extra trips were authorized. See USPS Office of Inspector
General, Operational Changes to Mail Delivery (October 19,
2020), ECF No. 63-1 at 4 (concluding that the USPS initiative to
“[e]liminat[e] . . . late and extra trips to transport mail,”
among other initiatives, was “implemented quickly and [was]
communicated primarily orally, which resulted in confusion and
inconsistent application across the country”); see also Jones,
488 F. Supp. 3d at 122 (noting, in granting plaintiffs’
preliminary injunction, that “there is sufficient evidence
suggesting that . . . the rollback of policies has not been
fully implemented or adequately communicated throughout the
entire Postal Service organization, which is tiered in multiple
national, regional, and local levels”). For example, though
Defendants claim that “USPS never prohibited or set a firm limit
on late and extra trips” at the July 10, 2020 teleconference
with USPS Area Vice Presidents, Defs.’ Mot., ECF No. 66-1 at 17,
the message that trickled down to several Postal Service
employees in the aftermath of that presentation was that all
late and extra trips were unauthorized. Among other things, at
least one Area Vice President distributed a “Mandatory Stand-Up
Talk” directing that late trips and extra trips “are no longer
18
authorized and accepted,” Pls.’ Ex. 41, ECF No. 59-41, and
others contacted USPS officials to get clarification on whether
late and extra trips were banned, see Cintron Suppl. Decl., ECF
No. 39-1. Likewise, though Defendants describe the Cintron
Guidelines as “simply identify[ing] when late and extra trips
may improve overall efficiency,” Defs.’ Mot., ECF No. 66-1 at
24, at the same time, Mr. Cintron also stated that the “focus is
to eliminate unplanned extra transportation,” “[d]eviations to
the extent possible should be utilized to eliminate extras,” and
“[t]rips must depart on time,” Email Re: Cintron Guidelines, Ex.
45, ECF No. 59-45 at 2. The Cintron Guidelines were not
explicitly rescinded until October 27, 2020. See Min. Order
(Oct. 27, 2020), NAACP v. USPS, No. 20-cv-2295 (D.D.C. 2020)
(EGS). Furthermore, the Court does not disagree with Defendants
that USPS service scores could have been negatively impacted by
multiple sources. However, the possibility that other events may
have also contributed to any delays in mail delivery does not
suggest that the Postal Policy Changes had no impact.
Traceability “does not require that the [challenged action] be
the most immediate cause, or even a proximate cause, of the
plaintiffs’ injuries.” Attias v. Carefirst, Inc., 865 F.3d 620,
629 (D.C. Cir. 2017); see also Massachusetts v. EPA, 549 U.S.
497, 523 (2007) (finding plaintiff had standing where EPA’s
refusal to regulate manmade greenhouse gas emissions
19
“contribute[d]” to injuries). The Court therefore concludes that
Plaintiffs’ injuries are fairly traceable to the Postal Policy
Changes.
Second, Defendants argue that, “because Plaintiffs cannot
show that these policy changes are causing the current delays,
they also cannot show that an injunction against these policy
changes will redress the delays.” Defs.’ Reply, ECF No. 74 at
10. However, as described above, the Plaintiffs have established
that the Postal Policy Changes are fairly traceable to the
delays in mail delivery. Therefore, a decision in favor of
Plaintiffs would redress their alleged injuries.
Third, Defendants argue that, “even if Plaintiffs could
establish causation or redressability, they cannot establish
that the alleged USPS policy changes will cause material mail
delays that will inflict any injury upon Plaintiffs in
particular.” Defs.’ Reply, ECF No. 74 at 11. Though Defendants
do not provide any clarification on what would constitute a
“material” mail delay or offer any case law supporting their
contention, the Court concludes that the record evidence
demonstrating a significant decline in service scores in
Plaintiffs’ jurisdictions beginning in July 2020, as well as
testimony that mail delays were indeed causing issues with
voting procedures in the relevant jurisdictions, suffice. See
Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2565 (2019)
20
(“Several state respondents here have shown that if noncitizen
households are undercounted by as little as 2% . . . they will
lose out on federal funds that are distributed on the basis of
state population. That is a sufficiently concrete and imminent
injury to satisfy Article III, and there is no dispute that a
ruling in favor of respondents would redress that harm.”).
Moreover, Plaintiffs have provided evidence that mail delays
impeded their ability to combat the spread COVID-19, impeded
their ability to provide safe alternatives to in-person voting,
imposed “direct financial costs to state and local agencies,”
and imposed “administrative burdens . . . on state and local
agencies.” See Adinaro Decl., ECF No. 59-1 ¶ 9; Banks Decl., ECF
No. 59-2 ¶¶ 7–9; Kellner Decl., ECF No. 59-13 ¶¶ 11, 16–17, 19;
Ku Decl., ECF No. 59-14 ¶¶ 8-10, 13; Newton Decl., ECF No. ECF
No. 59-16 ¶¶ 13–16; Roye Decl., ECF No. 59-18 ¶¶ 5, 11–13; Shah
Decl., ECF No. 59-19 ¶¶ 3, 5-6, 10; Roye Suppl. Decl., ECF No.
59-24 ¶¶ 13, 18-20. And though Defendants claim that these
injuries were “self-inflicted” and therefore “insufficient to
confer standing,” Defs.’ Mot., ECF No. 66-1 at 26, Plaintiffs
here are not attempting to “manufacture standing merely by
inflicting harm on themselves,” Clapper v. Amnesty Int’l USA,
568 U.S. 398, 416 (2013); see also District of Columbia v. U.S.
Dep’t of Agric., 444 F. Supp. 3d 1, 35 (D.D.C. 2020) (“[S]elf-
inflicted generally means curable by the moving party without an
21
injunction.”). Rather, Plaintiffs suffered injuries in response
to the effects of the significant USPS changes; in other words,
“Plaintiffs could not otherwise avoid these injuries absent the
relief sought through this litigation,” Pls.’ Opp’n, ECF No. 71
at 17.
Finally, this Court has also already rejected Defendants’
argument that States cannot bring parens patriae claims against
the federal government. See New York, 490 F. Supp. 3d at 244.
The evidence before the Court demonstrates that Plaintiffs’
efforts to mitigate the spread of COVID-19 are aimed at
protecting the public health of their respective jurisdictions
as a whole. See Banks Decl., ECF No. 59-2 ¶¶ 7–9; Newton Decl.,
ECF No. ECF No. 59-16 ¶¶ 13–16; Roye Decl., ECF No. 59-18 ¶¶ 5,
11–13; Roye Suppl. Decl., ECF No. 59-24 ¶¶ 13, 18-20; Ku Decl.,
ECF No. 59-14 ¶¶ 8-10, 13; Shah Decl., ECF No. 59-19 ¶¶ 3, 5-6,
10; Adinaro Decl., ECF No. 59-1 ¶ 9; Kellner Decl., ECF No. 59-
13 ¶¶ 11, 16–17, 19. Impeding these mitigation efforts results
in harm to Plaintiffs as well as the residents of the states.
See Air All. Houston v. EPA, 906 F.3d 1049, 1059-60 (D.C. Cir.
2018) (holding that State petitioners had “demonstrated their
independent proprietary interests in avoiding chemical releases
in their territory sufficient to support standing”); cf. New
York v. U.S. Dep’t of Homeland Sec., 475 F. Supp. 3d 208, 226–27
(S.D.N.Y. 2020) (finding that the State plaintiffs adequately
22
demonstrated irreparable harm where the governmental “Plaintiffs
provide[d] ample evidence that the [challenged conduct] deters
immigrants from seeking testing and treatment for COVID-19,
which in turn impedes public efforts in the Governmental
Plaintiffs jurisdictions to stem the spread of the disease”),
stayed on other grounds, No. 20-2537, 974 F.3d 210, (2d Cir.
Sept. 11, 2020).
In view of the above, the Court concludes that Plaintiffs
have standing.
