In the United States Court of Federal Claims
No. 17-934C
(Filed December 27, 2021)
NOT FOR PUBLICATION
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MAIL TRANSPORTATION, INC., *
et al., *
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Plaintiffs, *
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v. *
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THE UNITED STATES, *
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Defendant, *
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And *
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AMERICAN POSTAL WORKERS *
UNION, AFL-CIO, *
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Defendant-Intervenor. *
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ORDER
In this bid protest the plaintiffs, twenty different firms which held contracts
with the United States Postal Service (USPS or Postal Service) to transport mail,
challenge the decision to insource the transportation services they were providing.
This insourcing of 110 transportation routes was due to an arbitration decision
requiring Highway Contract Routes (HCRs) to be converted to Postal Vehicle
Service (PVS)---that is, transportation by USPS employees---as a remedy for past
breaches of a collective bargaining agreement between USPS and intervenor
American Postal Workers Union (APWU). The Court had previously found
supplementation of the administrative record to be warranted under Axiom
Resource Management, Inc. v. United States, 564 F.3d 1374, 1380 (Fed. Cir. 2009).
See Mail Transportation, Inc. v. United States, 153 Fed. Cl. 205, 210–14 (2021).
Because of “the lack of any formal decision documents for the selection process,” and
the “technical and complex nature” of the otherwise “inscrutable” trip schedule data
in the administrative record, the Court added to the administrative record portions
of declarations from officers and owners of some of the plaintiff firms “identifying
and explaining facts in the administrative record, not offering opinions,” Mail
Transp., 153 Fed. Cl. at 212 (internal quotation and citation omitted.). The Court
also added portions of these declarations concerning certain “matters within the
specific knowledge and control of the Postal Service,” reflecting ‘“tacit knowledge’ of
a ‘technical nature’ possessed by Postal Service and contractor employees.” Id. at
214 (quoting E.W., Inc. v. United States, 100 Fed. Cl. 53, 57 (2011)).
Currently pending before the court are the government’s first motion,
intervenor’s first motion, and plaintiffs’ fifth motion to supplement the
administrative record. The motions filed by plaintiffs and intervenor are opposed.
As explained in more detail below, defendant’s motion to supplement the
administrative record is GRANTED, plaintiffs’ fifth motion to supplement the
record is GRANTED-IN-PART and DENIED-IN-PART, and intervenor’s motion
to supplement the administrative record is DENIED.
Defendant seeks to add a declaration from a USPS official, Ray Wagstaff, to
respond to certain factual contentions made in the above-referenced declarations by
plaintiffs’ owners and officers. See Def.’s Mot. Suppl. Admin. R., ECF No. 137
(Def.’s Mot.) at 1–3. This declaration explains information already in the record,
discussing the pairing of trips in the schedules to determine the length of layovers.
See Suppl. Decl. of Ray Wagstaff, ECF No. 137-1, ¶¶ 4–5. It also contains an
articulation of the tacit knowledge of the Postal Service decisionmakers concerning
the pre-existence of PVS operations and the occurrence of late or extra trips. Id.
¶¶ 3, 6–8. For the same reasons that the declarations to which Mr. Wagstaff is
responding were added to the administrative record, see Mail Transp., 153 Fed. Cl.
at 211–14, the Court finds that effective judicial review would be frustrated if this
declaration is not added to the administrative record. See Axiom, 564 F.3d at 1380.
Plaintiffs do not oppose the government’s motion, but they do seek to add
three declarations from their own officers and employees to rebut the contentions in
the supplemental Wagstaff declaration and defendant’s supplemental brief. Pl.’s
Fifth Mot. Suppl. Admin. R., ECF No. 139 (Pls.’ Mot.). The first of these
declarations was executed by Alan Gotta, the president of Mail Transportation Inc.
He previously declared that one route performed under contract HCR 92350 had a
layover that exceeded one hour. Suppl. Decl. of Alan Gotta, ECF No. 130-1, ¶ 3.
Responding to a statement to that effect in defendant’s supplemental brief, ECF No.
136 at 8, Mr. Gotta now states that three trips under that contract had such a
layover. See Pl.’s Mot. at 1–2; Ex. A to Pls.’ Suppl. Br., ECF No. 138-1, ¶¶ 4–5.
Defendant opposes supplementing the record with this declaration because the
USPS used a different method to calculate layover times and had previously
explained why the one long layover was not problematic. Def.’s Opp’n to Pls.’ Fifth
Mot. Suppl. Admin. R., ECF No. 140 (Def.’s Opp’n) at 4. But this goes to the
strength of the evidence, not whether it must be added to the administrative record
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so that effective judicial review is not frustrated. 1 Given the technical nature of the
trip schedule information, the Court finds it necessary to allow the administrative
record to be supplemented with the second supplemental Gotta declaration. See
Axiom. 564 F.3d at 1380; Mail Transp., 153 Fed. Cl. at 212–13.
The second declaration plaintiffs seek to add was executed by Eugene
Nishimura of Hokulani Kigyo, LLC. See Ex. B to Pls.’ Suppl. Br., ECF No. 138-2 at
1–2. The first substantive portion of this declaration asserts that under contract
HCR 967L1 there was “the functional equivalent of a layover” between the end of
one roundtrip route and the beginning of another, because the same truck was used.
Id. ¶¶ 3–5. But as the government notes in its opposition, see Def.’s Opp’n at 3,
rather than addressing the criterion used by the USPS, this statement disagrees
with it, and relies on information concerning a particular truck that was not within
the specific knowledge of the Postal Service officials. These paragraphs, and
Exhibit 1 to the declaration, are thus either contractor opinion or information
beyond the control of the USPS, and thus do not qualify to be added to the record.
