U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:20-cv-02295-EGS

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE v. UNITED STATES POSTAL SERVICE et al Assigned to: Judge Emmet G. Sullivan Cases: 1:20-cv-02262-EGS
1:20-cv-02340-EGS 1:20-cv-02405-EGS Case in other court: USCA, 20-05375 Cause: 05:0706 Judicial Review of Agency Actions

Date Filed: 08/20/2020 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Plaintiff
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE

represented by Allison Marcy Zieve PUBLIC CITIZEN LITIGATION GROUP 1600 20th Street, NW Washington, DC 20009 (202) 588-1000 Fax: (202) 588-7795 Email: azieve@citizen.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Samuel Spital NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 40 Rector Street 5th Floor New York, NY 10006 (212) 965-2200 Email: sspital@naacpldf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
UNITED STATES POSTAL SERVICE

represented by Joseph Evan Borson U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch

Defendant LOUIS DEJOY in his official capacity as Postmaster General of the United States Postal Service
Amicus RICHARD BLUMENTHAL

1100 L Street NW Washington, DC 20005 (202) 514-1944 Fax: (202) 616-8460 Email: joseph.borson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kuntal Virendra Cholera U.S. DEPARTMENT OF JUSTICE 1100 L. St. NW Washington, DC 20005 (202) 305-8645 Email: kuntal.cholera@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Robinson U.S. DEPARTMENT OF JUSTICE 1100 L Street NW Washington, DC 20005 202-616-8489 Email: john.j.robinson@usdoj.gov ATTORNEY TO BE NOTICED
represented by Joseph Evan Borson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kuntal Virendra Cholera (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Robinson (See above for address) ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18th Street, NW Suite 501

Amicus CORY A. BOOKER
Amicus SHERROD BROWN
Amicus TOM CARPER
Amicus MAZIE K. HIRONO
Amicus AMY KLOBUCHAR
Amicus EDWARD J. MARKEY
Amicus

Washington, DC 20036 (202) 296-6889 ext. 304 Email: brianne@theusconstitution.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JEFFREY A. MERKLEY
Amicus JACK REED
Amicus BERNARD SANDERS
Amicus JEANNE SHAHEEN
Amicus ELIZABETH WARREN
Amicus SHELDON WHITEHOUSE
Amicus RON WYDEN
Amicus UNITED STATES HOUSE OF REPRESENTATIVES

represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Douglas N. Letter U.S. HOUSE OF REPRESENTATIVES

Office of General Counsel 219 Cannon House Office Building Washington, DC 20515 (202) 225-9700 Email: douglas.letter@mail.house.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/20/2020
08/20/2020
08/20/2020 08/20/2020 08/20/2020 08/25/2020 08/25/2020 09/01/2020
09/01/2020

# Docket Text
1 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against All Defendants ( Filing fee $ 400 receipt number ADCDC-7486929) filed by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE. (Attachments: # 1 Summons to USPS, # 2 Summons to US Attorney's Office, # 3 Summons to Louis DeJoy, # 4 Summons to Attorney General, # 5 Civil Cover Sheet)(Zieve, Allison) (Entered: 08/20/2020)
2 LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (Zieve, Allison) (Entered: 08/20/2020)
Case Assigned to Judge Tanya S. Chutkan. (zmd) (Entered: 08/20/2020)
3 SUMMONS (4) Issued Electronically as to LOUIS DEJOY, UNITED STATES POSTAL SERVICE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice and Consent) (zmd) (Entered: 08/20/2020)
4 NOTICE of Appearance by Samuel Spital on behalf of NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (Spital, Samuel) (Entered: 08/20/2020)
5 NOTICE OF RELATED CASE by All Plaintiffs. Case related to Case No. 20-2340. (Zieve, Allison) (Entered: 08/25/2020)
6 NOTICE OF RELATED CASE by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE. Case related to Case No. 20-2262. (Zieve, Allison) (Entered: 08/25/2020)
7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 8/27/2020. Answer due for ALL FEDERAL DEFENDANTS by 10/26/2020. (Zieve, Allison) (Entered: 09/01/2020)
8 MOTION for Preliminary Injunction by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (Attachments:

09/01/2020 09/01/2020 09/01/2020
09/01/2020
09/02/2020 09/02/2020 09/04/2020
09/04/2020

# 1 Memorandum in Support, # 2 Declaration Declaration of Carmen Watkins, # 3 Declaration Declaration of Earl Graham, # 4 Text of Proposed Order, # 5 Certificate of Service)(Zieve, Allison) (Entered: 09/01/2020)
9 NOTICE of Appearance by Joseph Evan Borson on behalf of UNITED STATES POSTAL SERVICE (Borson, Joseph) (Entered: 09/01/2020)
10 Case directly reassigned to Judge Emmet G. Sullivan as related. Judge Tanya S. Chutkan is no longer assigned to the case. (ztnr) (Entered: 09/01/2020)
MINUTE ORDER. The Court, sua sponte, directs the parties to show cause why this action should not be consolidated as related with Richardson v. Trump, 20-2262; State of New York v. Trump, 20-2340; and Vote Forward v. DeJoy, 20-2405 by no later than September 4, 2020 at 12:00 PM. See Fed. R. Civ. P. 42(a) (permitting the court to consolidate actions "involv[ing] a common question of law or fact"); Local Civ. R. 40.5(a)(3) (defining related civil actions). Signed by Judge Emmet G. Sullivan on 9/1/2020. (lcegs3) (Entered: 09/01/2020)
MINUTE ORDER. In view of 8 motion for preliminary injunction, the parties shall file a joint status report by no later than September 8, 2020 at 12:00 PM with recommendations for further proceedings, including, inter alia, (1) whether the National Association for the Advancement of Colored People's ("NAACP") motion for a preliminary injunction should be consolidated with the merits under Federal Rule of Civil Procedure 65; and (2) recommendations for further proceedings including, if necessary, a briefing schedule for NAACP's motion for a preliminary injunction. Signed by Judge Emmet G. Sullivan on 9/1/2020. (lcegs3) (Entered: 09/01/2020)
Set/Reset Deadlines: Joint Status Report due no later than 12:00PM on 9/8/2020. (mac) (Entered: 09/02/2020)
Set/Reset Deadlines: Parties Show Cause due no later than 12:00PM on 9/4/2020. (mac) (Entered: 09/02/2020)
11 RESPONSE TO ORDER TO SHOW CAUSE by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE re Order,, to show cause why this action should not be consolidated filed by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE. (Zieve, Allison) (Entered: 09/04/2020)
12 NOTICE of Appearance by Kuntal Virendra Cholera on behalf of All Defendants (Cholera, Kuntal) (Main Document 12 replaced on 9/4/2020) (zjf). (Entered: 09/04/2020)

09/04/2020 09/04/2020 09/04/2020 09/05/2020
09/05/2020
09/05/2020 09/08/2020

13 RESPONSE TO ORDER TO SHOW CAUSE by LOUIS DEJOY, UNITED STATES POSTAL SERVICE re Order,, filed by LOUIS DEJOY, UNITED STATES POSTAL SERVICE. (Cholera, Kuntal) (Entered: 09/04/2020)
14 STANDING ORDER: The parties are directed to read the attached Standing Order Governing Civil Cases Before Judge Emmet G. Sullivan in its entirety upon receipt. The parties are hereby ORDERED to comply with the directives in the attached Standing Order. Signed by Judge Emmet G. Sullivan on 09/04/20. (Attachment: # 1 Exhiibit 1) (mac) (Entered: 09/04/2020)
15 Joint MOTION for Protective Order by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Text of Proposed Order)(Borson, Joseph) (Entered: 09/04/2020)
MINUTE ORDER. It is hereby ORDERED that by September 10, 2020, Plaintiff shall deliver to Chambers three printed courtesy copies of 8 Plaintiff's motion for preliminary injunction. The parties may deliver their courtesy copies via overnight mail or by hand delivery to the Courthouse loading dock located at the corner of 3rd and C Streets, N.W. The courtesy copies must include the headers added by the Case Management/Electronic Case Files (CM/ECF) System and be submitted in binders, three-hole punched, with single-sided pages. All exhibits shall be tabbed and indexed for ease of reference. The parties shall deliver to Chambers three courtesy copies of any future filing, including exhibits, in connection with 8 motion for preliminary injunction. Signed by Judge Emmet G. Sullivan on 9/5/2020. (lcegs3) (Entered: 09/05/2020)
MINUTE ORDER. In view of 11 and 13 responses to order to show cause, as well as the responses from parties in Richardson v. Trump, 202262; State of New York v. Trump, 20-2340; and Vote Forward v. DeJoy, 20-2405, the Court shall not consolidate the cases as related pursuant to Federal Rule of Civil Procedure 42(a) and Local Civil Rule 40.5(a)(3). It is ORDERED that the parties shall coordinate schedules for discovery purposes to the extent possible. Signed by Judge Emmet G. Sullivan on 9/5/2020. (lcegs3) (Entered: 09/05/2020)
16 MINUTE ORDER granting 15 joint motion for entry of a protective order. Signed by Judge Emmet G. Sullivan on 9/5/2020. (lcegs3) (Entered: 09/05/2020)
17 Joint STATUS REPORT by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE. (Zieve, Allison) (Entered: 09/08/2020)

09/08/2020
09/09/2020 09/09/2020 09/09/2020 09/10/2020 09/10/2020 09/10/2020 09/11/2020

18 MOTION for Leave to File Amici Curiae Brief in Support of Plaintiff by RICHARD BLUMENTHAL, CORY A. BOOKER, SHERROD BROWN, TOM CARPER, MAZIE K. HIRONO, AMY KLOBUCHAR, EDWARD J. MARKEY, Jeffrey A. Merkley, JACK REED, BERNARD SANDERS, JEANNE SHAHEEN, ELIZABETH WARREN, SHELDON WHITEHOUSE, RON WYDEN (Attachments: # 1 Exhibit Proposed Brief of Members of Congress as Amici Curiae in Support of Plaintiff, # 2 Text of Proposed Order)(Gorod, Brianne) (Entered: 09/08/2020)
MINUTE ORDER. In view of 17 joint status report, the parties shall adhere to the following briefing schedule on 8 Plaintiff's motion for preliminary injunction: (1) Defendants shall file their opposition by September 11, 2020 at 12:00 PM; and (2) Plaintiff shall file its reply by no later than September 16, 2020. Signed by Judge Emmet G. Sullivan on 9/9/2020. (lcegs3) (Entered: 09/09/2020)
MINUTE ORDER granting 18 motion for leave to file amici curiae brief by MEMBERS OF CONGRESS. Signed by Judge Emmet G. Sullivan on 9/9/2020. (lcegs3) (Entered: 09/09/2020)
22 AMICUS BRIEF by RICHARD BLUMENTHAL, CORY A. BOOKER, SHERROD BROWN, TOM CARPER, MAZIE K. HIRONO, AMY KLOBUCHAR, EDWARD J. MARKEY, JEFFREY A. MERKLEY, JACK REED, BERNARD SANDERS, JEANNE SHAHEEN, ELIZABETH WARREN, SHELDON WHITEHOUSE, RON WYDEN. (zjf) (Entered: 09/13/2020)
Set/Reset Deadlines: Defendants Opposition due no later than 12:00PM on 9/11/2020. Plaintiff Reply due by 9/16/2020. (mac) (Entered: 09/10/2020)
19 NOTICE of Appearance by Douglas N. Letter on behalf of UNITED STATES HOUSE OF REPRESENTATIVES (Letter, Douglas) (Entered: 09/10/2020)
20 Unopposed MOTION for Leave to File Amicus Curiae Brief in Support of Plaintiff by UNITED STATES HOUSE OF REPRESENTATIVES (Attachments: # 1 Exhibit Proposed Brief of U.S. House of Representatives as Amicus Curiae in Support of Plaintiff, # 2 Text of Proposed Order)(Letter, Douglas) (Entered: 09/10/2020)
21 Memorandum in opposition to re 8 MOTION for Preliminary Injunction filed by LOUIS DEJOY, UNITED STATES POSTAL SERVICE. (Attachments: # 1 Exhibit 1-15, # 2 Declaration (Barber, Citron, Curtis), # 3 Declaration (Colin, Couch, DeChambeau, Glass, Prokity, Vo), # 4 Text of Proposed Order)(Borson, Joseph) (Entered: 09/11/2020)

09/15/2020
09/15/2020 09/16/2020 09/16/2020 09/16/2020
09/18/2020 09/22/2020 09/22/2020 09/22/2020 09/27/2020

23 Consent MOTION for Leave to File Supplemental Declarations in Support of Motion for a Preliminary Injunction by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (Attachments: # 1 Text of Proposed Order)(Zieve, Allison) (Entered: 09/15/2020)
24 Unopposed MOTION for Leave to File Supplemental Declarations by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Declaration Cintron (Supp.), # 2 Declaration Curtis (Supp.), # 3 Text of Proposed Order)(Borson, Joseph) (Entered: 09/15/2020)
MINUTE ORDER granting 24 unopposed motion to file supplemental declarations. Signed by Judge Emmet G. Sullivan on 9/16/2020. (lcegs3) (Entered: 09/16/2020)
MINUTE ORDER granting 23 unopposed motion to file supplemental declarations. Signed by Judge Emmet G. Sullivan on 9/16/2020. (lcegs3) (Entered: 09/16/2020)
25 REPLY to opposition to motion re 8 MOTION for Preliminary Injunction filed by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE. (Attachments: # 1 Declaration of Allison Zieve, # 2 Declaration (Second) of Earl Graham)(Zieve, Allison) (Entered: 09/16/2020)
26 NOTICE OF SUPPLEMENTAL AUTHORITY by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (Zieve, Allison) (Entered: 09/18/2020)
27 NOTICE OF SUPPLEMENTAL AUTHORITY by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (Zieve, Allison) (Entered: 09/22/2020)
MINUTE ORDER granting 20 motion for leave to file amicus curiae brief in support of Plaintiff by UNITED STATES HOUSE OF REPRESENTATIVES. Signed by Judge Emmet G. Sullivan on 9/22/2020. (lcegs3) (Entered: 09/22/2020)
28 AMICUS BRIEF by UNITED STATES HOUSE OF REPRESENTATIVES. (zjf) (Entered: 09/25/2020)
29 NOTICE of Supplemental Materials by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit A Supplemental Operating Instructions, # 2 Exhibit B - Stand-Up Talk, # 3 Exhibit C - Additional Election-Mail Resources)(Borson, Joseph) (Entered: 09/27/2020)

09/30/2020 10/10/2020 10/10/2020 10/22/2020 10/22/2020 10/22/2020
10/22/2020 10/22/2020
10/22/2020 10/23/2020

