September 4, 2020
Four of the cases will likely be consolidated, at least with respect to discovery: NAACP v. U.S. Postal Service, Richardson v. Trump; State of New York v. Trump; and Vote Forward v. DeJoy.
The NAACP says it is willing to see the consolidations with respect to discovery, but they oppose further consolidation with respect to briefing or adjudication of the pending preliminary injunction motion or of potential cross-motions for summary judgment.
The plaintiffs in New York (brought by NYS AG Letitia James and others) have filed a Response to Order to Show Cause agreeing to some consolidation as well, so long as it does not “delay the resolution of their motion for preliminary injunction or any subsequent proceedings” and so long as the Court permits the plaintiffs to file separate reply memoranda in support of the pending motions.
The plaintiffs in Pennsylvania have filed a Reply in Support of their Motion for Expedited Discovery. They state the following:
In the middle of a pandemic, and with an election on the horizon, Defendants chose to overhaul how they transport, process, and deliver mail. The result of Defendants’ operational changes means that, at a time of immense need, the Postal Service has been unable to provide the country with efficient service. Despite widespread public outrage, Defendants intend to leave these changes in place—including through the 2020 election. As a result, by Defendants’ own doing, this case calls for urgent resolution. But Defendants nonetheless argue that the Plaintiff States’ request for prompt disclosure of the information needed for an accounting of those changes is unreasonable, and instead say that Plaintiffs should just accept materials Defendants intend to produce in separate litigation and public statements. Those materials are insufficient.
In the Urban League case, Judge George L. Russell, III has issued a Memorandum to Counsel noting that “the discovery—and, indeed, the relief—Plaintiffs seek in this matter is currently being sought by litigants in several other ongoing actions. As a result, this Court finds that Plaintiffs will likely receive much of the information they seek through expedited discovery already taking place in those other forums.” The Court also found that Plaintiffs’ request is overbroad. But the Court did grant expedited production of some documents.
In the Washington case, in a Motion for Entry of Protective Order, the Defendants have asked that some of the material they produce will be covered by a Protective Order due to its commercially sensitive and hence confidential nature. The Postal Service usually makes the same arrangement when it shares such information with the Postal Regulatory Commission, and presumably it will be the same sort of information, e.g., data about Competitive Products. But the Protective Order may cover other matters as well. It appears that this Motion was unopposed and so ordered.
The Johnakin case has been assigned to Judge Anita B. Brody, and a pretrial scheduling conference has been scheduled for Tuesday, September 22, 2020
September 3, 2020
There have been several new filings over the past 24 hours, including the following:
In the Jones case, the plaintiffs have filed an extensive Memo of Law and a Notice of Motion for Injunctive Relief. The Notice includes a list of what these plaintiffs are seeking as an outcome, which is similar to what plaintiffs in the other cases are asking. This includes requiring the Postal Service to restore its First Class Mail on-time delivery score to the “baseline” level before operational changes were implemented, delivering more than 99% of election mail on time, treating all election mail as First Class Mail (or Priority Mail Express when necessary), pre-approving all overtime and extra trips that have been or will be required through the election, and ensuring, to the maximum extent practical, that election mail is processed and cleared from any postal facility or post office on the same day it is received at such a facility or post office. The Notice also asks the Court to direct the Postal Service not to make any operational changes that could impact service until two weeks after the election.
The Jones plaintiffs have also filed affidavits from several expert witnesses, which we are still reviewing. One, however, stands out: the affidavit from Mark Jamison, retired postal worker and regular contributor to Save the Post Office. Jamison’s testimony can be found here.
In the National Urban League case, the plaintiffs have filed a Reply in Support of Plaintiffs’ Motion for Leave to Conduct Limited Expedited Discovery.
September 2, 2020
The Court has issued an order establishing the briefing and hearing schedule for the State of Washington case. Things are moving quickly. See the schedule here.
