September 29, 2020

The Postal Service is now 0 and 5 in the eleven lawsuits filed against it as a result of the mail delays caused by the operational changes that went into effect in July. Yesterday two more orders were against the Postal Service.

In Pennsylvania v DeJoy, Judge Gerald McHugh of the Eastern District of Pennsylvania ruled that the Postal Service can’t restrict extra or late trips for mail delivery and can’t prohibit overtime. In Vote Forward v DeJoy, Judge Emmet Sullivan issued his second order against the Postal Service.

Here are the five orders that have been issued in federal courts banning the Postal Service from making the kinds of operational changes that caused delays over the summer:

• 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)

As a result of these five preliminary injunctions, the Postal Service has had to walk back all the changes it made over the summer as well as making all sorts of commitments about what it will do to ensure timely delivery of mail ballots. That’s good news for voters and others who depend on the Postal Service for things like their medications.

These five rulings should mean something else as well. The Postmaster General and the Board of Governors have received the strongest of rebukes from four federal judges in five cases representing twenty-four states, several national organizations, and many individuals. This turn of events has to be unprecedented, and it has been a total embarrassment for the Postal Service’s leaders. It won’t happen, but they should be thinking about resigning.

Like Sullivan’s ruling in New York v Trump, McHugh’s order in Pennsylvania focuses on the Postal Service’s failure to present its plans for cutbacks to the Postal Regulatory Commission for an advisory opinion, which would have afforded the public an opportunity to review it and comment on it.

“Plaintiffs and the Postal Service agree that the Postal Service undertook a major new initiative following Louis DeJoy’s installation as Postmaster General,” writes McHugh. “Both sides also agree that the Postal Service did not seek an advisory opinion and that no public hearing occurred before the Postal Service implemented these changes in July 2020. Against that background, Plaintiffs have produced compelling evidence from Defendants themselves, indicating that there has been a pronounced increase in mail delays across the country since the implementation of these changes. And the Postal Service insists that it is rolling back the changes and improving performance.”

“The Postal Service is a critical agency that preceded the birth of the nation itself, one of a few agencies that the Constitution explicitly authorized. U.S. Const. art. I, § 8.,” continues McHugh. “Congress has described it as ‘a basic and fundamental service provided to the people by the Government of the United States. . . .’ 39 U.S.C. § 101(a). Its ability to fulfill its mission during a presidential election taking place in the midst of a public health crisis is vital. The record in this case strongly supports the conclusion that irreparable harm will result unless its ability to operate is assured. I will therefore grant injunctive relief.”

There are articles about McHugh’s ruling in the Washington Post, the Philadelphia Inquirer, the Philadelphia Tribune, CNN, and Courthouse News.

Sullivan’s ruling in Vote Forward differs from his ruling in New York v Trump in significant ways. The most apparent is that the New York decision focused primarily on the Postal Service’s failure to request a PRC advisory opinion before implementing changes that had a nationwide impact. The Vote Forward order doesn’t even mention the advisory opinion issue. Instead it’s about voting rights (as was true with the Jones case).

Judge Sullivan states, “Here, the Court finds that the ‘character and magnitude’ of Plaintiffs’ asserted injury to the right to vote is significant. Plaintiffs have provided sufficient evidence suggesting that Defendants’ policy has caused and will continue to cause inconsistency and delays in the delivery of mail across the United States, placing at particular risk voters residing in one of the 28 states that require mail ballots to be received, not just post-marked, by Election Day.”

“Furthermore,” Sullivan continues, “while content neutral, Defendants’ policy changes place an especially severe burden on those who have no other reasonable choice than to vote by mail, such as those who may be at a high risk of developing a severe case of COVID-19 should they become exposed to the virus at the polling place, and those who are not physically able to travel to the polls due to disability.”