See Mail Transp., 153 Fed. Cl. at 214. The remainder of this declaration concerns
the frequency of late trips and extra trips under contract HCR 967L1, and their
impact on costs. Ex. B to Pls.’ Suppl. Br. ¶¶ 6–8. These statements are supported
by billing records, which presumably reflect information submitted to the Postal
Service and thus within its knowledge. See Ex. 2 to id., ECF No. 138-2 at 11–47. 2
Though the government opposes inclusion of information regarding late and extra
trips, the court has previously found that such information meets the standard for
supplementation. Mail Transportation, Inc., 153 Fed. Cl. at 214. Accordingly,
paragraphs 6 through 8 of the second supplemental Nishimura declaration, as well
as the supporting billing records in its second exhibit (and the first two introductory
paragraphs), shall be added to the administrative record.
The final declaration plaintiffs seek to add to the record was executed by
Nola Holton of Holton Truck Lines, Inc. See Ex. C to Pls.’ Suppl. Br., ECF No. 138-
3, at 1–3. For the most part, this declaration concerns the prevalence of late trips
1 Indeed, the strength of this declaration is diminished by its cryptic identification
of route trips. Plaintiffs do not cite the pages in the administrative record
containing the referenced trips. See Pls.’ Suppl. Br., ECF No. 138 at 6; Pls.’ Mot. at
2. The declaration references trips 11, 12, 321, 322, 323 and 324. Ex. A to Pls.’
Suppl. Br. ¶ 4. The latter four do not appear in the trip schedule records. See
Admin. R. (AR) 2676–89. The government has identified trips 321 and 322 as trips
121 and 122 in the record, Def.’s Opp’n at 4, which appear to contain the layover
identified in the previously-filed Gotta declaration. See Suppl. Decl. of Alan Gotta,
¶ 3; AR 2681.
2 Because these billing records lack internal pagination, the Court cites the page
numbers supplied by our electronic filing system.
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and extra trips under contracts HCR 890L0, 89036, 89042, and 89044, and the cost
impact of these trips. See id. ¶¶ 3–10. As the Court has previously explained, this
tacit knowledge of a technical nature concerning transportation operations was also
possessed by the Postal Service and must be added to the administrative record so
that effective judicial review is not frustrated. See Mail Transportation, Inc., 153
Fed. Cl. at 214. Paragraph 11 of the declaration is, however, more on the order of
contractor opinion concerning postal worker efficiency and cannot qualify for
inclusion. Thus, all but that last paragraph of the second supplemental Holton
declaration shall be added to the administrative record.
In its motion to supplement the administrative record, the APWU seeks to
add to the administrative record a subsequent decision by the arbitrator sanctioning
the USPS for its tardiness in complying with the initial arbitration award. Int.’s
Mot. Suppl. Admin. R., ECF No. 141 (Int.’s Mot.) at 1–2; Ex. A. to Int.’s Mot.
Plaintiffs do not oppose adding this decision to the record, provided that all the
records of the arbitration proceeding that led to that decision are also added to the
record. Pls.’ Resp. to Int.’s Mot., ECF No. 142 at 1. Defendant opposes adding this
decision to the administrative record, arguing that an arbitration decision related to
enforcement of the initial arbitration award is irrelevant to a challenge regarding
the rationality of the USPS’s actions undertaken to comply with the initial award
decision. Def.’s Resp. to Int.’s Mot. (Def.’s Resp.) at 1.
The focal point of judicial review is the body of information the agency had
before it when making its decision. Axiom Res. Mgmt., Inc., 564 F.3d at 1379 (citing
Camp v. Pitts, 411 U.S. 138, 142 (1973)). This cannot logically include judicial or
administrative determinations made years after the challenged agency action, such
as the second arbitration decision. Cf. Mail Transp., 153 Fed. Cl. at 209 (refusing to
add to the record internal USPS emails which post-date the challenged action as
they did not bear upon the reasoning underlying the challenged decision).
Intervenor and defendant correctly note that the second arbitration decision could
be relevant to the question of a remedy should plaintiffs prevail on the merits of this
protest, because of the monetary damages the decision imposes, on an ongoing
basis, on the Postal Service for delays in converting routes to PVS service. Int.’s
Mot. at 3; Def.’s Resp. at 2–3; see Ex. A to Int.’s Mot. at 2. A document, however,
need not be part of the administrative record to be considered for the purposes of
fashioning a remedy---merely being a part of the Court’s record, as the second
arbitration decision already is, suffices for those purposes. See, e.g., CW Gov't
Travel, Inc. v. United States, 110 Fed. Cl. 462, 483–84 (2013); E.W., 100 Fed. Cl. 57–
58; PlanetSpace, Inc. v. United States, 90 Fed. Cl. 1, 5 (2009). Accordingly,
intervenor’s motion to supplement the administrative record is DENIED.
For the reasons stated above, defendant’s motion to supplement the
administrative record, ECF No. 137, is GRANTED; plaintiffs’ fifth motion to
supplement the administrative record, ECF No. 139, is GRANTED-IN-PART and
DENIED-IN-PART; and intervenor’s motion to supplement the administrative
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record, ECF No. 141, is DENIED. As the administrative record (and the Court’s
record) has expanded as a result of these motions, the parties shall each file a
supplemental brief addressing the significance, if any, of the added materials to the
pending motions for judgment, on or by Tuesday, January 18, 2022. The Court
will then consider the matter submitted for decision.
IT IS SO ORDERED.
s/ Victor J. Wolski
VICTOR J. WOLSKI
Senior Judge
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