State of New York v. Donald J. Trump

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

STATE OF NEW YORK, et al.,

Plaintiffs,

v. No. 20-cv-2340(EGS)
JOSEPH R. BIDEN, JR., in his
official capacity as President
of the United States, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiffs the States of New York, Hawaii, and New Jersey;

the City of New York; and the City and County of San Francisco

filed this lawsuit against Defendants Joseph R. Biden, Jr., in

his official capacity as President of the United States; Louis

DeJoy (“Mr. DeJoy”), in his official capacity as Postmaster

General of the United States; and the United States Postal

Service (“USPS”) or (“Postal Service”) alleging the following

claims: (1) Ultra Vires Agency Action—Postal Accountability and

Enhancement Act; (2) Ultra Vires Agency Action—Postal

Reorganization Act; and (3) violation of the Elections Clause of

the United States Constitution. See Compl., ECF No. 1 at 59-61.

Currently pending before the Court are the parties’ cross-

motions for summary judgment. See Pls.’ Mot. Summ. J., ECF No.

1
58; Defs.’ Cross Mot. Summ. J., ECF No. 66. 1 Upon consideration

of the motions, the responses and replies thereto, the

applicable law, the entire record, and for the reasons stated

below, the Court GRANTS IN PART AND DENIES IN PART Plaintiffs’

Motion for Summary Judgment and GRANTS IN PART AND DENIES IN

PART Defendants’ Cross-Motion for Summary Judgment.

I. Background
A. Statutory and Regulatory Framework
In the Postal Reorganization Act (“PRA”), Public Law 91-

375, 84 Stat. 719 (Aug. 12, 1970), Congress replaced the Post

Office Department with the Postal Service as “an independent

establishment of the executive branch of the Government of the

United States, under the direction of a Board of Governors, with

the Postmaster General as its chief executive officer.” 39

C.F.R. § 1.1. The PRA also created an independent oversight body

for the USPS, the Postal Rate Commission. 39 U.S.C. § 501.

Congress passed the PRA to “[i]nsulate” the management of the

USPS “from partisan politics . . . by having the Postmaster

General responsible to the [Postal Rate] Commission, which

represents the public interest only, for his conduct of the

affairs of the Postal Service.” H.R. Rep. No. 91-1104, 3660-61

(1970).

1 When citing electronic filings throughout this Memorandum
Opinion, the Court cites to the ECF page number, not the page
number of the filed document.
2
 The PRA defines the “postal polic[ies]” of the Postal

Service. Section 101 of the Act provides that the USPS “shall

provide prompt, reliable, and efficient services to patrons in

all areas and shall render postal services to all communities,”

and “shall provide a maximum degree of effective and regular

postal services to rural areas, communities, and small towns

where post offices are not self-sustaining.” 39 U.S.C. § 101(a)-

(b). In addition, Section 101(e) directs that, “[i]n determining

all policies for postal services, the Postal Service shall give

the highest consideration to the requirement for the most

expeditious collection, transportation, and delivery of

important letter mail.” Id. § 101(e). Section 403 further

defines USPS’s “[g]eneral duties.” Section 403 provides:

(a) The Postal Service shall plan, develop,
promote, and provide adequate and efficient
postal services at fair and reasonable rates
and fees. The Postal Service shall receive,
transmit, and deliver throughout the United
States, its territories and possessions, and,
pursuant to arrangements entered into under
sections 406 and 411 of this title, throughout
the world, written and printed matter,
parcels, and like materials and provide such
other services incidental thereto as it finds
appropriate to its functions and in the public
interest. The Postal Service shall serve as
nearly as practicable the entire population of
the United States.

(b) It shall be the responsibility of the
Postal Service—

3
 (1) to maintain an efficient system of
collection, sorting, and delivery of the
mail nationwide;

(2) to provide types of mail service to meet
the needs of different categories of mail
and mail users; and

(3) to establish and maintain postal
facilities of such character and in such
locations, that postal patrons throughout
the Nation will, consistent with reasonable
economies of postal operations, have ready
access to essential postal services.

Id. § 403(a)-(b).

In the Postal Accountability and Enhancement Act (“PAEA”),

Pub. L. No. 109-435, 120 Stat. 3198 (Dec. 20, 2006) (codified at

39 U.S.C. § 3600 et seq.), Congress replaced the Postal Rate

Commission with the Postal Regulatory Commission (“PRC” or

“Commission”) and “strengthened its role.” Carlson v. Postal

Regul. Comm’n, 938 F.3d 337, 340 (D.C. Cir. 2019).

The USPS is responsible for “develop[ing] and promot[ing]

adequate and efficient postal services.” 39 U.S.C. § 3661(a).

“When the Postal Service determines that there should be a

change in the nature of postal services [that] will generally

affect service on a nationwide or substantially nationwide

basis,” it must “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.” Id. § 3661(b). This provision was enacted in the PRA,

and the only change made in the PAEA was to replace the original
4
“Postal Rate Commission” with the “Postal Regulatory

Commission.”

Following the submission of a proposal, “[t]he Commission

shall not issue its opinion on any proposal until an opportunity

for hearing on the record under [the Administrative Procedure

Act] has been accorded the Postal Service, users of the mail,

and an officer of the Commission who shall be required to

represent the interests of the general public. The opinion shall

be in writing and shall include a certification by each

Commissioner agreeing with the opinion that in his judgment the

opinion conforms to the policies established under this title.”

39 U.S.C. § 3661(c).

B. Factual Background

1. The COVID-19 Pandemic
In response to the COVID-19 pandemic, Plaintiffs took

actions to mitigate the spread of the virus and promote social

distancing in 2020, and, as a result, increased their reliance

on the Postal Service to administer public benefits programs,

including “public assistance to low-income families, healthcare

assistance, child support enforcement, and drivers’ licenses.

See Pls.’ Mot., ECF No. 60 at 13 (citing See Adinaro Decl., ECF

No. 59-1 ¶ 12; Banks Decl., ECF No. 59-2 ¶¶ 3–5, 8, 10–12; Betts

Decl., ECF No. 59-3 ¶¶ 7–15; DiGiovanni-Abatto Decl., ECF No.

59-5 ¶¶ 3–5; Hein Decl., ECF No. 59-8 ¶¶ 2–3, 8, 13, 15; Jacobs

5
Decl., ECF No. 59-11 ¶¶ 4–10; Lau Decl., ECF No. 59-15 ¶¶ 3, 5–

9; Poole Decl., ECF No. 59-17 ¶¶ 2, 6–11; Roye Decl., ECF No.

59-18 ¶¶ 4-5, 12–13; Roye Suppl. Decl., ECF No. 59-14 ¶¶ 18–20;

Shah Decl., ECF No. 59-19 ¶¶ 3, 5–6, 10); see also N.Y. Exec.

Order No. 202.8; Hawaii Sixth Supplementary Proclamation

Relating to COVID-19; N.J. Exec. Order No. 107; San Francisco

Third Supplement to Mayoral Proclamation Declaring the Existence

of a Local Emergency dated Feb. 25, 2020; N.Y. City Emergency

Executive Order No. 100. Plaintiffs also devoted resources to

transforming their election processes to expand and encourage

absentee and mail voting. Adinaro Decl., ECF No. 59-1 ¶ 9;

Kellner Decl., ECF No. 59-13 ¶¶ 11, 16–17, 19; Ku Decl., ECF No.

59-14 ¶¶ 8–10.

2. USPS Postal Policy Changes
In June and July 2020, the Postal Service announced and

implemented several changes and strategies to how it collected,

processed, and delivered mail. At issue in this case are five

actions, which the Court refers to as the “Postal Policy

Changes.” See Pls.’ Mot., ECF No. 60 at 14.

First, on June 17, 2020, USPS announced that it would

eliminate more than 600 sorting machines in the United States

“over the next several months.” See Pls.’ Ex. 37, ECF No. 59-37.

In total, USPS reduced 711 sorting machines by mid-August 2020,

which was an approximately 14.7 percent reduction in the number

6
of machines across the country, as part of an initiative started

in 2017 to determine the optimum number of machines by running

computer models analyzing mail-flow volume. See DeChambeau

Decl., ECF No. 59-33 ¶ 15. Excluding fiscal year 2016, the total

number of letter and flat sorting machines USPS reduced exceeded

the rates of elimination in previous years. See id. ¶ 21 (3.3

percent in FY2020; 1.9 percent in FY2019; 6.5 percent in FY2018;

3.5 percent in FY2017, and 0 percent in FY2015). On August 18,

2020, USPS suspended all removals of equipment until after the

November 2020 election. Id. ¶ 22.

Second, on June 26, 2020, USPS held a teleconference with

Area Vice Presidents regarding strategies to reduce, among other

things, unearned overtime. See Pls.’ Ex. 39, ECF No. 59-39.

Unearned time is the “time that an employee takes to complete

[his or her] duties over and above the earned time.” Curtis Dep.

Tr., ECF No. 66-14 at 14. Those attending the teleconference

were asked to go “all in” on these strategies. Id.; June 26,

2020 Presentation, Pls.’ Ex. 39, ECF No. 59-39 at 7. On

September 21, 2020, USPS issued “Clarifying Operational

Instructions” stating that “[o]vertime use has not been banned,

nor have any caps been placed on overtime hours.” USPS

Clarifying Operational Instructions, Defs.’ Ex. 12, ECF No. 66-

16 at 2.

7
 Third, on July 10, 2020, USPS held a teleconference with

Area Vice Presidents during which the agency’s chief operating

officer gave a presentation regarding the elimination of late

and extra trips. 2 See Cintron Suppl. Decl., ECF No. 66-19 at 2.

The slides presented at the teleconference stated “NO EXTRA

TRANSPORTATION” and “NO LATE TRANSPORTATION,” advising that

“[e]ffective July 13 all extra trips and Postal caused late

trips are unauthorized contractual commitments.” See July 10,

2020 Presentation, Pls.’ Ex. 41, ECF No. 59-41 at 10-11. Some

USPS employees distributed instructions the same day in line

with the presentation’s directives. See Email, Pls.’ Ex. 42, ECF

No. 59-42 at 2 (“[T]here is no more waiting on mail and there is

no coming back for parcels. The excuses of why people can’t get

done with their routes is gone. We NEED to start capturing the

downtime.”). Another employee distributed a “Mandatory Stand-Up

Talk: All Employees,” 3 stating that “[r]ight now, we are at a

critical juncture in our organization and must make immediate,

lasting, and impacting changes in our operations and in our

culture.” See Pls.’ Ex. 43, ECF No. 59-43. According to the

2 Late trips are trips that depart after their scheduled
departure time, and extra trips are additional trips that were
not originally scheduled to occur. See Coradi Decl., ECF No. 59-
4 ¶¶ 13–14.
3 USPS considers a “Stand-Up Talk” as a document with talking

points that local postal managers use to relay information to
employees. See Curtis Dep. Tr., ECF No. 66-14.
8
document, such “changes” included that “[a]ll trips will depart

on time (Network, Plant and Delivery); late trips are no longer

authority or accepted” and “[e]xtra trips are no longer

authorized or accepted.” Id. The document further instructed

that the transportation changes would be “implemented

immediately (today).” Id. Following the teleconference and the

Stand-Up Talk, some employees were confused about the parameters

of the policy regarding late and extra trips. See 66-19 at 2-3

(postal workers contacting USPS officials to get clarification

on whether late and extra trips were banned). On July 14, 2020,

Robert Cintron, the USPS Vice President of Logistics,

distributed via email a document entitled “Keys to Success for

Elimination of Extras and Lates” (the “Cintron Guidelines”),

stating that the “focus is to eliminate unplanned extra

transportation, “[d]eviations to the extent possible should be

utilized to eliminate extras,” and “[t]rips must depart on

time.” See Pls.’ Ex. 45, ECF No. 59-45 at 2; Pls.’ Ex. 46, ECF

No. 59-46 at 2-3. The Cintron Guidelines included examples of

when a late or extra trip was acceptable or unacceptable. See

Pls.’ Ex. 46, ECF No. 59-46 at 2-3.

