**BEFORE THE**

**POSTAL RATE COMMISSION**

**WASHINGTON, DC 20268-0001**

+---------------------------------------------+------------------------+
| **Complaint on Sunday**                     | **Docket No. C2001-1** |
|                                             |                        |
| **and Holiday Collections**                 |                        |
+---------------------------------------------+------------------------+

**DOUGLAS F. CARLSON**

**ANSWER IN OPPOSITION\
TO POSTAL SERVICE MOTION FOR RECONSIDERATION**

**April 13, 2001**

**[I. Introduction]{.smallcaps}**

On April 10, 2001, the Postal Service filed a motion for
reconsideration[^1] of Commission Order No. 1307,[^2] which instituted a
proceeding to consider my complaint concerning holiday and holiday-eve
collections. The Postal Service's motion represents a delay tactic. The
Commission should promptly deny the Postal Service's motion, issue a
procedural schedule, and authorize participants to commence discovery.

# II. Argument

In support of its motion, the Postal Service reiterates various unproven
and untested factual assertions. The Postal Service also attempts to
resuscitate a number of arguments supporting dismissal of my complaint.
In Order No. 1307, the Commission considered and dismissed these
arguments. The Postal Service's arguments, however unconvincing, seem
more appropriate for its brief than for a motion to dismiss a complaint
before a factual record has been developed. Therefore, the Commission
should proceed with its announced plan to develop a record and evaluate
my complaint based on the facts.

A. The Commission has jurisdiction to hear this complaint.

The Postal Service is mistaken in asserting that the Commission does not
have jurisdiction to hear this complaint. Motion for Reconsideration at
1--8. The Commission fully considered this issue and properly determined
that it has jurisdiction to hear this complaint. The Commission ruled
that the Postal Service's failure to seek an advisory opinion pursuant
to 39 U.S.C. § 3661(b) "is sufficient to demonstrate a reasonable
belief" that the Postal Service is not providing postal services
consistent with the policies of the Postal Reorganization Act. *See*
Order at 8. On the disputed factual issue of whether a change in the
nature of postal services has occurred, the Commission held that
"Carlson has provided sufficient basis to make a colorable claim as to
whether the Postal Service should have requested an advisory opinion
pursuant to § 3661(b)." Order at 10. The Postal Service provides no new
information to justify reversing this decision.

The Postal Service asserts that the "issue of whether or not the Postal
Service failed to seek a required advisory opinion \* \* \* does not
fall within the range of issues which the Commission is authorized to
address in a section 3662 service complaint proceeding." Motion for
Reconsideration at 3. The Postal Service cites no authority to support
this proposition. In fact, the Commission's ruling was correct. The Act
requires the Postal Service to obtain an advisory opinion from the
Commission before changing the nature of postal services. 39 U.S.C. §
3661(b). In this instance, the Postal Service skipped the request for an
advisory opinion and proceeded to change the nature of postal services
anyway. If the Postal Service changes the nature of postal services and
also denies the public an opportunity for a hearing on the record before
the Commission under section 3661(c), the curtailed services will not be
consistent with the policies of the Act because the Postal Service
curtailed them without seeking an advisory opinion. Even though the
initial violation of the Act --- failing to seek an advisory opinion
before reducing holiday mail service --- was "procedural" in nature, it
led to a substantive failure to ensure that customers would be receiving
adequate postal services on holidays. The Commission correctly sustained
my complaint.

Rather amazingly, the Postal Service resurrects its original argument
that my complaint apparently should be dismissed because my complaint
did not include the sentences "I am an interested party" and "I am not
receiving postal services in accordance with the policies of the Postal
Reorganization Act." *See* Motion for Reconsideration at 1--2 and Answer
of the United States Postal Service and Motion to Dismiss at 12--13
(November 27, 2000). As I explained in my answer to the Postal Service's
motion to dismiss, the Act does not require a person to state in his
complaint that he is an interested party and that he is not receiving
postal services in accordance with the policies of the Act. Douglas F.
Carlson Answer in Opposition to Postal Service Motion to Dismiss
("Carlson Answer") at 5--7 (December 14, 2000). Rule 83 of the
Commission's *Rules of Practice* specifies no such requirement, either,
and my complaint provides all the information that Rule 83 requires.
Rather, the test is whether I, having filed a complaint, am an
interested party and whether I am not receiving postal services in
accordance with the policies of the Act. Carlson Answer at 6--7. The
Commission correctly ruled that my complaint sufficiently alleges that I
am not receiving the services in question. Order at 7--11. The Postal
Service provides no new information that should cause the Commission to
reconsider its decision.

