To the extent the suit’s complaints have any validity, only the most boring might apply.
NRPLUS MEMBER ARTICLE
ew York attorney general Letitia James has launched a lawsuit against the Postal Service, Postmaster General DeJoy, and President Trump, claiming a conspiracy to change Postal Service policies. The suit was filed in federal court in D.C., where the Postal Service is headquartered. It was joined with great fanfare by the attorneys general of New Jersey and Hawaii and the city attorneys of San Francisco and New York City, a who’s who of jurisdictions committed to using the legal system for “Resistance” of all things Trump. James’s press release hyperventilates, “This USPS slowdown is nothing more than a voter suppression tactic. . . . These authoritarian actions are not only jeopardizing our democracy and fundamental right to vote, but the immediate health and financial well-being of Americans across the nation. We will do everything in our power to stop the president’s power grab and ensure every eligible voter has the opportunity to cast a ballot come November.”
Rhetoric aside, the concrete facts alleged in the complaint are more modest, and it pushes legal theories that range from the tenuous to the absurd. Congress has strictly limited judicial review of Postal Service decisions, and the courts have frequently enforced those limits. With one possible, limited statutory exception, James is likely to face an uphill battle getting the courts to wade into this controversy.
The NY AG’s Complaint
A good deal of the complaint is devoted to irrelevant rants about things James isn’t even asking the court to stop. She complains about Donald Trump filing election-law related lawsuits and opposing congressional-funding proposals, both of which are perfectly legal steps. Many Trump tweets are quoted. She charges that it was “illegal” for Treasury Secretary Mnuchin to push for Postal Service adoption of recommended changes and subsequently try to condition a loan on compliance. But she concedes that Congress, in the CARES Act, explicitly authorized a Treasury loan to USPS “upon terms and conditions mutually agreed upon by [the Treasury Department] and the Postal Service,” and that the Postmaster General has testified that the ultimate agreement provided information to Treasury but did not condition the loan on any specific operational changes.
All that aside, James challenges the Postal Service’s legal authority to take four operational steps, some of which the Postmaster General has since promised to delay until after the election:
- USPS has “removed hundreds of mailboxes in Montana, New Jersey, New York, Oregon, and Pennsylvania, among other states” and thus “has reduced the number of collection mailboxes available to the public.”
- USPS “has removed, dismantled, destroyed, or sold hundreds of major mail-sorting machines responsible for processing millions of letter mail and flat mail each day . . . [USPS] was scheduled to have reduced its processing capacity . . . by 10 percent — or roughly 670 machines.” James complains that USPS departed from prior practice by not giving local postal managers a trial period or opportunity to negotiate with USPS over the removal of machines.
- USPS has reduced overtime for postal workers, which was long built into its business model to avoid the benefits cost of additional employees, at a time when “40,000 U.S. Postal Service employees have needed to quarantine due to COVID-19 exposure.”
- USPS is shifting to sending out mail carriers first thing in the morning with mail sorted the prior day, while reducing “extra trips” and “late trips” whereby mail carriers go back out or take unscheduled trips to deliver mail that arrives late, or is sorted late, at the post office, resulting in late-sorted mail being delivered the next day.
James also complains that USPS “recommended that states pay the more expensive First Class rate when mailing ballots to voters in order to ensure faster delivery times,” departing from prior practice that “strived” to give cheaper Nonprofit Marketing Mail the delivery speed of First Class if it was election-related. In past years, “95.6 percent of election and political mail was delivered within First Class mail speed standards,” but the Postal Service has warned state election officials that it can no longer guarantee this. This is the only USPS action that relates specifically to the election; everything else is about the mail in general. Much of James’s argument for the states having standing to sue is about how slower mail delivery impedes various types of government functions unrelated to elections.
If you have followed Postal Service controversies in recent decades, you will sense the hand of the postal workers’ union here. James cites union sources, and thwarting the new Postmaster General, Louis DeJoy, from cutting overtime and getting mail carriers out on the streets earlier in the day is clearly a big part of what this entire controversy is really about, behind the smokescreen of talk of “voter suppression.”