At least some USPS employees knew that the process of

eliminating late and extra trips would result in delayed mail

delivery: “One aspect of these changes that may be difficult for

employees is that—temporarily—we may see mail left behind or

9
mail on the workroom floor or docks (in P&DCs), which is not

typical.” See Pls.’ Ex. 43, ECF No. 59-43. Following the

issuance of the above documents, the number of late and extra

trips dropped significantly. Cintron Dep. Tr., ECF No. 59-28;

Grimmer Decl., ECF No. 59-7 ¶ 19; Pls.’ Ex. 32, ECF No. 59-32;

Pls.’ Ex. 33, ECF No. 59-33; Pls.’ Ex. 53, ECF No. 59-53; Pls.’

Ex. 59, ECF No. 59-59. On September 21, 2020, USPS issued

“Clarifying Operational Instructions” that stated that “late or

extra trips that are reasonably necessary to complete timely

mail delivery, is not to be unreasonably restricted or

prohibited. Managers are authorized to use their best business

judgment to meet our service commitments.” Clarifying

Operational Instructions, Defs.’ Ex. 12, ECF No. 66-16.

Fourth, in July 2020, USPS announced an initiative entitled

“Expedited to Street/Afternoon Sortation” (or “ESAS”) at 384

facilities, including facilities in Plaintiff States. See Stand-

Up Talk, Expedited to Street/Afternoon Sortation, Pls.’ Ex. 47,

ECF No. 59-47. Pursuant to the initiative, city carriers were

prohibited from spending time in the morning sorting mail so

that they could leave for the street earlier. See id. After

completing their routes, city carriers would then return to the

office and stage mail for delivery the next scheduled day. Pls.’

Ex. 47, ECF No. 59-47. In effect, this meant that carriers were

being ordered to not deliver mail that had arrived overnight,

10
but rather sort it in the afternoon for delivery the next day.

Id. The initiative is no longer in effect. See Curtis Dep. Tr.,

ECF No. 66-14 at 27.

Fifth, on or around July 30, 2020, the USPS General Counsel

informed 46 states and the District of Columbia that if the

States did not pay First Class postage on ballots sent to

voters, there would be a risk that voters would not receive

their ballots in time to return them by mail. See Second Glass

Dep. Tr., ECF No. 59-30 at 9-10; Pls.’ Ex. 49, ECF No. 59-49.

USPS officials indicated that states should mail election mail

as First Class Mail, not Marketing Mail. See Pls.’ Ex. 38, ECF

No. 59-38 at 2. On September 21, 2020, USPS issued instructions

stating that it will prioritize Election Mail that is entered as

Marketing Mail, regardless of the paid class. Clarifying

Operational Instructions, Defs.’ Ex. 12, ECF No. 66-16.

USPS did not seek an advisory opinion pursuant to Section

3661(b) from the PRC prior to taking the above actions. See

Pls.’ Ex. 58, ECF No. 59-58 at 6.

C. Procedural History
Plaintiffs filed this lawsuit on August 25, 2020. On

September 2, 2020, they filed a motion for a preliminary

injunction, which requests that the Court enjoin the defendants

from enforcing the Postal Policy Changes. See Mot., ECF No. 12-

1. On September 27, 2020, the Court granted Plaintiffs’ motion

11
for a preliminary injunction. See New York v. Trump, 490 F.

Supp. 3d 225, 231 (D.D.C. 2020) (EGS). The Court held that

Plaintiffs were likely to succeed on the merits of their 29

U.S.C. § 3661(b) claim because (1) they had established a

likelihood of standing; (2) the Court likely had subject-matter

jurisdiction over the Section 3661(b) claim; (3) the claim was

likely reviewable pursuant to the ultra vires doctrine; and (4)

USPS decision to implement the Postal Policy Changes without

receiving a prior opinion from the PRC likely violated Section

3661(b). See id. at 236-43. The Court also held that Plaintiffs

faced irreparable harm in the absence of a preliminary

injunction and that the balance of equities and public interest

favored a preliminary injunction. See id. at 243-45.

Accordingly, the Court preliminarily enjoined the Postal Policy

Changes. See Order, ECF No. 51. The Court clarified its Order on

August 23, 2021 to reflect that the preliminary injunction did

not prohibit the Postal Service from declining approval for

extra network trips pursuant to the following principles: (1)

where an extra trip would not be service responsive, and (2)

where not using an extra trip would delay a volume of mail that

is no greater than 15% of the truck’s total capacity. See Mem.

Op. & Order, ECF No. 98 at 16.

Plaintiffs filed their motion for summary judgment on

October 19, 2020, see Pls.’ Mot., ECF No. 58, and Defendants

12
filed a cross-motion for summary judgment on October 26, 2020,

see Pls.’ Mot., ECF No. 66. The motions are ripe for

adjudication.

II. Legal Standard
A. Summary Judgment
Pursuant to Federal Rule of Civil Procedure 56, summary

judgment should be granted if the moving party has shown that

there are no genuine issues of material fact and that the moving

party is entitled to judgment as a matter of law. Fed. R. Civ.

P. 56(a); Celotex Corp v. Catrett, 477 U.S. 317, 325 (1986). In

determining whether a genuine issue of material fact exists, a

court must view all facts in the light most favorable to the

non-moving party. See Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986). In ruling on cross-motions

for summary judgment, a court shall grant summary judgment only

if one of the moving parties is entitled to judgment as a matter

of law upon material facts that are not genuinely disputed.

Shays v. FEC, 424 F. Supp. 2d 100, 109 (D.D.C. 2006); Winston &

Strawn LLP v. F.D.I.C., No. 06-1120 (EGS), 2007 WL 2059769, at

*3 (D.D.C. July 13, 2007).

B. Availability of Judicial Review
The Postal Service is “exempt from review under the

Administrative Procedure Act.” N. Air Cargo v. USPS, 674 F.3d

852, 858 (D.C. Cir. 2012); see also 39 U.S.C § 410(a). “However,

13
the case law in this circuit is clear that judicial review is

available when an agency acts ultra vires, or outside of the

authority Congress granted.” Nat’l Ass’n of Postal Supervisors

v. USPS, 26 F.4th 960, 970 (D.C. Cir. 2022) (quotation marks

omitted) (citation omitted). Ultra vires is available where “(i)

there is no express statutory preclusion of all judicial review;

(ii) there is no alternative procedure for review of the

statutory claim; and (iii) the agency plainly acts in excess of

its delegated powers and contrary to a specific prohibition in

the statute that is clear and mandatory.” Fed. Express Corp. v.

U.S. Dep’t of Commerce, 39 F.4th 756, 763 (D.C. Cir. 2022)

(cleaned up) (quoting Nyunt v. Broad. Bd. of Governors, 589 F.3d

445, 449 (D.C. Cir. 2009)).

Such claims are “confined to ‘extreme’ agency error where

the agency has ‘stepped so plainly beyond the bounds of [its

statutory authority], or acted so clearly in defiance of it, as

to warrant the immediate intervention of an equity court.’” Id.

at 764 (quoting Griffith v. Fed. Labor Relations Auth., 842 F.2d

487, 493 (D.C. Cir. 1988)). Only error that is “patently a

misconstruction of the Act,” that “disregard[s] a specific and

unambiguous statutory directive,” or that “violate[s] some

specific command of a statute” will support relief. Id. “[T]he

Supreme Court and [District of Columbia Circuit (“D.C.

Circuit”)] have long required in ultra vires cases that the

14
agency action go beyond mere legal or factual error and amount

to a clear departure by the agency from its statutory mandate or

be blatantly lawless agency action.” Id. (cleaned up) (citation

omitted).

III. Analysis
A. Plaintiffs Have Standing
To establish standing, “a plaintiff must show (1) an

‘injury in fact,’ (2) a sufficient ‘causal connection between

the injury and the conduct complained of,’ and (3) a

‘likel[ihood]’ that the injury ‘will be redressed by a favorable

decision.’” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 134

(2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,

560-61 (1992)). “The party invoking federal jurisdiction bears

the burden of establishing these elements.” Lujan, 504 U.S. at

561 (citations omitted). “Since they are not mere pleading

requirements but rather an indispensable part of the plaintiff’s

case, each element must be supported in the same way as any

other matter on which the plaintiff bears the burden of proof,

i.e., with the manner and degree of evidence required at the

successive stages of the litigation.” Id. “Now, on summary

judgment, the plaintiffs must prove injury in fact with

‘specific facts’ in the record.” Humane Soc’y of the U.S. v.

Perdue, 935 F.3d 598, 602 (D.C. Cir. 2019) (quoting Lujan, 504

U.S. at 561).

15
 Defendants contend that Plaintiffs lack standing for three

reasons. First, Defendants argue that “Plaintiffs cannot

establish that the alleged USPS policy changes at issue have

caused any material mail delays.” Defs.’ Reply, ECF No. 74 at

10. They contend that “the lack of a causal relationship is

shown by the numerous injunctions that have been issued against

the Postal Service in this and related cases.” Defs.’ Mot., ECF

No. 66-1 at 23. Further, Defendants argue that any mail delays

could have been caused by several unrelated issues, such as the

COVID-19 pandemic, wildfires, and inclement weather. Id. at 25.