Top prosecutors from three U.S. states and two cities in the New York State case asked a federal judge to block the Trump administration’s changes to the Postal Service. Their 36-page motion for a preliminary injunction is here. It focuses on the fact that the Postal Service must request an “advisory opinion” from the Postal Regulatory Commission prior to making changes that “affect service on a nationwide or substantially nationwide basis.” 39 U.S.C. § 3661(b). Before issuing an opinion, the Commission must also hold hearings on the record to afford the Postal Service, users of the mail, and the general public—via a Commission representative—an opportunity to address any proposed changes.” The motion also emphasizes that the operational changes will make it more difficult to vote by mail and consequently contribute to the spread of the pandemic.
Attorneys working with the plaintiffs in the Urban League suit filed a Reply in Support of Plaintiffs’ Motion for Leave to Conduct Limited Expedited Discovery. It’s here. It concludes as follows: “This litigation presents issues of national importance in which time is of the essence. Voters do not have much time to decide whether to vote by mail or face the health risks of voting in person—the election is two months away, and in many states, the deadline to request a mail ballot is much closer. Plaintiffs’ requested 30(b)(6) deposition will permit Plaintiffs to ask detailed follow-up questions and confirm the Postal Service’s position on numerous issues critical to determining the Postal Service’s ability to handle the unprecedented surge of voting by mail in the upcoming election. And Plaintiffs’ targeted requests for production are both highly relevant to Plaintiffs’ claims in this lawsuit and, in most respects, unlike the requests for production in other pending suits. Plaintiffs’ requests are not extraordinary. Defendants’ refusal to agree to them— given what is at stake and the timeline at issue—is.”
September 1, 2020
On August 31, the Pennsylvania Eastern District Court granted a Motion for Expedited Consideration. Over the next couple of days, the Court will consider a Motion for Expedited Discovery.
Regarding those service performance reports, the Postmaster General wrote Congress yesterday to say that the Postal Service would be sharing weekly service performance reports after all. He also shared a briefing document with containing more recent charts that indicate some improvement in on-time delivery over the past couple of weeks. The letter is here and the briefing document is here. The Postal Service’s opposition to my motion with the PRC to release more data was discussed in a Government Executive article.
August 30, 2020
Most of the complaints cite President Trump’s comments and tweets about the Post Office and voting by mail as evidence that the mail delays are intended to interfere with mail voting in the election.
The complaints do an excellent job documenting the delays by including quotations from postal workers and customers, the charts presented by the House Committee on Oversight, and news reports about specific examples of delayed mail. See, for example, pp. 28ff of the Complaint by New York State et al. (The charts were first reported on Aug. 18 on this website here.)
Several complaints focus on the fact that a lot of Election Mail goes out as Nonprofit Standard Marketing Mail, which in the past has usually been given a priority similar to First Class because it is so time-sensitive and important. Earlier this month, the Postal Service informed states that the mail will be handled as the class at which it was sent, which could mean ten days or more for ballot applications and ballots themselves sent at this cheaper bulk rate. The USPS OIG report on Election Mail in the 2018 Midterms is usually cited as evidence of past practice.
Several of the cases, including the suits brought by NAACP and Vote Forward, focus on the Postal Service’s failure to request an Advisory Opinion from the Postal Regulatory Commission before implementing changes with a national impact on service. In fact, that’s the primary argument in the Vote Forward complaint.
The Vote Forward case is the most recently filed (August 28). There’s information about the case here. Vote Forward has introduced as evidence a helpful chart showing when ballots must be received and/or postmarked. The judge in this case is the DC Circuit’s Emmet G. Sullivan, who’s been in the news lately (the Flynn case).
Several of the case dockets are already noting related cases. For example, the NAACP case acknowledges “common issues of fact” with the New York State case. It’s possible that some cases will be consolidated, such as the five cases in the DC Circuit.
Several of the plaintiffs have filed motions for expedited consideration. In the State of Washington case, the court has granted a motion for expedited discovery (a news article about that is here). A list of the interrogatories specifying what materials Washington et al are seeking can be found in Appendix A here. They include questions about the status of sorting machine removals, USPS policy directives about how to treat Election Mail and operational matters like restrictions on late trips, etc.