“The Court respects that the federal government, and USPS in particular, have legitimate interests in maintaining efficient programs and in saving money; however, these interests do not justify the resulting harms Plaintiffs face. As stated above, the burden the USPS policy changes place on Plaintiffs’ constitutional right to vote and have their vote counted is significant. At risk is disenfranchisement in the November election of potentially hundreds of thousands of individuals.”

There have been developments in some of the other cases as well. In Montana Governor Bullock’s case, an amicus brief has been filed by twenty-four members of Congress. It focuses on the Postal Service failure to request an advisory opinion when planning changes with nationwide impacts.

In Jones, attorneys for the government have requested an extension as the parties continue to work out the wording of the passage on overtime in the Supplemental Guidance Document.

In New York, an amicus brief has been filed by Brady and Team Enough, two gun violence prevention organizations.

September 28, 2020

More big news: The judge in the New York v Trump case, Emmet G. Sullivan, has granted the plaintiffs’ motion for a preliminary injunction. His order is here. Much of Sullivan’s order focuses on the Postal Service’s failure to request an advisory opinion from the PRC before embarking changes that have nationwide impacts on postal services.

Judge Sullivan observes that “Plaintiffs have shown that there is a substantial likelihood that the on-going non-speculative harms they allege caused by mail delays are ‘fairly traceable’ to the Postal Policy Changes.” He goes on to state, “Plaintiffs’ complaint alleges a procedural violation—that USPS failed to comply with the requirement 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.’ 39 U.S.C. § 3661.”

Addressing the question of whether judicial review is available when the Postal Service fails to request an advisory opinion, Sullivan finds that the legislative history of the Postal Reorganization Act: “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.”

Sullivan proceeds to address the argument that the courts should not be micromanaging the Postal Service:  “While it is clear that Congress did not intend for the courts to micromanage the operations of the USPS, requiring the USPS to comply with the statutory requirement that it obtain an advisory opinion from the PRC and provide for notice and comment prior to implementing ‘a change in the nature of postal services which will generally affect service on a nationwide or substantially nationwide basis’ is not micro-managing; it is requiring the USPS to act within its statutory authority. Furthermore, Congress clearly intended Section 3661 to require an opportunity for public participation and for independent review before the USPS implements service changes that will have a broad effect. The 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.”

And finally, as for the argument that the plaintiffs should have filed a complaint with the PRC rather than the courts, Sullivan notes that the complaint process “would not afford [them] judicial review of an adverse PRC ruling within a timeframe that would allow for the meaningful vindication of their right to notice and opportunity to participate as required under 39 U.S.C. § 3661(b).”

Sullivan concludes as follows: “Here, the balance of the equities and the public interest favor an injunction. It 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. The equities balance in favor of Plaintiffs because the relief sought is a targeted preliminary injunction that prohibits Defendants from continuing to implement the Postal Service Policies with respect to which an advisory opinion from the PRC should have been obtained prior to implementation. Furthermore, the proposed injunction does not contemplate the Court becoming involved in overseeing the day-to-day operations of the USPS.”

In Jones v USPS, the parties continue to argue about the overtime passage in the judge’s order. The plaintiffs have filed a memorandum in opposition to the Postal Service’s memorandum arguing for a change in the overtime language. The plaintiffs argue that “If permitted to incorporate the language they seek, Defendants will once again introduce the ‘wide variety of local interpretations’ that the Court already found problematic.”

The plaintiffs’ attorneys also make this comment: “Finally, a brief note about the trustworthiness of the testimony Defendants have presented is in order, given a – frankly – shocking document that has surfaced.” They are referring to recent Washington Post article about a July 10, 2020, teleconference between USPS Headquarters and Area Vice Presidents, at which USPS VP David Williams gave a presentation that clearly shows HQ telling the AVPs that there would be “No Extra Transportation / No Late Transportation.” This directive is in direct contradiction to claims made by USPS witnesses in Jones, Cintron and Curtis, that local managers, not headquarters, were responsible for the no-extra-trip orders.