Plaintiffs, however, have provided evidence establishing

that the implementation of the Postal Policy Changes, and

specifically the changes to and impacts on the USPS

transportation schedule, in the summer of 2020 were a de facto

cause of the decline in on-time delivery rates. See Dep’t of

Commerce v. New York, 139 S. Ct. 2551, 2566 (2019) (“Article III

‘requires no more than de facto causality . . . .” (quoting

Block v. Meese, 793 F.2d 1303, 1309 (D.C. Cir. 1986)); see also

USPS Office of Inspector General, Operational Changes to Mail

Delivery (October 19, 2020), ECF No. 63-1 at 5 (“The Postal

Service’s mail service performance significantly dropped

beginning in July 2020, directly corresponding to implementation

of the operational changes and initiatives.”). Defendants

themselves have stated that the initial drop in service scores

16
in late July 2020 was connected to USPS’s efforts to mitigate

late and extra trips nationwide. See, e.g., Pls.’ Ex. 43, July

10, 2020 Mandatory Stand-up Talk, ECF No. 59-43 at 2 (stating

that because “late trips are no longer authorized or accepted”

and “[e]xtra trips are no longer authorized or accepted,” there

would be “mail left behind or mail on the workroom floor or

docks (in P&DCs), which is not typical”); Pls.’ Ex. 52, Aug. 13,

2020 Message from the Postmaster General, ECF No. 59-52 at 2-3

(noting that USPS had “reduced extra trips by 71 percent” and

that “this transformative initiative has had unintended

consequences that impacted our overall service levels”); Defs.’

Ex. 13, Transcript of Senate Homeland Security and Governmental

Affairs Committee Hearing (Aug. 21, 2020), ECF No. 66-17

(explaining that delays in mail delivery were due to the

mitigation of extra trips, the COVID-19 pandemic, and employee

availability, and that USPS “all feel . . . bad about what the .

. . dip in our service level has been”). Indeed, after the

changes were implemented, the record shows that service scores

precipitously declined in late July and had not fully rebounded

by October 2020. See, e.g., Grimmer Suppl. Decl., ECF No. 59-23.

And though Defendants argue that “the historical evidence

demonstrates that these USPS policy changes cannot be causing

the mail delays,” Defs.’ Reply, ECF No. 74 at 10, the Court

disagrees. Though mail delays continued after multiple courts,

17
including this Court, enjoined the alleged policy changes, as

Plaintiffs point out, the record also demonstrates confusion

following USPS’s conflicting messaging regarding whether late

and extra trips were authorized. See USPS Office of Inspector

General, Operational Changes to Mail Delivery (October 19,

2020), ECF No. 63-1 at 4 (concluding that the USPS initiative to

“[e]liminat[e] . . . late and extra trips to transport mail,”

among other initiatives, was “implemented quickly and [was]

communicated primarily orally, which resulted in confusion and

inconsistent application across the country”); see also Jones,

488 F. Supp. 3d at 122 (noting, in granting plaintiffs’

preliminary injunction, that “there is sufficient evidence

suggesting that . . . the rollback of policies has not been

fully implemented or adequately communicated throughout the

entire Postal Service organization, which is tiered in multiple

national, regional, and local levels”). For example, though

Defendants claim that “USPS never prohibited or set a firm limit

on late and extra trips” at the July 10, 2020 teleconference

with USPS Area Vice Presidents, Defs.’ Mot., ECF No. 66-1 at 17,

the message that trickled down to several Postal Service

employees in the aftermath of that presentation was that all

late and extra trips were unauthorized. Among other things, at

least one Area Vice President distributed a “Mandatory Stand-Up

Talk” directing that late trips and extra trips “are no longer

18
authorized and accepted,” Pls.’ Ex. 41, ECF No. 59-41, and

others contacted USPS officials to get clarification on whether

late and extra trips were banned, see Cintron Suppl. Decl., ECF

No. 39-1. Likewise, though Defendants describe the Cintron

Guidelines as “simply identify[ing] when late and extra trips

may improve overall efficiency,” Defs.’ Mot., ECF No. 66-1 at

24, at the same time, Mr. Cintron also stated that the “focus is

to eliminate unplanned extra transportation,” “[d]eviations to

the extent possible should be utilized to eliminate extras,” and

“[t]rips must depart on time,” Email Re: Cintron Guidelines, Ex.

45, ECF No. 59-45 at 2. The Cintron Guidelines were not

explicitly rescinded until October 27, 2020. See Min. Order

(Oct. 27, 2020), NAACP v. USPS, No. 20-cv-2295 (D.D.C. 2020)

(EGS). Furthermore, the Court does not disagree with Defendants

that USPS service scores could have been negatively impacted by

multiple sources. However, the possibility that other events may

have also contributed to any delays in mail delivery does not

suggest that the Postal Policy Changes had no impact.

Traceability “does not require that the [challenged action] be

the most immediate cause, or even a proximate cause, of the

plaintiffs’ injuries.” Attias v. Carefirst, Inc., 865 F.3d 620,

629 (D.C. Cir. 2017); see also Massachusetts v. EPA, 549 U.S.

497, 523 (2007) (finding plaintiff had standing where EPA’s

refusal to regulate manmade greenhouse gas emissions

19
“contribute[d]” to injuries). The Court therefore concludes that

Plaintiffs’ injuries are fairly traceable to the Postal Policy

Changes.

Second, Defendants argue that, “because Plaintiffs cannot

show that these policy changes are causing the current delays,

they also cannot show that an injunction against these policy

changes will redress the delays.” Defs.’ Reply, ECF No. 74 at

10. However, as described above, the Plaintiffs have established

that the Postal Policy Changes are fairly traceable to the

delays in mail delivery. Therefore, a decision in favor of

Plaintiffs would redress their alleged injuries.

Third, Defendants argue that, “even if Plaintiffs could

establish causation or redressability, they cannot establish

that the alleged USPS policy changes will cause material mail

delays that will inflict any injury upon Plaintiffs in

particular.” Defs.’ Reply, ECF No. 74 at 11. Though Defendants

do not provide any clarification on what would constitute a

“material” mail delay or offer any case law supporting their

contention, the Court concludes that the record evidence

demonstrating a significant decline in service scores in

Plaintiffs’ jurisdictions beginning in July 2020, as well as

testimony that mail delays were indeed causing issues with

voting procedures in the relevant jurisdictions, suffice. See

Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2565 (2019)

20
(“Several state respondents here have shown that if noncitizen

households are undercounted by as little as 2% . . . they will

lose out on federal funds that are distributed on the basis of

state population. That is a sufficiently concrete and imminent

injury to satisfy Article III, and there is no dispute that a

ruling in favor of respondents would redress that harm.”).

Moreover, Plaintiffs have provided evidence that mail delays

impeded their ability to combat the spread COVID-19, impeded

their ability to provide safe alternatives to in-person voting,

imposed “direct financial costs to state and local agencies,”

and imposed “administrative burdens . . . on state and local

agencies.” See Adinaro Decl., ECF No. 59-1 ¶ 9; Banks Decl., ECF

No. 59-2 ¶¶ 7–9; Kellner Decl., ECF No. 59-13 ¶¶ 11, 16–17, 19;

Ku Decl., ECF No. 59-14 ¶¶ 8-10, 13; Newton Decl., ECF No. ECF

No. 59-16 ¶¶ 13–16; Roye Decl., ECF No. 59-18 ¶¶ 5, 11–13; Shah

Decl., ECF No. 59-19 ¶¶ 3, 5-6, 10; Roye Suppl. Decl., ECF No.

59-24 ¶¶ 13, 18-20. And though Defendants claim that these

injuries were “self-inflicted” and therefore “insufficient to

confer standing,” Defs.’ Mot., ECF No. 66-1 at 26, Plaintiffs

here are not attempting to “manufacture standing merely by

inflicting harm on themselves,” Clapper v. Amnesty Int’l USA,

568 U.S. 398, 416 (2013); see also District of Columbia v. U.S.

Dep’t of Agric., 444 F. Supp. 3d 1, 35 (D.D.C. 2020) (“[S]elf-

inflicted generally means curable by the moving party without an

21
injunction.”). Rather, Plaintiffs suffered injuries in response

to the effects of the significant USPS changes; in other words,

“Plaintiffs could not otherwise avoid these injuries absent the

relief sought through this litigation,” Pls.’ Opp’n, ECF No. 71

at 17.

Finally, this Court has also already rejected Defendants’

argument that States cannot bring parens patriae claims against

the federal government. See New York, 490 F. Supp. 3d at 244.

The evidence before the Court demonstrates that Plaintiffs’

efforts to mitigate the spread of COVID-19 are aimed at

protecting the public health of their respective jurisdictions

as a whole. See Banks Decl., ECF No. 59-2 ¶¶ 7–9; Newton Decl.,

ECF No. ECF No. 59-16 ¶¶ 13–16; Roye Decl., ECF No. 59-18 ¶¶ 5,

11–13; Roye Suppl. Decl., ECF No. 59-24 ¶¶ 13, 18-20; Ku Decl.,

ECF No. 59-14 ¶¶ 8-10, 13; Shah Decl., ECF No. 59-19 ¶¶ 3, 5-6,

10; Adinaro Decl., ECF No. 59-1 ¶ 9; Kellner Decl., ECF No. 59-

13 ¶¶ 11, 16–17, 19. Impeding these mitigation efforts results

in harm to Plaintiffs as well as the residents of the states.

See Air All. Houston v. EPA, 906 F.3d 1049, 1059-60 (D.C. Cir.

2018) (holding that State petitioners had “demonstrated their

independent proprietary interests in avoiding chemical releases

in their territory sufficient to support standing”); cf. New

York v. U.S. Dep’t of Homeland Sec., 475 F. Supp. 3d 208, 226–27

(S.D.N.Y. 2020) (finding that the State plaintiffs adequately

22
demonstrated irreparable harm where the governmental “Plaintiffs

provide[d] ample evidence that the [challenged conduct] deters

immigrants from seeking testing and treatment for COVID-19,

which in turn impedes public efforts in the Governmental

Plaintiffs jurisdictions to stem the spread of the disease”),

stayed on other grounds, No. 20-2537, 974 F.3d 210, (2d Cir.

Sept. 11, 2020).

In view of the above, the Court concludes that Plaintiffs

have standing.

B. 39 U.S.C. § 3661(b)
Plaintiffs first argue that the Court should grant them

summary judgment on their claim that Defendants violated 39

U.S.C. § 3661(b) by failing to ask the PRC for an advisory

opinion prior to implementing the Postal Policy Changes. See

Pls.’ Mot., ECF No. 60 at 27. Section 3661(b) provides 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 PRC

“requesting an advisory opinion on the change.”

For the reasons discussed below, the Court grants

Plaintiffs’ motion for summary judgment on this claim.

23
 1. The Court Has Subject-Matter Jurisdiction Over
Plaintiffs’ Section 3661 Claim
Defendants argue that this Court lacks subject-matter

jurisdiction over Plaintiffs’ Section 3661 claim because

complaints regarding Section 3661 must first be lodged with the

PRC, with any appeals directed to the United States Court of

Appeals for the D.C. Circuit. See Defs.’ Mot., ECF No. 66-1 at

27. The Court disagrees.

Pursuant to 39 U.S.C. § 409(a), “[e]xcept as otherwise

provided in this title, the United States district courts shall

have original but not exclusive jurisdiction over all actions

brought by or against the Postal Service.” 39 U.S.C. § 409(a);

see also 28 U.S.C. § 1339 (“The district courts shall have

original jurisdiction of any civil action arising under any Act

of Congress relating to the postal service.”). As is relevant

here, Section 3661, entitled “Postal services,” provides:

(a) The Postal Service shall develop and
promote adequate and efficient postal
services.