30 NOTICE OF SUPPLEMENTAL AUTHORITY by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (Zieve, Allison) (Entered: 09/30/2020)
31 ORDER granting 8 Motion for Preliminary Injunction. Signed by Judge Emmet G. Sullivan on 10/10/2020. (lcegs1) (Entered: 10/10/2020)
32 MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on 10/10/2020. (lcegs1) (Entered: 10/10/2020)
33 NOTICE of Appearance by John Robinson on behalf of All Defendants (Robinson, John) (Entered: 10/22/2020)
34 Unopposed MOTION for Extension of Time to File Answer re 1 Complaint, by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Text of Proposed Order)(Robinson, John) (Entered: 10/22/2020)
35 Emergency MOTION to Enforce And Monitor Compliance with Preliminary Injunction by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit Index, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E, # 9 Exhibit F, # 10 Exhibit G, # 11 Exhibit H, # 12 Exhibit I, # 13 Exhibit J, # 14 Exhibit K)(Spital, Samuel). Added MOTION to Expedite on 10/23/2020 (znmw). (Entered: 10/22/2020)
MINUTE ORDER granting 34 unopposed motion for extension of time to file answer. Defendants shall answer or otherwise respond to Plaintiffs' Complaint by no later than December 10, 2020. Signed by Judge Emmet G. Sullivan on 10/22/2020. (lcegs3) (Entered: 10/22/2020)
MINUTE ORDER. In view of 35 emergency motion to enforce and monitor compliance with preliminary injunction, Defendants are directed to file their response to the motion by no later than October 23, 2020 at 3:00 PM. Signed by Judge Emmet G. Sullivan on 10/22/2020. (lcegs3) (Entered: 10/22/2020)
Set/Reset Deadlines: Defendant Answer Or Otherwise Response To The Complaint due by 10/10/2020, Defendants Response To The Motion due no later than 3:00PM on 10/23/2020 (mac) (Entered: 10/22/2020)
36 Memorandum in opposition to re 35 Emergency MOTION to Enforce And Monitor Compliance with Preliminary Injunction MOTION to Expedite filed by LOUIS DEJOY, UNITED STATES POSTAL SERVICE. (Attachments: # 1 Exhibit A - I)(Borson, Joseph) (Entered: 10/23/2020)

10/23/2020
10/26/2020 10/26/2020 10/26/2020
10/26/2020 10/27/2020 10/27/2020
10/27/2020 10/27/2020

MINUTE ORDER. In view of 36 opposition to the emergency motion to enforce and monitor compliance with the preliminary injunction, Plaintiff shall file its reply by no later than October 26, 2020 at 12:00 PM. It is FURTHER ORDERED that a motion hearing is scheduled for October 27, 2020 at 11:00 AM via VIDEO TELECONFERENCE (VTC). The parties shall contact Mr. Mark Coates, the Courtroom Deputy Clerk, for the dial-in information. Signed by Judge Emmet G. Sullivan on 10/23/2020. (lcegs3) (Entered: 10/23/2020)
Set/Reset Deadlines/Hearings: Motion Hearing set for 10/27/2020 at 11:00 AM in Telephonic/VTC before Judge Emmet G. Sullivan. Plaintiffs Reply due no later than 12:00PM on 10/27/20 (mac) (Entered: 10/26/2020)
37 REPLY to opposition to motion re 35 Emergency MOTION to Enforce And Monitor Compliance with Preliminary Injunction MOTION to Expedite filed by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE. (Zieve, Allison) (Entered: 10/26/2020)
MINUTE ORDER. In view of 37 Plaintiff's reply brief, in which Plaintiff requests for the first time that the Court order Defendants to take certain additional actions to comply with the Court's Order, ECF No. 31, Plaintiff shall file a revised proposed order by no later than October 27, 2020 at 8:00 AM setting out the precise relief it seeks. Signed by Judge Emmet G. Sullivan on 10/26/2020. (lcegs3) (Entered: 10/26/2020)
38 NOTICE of Proposed Order by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE re Order, (Spital, Samuel) (Entered: 10/26/2020)
Set/Reset Deadlines: Plaintiffs Revised Proposed Order due no later than 8:00AM on 10/27/20. (mac) (Entered: 10/27/2020)
Minute Entry for proceedings held before Judge Emmet G. Sullivan: Motion Hearing held on 10/27/2020. Until Further Notice, The Court Will Have A Daily Hearing at 3:00PM. Proposed Revised Or Competing Order due no later than 2:30PM on 10/27/2020. Hearing is set for 10/28/2020 at 3:00 PM in Telephonic/VTC before Judge Emmet G. Sullivan. (Court Reporter SARA WICK.) (mac) (Entered: 10/27/2020)
39 NOTICE of Proposed Order (Joint) by LOUIS DEJOY, UNITED STATES POSTAL SERVICE re Motion Hearing,, Set Deadlines/Hearings, (Borson, Joseph) (Entered: 10/27/2020)
MINUTE ORDER granting 35 emergency motion to enforce and monitor compliance with preliminary injunction. It is hereby ORDERED

that by no later than 9:00 AM on October 28, 2020, Defendants shall issue a one-page notice to Area Vice Presidents, Managers of Operations Support, and any other United States Postal Service ("USPS") personnel who were previously informed about the guidelines issued on July 14, 2020, by USPS Vice President of Logistics, Robert Cintron, regarding the use of late and extra trips: (1) "The guidelines issued on July 14, 2020, by USPS Vice President of Logistics, Robert Cintron, regarding the use of late and extra trips are rescinded;" and (2) "USPS personnel are instructed to perform late and extra trips to the maximum extent necessary to increase on-time mail deliveries, particularly for Election Mail. To be clear, late and extra trips should be performed to the same or greater degree than they were performed prior to July 2020 when doing so would increase on-time mail deliveries. Any prior communication that is inconsistent with this instruction should be disregarded." It is FURTHER ORDERED that by no later than 9:00 AM on October 29, 2020, Defendants shall issue a one-page notice to, or deliver a Stand-Up Talk to, all USPS personnel who may have job responsibilities related in any way to late and extra trips, stating that: "Late and extra trips will be approved to the maximum extent necessary to increase on-time mail deliveries, particularly for Election Mail. Any prior communication that is inconsistent with this should be disregarded. To be clear, late and extra trips will be approved to the same or greater degree than they were performed prior to July 2020 when doing so would increase on-time mail deliveries." It is FURTHER ORDERED that by no later than 9:00 AM on October 29, 2020, Defendants shall distribute, in the same form and to the same individuals who were previously advised about the need to "ensure that completed ballots reach the appropriate election official by the state's designated deadline," a list of state-specific statutory ballot receipt deadlines, so that USPS managers and employees can implement the Election Mail guidance that Defendants have recently issued. The parties shall confer and agree on the form and substance of the list. It is FURTHER ORDERED that beginning October 28, 2020 and until further order of the Court, Defendants shall file with the Court by 10:00 AM each day: (1) updated data on the number of extra and late trips performed the preceding day, at the Nation, Area, and District level, including any available data that is specific to Election Mail, to the maximum extent feasible; (2) updated data on the percentage of on-time deliveries at the Nation, Area, and District level, including any available data that is specific to Election Mail to the maximum extent feasible; and (3) any other reports generated after the date of this Order and produced to Congress, other courts, or other litigants. It is FURTHER ORDERED that beginning October 28, 2020 and until further order of the Court, the Court schedules a daily status conference at 3:00 PM via VIDEO TELECONFERENCE. The parties shall contact Mr. Mark Coates, the Courtroom Deputy Clerk, for the dial-in information. Signed by Judge Emmet G. Sullivan on 10/27/2020. (lcegs3) (Entered: 10/27/2020)

10/28/2020 10/28/2020 10/28/2020
10/29/2020 10/29/2020
10/30/2020 10/30/2020 10/30/2020

Set/Reset Deadlines: Defendant Filing due no later than 10:00AM on 10/28/2020. (mac) (Entered: 10/28/2020)
40 NOTICE of Data in Response to Court's October 27, 2020 Order by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Robinson, John) (Entered: 10/28/2020)
Minute Entry for proceedings held before Judge Emmet G. Sullivan: Status Conference held on 10/28/2020. Defendants Data Filing due no later than 10:00AM on 10/29/2020, Status Conference set for 10/29/2020 at 3:00 PM in Telephonic/VTC before Judge Emmet G. Sullivan. (Court Reporter ELIZABETH SAINT-LOTH.) ( (mac) (Entered: 10/28/2020)
41 NOTICE of Data in Response to the Court's October 27, 2020 Order by UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Robinson, John) (Entered: 10/29/2020)
Minute Entry for proceedings held before Judge Emmet G. Sullivan: Status Conference held on 10/28/2020. Parties Will File Proposed Order With The Court. Defendants Data Filing due no later than 10:00AM on 10/30/2020, Status Conference set for 10/30/2020 at 5:00 PM in Telephonic/VTC before Judge Emmet G. Sullivan. (Court Reporter LISA BANKINS.) (mac) (Entered: 10/29/2020)
42 NOTICE of Data in Response to the Court's October 27, 2020 Order by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Robinson, John) (Entered: 10/30/2020)
43 NOTICE of Proposed Order by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (Zieve, Allison) (Entered: 10/30/2020)
MINUTE ORDER. In view of 43 joint proposed order, it is hereby ORDERED that (1) United States Postal Service (USPS) facilities in the following Districts, whose Election Mail processing scores for completed ballots returned by voters (Inbound Ballots) were below 90 percent for at least two days from October 26 to 28, shall implement the "Delivery" measures outlined in USPS's "Extraordinary Measures Memorandum" dated October 20, 2020 unless the implementation of any of the extraordinary measures, at a district or facility level, would create a significant risk of reducing the timely delivery of Inbound Ballots: Alabama, Alaska, Appalachian, Atlanta, Central Pennsylvania, Colorado/Wyoming, Detroit, Ft. Worth, Greater Indiana, Greater Michigan, Greater S. Carolina, Greensboro, Gulf Atlantic, Kentuckiana, Lakeland, Louisiana, Mid-Carolinas, Mississippi, Northern New

England, Oklahoma, Rio Grande, and Triboro. Defendants shall promptly communicate this requirement to the relevant managerial and supervisory personnel within these Districts. (2) It is FURTHER ORDERED that Defendants shall provide Plaintiffs available data from the nationwide survey of "extraordinary measures" being undertaken for Election Mail at USPS facilities, as it becomes available during the day on October 30, 2020. (3) It is FURTHER ORDERED that beginning October 30, 2020 and until further order of the Court, by 3:00 PM each day, Defendants shall file with the Court a document explaining, for each USPS District whose Election Mail processing scores for Inbound Ballots were below 90 percent on each of the previous two days or below 80 percent on the previous day, Defendants' understanding, based on all reasonably available information, of potential explanations for the current level of service and any corrective measures that are now being implemented. (4) It is FURTHER ORDERED that on October 30, 2020, Defendants shall make a USPS representative with expertise in postal operations available to speak with Plaintiffs and at the Conference before the Court to discuss and answer questions about the Postal Service's current plans and processes as they relate to the processing of Election Mail. (5) It is FURTHER ORDERED that beginning October 30, 2020, and until further order of the Court, Defendants shall file with the Court data by 10:00 AM each day (except for October 30, 2020, in which case it shall be filed at the earliest reasonably available time and, in any event, no later than 3:00 PM) data on the absolute number of Inbound Ballots and Outbound Ballots captured in the Election Mail processing scores data produced pursuant to this Court's October 27, 2020 Minute Order. (6) It is FURTHER ORDERED that beginning October 30, 2020, and until further order of the Court, Defendants shall provide to Plaintiffs by 11:00 AM each day native versions of the excel files of service performance data produced pursuant to this Court's October 27, 2020 Minute Order. (7) It is FURTHER ORDERED that at the conference before the Court at 5:00 PM on October 30, 2020, Defendants shall make a USPS representative with expertise in the data processing scores for Election Mail that USPS is producing, including expertise with respect to the data and issues identified in paragraphs 3 through 5 above, available to answer questions from the parties and the Court about the data. This representative shall also be available to describe and answer questions related to: (a) the methodology used to calculate processing scores for "Inbound Ballots," "Outbound Ballots," and "Outbound Non-Ballot Election Mail," as those terms are used in Defendants' submission; and (b) a detailed and specific explanation of those reasons, if any, why Defendants contend those processing scores are unreliable. Signed by Judge Emmet G. Sullivan on 10/30/2020. (lcegs3) (Entered: 10/30/2020)

10/30/2020 10/30/2020 10/30/2020
10/31/2020
10/31/2020 10/31/2020 10/31/2020 10/31/2020
10/31/2020 10/31/2020

44 NOTICE of Data in Response to the Court's October 30, 2020 Order by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Robinson, John) (Entered: 10/30/2020)
45 NOTICE of Reports in Response to the Court's October 27, 2020 Order by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Robinson, John) (Entered: 10/30/2020)
Minute Entry for proceedings held before Judge Emmet G. Sullivan: Evidentiary Hearing held on 10/30/2020. Evidentiary Hearing Will Resume on 10/31/2020 at 10:00 AM in Telephonic/VTC before Judge Emmet G. Sullivan. (Court Reporter LISA BANKINS.) (mac) (Entered: 10/31/2020)
MINUTE ORDER. In view of the discussion at the October 30, 2020 status conference regarding allegations of a backlog of Election Mail at a Miami-Dade post office, Defendants shall be prepared to provide an update on the situation during the proceeding on October 31, 2020 at 10:00 AM. Signed by Judge Emmet G. Sullivan on 10/31/2020. (lcegs3) (Entered: 10/31/2020)
46 Joint STATUS REPORT by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE. (Zieve, Allison) (Entered: 10/31/2020)
47 NOTICE of Data in Response to Court's Orders of October 27, 2020 and October 30, 2020 by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Robinson, John) (Entered: 10/31/2020)
48 Joint STATUS REPORT by LOUIS DEJOY, UNITED STATES POSTAL SERVICE. (Borson, Joseph) (Entered: 10/31/2020)
MINUTE ORDER. In view of 48 joint status report, a status conference is scheduled for October 31, 2020 at 3:00 PM via VIDEO TELECONFERENCE. The parties shall contact Mr. Mark Coates, the Courtroom Deputy Clerk, for the dial-in information. Signed by Judge Emmet G. Sullivan on 10/31/2020. (lcegs3) (Entered: 10/31/2020)
49 NOTICE in Response to the Court's October 30, 2020 Order by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1)(Robinson, John) (Entered: 10/31/2020)
Minute Entry for proceedings held before Judge Emmet G. Sullivan: Status Conference held on 10/31/2020. (Court Reporter LISA BANKINS.) (mac) (Entered: 10/31/2020)

