September 28, 2020 Live Blogging USPS New York v Trump
NYU Prof. Steve Hutkins at Save the Post Office
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.