(b) When 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.

(c) The Commission shall not issue its
opinion on any proposal until an opportunity

24
 for hearing on the record under sections 556
and 557 of title 5 has been accorded to the
Postal Service, users of the mail, and an
officer of the Commission who shall be
required to represent the interests of the
general public. The opinion shall be in
writing and shall include a certification by
each Commissioner agreeing with the opinion
that in his judgment the opinion conforms to
the policies established under this title.

Next, Section 3662, entitled “Rate and service complaints,”

provides that “[a]ny interested person . . . who believe[s] the

Postal Service is not operating in conformance with the

requirements of a provision of . . . this chapter (or

regulations promulgated under any of these provisions) may lodge

a complaint with the Postal Regulatory Commission.” If such a

complaint is lodged with the PRC, Section 3662(b) requires that

the PRC respond within 90 days by either “begin[ning]

proceedings” or “issu[ing] an order dismissing the complaint.”

39 U.S.C. § 3662(b). Section 3663 provides that a petition for

review may be filed with the D.C. Circuit by any “adversely

affected or aggrieved by a final order or decision” of the PRC.

39 U.S.C. § 3663.

“Whether a statute is intended to preclude initial judicial

review is determined by the statute’s language, structure, and

purpose, its legislative history, and whether the claims can be

afforded meaningful review.” Thunder Basin Coal Co. v. Reich,

510 U.S. 200, 207 (1994) (internal citation omitted). Here,

25
Section 3662’s use of the word “may” in describing the right to

file a complaint with the PRC suggests that the avenue for PRC

review of certain claims is permissive. See Bennett v. Panama

Canal Co., 475 F.2d 1280, 1282 (D.C. Cir. 1973) (“Ordinarily

‘may’ is a permissive not a mandatory term.”). Indeed, the

statute consistently uses the word “may” when setting forth the

procedure for filing complaints and for seeking appellate review

of the PRC’s determination (or failure to make a determination):

any interested person “may” lodge a complaint with the PRC, and

if the interested person is unsatisfied with the response or

does not receive a timely response, they “may” file a petition

with the D.C. Circuit. 39 U.S.C. §§ 3662(a), 3663; see also id.

§ 3662(a) (stating the PRC “may” prescribe the “form and manner”

of complaints); id. § 3662(d) (“[T]he Postal Regulatory

Commission may order, based on the nature, circumstances,

extent, and seriousness of the noncompliance, a fine (in the

amount specified by the Commission in its order) for each

incidence of noncompliance.” (emphasis added)). Moreover, the

use of the permissive “may” coupled with the use of the

mandatory “shall” elsewhere in the statute further suggests that

Sections 3662(a) and 3663 were not intended to be the exclusive

avenue for bringing a procedural challenge to the USPS’s failure

to comply with Section 3661. See Bennett, 475 F.2d at 1282

(“[T]he permissive interpretation is conclusively proven to be

26
correct [together with the particular legislative history] by

the fact that when in the same statute Congress intended a

mandatory direction it used the auxiliary ‘shall’ not ‘may’-a

contrast which is generally significant . . . .”); see, e.g., 39

U.S.C. § 3662(b) (stating that the PRC “shall” respond to

complaints within 90 days). This interpretation is strengthened

because the statute also expressly provides that this Court has

original jurisdiction “over all actions brought by or against

the Postal Service” unless “otherwise provided in [title 39].”

39 U.S.C. § 409(a).

Defendants argue, however, that “[g]enerally, when Congress

creates procedures designed to permit agency expertise to be

brought to bear on particular problems, those procedures are to

be exclusive.” Defs.’ Mot., ECF No. 66-1 at 28 (quoting Free

Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477,

589 (2010)). According to Defendants, “numerous courts of

appeals have held that 39 U.S.C. §§ 3662 through 3664 constitute

the exclusive jurisdictional remedy for complaints about postal

services that fall within the statutory provisions identified in

[S]ection 3662, which includes a claim that the Postal Service

is not complying with [S]ection 3661.” Defs.’ Mot., ECF No. 66-1

at 27.

But, as stated above, the text of the statute itself does

not indicate that Congress intended the PRA to be the exclusive

27
avenue for bringing complaints of alleged ultra vires action.

See Kaufman v. Nielsen, 896 F.3d 475, 485 (D.C. Cir. 2018)

(presuming an undefined term “carries its ordinary meaning at

the time the provision was enacted”); cf. Am. Postal Workers

Union, AFL-CIO v. USPS, No. 06-cv-726 (CKK), 2007 WL 2007578, at

*7 (D.D.C. July 6, 2007) (noting that plaintiff’s Section

3661(b) claim that USPS failed to ask for an advisory opinion

from the PRC “appears to be properly brought before this Court

pursuant to 39 U.S.C. § 409”). The statute’s legislative history

also does not suggest such a reading. Rather, 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. The Committee Report describes provisions in the Act

that “contain[] specific provisions requiring justification and

review of changes in service.” Id.; see also Buchanan v. U.S.

Postal Serv., 508 F.2d 259, 263 n.6 (5th Cir. 1975) (“[T]he

procedures mandated by [Section] 3661 are sufficiently elaborate

to amount to a significant impediment in the path of the

decision-making process of the Postal Service.”).

28
 Moreover, as this Court previously explained in its

September 27, 2020 Memorandum Opinion, none of the case law

Defendants cite as support for their arguments are binding on

this Court. Neither did any of the cases “involve[] a claim that

the USPS circumvented the process required when making a ‘change

in the nature of postal services which will generally affect

service on a nationwide or substantially nationwide basis.’”

Pennsylvania v. DeJoy, 490 F. Supp. 3d 833, 861 (E.D. Penn.

2020) (analyzing similar case law and finding that “[a]lthough

these lawsuits were largely filed by pro se plaintiffs who were

likely without the legal background to ground their claims in a

specific statutory provision, the overwhelming majority of the

claims at issue are precisely captured by section 3661(a), which

requires the Postal Service to provide adequate and efficient

service to the public.”). The Court finds this distinction to be

significant, given that the “claims in the cases cited by

Defendants” largely deal with “the adequacy and efficiency of

service under [S]ection 3661(a),” which “can most properly be

characterized as localized service-related disputes,” 4 while

4 See Foster v. Pitney Bowes Corp., 549 F. App’x 982, 986 (Fed.
Cir. 2013) (alleged “fraud, conversion, unjust enrichment, and
misappropriation of trade secrets”); LeMay v. U.S. Postal Serv.,
450 F.3d 797, 799-800 (8th Cir. 2006) (alleged breach of
contract); Bovard v. U.S. Post Office, 47 F.3d 1178 (10th Cir.
1995) (alleged discrimination, libel, and slander); Pep-Wku, LLC
v. USPS, No. 20-cv-0009-GNS, 2020 WL 2090514, at *3 (W.D. Ky.
Apr. 30, 2020) (alleged refusal to properly deliver mail);
29
“Plaintiffs’ core challenge is that the Postal Service acted

outside of its authority in making changes without consulting

first with the Commission in violation of section 3661(b),”

which is “a wholly separate provision” that “focuses on the

process to which the Postal Service must adhere.” Id. at 861-62.

Defendants argue, however, that despite the above, “[a]

number of considerations militate against allowing courts to

short-circuit an established administrative review process,

including respect for Congress’s conferral of administrative

autonomy; administrative expertise and discretion as to

specialized, complex problems; development of an initial factual

record; conservation of judicial resources; and avoidance of

McClintock v. United States, No. 3:18-CV-01937-SB, 2020 WL
1868264, at *2 (D. Or. Mar. 18, 2020) (alleged improper mail
delivery); McDermott v. Potter, No. C09-0776RSL, 2009 WL
2971585, at *3 (W.D. Wash. Sept. 11, 2009) (Freedom of
Information Act, the Employee Retirement Income Security Act of
1974, and the Postal Accountability and Enforcement Act of 2006
claims relating to closure of mail center and alleged job
outsourcing); Rodriguez v. Hemit, No. C16-778 RAJ, 2018 WL
3618260, at *2 (W.D. Wash. July 30, 2018) (alleged harassment);
Striley v. U. S. Postal Serv., No. 16-CV-07233-HRL, 2017 WL
513166, at *3 (N.D. Cal. Feb. 8, 2017) (alleged unlawful
increase of the rates for post office box, crammed box full of
advertising materials, and failed to deliver an article of
mail); Murphy v. U.S. Postal Serv., No. C 14-02156 SI, 2014 WL
4437731, at *3 (N.D. Cal. Sept. 9, 2014) (alleged improper
denial of services; Powell v. U.S. Postal Serv., No. CV 15-
12913-FDS, 2016 WL 409672, at *1–2 (D. Mass. Feb. 2, 2016)
(alleged refusal to deliver mail); see also Sears, Roebuck & Co.
v. U.S. Postal Serv., 134 F. Supp. 3d 365, 382 (D.D.C. 2015)
(alleged unreasonable interpretation of the Domestic Mail
Manual).
30
conflicting litigation.” Defs.’ Mot., ECF No. 66-1 at 28-29

(citing Nader v. Volpe, 466 F.2d 261, 265-68 (D.C. Cir. 1972)).

But while the concerns listed in Nader may generally apply in

such situations, the D.C. Circuit in Nader also explained that

“when Congress has specified a procedure for judicial review of

administrative action, courts will not make nonstatutory

remedies available without a showing of patent violation of

agency authority or manifest infringement of substantial rights

irremediable by the statutorily-prescribed method of review.”

466 F.2d at 266. As Plaintiffs point out, their “ultra vires

claim involves the very type of ‘violation of agency authority’

contemplated by the court in Nader.” Pls.’ Reply, ECF No. 71 at

22.

Finally, the Court considers whether the claim may be

reviewed because there is no other meaningful or adequate avenue

for judicial review. See Thunder Basin Coal Co., 510 U.S. at

307. District court jurisdiction may not be implicitly precluded

based on consideration of the following factors: (1) if “a

finding of preclusion could foreclose all meaningful judicial

review”; (2) if the claim is “wholly collateral to a statute’s

review provisions”; and (3) if the claims are “outside the

agency’s expertise” to discern “whether the particular claims at

issue fall outside an overarching congressional design.” Jarkesy

31
v. SEC, 803 F.3d 9, 17 (D.D.C. 2015) (quoting Free Enter. Fund,

561 U.S. at 489-90).

The Court previously held in its September 27, 2020

Memorandum Opinion that precluding district court jurisdiction

here would deny Plaintiffs meaningful review because: (1)

“Plaintiffs have shown that the USPS implemented dramatic

operational changes that have resulted in delayed mail that

‘have negatively affected and will continue to negatively affect

Plaintiffs’ ability not only to provide necessary services to

residents in need and administer their own laws and regulations,

but also to protect public health by providing safe and

effective means to vote by mail in the upcoming general

election,’” 490 F. Supp. 3d at 239-40 (citing Berkley v.

