A Complaint gives the PRC another crack at POStPlan


December 3, 2012

The post office in Great Cacapon, West Virginia, is on the POStPlan list, and in January its hours will be reduced to six a day.  A nonprofit organization named AdvoCare has filed a formal Complaint with the Postal Regulatory Commission challenging the Postal Service’s decision to cut the hours. 

The Complaint finds several faults with how POStPlan is being implemented, but its main point is that the Postal Service is presenting communities with a false choice.  The survey says customers must choose between having the window hours reduced or having the post office undergo a discontinuance study, but it is clear that the study can lead to only one outcome — a Final Determination to close the office.  By making the outcome a fait accompli, the Postal Service turns a discontinuance study into an empty gesture and abrogates its responsibilities under Title 39.  Communities are left with no real choice at all.

Given that the Commission's advisory opinion has already given the green light to POStPlan, it’s not likely that the Complaint will have much of an impact on the Postal Service's plans to cut hours at 13,000 post offices.  But the Complaint raises some serious issues with POStPlan that weren’t addressed during the PRC’s advisory opinion process, so it will be interesting to see what happens now that the plan is back before the Commission.

The AdvoCare Complaint is here; the Postal Service’s Motion to Dismiss the complaint is here, and AdvoCare’s Response to the Motion to Dismiss, here.

 

Standing room only

Because there’s a postmaster vacancy at the Great Cacapon post office, it was among the first offices being reviewed under POStPlan.  Hundreds of people responded to the survey, and over 150 attended the public meeting in October.  It was standing room only, and no one was very happy about seeing the hours reduced and their fill-in postmaster leaving.

The post office has been operated by Rick Dunn, a supervisor from neighboring Berkeley Springs, for quite some time — long enough for the folks in Great Cacapon to come to appreciate his services.  As reported in the local news, many small businesses use the post office just because Dunn is so knowledgeable.  "He knows the answer to everything I've ever asked,” said one customer.  “If he has to leave, I won't send packages through the post office anymore."

Dunn has helped out seniors, shut-ins, and the entire community.  One resident said Dunn had called in a wellness check on a senior he hadn't seen in a few days. It turned out the man needed medical attention, and Dunn may have saved his life.  The people in Great Cacapon know that it's not likely they'll get the same sort of attention from the part-time worker who replaces Mr. Dunn when the hours are reduced in January.  

One of the people at the meeting was Keith DeBlasio, the director of a nonprofit called AdvoCare, which works on reducing crime through criminal justice reform.  Mr. DeBlasio was so disturbed by what he heard at the meeting — and by the lack of responsiveness of postal officials he contacted after the meeting — that he decided to submit a formal Complaint to the PRC. 

Mr. DeBlasio may not be an expert on postal matters, and he probably wasn’t a close follower of the evolution of POStPlan over the past year, but his Complaint seems to have struck a nerve.   The Postal Service has filed a very thorough Motion to Dismiss, packed with precedents and quotations, that runs to twenty-three pages.  (The Postal Service's Request for an Advisory Opinion was only ten pages, and the testimony of the Postal Service's only witness, Mr. Jeffrey Day, was twenty-four.)

The Motion to Dismiss is also surprisingly aggressive in its tone, especially when you consider that POStPlan has already been approved by the PRC.  Perhaps the Postal Service is concerned that the Complaint will give the Commission a second chance to examine some important questions about the legitimacy of POStPlan

 

"Misleading" and "intentionally deceptive"

One of AdvoCare’s main criticisms of POStPlan involves the survey being used to solicit community input.  The survey gives a community four options, which are described as follows: “(1) Keep the office open but with realigned weekday window service hours . . . ; (2) “Conduct a discontinuance study for the office and provide roadside mailbox . . . ; (3) Conduct a discontinuance study for the office and find a suitable alternative location operated by a contractor, usually at a local business. . . ; (4) Conduct a discontinuance study for the office and locate P.O. box service to a nearby Post Office.”

As one can tell from the way the survey is worded, it is simply assumed that the discontinuance study will lead to a closure and necessitate replacement services.  The survey doesn’t say, “conduct a discontinuance study for the office, and if it leads to a final determination to close, then provide roadside mailbox.”  It goes without saying that the discontinuance study can only end with closing the post office.

AdvoCare’s Complaint says that the survey and accompanying letter were "misleading" and that the Postal Service was "intentionally deceptive" in order to avoid compliance with the federal regulations governing discontinuances.  AdvoCare argues that the survey fails to make it clear that if the community were to choose to have a discontinuance study instead of reduced hours, the Postal Service would need to follow all of the procedures outlined in Title 39 and the federal regulations governing discontinuances. 