Two additional documents have been filed in support of the plaintiffs’ arguments about overtime policies. One is a second affidavit from Mark Jamison, retired postmaster and regular contributor to STPO), and the other is a letter from Melinda K. Holmes, General Counsel to the American Postal Workers Union.

September 27, 2020

An update on the overtime issue in Judge Marrero’s order in Jones v USPS. The proposed order indicated that the parties had not agreed on the wording of the overtime passage, but the final order issued on Sept. 25 said, “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.” That seemed to indicate that the issue had been resolved. But yesterday the USPS filed an additional affidavit by David E. Mills, Manager of Labor Relations and Program, challenging the wording of this section of the order.

Mills says the overtime passage in the order “will create a severe burden whereby employees other than local management, in whom such decisions are current vested, may request and work overtime hours, including on behalf of others, on the basis of the Order, even though they have no role in planning or management of operations.” Implementing the overtime passage as written “would be impracticable and would likely lead to widespread confusion among employees and management officials.”

Along with the Mills’ testimony, the USPS has submitted a Memorandum of Law arguing about the overtime passage in the order. The Government wants clarification of the passage “or relief from these provisions through their modification.” “In the alternative, the Government requests that the Court extend the stay of Paragraphs 3 and 7(f) currently in effect, pending a determination by the Office of the Solicitor General of whether to appeal from the PI Decision.”

The parties are still working on a revision of the passage.

September 26, 2020

New in Jones v USPS: Late yesterday, Judge Marrero issued his order on the case. It’s essentially the same as the proposed order, but the parties are still trying to work out the overtime issue.

The Postal Service has provided much more information to the Court concerning its policies and practices in handling Election Mail over the coming weeks:

DOJ letter to Judge Marrero, Sept. 25, 2020: This letter describes the contents of the material being submitted to the Court and provides a good overview of how the Postal Service will handle Election Mail.

Calculations on Cost for Delivering Election Mail as First Class: Judge Marrero asked the Postal Service to provide an estimate for how much it will cost to treat Election Mail sent at Marketing Mail rates as First Class (one of the points on which the parties have agreed). The Postal Service says that between Oct. 15 and Nov. 3, it expects to handle about 170 million pieces of such mail (a mix of letters and flats). Figured as “revenue foregone” (i.e., based on the rates mailers pay), it will cost the Postal Service $69.4 million. Figured in terms of the Postal Service’s own direct (attributable) costs, it will cost the Postal Service $39.1 million.

Clarifying Operational Instructions (Sept. 21, 2020) Memo from Executive Vice Presidents David E Williams and Kristin A. Seaver to Officers, PCES, and Band Managers. This memo clarifies the Postal Service’s practices concerning overtime, hiring, retail hours, collection boxes, late and extra trips, mail processing, and Election Mail as they currently stand.

Additional Resources for Election Mail Beginning October 1 (Sept. 25, 2020) Memo from David E. Williams and Kristin A. Seaver to Officers, PCES, and Band Managers. This memo describes the additional resources being made available with regard to mail processing, transportation, delivery/collections, and overtime. Between Oct. 26 and Nov. 3, the Postal Service will take “extraordinary measures” to ensure the timely delivery of Election Mail, including expedited handling, extra deliveries, and special pickups.

Service performance reports: The plaintiffs requested more detailed and updated service performance reports, and the Postal Service provided a lot of new data. This is now the most comprehensive picture of on-time performance from the beginning of 2020 through the week of Sept. 12. Here’s what’s included:

• Press release on Service Performance Week of Sept. 12, 2020
• First-Class Mail, Marketing Mail, and Periodicals, from the beginning of the year through week of Sept. 12, at National, Area, and District Level (pdf only)
• National, First-Class Mail, Marketing Mail, and Periodicals, from the beginning of the year through week of Sept. 12 (converted by STPO to Excel)
• By Area, First-Class Mail, Marketing Mail, and Periodicals, from the beginning of the year through week of Sept. 12 (converted by STPO to Excel)
• By District, First-Class Mail, Marketing Mail, and Periodicals, from the beginning of the year through week of Sept. 12 (converted by STPO to Excel)
• Service Performance Variance Reports (as PDF; converted to Excel): These reports show the percentage of the mail that was delivered on time, one-day later, two-days later, and three-days later.