Mountain Valley Pipeline, LLC, 896 F.3d 624, 631 (4th Cir.

2018); Kreschollek v. S. Stevedoring Co., 78 F.3d 868, 875 (3d

Cir. 1996)); (2) “the relief Plaintiffs seek cannot be

meaningfully redressed through filing a Section 3662 complaint,”

id. at 240; and (3) “Plaintiffs’ procedural claim does not

require the “agency expertise” the statutory procedures

contemplate,” id.

Defendants now contend that “even if Plaintiffs could have

established these elements when they moved for a preliminary

injunction, they certainly cannot do so now” because “any

alleged election-related injuries will be moot at or immediately

32
after the time the Court issues a decision,” and “Plaintiffs

identify no reason why the PRC could not provide meaningful

relief as to any non-election injuries that Plaintiffs allege

are ongoing.” Defs.’ Mot., ECF No. 66-1 at 32. However, the

Court’s conclusion in its September 27, 2020 Memorandum Opinion

was not limited to election-related injuries—the Court also

noted that the Postal Policy Changes negatively affected and

would continue to be negatively affect Plaintiffs’ ability to

provide necessary services to residents in need and administer

their own laws and regulations. 490 F. Supp. 3d at 239-40. Thus,

the Court disagrees that Plaintiffs’ injuries are moot.

In view of the above, the Court concludes it has subject-

matter jurisdiction over Plaintiffs’ claim. See Buchanan v.

USPS, 375 F. Supp. 1014, 1017 (N.D. Ala. 1974), aff’d in part,

vacated in part, 508 F.2d 259 (5th Cir. 1975); Washington v.

Trump, 487 F. Supp. 3d 976, 981 n.1 (E.D. Wash. 2020) (finding

it likely that “39 U.S.C. § 3662 does not limit this Court’s

jurisdiction” because (1) “[b]y its terms, § 3662 is

discretionary, not mandatory”; (2) “Section 3662 does not divest

district courts of the broad jurisdiction granted to them under

28 U.S.C. § 1339 over ‘any civil action arising under any Act of

Congress relating to the postal service,’ nor the grant of

‘jurisdiction over all actions brought by or against the Postal

Service’ in 39 U.S.C. § 409(a)”; and (3) “[Section] 3662

33
encompasses claims that the Postal Service has failed to adhere

to its rate and service standards or that those standards are

inadequate,” which “is not the case here”).

2. Plaintiffs’ Section 3661 Claim Is Reviewable Pursuant
to the Ultra Vires Doctrine
Defendants also argue that Plaintiffs’ Section 3661 claim

is not subject to judicial review. Defs.’ Mot., ECF No. 66-1 at

32. Defendants argue that (1) Section 3661 expressly precludes

judicial review, and (2) Plaintiffs have not demonstrated that

USPS is acting “in excess of its delegated powers and contrary

to a specific prohibition.” Id. (quoting DCH Reg’l Med. Ctr. v.

Azar, 925 F.3d 503, 509 (D.C. Cir. 2019)).

“Even where Congress is understood generally to have

precluded review, the Supreme Court has found an implicit but

narrow exception, closely paralleling the historic origins of

judicial review for agency actions in excess of jurisdiction,”

Griffith v. FLRA, 842 F.2d 487, 492 (D.C. Cir. 1988), and, as

the Court explained above, the right to file a complaint with

the PRC is not exclusive. Moreover, Section 3661 is a “clear and

specific statutory mandate” involving “positive statutory

commands.” Nat’l Air Traffic Controllers Ass’n AFL-CIO v. Fed.

Serv. Impasses Panel, 437 F.3d 1256, 1263 (D.C. Cir. 2006).

Because the statutory provision “plainly delineates the outer

limits of agency authority,” the claim is subject to review for

34
ultra vires acts. Nat’l Ass’n of Postal Supervisors v. USPS, 26

F.4th 960, 972 (D.C. Cir. 2022).

3. USPS Failed to Comply with Section 3661(b)
The scope of non-APA review includes, among other things,

“a straightforward question of statutory interpretation.” Nat’l

Ass’n, 602 F.2d at 432. In conducting this review, “[t]he

judicial role is to determine the extent of the agency’s

delegated authority and then determine whether the agency has

acted within that authority. In this as in other settings,

courts owe a measure of deference to the agency’s own

construction of its organic statute, but the ultimate

responsibility for determining the bounds of administrative

discretion is judicial.” Id. at 432-33 (internal citations

omitted).

Section 3661(b) provides 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.” There is no dispute that the

USPS did not submit a proposal to the PRC prior to implementing

the Postal Policy Changes at issue in this case.

35
 Persuasive authority has construed Section 3661(b) as

follows:

The language of the statute . . . indicates
that three factors must coexist before 3661
applies. First, there must be a ‘change.’ This
implies that a quantitative determination is
necessary. There must be some meaningful
impact on service. Minor alterations which
have a minimal effect on the general class of
postal users do not fall within 3661. Second,
the change must be ‘in the nature of postal
services.’ This involves a qualitative
examination of the manner in which postal
services available to the user will be
altered. Third, the change must affect service
‘on a nationwide or substantially nationwide
basis.’ A broad geographical area must be
involved. These three factors combine to
demonstrate that Congress intended the
safeguards of 3661 to apply only when changes
of significance were contemplated.

Buchanan, 508 F.2d at 263.

The Court concludes that Defendants violated Section

3661(b) by failing to submit a proposal to the PRC prior to

implementing its changes.

First, the record demonstrates that there was a “change”

that had a “meaningful impact on service.” Buchanan, 508 F.2d at

263. As the Court explained in Section III.A, there was a

meaningful drop in service performance immediately following the

implementation of the Postal Policy Changes. In particular, the

changes to and impacts on the USPS transportation schedule

contributed to the decline in on-time delivery rates in July

36
2020. See Grimmer Suppl. Decl., ECF No. 59-23; Pls.’ Ex. 52,

Aug. 13, 2020 Message from the Postmaster General, ECF No. 59-52

at 2-3 (noting that USPS had “reduced extra trips by 71 percent”

and that “this transformative initiative . . . impacted our

overall service levels”); Defs.’ Ex. 13, Transcript of Senate

Homeland Security and Governmental Affairs Committee Hearing

(Aug. 21, 2020), ECF No. 66-17 (explaining that the “dip in our

service level” was due to the mitigation of extra trips, the

COVID-19 pandemic, and employee availability); USPS Office of

Inspector General, Operational Changes to Mail Delivery (October

19, 2020), ECF No. 63-1 at 5 (“The Postal Service’s mail service

performance significantly dropped beginning in July 2020,

directly corresponding to implementation of the operational

changes and initiatives.”). For example, Defendants concede that

“[t]he drop in on-time delivery during the week of August 8,

2020 meant that approximately 85 million more deliveries were

late that week than they would have been prior to the challenged

changes.” Defs.’ Counter-Statement of Disputed Facts, ECF No.

67-1 at 33. USPS has also acknowledged the connection between

the decrease in service performance and its efforts to mitigate

late and extra trips nationwide, and further data demonstrates

that service scores had not fully rebounded by October 2020.

See, e.g., Grimmer Suppl. Decl., ECF No. 59-23; Pls.’ Ex. 43,

July 10, 2020 Mandatory Stand-up Talk, ECF No. 59-43 at 2

37
(stating that because “late trips are no longer authorized or

accepted” and “[e]xtra trips are no longer authorized or

accepted,” there would be “mail left behind or mail on the

workroom floor or docks (in P&DCs), which is not typical”). In

addition, the pace of the removal of high-speed sorting machines

was accelerated in 2020. In fiscal year 2020, USPS reduced 711

high-speed sorting machines—600 of which were announced on June

17, 2020—representing an approximately 14.7 percent reduction in

the number of machines nationwide. See DeChambeau Decl., ECF No.

30-2 ¶ 21; Pls.’ Ex. 37, ECF No. 59-37.

Defendants, however, argue that because it “never

prohibited extra or late trips” and only developed “written

guidance clarifying the circumstances under which late and extra

trips were acceptable,” USPS did not initiate a “change” within

the meaning of Section 3661. Defs.’ Mot., ECF No. 66-1. However,

the evidence on this point is conflicting. Compare Pls.’ Ex. 41,

ECF No. 59-41 (Area Vice President distributed a “Mandatory

Stand-Up Talk” directing that late trips and extra trips “are no

longer authorized and accepted”), and Cintron Suppl. Decl., ECF

No. 39-1 (postal workers contacting USPS officials to get

clarification on whether late and extra trips were banned), and

Email Re: Cintron Guidelines, Ex. 45, ECF No. 59-45 at 2 (“focus

is to eliminate unplanned extra transportation,” “[d]eviations

to the extent possible should be utilized to eliminate extras,”

38
and “[t]rips must depart on time”), with Defs.’ Mot., ECF No.

66-1 at 24 (describing the Cintron Guidelines as “simply

identify[ing] when late and extra trips may improve overall

efficiency”). And even if the official policy was never to “ban”

such trips, the “focus” was to eliminate them. See Pls.’ Ex. 45,

ECF No. 59-45 (stating that the “focus is to eliminate unplanned

extra transportation,” “[d]eviations to the extent possible

should be utilized to eliminate extras,” and “[t]rips must

depart on time”). In addition, though Defendants now take the

position that their actions in June and July 2020 did not

constitute “changes,” their position is not supported based on

USPS’s own statements. See Email from Mr. DeJoy to All

Employees, August 13, 2020, ECF No. 12-22 at 2 (“In order to

transform . . . we must make a significant number of changes

that will not be easy . . . .”); id. (“Unfortunately, this

transformative initiative has had unintended consequences that

impacted our overall service levels. However, recent changes are

not the only contributing factors.”); id. at 3 (“I ask that you

bear with me while we work through these changes to transform

for the better . . . .”).

The Court is also unpersuaded by Defendants’ argument that

a “change” only encompasses “new” policies, and as such the

agency’s removal of sorting machines is not a change because it

was part of a years-long process. See Defs.’ Mot., ECF No. 66-1

39
at 35. Although the Postal Service may have been removing excess

machines from its facilities since 2017, “the pace of removals

was accelerated beginning in June 2020.” USPS Office of

Inspector General, Operational Changes to Mail Delivery (October

19, 2020), ECF No. 63-1 at 4; see also DeChambeau Decl., ECF No.

30-2 ¶ 21 (noting rate of reductions of sorting machines).

Second, the changes were “in the nature of postal

services,” 39 U.S.C. § 3661(b), because they qualitatively

altered “the manner in which postal services [are] available to

the user,” Buchanan, 508 F.2d at 263. As stated above, the

record evidence shows that changes in transportation policies

resulted in nationwide delays.

Third, the changes affected service “on a nationwide or

substantially nationwide basis,” 39 U.S.C. § 3661(b), because

“[a] broad geographical area [was] involved,” Buchanan, 508 F.2d

at 263. As stated above, the record demonstrates that the

changes resulted in delays on a nationwide basis.

