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NAPS Legal Counsel Bruce Moyer gave a report on the NAPS lawsuit, NAPS v. USPS and UPMA, at LTS. He recapped that, on Feb. 22, the U.S. Circuit Court of Appeals for the District of Columbia ruled for NAPS on all points that the Postal Service violated the law in how it consulted with NAPS over the 2016-2019 pay package and how the Postal Service failed to pay EAS personnel in conformance with Title 39.
The lawsuit did not end with the Appeals Court decision, he informed delegates. The Appeals Court remanded or returned the case to the District Court for further proceedings consistent with the court’s decision.
Moyer said one word describes the lawsuit: Victory. The court’s decision clearly represents a victory for all EAS personnel and the integrity of their pay system, he stressed. It also marks a clear victory for NAPS and its right to represent all, nearly 50,000 members of the EAS ranks, whether supervisors, managerial personnel or postmasters.
The Appeals Court’s decision also could be called historic and considered a landmark decision. According to Moyer, the decision sets new precedent in enforcing Title 39 mandates to the Postal Service on supervisory pay and NAPS representation rights. “This victory has come about only because of the courage and the tenacity of your national officers, your National Executive Board and your NAPS legal team in continuing the fight these past four years,” he insisted.
He said the decision will provide greater clarity on Title 39 and mark the beginning of the end of Postal Service gaslighting and obstruction on supervisor pay and NAPS consultation rights. “Things may not change overnight,” he cautioned, “but it’s clear that Postal Service arrogance and intransigence in its dealings with NAPS must end.”
The lawsuit grew out of NAPS’ dissatisfaction with the FY16-19 pay package for Field EAS personnel and how the Postal Service engaged in consultation with NAPS. In its complaint, NAPS alleged that the Postal Service violated Title 39 by:
Five months after NAPS filed the lawsuit, UPMA intervened as a defendant, joining with the Postal Service in challenging NAPS’ claim that NAPS was an eligible representative of postmasters. The case in the District Court never went to trial. Early in the proceedings, Senior Judge Royce Lamberth, a Reagan-era appointee to the bench, granted the Postal Service and UPMA motions to dismiss NAPS’ lawsuit.
Lamberth said NAPS failed to show that USPS violated a “clear and mandatory” statutory directive and that the pay matters in dispute were not subject to judicial review. Moyer affirmed that NAPS was astounded by the ruling because NAPS and the Postal Service had faced off several times in pay-related lawsuits before the same District Court and the U.S. Court of Appeals in the 1970s.
As a result, NAPS appealed the District Court’s decision to the U.S. Circuit Court of Appeals for the District of Columbia. Moyer pointed out this Appeals Court often is regarded as the second-most powerful court in the nation, second only to the Supreme Court, because of the many cases it hears challenging federal governmental action.
NAPS argued before the Appeals Court that it was entitled to judicial review and that the Postal Service failed to honor Title 39’s mandates regarding consultation and pay. “We filed briefs on the issues, and the Postal Service and UPMA did the same over the course of the next year,” Moyer told delegates.
On Sept. 21, 2021, the court held oral argument in the case before a randomly selected three-judge panel, consisting of Senior Judge Harry T. Edwards, Judge Nina Pillard and Judge Robert L. Wilkins. The court initially scheduled 15 minutes for argument. But, ultimately, the court devoted 70 minutes to argument, diving deeply into the language of Title 39 and the Postal Service’s obligations under the statute.
Five months later, on Feb. 22, 2022, the Appeals Court issued its unanimous decision, written by Edwards. The court unanimously overturned the District Court decision and remanded the case to the District Court for further proceedings consistent with the decision.
Moyer said this victory has been led by current and past resident officers and current and past Executive Board members, particularly Brian Wagner, Ivan Butts, Chuck Mulidore and Jimmy Warden. Board member Dan Mooney also played an instrumental role in leading the internal pay workgroup.
He also credited the legal team of Brown, Goldstein and Levy from Baltimore, MD, as doing a fantastic job. Moyer said he has had the privilege of managing the litigation on behalf of NAPS and in collaboration with the resident officers and the board.
The Appeals Court reached six major findings, involving:
1. Judicial review of USPS pay decisions.
2. USPS statutory obligations to EAS employees.
3. Representation of EAS employees.
4. Pay differentials for EAS employees.
5. EAS and private-sector pay/benefits comparability.
6. USPS transparency in consultation with NAPS.
Moyer proceeded to discuss each of these findings in detail. “Words are powerful tools,” he offered, “carefully selected and used by judges. In the case of our lawsuit, the Appeals Court’s decision deeply reflects the court’s rejection of the Postal Service’s arrogance and recklessness in how it applied Title 39 to its relationship with NAPS and EAS employees.”
Regarding what the next steps are in litigation, Moyer informed delegates that just this past week, UPMA filed with the Appeals Court a petition for rehearing en banc—a legal term meaning that all the judges of the appellate court sit to review the case, as opposed to a three-judge panel. The Postal Service has not yet indicated whether it, too, will seek en banc review. The agency has until April 8 to file such a petition with the Appeals Court.
Moyer said petitions for rehearing en banc are frequently filed, but rarely granted. The only other avenue of appeal—to the U.S. Supreme Court—also is highly unlikely because it is solely dependent on whether the Supreme Court agrees to take the case. Once these last-gasp appeals have concluded, the District Court will proceed to consider the case at trial in a fashion consistent with the Appeals Court’s decision, he explained.
Moyer said issues on remand could include:
The District Court’s consideration of these issues will rely on discovery and then trial, he explained, which could stretch on for another year or two. Of course, a settlement at any time could arise, dependent on the right terms and conditions. In the meantime, NAPS continues on three fronts:
The Appeals Court’s decision is on the NAPS website. A summary of the decision was printed in the April Postal Supervisor. And the slides from Moyer’s LTS presentation will be posted on the NAPS website among the LTS materials.