Given the nature of most of the litigation that the Commission
considers, the Commission does not have an extensive body of rules or
interpretations on the fine points of pleading in complaints. Therefore,
the *Federal Rules of Civil Procedure* may provide some useful
guidance.[^3] According to Rule 8(f), "All pleadings shall be so
construed as to do substantial justice." Fed. R. Civ. P. 8(f). The
Postal Service's excessively rigid and impractical approach would not
survive in federal court because it would deny justice to persons who,
in good faith and following applicable rules and statutes, are seeking
redress. This Postal Service's proposed standard is as inappropriate for
Commission proceedings as Congress determined it to be for the federal
courts.

The Commission stated that it did not "contemplate consideration at this
time of whether the level of holiday and holiday eve service is adequate
under\
§ 3661(a)" because my complaint did not specifically allege that current
service levels are not adequate. Order at 17. To "curtail the
possibility of a future complaint that would necessarily cover much of
the same territory that will be covered in the instant Complaint," the
Commission granted me an opportunity to amend my complaint. *Id.* On
March 29, 2001, I filed a motion to amend my complaint to allege that
current holiday and holiday-eve service levels may not be adequate
within the meaning of 39 U.S.C. § 3661(a). Douglas F. Carlson Motion to
Amend Complaint ("Carlson Motion to Amend") at 2. In regard to holiday
service, I cited information concerning the high cancellation volume at
one plant on Memorial Day in 1998 before this service was eliminated.
Carlson Motion to Amend at 1. This volume suggests that customers need
holiday mail service; without holiday mail service, the Postal Service
may not be providing an adequate level of service.

> **1. Amended Complaint**

Now that I have moved to amend my complaint, the Postal Service charges
that my amended complaint is faulty because it uses the verb "is"
instead of "may." *See* Motion for Reconsideration at 6--7. Because I
allegedly did not state a definite belief that current service levels
are not adequate, the Postal Service concludes that the Commission does
not have jurisdiction to hear this complaint. *Id.* Several problems
undermine the Postal Service's argument.

First, the Commission *does* have jurisdiction because the Postal
Service failed to seek an advisory opinion under section 3661(b) before
changing the nature of holiday and holiday-eve mail services. Order at
11. My amended complaint raises an *additional* issue for the
Commission's consideration. On the basis of my amended complaint, the
Commission may, in its discretion, decide to consider whether the level
of holiday and holiday-eve mail service is adequate under section
3661(a). While my new allegation may also grant the Commission
jurisdiction to hear my complaint, I submitted my amended complaint in
response to a Commission order initiating a proceeding and, thus,
confirming jurisdiction. Moreover, the Commission provided me with an
opportunity to amend my complaint *in the context of determining whether
I would submit evidence on the adequacy of current services.* *Id.* at
17. I properly used the verb "may" because I expect to use discovery to
probe the adequacy of current service levels; I cannot, at present,
assure the Commission that I will submit evidence on this issue.
Importantly, in alleging the possible inadequacy of service levels, I
was not attempting to create jurisdiction for the Commission because
jurisdiction already exists.

Absent consideration of the adequacy of holiday service in this
complaint proceeding, I surely could obtain data on cancellation volumes
on past holidays under the Freedom of Information Act. If the data in
any way resemble the data cited in my motion to amend my complaint ---
250,000 letters cancelled in Oakland, California, on Memorial Day in
1998 --- I am confident that the data would provide a basis for me to
allege confidently that the Postal Service is not providing an adequate
level of holiday mail service. *See* Carlson Motion to Amend at 1. I
would then either amend this complaint or file another complaint. But in
granting me the opportunity to amend my complaint at the beginning of
this proceeding, the Commission was seeking to avoid exactly this
duplicative effort by allowing me to amend my complaint in order to
"curtail the possibility of a future complaint that would necessarily
cover much of the same territory that will be covered in the instant
Complaint." Order at 17.

Once again, the *Federal Rules of Civil Procedure* provide useful
guidance on interpreting my amended complaint. The federal rules allow
parties to plead hypothetical claims that they intend to prove through
discovery or at trial. *See* Fed. R. Civ. P. 8(e). Under the federal
rules, my amended complaint would be sufficient to raise the issue of
the adequacy of current service levels as an issue for consideration.

A second problem exists with the Postal Service's approach. Section
3661(b) requires the Postal Service to seek an advisory opinion before
changing the nature of postal services. In a proceeding for an advisory
opinion, Rule 74 requires the Postal Service to explain how the proposed
change will be consistent with the policies of the Act. Whether the
proposed change would still provide the public with adequate and
efficient postal services under section 3661(a) presumably is one of the
standards that the proposed change must meet. The Postal Service appears
to admit as much. Motion for Reconsidera­tion at 5. Section 3661(c)
provides for a public hearing to evaluate the proposed change.