B. 39 U.S.C. § 3661(b)
Plaintiffs first argue that the Court should grant them
summary judgment on their claim that Defendants violated 39
U.S.C. § 3661(b) by failing to ask the PRC for an advisory
opinion prior to implementing the Postal Policy Changes. See
Pls.’ Mot., ECF No. 60 at 27. Section 3661(b) provides that
“[w]hen the Postal Service determines that there should be a
change in the nature of postal services which will generally
affect service on a nationwide or substantially nationwide
basis, it shall submit a proposal, within a reasonable time
prior to the effective date of such proposal,” to the PRC
“requesting an advisory opinion on the change.”
For the reasons discussed below, the Court grants
Plaintiffs’ motion for summary judgment on this claim.
23
1. The Court Has Subject-Matter Jurisdiction Over
Plaintiffs’ Section 3661 Claim
Defendants argue that this Court lacks subject-matter
jurisdiction over Plaintiffs’ Section 3661 claim because
complaints regarding Section 3661 must first be lodged with the
PRC, with any appeals directed to the United States Court of
Appeals for the D.C. Circuit. See Defs.’ Mot., ECF No. 66-1 at
27. The Court disagrees.
Pursuant to 39 U.S.C. § 409(a), “[e]xcept as otherwise
provided in this title, the United States district courts shall
have original but not exclusive jurisdiction over all actions
brought by or against the Postal Service.” 39 U.S.C. § 409(a);
see also 28 U.S.C. § 1339 (“The district courts shall have
original jurisdiction of any civil action arising under any Act
of Congress relating to the postal service.”). As is relevant
here, Section 3661, entitled “Postal services,” provides:
(a) The Postal Service shall develop and
promote adequate and efficient postal
services.
(b) When the Postal Service determines that
there should be a change in the nature of
postal services which will generally affect
service on a nationwide or substantially
nationwide basis, it shall submit a
proposal, within a reasonable time prior to
the effective date of such proposal, to the
Postal Regulatory Commission requesting an
advisory opinion on the change.
(c) The Commission shall not issue its
opinion on any proposal until an opportunity
24
for hearing on the record under sections 556
and 557 of title 5 has been accorded to the
Postal Service, users of the mail, and an
officer of the Commission who shall be
required to represent the interests of the
general public. The opinion shall be in
writing and shall include a certification by
each Commissioner agreeing with the opinion
that in his judgment the opinion conforms to
the policies established under this title.
Next, Section 3662, entitled “Rate and service complaints,”
provides that “[a]ny interested person . . . who believe[s] the
Postal Service is not operating in conformance with the
requirements of a provision of . . . this chapter (or
regulations promulgated under any of these provisions) may lodge
a complaint with the Postal Regulatory Commission.” If such a
complaint is lodged with the PRC, Section 3662(b) requires that
the PRC respond within 90 days by either “begin[ning]
proceedings” or “issu[ing] an order dismissing the complaint.”
39 U.S.C. § 3662(b). Section 3663 provides that a petition for
review may be filed with the D.C. Circuit by any “adversely
affected or aggrieved by a final order or decision” of the PRC.
39 U.S.C. § 3663.
“Whether a statute is intended to preclude initial judicial
review is determined by the statute’s language, structure, and
purpose, its legislative history, and whether the claims can be
afforded meaningful review.” Thunder Basin Coal Co. v. Reich,
510 U.S. 200, 207 (1994) (internal citation omitted). Here,
25
Section 3662’s use of the word “may” in describing the right to
file a complaint with the PRC suggests that the avenue for PRC
review of certain claims is permissive. See Bennett v. Panama
Canal Co., 475 F.2d 1280, 1282 (D.C. Cir. 1973) (“Ordinarily
‘may’ is a permissive not a mandatory term.”). Indeed, the
statute consistently uses the word “may” when setting forth the
procedure for filing complaints and for seeking appellate review
of the PRC’s determination (or failure to make a determination):
any interested person “may” lodge a complaint with the PRC, and
if the interested person is unsatisfied with the response or
does not receive a timely response, they “may” file a petition
with the D.C. Circuit. 39 U.S.C. §§ 3662(a), 3663; see also id.§ 3662(a) (stating the PRC “may” prescribe the “form and manner”
of complaints); id. § 3662(d) (“[T]he Postal Regulatory
Commission may order, based on the nature, circumstances,
extent, and seriousness of the noncompliance, a fine (in the
amount specified by the Commission in its order) for each
incidence of noncompliance.” (emphasis added)). Moreover, the
use of the permissive “may” coupled with the use of the
mandatory “shall” elsewhere in the statute further suggests that
Sections 3662(a) and 3663 were not intended to be the exclusive
avenue for bringing a procedural challenge to the USPS’s failure
to comply with Section 3661. See Bennett, 475 F.2d at 1282(“[T]he permissive interpretation is conclusively proven to be
26
correct [together with the particular legislative history] by
the fact that when in the same statute Congress intended a
mandatory direction it used the auxiliary ‘shall’ not ‘may’-a
contrast which is generally significant . . . .”); see, e.g., 39
U.S.C. § 3662(b) (stating that the PRC “shall” respond to
complaints within 90 days). This interpretation is strengthened
because the statute also expressly provides that this Court has
original jurisdiction “over all actions brought by or against
the Postal Service” unless “otherwise provided in [title 39].”
39 U.S.C. § 409(a).
Defendants argue, however, that “[g]enerally, when Congress
creates procedures designed to permit agency expertise to be
brought to bear on particular problems, those procedures are to
be exclusive.” Defs.’ Mot., ECF No. 66-1 at 28 (quoting Free
Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477,
589 (2010)). According to Defendants, “numerous courts of
appeals have held that 39 U.S.C. §§ 3662 through 3664 constitute
the exclusive jurisdictional remedy for complaints about postal
services that fall within the statutory provisions identified in
[S]ection 3662, which includes a claim that the Postal Service
is not complying with [S]ection 3661.” Defs.’ Mot., ECF No. 66-1
at 27.
But, as stated above, the text of the statute itself does
not indicate that Congress intended the PRA to be the exclusive
27
avenue for bringing complaints of alleged ultra vires action.
See Kaufman v. Nielsen, 896 F.3d 475, 485 (D.C. Cir. 2018)
(presuming an undefined term “carries its ordinary meaning at
the time the provision was enacted”); cf. Am. Postal Workers
Union, AFL-CIO v. USPS, No. 06-cv-726 (CKK), 2007 WL 2007578, at
*7 (D.D.C. July 6, 2007) (noting that plaintiff’s Section
3661(b) claim that USPS failed to ask for an advisory opinion
from the PRC “appears to be properly brought before this Court
pursuant to 39 U.S.C. § 409”). The statute’s legislative history
also does not suggest such a reading. Rather, in the discussion
of the section of the PRA that established the “procedures for
changes in postal service,” the House Committee Report states
the “[t]he postal service is—first, last, and always—a public
service” and that the PRA “require[s] [Postal Services
management] to seek out the needs and desires of its present and
potential customers—the American public.” H.R. Rep. No. 91-1104
at 3668. The Committee Report describes provisions in the Act
that “contain[] specific provisions requiring justification and
review of changes in service.” Id.; see also Buchanan v. U.S.
Postal Serv., 508 F.2d 259, 263 n.6 (5th Cir. 1975) (“[T]he
procedures mandated by [Section] 3661 are sufficiently elaborate
to amount to a significant impediment in the path of the
decision-making process of the Postal Service.”).
28
Moreover, as this Court previously explained in its
September 27, 2020 Memorandum Opinion, none of the case law
Defendants cite as support for their arguments are binding on
this Court. Neither did any of the cases “involve[] a claim that
the USPS circumvented the process required when making a ‘change
in the nature of postal services which will generally affect
service on a nationwide or substantially nationwide basis.’”
Pennsylvania v. DeJoy, 490 F. Supp. 3d 833, 861 (E.D. Penn.
2020) (analyzing similar case law and finding that “[a]lthough
these lawsuits were largely filed by pro se plaintiffs who were
likely without the legal background to ground their claims in a
specific statutory provision, the overwhelming majority of the
claims at issue are precisely captured by section 3661(a), which
requires the Postal Service to provide adequate and efficient
service to the public.”). The Court finds this distinction to be
significant, given that the “claims in the cases cited by
Defendants” largely deal with “the adequacy and efficiency of
service under [S]ection 3661(a),” which “can most properly be
characterized as localized service-related disputes,” 4 while
4 See Foster v. Pitney Bowes Corp., 549 F. App’x 982, 986 (Fed.
Cir. 2013) (alleged “fraud, conversion, unjust enrichment, and
misappropriation of trade secrets”); LeMay v. U.S. Postal Serv.,
450 F.3d 797, 799-800 (8th Cir. 2006) (alleged breach of
contract); Bovard v. U.S. Post Office, 47 F.3d 1178 (10th Cir.