The plaintiffs in these cases seek various sorts of remedies, including declaring the changes made under the “Pivot Instructions” (which changed operational practices) invalid. The Vote Forward complaint, for example, states, “The lawsuit seeks a narrow remedy that would get the Postal Service to return service back to its normal pace ahead of the election this November and appoint an independent monitor to oversee service.” Other complaints seek broader remedies, including declaring the operational changes illegal, returning sorting machines that have been decommissioned back into operation, treating Election Mail as first class, and prohibiting the Postal Service from making further changes that have a nationwide impact without requesting a PRC advisory opinion.
The defendants in the Washington et al case (Trump, DeJoy, USPS) have filed a brief in opposition to the motion for expedited discovery. They argue that they’ve already provided a large volume of information with more on the way. They also argue that the requests are premature, overly broad and unduly burdensome.
The Protect Democracy case is primarily about the Postal Service’s responses (or lack thereof) to numerous FOIA requests they submitted. The Postal Service has filed a brief in opposition to this complaint.
On a related matter, but not part of these lawsuits, I filed a motion with the PRC asking the Commission to request that the Postal Service file weekly on-time service performance reports since June 1 so that the public could get a clearer sense of the extent and geography of the delays and the Postal Service’s progress toward returning to previous performance levels. The Postal Service has filed a response objecting to my motion on procedural grounds. The Commission can act on the motion and seek this information, or ignore it, which has the same effect as denying it. As far as I have seen, none of the lawsuits against the Postal Service has requested this information yet. One or more will eventually do so as part of the discovery process. One or more FOIA requests have also been submitted requesting this information.
|PACER Case Number||Case Title||Court||Date of Complaint|
Link to Complaint
|1:2020cv02295||NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE V. UNITED STATES POSTAL SERVICE ET AL||District of Columbia District Court||8/20/20|
|1:2020cv03127||STATE OF WASHINGTON ET AL (COLORADO, CONNECTICUT, ILLINOIS, MARYLAND, MICHIGAN, MINNESOTA, NEVADA, NEW MEXICO, OREGON, RHODE ISLAND, VERMONT, VIRGINIA, and WISCONSIN) V. TRUMP ET AL||Washington Eastern District Court||8/18/20|
|1:2020cv02340||STATE OF NEW YORK ET AL (HAWAII, NEW JERSEY, CITY OF NEW YORK, CITY AND COUNTY OF SAN FRANCISCO) V. DONALD J. TRUMP ET AL||District of Columbia District Court||8/25/20|
|2:2020cv04096||COMMONWEALTH OF PENNSYLVANIA ET AL (CALIFORNIA, DELAWARE, DISTRICT OF COLUMBIA, MAINE, MASSACHUSETTS, and NORTH CAROLINA) V. DEJOY ET AL||Pennsylvania Eastern District Court||8/21/20|
|1:2020cv06516||JONES ET AL V. UNITED STATES POSTAL SERVICE ET AL||New York Southern District Court||8/17/20|
|1:2020cv02391||NATIONAL URBAN LEAGUE ET AL (COMMON CAUSE AND LEAGUE OF WOMEN VOTERS) V. DEJOY ET AL||Maryland District Court||8/18/20|
|1:2020cv02262||RICHARDSON ET AL V. TRUMP ET AL||District Of Columbia District Court||8/20/20|
|2:2020cv04055||JOHNAKIN V. UNITED STATES POSTAL SERVICE ET AL||Pennsylvania Eastern District Court||8/19/20|
|1:2020cv02214||PROTECT DEMOCRACY PROJECT, INC. V. UNITED STATES POSTAL SERVICE||District Of Columbia District Court||8/12/20|
|1:2020cv02405||VOTE FORWARD V DEJOY, USPS||District Of Columbia District Court||8/28/20|
|4:2020cv00079||STEVE BULLOCK, GOV. OF MONTANA V USPS, DEJOY||District Of Montana District Court||9/8/20|
|1:2020cv24069||1199SEIU UNITED HEALTHCARE WORKERS EAST V DEJOY ET AL||Florida Southern District Court||10/6/20|
To make it easier to search all of the complaints at once, they have been merged into one file here: https://bit.ly/31H6pal.