Steve Hutkins at Save The Post Office, October 31, 2020

This post was written in 2016 and slightly updated on Oct. 31, 2018, exactly two years ago today. The update started like this:

According to this AP report today, alarms are already being raised about the rejection of many mail-in ballots in next week’s elections. Several of these elections are likely to be very close, and in some cases, votes cast by mail may make the difference. As the AP article notes, “nearly one of every four ballots cast in 2016 came through the mail or was handed in at a drop-off location, according to the U.S. Election Assistance Commission.” With more and more people choosing to vote by mail, controversies involving mail ballots are likely. Back in 2016, just before the November election, we ran this article about the potential for an election “meltdown” arising from voting-by-mail issues.

Following is the 2018 update, with no further revisions for 2020. Some of the details are out-of-date and incorrect, but much of the post is more relevant now than it was then.

Mark Jamison, Retired NC Postmaster at Save the Post Office, October 29, 2020

In forestry the practice of tree girdling is well known. Although there are some circumstances where this can be a useful practice, in most cases the technique is used for nefarious ends. Girdling involves removing the bark and layers below the bark, usually around the trunk of the tree. The cut, when it includes the entire circumference of the tree, makes it impossible for the tree to heal itself and everything above the cut will eventually die. In forests where logging is limited to dying or diseased trees, loggers will girdle healthy trees to kill them and make them available for harvest.

For at least the last fifty years, the right wing has been girdling the post office and the postal network in the hope of undermining its health and thereby reaping a financial harvest. The very people who have been charged with caring for and sustaining the Postal Service have instead repeatedly cut services, saddled the institution with requirements that undermine its ability to function, and denigrated the value of the network.

Louis DeJoy and Robert Duncan are the latest in the long line of postal girdlers. But they have taken their game to a higher level and for what are clearly political reasons. Both are products of the president that appointed them and both evidence their benefactor’s outright mendacity. They have made it clear that regardless of the law, public necessity, or public opinion, their goal is to cut postal operations. The recent OIG report reviewed here at STPO  demonstrates that clearly.

Steve Hutkins at Save The Post Office, October 26, 2020

In response to several inquiries from members of Congress, the Office of Inspector General has issued a report on “Operational Changes to Mail Delivery.” The report discusses the Postal Service’s plan to eliminate 64 million work hours — the equivalent of 33,000 jobs — by implementing 57 cost-cutting initiatives. As discussed in this previous post, the plan represents one of the largest downsizing efforts in the 50-year history of the Postal Service.

These 57 “Do It Now FY Strategies” include restrictions on overtime, late and extra trips from processing centers, and all the other cost-cutting measures that have caused the delivery delays we’ve seen since July. They also include numerous other changes to postal operations that have not received much, if any, attention.

The report criticizes postal leadership on several counts. First, the Postal Service “did not complete a study or analysis of the impact the changes would make on mail service prior to implementation.” Second, “documentation and guidance to the field for these strategies was very limited and almost exclusively oral.” That caused “confusion and inconsistency” and “compounded the significant negative service impacts across the country.”

The IG also criticizes management for a third major failing: The Postal Service did not “fully respond” to questions and document requests from Congress and did not share information about the plan beyond what the Postmaster General was specifically asked in his testimony before the House and Senate.

As a result, Congress was not informed of the existence of the Work Hour Reduction Plan and the “Do It Now FY Strategies” before or during the Postmaster General’s testimony to Congress. The plan is not mentioned at all in Senator Gary Peters “Failure to Deliver” report or his update report. It’s very likely that Congress has yet to receive a full accounting of the plan.

Mark Jamison’s commentary on USPO matters have been featured at Angry Bear Blog a number of times. A retired postmaster, Mark Jamison serves as an advisor, resident guru, and a regular contributor to Save the Post Office. Mark’s previous posts concerning the USPO can be found here at “Save The Post Office” or by doing the search function at Angry Bear. Mark can also be contacted on USPO matters markijamison01@gmail.com

The Post Office in a Decent Society, Save the Post Office, Mark Jamison, October 20, 2020

In looking at the results of the recent lawsuits against the Postal Service — eight of which have led to rulings banning changes in postal operations until after the election — it is tempting to make a bad sports analogy.  After all, going 0 for 8 in the courts lends itself to comparisons with the futility we often associate with the worst teams and players. But to do so trivializes matters of the gravest civic importance.

The lawsuits have been initiated to preserve our right to vote and do so in a way that preserves our health and safety during a pandemic. They have also served to highlight the politicization of a national asset and institution, one whose mission embodies the concept of one nation through the provision of universal service.

The Postal Service has repeatedly lost in court because there is no argument that can defend the clownish tenure of Louis DeJoy and the overt politicization of an infrastructure that should be totally nonpolitical by Robert Duncan and the other members of the Postal Board of Governors.

Duncan continues to serve as a director of a super PAC dedicated to electing Republican candidates to the Senate. Whatever insights or advantages Duncan’s experience might bring to the operations of the Postal Service, they are more than offset by his utter lack of respect for the institution. His continued partisan position during a contentious election in which the Postal Service is playing an essential role is inexcusable. A person with any sense of civic duty or public propriety would have stepped aside long ago.

Prof. Steve Hutkins at Save the Post Office adds information on court rulings.

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.

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.”

NYU Prof. Steve Hutkins at Save the Post Office

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.

Prof. Steve Hutkins at Save the Post Office

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.

Prof. Steve Hutkins at Save the Post Office

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.

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. We hope to have more on that later.

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.

Lawsuits against DeJoy, USPS & Trump over mail delays and election mail, Save The Post Office, Steve Hutkins, September 16, 2020