October 15, 2020

The Postal Service has thrown in the towel in another lawsuit over the mail delays and voting by mail. Yesterday Judge Brian Morris announced a stay in the suit brought by Montana Governor Steve Bullock in U.S. District Court, District of Montana. This is the eighth lawsuit that has ended (at least for now) with the court ruling in favor of the plaintiffs.

Judge Morris’s ruling states that the parties have stipulated to “stay this case in light of the agreement between the parties to settle.” The  agreement states the following:

1. Defendants shall comply with the “Clarifying Operational Instructions” issued on September 21, 2020. These include, but are not limited to, restrictions on the reductions of retail hours, the removal of collection boxes, the closure or consolidation of mail processing facilities, and the removal of mail sorting machines; establishing the policy that “late or extra trips that are reasonably necessary to complete timely mail delivery [are] not to be unreasonably restricted or prohibited”; providing that overtime is not to be banned or newly restricted; and permitting hiring for Craft positions pursuant to the applicable collective bargaining agreement.

2. Defendants shall comply with the “Additional Resources for Election Mail Beginning October 1” issued on September 25, 2020.

3. Defendants shall prioritize the delivery of Election Mail in a timely manner consistent with the long-standing practices of the United States Postal Service.

Additional points in the agreement document involve deadlines, court costs, jurisdiction issues and so on. Number 8 is worth noting: “Nothing in this Settlement Agreement shall constitute or be construed to constitute an admission of any wrongdoing or liability by Defendants, an admission by Defendants of the truth of any allegations or the validity of any claim asserted in this Action, or a concession or admission by Defendants of any fault or omission of any act or failure to act.” In other words, the Postal Service is not admitting any wrongdoing over the mail delays.

October 13, 2020

The Postal Service is now 0 for 7 in the federal lawsuits provoked by the mail delays that occurred this past summer. In the case of NAACP v USPS, Judge Emmet G. Sullivan has ordered a preliminary injunction to “enjoin Defendants from enforcing certain USPS policies and practices.”

This is Sullivan’s third such order, following those in Richardson v Trump and Vote Forward v DeJoy. In his Opinion on NAACP, Sullivan focuses on the fact that “the USPS did not seek an advisory opinion pursuant to 39 U.S.C. § 3661(b) from the PRC prior to implementing these changes.”

As it has in the other cases, the Postal Service argued that the court lacks jurisdiction over complaints regarding Section 3661 because such complaints must first be made to the PRC and then to the D.C. Circuit. To this Sullivan observes, “defendants have provided no mandatory authority to support their assertion that Sections 3662 and 3663 constitute the exclusive jurisdictional remedy for a claim that the USPS has failed to comply with the procedural requirements set forth in Section 3661.” As the plaintiffs argued, the language of the statute indicates that Congress did not intend to limit jurisdiction over Section 3661 claims only to the PRC complaint process.

As for the advisory opinion issue, the Postal Service argued that the changes in transportation policies made during the summer are not the kind of changes that require an advisory opinion because “(1) there has been no ‘meaningful impact on service’; (2) postal services available to the user have not been altered; and (3) the changes have not affected service in a broad geographical area.” Sullivan rejected these arguments.

Here are the seven opinions that have now been issued by federal courts in the twelve lawsuits associated with the operational changes made in July and their potential impacts on voting by mail:

• NAACP v USPS, Judge Emmet G. Sullivan, District Of Columbia District Court (Oct. 10, 2020)
• Richardson v Trump, Judge Emmet G. Sullivan, District Of Columbia District Court (Oct. 8, 2020)
• Pennsylvania v DeJoy, Judge Gerald A. McHugh, Pennsylvania Eastern District Court (Sept. 28, 2020)
• Vote Forward v DeJoy, Judge Emmet G. Sullivan, District Of Columbia District Court (Sept. 28, 2020)
• New York v USPS, Judge Emmet G. Sullivan, District of Columbia District Court (Sept. 27, 2020)
• Jones v USPS, Judge Victor Marrero, New York Southern District Court (Sept. 25, 2020)
• Washington v Trump, Judge Stanley A. Bastian, Washington Eastern District Court (Sept. 17, 2020)

October 10, 2020

The new USPS service performance reports, through the week of Sept. 26, 2020, have been filed in Jones v USPS. Most scores (not all) are up from the previous week, but remain well below targets and same week last year. The reports are here. (These reports, by the way, are the same as those the Postal Service is providing to Congress, with the addition of the variance report and “all clear” report.)

In Pennsylvania, the Court has issued an order clarifying some of the key language in the Preliminary Injunction concerning overtime, extra and late trips, etc.