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Minute Entry for proceedings held before Judge Emmet G. Sullivan: Evidentiary Hearing held on 10/31/2020. Parties Will Submit A Proposed Order To The Court. Status Conference set for 11/1/2020 at 3:00 PM in Telephonic/VTC before Judge Emmet G. Sullivan. (Court Reporter LISA BANKINS.) (mac) (Entered: 10/31/2020)
50 NOTICE of Proposed Order by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (Attachments: # 1 Text of Proposed Order)(Zieve, Allison) (Entered: 10/31/2020)
51 NOTICE in Response to Proposed Order by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit A)(Cholera, Kuntal) (Entered: 11/01/2020)
52 REPLY re 50 Notice of Proposed Order, 51 Notice (Other) filed by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE. (Attachments: # 1 Exhibit Excerpt of transcript, # 2 Text of Proposed Order)(Zieve, Allison) (Entered: 11/01/2020)
53 NOTICE of Proposed Order by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A, # 3 Exhibit B)(Cholera, Kuntal) (Entered: 11/01/2020)
54 NOTICE of Data in Response to the Court's October 27, 2020 Order by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Robinson, John) (Entered: 11/01/2020)
55 NOTICE of Data in Response to the Court's October 30, 2020 Order by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1)(Robinson, John) (Entered: 11/01/2020)
56 NOTICE of Hearing Exhibit by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (Attachments: # 1 Exhibit)(Spital, Samuel) (Entered: 11/01/2020)
MINUTE ORDER. In view of the revised proposed order included in 50 Plaintiff's reply brief, Plaintiff shall file a redline comparison of its [50-1] original order and [52-2] revised proposed order. Signed by Judge Emmet G. Sullivan on 11/1/2020. (lcegs3) (Entered: 11/01/2020)
57 NOTICE of Proposed Order (Redlined) by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE re 52 Reply to Document (Zieve, Allison) (Entered: 11/01/2020)
58 NOTICE Pursuant to the Court's October 30, 2020 Order by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1)(Robinson, John) (Entered: 11/01/2020)

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11/01/2020 11/01/2020
11/01/2020 11/01/2020 11/02/2020

Minute Entry for proceedings held before Judge Emmet G. Sullivan: Status Conference held on 11/1/2020. Status Conference set for 11/2/2020 at 03:00 PM in Telephonic/VTC before Judge Emmet G. Sullivan. (Court Reporter LISA BANKINS.) (mac) (Entered: 11/01/2020)
59 NOTICE of Proposed Order and Redline by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (Attachments: # 1 Text of Proposed Order Clean, # 2 Text of Proposed Order Redline, # 3 Exhibit)(Zieve, Allison) (Entered: 11/01/2020)
MINUTE ORDER. In view of the discussion during the November 1, 2020 status conference, it is hereby ORDERED that beginning November 2, 2020 and continuing until November 4, 2020, Defendants shall file by no later than 5:00 PM each day a status update regarding the situation at the Princeton post office in Miami-Dade County regarding allegations of a backlog of Election Mail. Signed by Judge Emmet G. Sullivan on 11/1/2020. (lcegs3) (Entered: 11/01/2020)
60 NOTICE of Proposed Order and Intent to Confer by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Redline)(Cholera, Kuntal) (Entered: 11/01/2020)
MINUTE ORDER. In view of 59 Plaintiff's notice of proposed order and 60 Defendants' notice of proposed order and intent to confer, the parties are directed to submit a joint proposed order by no later than 7:30 PM. If the parties are unable to reach an agreement, Defendants shall explain in comments to Plaintiff's proposed order their grounds for disagreement. Signed by Judge Emmet G. Sullivan on 11/1/2020. (lcegs3) (Entered: 11/01/2020)
61 NOTICE of Proposed Order by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (Attachments: # 1 Exhibit)(Spital, Samuel) (Entered: 11/01/2020)
62 ORDER. Signed by Judge Emmet G. Sullivan on 11/1/2020. (lcegs3) (Entered: 11/01/2020)
63 NOTICE of Data in Response to the Court's October 27, 2020 and October 30, 2020 Orders by LOUIS DEJOY, UNITED STATES HOUSE OF REPRESENTATIVES (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Robinson, John) (Entered: 11/02/2020)

11/02/2020 11/02/2020
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11/03/2020

64 NOTICE Pursuant to the Court's October 30, 2020 Order by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1)(Robinson, John) (Entered: 11/02/2020)
Minute Entry for proceedings held before Judge Emmet G. Sullivan: Status Conference held on 11/2/2020. Status Conference set for 11/3/2020 at 11:00 AM in Telephonic/VTC before Judge Emmet G. Sullivan. (Court Reporter LISA BANKINS.) (mac) (Entered: 11/02/2020)
65 NOTICE of Defendants' Status Update Regarding the Princeton Post Office by LOUIS DEJOY, UNITED STATES POSTAL SERVICE re Order, (Borson, Joseph) (Entered: 11/02/2020)
66 NOTICE of Data in Response to the Court's October 27, 2020 and October 30, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Robinson, John) (Entered: 11/03/2020)
67 MOTION for Order of Further Relief by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (Attachments: # 1 Text of Proposed Order, # 2 Exhibit)(Zieve, Allison) (Entered: 11/03/2020)
68 NOTICE of Proposed Order by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE re 67 MOTION for Order of Further Relief (Zieve, Allison) (Entered: 11/03/2020)
Minute Entry for proceedings held before Judge Emmet G. Sullivan: Status Conference held on 11/3/2020. Status Conference set for 11/4/2020 at 12:00 PM in Telephonic/VTC before Judge Emmet G. Sullivan. (Court Reporter LISA BANKINS.) (mac) (Entered: 11/03/2020)
MINUTE ORDER granting 67 Motion for Further Relief. It is hereby ORDERED that, beginning no later than 12:30 PM EST today, Defendants shall send Postal Service inspectors or their designees, to processing facilities in the following Districts and direct them to sweep the facilities between 12:30 PM EST and 3:00 PM EST to ensure that no ballots have been held up and that any identified ballots are immediately sent out for delivery: Central Pennsylvania, Philadelphia, Detroit, Colorado/Wyoming, Atlanta, Houston, Alabama, Northern New England, Greater South Carolina, South Florida, Lakeland, and Arizona. Alternatively, Defendants may satisfy this paragraph if inspectors from the USPS Office of Inspector General ("OIG") are available to oversee the sweep of processing facilities described in the previous sentence. No later than 4:30 PM EST today, Defendants shall file a status update certifying compliance with this paragraph upon confirming, in the most

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11/04/2020

efficient manner available, that sweeps were conducted and that no ballots were left behind. To be clear, the inspectors themselves need not provide any certifications to the Court. It is FURTHER ORDERED that by no later than 4:30 PM EST today, Defendants shall identify the 27 processing centers at which the OIG was onsite and the list of facilities that the Postal Inspectors have observed since October 19, 2020, unless OIG raises an objection to the identification of these sites. Signed by Judge Emmet G. Sullivan on 11/3/2020. (lcegs3) (Entered: 11/03/2020)
69 NOTICE Pursuant to the Court's October 30, 2020 Order by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1)(Robinson, John) (Entered: 11/03/2020)
70 STATUS REPORT Response to Court's Nov. 3, 2020 Order by LOUIS DEJOY, UNITED STATES POSTAL SERVICE. (Borson, Joseph) (Entered: 11/03/2020)
71 MOTION for Telephone Conference (Emergency Motion) by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (Spital, Samuel) (Entered: 11/03/2020)
72 STATUS REPORT Regarding Princeton Post Office by LOUIS DEJOY, UNITED STATES POSTAL SERVICE. (Borson, Joseph) (Entered: 11/03/2020)
MINUTE ORDER. In view of 70 Defendants' response to the November 3, 2020 Court order, the Court understands that "'all clears' [or facility sweeps] and successful certifications were conducted at all processing plants this morning by 10 am local time" pursuant to this Court's previous orders. The Court further understands that Postal Inspectors are/will be on site at each processing plant between 4:00 PM and 8:00 PM local time today to conduct the "daily review process" designed "to ensure compliance at the critical period before the polls close." The Court understands "compliance" to mean that the Inspectors will at that time identify and refer Election Mail in staging and non-staging areas to facility managers to resolve as expeditiously as possible. Given the timing, the Court is inclined to let this process continue. Accordingly, the Court DENIES 71 Plaintiff's request for an immediate status conference. Defendants shall be prepared to discuss the apparent lack of compliance with the Court's order at the status conference scheduled for 12:00 PM on November 4, 2020. Signed by Judge Emmet G. Sullivan on 11/3/2020. (lcegs3) (Entered: 11/03/2020)
73 NOTICE of Data in Response to the Court's October 27, 2020 and October 30, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Robinson, John) (Entered: 11/04/2020)

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11/04/2020

74 NOTICE of Further Response to this Court's Nov. 3, 2020 Order by LOUIS DEJOY, UNITED STATES POSTAL SERVICE re Order on Motion for Telephone Conference,,,, (Attachments: # 1 Declaration Brubaker, # 2 Declaration Bray)(Borson, Joseph) (Entered: 11/04/2020)
75 NOTICE of Proposed Order by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (Spital, Samuel) (Entered: 11/04/2020)
MINUTE ORDER. In view of 75 proposed order, it is hereby ORDERED that (1) by no later than 2:00 PM EST/1:00 PM CST today, Defendants shall contact every plant manager overseeing a processing facility in Texas and direct them to: (a) instruct plant employees to undertake an immediate sweep of the facility to identify any inbound ballots postmarked yesterday or earlier, and have such ballots sent out for delivery to local election offices for receipt by 5:00 PM local time; and (b) instruct plant employees to undertake an additional sweep of the facility at 4:00PM EST/3:00 CST today to identify any inbound ballots postmarked yesterday or earlier, and have such ballots sent for delivery to local election offices for receipt by 5:00 PM local time. These instructions should be communicated both by email and orally. (2) It is FURTHER ORDERED that Defendants shall further instruct plant managers to record the number of ballots they identify during these sweeps and to describe the steps taken to ensure their delivery at local election offices for receipt by 5:00 PM local time. (3) It is FURTHER ORDERED that by no later than 2:00 PM EST/1:00 CST today, Defendants shall send an email to the managers of all post offices in Texas reminding them that any local ballots delivered to the post office yesterday or earlier should bypass the ordinary processing system and sent for delivery to local election offices for receipt by no later than 5:00 PM local time. (4) It is FURTHER ORDERED that by no later than 4:00 PM/3:00 PM EST today, Defendants shall file with the Court a certification that they have complied with paragraphs 1 through 3 above, and they shall summarize the information learned from plant managers as required by paragraph 2 for the first set of sweeps. No later than 10:00 AM tomorrow, Defendants shall file with the Court a summary of the information learned from plant managers as required by paragraph 2 for the second set of sweeps. Signed by Judge Emmet G. Sullivan on 11/4/2020. (lcegs3) (Entered: 11/04/2020)
76 NOTICE of Response to the Court's November 4, 2020 Order by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Robinson, John) (Entered: 11/04/2020)

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11/05/2020 11/05/2020
11/05/2020 11/05/2020

77 NOTICE of Status Update Regarding the Princeton Post Office by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Cholera, Kuntal) (Entered: 11/04/2020)
Minute Entry for proceedings held before Judge Emmet G. Sullivan: Status Conference held on 11/4/2020, Parties Will Submit Proposed Orders. Status Conference set for 11/5/2020 at 11:00 AM in Telephonic/VTC before Judge Emmet G. Sullivan. (Court Reporter LISA BANKINS.) (mac) (Entered: 11/04/2020)
78 NOTICE of Summary of Information Learned from Texas Plant Managers by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Robinson, John) (Entered: 11/04/2020)
79 NOTICE of FIling of Hearing Exhibit by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (Attachments: # 1 Exhibit)(Zieve, Allison) (Entered: 11/04/2020)
MINUTE ORDER. In view of the discussion during today's status conference regarding additional data reports and other information Defendants agreed to produce to Plaintiff, it is hereby ORDERED that Defendants shall file on the public docket all data reports and other information produced to Plaintiff until further order of the Court. Signed by Judge Emmet G. Sullivan on 11/4/2020. (lcegs3) (Entered: 11/04/2020)
80 NOTICE of Data in Response to the Court's October 27, 2020 and October 30, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Robinson, John) (Entered: 11/05/2020)
81 NOTICE of Data and Other Information Produced to Plaintiffs by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23)(Robinson, John) (Entered: 11/05/2020)
82 NOTICE of Proposed Order by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (Spital, Samuel) (Entered: 11/05/2020)
83 NOTICE of Proposed Order by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (Spital, Samuel) (Entered: 11/05/2020)

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Minute Entry for proceedings held before Judge Emmet G. Sullivan: Status Conference held on 11/5/2020. Status Conference set for 11/6/2020 at 11:00 AM in Telephonic/VTC before Judge Emmet G. Sullivan. (Court Reporter LISA BANKINS.) (mac) (Entered: 11/05/2020)
MINUTE ORDER. In view of 83 joint proposed order, the parties are DIRECTED to inform the Court by no later than 2:45 pm today whether they agree with the following change the Court understood to have been recommended to paragraph 2.a. during the status conference conducted today: USPS employees of each facility shall be directed to undertake a sweep of the facility on the morning and again on the afternoon of November 6 to identify all inbound ballots. Signed by Judge Emmet G. Sullivan on 11/5/2020. (lcegs3) (Entered: 11/05/2020)
MINUTE ORDER. In view of 82 joint proposed order, it is hereby ORDERED that all USPS processing facilities that serve a state with an extended ballot receipt deadline shall, until that deadline passes, perform a morning ballot sweep (no later than 10 a.m., local time) and a mid-tolate afternoon ballot sweep that is timed to ensure that any identified local ballots can be delivered that day. Upon completing a sweep, each facility shall report to USPS Headquarters the total number of ballots identified and confirm that those ballots have been expedited for delivery to meet applicable extended state deadlines. Beginning on November 5, 2020, and until further order of the Court, Defendants shall promptly submit to Plaintiffs a single report with the total number of ballots identified through daily sweeps, with one exception: for facilities that are located in states whose ballot receipt deadline is that day, Defendants shall submit the results of those sweeps to Plaintiffs immediately following its receipt of the results of the second sweep at these facilities. Signed by Judge Emmet G. Sullivan on 11/5/2020. (lcegs3) (Entered: 11/05/2020)
84 NOTICE Pursuant to the Court's October 30, 2020 Order by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1)(Robinson, John) (Entered: 11/05/2020)
85 NOTICE Pursuant to the Parties' Joint Proposed Order by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1)(Robinson, John) (Entered: 11/05/2020)
MINUTE ORDER. In view of 83 joint proposed order, it is hereby ORDERED that (1) on November 5, 2020 and November 6, 2020, Defendants shall file before the Court the equivalent information presented in Defendants Summary of Information Learned from Plant Managers (ECF No. 78) for the following United States Postal Service (USPS) districts: Greensboro, Mid-Carolinas, Central Pennsylvania,