The variance reports show why it’s important to mail your ballot more than a couple of days before the deadline. For example, for the week of Sept. 12, the on-time score for 2-day mail (the usual timeframe for a ballot being returned to an election center from within the region) was only 88.81 percent. With one additional day, the score was 96.44 percent; with two additional days, it was 98.37 percent; and with three extra days, it was up to 99 percent. So to be on the safe side, mail your ballot a week before the deadline. With all the commitments the Postal Service has made concerning Election Mail — due in no small part to the Jones case — it should arrive safe and sound in time to be counted.

Shortly after all these developments in Jones v USPS, the Washington Post reported that “the U.S. Postal Service is nearing a settlement with 19 states and D.C. to govern how the agency handles mailed ballots and to suspend key pieces of Postmaster General Louis DeJoy’s controversial cost-cutting agenda, which has been linked to mail backlogs across the country, according to three people with knowledge of the negotiations.” The settlement would resolve Washington, New York, and Pennsylvania. The settlement would draw on the orders of Judge Marrero in Jones and Judge Bastian in Washington, as well as others that may be handed down by Judge McHugh in Pennsylvania.  See the Washington Post for more.

September 25, 2020

The plaintiffs in Jones have reached an agreement with the Postal Service that settles the case for now. The outline of the agreement is similar to the commitments in the Sept. 24 Standup Talk on Election Mail, but there are some more specific details.

The agreement states the following (the rest is quoted from the proposed order):

The USPS shall, to the extent that excess capacity permits, treat all Election Mail as First-Class Mail or Priority Mail Express.

Specifically, USPS shall prioritize identifiable Election Mail that is entered as Marketing Mail, regardless of the paid class, including advancing Election Mail entered as Marketing Mail ahead of other Marketing Mail and processing it expeditiously so that it is generally delivered in line with the First-Class Mail delivery standards; expanding processing windows on letter and flat sorting equipment to ensure that all Election Mail received prior to the First-Class Mail Critical Entry Time is processed that same day; and prioritizing Election Mail, including ballots entered with Green Tag 191, when loading trucks.

This paragraph (Paragraph 1) shall not be construed to require USPS to change its policies that generally do not include the transportation of Election Mail entered as Marketing Mail by air; or to extend other features of First-Class Mail, distinct from delivery speed, to Election Mail entered as Marketing Mail. However, USPS will employ special individualized measures to expedite handling of individual voter ballots mailed close to Election Day, regardless of paid class, which may include manually separating them and moving them by air or according to Priority Mail Express delivery speed standards, consistent with practices used in past elections.

No later than October 1, 2020, USPS shall submit to the Court a list of steps necessary to restore First-Class Mail and Marketing Mail on-time delivery scores to the highest score each respective class of mail has received in 2020, which are 93.88 percent for First-Class Mail and 93.69 percent for Marketing Mail, and shall thereafter make a good faith effort to fully implement the listed steps.

USPS shall provide this Court and Plaintiffs with a weekly update, to be provided every Friday, that includes:

• The same weekly update USPS is providing Congress, with respect to USPS’s Market-Dominant products (First-Class Mail, Marketing Mail, and Periodicals);
• Separate, unmerged 2-day and 3-5 day weekly service reports for both pre-sort and single-piece First-Class Mail, and variance reports;

No later than Sept. 29, the USPS shall submit to the Court and Plaintiffs a proposed Supplemental Guidance Document, to be distributed to all USPS managerial staff. The September 21 USPS Instructions, the forthcoming further guidance on the use of additional resources, and the proposed Supplemental Guidance Document shall together, in clear terms and with the aid of examples:

• Identify and explain all USPS policy requirements concerning the treatment of Election Mail;
• Identify and explain all USPS recommended practices concerning the treatment of Election Mail;
• Reemphasize that late and extra trips are not banned, and clarify that pre-approval is not needed for late and extra trips and that authorizing late and extra trips through November 6, 2020, will not result in disciplinary action
• Reemphasize that USPS commits to, authorizes, and encourages the use of any late and extra trips that would facilitate the timely delivery of Election Mail;
• Explain that USPS shall prioritize Election Mail as described in Paragraph 1 of this Order;
• Direct managers to explain to each of their direct reports the policies and practices described in the Supplemental Guidance Document that are relevant to each direct report, taking into account their individual responsibilities.

The parties were not able to reach agreement as to relief pertaining to USPS’s overtime policies.

September 21, 2020

Big news today: The plaintiffs have won a second suit against the Postal Service. The judge in Jones v USPS, Victor Morrero of the SDNY, has ordered a preliminary injunction preventing the Postal Service from enacting changes that endanger voting by mail. The order is here. It’s the second such order for a preliminary injunction, following the order in Washington v USPS issued on Sept. 17. The Associated Press had the first article about the Jones decision, here; CNN reports here; and Government Executive has a good summary of the order, here.

The Jones order directs the Postal Service to “treat all Election Mail as First-Class Mail or Priority Mail Express” and to provide the court a cost estimate for doing so;  to “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”; and “submit to the Court a list of steps necessary to restore First-Class Mail and Marketing Mail on-time delivery scores to the highest score each respective class of mail has received in 2020.”

The Jones order also directs the Postal Service to submit a proposed memorandum to all USPS managerial staff (the “Guidance Memorandum”) that explains all USPS policy requirements concerning the treatment of Election Mail and that clarifies late and extra trips are not banned, do not require pre-approval, and will not result in disciplinary action.

Judge Morrero has also ordered the Postal Service to provide not only the same weekly updates on service performance that the USPS is providing Congress but also more detailed reports that disaggregate 2-day and 3-5 day service reports and include variance data showing how many days late the mail is.

These are the same kind of detailed reports that, at my request, the Postal Regulatory Commission asked the Postal Service to provide for the period June 1 – Sept 4. The Postal Service said that it would take 56 weeks to prepare such reports, and it failed to submit them by the deadline, Sept. 18. It will be interesting to see how the Commission responds to this failure. In any case, the reports ordered by the court in Jones are for the weeks going forward, so preparing them should not be as great a burden as the retrospective reports

On a side note, we’re happy to report that Mark Jamison, regular contributor to savethepostoffice.com, submitted oral and written testimony in Jones, and his comments are cited several times in Judge Morrero’s order.

In Richardson, the plaintiffs have filed a Reply in Further Support of Plaintiffs’ Motion for a Preliminary Injunction. The Reply frequently cites the order for a preliminary injunction in Washington, and concludes with a request for a “special master”: “The grave constitutional harm that will result from USPS’s failure to implement any changes ordered, along with the extremely short time in which USPS must implement those changes, requires supervision to ensure that it is done. Therefore, Plaintiffs request that the Court exercise its discretion to appoint a master to assist in the implementation of the Court’s orders.”

In Vote Forward, defendants DeJoy and USPS have submitted a Response to Plaintiffs’ Motion for Expedited Discovery, arguing that “expedited discovery would impose an undue burden on USPS as its key personnel are consumed with assessing and coordinating the agency’s compliance with the injunction” in Washington. The defendants also argue that there is already a “wealth of available, relevant evidence” from the other cases so that additional expedited discovery would be duplicative and burdensome.