Some of the legal defects are obvious. While Trump is named as a defendant, the complaint does not actually allege anywhere that Trump or anyone else in his administration — or indeed, anyone outside of the Postal Service — had any role in the challenged actions or took any steps to make them happen. Federal pleading standards require more than just speculation. That alone should warrant dismissal of the complaint against the president.
There is also a ridiculous constitutional claim, on the supposed basis of the Elections Clause, which provides: “The 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, except as to the Places of choosing Senators.” James’s theory is that changes to Postal Service mail delivery speeds “will hinder the delivery of mail ballots and ballot applications, and thereby undermine the States’ constitutionally-delegated role to regulate congressional elections in violation of the Elections Clause.” But the Elections Clause does not require the federal government to do anything. At the time the Constitution was written and for most of the nation’s history, voting by mail was extremely rare and limited to men in military service. Absentee voting on a broad scale was a 20th-century innovation, and all-mail voting is even more recent. Nothing in the Constitution suggests even vaguely that the federal government has judicially enforceable obligations to provide a particular speed of local mail service to allow vote by mail.
Limited Judicial Review
That leaves the statutory arguments. The complaint claims that the various operational changes violate the general proscriptions of 39 U.S.C. §§ 101(e) & (f) and 403(a), which declare that USPS “shall give the highest consideration to the requirement for the most expeditious collection, transportation, and delivery of important letter mail,” “shall give highest consideration to the prompt and economical delivery of all mail,” and “establish and maintain postal facilities of such character and in such locations, that postal patrons throughout the Nation will . . . have ready access to essential postal services.”
Congress’ decision in 1970 to replace the old Post Office Department with the modern, semi-independent United States Postal Service was, as the DC Circuit observed in 1981, “designed to free postal management from entangling red tape and to concentrate management authority so as to provide an efficient and economical postal system.” Governors of U.S. Postal v. U.S. Postal Rate Commission, 654 F.2d 108, 110. (D.C. Cir. 1981). The Postal Service was freed from the micromanagement of Congress (which previously dictated everything from the rate of stamps to the location of individual post offices), and mostly exempted from the Administrative Procedures Act and many other federal statutes, so that it might operate more like a business and be financially self-sufficient. In 1987, for example, the D.C. Circuit held that the decision by the Board of Governors of the Postal Service to fire the Postmaster General could not be reviewed in court. Carlin v. McKean, 823 F.2d 620 (D.C. Cir. 1987). Likewise, local complaints about mail service cannot be filed in federal court; customers must instead file a regulatory complaint with the Postal Regulatory Commission. Postal Service decisions can only be challenged directly in court when USPS exceeds its statutory authority, not when it simply applies it unwisely or with questionable business judgment.
James’s complaint asserts two distinct theories of how USPS has gone beyond its statutory authority. The more open-ended theory is that USPS violated the various requirements of sections 101 and 403 to consider expeditious and economical distribution of mail and provide “ready access to essential postal services” to the whole nation. These are the sorts of vague statutory standards that are hard to apply even when the courts are explicitly authorized to enforce them, let alone use them to declare that an agency is acting outside its authority. The Third Circuit has observed that section 101 reflects “general statements of ‘Postal policy’” and that section 403 “was intended to list ‘general duties,’ while other sections of [Title 39] specified duties, powers, and limitations,” giving the Postal Service wide latitude to make business decisions. UPS Worldwide Forwarding, Inc. v. United States Postal Service, 66 F.3d 621, 634-36 (3d Cir. 1995). There is “utterly no evidence of a Congressional intent to create a private cause of action in the general duty and purposes sections” of Title 39. Tedesco v. United States Postal Service, 553 F. Supp. 1387, 1389 (W.D. Pac. 1983). By contrast, cases allowing Postal Service actions to be challenged as exceeding its statutory authority have typically involved far more specific statutory limitations, such as a statute covering what classes of mail could be used to sell particular types of insurance policies. Aid Association for Lutherans v. United States Postal Service, 321 F.3d 1166 (D.C. Cir. 2003).