11/06/2020 11/06/2020 11/06/2020
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Western Pennsylvania, and Philadelphia Metropolitan. (2) Plant managers and district managers jointly overseeing USPS facilities in Greensboro, Mid-Carolinas, Central Pennsylvania, Western Pennsylvania, and Philadelphia Metropolitan shall coordinate with all local county Boards of Elections in North Carolina or Pennsylvania (the Local Board) to deliver all ballots to the Local Board before 5:00 PM local time in North Carolina or Pennsylvania on November 6, 2020. Such arrangements shall include, at a minimum, the following: (a) USPS employees of each facility shall be directed to undertake a sweep of the facility on the morning and again on the afternoon of November 6 to identify all inbound ballots; (b) the afternoon sweep should be conducted at a time sufficient for the ballots to be delivered to the Local Board for receipt by 5:00 PM local time on November 6, 2020; and (c) plant managers and district managers may implement a hub-and-spoke plan for each county, to the extent that such plan would assist timely delivery of the ballots to the Local Board. (3) No later than 5:00 PM EST today, Defendants shall file before the Court details of the arrangements adopted pursuant to Paragraph 2 of this Order by each USPS district and, to the extent facilities within each USPS district adopt different plans, by each USPS facility. This Order is subject to reconsideration for good cause shown by no later than November 5, 2020. Signed by Judge Emmet G. Sullivan on 11/5/2020. (lcegs3) (Entered: 11/05/2020)
86 NOTICE of Summary of Information Learned from Plant Managers by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1)(Robinson, John) (Entered: 11/06/2020)
87 NOTICE of Data in Response to the Court's October 27, 2020 and October 30, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Robinson, John) (Entered: 11/06/2020)
Minute Entry for proceedings held before Judge Emmet G. Sullivan: Status Conference held on 11/6/2020. Status Conference set for 11/9/2020 at 11:00 AM in Telephonic/VTC before Judge Emmet G. Sullivan. (Court Reporter LISA BANKINS.) (mac) (Entered: 11/06/2020)
MINUTE ORDER. In view of the discussion during the November 6, 2020 status conference, in which the parties informed the Court that they agree with the Court's change to 83 joint proposed order, the Court hereby VACATES its Minute Order of November 5, 2020 directing the parties to inform the Court of whether they agree with the Court's change. Signed by Judge Emmet G. Sullivan on 11/6/2020. (lcegs3) (Entered: 11/06/2020)

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88 NOTICE Pursuant to the Court's October 30, 2020 Order by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1)(Robinson, John) (Entered: 11/06/2020)
89 NOTICE of Proposed Order by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (Attachments: # 1 Text of Proposed Order)(Zieve, Allison) (Entered: 11/06/2020)
90 NOTICE of Proposed Order (Revised) by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (Spital, Samuel) (Entered: 11/06/2020)
MINUTE ORDER. In view of 90 proposed order, it is hereby ORDERED that (1) beginning November 7, 2020, Defendants shall no longer be required to produce daily data on the percentage of on-time deliveries at the Nation, Area, and District level for first class mail and marketing mail, as previously required under the Court's October 27 Order. Instead, Defendants shall produce this data on a weekly basis. (2) It is FURTHER ORDERED that beginning November 7, 2020, Defendants shall no longer be required to produce the following data: (a) Daily data on the percentage of on-time deliveries at the Nation, Area, and District level, for Outbound Ballots and Non-Ballot Election Mail, as previously required under the Courts October 27 Order. Defendants shall continue to produce this data for Inbound Ballots. (b) Daily data on Outbound Ballots and Non-Ballot Election Mail that has received an origination processing scan but does not have a destination processing scan, at the Nation, Area, and District level, as previously required under the Court's Oral Ruling in the October 31 Hearing. Defendants shall continue to produce this data for Inbound Ballots. (c) A document explaining, for each USPS District whose Election Mail processing scores for Inbound Ballots were below 90 percent on each of the previous two days or below 80 percent on the previous day, Defendants' understanding, based on all reasonably available information, of potential explanations for the current level of service and any corrective measures that are now being implemented, as previously required under the Court's October 30 Order. (d) Any other reports generated and produced to Congress, other courts, or litigants, as previously required under the Court's October 27 Order. (3) It is FURTHER ORDERED that beginning November 7, 2020 and, until further order of the Court, Defendants shall include, in the daily report on Inbound Ballot processing scores, information sufficient to show the absolute number Inbound Ballots covered by the processing score for a given District for ballots originating from the District and for ballots destined to the District. Defendants shall include this data retroactive to November 4. (4) It is FURTHER ORDERED that plant managers and district managers jointly overseeing USPS processing facilities that serve Alaska, Illinois, Iowa, Maryland, Mississippi, North Dakota, Ohio, and

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West Virginia shall coordinate with all local Boards of Elections (the "Local Boards") in those states to deliver all ballots to the Local Boards before the relevant extended state ballot receipt deadline. Such arrangements shall include, at a minimum, the following: (a) USPS employees of each processing facility shall be directed to undertake a sweep of the facility on the morning and again on the afternoon of each day between now and the relevant state ballot receipt deadline to identify all inbound ballots. (b) The afternoon sweep on the day of the relevant state ballot receipt deadline should be conducted at a time sufficient to enable delivery of all ballots identified during the sweep to the Local Board for receipt by the deadline. (c) Plant managers and district managers may implement a hub-and-spoke plan for each county, to the extent that such plan would assist timely delivery of the ballots to the Local Board. (5) It is FURTHER ORDERED that no later than 5:00 PM EST on November 9, Defendants shall file before the Court details of the arrangements adopted pursuant to Paragraph 4 of this Order by each USPS district and, to the extent facilities within each USPS district adopt different plans, by each USPS facility. Signed by Judge Emmet G. Sullivan on 11/6/2020. (lcegs3) (Entered: 11/06/2020)
91 NOTICE of Corrected Summary of Information Learned from Plant Managers on November 5, 2020 by LOUIS DEJOY, UNITED STATES POSTAL SERVICE re 86 Notice (Other) (Attachments: # 1 Exhibit 1)(Robinson, John) (Entered: 11/07/2020)
92 NOTICE of Summary of Information Learned from Plant Managers on November 6, 2020 by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Robinson, John) (Entered: 11/07/2020)
93 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 11/07/2020)
94 NOTICE of Data in Response to the Court's October 27, 2020, October 20, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 11/08/2020)
95 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 11/09/2020)

11/09/2020
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Minute Entry for proceedings held before Judge Emmet G. Sullivan: Status Conference held on 11/9/2020. Joint Proposal Of Further Proceedings due no later than 4:00PM on 11/16/2020. Status Conference set for 11/18/2020 at 11:00 AM in Telephonic/VTC before Judge Emmet G. Sullivan. (Court Reporter LISA BANKINS.) (mac) (Entered: 11/09/2020)
96 NOTICE of Details of Arrangements with Local Boards of Elections by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1)(Robinson, John) (Entered: 11/09/2020)
97 NOTICE of Details of Arrangements with Local Boards of Elections (Corrected) by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1 (corrected))(Robinson, John) (Entered: 11/09/2020)
98 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 11/10/2020)
99 Unopposed MOTION to Stay data and reporting production obligations for November 11, 2020 by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Cholera, Kuntal) (Entered: 11/10/2020)
100 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 11/12/2020)
101 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Robinson, John) (Entered: 11/13/2020)
MINUTE ORDER granting nunc pro tunc 99 unopposed motion to suspend orders requiring data and reporting productions for November 11, 2020. The parties are reminded that under Local Civil Rule 7(c), each motion shall be accompanied by a proposed order. Signed by Judge Emmet G. Sullivan on 11/13/2020. (lcegs3) (Entered: 11/13/2020)
102 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit

11/15/2020 11/16/2020 11/16/2020 11/16/2020 11/17/2020 11/17/2020 11/18/2020 11/19/2020 11/19/2020

2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 11/14/2020)
103 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 11/15/2020)
104 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 11/16/2020)
105 NOTICE of Proposal for Remainder of Litigation by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Text of Proposed Order)(Cholera, Kuntal) (Entered: 11/16/2020)
106 NOTICE of Plaintiff's Proposal for Further Proceedings by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (Attachments: # 1 Exhibit Exhiit 1, # 2 Text of Proposed Order)(Zieve, Allison) (Entered: 11/16/2020)
107 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 11/17/2020)
MINUTE ORDER. In view of the forthcoming Order, the Court hereby cancels the status conference scheduled for November 18, 2020. Signed by Judge Emmet G. Sullivan on 11/17/2020. (lcegs3) (Entered: 11/17/2020)
108 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 11/18/2020)
109 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 11/19/2020)
MINUTE ORDER. In view of 106 Plaintiffs' proposal for further proceedings and 105 Defendants' proposal for further proceedings, it is

11/20/2020 11/20/2020 11/20/2020 11/23/2020 11/23/2020 11/24/2020 11/24/2020

hereby ORDERED that Plaintiffs are granted leave to serve discovery requests consistent with the topics outlined in Plaintiffs' Outline of Discovery Topics, attached as Exhibit 1 to 106 proposal for further proceedings. It is FURTHER ORDERED that the parties shall abide by the following discovery schedule: (1) Plaintiffs shall submit document requests and notice depositions by no later than November 27, 2020; and (2) USPS shall produce its responses and objections by no later than December 3, 2020. Signed by Judge Emmet G. Sullivan on 11/19/2020. (lcegs3) (Entered: 11/19/2020)
110 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Robinson, John) (Entered: 11/20/2020)
Set/Reset Deadlines: Plaintiffs Requests And Notice Depositions due by 11/27/2020. USPS Produce Its Responses And Objections due by 12/03/2020. (mac) (Entered: 11/20/2020)
111 Unopposed MOTION to Suspend Orders Requiring Data and Reporting Productions for November 21, 2020 and November 22, 2020 by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Text of Proposed Order)(Robinson, John) (Entered: 11/20/2020)
112 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 11/23/2020)
MINUTE ORDER granting nunc pro tunc 111 unopposed motion to suspend orders requiring data and reporting productions for November 21, 2020 and November 22, 2020. Signed by Judge Emmet G. Sullivan on 11/23/2020. (lcegs3) (Entered: 11/23/2020)
113 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 11/24/2020)
114 NOTICE of Data and Other Information Produced to Plaintiffs by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18,

11/25/2020 11/25/2020 11/25/2020 11/27/2020 11/30/2020 12/01/2020 12/02/2020

# 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41)(Robinson, John) (Entered: 11/24/2020)
115 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 11/25/2020)
116 Unopposed MOTION to Suspend Orders Requiring Data and Reporting Productions for Thanksgiving and Upcoming Weekends by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Text of Proposed Order)(Robinson, John) (Entered: 11/25/2020)
MINUTE ORDER granting 116 unopposed motion to suspend orders requiring data and reporting productions for Thanksgiving and Upcoming Weekends. Signed by Judge Emmet G. Sullivan on 11/25/2020. (lcegs3) (Entered: 11/25/2020)
117 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 11/27/2020)
118 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 11/30/2020)
119 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 12/01/2020)
120 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 12/02/2020)

12/03/2020 12/04/2020 12/07/2020 12/08/2020 12/08/2020 12/08/2020 12/08/2020 12/09/2020 12/09/2020

121 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020 and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 12/03/2020)
122 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 12/04/2020)
123 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 12/07/2020)
124 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 12/08/2020)
125 Unopposed MOTION for Extension of Time to File Answer re 1 Complaint, by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Text of Proposed Order)(Robinson, John) (Entered: 12/08/2020)
126 MOTION to Clarify the Court's November 4, 2020 Minute Order re Order, by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Text of Proposed Order)(Robinson, John) (Entered: 12/08/2020)
MINUTE ORDER granting 125 unopposed motion for extension of time. Defendants shall answer or otherwise respond to the Complaint by no later than January 15, 2021. Signed by Judge Emmet G. Sullivan on 12/8/2020. (lcegs3) (Entered: 12/08/2020)
127 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 12/09/2020)
Set/Reset Deadlines: Defendant Answer Or Otherwise Response To The Complaint due by 1/16/2021. (mac) (Entered: 12/09/2020)

12/09/2020 12/09/2020
12/10/2020 12/10/2020 12/11/2020 12/14/2020 12/15/2020 12/16/2020

128 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 31 Order on Motion for Preliminary Injunction, 32 Memorandum & Opinion by UNITED STATES POSTAL SERVICE, LOUIS DEJOY. Fee Status: No Fee Paid. Parties have been notified. (Robinson, John) (Entered: 12/09/2020)
MINUTE ORDER granting 126 motion to clarify the Court's November 4, 2020 Minute Order. The Court clarifies that its November 4, 2020 Minute Order requires Defendants to file on the public docket only those data reports and other information that Defendants agreed to produce to Plaintiffs during the November 4, 2020 status conference, and not all future discovery. Signed by Judge Emmet G. Sullivan on 12/9/2020. (lcegs3) (Entered: 12/09/2020)
129 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the appeal was filed by the government re 128 Notice of Appeal to DC Circuit Court. (zjf) (Entered: 12/10/2020)
130 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 12/10/2020)
131 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 12/11/2020)
132 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020 and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 12/14/2020)
133 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 12/15/2020)
134 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit

12/17/2020 12/18/2020 12/18/2020 12/19/2020 12/20/2020 12/21/2020 12/22/2020 12/22/2020

2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 12/16/2020)
135 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 12/17/2020)
136 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 12/18/2020)
USCA Case Number 20-5375 for 128 Notice of Appeal to DC Circuit Court filed by UNITED STATES POSTAL SERVICE, LOUIS DEJOY. (zjf) (Entered: 12/20/2020)
137 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 12/19/2020)
138 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 12/20/2020)
139 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 12/21/2020)
140 NOTICE of Data in Response to the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Robinson, John) (Entered: 12/22/2020)
141 Unopposed MOTION to Modify the Court's October 27, 2020, October 30, 2020, and November 6, 2020 Orders regarding data reporting by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Text of Proposed Order)(Robinson, John) (Entered: 12/22/2020)

12/22/2020
12/23/2020 12/24/2020 01/08/2021 01/12/2021 01/13/2021 01/14/2021

MINUTE ORDER granting 141 unopposed motion to modify the Court's October 27, 2020 and November 6, 2020 Orders. The Court hereby modifies its October 27, 2020 and November 6, 2020 Orders with respect to Defendants' data reporting obligations as follows: Beginning December 23, 2020, Defendants shall produce to Plaintiffs the following data on a daily basis: (1) updated data on the number of extra and late trips performed at the Nation, Area, and District level, (2) updated data on the number of extra and late trips performed for those processing centers that serve Georgia, (3) daily data on the volume and percentage of on-time deliveries of inbound and outbound ballots destined for the relevant Georgia Districts (Atlanta, Gulf Atlantic, and Tennessee), and (4) a report that shows, as of 6 AM on the day of the report, the inbound and outbound Georgia ballots that, as of the time of the report, are still being processed and have not yet received a finalization scan. Defendants shall produce the data to Plaintiffs by 10 AM each day, except that Defendants need not produce any data on December 25-27, 2020 or January 1, 2021. Defendants shall produce the data to Plaintiffs but need not file the data on the public docket. Signed by Judge Emmet G. Sullivan on 12/22/2020. (lcegs3) (Entered: 12/22/2020)
142 NOTICE of Agreement by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (Attachments: # 1 Exhibit Agreement)(Zieve, Allison) (Entered: 12/23/2020)
MINUTE ORDER. In view of 142 notice of agreement, the Court APPROVES the joint agreement as written. The terms presented in the [142-1] Agreement are hereby incorporated by reference into this Order. Signed by Judge Emmet G. Sullivan on 12/24/2020. (lcegs3) (Entered: 12/24/2020)
143 Unopposed MOTION to Suspend Data Reporting for January 9-10, 2021 by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Text of Proposed Order)(Robinson, John) (Entered: 01/08/2021)
MINUTE ORDER granting nunc pro tunc 143 unopposed motion to suspend data reporting for January 9-10, 2021. Signed by Judge Emmet G. Sullivan on 1/12/2021. (lcegs3) (Entered: 01/12/2021)
144 Unopposed MOTION for Extension of Time to File Answer by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Text of Proposed Order)(Cholera, Kuntal) (Entered: 01/13/2021)
MINUTE ORDER granting 144 unopposed motion for extension of time to file answer. Defendants shall answer or otherwise respond to the Complaint by no later than January 22, 2021. Signed by Judge Emmet G. Sullivan on 1/14/2021. (lcegs3) (Entered: 01/14/2021)