Despite the above, Defendants argue that the PRC’s

interpretations of Section 3661(b) are entitled to deference.

Defs.’ Mot., ECF No. 66-1 at 34-35. According to Defendants, the

PRC has interpreted the section to require USPS to submit a

proposal only when an action or program “has as its goal, or

will have as a reasonably foreseeable effect, an appreciable

alteration in the accessibility of postal services to the public

40
or in the type and quality of postal services offered to the

public which is substantial and extends over a broad

geographical area.” Id. at 34 (citations omitted). Put another

way, USPS is required to seek an advisory opinion “only if the

complainant can show (1) ‘that the Postal Service has already,

or [plans] to implement, new service standards’ or (2) ‘that the

Postal Service is knowingly and/or intentionally denigrating

service.’” Id. (citations omitted). Defendants argue that they

did not violate Section 3661(b) because they did not knowingly

or intentionally denigrate service. Id. at 36-37.

However, there is no evidence that Defendants analyzed the

impacts its changes would have on overall service standards

prior to implementing multiple changes at the same time. See,

e.g., USPS Office of Inspector General, Operational Changes to

Mail Delivery (October 19, 2020), ECF No. 63-1 at 4 (“While the

Postal Service estimated workhour savings for many of the

initiatives, it did not complete a study or analysis of the

impact the changes would make on mail service prior to

implementation.”). Permitting USPS to avoid the requirements of

Section 3661(b) because it refused to study the consequences of

its changes prior to implementation would stand in conflict with

the purpose of Section 3661(b). As the Court stated in its

September 27, 2020 Memorandum Opinion, “Congress clearly

intended Section 3661 to require an opportunity for public

41
participation and for independent review before the USPS

implements service changes that will have a broad effect,” and

“[t]he 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.” New York, 490 F. Supp. 3d

at 243.

The Court also is not persuaded that it was not

“foreseeable” that the simultaneous implementation of multiple

policy changes during the height of the pandemic would

negatively impact service. See, e.g., Pls.’ Ex. 43, July 10,

2020 Mandatory Stand-up Talk, ECF No. 59-43 at 2 (stating that

because “late trips are no longer authorized or accepted” and

“[e]xtra trips are no longer authorized or accepted,” there

would be “mail left behind or mail on the workroom floor or

docks (in P&DCs), which is not typical”); see also USPS Office

of Inspector General, Operational Changes to Mail Delivery

(October 19, 2020), ECF No. 63-1 at 4 (“These initiatives

undertaken individually may not have been significant. However,

launching all of these efforts at once, in addition to the

changes instituted by the Postmaster General, had a significant

impact on the Postal Service.”).

Finally, Defendants argue that Plaintiffs’ ultra vires

claim should fail because they have a “meaningful and adequate

42
means of vindicating [their] statutory rights” by filing a

complaint with the PRC. Defs.’ Mot., ECF No. 66-1 at 38-39.

However, because of the nature of Plaintiffs’ claims and because

of the impending general election at the time Plaintiffs filed

suit, forcing Plaintiffs to raise their claims administratively

would not have afforded them meaningful vindication of their

right to notice and opportunity to participate as required under

Section 3661(b) in a timely manner. See New York, 490 F. Supp.

3d at 243.

C. 39 U.S.C. §§ 101 and 403
Plaintiffs next argue that the implementation of certain

Postal Policy Changes constituted ultra vires action in

violation of 39 U.S.C. §§ 101 and 403. For the reasons below,

the Court disagrees.

1. Sections 101 and 403 Claims Are Reviewable Pursuant to
the Ultra Vires Doctrine
Defendants first argue that Plaintiffs’ 39 U.S.C. §§ 101

and 403 claims are not subject to judicial review under the

ultra vires doctrine. The parties do not contest that there is

no express statutory preclusion of all judicial review and that

there is no alternative procedure for review of the statutory

claim. Rather, Defendants contend that “[u]ltra vires review is

not available where a statute leaves an agency with discretion

in how to comply with broadly articulated aims or goals,” and

here, the provisions in Sections 101 and 403 are “statements of

43
broad policies that the Postal Service strives toward in

exercising its ‘significant’ discretion that the PRA gives the

Postal Service over its operations pertaining to the handling,

collection, transportation, and delivery of mail.” Defs.’ Mot.,

ECF No., 66-1 at 40-41.

Defendants’ arguments, however, rely on a district court

case—Nat’l Ass’n of Postal Supervisors v. USPS, No. 19-2236,

2020 WL 4039177 (D.D.C. July 17,2020)—that the D.C. Circuit has

since reversed in Nat’l Ass’n of Postal Supervisors v. USPS

(“NAPS”), 26 F.4th 960 (D.C. Cir. 2022). In NAPS, the circuit

court considered whether 39 U.S.C. §§ 101(c), 1003(a), and 1004

were subject to judicial review. 26 F.4th at 970. These

provisions—found in the same Act as those at issue in this case—

provided that the Postal Service “‘shall’ consult with

recognized organizations, maintain ‘adequate and reasonable

differentials in rates of pay’ between supervisors and clerks

and carriers, and ‘achieve and maintain compensation for its

officers and employees comparable to the rates and types of

compensation paid in the private sector.’” Id. at 972 (quoting

39 U.S.C. §§ 101(c), 1003(a), 1004(a), (b)). The court held that

the provisions were subject to judicial review pursuant to the

ultra vires doctrine because, among other things, they contained

“explicit language stating what the Postal Service ‘shall’ do,”

which was “undoubtedly mandatory” language. Id. at 971 (citing

44
Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 172

(2016)). Notably, in reaching its decision, the circuit court

took no issue with discretionary language used in 39 U.S.C. §

1004(a), which granted USPS the authority to decide whether the

required pay differential was “adequate and reasonable.” Id. at

971-72. The D.C. Circuit also explained that the mere use of the

word “policy” in a statute “does not presumptively make a

directive voluntary.” Id. at 971. Rather, in view of the

“mandatory” language of the provisions at issue, Congress had

“expressly removed certain policy choices” from USPS. Id.

In view of the NAPS decision, the Court rejects Defendants’

arguments that any statute that leaves an agency with discretion

is not subject to judicial review, or that the directives

contained in Sections 101 or 403 are unenforceable policy goals.

See id. at 970 (“While a court ‘can defer to the exercise of

administrative discretion on internal management matters, . . .

[we] cannot abdicate [our] responsibility to insure compliance

with congressional directives setting the limits on that

discretion.’” (quoting Nat’l Ass’n of Postal Supervisors v.

USPS, 602 F.2d 420, 432 (D.C. Cir. 1979))). Sections 101(a)-(b),

(e), and 403(a)-(b) each incorporate either the mandatory term

“shall” or the mandatory phrase “[i]t shall be the

responsibility of” in requiring USPS to take certain actions.

Compare Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach,

45
523 U.S. 26, 35 (1998) (stating that “shall” is “mandatory” and

“normally creates an obligation impervious to judicial

discretion”), with United States v. Rodgers, 461 U.S. 677, 706

(1983) (“The word ‘may,’ when used in a statute, usually implies

some degree of discretion.”). In addition, despite the use of

the term “policy” in Section 101, “Congress effectively mandated

certain policies to be followed by the Postal Service, leaving

no discretion for the agency to do otherwise.” NAPS, 26 F.4th

971.

The Court therefore turns to Plaintiffs’ claims.

2. The Postal Service Did Not Act Ultra Vires In
Violation of Sections 101 and 403
In analyzing Plaintiffs’ Sections 101 and 403 claims, the

Court is “mindful that ‘[r]eviewability and the scope of review

are two separate questions.’” NAPS, 26 F.4th at 972 (quoting

Nat’l Ass’n, 602 F.2d at 432). While the Postal Service may have

“broad discretion” in running its operations, “this does not

mean that its decisions are entirely insulated from judicial

surveillance.” Id. (citation omitted). “The judicial role is to

determine the extent of the agency’s delegated authority and

then determine whether the agency has acted within that

authority.” Nat’l Ass’n, 602 F.2d at 432.

a. Section 101(a)
Section 101(a) of the Act provides that the USPS “shall

provide prompt, reliable, and efficient services to patrons in

46
all areas and shall render postal services to all communities.”

39 U.S.C. § 101(a). Plaintiffs allege that because the Postal

Policy Changes—specifically that Defendants “require[ed] manual

sorting, remov[ed] sorting machines, and eliminat[ed]

commonsense measures to alleviate backlogs”—caused “substantial

delays in mail delivery,” implementation of these changes

violated the text of the section or unreasonably interpreted its

terms. Pls.’ Mot., ECF No. 60 at 39.

Plaintiffs have not shown that Defendants have “patently”

misinterpreted the provision or “clear[ly] departed” from its

mandate. See Fed. Express Corp., 39 F.4th at 762. As the D.C.

Circuit has explained, “vague statutory provisions, such as one

that requires an agency to use ‘appropriate data’ to calculate a

payment amount, are not sufficiently clear and mandatory to

warrant non-APA review.” NAPS, 26 F.4th at 971-72 (citing DCH

Reg’l Med. Ctr. v. Azar, 925 F.3d 503, 509-10 (D.C. Cir. 2019);

see also Nyunt v. Broad. Bd. of Governors, 589 F.3d 445, 449

(D.C. Cir. 2009) (holding that a statutory provision requiring

an agency to hire “suitably qualified” U.S. citizens was not

subject to ultra vires review). Although the terms included in

Section 101(a) may be more definite in nature than “appropriate”

or “suitably,” the provision still “lack[s] discernible

standards by which a court can identify a limit to agency

authority.” NAPS, 26 F.4th at 971-72.

47
 Significantly, the statute does not define “prompt,

reliable, and efficient.” In the absence of statutory

definitions, the Court “must presume that Congress intended to

give the term[s] [their] ordinary meaning.” Aid Ass’n for

Lutherans v. USPS, 321 F.3d 1166, 1176 (D.C. Cir. 2003). As

defined by the Merriam-Webster dictionary, “prompt” means “being

ready and quick to act as occasion demands” or “performed

readily or immediately”; “reliable” means “suitable or fit to be

relied on” or “giving the same result on successive trials”; and

“efficient” means “capable of producing desired results with

little or no waste (as of time or materials).” See Prompt

Merriam-Webster Dictionary, https://www.merriam-

webster.com/dictionary/prompt; Reliable, Merriam-Webster

Dictionary, https://www.merriam-webster.com/dictionary/reliable;

Efficient, Merriam-Webster Dictionary, https://www.merriam-

webster.com/dictionary/efficient. While there are certainly

potentially egregious actions USPS could take that would fall

outside of these definitions, the terms are largely subjective

and involve a question of degree. Moreover, the terms may at

times conflict with each other—for example, one could imagine a

situation in which the most “reliable” method of mail delivery

is not the most “efficient” or “prompt” method—and are thus

heavily dependent on how the agency decides to weigh its

operational considerations. Ultimately, “it is for the Postal

48
Service and the Postal Service alone to resolve those

conflicts,” Nat’l Ass’n, 602 F.2d at 435, and a claim that “the

agency reached the wrong result” when “validly exercising its

judgment” is not appropriate under the ultra vires doctrine,

Eagle Trust Fund v. USPS, 365 F. Supp. 3d 57, 67 (D.D.C. 2019)

(KBJ). Even if the Court may agree with Plaintiffs that the

Postal Policy Changes resulted in mail delays across the

country, the Court cannot substitute its own judgment of what is

prompt, reliable, and efficient for that of the Postal Service.