That leaves the most limited of James’ arguments: The Postal Service violated 39 U.S.C. § 3661(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…to the Postal Regulatory Commission requesting an advisory opinion on the change. [emphasis added]
Section 3661 doesn’t place any limitations on what the Postal Service can do; it just requires it to first seek a non-binding advisory opinion from the Postal Regulatory Commission. The Commission was called the Postal Rate Commission until 2006. It exists mainly as a rate-regulating body: Like a power utility, the Postal Service is required to file “rate cases” to get Commission permission to change postal rates or to change classifications of mail (i.e., which types of mail qualify for which rates).
Significantly, James has not challenged the “recommendation” for election officials to pay for First Class postage on the theory that it amounts to a change of postal rates or mail classification. A change in rates or classifications would make a stronger case for requiring USPS to go to the Commission first. There is a good reason for not making that argument: Rates and classification are familiar terms of art in postal law, with specific definitions:
Courts have further defined a mail classification as a grouping of mailing matters according to size, weight, content, etc., for the purpose of assigning a specific rate or method of handling. . . . Relevant factors for determining whether a regulation constitutes a mail classification include size, weight, content, ease of handling, and identity of both posting party and recipient.
Pitney Bowes, Inc. v. United States Postal Service, 27 F. Supp. 2d 15, 22 (D.D.C. 1998). The Postal Service hasn’t changed the classification of election mail, which can be mailed either as First Class or Nonprofit Marketing Mail; it is just warning that it cannot promise that Nonprofit Marketing Mail will meet past voluntary Postal Service efforts at speed of delivery.
If James has a leg to stand on, it is the argument that the changes to more general Postal Service practices, notably the workflow inside post offices, amount to “a change in the nature of postal services which will generally affect service on a nationwide or substantially nationwide basis.” It seems unlikely that the removal of mailboxes would satisfy this standard, since the Postal Service has been removing underused mailboxes steadily for years. As one court has observed:
If every decision the Postal Service makes is considered a “change” requiring public input, the Postal Service would find it impossible to function in much the same way as did Gulliver, immobilized by the multitude of Lilliputian “threads.” On the other hand, major changes in postal services should not be contemplated without public participation in the decision-making process. Obviously, a balance must be struck which allows the Postal Service to manage its affairs freely and yet which keeps it responsible and accountable to the American public. . . . There must be a change of sufficient magnitude to impact the general public’s postal services.
Shane v. Buck, 658 F. Supp. 908, 911 (D. Utah 1985). The D.C. Circuit has warned against “subject[ing] the Postal Service to a flood of litigation each time a birthday card or letter was delivered late.” American Postal Workers Union v. Postal Regulatory Commission, 842 F.3d 711, 718 (D.C. Cir. 2016). The Fifth Circuit, back in 1975, set out a three-part test for when USPS was required to seek an advisory opinion on service changes:
The language of § 3661 indicates the limited scope of application. All changes within the Service will probably affect postal service to some extent. For example, a decision to combine two high management positions could ultimately have an effect on a nationwide or substantially nationwide basis. The language of the statute, however, 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 v. United States Postal Service, 508 F.2d 259, 262-63 (5th Cir. 1975). The court in Buchanan, the only federal appellate court to directly address the section 3661 standard for a “change in the nature of postal services,” ended up sending the case back to gather more evidence on whether various plans for consolidating district offices and evaluating retail mail services met this standard.
James’s complaint cites USPS records showing a dip in on-time delivery in July, although the complaint is sketchy on how connected this is to various practices, particularly given the overall operational challenges of doing business during a pandemic that sidelines tens of thousands of employees. The Postal Service’s changes to how and when mail carriers are sent out for delivery are probably the strongest case for letting this lawsuit go beyond the pleading stage into discovery. But a case about whether an advisory opinion was required before changing the workflow of mail carriers is a lot less sexy than “the president violated the Constitution to suppress votes.”