01/15/2021 01/15/2021 01/15/2021
01/22/2021 02/05/2021
02/06/2021 02/10/2021 02/10/2021 02/11/2021

Set/Reset Deadlines: Defendant Answer Or Otherwise Response To The Complaint due by 1/22/2021. (mac) (Entered: 01/15/2021)
145 Unopposed MOTION to Modify Defendants' Data Reporting Obligations by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Text of Proposed Order)(Robinson, John) (Entered: 01/15/2021)
MINUTE ORDER granting 145 unopposed motion to modify Defendants' data reporting obligations. It is hereby ORDERED that Defendants need not continue to produce the data identified in the Court's December 22, 2020 Minute Order, except that USPS shall continue to produce updated data on the number of extra and late trips performed at the Nation, Area, and District level on a weekly basis. Signed by Judge Emmet G. Sullivan on 1/15/2021. (lcegs3) (Entered: 01/15/2021)
146 ANSWER to Complaint by LOUIS DEJOY, UNITED STATES POSTAL SERVICE.(Cholera, Kuntal) (Entered: 01/22/2021)
MINUTE ORDER. In view of 146 Answer, the parties shall meet and confer as required by Federal Rule of Civil Procedure 26(f) and Local Civil Rule 16.3. The parties shall file a Meet and Confer Report by no later than March 5, 2021. In addition to the proposed scheduling order as required by Local Civil Rule 16.3, counsel shall include in their report a brief statement of the case. In considering what form of alternative dispute resolution the parties think the case most suited to, counsel are reminded that among their options are mediation, arbitration, early neutral evaluation, summary jury trial, or any other form of alternative dispute resolution which can be tailored to the needs of their case. Signed by Judge Emmet G. Sullivan on 2/5/2021. (lcegs3) (Entered: 02/05/2021)
Set/Reset Deadlines: Meet & Confer Report due by 3/5/2021. (mac) (Entered: 02/06/2021)
147 Consent MOTION to Vacate March 5 Filing Deadline by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE. (Attachments: # 1 Text of Proposed Order)(Zieve, Allison) (Entered: 02/10/2021)
148 MANDATE of USCA as to 128 Notice of Appeal to DC Circuit Court filed by UNITED STATES POSTAL SERVICE, LOUIS DEJOY ; USCA Case Number 20-5375. (Attachments: # 1 USCA Order)(zjf) (Entered: 02/14/2021)
MINUTE ORDER granting 147 consent motion to vacate filing deadline. It is hereby ORDERED that the March 5, 2021 due date for the

03/05/2021
03/15/2021 03/16/2021
03/17/2021 04/08/2021
04/08/2021 04/09/2021 04/16/2021 04/30/2021 05/12/2021

filing of a Meet and Confer Report is VACATED. It is FURTHER ORDERED that Plaintiff shall file its amended complaint by no later than March 5, 2021. Signed by Judge Emmet G. Sullivan on 2/11/2021. (lcegs3) (Entered: 02/11/2021)
149 AMENDED COMPLAINT against All Defendants filed by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE. (Attachments: # 1 Exhibit First Amended Complaint redline)(Zieve, Allison) (Entered: 03/05/2021)
150 Consent MOTION for Extension of Time to File Answer re 149 Amended Complaint by LOUIS DEJOY, UNITED STATES POSTAL SERVICE. (Attachments: # 1 Text of Proposed Order)(Borson, Joseph) (Entered: 03/15/2021)
MINUTE ORDER granting 150 consent motion for extension of time to file answer. Defendants shall answer or otherwise respond to Plaintiff's Amended Complaint by no later than April 9, 2021. Signed by Judge Emmet G. Sullivan on 3/16/2021. (lcegs3) (Entered: 03/16/2021)
Set/Reset Deadlines: Defendant Answer Or Otherwise Response To The Complaint due by 4/9/2021. (mac) (Entered: 03/17/2021)
151 Unopposed MOTION for Extension of Time to File Answer re 149 Amended Complaint by LOUIS DEJOY, UNITED STATES POSTAL SERVICE. (Attachments: # 1 Text of Proposed Order)(Borson, Joseph) (Entered: 04/08/2021)
MINUTE ORDER granting 151 unopposed motion for extension of time. Defendants shall answer or otherwise respond to the Amended Complaint by no later than April 16, 2021. Signed by Judge Emmet G. Sullivan on 4/8/2021. (lcegs3) (Entered: 04/08/2021)
Set/Reset Deadlines: Defendant Answer Or Otherwise Response To The Complaint due by 4/16/2021, (mac) (Entered: 04/09/2021)
152 ANSWER to 149 Amended Complaint by LOUIS DEJOY, UNITED STATES POSTAL SERVICE.(Borson, Joseph) (Entered: 04/16/2021)
153 NOTICE of Extra Trip Process by LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Declaration of Earl D. Randel)(Borson, Joseph) (Entered: 04/30/2021)
154 MOTION to Modify or Clarify Preliminary Injunction by LOUIS DEJOY, UNITED STATES POSTAL SERVICE. (Attachments: # 1 Memorandum in Support, # 2 Declaration Earl D. Randel (Supp), # 3 Exhibit Late and Extra Trips Report, # 4 Text of Proposed Order)(Borson, Joseph). Added MOTION to Clarify on 5/13/2021 (zjf). (Entered: 05/12/2021)

05/17/2021 05/20/2021 05/20/2021
05/21/2021 05/24/2021 05/25/2021 05/26/2021

155 MEET AND CONFER STATEMENT. (Attachments: # 1 Text of Proposed Order)(Borson, Joseph) (Entered: 05/17/2021)
156 Memorandum in opposition to re 154 MOTION to Modify or Clarify Preliminary Injunction MOTION to Clarify filed by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Spital, Samuel) (Entered: 05/20/2021)
MINUTE ORDER. In view of 155 meet and confer statement, it is hereby ORDERED that the parties shall dispense with the initial disclosures required by Federal Rule of Civil Procedure 26(a)(1). The parties shall comply with the following discovery process: (1) The parties shall first informally exchange information in an attempt to narrow, if not eliminate, factual disputes. The parties shall expect to complete this informal process by June 15, 2021, subject to modification or extension by the agreement of the parties. (2) If factual questions remain after the completion of the informal process described above, the parties may propound written discovery, including requests for production of documents. The parties may also notice depositions. The serving party shall serve discovery within two weeks of the close of the informal attempt to agree to factual issues described above. The responding party shall respond within 30 days thereafter. The parties shall complete all discovery by August 15, 2021. The parties shall comport with the limitations on formal discovery set forth in the Federal Rules. The parties shall propose a briefing schedule within seven days after either the close of discovery or the conclusion of the informal exchange of information described above should the parties deem formal discovery to be unnecessary. Signed by Judge Emmet G. Sullivan on 5/20/2021. (lcegs3) (Entered: 05/20/2021)
Set/Reset Deadlines: Discovery due by 8/15/2021. (mac) (Entered: 05/21/2021)
157 Consent MOTION for Extension of Time to File Response/Reply as to 154 MOTION to Modify or Clarify Preliminary Injunction MOTION to Clarify by LOUIS DEJOY, UNITED STATES POSTAL SERVICE. (Attachments: # 1 Text of Proposed Order)(Robinson, John) (Entered: 05/24/2021)
MINUTE ORDER granting 157 consent motion for extension of time to file. Defendants shall file their reply brief by no later than June 3, 2021. Signed by Judge Emmet G. Sullivan on 5/25/2021. (lcegs3) (Entered: 05/25/2021)
Set/Reset Deadlines: Defendant Reply Brief due by 6/3/2021. (mac) (Entered: 05/26/2021)

06/01/2021 06/01/2021 06/02/2021

158 Consent MOTION for Extension of Time to File Response/Reply as to 154 MOTION to Modify or Clarify Preliminary Injunction MOTION to Clarify by LOUIS DEJOY, UNITED STATES POSTAL SERVICE. (Attachments: # 1 Text of Proposed Order)(Robinson, John) (Entered: 06/01/2021)
MINUTE ORDER granting 158 consent motion for extension of time to file response. Defendants shall file their reply brief by no later than June 9, 2021. Signed by Judge Emmet G. Sullivan on 6/1/2021. (lcegs3) (Entered: 06/01/2021)
Set/Reset Deadlines: Defendant Reply Brief due by 6/9/2021. (mac) (Entered: 06/02/2021)

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 Case 1:20-cv-02295-EGS Document 1 Filed 08/20/20 Page 1 of 27

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE,
4805 Mount Hope Drive Baltimore, MD 21215,
Plaintiff,
v.
UNITED STATES POSTAL SERVICE, 475 L’Enfant Plaza SW Room 4012 Washington, DC 20260-2200,
and
LOUIS DEJOY, in his official capacity as Postmaster General of the United States Postal Service,
U.S. Postal Service Office 475 L’Enfant Plaza SW Room 4012 Washington, DC 20260-2200,
Defendants.

Case No. 20-2295
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION 1. From the earliest days of the Republic, the United States Post Office, now known as the United States Postal Service (USPS), has been essential to our constitutional democracy. In the Pulitzer-winning words of Daniel Walker Howe, the early Post Office had a dual mission “as a service to the public and to national unification.”1 It facilitated communication across our