See Nat’l Ass’n, 602 F.2d at 433, 435 (stating that courts

“cannot through statutory construction create more precise

standards and rights than Congress elected to create”).

Thus, because Plaintiffs have not shown that Defendants

patently misconstrued Section 101(a) or violated its terms,

Plaintiffs’ claim fails.

b. Section 101(b)
Plaintiffs’ Section 101(b) claim fails for similar reasons.

Section 101(b) provides:

The Postal Service shall provide a maximum
degree of effective and regular postal
services to rural areas, communities, and
small towns where post offices are not self-
sustaining. No small post office shall be
closed solely for operating at a deficit, it
being the specific intent of the Congress that
effective postal services be insured to
residents of both urban and rural communities.

49
39 U.S.C. § 101(b). Plaintiffs argue that “[u]nexplained

reductions in service and removals of equipment, and the

imposition of oddly technical roadblocks to efficient services

not previously in place—all implemented at the same time—

necessarily are less that the ‘maximum degree of effective and

regular postal services.’” Pls.’ Mot., ECF No. 60 at 39.

As an initial matter, Plaintiffs do not include any

allegations or evidence that the Postal Policy Changes

negatively impacted “rural areas, communities, and small towns

where post offices are not self-sustaining” specifically. See

Pls.’ Mot., ECF No. 60 at 39; Pls.’ Reply, ECF No. 71 at 34-35.

Because Section 101(b) refers to effective and regular postal

services only with regard to those types of areas, Plaintiffs’

arguments lack any support.

In addition, though “maximum degree” may have a common-

sense meaning, the terms “effective and regular” are not defined

in the statute. Looking to the dictionary, Merriam-Webster

defines “effective” as “producing a decided, decisive, or

desired effect.” Effective, Merriam-Webster Dictionary,

https://www.merriam-webster.com/dictionary/effective. “Regular”

is defined as “constituted, conducted, scheduled, or done in

conformity with established or prescribed usages, rules, or

discipline” or “recurring, attending, or functioning at fixed,

uniform, or normal intervals.” Regular, Merriam-Webster

50
Dictionary, https://www.merriam-webster.com/dictionary/regular.

Again, the definitions of these terms do not provide clear

limits on what the agency must provide to the “maximum degree,”

but rather place considerable discretion in USPS’s hands to

determine its goals and schedules. Moreover, Congress recently

amended Section 101(b) to insert the following language:

The Postal Service shall maintain an
integrated network for the delivery of market-
dominant and competitive products (as defined
in chapter 36 of this title). Delivery shall
occur at least six days a week, except during
weeks that include a Federal holiday, in
emergency situations, such as natural
disasters, or in geographic areas where the
Postal Service has established a policy of
delivering mail fewer than six days a week as
of the date of enactment of the Postal Service
Reform Act of 2022.

39 U.S.C. § 101(b). Reading the entire provision in context thus

strongly suggests that “regular” and “effective” postal services

refers to Congress’s explicit direction that mail delivery occur

six days a week in most circumstances. FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 133 (2000) (“It is a fundamental

canon of statutory construction that the words of a statute must

be read in their context and with a view to their place in the

overall statutory scheme.” (internal quotation marks omitted)).

Here, there is no claim that the Postal Policy Changes resulted

in mail deliveries occurring fewer than six days a week.

51
 Plaintiffs therefore have not demonstrated that the Postal

Service acted ultra vires with respect to Section 101(b).

c. Section 101(e)
Plaintiffs next challenge Defendants’ actions under Section

101(e). This provision provides that: “In determining all

policies for postal services, the Postal Service shall give the

highest consideration to the requirement for the most

expeditious collection, transportation, and delivery of

important letter mail.” 39 U.S.C. § 101(e). Plaintiffs argue

that “there is no indication the Postal Service gave any

consideration, let alone highest consideration, to the

expeditious delivery of important letter mail,” when the agency

decided to remove of “hundreds of sorting machines,” prohibit or

drastically curtail late and extra trips, and prevent postal

workers “at nearly 400 facilities from sorting any mail in the

morning before leaving to deliver the mail.” Pls.’ Mot., ECF No.

60 at 38.

Section 101(e) requires that the Postal Service consider

“the requirement for the most expeditious . . . delivery of

important letter mail.” Accordingly, the Court “can compel the

Postal Service to consider” that factor. NAPS, 26 F.4th at 973.

Because Congress did not define “expeditious” within the

statutory scheme, the Court presumes that its ordinary meaning

applies, which is “marked by or acting with prompt efficiency.”

52
Expeditious, Merriam-Webster Dictionary, https://www.merriam-

webster.com/dictionary/expeditious; see also Aid Ass’n for

Lutherans, 321 F.3d at 1176. This definition includes two

further terms not subject to precise definition—“prompt” and

“efficiency”—and necessarily requires a balancing of speed

versus resource management. Thus, though the Court may review

the record for evidence of consideration, the Court “cannot

substitute its own judgment of what is” expeditious “for that of

the Postal Service.” NAPS, 26 F.4th at 973 (determining, with

regard to provision that required USPS to “provide adequate and

reasonable differentials in rates of pay,” that a court “can

compel the Postal Service to consider and fulfill the

differential requirement, but . . . cannot substitute its own

judgment of what is adequate and reasonable for that of the

Postal Service”). And contrary to Plaintiffs’ assertion, Section

101(e) does not require the Postal Service to seek guidance from

the PRC, nor does it require the agency to perform its analyses

in any specific form or manner.

With regard to the removal of unnecessary processing

machines, Defendants explained that between 2017 and April 2020,

USPS created and ran a computer model “to determine the optimum

number of machines required for efficient mail processing at

facilities across the nation and monitored the reductions on an

ongoing basis.” DeChambeau Decl., ECF No. 59-33 at 6. The

53
reduction of the number of machines depended upon an “ongoing

analysis of mail volume and mail processing needs nationwide.”

Id. at 8. In May 2020, USPS concluded that based upon its data

monitoring and analysis, it “needed fewer letter and flat

sorting machines and more package machines and/or more workroom

floor space for nonautomated package processing” so that the

agency could “operate more efficiently.” Id. at 6-7. USPS

explained that, in its estimation, “removing unnecessary

machines frees up space for other package-processing machines,

which may be staffed with employees who are no longer needed for

running additional letter or flat mail sorting machines,” and

the greater floor space “accommodate[s] [an] increased volume of

packages.” Id. at 7; see also Barber Decl., ECF No. 66-9 at 3.

And with regard to the prohibition or reduction in late and

extra trips, on June 16, 2020, the USPS Office of the Inspector

General released a report analyzing whether the processing

network was “operating at optimal efficiency and meeting service

standards.” Ex. 14, ECF No. 70-2 at 4. The report noted that in

fiscal year 2019 the Postal Service had spent $280 million in

late and extra transportation, yet the agency “only met service

performance targets for five . . . or 15 percent of the 33 mail

products” that fiscal year. Id. at 5. In view of the decreases

in “operational efficiency,” the Postal Service stated that two

“best practices” to “increase efficiency” included: (1) front-

54
line managers implementing actions “to complete processing

operations early and transport mail on a trip prior to the last

scheduled transportation trip”; and (2) employees “took sorted

packages to the dock, while the processing operations were still

ongoing, in order to have as many mailpieces as possible on the

last scheduled transportation trip rather than having them go

later on extra trips.” Id. In addition, Robert Cintron testified

that prior to July 2020, trainings and meetings were provided to

“management about the need to adhere to transportation

schedules.” Cintron Dep. Tr., ECF No. 66-35 at 20-21.

In view of the record evidence above and because the

statute does not define the term “expeditious,” the Court cannot

hold that USPS clearly acted outside of its statutory authority.

See Eagle Trust Fund, 365 F. Supp. 3d at 67.

d. Section 403(a)
Section 403(a) provides:
The Postal Service shall plan, develop,
promote, and provide adequate and efficient
postal services at fair and reasonable rates
and fees. The Postal Service shall receive,
transmit, and deliver throughout the United
States, its territories and possessions, and,
pursuant to arrangements entered into under
sections 406 and 411 of this title, throughout
the world, written and printed matter,
parcels, and like materials and provide such
other services incidental thereto as it finds
appropriate to its functions and in the public
interest. The Postal Service shall serve as
nearly as practicable the entire population of
the United States.

55
39 U.S.C. § 403(a). Plaintiffs argue that Defendants acted ultra

vires by implementing inadequate and inefficient services. Pls.

Mot., ECF No. 60 at 40.

Plaintiffs first contend the Postal Policy Changes are

inefficient because “[b]y removing sorting machines . . . and by

restricting or banning policies that enabled faster processing

and delivery of mail, the Postal Policy Changes both increase

the amount of effort expended by postal workers and reduce the

Postal Service’s output.” Pls.’ Mot., ECF No. 60 at 41. However,

as explained above, USPS has the discretion to interpret the

term “efficient,” and USPS reached the conclusion that the

removal of machines and reduction of extra and late trips would

create a more efficient system. See, e.g., DeChambeau Decl.,

ECF No. 59-33 at 6-8 (sorting machines); OIG Report, Ex. 14, ECF

No. 70-2 at 4 (late and extra trips). Whether USPS made a

reasonable judgment regarding efficiency is not an appropriate

inquiry under ultra vires review. See Eagle Trust Fund, 365 F.

Supp. 3d at 67.

Plaintiffs also contend that the Postal Policy Changes

undermined the adequacy of postal services by delaying mail,

disrupting Plaintiffs’ plans to administer the 2020 general

election, and threatening the timely delivery of election mail

and public benefits mail. Pls.’ Mot., ECF No. 60 at 42-43.

Plaintiffs argue that “adequate” means, “at minimum, that which

56
is necessary to provide the postal services envisioned by the

PRA.” Id. at 41 (quoting Glob. Tel*Link v. FCC, 866 F.3d 397,

420-21 (D.C. Cir. 2017)). Even if the Court accepts Plaintiffs’

definition of “adequate,” however, the definition still does not

establish clear limits on USPS’s delegated authority. Indeed,

the D.C. Circuit in NAPS held that the word “adequate” is

subject to the Postal Service’s interpretation and that courts

“cannot substitute its own judgment of what is adequate . . .

for that of the Postal Service.” 460 F.4th at 972-73. Though the

circuit court was analyzing a different provision than the one

at issue here, the same reasoning applies.

e. Section 403(b)
Finally, Plaintiffs allege that USPS acted ultra vires in

violation of Section 403(b). The provision states:

It shall be the responsibility of the Postal
Service—
(1) to maintain an efficient system of
collection, sorting, and delivery of the mail
nationwide;
(2) to provide types of mail service to meet
the needs of different categories of mail and
mail users; and
(3) to establish and maintain postal
facilities of such character and in such
locations, that postal patrons throughout the
Nation will, consistent with reasonable
economies of postal operations, have ready
access to essential postal services.