1995) (alleged discrimination, libel, and slander); Pep-Wku, LLC
v. USPS, No. 20-cv-0009-GNS, 2020 WL 2090514, at *3 (W.D. Ky.
Apr. 30, 2020) (alleged refusal to properly deliver mail);
29
“Plaintiffs’ core challenge is that the Postal Service acted
outside of its authority in making changes without consulting
first with the Commission in violation of section 3661(b),”
which is “a wholly separate provision” that “focuses on the
process to which the Postal Service must adhere.” Id. at 861-62.
Defendants argue, however, that despite the above, “[a]
number of considerations militate against allowing courts to
short-circuit an established administrative review process,
including respect for Congress’s conferral of administrative
autonomy; administrative expertise and discretion as to
specialized, complex problems; development of an initial factual
record; conservation of judicial resources; and avoidance of
McClintock v. United States, No. 3:18-CV-01937-SB, 2020 WL
1868264, at *2 (D. Or. Mar. 18, 2020) (alleged improper mail
delivery); McDermott v. Potter, No. C09-0776RSL, 2009 WL
2971585, at *3 (W.D. Wash. Sept. 11, 2009) (Freedom of
Information Act, the Employee Retirement Income Security Act of
1974, and the Postal Accountability and Enforcement Act of 2006
claims relating to closure of mail center and alleged job
outsourcing); Rodriguez v. Hemit, No. C16-778 RAJ, 2018 WL
3618260, at *2 (W.D. Wash. July 30, 2018) (alleged harassment);
Striley v. U. S. Postal Serv., No. 16-CV-07233-HRL, 2017 WL
513166, at *3 (N.D. Cal. Feb. 8, 2017) (alleged unlawful
increase of the rates for post office box, crammed box full of
advertising materials, and failed to deliver an article of
mail); Murphy v. U.S. Postal Serv., No. C 14-02156 SI, 2014 WL
4437731, at *3 (N.D. Cal. Sept. 9, 2014) (alleged improper
denial of services; Powell v. U.S. Postal Serv., No. CV 15-
12913-FDS, 2016 WL 409672, at *1–2 (D. Mass. Feb. 2, 2016)
(alleged refusal to deliver mail); see also Sears, Roebuck & Co.
v. U.S. Postal Serv., 134 F. Supp. 3d 365, 382 (D.D.C. 2015)
(alleged unreasonable interpretation of the Domestic Mail
Manual).
30
conflicting litigation.” Defs.’ Mot., ECF No. 66-1 at 28-29
(citing Nader v. Volpe, 466 F.2d 261, 265-68 (D.C. Cir. 1972)).
But while the concerns listed in Nader may generally apply in
such situations, the D.C. Circuit in Nader also explained that
“when Congress has specified a procedure for judicial review of
administrative action, courts will not make nonstatutory
remedies available without a showing of patent violation of
agency authority or manifest infringement of substantial rights
irremediable by the statutorily-prescribed method of review.”
466 F.2d at 266. As Plaintiffs point out, their “ultra vires
claim involves the very type of ‘violation of agency authority’
contemplated by the court in Nader.” Pls.’ Reply, ECF No. 71 at
22.
Finally, the Court considers whether the claim may be
reviewed because there is no other meaningful or adequate avenue
for judicial review. See Thunder Basin Coal Co., 510 U.S. at
307. District court jurisdiction may not be implicitly precluded
based on consideration of the following factors: (1) if “a
finding of preclusion could foreclose all meaningful judicial
review”; (2) if the claim is “wholly collateral to a statute’s
review provisions”; and (3) if the claims are “outside the
agency’s expertise” to discern “whether the particular claims at
issue fall outside an overarching congressional design.” Jarkesy
31
v. SEC, 803 F.3d 9, 17 (D.D.C. 2015) (quoting Free Enter. Fund,
561 U.S. at 489-90).
The Court previously held in its September 27, 2020
Memorandum Opinion that precluding district court jurisdiction
here would deny Plaintiffs meaningful review because: (1)
“Plaintiffs have shown that the USPS implemented dramatic
operational changes that have resulted in delayed mail that
‘have negatively affected and will continue to negatively affect
Plaintiffs’ ability not only to provide necessary services to
residents in need and administer their own laws and regulations,
but also to protect public health by providing safe and
effective means to vote by mail in the upcoming general
election,’” 490 F. Supp. 3d at 239-40 (citing Berkley v.
Mountain Valley Pipeline, LLC, 896 F.3d 624, 631 (4th Cir.
2018); Kreschollek v. S. Stevedoring Co., 78 F.3d 868, 875 (3d
Cir. 1996)); (2) “the relief Plaintiffs seek cannot be
meaningfully redressed through filing a Section 3662 complaint,”
id. at 240; and (3) “Plaintiffs’ procedural claim does not
require the “agency expertise” the statutory procedures
contemplate,” id.
Defendants now contend that “even if Plaintiffs could have
established these elements when they moved for a preliminary
injunction, they certainly cannot do so now” because “any
alleged election-related injuries will be moot at or immediately
32
after the time the Court issues a decision,” and “Plaintiffs
identify no reason why the PRC could not provide meaningful
relief as to any non-election injuries that Plaintiffs allege
are ongoing.” Defs.’ Mot., ECF No. 66-1 at 32. However, the
Court’s conclusion in its September 27, 2020 Memorandum Opinion
was not limited to election-related injuries—the Court also
noted that the Postal Policy Changes negatively affected and
would continue to be negatively affect Plaintiffs’ ability to
provide necessary services to residents in need and administer
their own laws and regulations. 490 F. Supp. 3d at 239-40. Thus,
the Court disagrees that Plaintiffs’ injuries are moot.
In view of the above, the Court concludes it has subject-
matter jurisdiction over Plaintiffs’ claim. See Buchanan v.
USPS, 375 F. Supp. 1014, 1017 (N.D. Ala. 1974), aff’d in part,
vacated in part, 508 F.2d 259 (5th Cir. 1975); Washington v.
Trump, 487 F. Supp. 3d 976, 981 n.1 (E.D. Wash. 2020) (finding
it likely that “39 U.S.C. § 3662 does not limit this Court’s
jurisdiction” because (1) “[b]y its terms, § 3662 is
discretionary, not mandatory”; (2) “Section 3662 does not divest
district courts of the broad jurisdiction granted to them under
28 U.S.C. § 1339 over ‘any civil action arising under any Act of
Congress relating to the postal service,’ nor the grant of
‘jurisdiction over all actions brought by or against the Postal
Service’ in 39 U.S.C. § 409(a)”; and (3) “[Section] 3662
33
encompasses claims that the Postal Service has failed to adhere
to its rate and service standards or that those standards are
inadequate,” which “is not the case here”).
2. Plaintiffs’ Section 3661 Claim Is Reviewable Pursuant
to the Ultra Vires Doctrine
Defendants also argue that Plaintiffs’ Section 3661 claim
is not subject to judicial review. Defs.’ Mot., ECF No. 66-1 at
32. Defendants argue that (1) Section 3661 expressly precludes
judicial review, and (2) Plaintiffs have not demonstrated that
USPS is acting “in excess of its delegated powers and contrary
to a specific prohibition.” Id. (quoting DCH Reg’l Med. Ctr. v.
Azar, 925 F.3d 503, 509 (D.C. Cir. 2019)).
“Even where Congress is understood generally to have
precluded review, the Supreme Court has found an implicit but
narrow exception, closely paralleling the historic origins of
judicial review for agency actions in excess of jurisdiction,”
Griffith v. FLRA, 842 F.2d 487, 492 (D.C. Cir. 1988), and, as
the Court explained above, the right to file a complaint with
the PRC is not exclusive. Moreover, Section 3661 is a “clear and
specific statutory mandate” involving “positive statutory
commands.” Nat’l Air Traffic Controllers Ass’n AFL-CIO v. Fed.