1 Daniel Walker Howe, What Hath God Wrought: The Transformation of America, 1815-1848 (2009).

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sprawling and diverse nation and encouraged civic engagement by subsidizing the distribution of newspapers.
2. Today, the United States Postal Service (USPS) is more important than ever to our democracy, as it is necessary for free and fair elections. Over three-quarters of Americans are potentially eligible to vote by mail in November 2020, and election officials are preparing for a surge in mail-in voting due to the COVID-19 pandemic. That pandemic has already cost 170,000 Americans their lives, with death rates particularly high for Black people due to disparities in access to health care and structural discrimination. Mail-in voting is essential to ensuring that all Americans have an opportunity to vote without risking their safety, and mail-in voting requires prompt and reliable postal service. Prompt mail delivery is also especially important during the pandemic and the economic crisis it has caused, as Americans rely on the mail for medications, for benefits, to receive legal notices, and for many other important communications.
3. At this moment, however, when prompt mail delivery matters more than ever, the Postal Service has made significant changes that have resulted in unreliable service and widespread delays. On May 6, 2020, Louis DeJoy was appointed as the new Postmaster General. Then, on July 10, DeJoy announced a major operational “Pivot,” which imposes significant new restrictions on the timing and nature of letter carrier routes. In so doing, he acknowledged that employees would “see mail left behind or on the workroom floor or docks” as a result. In the month since, there have been substantial delays in mail service across the nation, with entire towns in rural areas not receiving their mail on certain days and people in some cities going days or weeks without receiving any mail at all. These delays have caused Americans to go without medicines and benefits, and they have prevented eligible Americans from voting by mail in their primary elections.
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4. In addition, on July 29, the Postal Service’s General Counsel sent letters to 46 states warning them of a mismatch between their deadlines related to mail-in voting and the Postal Service’s likely delivery times. In these letters, the Postal Service made clear that ballots sent by marketing mail would not be accorded first-class mail treatment, and thus take longer to deliver, even though the Postal Service had previously trained its employees to give first-class treatment to ballots and other election-related materials sent as marketing mail.
5. The National Association for the Advancement of Colored People (NAACP), the nation’s largest and oldest civil rights grassroots organization, brings this suit to require the Postal Service to suspend these changes, to restore prompt and reliable mail delivery, and to ensure that mail-in ballots are accorded priority status, as they have been in past years. Congress has mandated that, before implementing changes that have a nationwide impact on mail delivery, the Postal Service must provide an opportunity for public comment and seek an opinion from the Postal Rate Commission. See 39 U.S.C. § 3661. The Postal Service failed to do so with respect to either the “Pivot” or the change in treatment of ballots sent by marketing mail. Its changes are therefore unlawful. Congress has also mandated 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). The Postal Service’s reversal of its policy of according first-class service to ballots sent by marketing mail is inconsistent with that statutory mandate.
6. To preserve the integrity of the November 2020 election, and to ensure that every American has access to reliable mail service during the COVID-19 pandemic, the NAACP asks this Court to enjoin the Postal Service’s unauthorized changes and to declare that the Postal Service
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has acted arbitrarily, capriciously, and in violation of section 101(e) by failing to give highest consideration to the delivery of important letter mail, including ballots.
JURISDICTION AND VENUE 7. This Court has jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1361. 8. Venue is proper in this district because a substantial part of the acts or omissions giving rise to the claim occurred in this judicial district. 28 U.S.C. § 1391(c)(2), (e)(1).
PARTIES 9. Plaintiff NAACP is the nation’s largest and oldest civil rights grassroots organization. Since its founding in 1909, the mission of the NAACP has been to ensure the political, educational, social, and economic equality of all persons and to eliminate race-based discrimination. The NAACP has fought in the courts for decades to protect the constitutional guarantee of equal protection under law. To advance its mission, the NAACP has brought landmark civil rights cases over its 109-year history and continues to do so. The NAACP also has filed numerous amicus briefs in cases that significantly impact people of color. 10. The NAACP has state and local conferences or chapters in 48 states, and it has over 200,000 members nationwide. The NAACP and its members rely on mail service by the United States Postal Service for a variety of important purposes. Delays in mail delivery are of significant concern to the NAACP and to NAACP members, and NAACP members have been adversely impacted by recent delays in mail delivery. For example, in Houston, TX, NAACP National Board Member and veteran Mr. Howard Jefferson’s mail-order medications recently took twice as long as expected to arrive due to mail delays. Similarly, over the past month, NAACP member Ms. Gwendolyn Forbes Towns has received her medications three or four days late, if at all, which her
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prescription provider has told her is because of delays in postal service. The NAACP also has many members who intend to vote by mail in the November 2020 election.
11. The NAACP engages in educational initiatives targeted at its members. A significant aspect of this educational work involves informing members of accurate information about voting, including voting by mail.
12. Defendant United States Postal Service is an independent agency of the executive branch of the United States.
13. Defendant Louis DeJoy is the Postmaster General, the chief executive officer of the Postal Service. He is sued in his official capacity.
BACKGROUND Statutory and Regulatory Background
14. “The U.S. Postal Service is established under the provisions of the Postal Reorganization Act (the Reorganization Act) of 1970, Public Law 91-375, 84 Stat. 719, as amended by the Postal Accountability and Enhancement Act of 2006 (PAEA), Public Law 109435, 120 Stat. 3198, 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.
15. By statute, the Postal Service is required to “operate[] as a basic and fundamental service provided to the people by the Government of the United States, authorized by the Constitution, created by Act of Congress, and supported by the people.” 39 U.S.C. § 101(a). It has “as its basic function the obligation to provide postal services to bind the Nation together through the personal, educational, literary, and business correspondence of the people. It shall provide
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prompt, reliable, and efficient services to patrons in all areas and shall render postal services to all communities.” Id.
16. Congress has directed 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).
17. The PAEA in 2006 established the Postal Regulatory Commission as “an independent establishment of the executive branch.” Id. § 501. “The Postal Regulatory Commission is composed of 5 Commissioners, appointed by the President, by and with the advice and consent of the Senate. The Commissioners shall be chosen solely on the basis of their technical qualifications, professional standing, and demonstrated expertise in economics, accounting, law, or public administration, and may be removed by the President only for cause. Each individual appointed to the Commission shall have the qualifications and expertise necessary to carry out the enhanced responsibilities accorded Commissioners under the Postal Accountability and Enhancement Act.” Id. § 502(a). “No Commissioner shall be financially interested in any enterprise in the private sector of the economy engaged in the delivery of mail matter.” Id. § 502(b).
Process for Changes to the Provision of Postal Services 18. The Postal Service is tasked with “develop[ing] and promot[ing] adequate and efficient postal services.” Id. § 3661(a). 19. “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).
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20. Before issuing its opinion, the Commission must provide “an opportunity for hearing on the record under sections 556 and 557 of [the Administrative Procedure Act] . . . 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.” Id. § 3661(c).
21. The Commission’s Rules of Practice and Procedure require the Postal Service to file its request “not less than 90 days before the proposed effective date of the change in the nature of postal services involved.” 39 C.F.R. § 3020.112.
22. The Commission’s rules permit two forms of voluntary participation in Commission proceedings: (1) A person may file a notice of intervention pursuant to 39 C.F.R. § 3010.142(a) and, as a party, participate in discovery and motions practice, file testimony, and submit briefs, among other rights and responsibilities. (2) A person may participate by submitting comments in proceedings before the Commission except those involving an appeal of a Postal Service determination to close or consolidate a post office, pursuant to 39 C.F.R. § 3010.140.
23. Through section 3661, Congress provided the public a right to comment and an opportunity to provide input on any proposals to make meaningful changes in the delivery of the post nationwide. Consistent with the requirements of section 3661, the Postal Service has, in the past, submitted proposed changes regarding the nature of postal services to the Commission within a reasonable time prior to the effective date of the proposal and requested an advisory opinion from the Commission.
24. For example, in 2014, the Postal Service sought an advisory opinion on a proposal to change the manner by which it processes and dispatches mail that qualifies for a discounted
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price. For certain mail entered on Fridays or Saturdays, the Postal Service proposed to change the delivery expectation or delivery service standard from 3 days to 4 days. The Commission’s advisory opinion recommended that the proposal required more study. After receiving comments and briefs from intervenors, the Commission found, among other things, that the Postal Service’s proposal was based on limited test information and sometimes anecdotal accounts, and it noted concern that the proposal did not have sufficient “support within the mailing community.”2
25. Similarly, in 2012, the Postal Service sought an advisory opinion under section 3661 on a proposal to reduce the hours of operation at more than 13,000 post offices nationwide by 6, 4, or 2 hours per weekday, and to increase hours at approximately 73 locations. The Postal Service stated that its proposed plan was intended “to achieve cost savings with limited reductions in access and service,” and included provisions for soliciting community input with respect to the changes in hourly operations at specific offices. After soliciting public comment, the Commission made recommendations concerning access, community input, revenue, and staffing.3
Election Mail 26. Prior to the current election year, the Postal Service “treat[ed] Election and Political Mail as First-Class Mail,” regardless of whether the election authority paid for First-Class service or the less expensive Nonprofit Marketing service.4
2 PRC, Advisory Op. on Service Changes Associated with Standard Mail Load Levels, N2014-1 at 1, Mar. 26, 2014, https://www.prc.gov/docs/89/89493/docket%20no.%20n2014-1_advisory %20opinion.pdf; id. at 5 (noting comments). 3 PRC, Advisory Op. on Post Office Structure, N2012-2, at 1–2, Aug. 23, 2012, https://www.prc. gov/docs/85/85013/n2012-2_adv_op_082312.pdf. 4 USPS Office of the Inspector General, Audit Report, a Service Performance of Election and Political Mail During the 2018 Midterm and Special Elections at 7 (Nov. 4, 2019), https://www.uspsoig.gov/sites/default/files/document-library-files/2019/19XG010NO000.pdf OIG 2019 Report).
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27. The Postal Service Office of the Inspector General “concluded that this was how [election mail] was generally handled.” Id.
28. To facilitate this First-Class treatment and to “provide greater visibility to Election Mail as it is processed, the Postal Service encourages election officials to use” a specialized tag identifying it as Election Mail. OIR 2019 Report, Appendix B (letter from USPS Acting Vice President, Processing and Maintenance to OIG). In addition, some Postal Service facilities “had personnel identify and separate Election and Political from other mail at the facility to improve processing in accordance with standard operating procedures.” OIG 2019 Report, at 6.
29. First Class mail has a delivery standard of 1–3 days. By contrast, Nonprofit Marketing Mail has a delivery standard of 3–10 days. Id. at 4.
30. In accord with this Postal Service policy for the treatment of Election and Political Mail, the Office of the Inspector General found that 96 percent of Election and Political Mail met the 1–3-day delivery standard for First Class mail for the 2018 mid-term and special elections. Id. at 5. The Rise in Mail-In Voting Due to the COVID-19 Pandemic
The COVID-19 Pandemic 31. On March 11, 2020, the World Health Organization declared a global pandemic resulting from the spread of COVID-19.5 Two days later, President Trump announced that the outbreak of COVID-19 in the United States constituted a national emergency.6
5 Dr. Tedros Adhanom, WHO Director-General’s Opening Remarks at the Media Briefing on COVID-19 (Mar. 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-sopening-remarks-at-the-media-briefing-on-covid-19---11-march-2020. 6 Proclamation No. 9994, 85 Fed. Reg. 15,337 (Mar. 18, 2020), https://www.federalregister.gov/ documents/2020/03/18/2020-05794/declaring-a-national-emergency-concerning-the-novelcoronavirus-disease-covid-19-outbreak.
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32. By April 2020, the United States became the epicenter of the COVID-19 pandemic
with the highest number of confirmed COVID-19 cases in the world.7 As of August 2020, there
have been over 5,400,000 COVID-19 cases reported in the United States, including nearly 170,000
deaths.8 Given a combination of shortages in testing, false negatives, and asymptomatic carriers,
the actual number of cases and deaths is likely higher than officially reported.9 Globally, there
have been over 21,700,000 confirmed cases of COVID-19, with over 770,000 deaths.10
33. COVID-19 is a respiratory infection caused by the novel coronavirus SARS-CoV-
2. It spreads via respiratory droplets, particularly through close in-person contacts.11 The virus can
be spread by asymptomatic, pre-symptomatic, and symptomatic individuals.12 Understanding of
the full range of effects of COVID-19 infection continues to develop. Symptoms may be severe,
including fever, difficulty breathing, and loss of taste or smell.13 Individuals hospitalized with
7 David Smith, US Surpasses China for Highest Number of Confirmed COVID-19 Cases in the World, The Guardian (Mar. 27, 2020), https://www.theguardian.com/world/2020/mar/26/ coronavirus-outbreak-us-latest-trump. 8 CDC, Coronavirus Disease 2019 (COVID-19): Cases in the U.S., https://www.cdc.gov/ coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited Aug. 18, 2020). 9 Apoorna Mandavilli, Coronavirus Infections Much Higher Than Reported Cases in Parts of the U.S., Study Shows, NY Times (July 21, 2020), https://www.nytimes.com/2020/07/21/health/ coronavirus-infections-us.html; Andrew Joseph, Actual Covid-19 Case Count Could be 6 to 24 Times Higher than Official Estimates, CDC Study Shows, STAT (July 21, 2020), https://www.statnews.com/2020/07/21/cdc-study-actual-covid-19-cases/. 10 WHO, WHO Coronavirus Disease (COVID-19) Dashboard, https://covid19.who.int/ (last visited Aug. 18, 2020). 11 CDC, Coronavirus Disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/prevention.html (last updated July 31, 2020). 12 Nathan W. Furukawa, et al., Evidence Supporting Transmission of Severe Acute Respiratory Syndrome Coronavirus 2 While Presymptomatic or Asymptomatic, 26 CDC Emerging Infectious Diseases (July 2020), https://wwwnc.cdc.gov/eid/article/26/7/20-1595_article. 13 CDC, Symptoms of Coronavirus, https://www.cdc.gov/coronavirus/2019-ncov/symptomstesting/symptoms.html (last updated May 13, 2020).
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COVID-19 may continue to experience persistent symptoms for months.14 Lethal at its worst,
COVID-19 infection can lead to long-term damage to the lungs, heart, brain, kidneys, or liver.15 It
is uncertain whether people who recover from COVID-19 can subsequently be re-infected.16
34. The CDC and the World Health Organization have estimated that approximately
one out of five people infected with COVID-19 will require hospitalization.17 People of all ages
have contracted and died from COVID-19.18 Several preexisting medical conditions can increase
the risk of serious complications from COVID-19, regardless of age, including kidney disease,
14 Victoria Foster, 80% Of People Hospitalized With Coronavirus Still Had Symptoms Two Months Later, Says New Study, Forbes (July 11, 2020), https://www.forbes.com/sites/ victoriaforster/2020/07/11/80-of-people-hospitalized-with-coronavirus-still-had-symptoms-twomonths-later-says-new-study/#37aedd2b1e93. 15 Jacqueline Howard, COVIID-19’s Impact on the Heart: Two New Studies Suggest ‘the Plot Thickening’, CNN (July 28, 2020), https://www.cnn.com/2020/07/28/health/covid-heart-damagetwo-studies/index.html; CDC, Coronavirus Disease 2019 (COVID-19): Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html (last updated June 30, 2020); Zoe Cormier, How Covid-19 can damage the brain, BBC (June 22, 2020), https://www.bbc.com/future/article/20200622-the-long-term-effects-of-covid-19-infec tion. 16 CDC, Coronavirus Disease 2019 (COVID-19): Duration of Isolation & Precautions for Adults (last updated Aug. 16, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/duration-isola tion.html. 17 WHO, Q&A on Coronaviruses (COVID-19), https://www.who.int/news-room/q-a-detail/q-acoronaviruses (last visited Aug. 18, 2020); DC, Coronavirus Disease 2019 (COVID-19): Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID19), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients. html (last updated June 30, 2020). 18 CDC, COVID-19 Guidance for Older Adults, https://www.cdc.gov/aging/covid19guidance.html (last updated Aug. 17, 2020). See also CDC, Hospitalization Rates and Characteristics of Children Aged <18 Years Hospitalized with Laboratory-Confirmed COVID-19 (Aug. 14, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6932e3.htm (“Children are at risk for severe COVID-19. Public health authorities and clinicians should continue to track pediatric SARS-CoV-2 infections.”).
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heart disease, asthma, hypertension, and diabetes.19 The pandemic has had a particularly
devastating impact on Black people in the United States. As a result of disparities in access to
health care and structural discrimination that leads to higher rates of co-morbidities, Black people
comprise a disproportionate number of both cases of infection and deaths caused by the virus.20
35. There is no approved medication to cure COVID-19,21 and there is currently no
vaccine to prevent it.22 There is consensus among medical experts and government agencies that a
COVID-19 vaccine will not be available to the public in 2020.23
36. Dr. Anthony Fauci, Director of the National Institute of Allergy and Infectious
Diseases and White House coronavirus advisor, has stated that U.S. health officials cannot see “an
end in sight” to the pandemic.24 According to the CDC, as of August 2020, COVID-19 is the third
19 CDC, Coronavirus Disease 2019 (COVID-19): Groups at Higher Risk of Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html (last updated Aug. 14, 2020). 20 See Richard A. Oppel, Jr., et al., The Fullest Look Yet at the Racial Inequity of Coronavirus, NY Times, July 5, 2020, https://www.nytimes.com/interactive/2020/07/05/us/coronavirus-latinosafrican-americans-cdc-data.html; see also The COVID Tracking Project, The COVID Racial Data Tracker, https://covidtracking.com/race (last visited Aug. 18, 2020). 21 WHO, Coronavirus Disease (COVID-19) Advice for the Public: Mythbusters, https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public/mythbusters (last visited Aug. 18, 2020). 22 CDC, Coronavirus Disease 2019 (COVID-19), How to Protect Yourself and Others (last updated July 31, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevent ion.html. 23 HHS, Fact Sheet Explaining Operation Warp Speed, (June 16, 2020), https://www.hhs.gov/ about/news/2020/06/16/fact-sheet-explaining-operation-warp-speed.html; Gisela Crespo, US gets Reality Checks on COVID-19 Vaccine, Duration of Symptoms, CNN (July 24, 2020), https://www.cnn.com/2020/07/24/health/us-coronavirus-friday/index.html. 24 Berkeley Lovelace, Jr., Dr. Anthony Fauci Warns the Coronavirus Won’t Ever be Eradicated, CNBC (July 22, 2020), https://www.cnbc.com/2020/07/22/dr-anthony-fauci-warns-thecoronavirus-wont-ever-be-totally-eradicated.html.
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leading cause of death in the United States, and the rate of deaths from COVID-19 remains significantly higher in the United States than in other countries.25
37. In the interim, experts have identified techniques that are effective in decreasing transmission of COVID-19, including practicing social distancing by avoiding close in-person contacts, avoiding large gatherings, wearing masks in public, and practicing frequent and thorough handwashing.26
The Anticipated Surge in Mail-in Voting Resulting from the Pandemic 38. Mail-in voting has existed for decades in the United States. All fifty States allow voters to use some sort of mail-in voting, and millions of voters vote by mail each year. Members of the United States military stationed on bases away from home in other states and outside the country rely on mail-in voting to participate in elections. Disabled voters, those who are hospitalized and voters in nursing homes also often vote by mail. In November 2000, Oregon became an all vote-by-mail state.27 39. The CDC has provided guidance regarding safe voting practices during the COVID-19 pandemic, encouraging states to adopt voting procedures that allow voters to maintain social distancing and thereby decrease the spread of the virus. Specifically, the CDC has warned of the significant possibility of person-to-person COVID-19 transmission at polling sites and has
25 Lauren Mascarenhas, et al., Birx Says She Wishes US Lockdown had Resembled the one in Italy, CNN (Aug. 17, 2020), https://www.cnn.com/2020/08/17/health/us-coronavirus-monday/index. html. 26 Lisa Lockerd Maragakis, M.D., M.P.H , Coronavirus, Social and Physical Distancing and SelfQuarantine, Johns Hopkins Medicine, https://www.hopkinsmedicine.org/health/conditions-anddiseases/coronavirus/coronavirus-social%20distancing-and-self-quarantine (last updated July 15, 2020). 27 Oregon Sec. of State, Oregon Vote-By-Mail, https://sos.oregon.gov/elections/Documents/ statistics/vote-by-mail-timeline.pdf.
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urged the use of “voting methods that minimize direct contact and reduce crowd size at polling
locations,” such as mail-in voting.28
40. Consistent with the CDC’s guidance, states have expanded mail-in voting access to
ensure that eligible voters can vote both safely and securely during the 2020 primary and general
election cycle.29
41. For example, Alabama,30 Massachusetts,31 New Hampshire,32 and West Virginia33
have expanded the scope of existing state election laws establishing absentee ballot eligibility for
illness, injury, or disability to include all eligible voters concerned about, or taking preventative
measures because of, COVID-19.
42. As a result of these changes, a record 76 percent of American voters will be eligible
to receive a ballot in the mail for the November 2020 election.34
28 See CDC, Coronavirus Disease 2019 (COVID-19): Recommendations for Election Polling Locations, https://www.cdc.gov/coronavirus/2019-ncov/community/election-polling-locations. html (last updated June 22, 2020). 29 COVID-19 and Elections, National Conference of State Legislatures https://www.ncsl.org/ research/elections-and-campaigns/state-action-on-covid-19-and-elections.aspx (last updated July 2, 2020) (cataloguing legislative actions—enacted and pending—and executive actions taken by states to expand voting options for eligible voters in response to COVID-19). 30 Ala. Legis. Servs. Agency, Absentee Voting During State of Emergency-General Election 2020, 17-11-3(e) (July 17, 2020), https://www.sos.alabama.gov/sites/default/files/proposedRules/820-23-.06-.04ER.pdf. 31 An Act Relative to Voting Options in Response to COVID-19, 191st General Court of the Commonwealth of Mass., ch. 115 (2020), https://malegislature.gov/Laws/SessionLaws/Acts/ 2020/Chapter115. 32 Memorandum from the Sec’y of State and Att’y General to New Hampshire Election Officials re: Elections Operations During the State of Emergency at 2 (Apr. 10, 2020) https://www.nhpr.org/sites/nhpr/files/202004/covid-19_elections_guidance.pdf. 33 W. Va. Sec’y of State Mac Warner, Admin. Law Div., Notice Of An Emergency Rule (Mar. 20, 2020), http://apps.sos.wv.gov/adlaw/csr/readfile.aspx?DocId=53039&Format=PDF. 34 Alan Yuhas, How Mail-in Voting Works, NY Times (Aug. 18, 2020), https://www.nytimes. com/article/Vote-by-mail.html.
