Federal Court Places Limits on USPS Actions During 2022 Election Season

In a memorandum opinion issued October 6 by the US District Court for the District of Columbia, Judge Emmet Sullivan granted in part and denied in part motions related to a case that originated during the 2020 election season.


Following the appointment of Louis DeJoy as Postmaster General in mid-2020, the politically charged pre-election period led to suspicions that he, and the governors who selected him, being partisans of the sitting president, would somehow interfere with balloting by mail and influence the election’s results.

Shortly after taking office, DeJoy took a series of actions that, as asserted by the plaintiffs in the original complaint, would slow the processing and delivery of mail, particularly mailed election materials and returned ballots.  As outlined in Judge Sullivan’s opinion, these actions were

“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.’…

“Second, on June 26, 2020, USPS held a teleconference with Area Vice Presidents regarding strategies to reduce, among other things, unearned overtime. …

“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. … 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.’…

“Fourth, in July 2020, USPS announced an initiative entitled ‘Expedited to Street/Afternoon Sortation’ (or ‘ESAS’) at 384 facilities, including facilities in Plaintiff States. … 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. … After completing their routes, city carriers would then return to the office and stage mail for delivery the next scheduled day. …

“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. … USPS officials indicated that states should mail election mail as First Class Mail, not Marketing Mail. … 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. …

“USPS did not seek an advisory opinion pursuant to [39 USC] 3661(b) from the PRC prior to taking the above actions.”

Plaintiffs (New York, Hawaii, New Jersey, the City of New York, and the City and County of San Francisco) filed their lawsuit on August 25, 2020.  On September 2, 2020, they filed a motion for a preliminary injunction, requesting “that the Court enjoin the defendants from enforcing” the changes listed above; the injunction was granted on September 20.  The plaintiffs filed for summary judgment on October 19, and the defendants filed a cross-motion for summary judgment on October 26.

The opinion

The first issue was the plaintiffs’ standing to bring the suit; the defendants offered three reasons why they did not:

because they “cannot establish that the alleged USPS policy changes at issue have caused any material mail delays;” “cannot show that an injunction against these policy changes will redress the delays;” and “cannot establish that the alleged USPS policy changes will cause material mail delays that will inflict any injury upon Plaintiffs in particular.”  The judge rejected these arguments and ruled that the plaintiffs do have standing to bring their suit.

The judge also granted summary judgement on the plaintiff’s  “claim that Defendants violated 39 USC § 3661(b) by failing to ask the PRC for an advisory opinion prior to implementing” the listed changes, rejecting USPS arguments that the changes weren’t of a nature that would require one.  (That statutory provision requires the USPS to seek an advisory opinion from the PRC before implementing any “change in the nature of postal services which will generally affect service on a nationwide or substantially nationwide basis.”)

However, the court did not agree that the USPS violated its basic statutory obligations or exceeded its statutory authority by implementing some of the changes.

The court also rejected plaintiffs’ allegations that the USPS violated “the Elections Clause of the United States Constitution because [the changes] impair – and were intended to impair – Plaintiffs’ administration of the elections process in their states.”

Regarding declaratory relief, the court stated that

“… there is no dispute that declaratory relief would settle the issues before the parties and that there are no other remedies or proceedings pending. … 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. …

“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 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.”

What, if anything, happens next, in this case, depends on how satisfied the parties are with the court’s decision.

The states seem to have made their point, established their standing, and had their assertions upheld that the 2020 transportation changes both impacted service and required an advisory opinion from the PRC. However, given that the USPS is making wholesale changes to its processing and transportation infrastructure, it may chafe at the possibility that some of those could be delayed while seeking a PRC advisory opinion, as a potential complainant might allege.  Whether that or another matter motivates the agency to appeal the decision remains to be seen.

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