Serv. Impasses Panel, 437 F.3d 1256, 1263 (D.C. Cir. 2006).
Because the statutory provision “plainly delineates the outer
limits of agency authority,” the claim is subject to review for
34
ultra vires acts. Nat’l Ass’n of Postal Supervisors v. USPS, 26
F.4th 960, 972 (D.C. Cir. 2022).
3. USPS Failed to Comply with Section 3661(b)
The scope of non-APA review includes, among other things,
“a straightforward question of statutory interpretation.” Nat’l
Ass’n, 602 F.2d at 432. In conducting this review, “[t]he
judicial role is to determine the extent of the agency’s
delegated authority and then determine whether the agency has
acted within that authority. In this as in other settings,
courts owe a measure of deference to the agency’s own
construction of its organic statute, but the ultimate
responsibility for determining the bounds of administrative
discretion is judicial.” Id. at 432-33 (internal citations
omitted).
Section 3661(b) provides that “[w]hen the Postal Service
determines that there should be a change in the nature of postal
services which will generally affect service on a nationwide or
substantially nationwide basis, it shall submit a proposal,
within a reasonable time prior to the effective date of such
proposal, to the Postal Regulatory Commission requesting an
advisory opinion on the change.” There is no dispute that the
USPS did not submit a proposal to the PRC prior to implementing
the Postal Policy Changes at issue in this case.
35
Persuasive authority has construed Section 3661(b) as
follows:
The language of the statute . . . indicates
that three factors must coexist before 3661
applies. First, there must be a ‘change.’ This
implies that a quantitative determination is
necessary. There must be some meaningful
impact on service. Minor alterations which
have a minimal effect on the general class of
postal users do not fall within 3661. Second,
the change must be ‘in the nature of postal
services.’ This involves a qualitative
examination of the manner in which postal
services available to the user will be
altered. Third, the change must affect service
‘on a nationwide or substantially nationwide
basis.’ A broad geographical area must be
involved. These three factors combine to
demonstrate that Congress intended the
safeguards of 3661 to apply only when changes
of significance were contemplated.
Buchanan, 508 F.2d at 263.
The Court concludes that Defendants violated Section
3661(b) by failing to submit a proposal to the PRC prior to
implementing its changes.
First, the record demonstrates that there was a “change”
that had a “meaningful impact on service.” Buchanan, 508 F.2d at
263. As the Court explained in Section III.A, there was a
meaningful drop in service performance immediately following the
implementation of the Postal Policy Changes. In particular, the
changes to and impacts on the USPS transportation schedule
contributed to the decline in on-time delivery rates in July
36
2020. See Grimmer Suppl. Decl., ECF No. 59-23; Pls.’ Ex. 52,
Aug. 13, 2020 Message from the Postmaster General, ECF No. 59-52
at 2-3 (noting that USPS had “reduced extra trips by 71 percent”
and that “this transformative initiative . . . impacted our
overall service levels”); Defs.’ Ex. 13, Transcript of Senate
Homeland Security and Governmental Affairs Committee Hearing
(Aug. 21, 2020), ECF No. 66-17 (explaining that the “dip in our
service level” was due to the mitigation of extra trips, the
COVID-19 pandemic, and employee availability); USPS Office of
Inspector General, Operational Changes to Mail Delivery (October
19, 2020), ECF No. 63-1 at 5 (“The Postal Service’s mail service
performance significantly dropped beginning in July 2020,
directly corresponding to implementation of the operational
changes and initiatives.”). For example, Defendants concede that
“[t]he drop in on-time delivery during the week of August 8,
2020 meant that approximately 85 million more deliveries were
late that week than they would have been prior to the challenged
changes.” Defs.’ Counter-Statement of Disputed Facts, ECF No.
67-1 at 33. USPS has also acknowledged the connection between
the decrease in service performance and its efforts to mitigate
late and extra trips nationwide, and further data demonstrates
that service scores had not fully rebounded by October 2020.
See, e.g., Grimmer Suppl. Decl., ECF No. 59-23; Pls.’ Ex. 43,
July 10, 2020 Mandatory Stand-up Talk, ECF No. 59-43 at 2
37
(stating that because “late trips are no longer authorized or
accepted” and “[e]xtra trips are no longer authorized or
accepted,” there would be “mail left behind or mail on the
workroom floor or docks (in P&DCs), which is not typical”). In
addition, the pace of the removal of high-speed sorting machines
was accelerated in 2020. In fiscal year 2020, USPS reduced 711
high-speed sorting machines—600 of which were announced on June
17, 2020—representing an approximately 14.7 percent reduction in
the number of machines nationwide. See DeChambeau Decl., ECF No.
30-2 ¶ 21; Pls.’ Ex. 37, ECF No. 59-37.
Defendants, however, argue that because it “never
prohibited extra or late trips” and only developed “written
guidance clarifying the circumstances under which late and extra
trips were acceptable,” USPS did not initiate a “change” within
the meaning of Section 3661. Defs.’ Mot., ECF No. 66-1. However,
the evidence on this point is conflicting. Compare Pls.’ Ex. 41,
ECF No. 59-41 (Area Vice President distributed a “Mandatory
Stand-Up Talk” directing that late trips and extra trips “are no
longer authorized and accepted”), and Cintron Suppl. Decl., ECF
No. 39-1 (postal workers contacting USPS officials to get
clarification on whether late and extra trips were banned), and
Email Re: Cintron Guidelines, Ex. 45, ECF No. 59-45 at 2 (“focus
is to eliminate unplanned extra transportation,” “[d]eviations
to the extent possible should be utilized to eliminate extras,”
38
and “[t]rips must depart on time”), with Defs.’ Mot., ECF No.
66-1 at 24 (describing the Cintron Guidelines as “simply
identify[ing] when late and extra trips may improve overall
efficiency”). And even if the official policy was never to “ban”
such trips, the “focus” was to eliminate them. See Pls.’ Ex. 45,
ECF No. 59-45 (stating that the “focus is to eliminate unplanned
extra transportation,” “[d]eviations to the extent possible
should be utilized to eliminate extras,” and “[t]rips must
depart on time”). In addition, though Defendants now take the
position that their actions in June and July 2020 did not
constitute “changes,” their position is not supported based on
USPS’s own statements. See Email from Mr. DeJoy to All
Employees, August 13, 2020, ECF No. 12-22 at 2 (“In order to
transform . . . we must make a significant number of changes
that will not be easy . . . .”); id. (“Unfortunately, this
transformative initiative has had unintended consequences that
impacted our overall service levels. However, recent changes are
not the only contributing factors.”); id. at 3 (“I ask that you
bear with me while we work through these changes to transform
for the better . . . .”).
The Court is also unpersuaded by Defendants’ argument that
a “change” only encompasses “new” policies, and as such the
agency’s removal of sorting machines is not a change because it
was part of a years-long process. See Defs.’ Mot., ECF No. 66-1
39
at 35. Although the Postal Service may have been removing excess
machines from its facilities since 2017, “the pace of removals
was accelerated beginning in June 2020.” USPS Office of
Inspector General, Operational Changes to Mail Delivery (October
19, 2020), ECF No. 63-1 at 4; see also DeChambeau Decl., ECF No.
30-2 ¶ 21 (noting rate of reductions of sorting machines).
Second, the changes were “in the nature of postal
services,” 39 U.S.C. § 3661(b), because they qualitatively
altered “the manner in which postal services [are] available to
the user,” Buchanan, 508 F.2d at 263. As stated above, the
record evidence shows that changes in transportation policies
resulted in nationwide delays.
Third, the changes affected service “on a nationwide or
substantially nationwide basis,” 39 U.S.C. § 3661(b), because
“[a] broad geographical area [was] involved,” Buchanan, 508 F.2d
at 263. As stated above, the record demonstrates that the
changes resulted in delays on a nationwide basis.
Despite the above, Defendants argue that the PRC’s
interpretations of Section 3661(b) are entitled to deference.