39 U.S.C. § 403(b).

Plaintiffs have failed to show that USPS has “plainly”

stepped “beyond the bounds” of its statutory authority
57
enumerated in Section 403(b). Griffith, 842 F.2d at 493

(citation omitted). Undefined terms and phrases such as

“efficient,” “meet the needs of,” and “ready access to essential

postal services” are not sufficiently specific or unambiguous as

to be susceptible to ultra vires review. Id. (citation omitted).

Because ultra vires claims are “confined to extreme agency

error,” Fed. Express Corp., 39 F.4th at 764 (quoting Griffith,

842 F.2d at 493), the Postal Service’s actions are not ultra

vires.

D. The Postal Policy Changes Did Not Violate the Elections
Clause
Next, Plaintiffs contend that “the Postal Policy Changes

violate the Elections Clause of the United States Constitution

because they impair—and were intended to impair—Plaintiffs’

administration of the elections process in their states.” Pls.’

Mot., ECF No. 60 at 44. 5

The Elections Clause of the Constitution, Art. I, § 4, cl.

1, provides that “[t]he Times, Places and Manner of holding

Elections for Senators and Representatives, shall be prescribed

in each State by the Legislature thereof; but the Congress may

at any time by Law make or alter such Regulations.” U.S. Const.,

5 The Court finds that Plaintiffs’ claim is not moot, as
Defendants’ actions in this case “fit comfortably within the
established exception to mootness for disputes capable of
repetition, yet evading review.” FEC v. Wisc. Right to Life,
Inc., 551 U.S. 449, 450 (2007).
58
Art. I, § 4, cl. 1. “In practice, the Clause functions as ‘a

default provision; it invests the States with responsibility for

the mechanics of congressional elections, but only so far as

Congress declines to pre-empt state legislative choices.’”

Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 9

(2013) (quoting Foster v. Love, 522 U.S. 67, 69 (1997)); see

also Cook v. Gralike, 531 U.S. 510, 523 (2001) (“[T]he Elections

Clause grants to the States ‘broad power’ to prescribe the

procedural mechanisms for holding congressional

elections.”(quoting Tashjian v. Republican Party of Conn., 479

U.S. 208, 217 (1986))); U.S. Term Limits, Inc. v. Thornton, 514

U.S. 779, 832 (1995) (“The Framers intended the Elections Clause

to grant States authority to create procedural regulations . . .

.”).

The Postal Service, in implementing the Postal Policy

Changes, has not violated the Elections Clause. As the Supreme

Court has explained, the “function contemplated by [the

Elections Clause] is that of making laws.” Smiley v. Holm, 285

U.S. 355, 366 (1932). Though the implementation of the Postal

Policy Changes contributed to the delay in mail deliveries

nationwide, see generally Grimmer Suppl. Decl., ECF No. 59-23,

which in turn risked a delay in the delivery of mail-in ballots

during an election season, USPS’s actions do not amount to

voting regulations that override the States’ existing

59
regulations, nor do they alter the States’ existing regulations,

see Foster, 522 U.S. at 69 (calling it “well settled” that

Congress has the authority to “override state regulations by

establishing uniform rules for federal elections” (internal

quotation marks omitted) (citation omitted)). It is undisputed

that Plaintiffs’ regulations remain intact.

Neither do Plaintiffs cite to any case law supporting their

position that the Elections Clause grants protection to State

legislatures from federal policies that do not “make or alter”

voting regulations. U.S. Const., Art. I, § 4, cl. 1; see Smiley,

285 U.S. at 366, 368 (explaining that the Elections Clause

“involves lawmaking in its essential features” and that

“limitation[s]” to State legislatures are not “incongruous with

the grant of legislative authority to regulate congressional

elections”). The Court therefore declines to read the Elections

Clause more expansively than either its language or precedent

dictates. See Inter Tribal Council of Ariz., 570 U.S. at 8

(stating that the Elections Clause has only “two functions”:

granting the States the duty to “prescribe the time, place, and

manner” of elections, and granting Congress the “power to alter

those regulations or supplant them altogether”).

E. Scope of Relief
“In the declaratory judgment context, the normal principle

that federal courts should adjudicate claims within their

60
jurisdiction yields to considerations of practicality and wise

judicial administration.” Wilton v. Seven Falls Co., 515 U.S.

277, 288 (1995). “There are no dispositive factors a district

court should consider in determining whether it should entertain

an action brought under the Declaratory Judgment Act.” POM

Wonderful LLC v. FTC, 894 F. Supp. 2d 40, 44 (D.D.C. 2012)

(quoting Comm. on Judiciary v. Miers, 558 F. Supp. 2d 53, 95

(D.D.C. 2008)) (internal quotation marks omitted). The D.C.

Circuit has found the following to be useful considerations: (1)

“whether [declaratory relief] would finally settle the

controversy between the parties”; (2) “whether other remedies

are available or other proceedings pending”; (3) “the

convenience of the parties”; (4) “the equity of the conduct of

the declaratory judgment plaintiff”; (5) “prevention of

procedural fencing”; (6) “the state of the record”; (6) “the

degree of adverseness between the parties”; and “the public

importance of the question to be decided.” Id. (quoting Hanes

Corp. v. Millard, 531 F.2d 585, 592 n.4 (D.C. Cir. 1976)); see

also Glenn v. Thomas Fortune Fay, 222 F. Supp. 3d 31, 35 (D.D.C.

2016) (“[D]eclaratory relief requires a determination of 1) an

actual, substantial controversy, 2) involving an interested

party, 3) that warrants the immediate issuance of a declaratory

judgment.”). Moreover, “[i]n the D.C. Circuit, two criteria are

ordinarily relied upon: 1) whether the judgment will serve a

61
useful purpose in clarifying the legal relations at issue, or 2)

whether the judgment will terminate and afford relief from the

uncertainty, insecurity, and controversy giving rise to the

proceeding.” Glenn, 222 F. Supp. 3d at 36.

“[A] plaintiff seeking a permanent injunction must satisfy

a four-factor test before a court may grant such relief.” eBay

Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). A plaintiff

must demonstrate: “(1) that it has suffered an irreparable

injury; (2) that remedies available at law, such as monetary

damages, are inadequate to compensate for that injury; (3) that,

considering the balance of hardships between the plaintiff and

defendant, a remedy in equity is warranted; and (4) that the

public interest would not be disserved by a permanent

injunction.” Id. Where the federal government is the opposing

party, the balance of equities and public interest factors

merge. See Nken v. Holder, 556 U.S. 418, 435 (2009). 6

Defendants do not contest that the Postal Policy Changes

caused irreparable harm, that no other remedies are available at

law, or that the balance of the equities and public interest

weigh in favor of Plaintiffs. See Defs.’ Mot., ECF No. 66-1 at

52-54. Defendants also do not contest that Plaintiffs meet the

6 Plaintiffs do not seek injunctive or declaratory relief against
the President, see Pls.’ Reply, ECF No. 71 at 42 n.20, and the
Court grants relief against all Defendants other than the
President.
62
test for granting declaratory relief. Id. Indeed, the evidence

demonstrates that Plaintiffs suffered harm by impeding their

ability to combat the spread COVID-19, impeding their ability to

provide safe alternatives to in-person voting, imposing “direct

financial costs to state and local agencies,” and imposing

“administrative burdens . . . on state and local agencies.” See

Banks Decl., ECF No. 59-2 ¶¶ 7–9; Newton Decl., ECF No. ECF No.

59-16 ¶¶ 13–16; Roye Decl., ECF No. 59-18 ¶¶ 5, 11–13; Roye

Suppl. Decl., ECF No. 59-24 ¶¶ 13, 18-20; Ku Decl., ECF No. 59-

14 ¶¶ 8-10, 13; Shah Decl., ECF No. 59-19 ¶¶ 3, 5-6, 10; Adinaro

Decl., ECF No. 59-1 ¶ 9; Kellner Decl., ECF No. 59-13 ¶¶ 11, 16–

17, 19. In addition, “[i]t 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.” New York, 490 F. Supp. 3d at 245. Further, there is no

dispute that declaratory relief would settle the issues before

the parties and that there are no other remedies or proceedings

pending. See Glenn, 222 F. Supp. 3d at 35 (“This inquiry should

focus on whether the facts alleged, under all the circumstances,

show that there is a substantial controversy, between parties

having adverse legal interests, of sufficient immediacy and

reality to warrant the issuance of a declaratory judgment.”

(internal quotation marks omitted)).

63
 Instead, Defendants argue that the declaratory and

injunctive relief Plaintiffs request is overly vague. However,

the Court has the power to modify the terms of a proposed

injunction, and it shall do so here. Although the simultaneous

implementation of multiple policy changes in June and July 2020

contributed to the decline in mail service and the overall

confusion by postal workers, the record evidence demonstrates

that changes to and impacts on the USPS transportation schedule

regarding late and extra trips were the primary factor in

affecting service on a nationwide or substantially nationwide

basis. See Pls.’ Statement of Facts, ECF No. 60-1 at 16 (“The

decline in Service Scores has persisted even after the Postal

Service has suspended all other new initiatives other than the

policy limiting the number of Extra or Late Trips. Therefore,

the observed declines in Service Scores are not attributable to

other initiatives at the Postal Service.”); Aug. 13, 2020

Message from the Postmaster General, Pls.’ Ex. 52, ECF No. 59-52

at 2-3; Transcript of Senate Homeland Security and Governmental

Affairs Committee Hearing (Aug. 21, 2020), Defs.’ Ex. 13, ECF

No. 66-17; Grimmer Suppl. Decl., ECF No. 59-23. The Court shall

therefore enjoin the Postal Service from prohibiting such trips

in total or from curtailing such trips to the extent that

nationwide service scores decline on average by more than 10

percentage points for a period of at least two-weeks, without

64
first seeking an advisory opinion from the PRC pursuant to 39

U.S.C. § 3661(b). The Court also, in its discretion, grants

declaratory relief to Plaintiffs because USPS’s steep reduction

in late and extra trips in July 2020 violated Section 3661(b)

when the agency failed to first seek an advisory opinion from

the PRC. The Court declines Plaintiffs’ request to appoint an

independent monitor in this case. See Fed. R. Civ. P.

53(a)(1)(B).

IV. Conclusion

For the reasons stated above, the Court hereby orders that

Plaintiffs’ motion for summary judgment, ECF No. 58, is granted

in part and denied in part, and Defendants’ cross-motion for

summary judgment, ECF No. 66, is granted in part and denied in

part. The Order issued on September 30, 2022 accompanies this

Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
October 6, 2022

65