In Johnakin, the parties have agreed to a stay on the proceedings in light of the fact that the Postal Service has “implemented Operating Instructions and Supplemental Guidance making clear that the operational changes of which Plaintiff complains have been and will be resolved until after the 2020 November Election.”

October 9, 2020

Another federal court has ruled against the Postal Service. The USPS is now 0 for 6.

In the case of Richardson v Trump, Judge Emmet Sullivan has ordered a preliminary injunction putting limits on postal operations in the run-up to the election. (Sullivan had also issued a preliminary injunction in Vote Forward v DeJoy.)  In his Opinion Sullivan writes, “The Court shall grant Plaintiffs’ request to ‘restore overtime pay’ and to ‘make all late mail deliveries instead of letting mail be delayed or go undelivered.'” Sullivan stopped short of ordering the Postal Service to returning operations to the status quo as of January 1, which would have meant restoring the 700 sorting machines that have been removed. Sullivan also rejected the plaintiffs’ request that the Court appoint a “special master” to supervise implementation of the Court’s Order.

Late yesterday Judge Victor Marrero issued an order in Jones concerning the Guidance Memorandum the parties have been trying to agree on. The order says, “The Court is persuaded that the appropriate course is to adopt, in substantial part, the Government’s latest proposal.” This proposed version of the Memorandum is here.  There are still two areas that need to get worked out. Both involve the wording on extra delivery and collection trips.

Update: The parties in Jones have finally worked out the wording for the Supplemental Guidance Document. You can see it here.

October 8, 2020

In Jones, the plaintiffs have focused on the fact that the service performance scores fell significantly during the weeks of Sept. 12 and Sept. 19 (they rebounded somewhat the week of Sept. 26, after the exchange discussed here took place). The plaintiffs submitted a letter noting that “the national on-time score for First Class mail has taken a dive of nearly 5 points over the past two weeks of available data, placing it very close to the bottom point we’ve seen this year.” As possible remedies, the plaintiffs suggest that “the Court may want to evaluate the propriety of expanding various remedies (directing Defendants to use overtime for non-election mail until service performance improves, for example), or may want to consider whether some kind of independent monitor is necessary to ensure service standards do not continue to drop.”

The Postal Service responded with a letter arguing that it is in fact complying with the order on the preliminary injunction because it is making a good-faith effort to restore First-Class and Marketing Mail on-time delivery scores. The Postal Service blames the drop in scores on several events beyond its control: “the pandemic (which has caused continuing employee availability problems and a significant decrease in, e.g., the availability of commercial flights to transport First-Class Mail by air), wildfires in the West, and hurricanes in the South.” Other factors include a volume build-up from the Labor Day Holiday weekend and “complications with the September 14, 2020, opening of the Postal Service’s Great Lakes and Chicago Surface Transfer Center” (over which it did have some control).

The Postal Service objects to the two remedies suggested by the plaintiffs, expanding the use of overtime for non-Election Mail and creating a monitor. The first is beyond what the Court ordered in the preliminary injunction, and the second, “introducing yet another source of authority to direct Postal Service employees and operations, at a critical time and when the Postal Service is subject to five nationwide preliminary injunctions, risks creating confusion in the field.” The Postal Service also objects to the plaintiffs’ request for even more frequent service performance reporting than the weekly reports it is now submitting.

The parties in Jones also continue the back-and-forth efforts to reach an agreement concerning the proposed Guidance Memorandum. The most recent version of the Memorandum is here. As noted in a letter from the U.S. attorney representing the Postal Service, some of the elements the Plaintiffs want included in the Guidance “either are inconsistent with directives that this Court has issued, or are unwarranted under those directives; refer to or are derived from other courts’ orders, and would risk interference with other litigations; or baselessly seek significant injunctive relief that the Court has never ordered in this case, with no showing that such relief is warranted or practicable.” The unresolved issues include the wording on policies regarding overtime and extra trips.

October 7, 2020

A twelfth lawsuit has been filed against the Postal Service over mail delays and the threat to election mail. As reported by tampabay.com, the Florida chapter of the United Healthcare Workers union (1199SEIU) has filed a suit in federal district court in Miami. The Complaint asks the Court to order the Postal Service to disclose information about whether it is complying with its obligations in how it handles election mail. Jonathan Manes, attorney at the MacArthur Justice Center, which represents 1199SEIU in the lawsuit, explained the purpose of yet another case against the Postal Service: “This lawsuit will make sure that the Postal Service complies with these court orders in Florida and will allow 1199SEIU to keep tabs on whether the Postal Service is actually meeting its delivery standards and its special obligation to make sure ballots get delivered in time to be counted.”