Defs.’ Mot., ECF No. 66-1 at 34-35. According to Defendants, the
PRC has interpreted the section to require USPS to submit a
proposal only when an action or program “has as its goal, or
will have as a reasonably foreseeable effect, an appreciable
alteration in the accessibility of postal services to the public
40
or in the type and quality of postal services offered to the
public which is substantial and extends over a broad
geographical area.” Id. at 34 (citations omitted). Put another
way, USPS is required to seek an advisory opinion “only if the
complainant can show (1) ‘that the Postal Service has already,
or [plans] to implement, new service standards’ or (2) ‘that the
Postal Service is knowingly and/or intentionally denigrating
service.’” Id. (citations omitted). Defendants argue that they
did not violate Section 3661(b) because they did not knowingly
or intentionally denigrate service. Id. at 36-37.
However, there is no evidence that Defendants analyzed the
impacts its changes would have on overall service standards
prior to implementing multiple changes at the same time. See,
e.g., USPS Office of Inspector General, Operational Changes to
Mail Delivery (October 19, 2020), ECF No. 63-1 at 4 (“While the
Postal Service estimated workhour savings for many of the
initiatives, it did not complete a study or analysis of the
impact the changes would make on mail service prior to
implementation.”). Permitting USPS to avoid the requirements of
Section 3661(b) because it refused to study the consequences of
its changes prior to implementation would stand in conflict with
the purpose of Section 3661(b). As the Court stated in its
September 27, 2020 Memorandum Opinion, “Congress clearly
intended Section 3661 to require an opportunity for public
41
participation and for independent review before the USPS
implements service changes that will have a broad effect,” and
“[t]he broad scope of the Postal Policy Changes demonstrates on
its face that it is precisely the kind of change that is to be
the subject of the public-participation and independent review
safeguards provided by Section 3661.” New York, 490 F. Supp. 3d
at 243.
The Court also is not persuaded that it was not
“foreseeable” that the simultaneous implementation of multiple
policy changes during the height of the pandemic would
negatively impact service. See, e.g., Pls.’ Ex. 43, July 10,
2020 Mandatory Stand-up Talk, ECF No. 59-43 at 2 (stating that
because “late trips are no longer authorized or accepted” and
“[e]xtra trips are no longer authorized or accepted,” there
would be “mail left behind or mail on the workroom floor or
docks (in P&DCs), which is not typical”); see also USPS Office
of Inspector General, Operational Changes to Mail Delivery
(October 19, 2020), ECF No. 63-1 at 4 (“These initiatives
undertaken individually may not have been significant. However,
launching all of these efforts at once, in addition to the
changes instituted by the Postmaster General, had a significant
impact on the Postal Service.”).
Finally, Defendants argue that Plaintiffs’ ultra vires
claim should fail because they have a “meaningful and adequate
42
means of vindicating [their] statutory rights” by filing a
complaint with the PRC. Defs.’ Mot., ECF No. 66-1 at 38-39.
However, because of the nature of Plaintiffs’ claims and because
of the impending general election at the time Plaintiffs filed
suit, forcing Plaintiffs to raise their claims administratively
would not have afforded them meaningful vindication of their
right to notice and opportunity to participate as required under
Section 3661(b) in a timely manner. See New York, 490 F. Supp.
3d at 243.
C. 39 U.S.C. §§ 101 and 403
Plaintiffs next argue that the implementation of certain
Postal Policy Changes constituted ultra vires action in
violation of 39 U.S.C. §§ 101 and 403. For the reasons below,
the Court disagrees.
1. Sections 101 and 403 Claims Are Reviewable Pursuant to
the Ultra Vires Doctrine
Defendants first argue that Plaintiffs’ 39 U.S.C. §§ 101and 403 claims are not subject to judicial review under the
ultra vires doctrine. The parties do not contest that there is
no express statutory preclusion of all judicial review and that
there is no alternative procedure for review of the statutory
claim. Rather, Defendants contend that “[u]ltra vires review is
not available where a statute leaves an agency with discretion
in how to comply with broadly articulated aims or goals,” and
here, the provisions in Sections 101 and 403 are “statements of
43
broad policies that the Postal Service strives toward in
exercising its ‘significant’ discretion that the PRA gives the
Postal Service over its operations pertaining to the handling,
collection, transportation, and delivery of mail.” Defs.’ Mot.,
ECF No., 66-1 at 40-41.
Defendants’ arguments, however, rely on a district court
case—Nat’l Ass’n of Postal Supervisors v. USPS, No. 19-2236,
2020 WL 4039177 (D.D.C. July 17,2020)—that the D.C. Circuit has
since reversed in Nat’l Ass’n of Postal Supervisors v. USPS
(“NAPS”), 26 F.4th 960 (D.C. Cir. 2022). In NAPS, the circuit
court considered whether 39 U.S.C. §§ 101(c), 1003(a), and 1004
were subject to judicial review. 26 F.4th at 970. These
provisions—found in the same Act as those at issue in this case—
provided that the Postal Service “‘shall’ consult with
recognized organizations, maintain ‘adequate and reasonable
differentials in rates of pay’ between supervisors and clerks
and carriers, and ‘achieve and maintain compensation for its
officers and employees comparable to the rates and types of
compensation paid in the private sector.’” Id. at 972 (quoting
39 U.S.C. §§ 101(c), 1003(a), 1004(a), (b)). The court held that
the provisions were subject to judicial review pursuant to the
ultra vires doctrine because, among other things, they contained
“explicit language stating what the Postal Service ‘shall’ do,”
which was “undoubtedly mandatory” language. Id. at 971 (citing
44
Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 172
(2016)). Notably, in reaching its decision, the circuit court
took no issue with discretionary language used in 39 U.S.C. §
1004(a), which granted USPS the authority to decide whether the
required pay differential was “adequate and reasonable.” Id. at
971-72. The D.C. Circuit also explained that the mere use of the
word “policy” in a statute “does not presumptively make a
directive voluntary.” Id. at 971. Rather, in view of the
“mandatory” language of the provisions at issue, Congress had
“expressly removed certain policy choices” from USPS. Id.
In view of the NAPS decision, the Court rejects Defendants’
arguments that any statute that leaves an agency with discretion
is not subject to judicial review, or that the directives
contained in Sections 101 or 403 are unenforceable policy goals.
See id. at 970 (“While a court ‘can defer to the exercise of
administrative discretion on internal management matters, . . .
[we] cannot abdicate [our] responsibility to insure compliance
with congressional directives setting the limits on that
discretion.’” (quoting Nat’l Ass’n of Postal Supervisors v.
USPS, 602 F.2d 420, 432 (D.C. Cir. 1979))). Sections 101(a)-(b),
(e), and 403(a)-(b) each incorporate either the mandatory term
“shall” or the mandatory phrase “[i]t shall be the
responsibility of” in requiring USPS to take certain actions.
Compare Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach,
45
523 U.S. 26, 35 (1998) (stating that “shall” is “mandatory” and
“normally creates an obligation impervious to judicial
discretion”), with United States v. Rodgers, 461 U.S. 677, 706
(1983) (“The word ‘may,’ when used in a statute, usually implies
some degree of discretion.”). In addition, despite the use of
the term “policy” in Section 101, “Congress effectively mandated
certain policies to be followed by the Postal Service, leaving
no discretion for the agency to do otherwise.” NAPS, 26 F.4th
971.
The Court therefore turns to Plaintiffs’ claims.
2. The Postal Service Did Not Act Ultra Vires In
Violation of Sections 101 and 403
In analyzing Plaintiffs’ Sections 101 and 403 claims, the
Court is “mindful that ‘[r]eviewability and the scope of review
are two separate questions.’” NAPS, 26 F.4th at 972 (quoting
Nat’l Ass’n, 602 F.2d at 432). While the Postal Service may have
“broad discretion” in running its operations, “this does not
mean that its decisions are entirely insulated from judicial
surveillance.” Id. (citation omitted). “The judicial role is to
determine the extent of the agency’s delegated authority and
then determine whether the agency has acted within that
authority.” Nat’l Ass’n, 602 F.2d at 432.
a. Section 101(a)
Section 101(a) of the Act provides that the USPS “shall
provide prompt, reliable, and efficient services to patrons in
46
all areas and shall render postal services to all communities.”