The survey should have explained, says the Complaint, that it is possible that a discontinuance study would “not automatically create one of the negative outcomes provided in the survey choices.”  It might end with a decision to keep the post office open at its current hours of operation. 

Instead, says AdvoCare, the survey suggests that a discontinuance study will lead to “what appeared to be an automatically coupled negative outcome and definitive closing of the Great Cacapon Post Office.”  By making a negative outcome automatic, charges AdvoCare, the Postal Service cannot fulfill its statutory obligations under Title 39, which require it to consider a number of factors — like effect on community — before deciding to close a post office. 

 

An "unrealistic and untenable" option

In its Motion to Dismiss, the Postal Service replies that there is no foundation for AdvoCare’s claims that the survey is misleading or that it would not follow the regulations governing discontinuances.  The Postal Service says such comments are “patently unreasonable, have no basis in fact, and fly in the face of the factual record in Docket No. N2012-2 [the POStPlan docket] and the A-series dockets [appeals on closings] the Commission has seen so frequently.  AdvoCare never bothers to explain why the Postal Service would choose not to follow its own regulations, although its argument presumes as much.”

The Motion to Dismiss goes on to describe the option preferred by AdvoCare — keeping the office open at full hours — as “unrealistic, untenable and quite different from what evolved through the advisory opinion process.”  The Motion is perfectly clear on the point: "this option to retain the current window service hours was not, and is not, available to customers in locations studied pursuant to POStPlan."  

In fact, says the Postal Service, “use of an option that is not realistic would be disingenuous with customers while defeating the purpose of the survey — to gauge customer interest and determine the best, realistic, option for providing postal services to the community.  If keeping the office open without any changes was a choice on the survey but not an actual option for the Postal Service, the vast majority of customers would choose that option and the Postal Service would have no insight about how to pursue necessary change.”

In other words, it would have been wrong for the survey to raise the expectation that a discontinuance study might lead to a decision to keep the post office open at full hours.  Such an expectation would be “unrealistic” and “untenable.”  If the survey had presented the status quo as an option, customers would have chosen it and the Postal Service would have learned nothing from the survey.  Keeping the office open at full hours is simply “not an actual option.” 

 

The status quo, "no longer an option"

In its Motion to Dismiss, the Postal Service thus makes it crystal clear that a discontinuance study can have only one outcome — a decision to close the office.  The Motion puts it this way: “As a result of the POStPlan initiative, the Great Cacapon Post Office, like other POStPlan Offices, has only two options, realignment of window service hours or study for discontinuance with replacement service.  As Witness Day testified in Docket No. N2012-2, 'the status quo is no longer an option,' and the community, through the survey responses and at the meeting, has voiced its support to maintain the Post Office with realigned window service hours. See Docket No. N2012-2, Transcript 1/226; Complaint Exhibit B.”

This passage is noteworthy for a couple of reasons.  First, as AdvoCare observes in its Response to the Motion to Dismiss, Witness Day never actually said what he's quoted as saying.  On page 226 of the transcript of his testimony, he says the following:

“. . . we also need to have a company that’s viable into the future, and I don’t see how we can do that unless we address this massive disparity between what our customers are showing they need through purchase compared to what we’re actually staffing and scheduling for in this present day.  We can’t continue with the status quo.”

Witness Day’s remarks were about the need to reduce operating costs by cutting window hours, and his reference to the status quo was about how the Postal Service can’t just keep doing business the same way it’s been doing.  He wasn't talking about the options on the survey.  In misquoting Mr. Day, the Postal Service thus tells us something else.  If “the status quo is no longer an option” means that the only two options are reduce the hours or do a discontinuance study, the outcome of that study cannot be a decision to keep the office open at current hours — the status quo — so the only possible outcome is a Final Determination to close the office. 

This passage is significant for a second reason: It shows the Postal Service finally acknowledging that it's not presenting communities with four options, but only two.  Many of the participants in the PRC’s advisory opinion process observed that it was confusing to present four options, and the Commission’s first recommendation in the advisory opinion asked the Postal Service to clarify the matter: “The customer preference survey should provide customers with a clear choice between (1) keeping their post office open with reduced hours, or (2) closing their post office and providing replacement delivery service.”

The Postal Service ignored the recommendation, and in the surveys, presentations at town meetings, and statements to the press, it has continuously maintained that there are four options, thus giving the impression that people have a wide range of alternatives to choose from.  The Motion to Dismiss at last makes it clear that there are only two.