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43. States have also passed legislation to expand vote-by-mail procedures and mail-in
voting—for example, affirmatively mailing all eligible voters an absentee ballot without a request
for either the primary, general, or both elections.35
44. These changes have been enacted to protect voters’ health, to reduce community
spread of the COVID-19, and to safeguard the right to vote.
45. State and local elected officials have likewise encouraged people to rely on mail-in
voting for primary and general elections to vote safely and reduce the spread of the COVID-19
virus.36 Indeed, even with added precautions, public health officials have warned that in-person
voting poses a significant health risk, especially for groups at an increased risk of severe illness
from COVID-19.37
35 Governor Newsom Issues Executive Order to Protect Health by Mailing Every Registered Voter a Ballot Ahead of the November General Election, Cal. Gov. (May 8, 2020), https://www.gov.ca.gov/2020/05/08/governor-newsom-issues-executive-order-to-protect-publichealth-by-mailing-every-registered-voter-a-ballot-ahead-of-the-november-general-election/; Governor Murphy Signs Executive Order to Protect Public Health by Mailing Every Active Registered Voter a VBM Ballot Ahead of the General Election, N.J Gov. (Aug. 16, 2020), https://covid19.nj.gov/faqs/announcements/all-announcements/governor-murphy-signsexecutive-order-to-protect-public-health-by-mailing-every-active-registered-voter-a-vbm-ballotahead-of-the-general-election. 36 See, e.g., Alan Yuhas, How Mail-in Voting Works, NY Times (Aug. 18, 2020), https://www.nytimes.com/article/Vote-by-mail.html; Don Walton, Ricketts Encourages Vote by Mail, Eyes Gradual Easing of COVID-19 Restrictions Possibly in May, Lincoln Journal Star (May 14, 2020) https://journalstar.com/news/state-and-regional/govt-and-politics/ricketts-encouragesvote-by-mail-eyes-gradual-easing-of-covid-19-restrictions-possibly-in-may/article_2770d931fa51-591f-b04b-d5e516a72888.html; Ed Kilgore, New Hampshire Says COVID-19 is a ‘Disability’ Justifying Voting by Mail, The New Yorker (Apr. 10, 2020), https://nymag.com/intelligencer/2020/04/in-nh-covid-ruled-a-disability-justifying-voting-bymail.html. 37 Public Health Officials and Voting Experts Release First-Ever Healthy Voting Guides, American Public Health Ass’n (May 28, 2020), https://www.apha.org/news-and-media/newsreleases/apha-news-releases/2020/healthy-voting-guides.
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46. States witnessed surges in applications for vote-by-mail ballots for 2020 primary
elections,38 and historical levels of mail-in voting during primaries in 2020. For example,
Pennsylvania saw an 18-fold increase in mail-in voting for the June 2020 primary compared to the
June 2016 primary.39 Likewise, Florida saw a record number of mail-in votes, with 2.1 million
mail-in ballots cast (as of August 16) for the August 18, 2020 primary as compared to 1.35 million
for the August 2016 primary.40
47. Many states likewise expect a record-breaking volume of mail-in voting for the
November 2020 election.41 States are already are experiencing surges in vote-by-mail ballot
requests.42 Many state and local election officials are anticipating an increase in both mail-in voting
and other election-related mailing.43
38 See, e.g., Beth LeBlanc, In Michigan, There’s a Surge in Absentee Ballot Requests During the Pandemic, The Detroit News (July 2, 2020) https://www.detroitnews.com/story/news/politics/ 2020/07/02/michigan-absentee-ballot-requests-rise-1-million-ahead-august-primary/53657 99002/. 39 Andree Hsu and Mary Louise Kelly, ‘Swing County, USA’ Prepares for Unprecedented Influx of Ballots by Mail, NPR (July 21, 2020), https://www.npr.org/2020/07/21/893115504/swingcounty-u-s-a-prepares-for-unprecedented-influx-of-ballots-by-mail. 40 Steve Patrick, Amid Pandemic, Record Number of Florida Voters Use Mail-in Ballots, News 4 Jax (Aug. 17, 2020) https://www.news4jax.com/election-2020/2020/08/11/amid-pandemic-mailin-ballots-smash-primary-records/. 41 Jason Lange, U.S. States See Major Challenge in Delivering Record Mail Ballots in November, Reuters (June 4, 2020), https://www.reuters.com/article/us-health-coronavirus-usa-electioninsig/u-s-states-see-major-challenge-in-delivering-record-mail-ballots-in-november-idUSKBN23 B1NT; see also Erin Cox, et al., Postal Service Warns 46 States Their Voters Could be Disenfranchised by Delayed Mail-in Ballots, Wash. Post (Aug. 14, 2020), https://www.washingtonpost.com/local/md-politics/usps-states-delayed-mail-in-ballots/2020/08/ 14/64bf3c3c-dcc7-11ea-8051-d5f887d73381_story.html. 42 See, e.g., Jim Morrill, Coronavirus Gears Spark ‘Striking Surge’ of Mail-in Ballot Requests, Charlotte Observer) (July 13, 2020), https://www.charlotteobserver.com/news/politicsgovernment/article244187737.html. 43 See, e.g., Letter from the National Ass’n of Secretaries of State to Louis DeJoy, United States Postmaster General (Aug. 7, 2020), available at https://www.npr.org/2020/08/14/902545891/ amid-fears-about-mail-in-ballots-election-officials-havent-met-with-new-postmast.
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The Postal Service Implements Changes in Its Nationwide Postal Services, Including with Respect to the Treatment of Election Mail
A “Pivot” Affecting Nationwide Service 48. On May 6, 2020, Louis DeJoy was appointed Postmaster General of the United States. 49. Two months later, Postmaster DeJoy directed the Postal Service to implement significant operational changes on a nationwide basis. Internal Postal Service documents acknowledged that those changes would impact the Postal Service’s provision of postal services to the public, including by resulting in delays in mail delivery. 50. Specifically, on or about July 10, 2020, the Postal Service circulated to employees a document entitled “PMGs expectations and plan,” which outlined the significant nationwide changes Postmaster DeJoy was implementing. In that document, Postmaster DeJoy announced that overtime would be eliminated, that letter carriers would have to make changes limiting the timeframe and affecting the scope of their delivery routes, and that certain customer service windows would be closed during lunchtime.44 Postmaster DeJoy directed employees to leave mail behind at distribution centers if it delayed letter carriers from their routes. These represented significant departures from prior practices, as postal workers had been trained not to leave letters behind and to make multiple trips to ensure timely distribution of letters and parcels. 51. The Postal Service also circulated a document on July 10, 2020, entitled “Mandatory Stand-Up Talk: All Employees,” with a subtitle “Pivoting For Our Future” (herein “Pivot Instructions”). The Pivot Instructions described significant changes that the Postal Service
44 See, e.g., Jacob Bogage, Postal Service Memos Detail ‘Difficult’ Changes, Including Slower Mailer Delivery, Wash Post (Aug. 14, 2020) https://www.washingtonpost.com/business/2020/ 07/14/postal-service-trump-dejoy-delay-mail/.
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was immediately implementing on a nationwide basis and acknowledged that these changes would impact the delivery of mail.45
52. The Pivot Instructions state that the Postal Service “must make immediate, lasting, and impactful changes in our operations and in our culture,” and stress that “[e]very single employee will receive this information” because every employee was “integral” to the success of those changes.
53. The Pivot Instructions further state that the “initial step in our pivot is targeted on transportation” which will involve “challenging” changes “as we seek to change our culture and move away from past practices previously used.” The Pivot Instructions then provide numerous specific examples of “transportation changes being implemented immediately (today),” including limiting the timeframe when employees are permitted to make mail delivery trips. The Pivot Instructions acknowledge that, as a result of these changes, employees “may see mail left behind or on the workroom floor or docks,” which is “not typical” and “may be difficult for employees.”
54. The Pivot Instructions appear to contemplate that “delayed mail volumes” would result from the first phase of this pivot; the Instructions state that the transportation pivot is part of an “ongoing pivot” that would include additional phases, and that “operations will begin to run more efficiently and that delayed mail volumes will soon shrink significantly.” The Pivot Instructions do not, however, explain what those additional phases will be, when they will be implemented, or how they will reduce delayed mail volume.
45 Available at https://federalnewsnetwork.com/wp-content/uploads/2020/07/071020-stand-uptalk.pdf.
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55. There is no discussion of prioritizing the delivery of ballots, election-related mail, or other important letter mail in either the “PMGs expectations and plan,” or in the Pivot Instructions.
56. Despite the significant changes in the postal service operations, and their impact on the public, the Postal Service did not follow the procedures set forth in 39 U.S.C. § 3661 before implementing them. Specifically, the Postal Service did not submit a proposal to the Postal Regulatory Commission requesting an advisory opinion on those changes prior to implementing them.
The “Pivot” Leads to Delays in Postal Service 57. In the wake of the Postal Service’s “Pivot,” there have been widespread reports of mail piling up in regional distribution centers and post offices around the country, and of customers experiencing substantial delays and disruptions in mail service.46 58. For example, in Philadelphia, Pennsylvania, residents reportedly experienced delays of up to three weeks in receiving mail, leading to missed worker’s compensation checks and paychecks.47 Baltimore County, Maryland, residents who had not received mail in two weeks waited in line for hours at the post office to try and collect their mail. Those residents reported that they were still unable to pick up their most important mail, including
46 Luke Broadwater, Crisis Ripples Across Nation as Election Looms, NY Times (Aug. 18, 2020), https://www.nytimes.com/2020/08/15/us/post-office-vote-by-mail.html. 47 Ellie Rushing, Mail Delays are Frustrating Philly Residents, and A Short-Staffed Postal Service is Struggling to Keep Up, Philadelphia Inquirer (Aug. 2, 2020), https://www.inquirer.com/ news/philadelphia/usps-tracking-in-transit-late-mail-delivery-philadelphia-packages-postalservice-20200802.html.
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checks and an unemployment benefit debit card needed to pay their bills.48 Similarly, in Southeast Washington, DC, hundreds of residents went two weeks without receiving any mail.49
59. Mail has been arriving late across Western New York: the president of a local chapter of the American Postal Workers Union reported that, as a result of the changes in service, “we’ve had entire towns that didn’t get their mail that day,” including “some of the bigger ones— East Aurora, Lancaster.”50 Similar delays have occurred across central Alabama.51 In Maine, postal workers reported leaving 80,000 letters behind because they were not permitted to wait 10 minutes for them to be processed.52
60. There have been similar reports of delays in mail service throughout the country, including in California, Colorado, Connecticut, Illinois, Maryland, Michigan, Minnesota,
48 Kim Dacey, People Who Haven’t Received Mail in Weeks Line Up at Post Office, WBALTV (Aug. 6, 2020), https://www.wbaltv.com/article/baltimore-mail-delays-continue-no-mail-inweeks/33535355. 49 Kolbie Satterfield, Southwest DC Residents Go Weeks Without Mail Being Delivered, WUSA9 (Aug. 13, 2020), https://www.wusa9.com/article/news/local/dc/two-weeks-no-mail-in-southeastdc-neighborhood/65-31535798-3c83-45f8-b0e4-775ce6d6e8f8. 50 See Jerry Zremski, Mail Delays, Days With No Delivery Prompt Rising Concern in NY, Buffalo Times (Aug. 13, 2020), https://buffalonews.com/news/national/govt-and-politics/mail-delaysdays-with-no-delivery-prompt-rising-concern-in-wny/article_d9944036-dd92-11ea-8f15-778f24 015679.html. 51 See Lauren Walsh, Central Alabama Experiences Some Mail, Package Delays as USPS, UPS Feel COVID-19 Impact, ABC33/40 News (Aug. 12, 2020), https://abc3340.com/news/local/ central-alabama-experiences-some-mail-package-delays-as-usps-ups-feel-covid-19-impact. 52 See Alison Durkee, Postmaster General Acknowledges ‘Unintended Consequences’ of USPS Changes Causing Mail Delays, Forbes (Aug. 14, 2020), https://www.forbes.com/sites/ alisondurkee/2020/08/14/postmaster-general-louis-dejoy-acknowledges-unintended-consequ ences-of-usps-postal-service-changes-mail-delays/#764bfdf46052.
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Missouri, Nevada, New Mexico, Ohio, Oregon, Rhode Island, South Carolina, Texas, Utah,
Vermont, Washington, Wisconsin, and Virginia.53
61. These disruptions and delays in postal service have caused Americans to go without
their life sustaining medication and medical supplies, including medications to treat diabetes,
asthma, hypertension, among other serious chronic conditions.54 Veterans, who overwhelmingly
receive their medications through the mail, have reported delays of weeks to receive medication.55
Veterans have also reported that delayed bills and payments have caused them to incur late fees.56
62. Delays in mail delivery have already affected elections. For example, in St. Louis,
Missouri, mail delays contributed to ballots arriving too late to be completed or mailed back in
time to be counted in the state’s August 4, 2020 primary election.57
53 See, e.g., State of Washington v. Trump, No. 1:20-cv-03127 (E.D. Wash.), available at https://agportal-s3bucket.s3.amazonaws.com/001_ComplaintUSPS.pdf; Andrew Brown & Andrew Miller, Some SC Businesses Say They are Experiencing Delays Because of US Postal Service Changes, The Post and Courier, (Aug. 14, 2020), https://www.postandcourier.com/ business/some-sc-businesses-say-they-are-experiencing-delays-because-of-us-postal-servicechanges/article_e8716d38-dd6d-11ea-9c9e-a79f1c82a446.html; Ron Trevino, USPS Delivery Delays Leave 82-year-old Texas Man Without Heart Medication for a Week, WBNS (Aug. 17, 2020), https://www.10tv.com/article/news/nation-world/usps-delays-leave-humble-man-withoutheart-medication/285-49815193-bf3d-4b45-a1a5-b0afe16236f7; David Manoucheri, People Wait Weeks, Months for Packages to be Delivered, KCRA, (Aug. 15, 2020), https://www.kcra.com/ article/people-wait-weeks-months-for-packages-to-be-delivered/33606613; Ginna Roe, Utah Diabetic Waiting for More Than a Week For Supplies By Mail, KUTV, (Aug. 17, 2020); https://kutv.com/news/local/utah-diabetic-waiting-more-than-a-week-for-supplies-by-mail. 54 Rosalind Adams, et al., USPS Delays Are Causing People to Get their Prescriptions Late, Buzzfeed News (Aug. 17, 2020) https://www.buzzfeednews.com/article/rosalindadams/postoffice-delay-prescription-medicine. 55 See Letter from 31 Senators to Louis DeJoy (Aug. 13, 2020), https://bit.ly/345AaDj; James Clark, How the battle over the US Postal Service is costing veterans dearly, Task & Purpose (Aug. 18, 2020), https://taskandpurpose.com/news/postal-service-veteran-medication-delays. 56 Letter from Senator Gary Peters to Hal. J. Roesch II (Aug. 13, 2020), https://bit.ly/311tQe5. 57 Robert Patrick, Postal Delays, Greater Demand for Ballots Leading to Spike in Complaints, Groups Say, St. Louis Post-Dispatch, (Aug. 1, 2020), https://www.stltoday.com/lifestyles/healthmed-fit/coronavirus/postal-delays-greater-demand-for-ballots-leading-to-spike-in-complaints-
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63. In a memo circulated to Postal Service employees the week of August 10, Postmaster DeJoy acknowledged that the Pivot has “impacted our overall service levels.”
64. Following widespread complaint and media reports regarding the delays, the House of Representatives sent a notice requesting Mr. DeJoy appear for a hearing on August 21, 2020.
65. On August 18, 2020, Postmaster DeJoy disseminated a public statement that he was suspending certain changes that had been implemented pursuant to “longstanding operational initiatives” that “predate my arrival at the Postal Service.”58 That statement does not, however, purport to suspend key changes announced in the July 10 Pivot directing reductions in service. It also does not address the changes discussed in the “PMGs expectations and plan” document, other than to say that “overtime has, and will continue to be, approved as needed.”
The Postal Service Changes Its Treatment of Ballots Sent by Marketing Mail 66. On July 29, 2020, the Postal Service announced a change to its treatment of election mail, including vote-by-mail ballots through letters it sent election officials in 46 states and the District of Columbia. In those letters, the Postal Service warned that “there is a significant risk that, at least in certain circumstances, ballots may be requested in a manner that is consistent with your election rules and returned promptly, and yet not be returned in time to be counted.”59
groups-say/article_4b65cb38-7cac-51dd-9c46-62c46ef5d7b8.html; Erin Richey, Delays at the Post Office Could Force Missouri Absentee Voters to the Polls, KSDK (Aug. 3, 2020), https://www.ksdk.com/article/news/politics/elections/absentee-ballot-delays-force-voters-pollsin-person/63-cbfd42b1-4df3-49f8-8845-68305c778074. 58 See, Phil Mattingly (@Phil_Mattingly), TWITTER, https://twitter.com/Phil_Mattingly/status/ 1295776474751012867/photo/1 (Aug. 18, 2020). 59 Letters from Thomas Marshall, Gen. Counsel, U.S. Postal Service, to Forty-Seven Secretary of States (July 29, 2020), https://www.washingtonpost.com/context/u-s-postal-service-letters-tostates/b50799f2-25ad-40ed-ba1e-9d648b1814ad/?itid=lk_interstitial_manual_6.
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67. To account for that risk, the Postal Service “recommend[ed] that election officials use First-Class Mail to transmit blank ballots and allow 1 week for delivery to voters.” It warned that “[u]sing Marketing Mail will result in slower delivery times and will increase the risk that voters will not receive their ballots in time to return them by mail.” Id.
68. The letters state that “the Postal Service cannot adjust its delivery standards to accommodate the requirements of state election law.” The letters do not acknowledge the Postal Service’s longstanding policy of according first-class treatment to ballots or other election-related materials sent by Marketing Mail, or the change in policy reflected in the letters.
69. The letters also do not acknowledge the Postal Service’s statutory obligation to provide highest consideration for the delivery of important letter mail, see 39 U.S.C. § 101(e), or the Postal Service’s statutory duty to seek an advisory opinion from the Postal Regulatory Commission before making any changes that have a nationwide impact on postal services, see id. § 3661(a).
70. This change in how the Postal Service treats election mail will impose financial burdens on state election authorities which, to ensure timely delivery, will have to pay 55 cents per piece for First-Class service rather than the 20 cents per piece they previously could pay. This increase in per-piece cost, combined with an anticipated 10-fold increase in vote-by-mail volume, will compound states’ unprecedented financial strain in the midst of a global pandemic.
71. The slower delivery of election mail, including ballots, under the new Postal Service policy compresses the time voters have to return their completed ballot. As the Postal Service recognized in the July 29 letters, “the ballot needs to be in the hands of the voter so that he or she has adequate time to complete it and put it back in the mail stream so that it can be processed and delivered by the applicable deadline.” The delay in the delivery of election mail,
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including ballots, that no longer receive First-Class treatment may thereby cause significant numbers of completed ballots not to be counted because they are delivered after states’ deadlines.
72. The Postal Service implemented this change in the treatment of election mail on a nationwide basis, expressly warning 46 states of the new policy’s potential harmful effects.
73. Although this change in the nature of postal services will have a nationwide effect, the Postal Service failed to submit a proposal for the change to the Postal Regulatory Commission, as required by federal law. 39 U.S.C. § 3661(b).
FIRST CAUSE OF ACTION (Non-statutory review of unlawful agency action for failure to follow statutorily required procedures) 74. Plaintiff has a non-statutory right of action to enjoin and declare unlawful official action that is ultra vires and unlawful. 75. Through the changes announced in the “Pivot” Instructions and changes to the treatment of election mail, the Postal Service has implemented changes in the nature of postal services that will generally affect service on a nationwide or substantially nationwide basis, without following the procedures required by 39 U.S.C. § 3661. 76. The Postal Service’s failure to follow required procedures has deprived Plaintiff NAACP and its members of the opportunity to comment on the changes in postal service, has impacted the timely delivery of mail to its members, and will impact the timely receipt of mail-in ballots by its members. 77. Plaintiff and its members will suffer irreparable injury if the changes are not declared unlawful, and Plaintiff and its members have no adequate remedy at law.
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78. The public interest favors entry of a declaration that the changes are unlawful and invalid because they were issued and adopted without observance of the mandatory procedures required by 39 U.S.C. § 3661.
SECOND CAUSE OF ACTION (Non-statutory review of unlawful agency action that is arbitrary, capricious, and not in accordance with statutory requirements) 79. Plaintiff NAACP has a non-statutory right of action to enjoin and declare unlawful official action that is ultra vires and unlawful. 80. Through the changes announced in the “Pivot” Instructions and changes to the treatment of election mail, the Postal Service has failed to give the “highest consideration” to the “delivery of important letter mail,” including election mail and mail containing veterans’ benefits, as required by 39 U.S.C. § 101(e). 81. In light of the mandate of section 101(e), the coronavirus pandemic, and the significant increase in voting by mail, the changes announced in the “Pivot” Instructions and changes to the treatment of election mail are arbitrary, capricious, or in violation of law.
THIRD CAUSE OF ACTION (Mandamus to enforce 39 U.S.C. § 3661) 82. Plaintiff NAACP has a statutory right under 39 U.S.C. § 3661 to notice and an opportunity to comment on changes in the nature of postal services that will generally affect service on a nationwide or substantially nationwide basis. 83. Defendants have a nondiscretionary duty under 39 U.S.C. § 3661 to seek an advisory opinion from the Postal Regulatory Commission, in order that members of the public, such as plaintiff NAACP, will have notice and an opportunity to comment on changes in the nature of postal services that will generally affect service on a nationwide or substantially nationwide basis.
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84. Defendants’ failure to follow the procedures required by 39 U.S.C. § 3661 warrants relief in the nature of mandamus pursuant to 28 U.S.C. § 1361 if no other adequate remedy is available to Plaintiff NAACP to enjoin Defendants’ unlawful action and compel action required of defendants by law.
85. Plaintiff NAACP has been and will continue to be harmed by Defendants’ unlawful actions because delays to mail to its members as a result of these actions are ongoing.
FOURTH CAUSE OF ACTION (Mandamus to enforce 39 U.S.C. § 101(e)) 86. Plaintiff NAACP and its members have a statutory right under 39 U.S.C. § 101(e) to have the Postal Service provide “highest consideration” to the “requirement for the most expeditious collection, transportation, and delivery of” their “important letter mail.” 87. Defendants have a nondiscretionary duty under 39 U.S.C. § 101(e) to provide “highest consideration” to the delivery of “important letter mail” to the members of the public, including Plaintiffs. 88. Defendants’ failure to follow the procedures required by 39 U.S.C. § 101(e) warrants relief in the nature of mandamus pursuant to 28 U.S.C. § 1361 if no other adequate remedy is available to plaintiff NAACP to enjoin Defendants’ unlawful action and compel action required of Defendants by law. 89. Plaintiff NAACP has been and will continue to be harmed by Defendants’ unlawful actions because delays to mail to its members as a result of these actions are ongoing.
PRAYER FOR RELIEF WHEREFORE, Plaintiff NAACP prays that this Court:
(A) Declare the changes announced in the Pivot Instructions and the changes to the treatment of election mail invalid for failure to follow required procedures;
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Case 1:20-cv-02295-EGS Document 1 Filed 08/20/20 Page 27 of 27