39 U.S.C. § 101(a). Plaintiffs allege that because the Postal
Policy Changes—specifically that Defendants “require[ed] manual
sorting, remov[ed] sorting machines, and eliminat[ed]
commonsense measures to alleviate backlogs”—caused “substantial
delays in mail delivery,” implementation of these changes
violated the text of the section or unreasonably interpreted its
terms. Pls.’ Mot., ECF No. 60 at 39.
Plaintiffs have not shown that Defendants have “patently”
misinterpreted the provision or “clear[ly] departed” from its
mandate. See Fed. Express Corp., 39 F.4th at 762. As the D.C.
Circuit has explained, “vague statutory provisions, such as one
that requires an agency to use ‘appropriate data’ to calculate a
payment amount, are not sufficiently clear and mandatory to
warrant non-APA review.” NAPS, 26 F.4th at 971-72 (citing DCH
Reg’l Med. Ctr. v. Azar, 925 F.3d 503, 509-10 (D.C. Cir. 2019);
see also Nyunt v. Broad. Bd. of Governors, 589 F.3d 445, 449
(D.C. Cir. 2009) (holding that a statutory provision requiring
an agency to hire “suitably qualified” U.S. citizens was not
subject to ultra vires review). Although the terms included in
Section 101(a) may be more definite in nature than “appropriate”
or “suitably,” the provision still “lack[s] discernible
standards by which a court can identify a limit to agency
authority.” NAPS, 26 F.4th at 971-72.
47
Significantly, the statute does not define “prompt,
reliable, and efficient.” In the absence of statutory
definitions, the Court “must presume that Congress intended to
give the term[s] [their] ordinary meaning.” Aid Ass’n for
Lutherans v. USPS, 321 F.3d 1166, 1176 (D.C. Cir. 2003). As
defined by the Merriam-Webster dictionary, “prompt” means “being
ready and quick to act as occasion demands” or “performed
readily or immediately”; “reliable” means “suitable or fit to be
relied on” or “giving the same result on successive trials”; and
“efficient” means “capable of producing desired results with
little or no waste (as of time or materials).” See Prompt
Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/prompt; Reliable, Merriam-Webster
Dictionary, https://www.merriam-webster.com/dictionary/reliable;
Efficient, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/efficient. While there are certainly
potentially egregious actions USPS could take that would fall
outside of these definitions, the terms are largely subjective
and involve a question of degree. Moreover, the terms may at
times conflict with each other—for example, one could imagine a
situation in which the most “reliable” method of mail delivery
is not the most “efficient” or “prompt” method—and are thus
heavily dependent on how the agency decides to weigh its
operational considerations. Ultimately, “it is for the Postal
48
Service and the Postal Service alone to resolve those
conflicts,” Nat’l Ass’n, 602 F.2d at 435, and a claim that “the
agency reached the wrong result” when “validly exercising its
judgment” is not appropriate under the ultra vires doctrine,
Eagle Trust Fund v. USPS, 365 F. Supp. 3d 57, 67 (D.D.C. 2019)
(KBJ). Even if the Court may agree with Plaintiffs that the
Postal Policy Changes resulted in mail delays across the
country, the Court cannot substitute its own judgment of what is
prompt, reliable, and efficient for that of the Postal Service.
See Nat’l Ass’n, 602 F.2d at 433, 435 (stating that courts
“cannot through statutory construction create more precise
standards and rights than Congress elected to create”).
Thus, because Plaintiffs have not shown that Defendants
patently misconstrued Section 101(a) or violated its terms,
Plaintiffs’ claim fails.
b. Section 101(b)
Plaintiffs’ Section 101(b) claim fails for similar reasons.
Section 101(b) provides:
The Postal Service shall provide a maximum
degree of effective and regular postal
services to rural areas, communities, and
small towns where post offices are not self-
sustaining. No small post office shall be
closed solely for operating at a deficit, it
being the specific intent of the Congress that
effective postal services be insured to
residents of both urban and rural communities.
49
39 U.S.C. § 101(b). Plaintiffs argue that “[u]nexplained
reductions in service and removals of equipment, and the
imposition of oddly technical roadblocks to efficient services
not previously in place—all implemented at the same time—
necessarily are less that the ‘maximum degree of effective and
regular postal services.’” Pls.’ Mot., ECF No. 60 at 39.
As an initial matter, Plaintiffs do not include any
allegations or evidence that the Postal Policy Changes
negatively impacted “rural areas, communities, and small towns
where post offices are not self-sustaining” specifically. See
Pls.’ Mot., ECF No. 60 at 39; Pls.’ Reply, ECF No. 71 at 34-35.
Because Section 101(b) refers to effective and regular postal
services only with regard to those types of areas, Plaintiffs’
arguments lack any support.
In addition, though “maximum degree” may have a common-
sense meaning, the terms “effective and regular” are not defined
in the statute. Looking to the dictionary, Merriam-Webster
defines “effective” as “producing a decided, decisive, or
desired effect.” Effective, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/effective. “Regular”
is defined as “constituted, conducted, scheduled, or done in
conformity with established or prescribed usages, rules, or
discipline” or “recurring, attending, or functioning at fixed,
uniform, or normal intervals.” Regular, Merriam-Webster
50
Dictionary, https://www.merriam-webster.com/dictionary/regular.
Again, the definitions of these terms do not provide clear
limits on what the agency must provide to the “maximum degree,”
but rather place considerable discretion in USPS’s hands to
determine its goals and schedules. Moreover, Congress recently
amended Section 101(b) to insert the following language:
The Postal Service shall maintain an
integrated network for the delivery of market-
dominant and competitive products (as defined
in chapter 36 of this title). Delivery shall
occur at least six days a week, except during
weeks that include a Federal holiday, in
emergency situations, such as natural
disasters, or in geographic areas where the
Postal Service has established a policy of
delivering mail fewer than six days a week as
of the date of enactment of the Postal Service
Reform Act of 2022.
39 U.S.C. § 101(b). Reading the entire provision in context thus
strongly suggests that “regular” and “effective” postal services
refers to Congress’s explicit direction that mail delivery occur
six days a week in most circumstances. FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 133 (2000) (“It is a fundamental
canon of statutory construction that the words of a statute must
be read in their context and with a view to their place in the
overall statutory scheme.” (internal quotation marks omitted)).
Here, there is no claim that the Postal Policy Changes resulted
in mail deliveries occurring fewer than six days a week.
51
Plaintiffs therefore have not demonstrated that the Postal
Service acted ultra vires with respect to Section 101(b).
c. Section 101(e)
Plaintiffs next challenge Defendants’ actions under Section
101(e). This provision provides that: “In determining all
policies for postal services, the Postal Service shall give the
highest consideration to the requirement for the most
expeditious collection, transportation, and delivery of
important letter mail.” 39 U.S.C. § 101(e). Plaintiffs argue
that “there is no indication the Postal Service gave any
consideration, let alone highest consideration, to the
expeditious delivery of important letter mail,” when the agency
decided to remove of “hundreds of sorting machines,” prohibit or
drastically curtail late and extra trips, and prevent postal
workers “at nearly 400 facilities from sorting any mail in the
morning before leaving to deliver the mail.” Pls.’ Mot., ECF No.
60 at 38.
Section 101(e) requires that the Postal Service consider
“the requirement for the most expeditious . . . delivery of
important letter mail.” Accordingly, the Court “can compel the
Postal Service to consider” that factor. NAPS, 26 F.4th at 973.
Because Congress did not define “expeditious” within the
statutory scheme, the Court presumes that its ordinary meaning
applies, which is “marked by or acting with prompt efficiency.”
52
Expeditious, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/expeditious; see also Aid Ass’n for
Lutherans, 321 F.3d at 1176. This definition includes two
further terms not subject to precise definition—“prompt” and
“efficiency”—and necessarily requires a balancing of speed
versus resource management. Thus, though the Court may review
the record for evidence of consideration, the Court “cannot
substitute its own judgment of what is” expeditious “for that of
the Postal Service.” NAPS, 26 F.4th at 973 (determining, with
regard to provision that required USPS to “provide adequate and
reasonable differentials in rates of pay,” that a court “can
compel the Postal Service to consider and fulfill the
differential requirement, but . . . cannot substitute its own
judgment of what is adequate and reasonable for that of the
Postal Service”). And contrary to Plaintiffs’ assertion, Section
101(e) does not require the Postal Service to seek guidance from
the PRC, nor does it require the agency to perform its analyses
in any specific form or manner.
