The Postal Service has just filed a motion with the Postal Regulatory Commission challenging the Commission’s authority to open a public inquiry docket on the Delivering for America plan. “The Postal Service … respectfully requests that the Commission reconsider and withdraw Order No. 6488 [which opened the docket], as it is based on a material error of law.”
According to the Postal Service, “Order No. 6488 creates a ‘forum’ to delve into ‘issues related to the Postal Service’s Delivering for America Strategic Plan’ without identifying a legal basis that allows the Commission to conduct such a far-flung inquiry. The Order has no limiting principles grounded in the Commission’s authority, and instead permits the Commission, as well as any interested party, to inquire into any and all aspects of the Plan, and hence—given the breadth of the Plan—upon the Postal Service’s strategic initiatives generally. This includes matters that the Commission has previously recognized are outside of its jurisdiction.”
The Postal Service goes on to describe the various ways stakeholders and the public have had an opportunity to comment on the DFA plan and then observes:
“With these extensive options, it is not clear what further opportunities for input the stakeholders feel are missing, beyond wanting granular information about certain strategic initiatives before the Postal Service is ready or required to reveal it. If stakeholders have not been engaged in the proceedings to date related to the initiatives that have properly been made public, it is not because of a lack of opportunity. The public’s right to information is not unlimited, and they are not entitled to scrutinize pre-decisional deliberations or various types of sensitive management matters. The Commission should use established mechanisms to ensure adequate oversight, consistent with its past decisions and its statutory authority. An open-ended PI docket that encompasses review of all possible initiatives under the Plan is wholly unnecessary, unwarranted, and contrary to the Commission’s statutory authority.”
One of the main motives for the inquiry was to provide more transparency about the DFA plan. The Postal Service turns this justification on its head and says the inquiry will lead to less transparency: “Moreover,” states the motion, “using a PI docket to essentially audit the Postal Service’s internal planning and deliberations is not only unjustifiable, but could disincentivize transparency if our efforts to share strategic information at early stages simply generates intrusive and inappropriate oversight by the Commission.”
The motion runs to 27 pages, and it cites numerous statutes, precedents, and previous orders by the Commission. It’s fashioned simply as a “motion for reconsideration” of the order creating the public inquiry docket, but it reads more like the foundation for a legal case.
It’s noteworthy that the motion is signed by Thomas J. Marshall, the USPS General Counsel and Executive Vice President, along with six other attorneys. That’s not typical for a motion before the PRC. Nor is it typical for the Postal Service to warn the Commission against subpoenaing information. As the motion states, “An attempt to use the Commission’s subpoena power as a legal basis to initiate Docket No. PI2023-4 would be mistaken.”
Should the Commission deny the motion and keep the docket open, it’s likely, perhaps inevitable, that the Postal Service will challenge the decision in the D.C. Circuit court. A lawsuit would, of course, take a long time to resolve — certainly more than a year, if previous cases are any indication.
If the Commission grants the Postal Service’s motion, there will be no public inquiry into the DFA plan. If the Postal Service takes the Commission to court, it will have much the same effect.
Shutting down a public inquiry into the Delivering for America plan does not reflect well on the Postal Service, to say the least.
— Steve Hutkins