In this instance, the Postal Service has changed the nature of holiday
mail service without seeking an advisory opinion that would have
evaluated the adequacy of the proposed level of service. The Postal
Service now would like customers to be unable to initiate a complaint
under section 3662 unless they can allege, and provide evidence, that
holiday service levels are not adequate. But how would an individual
customer independently determine that service levels are inadequate when
the Postal Service bypassed the required section 3661(b) procedure that
would have developed evidence on this issue? The Commission is
absolutely correct in ruling that a person may initiate a complaint
proceeding under section 3662 if the Postal Service failed to seek an
advisory opinion before changing the nature of postal services. Absent
this ruling, the Postal Service would be able to skip the advisory
opinion that would develop evidence on the adequacy of the proposed
change, then move to dismiss any complaint because the person would be
unable to prove that the service was inadequate. By circumventing the
law initially, the Postal Service could immunize itself from complaint
proceedings. The Commission's ruling correctly prevents this unfair
result. Otherwise, postal customers would be placed in a classic Catch
22 --- exactly where the Postal Service wants to place customers who
question agency practices or complain about service problems.

The Postal Service charges that the "material aspects of the Postal
Service's holiday practice have been amply documented in the information
attached to the Postal Service's Answer." Motion for Reconsideration at
7. Therefore, according to the Postal Service, I should be able to
determine whether I wish to allege that holiday service does or does not
conform to any of the policies of the Act. *Id.* This statement warrants
closer examination. The headquarters memos provided in the Postal
Service's answer suggest that the default policy is not to process
outgoing mail on holidays. Moreover, collection schedules on collection
boxes are likely to show a blank in the space for a holiday collection.
*Id.* at 9. Reading the Postal Service's pleadings in response to my
complaint and believ­ing all the statements contained therein, one could
reasonably conclude that the Postal Service no longer collects and
processes mail on holidays. If the Postal Service wants me to believe
that this information represents the current state of holiday mail
service, I would be pleased to allege that current service levels are
not adequate. However, I know that Postal Service *practice* differs
from the practice that the policy statements provided thus far would
suggest. I am attempting to nurture a productive proceeding based on
facts, including my own knowledge of actual practice. But if the
Commission instead directs me to proceed by taking as fact the
information that the Postal Service has provided thus far, I will amend
my complaint to allege definitively that customers do not have access to
holiday mail service --- blank holiday collection times on labels would
be proof --- and that this level of service is inadequate. I submit,
however, that my approach thus far, which considers actual practice,
will foster a better, more-efficient, and more-useful proceeding for the
Commission, the Postal Service, participants, and the public.

> **2. "Back-Door" Proceeding**

The Postal Service suggests that the Commission's order is problematic
because it effectively allows parties other than the Postal Service a
"back-door route" to initiate "section 3661(b) service change
proceedings." Motion for Reconsideration at 4. The Postal Service is
incorrect because this proceeding is a service-complaint proceeding
under section 3662. A parallel example exists on the rate side that
further dampens the surprise that the Postal Service expresses. Only the
Postal Service may institute a proceeding to change a rate. 39 U.S.C.\
§ 3622. However, under section 3662, customers may file a complaint
concerning rates that the Postal Service is charging. Such a complaint
may lead to a proceeding that very closely resembles the proceeding that
follows after the Postal Service files a request for an opinion and
recommended decision. 39 U.S.C. § 3662. The end result may be identical:
an opinion and recommended decision. To the extent that section 3662
creates a "back-door route" to initiate a proceeding, section 3662
intends precisely this result. Section 3662 is one of the few remedies
that the Act grants customers to ensure that the Postal Service provides
services and charges rates that are consistent with the policies of the
Act.

B. The POSTAL SERVICE'S ASSESSMENT OF MY MOTIVE IS INACCURATE.

Despite not having contacted me to discuss issues related to this
complaint, the Postal Service nevertheless professes to know my
intentions. *See* Motion for Reconsideration at 6--7. The Postal Service
blames me for not seeking either monetary damages or an order directing
certain behavior from the Postal Service. *Id.* The Postal Service
forgets that section 3662 provides a remedy: a public report describing
the service problem. I assure the Commission and the Postal Service
that, in initiating a complaint proceeding under section 3662, I am
seeking the remedy that section 3662 provides. As the Postal Service
seeks to reform the Postal Reorganization Act, Congress would benefit
from the public report that this proceeding likely will generate.