With regard to the removal of unnecessary processing
machines, Defendants explained that between 2017 and April 2020,
USPS created and ran a computer model “to determine the optimum
number of machines required for efficient mail processing at
facilities across the nation and monitored the reductions on an
ongoing basis.” DeChambeau Decl., ECF No. 59-33 at 6. The
53
reduction of the number of machines depended upon an “ongoing
analysis of mail volume and mail processing needs nationwide.”
Id. at 8. In May 2020, USPS concluded that based upon its data
monitoring and analysis, it “needed fewer letter and flat
sorting machines and more package machines and/or more workroom
floor space for nonautomated package processing” so that the
agency could “operate more efficiently.” Id. at 6-7. USPS
explained that, in its estimation, “removing unnecessary
machines frees up space for other package-processing machines,
which may be staffed with employees who are no longer needed for
running additional letter or flat mail sorting machines,” and
the greater floor space “accommodate[s] [an] increased volume of
packages.” Id. at 7; see also Barber Decl., ECF No. 66-9 at 3.
And with regard to the prohibition or reduction in late and
extra trips, on June 16, 2020, the USPS Office of the Inspector
General released a report analyzing whether the processing
network was “operating at optimal efficiency and meeting service
standards.” Ex. 14, ECF No. 70-2 at 4. The report noted that in
fiscal year 2019 the Postal Service had spent $280 million in
late and extra transportation, yet the agency “only met service
performance targets for five . . . or 15 percent of the 33 mail
products” that fiscal year. Id. at 5. In view of the decreases
in “operational efficiency,” the Postal Service stated that two
“best practices” to “increase efficiency” included: (1) front-
54
line managers implementing actions “to complete processing
operations early and transport mail on a trip prior to the last
scheduled transportation trip”; and (2) employees “took sorted
packages to the dock, while the processing operations were still
ongoing, in order to have as many mailpieces as possible on the
last scheduled transportation trip rather than having them go
later on extra trips.” Id. In addition, Robert Cintron testified
that prior to July 2020, trainings and meetings were provided to
“management about the need to adhere to transportation
schedules.” Cintron Dep. Tr., ECF No. 66-35 at 20-21.
In view of the record evidence above and because the
statute does not define the term “expeditious,” the Court cannot
hold that USPS clearly acted outside of its statutory authority.
See Eagle Trust Fund, 365 F. Supp. 3d at 67.
d. Section 403(a)
Section 403(a) provides:
The Postal Service shall plan, develop,
promote, and provide adequate and efficient
postal services at fair and reasonable rates
and fees. The Postal Service shall receive,
transmit, and deliver throughout the United
States, its territories and possessions, and,
pursuant to arrangements entered into under
sections 406 and 411 of this title, throughout
the world, written and printed matter,
parcels, and like materials and provide such
other services incidental thereto as it finds
appropriate to its functions and in the public
interest. The Postal Service shall serve as
nearly as practicable the entire population of
the United States.
55
39 U.S.C. § 403(a). Plaintiffs argue that Defendants acted ultra
vires by implementing inadequate and inefficient services. Pls.
Mot., ECF No. 60 at 40.
Plaintiffs first contend the Postal Policy Changes are
inefficient because “[b]y removing sorting machines . . . and by
restricting or banning policies that enabled faster processing
and delivery of mail, the Postal Policy Changes both increase
the amount of effort expended by postal workers and reduce the
Postal Service’s output.” Pls.’ Mot., ECF No. 60 at 41. However,
as explained above, USPS has the discretion to interpret the
term “efficient,” and USPS reached the conclusion that the
removal of machines and reduction of extra and late trips would
create a more efficient system. See, e.g., DeChambeau Decl.,
ECF No. 59-33 at 6-8 (sorting machines); OIG Report, Ex. 14, ECF
No. 70-2 at 4 (late and extra trips). Whether USPS made a
reasonable judgment regarding efficiency is not an appropriate
inquiry under ultra vires review. See Eagle Trust Fund, 365 F.
Supp. 3d at 67.
Plaintiffs also contend that the Postal Policy Changes
undermined the adequacy of postal services by delaying mail,
disrupting Plaintiffs’ plans to administer the 2020 general
election, and threatening the timely delivery of election mail
and public benefits mail. Pls.’ Mot., ECF No. 60 at 42-43.
Plaintiffs argue that “adequate” means, “at minimum, that which
56
is necessary to provide the postal services envisioned by the
PRA.” Id. at 41 (quoting Glob. Tel*Link v. FCC, 866 F.3d 397,
420-21 (D.C. Cir. 2017)). Even if the Court accepts Plaintiffs’
definition of “adequate,” however, the definition still does not
establish clear limits on USPS’s delegated authority. Indeed,
the D.C. Circuit in NAPS held that the word “adequate” is
subject to the Postal Service’s interpretation and that courts
“cannot substitute its own judgment of what is adequate . . .
for that of the Postal Service.” 460 F.4th at 972-73. Though the
circuit court was analyzing a different provision than the one
at issue here, the same reasoning applies.
e. Section 403(b)
Finally, Plaintiffs allege that USPS acted ultra vires in
violation of Section 403(b). The provision states:
It shall be the responsibility of the Postal
Service—
(1) to maintain an efficient system of
collection, sorting, and delivery of the mail
nationwide;
(2) to provide types of mail service to meet
the needs of different categories of mail and
mail users; and
(3) to establish and maintain postal
facilities of such character and in such
locations, that postal patrons throughout the
Nation will, consistent with reasonable
economies of postal operations, have ready
access to essential postal services.
39 U.S.C. § 403(b).
Plaintiffs have failed to show that USPS has “plainly”
stepped “beyond the bounds” of its statutory authority
57
enumerated in Section 403(b). Griffith, 842 F.2d at 493(citation omitted). Undefined terms and phrases such as
“efficient,” “meet the needs of,” and “ready access to essential
postal services” are not sufficiently specific or unambiguous as
to be susceptible to ultra vires review. Id. (citation omitted).
Because ultra vires claims are “confined to extreme agency
error,” Fed. Express Corp., 39 F.4th at 764 (quoting Griffith,
842 F.2d at 493), the Postal Service’s actions are not ultra
vires.
D. The Postal Policy Changes Did Not Violate the Elections
Clause
Next, Plaintiffs contend that “the Postal Policy Changes
violate the Elections Clause of the United States Constitution
because they impair—and were intended to impair—Plaintiffs’
administration of the elections process in their states.” Pls.’
Mot., ECF No. 60 at 44. 5
The Elections Clause of the Constitution, Art. I, § 4, cl.
1, provides that “[t]he Times, Places and Manner of holding
Elections for Senators and Representatives, shall be prescribed
in each State by the Legislature thereof; but the Congress may
at any time by Law make or alter such Regulations.” U.S. Const.,
5 The Court finds that Plaintiffs’ claim is not moot, as
Defendants’ actions in this case “fit comfortably within the
established exception to mootness for disputes capable of
repetition, yet evading review.” FEC v. Wisc. Right to Life,
Inc., 551 U.S. 449, 450 (2007).
58
Art. I, § 4, cl. 1. “In practice, the Clause functions as ‘a
default provision; it invests the States with responsibility for
the mechanics of congressional elections, but only so far as
Congress declines to pre-empt state legislative choices.’”
Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 9
(2013) (quoting Foster v. Love, 522 U.S. 67, 69 (1997)); see
also Cook v. Gralike, 531 U.S. 510, 523 (2001) (“[T]he Elections
Clause grants to the States ‘broad power’ to prescribe the
procedural mechanisms for holding congressional
elections.”(quoting Tashjian v. Republican Party of Conn., 479
U.S. 208, 217 (1986))); U.S. Term Limits, Inc. v. Thornton, 514
U.S. 779, 832 (1995) (“The Framers intended the Elections Clause
to grant States authority to create procedural regulations . . .
.”).