The union seeks, as remedy, that the Postal Service “provide this Court and Plaintiff with daily updates, with respect to each Florida zip code, on a) the percentage of First-Class mail delivered within three days of mailing; b) the percentage of ballots delivered from state election authorities to Florida residents within three days of mailing; c) the percentage of ballots delivered from residents to state election officials within that zip code within three days of mailing.”

In news on the other cases, the Postal Service has been filing motions seeking to clarify exactly what it must do to comply with orders in the five preliminary injunctions that have been issued.

In New York, the Postal Service has filed a motion for clarification regarding three aspects of the Court’s preliminary injunction: “(1) that the injunction prospectively prohibits the Postal Service from removing mail processing requirement, but does not require it to bring mail processing equipment back into service if that equipment has already been dismantled or dissembled for their usable parts (which would likely be impossible); (2) that Election Mail sent as Marketing Mail need not, for the first time, be sent via plane (which would constitute a major change that would seriously disrupt the processing of the mail and may not, in fact, be possible), and (3) that the Postal Service is not required to treat Political Mail in the same manner as Election Mail (a remedy that Plaintiffs have not sought). Defendants seek these clarifications to guard against the likely unintended consequences of a ruling that would undermine the Postal Service’s ability to timely deliver the mail before the upcoming election— a result that Defendants believe this Court did not intend.”

In Pennsylvania, the Postal Service has filed a motion for clarification or reconsideration regarding the “competing Court-ordered obligations” it has incurred in the five preliminary injunctions that have been ordered by federal judges. The Postal Service is concerned that the rulings “may inadvertently disrupt postal operations to the detriment of the public.” The motion points out several provisions in the Court’s order that could cause problems, such as broad provisions requiring USPS to cease implementing any “efforts” or “initiatives” relating to late/extra trips, carrier start times, and overtime. It is unclear, says the Postal Service, what constitutes an “effort” or “initiative,” and it is thus unclear which Postal Service practices, efforts, documents, or communications would be covered.

Robert Cintron, Vice President, Logistics, has submitted a statement supporting the Postal Service’s motion in Pennsylvania regarding the Court’s ruling that the Postal Service cannot put a stop to late and extra trips before the election. Cintron expresses concern about issuing any additional instructions to postal employees:  “If the Postal Service, in early October, were to issue additional or revised Guidelines or to instruct thousands of field personnel not to follow the Guidelines, so soon after the recent Instructions, there would be a great risk that the additional communication to the field personnel would be confusing and would have an adverse effect on operations nationwide.”

In Jones, the parties are working out the working of the USPS Supplemental Guidance Memorandum. The Postal Service has submitted a letter saying that it is trying to translate the Court’s order into “language that will make sense in the field.” The USPS has proposed a reporting system that raises a number of concerns from the point of view of the Plaintiffs, who “like the basic concept, but believe that it may be better for the Court to appoint an independent monitor for such reporting.” The plaintiffs’ attorneys have submitted a letter on this topic.

October 3, 2020

According to the terms of the agreement in Jones v USPS, the Postal Service will share weekly service performance reports. The reports submitted on Friday, Oct. 2, show composite scores for the various types of First Class, Marketing and Periodicals. They were shared in pdf format, which isn’t very user-friendly, so we’ve converted them to Excel spreadsheets. The reports can be found here.

The Postal Service has also complied with the Court’s order to produce a list of steps it is taking to ensure the timely delivery of election mail. These steps are outlined here.

October 1, 2020

Steve Bullock, Governor of Montana, has submitted a reply brief in his case against the USPS and PMG DeJoy. It addresses the Postal Service’s claim that his only remedy is to file a Complaint with the PRC rather than asking the Court to assume jurisdiction. He points to the three recent decisions that have rejected this argument — Washington v Trump, Pennsylvania v. DeJoy, and New York v. Trump. Bullock also argues that the PRC provides no adequate remedy because the election is just 34 days away while the PRC Complaint process takes 90 days.October 1, 2020

In Jones v USPS, Judge Marrero has issued an order on the overtime issue that has been a sticking point for the past several days. The key passage in the preliminary injunction “is hereby clarified as requiring that USPS shall authorize, and instruct, overtime to be used for the time period beginning October 26, 2020 and continuing through November 6, 2020 to ensure the timely delivery of Election Mail.”  The earlier version had said that “USPS shall pre-approve all overtime that has been or will be requested for the time period beginning October 26, 2020 and continuing through November 6, 2020.” The Postal Service was concerned that the passage “could be read as requiring USPS to pre-approve any overtime requested as to any employee, even if the overtime relating to that employee would have no bearing on the delivery of Election Mail.” The clarification should help avoid this problem.