 

"We're listening"

In fact, of course, there is really only one option, hence no "options" at all.  Given the choice between keeping the office open and closing it, how many people would choose to see it closed?  In Great Cacapon, 96 per cent of the people responding to the survey said they would prefer to keep the post office open at reduced hours rather than closing the office.  It's been that way across the country.

As of November 19, some 2,622 communities had been surveyed and a final decision made about the future of their post office (a list is here).  There have been only 12 cases where the decision was to proceed with a discontinuance study (and there were probably unusual circumstances behind those cases).  This means that 99.5 percent of the communities surveyed so far have chosen to have the hours reduced rather than to have the post office closed. 

It's been obvious since POStPlan was first announced in May that every community would choose to have the hours reduced, and there was never a need to hold 13,000 community meetings and send out hundreds of thousands of surveys.  The survey was crafted not to determine what the community preferred, but to get the results the Postal Service wanted.  

There's a page on the USPS website where you can find lists of all the POStPlan public meetings.  It's entitled, "We're listening," and it says, "Listening to our customers and gathering their input via public meetings and surveys is a critical part of plan."  

But the meetings and surveys aren't about "listening" to communities.  The Postal Service just uses the meetings and surveys to give the appearance of caring about community input — and to make people feel better about having the hours cut.  After all, they think, it could have been worse — the post office might have been closed completely.

 

The "clear preference of customers"

In its Motion to Dismiss, the Postal Service maintains that it wants “to gather community input and determine how best to meet the needs and interests of the community."  Contrary to what AdvoCare claims, says the Postal Service, there's nothing misleading or deceptive about the process.  "The Postal Service was able to gain valuable information from the community to determine the most attractive option for customers," says the Motion, and in Great Cacapon, reducing the hours was “the clear preference of surveyed customers."

In its response to the Motion to Dismiss, AdvoCare objects to this characterization of the community input.  According to AdvoCare, the community was totally opposed to the reduction of hours.  They circulated a petition, they wrote letters, they complained at the meeting with postal officials, and they complained again at a meeting of the County Commission.  None of it mattered. 

While the Postal Service describes the public meetings as an opportunity for “community input,” AdvoCare says that the Postal Service representative told the people at the Great Cacapon meeting that the decision to change the hours was a “done deal.”

AdvoCare also says that it became so clear that the Postal Service “was intent on continuing to ignore and misrepresent” what the community had to say that the President of the Morgan County Commission announced that the Commission would hold its own public hearing on the matter “to listen to citizens concerns regarding the realigning of the hours at the
Great Cacapon Post Office.” 

At the Commission's meeting, a resolution was passed opposing the reduction of hours.  It also states, “The residents of Great Cacapon believe their views were not taken into account in the Postal Survey conducted prior to the decision (by omitting the full service option) or adequately recorded at the Post Office Public Meeting.”

One of the reasons people didn’t feel their views were being “adequately recorded,” notes AdvoCare, is that the postal official who was at the meeting to record the concerns of over 150 people “was equipped with only one single blank sheet of paper."

 

A "lack of awareness"

The fact that a discontinuance study would inevitably lead to a decision to close the post office went unexamined during the PRC’s advisory opinion process.  When the Commission recommended that the Postal Service clarify the two options, it posed one of them not as "doing a discontinuance study" but rather as "closing the post office and providing replacement delivery service."  The Commissioners — like everyone else participating in the advisory opinion process — simply took for granted that a discontinuance study meant closing the office.  The AdvoCare Complaint reveals just how problematic this assumption is.

According to 39 U.S.C. 404(b) and 39 C.F.R. 241.3, the Postal Service must consider a number of factors when it decides to close a post office: “the effect on the community served; the effect on employees of the post office; compliance with government policy established by law that the Postal Service must provide a maximum degree of effective and regular postal services to rural areas, communities, and small towns where post offices are not self-sustaining; the economic savings to the Postal Service; and any other factors the Postal Service determines necessary.”

It goes without saying that these factors must be considered before the Postal Service comes to a Final Determination. The law obviously does not intend for the Postal Service to make a decision to close a post office, and only afterwards to do a study considering these criteria. 

The Motion to Dismiss says that AdvoCare “never bothers to explain why the Postal Service would choose not to follow its own regulations, although its argument presumes as much.”  But AdvoCare does not presume that the Postal Service would choose not to follow its own regulations.  AdvoCare is only observing that the Postal Service has put itself in a position where it cannot possibly follow its own regulations.  If the outcome of a discontinuance study is known beforehand — if it is predetermined that it will end with a decision to close the post office — in what sense can the Postal Service claim to be following Title 39 regulations? 