The Postal Service, in implementing the Postal Policy
Changes, has not violated the Elections Clause. As the Supreme
Court has explained, the “function contemplated by [the
Elections Clause] is that of making laws.” Smiley v. Holm, 285
U.S. 355, 366 (1932). Though the implementation of the Postal
Policy Changes contributed to the delay in mail deliveries
nationwide, see generally Grimmer Suppl. Decl., ECF No. 59-23,
which in turn risked a delay in the delivery of mail-in ballots
during an election season, USPS’s actions do not amount to
voting regulations that override the States’ existing
59
regulations, nor do they alter the States’ existing regulations,
see Foster, 522 U.S. at 69 (calling it “well settled” that
Congress has the authority to “override state regulations by
establishing uniform rules for federal elections” (internal
quotation marks omitted) (citation omitted)). It is undisputed
that Plaintiffs’ regulations remain intact.
Neither do Plaintiffs cite to any case law supporting their
position that the Elections Clause grants protection to State
legislatures from federal policies that do not “make or alter”
voting regulations. U.S. Const., Art. I, § 4, cl. 1; see Smiley,
285 U.S. at 366, 368 (explaining that the Elections Clause
“involves lawmaking in its essential features” and that
“limitation[s]” to State legislatures are not “incongruous with
the grant of legislative authority to regulate congressional
elections”). The Court therefore declines to read the Elections
Clause more expansively than either its language or precedent
dictates. See Inter Tribal Council of Ariz., 570 U.S. at 8
(stating that the Elections Clause has only “two functions”:
granting the States the duty to “prescribe the time, place, and
manner” of elections, and granting Congress the “power to alter
those regulations or supplant them altogether”).
E. Scope of Relief
“In the declaratory judgment context, the normal principle
that federal courts should adjudicate claims within their
60
jurisdiction yields to considerations of practicality and wise
judicial administration.” Wilton v. Seven Falls Co., 515 U.S.
277, 288 (1995). “There are no dispositive factors a district
court should consider in determining whether it should entertain
an action brought under the Declaratory Judgment Act.” POM
Wonderful LLC v. FTC, 894 F. Supp. 2d 40, 44 (D.D.C. 2012)
(quoting Comm. on Judiciary v. Miers, 558 F. Supp. 2d 53, 95
(D.D.C. 2008)) (internal quotation marks omitted). The D.C.
Circuit has found the following to be useful considerations: (1)
“whether [declaratory relief] would finally settle the
controversy between the parties”; (2) “whether other remedies
are available or other proceedings pending”; (3) “the
convenience of the parties”; (4) “the equity of the conduct of
the declaratory judgment plaintiff”; (5) “prevention of
procedural fencing”; (6) “the state of the record”; (6) “the
degree of adverseness between the parties”; and “the public
importance of the question to be decided.” Id. (quoting Hanes
Corp. v. Millard, 531 F.2d 585, 592 n.4 (D.C. Cir. 1976)); see
also Glenn v. Thomas Fortune Fay, 222 F. Supp. 3d 31, 35 (D.D.C.
2016) (“[D]eclaratory relief requires a determination of 1) an
actual, substantial controversy, 2) involving an interested
party, 3) that warrants the immediate issuance of a declaratory
judgment.”). Moreover, “[i]n the D.C. Circuit, two criteria are
ordinarily relied upon: 1) whether the judgment will serve a
61
useful purpose in clarifying the legal relations at issue, or 2)
whether the judgment will terminate and afford relief from the
uncertainty, insecurity, and controversy giving rise to the
proceeding.” Glenn, 222 F. Supp. 3d at 36.
“[A] plaintiff seeking a permanent injunction must satisfy
a four-factor test before a court may grant such relief.” eBay
Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). A plaintiff
must demonstrate: “(1) that it has suffered an irreparable
injury; (2) that remedies available at law, such as monetary
damages, are inadequate to compensate for that injury; (3) that,
considering the balance of hardships between the plaintiff and
defendant, a remedy in equity is warranted; and (4) that the
public interest would not be disserved by a permanent
injunction.” Id. Where the federal government is the opposing
party, the balance of equities and public interest factors
merge. See Nken v. Holder, 556 U.S. 418, 435 (2009). 6
Defendants do not contest that the Postal Policy Changes
caused irreparable harm, that no other remedies are available at
law, or that the balance of the equities and public interest
weigh in favor of Plaintiffs. See Defs.’ Mot., ECF No. 66-1 at
52-54. Defendants also do not contest that Plaintiffs meet the
6 Plaintiffs do not seek injunctive or declaratory relief against
the President, see Pls.’ Reply, ECF No. 71 at 42 n.20, and the
Court grants relief against all Defendants other than the
President.
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test for granting declaratory relief. Id. Indeed, the evidence
demonstrates that Plaintiffs suffered harm by impeding their
ability to combat the spread COVID-19, impeding their ability to
provide safe alternatives to in-person voting, imposing “direct
financial costs to state and local agencies,” and imposing
“administrative burdens . . . on state and local agencies.” See
Banks Decl., ECF No. 59-2 ¶¶ 7–9; Newton Decl., ECF No. ECF No.
59-16 ¶¶ 13–16; Roye Decl., ECF No. 59-18 ¶¶ 5, 11–13; Roye
Suppl. Decl., ECF No. 59-24 ¶¶ 13, 18-20; Ku Decl., ECF No. 59-
14 ¶¶ 8-10, 13; Shah Decl., ECF No. 59-19 ¶¶ 3, 5-6, 10; Adinaro
Decl., ECF No. 59-1 ¶ 9; Kellner Decl., ECF No. 59-13 ¶¶ 11, 16–
17, 19. In addition, “[i]t is clearly in the public interest to
mitigate the spread of COVID-19, to ensure safe alternatives to
in-person voting, and to require that the USPS comply with the
law.” New York, 490 F. Supp. 3d at 245. Further, there is no
dispute that declaratory relief would settle the issues before
the parties and that there are no other remedies or proceedings
pending. See Glenn, 222 F. Supp. 3d at 35 (“This inquiry should
focus on whether the facts alleged, under all the circumstances,
show that there is a substantial controversy, between parties
having adverse legal interests, of sufficient immediacy and
reality to warrant the issuance of a declaratory judgment.”
(internal quotation marks omitted)).
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Instead, Defendants argue that the declaratory and
injunctive relief Plaintiffs request is overly vague. However,
the Court has the power to modify the terms of a proposed
injunction, and it shall do so here. Although the simultaneous
implementation of multiple policy changes in June and July 2020
contributed to the decline in mail service and the overall
confusion by postal workers, the record evidence demonstrates
that changes to and impacts on the USPS transportation schedule
regarding late and extra trips were the primary factor in
affecting service on a nationwide or substantially nationwide
basis. See Pls.’ Statement of Facts, ECF No. 60-1 at 16 (“The
decline in Service Scores has persisted even after the Postal
Service has suspended all other new initiatives other than the
policy limiting the number of Extra or Late Trips. Therefore,
the observed declines in Service Scores are not attributable to
other initiatives at the Postal Service.”); Aug. 13, 2020
Message from the Postmaster General, Pls.’ Ex. 52, ECF No. 59-52
at 2-3; Transcript of Senate Homeland Security and Governmental
Affairs Committee Hearing (Aug. 21, 2020), Defs.’ Ex. 13, ECF
No. 66-17; Grimmer Suppl. Decl., ECF No. 59-23. The Court shall
therefore enjoin the Postal Service from prohibiting such trips
in total or from curtailing such trips to the extent that
nationwide service scores decline on average by more than 10
percentage points for a period of at least two-weeks, without
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first seeking an advisory opinion from the PRC pursuant to 39
U.S.C. § 3661(b). The Court also, in its discretion, grants
declaratory relief to Plaintiffs because USPS’s steep reduction
in late and extra trips in July 2020 violated Section 3661(b)
when the agency failed to first seek an advisory opinion from
the PRC. The Court declines Plaintiffs’ request to appoint an
independent monitor in this case. See Fed. R. Civ. P.
53(a)(1)(B).
IV. Conclusion
For the reasons stated above, the Court hereby orders that
Plaintiffs’ motion for summary judgment, ECF No. 58, is granted
in part and denied in part, and Defendants’ cross-motion for
summary judgment, ECF No. 66, is granted in part and denied in
part. The Order issued on September 30, 2022 accompanies this
Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
October 6, 2022
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