C. The Postal Service incorrectly minimizes the ISSUE OF deception
CONCERNING HOLIDAY SERVICE LEVELS.

The Postal Service asserts that the potential deception of the public
regarding the services to be provided on specific holidays "is not
likely to be a substantial issue." Motion for Reconsideration at 9. This
assertion is nothing short of amazing. The Postal Service suggests that
media reports, blank holiday collection times on collection labels, and
information available from local post offices should allow customers to
obtain correct information concerning holiday mail processing. In my
experience, media reports generally indicate simply that the post office
is closed on a particular holiday. Media reports do not delve into the
specifics of holiday collections and processing.[^4] This distinction is
important because the Postal Service *does,* in fact, process and
collect mail on some holidays, despite blank holiday collection labels
and vague media reports indicating that post offices are closed. If
customers believe that holiday service is not available, they
effectively are being denied this service because they may defer
mailings until the next day. Once again, if the Postal Service believes
that no deception occurs because customers are clearly informed that no
holiday service is available, this complaint should proceed under the
assumption that holiday mail service no longer is available, and I will
amend my complaint to allege that the absence of holiday service is
inadequate.

The Postal Service also is incorrect in suggesting that deception occurs
in only one direction. In reality, customers have a right to know
*whether or not* a particular service will be provided. Some customers
may deposit mail, such as bill payments, in the hope and with the
expectation that their mail will *not* be processed until the day after
the holiday because they are waiting for their paycheck to be deposited
to cover the check. They may be harmed if their mail *is* processed when
the collection-times label indicates no holiday collection.

As for the assertion that local post offices have information on whether
the plant that services them will be processing mail on holidays, the
Postal Service apparently has not called local post offices lately to
obtain this information. Even using a Headquarters Telephone Directory
to call plant managers' offices directly --- telephone numbers that are
not published for the general public --- I have received incorrect
information about holiday service plans. I have never seen a sign in a
post office or plant describing the holiday collection and processing
service that will or will not be provided --- and I have visited many
post offices. In fact, as further evidence of the difficulty of
obtaining accurate information, some window clerks working at processing
and distribution centers, and even some staff answering the telephone in
plant managers' offices, still tell customers that the Postal Service
processes outgoing mail on Sundays.

The Postal Service concludes that "The Postal Service is unaware of any
basis to believe that a material number of mailers have found themselves
receiving holiday mail service that was inconsistent with what they had
been led to believe by the information made available to the public."
*Id.* at 9--10. I submit that every customer who has deposited mail in a
collection box on a holiday and whose mail has been processed on that
holiday has received holiday mail service that was inconsistent with the
information that the Postal Service made public, given that most
collection-times labels show a blank for the holiday collection times.
*Id.* at 9. Since most plants do process mail on certain holidays every
year, the number of customers affected by the incorrect information
surely numbers in the tens of millions. Some of them probably were
pleased by this service and assumed that they would receive it on the
next holiday, too --- but the Postal Service may not have processed mail
on the next holiday. Simply stated, the current situation is haphazard,
and customers receive no reliable information concerning holiday service
levels.

This dispute over the information provided to customers concerning
holiday service levels provides further support for my contention that
the Commission needs to hear evidence on this issue and produce a public
report

that would be helpful to the Postal Service in addressing these issues.
Indeed, the Postal Service clearly would benefit from a public report
because, thus far, the Postal Service has failed to grasp the nature and
extent of the problem.

# III. Conclusion

The Postal Service's motion for reconsideration offers no new
information or justification for the Commission to dismiss my complaint.
Moreover, the Postal Service's motion for reconsideration actually
underscores the need for a hearing because the Postal Service still does
not appreciate the problems that current holiday service practices
create for the public. The complaint process of section 3662 exists to
remedy precisely the problems that the Commission sought to address in
ordering a hearing on my complaint. In the course of this complaint, I
look forward to offering useful and practical suggestions on how the
Postal Service can provide better information to the public.

The Commission should deny the Postal Service's motion for
reconsideration, issue a procedural schedule, and authorize participants
to commence discovery.

Respectfully submitted,

Dated: April 13, 2001 \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

DOUGLAS F. CARLSON

## CERTIFICATE OF SERVICE

I hereby certify that I have this day served the foregoing document upon
the required parties in accordance with section 12 of the *Rules of
Practice.*

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

DOUGLAS F. CARLSON

April 13, 2001

Santa Cruz, California

[^1]: Response of the United States Postal Service to Order No. 1307,
    and Motion for Reconsideration ("Motion for Reconsideration") (filed
    April 10, 2001).

[^2]: Order No. 1307 ("Order") (filed March 20, 2001).

[^3]: Indeed, the Postal Service effectively invokes Rule 8(a) when it
    claims that I have "failed to state a claim upon which relief may be
    granted\[.\]" Motion for Reconsideration at 6; Fed. R. Civ. P. 8(a).

[^4]: The Postal Service asserts that "\[t\]here is no reason to believe
    that information conveyed in \[media reports\] would be inaccurate."
    Motion for Reconsideration at 9. In reality, there is no reason to
    believe that information reported in the media would, except by
    chance, provide accurate information concerning collections and mail
    processing on holidays.