Imagine that a District Attorney brings charges against someone for committing a crime, and then offers a plea bargain: If the accused will plead guilty, he’ll get off with a lighter sentence than he risks getting should he choose to take the case to trial.  While the accused is weighing the question of what to do, the DA says, “Oh, one more thing, not only am I the DA, but I am also the judge and jury on the case, and I can tell you right now what the verdict and sentence are going to be.”  

When it comes to post office closings, the Postal Service is the DA, judge, and jury.  It selects which post offices it wants to consider for closure, solicits community input, gathers evidence, reviews the file, and then makes a judgment about the future of the post office.  It tells the community of Great Cacapon that it can get off easy and just have the hours at the post office reduced, or it can take its chances with a discontinuance study.  But if the community opts for a study, the verdict is a done deal — a Final Determination to close the office.  

In its Motion to Dismiss, the Postal Service puts the situation this way: “AdvoCare’s contention that the community should choose to undergo a discontinuance study so as to maintain the status quo, reflects an apparent lack of awareness of the reality that the Postal Service can generally close any Post Office so long as it follows the requisite process; the standard of review is procedural, not substantive.  Hence, were AdvoCare’s remedy granted, its outcome would very likely not be what most customers prefer.”

That's another way of saying if AdvoCare had been paying enough attention last year, when hundreds of post offices were closed, it would know that the Postal Service can close just about any post office it wants, and without much trouble.  It doesn't have to worry about the substance of the evidence or the criteria it's supposed to consider.  It just has to follow the "requisite process" and to give the appearance of "considering" the effect on community, the cost savings, and all the rest.  

Given that the Postal Service can close any post office, says the Motion to Dismiss, there can be no doubt that the outcome of a discontinuance study at Great Cacapon would be closure — an outcome not "very likely" to please customers. 

 

The "standard of review"

When the Postal Service says that “the standard of review is procedural, not substantive,” it’s referring to what happens when someone appeals a closing decision to the PRC.  The Commission is supposed to examine whether or not the Postal Service followed proper procedures when it made a decision to close a post office. 

However, that doesn’t mean the substantive issues are irrelevant.  39 U.S.C. § 404(d) says that one of the reasons the PRC can remand a closing decision is if it is “without observance of procedure.”  But there are other criteria as well.  A closing decision can also be set aside if the Commission finds it to be “arbitrary” or “capricious” or “unsupported by substantial evidence on the record.”  These phrases open up a lot of room for an examination of the substance of the case. 

As a result, in numerous appeals, the Commission has examined factors that are not simply about following the steps in a process.  Commissioners, for example, have questioned the Postal Service’s economic analysis, observing that the cost savings fail to consider rental expenses when there are still years remaining on the lease after the office closes. 

By claiming that it can close any post office “so long as it follows the requisite process" and that the standard of review under an appeal is strictly "procedural," the Postal Service shows that it views the legal safeguards on protecting post offices merely as a minor obstacle.  There's nothing in the law and regulations that can stop it from closing a post office when it wants to.  

Given how much power the Postal Service has over post office closings, it’s obviously important that the discontinuance process be conducted fairly.  Otherwise, the process loses all credibility — and so does the Postal Service.  But how can the process be fair if the final decision has been made beforehand?  How can the Postal Service give consideration to criteria like the effect on the community if it's already decided to close the office before it even gathers the evidence?  Isn't the "standard of review" broad enough for the PRC to find a Final Determition made under these circumstances “arbitrary” and “capricious”? 

 

"Unreasonable discrimination"

While most of the AdvoCare Complaint is about the problems with the survey and the way it predetermines the outcome of a discontinuance study, there’s another important point in the Complaint: POStPlan discriminates against some communities. 

The issue of discrimination refers to 39 CFR 403(c), which states: “In providing services and in establishing classifications, rates, and fees under this title, the Postal Service shall not, except as specifically authorized in this title, make any undue or unreasonable discrimination among users of the mails, nor shall it grant any undue or unreasonable preferences to any such user.”

The Complaint observes that while Great Cacapon will suffer reduced hours, other communities will continue to enjoy full hours.  The Complaint might have gone a step further and noted that all 13,000 communities on the POStPlan list are rural towns — precisely the kind of small towns that are protected by Title 39. 

