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Federal Courts Rule Against USPS Leadership Decisions
By Bob Levi
NAPS Director of Legislative & Political Affairs
You can shovel all the snow, but you can’t stop winter from coming. In an Oct. 2, federal-court-demanded filing, the Postal Service provided data to the U.S. District Court for the Southern District. The 54-page document indicated, in part, that Postmaster General Louis DeJoy’s mid-August about-face on implementation of June’s postal operational changes failed to repair the already inflicted damage.
In fact, according to the required filing, national on-time performance for First-Class Mail slipped to 84.23% for the week ending Sept. 24. For reference, First-Class on-time delivery was 92.3% the week of May 23 (during the pandemic).
As NAPS members know, the reliability and timeliness of our nation’s most cherished government service have been challenged and become a partisan piñata. These spiteful blows have threatened the integrity of absentee balloting and the Postal Service itself.
Despite the political broadside, a nationwide survey conducted during the last week of August by Ipsos Polling, The Washington Post and the University of Maryland Center for Democracy and Civic Engagement found that 72% of American voters viewed the Postal Service favorably. However, more than half noted a decline of on-time delivery as compared to the previous year. It’s good to point out the poll reported two-thirds of Americans believe the USPS should be run as a “public service,” even if it costs the government money.
By the time you receive the November issue of The Postal Supervisor, we may or may not know the final tally for the presidential and congressional elections. No matter the outcome, we have our work cut out for us in the upcoming months. It will fall on postal employees, in collaboration with our elected allies, to help restore the quality mail service to which Americans are entitled.
In late summer, members of Congress subjected postal leadership to two days of hearings and the House passed legislation to help the agency. Now, it appears the mailing public, postal-reliant businesses and postal employees have allies in the federal courts.
In mid-September, four different U.S. district courts considered the operational pronouncements made by the Postal Service’s senior leadership that coincided with new Postmaster General Louis DeJoy assuming the helm. Multiple states, cities, public-interest groups, voters and citizen mailers challenged those decisions in court; specifically, recent operational changes and the removal of more than 700 high-speed mail processing machines.
The federal courts were in the states of Washington, New York and Pennsylvania, as well as the District of Columbia. All four courts ruled against Postal Service leadership, recognizing the crucial role the agency has played in the administration of the 2020 election. All four courts refused to accept the Postal Service’s defense that there was no change in postal policy. And all four rejected the Postal Service’s attempt to shift blame to local management.
First-issued Washington state’s ruling was distinct in that it raised the possibility the USPS’ decisions may have been politically motivated. The presiding judge referenced how the president’s anti-postal and anti-absentee-ballot tweets and statements may have influenced leadership decisions.
The judge also observed that 72% of the decommissioned mail processing machines were in counties lost by President Trump in 2016. Finally, the ruling identified the impact the postal changes have had on governmental operations conducted through the mail, as well as the transit of prescription medication through the mail.
The New York court raised serious constitutional concerns about the Postal Service’s operational changes. Specifically, the judge suggested the changes may have violated the First Amendment’s guarantee to freedom of speech and the Fifth Amendment’s assurance of equal protection under the law. Because voting is a recognized form of speech, the USPS’ actions could impair a citizen’s ability to vote by mail. The discriminatory impact of the postal changes on different classes of citizens could deny them voting protections extended to other citizens.
As a result of the potential for serious constitutional infringement, the New York Court ordered the Postal Service to provide detailed, weekly performance reports to the court, mandating that the Postal Service submit a plan for on-time delivery at 93.88%. The 84.23% on-time performance referenced in the second paragraph of this column is extracted from the Oct. 2 report.
The Pennsylvania court, in its ruling, required the same performance data as mandated in the New York court ruling. However, probably the most far-reaching directive for future postal operations rests in the rulings of the Pennsylvania and District of Columbia courts. Both federal courts ruled the Postal Service should have followed the law and submitted its operational changes and removal of mail processing equipment to the Postal Regulatory Commission (PRC) for an
“advisory opinion” before implementing those changes.
The proposed changes would have been open for public comment through an administrative hearing, after which the PRC would have issued an advisory opinion relating to the proposed changes. As a consequence of the Pennsylvania and New York rulings, it is highly likely that, should the Postal Service seek to implement the proposed changes after the election or propose any further changes approaching the magnitude of those implemented in June, the agency would first have to seek an advisory opinion from the PRC.
The lesson to be learned over the past few months is the Postal Service continues to be valued by the American public and is widely recognized as essential to governmental functioning. Postal leadership needs to take this into account as it governs the agency and steers its operations toward vitality. Otherwise, it will be a long winter.