September 18, 2020

The plaintiffs in Johnakin have filed a proposed preliminary injunction. The injunction would prevent the Postal Service from continuing to enforce the operational and policy changes adopted and/or implemented  from June 2020 to the present; engaging in conduct such as reducing staff hours, prohibiting overtime, prohibiting late trips or prohibiting late trips prior to the November 3, 2020 General Election; engaging in conduct such as closing mail processing centers, removing or idling mail sorting machines from postal facilities, instructing mail carriers to leave mail behind and removing or locking mailboxes prior to the November 3, 2020 General Election; and taking any actions which would delay the mail. The injunction would also direct the Postal Service to treat all mail-in ballots as Priority Mail and take all necessary steps to ensure that absentee and other mail-in ballots are delivered to election officials in a timely manner by November 3, 2020.

September 17, 2020

Big news today: The judge in Washington issued a temporary injunction against USPS operational changes amid concerns about mail slowdowns. The Washington Post has the story. Stanley A. Bastian, chief judge of the U.S. District Court for the Eastern District of Washington, said that harm to the public “has already taken place” by changes put in place under DeJoy. “The states have demonstrated that the defendants are involved in a politically motivated attack on the efficiency of the Postal Service. They have also demonstrated that this attack on the Postal Service is likely to irreparably harm the states’ ability to administer the 2020 general election,” said Judge Bastian.

The temporary injunction hasn’t been posted on PACER yet, (Update: here it is) but Judge Bastian says it will take the form of the injunction proposed by the plaintiffs. A copy of that version is here. It says that the Postal Service is “hereby enjoined from the following until the Court resolves the merits of the case.” Included are “instructing mail carriers to leave mail behind,” “requiring mail carriers or delivery trucks to leave at set times,” taking actions outlined in the Mandatory Standup Talk, “deviating from USPS long-standing policy of treating Election mail in accordance with First Class Mail delivery standards, regardless of the paid classElection Mail,” and making any other changes on a nationwide basis without first requesting an Advisory Opinion from the PRC.

The proposed injunction in Washington proceeds to say that “if any post office, distribution center, or other postal facility will be unable to process election mail for the November 2020 election in accordance with First Class delivery standards because of the Postal Service’s recent removal and decommissioning of equipment, such equipment will be replaced, reassembled, or reconnected.”

A few developments in some other cases as well: In the NAACP case, the plaintiffs filed a reply memo supporting their motion for a preliminary injunction. It’s not clear if that will be necessary now that Judge Bastian has issued his preliminary injunction.

In Pennsylvania v Dejoy, the Justice Department attorneys defending the Postal Service have filed a letter arguing that the discovery requests of the plaintiffs would be “unduly burdensome and not proportionate to the needs of the case.”

September 16, 2020

In Jones v USPS, the Postal Service provided weekly service performance data since the beginning of the year. This is the most complete picture of on-time performance that we’ve seen since the mail delays became an issue earlier this summer. The data set is discussed in this post. There was also a hearing today in the Jones case. There’s an article in Government Executive with some details about what happened.

In the Washington case, an amicus brief was filed by the County of Santa Clara, the City of Columbus, and Thirty-Eight Local and Tribal Governments. The brief argues that the operational changes made by the Postal Service impede delivery and receipt of vote-by-mail, absentee, replacement, emergency, military, and overseas ballots, voter registration material, and outreach and education efforts. They also create significant burdens for officials administering elections and interfere with tribal government functions.

In the Washington case, the Postal Service filed a brief in opposition to the plaintiff’s motion for a preliminary injunction. As noted on Law360,”Between arguing that the states’ concerns were overblown and pointing to regulations that say the Postal Regulatory Commission and the Washington D.C. Circuit Court have exclusive jurisdiction over such complaints, the USPS said the court should not grant the proposed injunction to undo changes that have already been made.”

“This case is now about plaintiffs’ attempts to have this court oversee the day-to-day operations of USPS, based on a claim that courts have analogized to a ‘Hail Mary,’ to right wrongs that do not exist,” the brief said. “Plaintiffs’ legally deficient claims, arising from unsupported fears about the potential actions of USPS, do not warrant the extraordinary relief it seeks.” See the Law360 article for more details.