The Postal Service’s Motion to Dismiss responds by making two points about the discrimination issue.  First, it says there’s no discrimination going on to begin with because “the Postal Service is treating all customers of the Great Cacapon Post Office the same, giving each of them the same access to postal services (AdvoCare is treated no differently than other customers notwithstanding its insistence on special treatment).”

That response, however, does not really address the issue in the Complaint.  AdvoCare never said anything about the Postal Service discriminating among customers in Great Cacapon.  The issue is not that POStPlan discriminates against some people in the same town but that POStPlan discriminates against some people in the same country, i.e., the people living in rural America who must live with a post office open only a few hours a day.

The Motion to Dismiss then offers a second argument: Even if there were an element of discrimination in POStPlan, it’s not an “unreasonable or undue” kind of discrimination.  The Motion to Dismiss says, “Section 403(c) does not bar the Postal Service from discriminating among postal customers or granting a preference to some customers when providing service.  It only bars discrimination and preferences that are unreasonable or undue.  Thus, so long as the realignment of window service hours at the Great Cacapon Post Office is reasonably related to a legitimate business goal, the Postal Service has not violated section 403(c).”

The Motion to Dismiss proceeds to cite precedents intended to illustrate that “the reasonableness test has a very low standard and federal courts have ‘broadly’ interpreted 403(c) in cases where the Postal Service has been charged with undue or unreasonable discrimination.”  In other words, even if there’s discrimination, it will be easy for the Postal Service to show that it’s “reasonable” discrimination because it’s reasonably related to its business plan.

One might have thought this issue would have been addressed in the advisory opinion on POStPlan.  The issue of discrimination was an important part of the PRC’s deliberations on the Retail Access Optimization Initiative (RAOI) — last year’s plan to close 3,700 post offices — and there was a lot of testimony exploring the question.  But none of the participants in the POStPlan opinion focused on the fact that the 13,000 impacted communities were all rural.

Yet for some reason, the Postal Service’s Motion to Dismiss makes the following claim: “The Commission also has already considered and directly advised on the issue of whether POStPlan creates undue or unreasonable discrimination.” 

There is nothing in the POStPlan advisory opinion about this issue.  It did not come up during the cross-examination of the Postal Service's witness, Mr. Day, nor is it raised in any of the interrogatories.  In the advisory opinion, there's no mention of 403(c), no discussion of how POStPlan impacts rural communities exclusively, nothing about the “reasonableness test."   The word “discrimination” doesn’t appear anywhere in the opinion.  If the Commission has already “considered and directly advised” on the discrimination issue, it didn’t do so as part of the POStPlan advisory opinion.

 

"Circular and disjointed"

The Postal Service’s Motion to Dismiss criticizes the AdvoCare Complaint for presenting “various circular and disjointed arguments.”  Perhaps if AdvoCare could afford to hire attorneys like those who work for the Postal Service, its arguments could be straightened out a bit.  But AdvoCare isn’t a $65 billion a year operation.  It's just one of thousands of small businesses getting hurt by POStPlan, and Mr. DeBlasio deserves a lot of credit for his Complaint and Response. 

The Complaint has put the Postal Service on the defensive, and it will put the Postal Regulatory Commission on the spot.  The Commission may now need to address the question of whether or not POStPlan causes “undue or unreasonable discrimination” against rural communities.  It will also have to reconsider the issues raised by the survey. 

If 99.5 percent of the communities surveyed end up "preferring" to have the hours reduced, what purpose does the survey have?  Are communities really being given any viable options at all?  Is the public meeting an opportunity for "community input," or just a time for people to stand around while the Postal Service rep explains why the hours are being cut?

And if a decision to close the post office is the inevitable outcome of a discontinuance study initiated under POStPlan — if the status quo is simply not a "realistic" option — then how can the Postal Service claim with any credibility that it would conduct a discontinuance study in good faith?  Can that possibly be what Congress intended when it put section 404(b) into Title 39 to ensure that before a post office is closed, the Postal Service has considered criteria like the "effect on community" and the government's policy to provide "a maximum degree of effective and regular postal services to rural areas"?

Rather than criticizing the AdvoCare Complaint for its faulty arguments, perhaps the Postal Service attorneys should be worrying about the logic of their own case.  POStPlan is going to have another day before the PRC.


(Photo credits: POStPlan meetings in Great Capapon, WV; Bushland, TXSquires, MO; Cumaquid, MA; Raymondville, MO;  Polk, NEBritt, IADevil's Elbow, NDDividing Creek, NJCollins Center, NYPavillion, WY; Cambridge, IL; Linville Falls, NCWalker, MO.) 

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