(B) Declare the changes announced in the Pivot Instructions and the changes to the

treatment of election mail invalid as arbitrary, capricious, or in violation of law;

(C) Enjoin Defendants from continuing to implement the changes to postal service

announced on July 10;

(D) Enjoin Defendants to continue the Postal Service’s prior policy of treating election

mail sent as Marketing Mail as First-Class mail, until such time as the Postal Service has sought

an advisory opinion from the Commission on these proposed changes and the public has been

provided a reasonable opportunity for comment; and

(D) Grant such other relief as this Court may deem just and proper.

Dated: August 20, 2020

Respectfully submitted,

Sam Spital (D.D.C. Bar No. SS4839) Rachel Kleinman (NY Bar No. 4417903) Monique Lin-Luse (NY Bar No. 5671920) J. Zachery Morris (NY Bar No. 5392196) John S. Cusick (NY Bar No. 5585245) NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 40 Rector Street, 5th Floor New York, NY 10006 (212) 965-2200

/s/ Allison M. Zieve

.

Allison M. Zieve

(DC Bar No. 424786)

Matthew A. Seligman

(DC Bar No. 1018889)

PUBLIC CITIZEN LITIGATION

GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

Counsel for Plaintiff NAACP

27

 
 Case 1:20-cv-02295-EGS Document 32 Filed 10/10/20 Page 1 of 40

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE,
Plaintiff,
v.

No. 20-cv-2295(EGS)

UNITED STATES POSTAL SERVICE, et al.,
Defendants.

MEMORANDUM OPINION I. Introduction
Plaintiff, the National Association for the Advancement of Colored People (“NAACP”) filed this lawsuit against Defendants the United States Postal Service (“USPS” or “Postal Service”) and Louis DeJoy (“Mr. DeJoy”), in his official capacity as Postmaster General of the United States, alleging the following claims: (1) Non-statutory review of unlawful agency action for failure to follow the procedures required by 39 U.S.C. § 3661; (2) Non-statutory review of unlawful agency action that is arbitrary, capricious, and not in accordance with 39 U.S.C. § 101(e); (3) Mandamus to enforce 29 U.S.C. § 3991; and (4) Mandamus to enforce 39 U.S.C. § 101(e). Plaintiff seeks a preliminary injunction with regard to their first and second claims. Upon consideration of Plaintiff’s motion, the response,
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and reply thereto, the applicable law, and the entire record, the Court GRANTS Plaintiff’s motion. II. 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 establishes that the policy of the USPS includes the mandate to “provide prompt, reliable, and efficient services to patrons in all areas and . . . render postal services to all communities.” 39 U.S.C. § 101. 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). 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
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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).
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).
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B. Factual Background 1. The COVID-19 Pandemic and Its Impact on Voting in the 2020 Election.1
On March 11, 2020, the World Health Organization (“WHO”) declared a global pandemic as a result of the spread of COVID19. See Dr. Tedros Adhanom, WHO Director-General’s Opening Remarks at the Media Briefing on COVID-19 (Mar. 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-sopening-remarks-at-the-media-briefing-on-covid-19---11-march2020. On March 13, 2020, President Donald J. Trump declared a national emergency as a result of the outbreak. Proclamation No. 9994, 85 Fed. Reg. 15,337 (Mar. 18, 2020).
The virus that causes COVID-19 is highly contagious, is believed to spread mostly from person-to-person when people are in within six feet of each other, and may be spread by people who are not showing symptoms of the virus. See Centers for Disease Control, Coronavirus Disease 2019 (COVID-19): How to Protect Yourself and Others (last updated Sep. 11, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-
1 The Court takes judicial notice of documents and information on official government websites. Fed. R. Evid. 201(b)(2); see also Western Watershed Project v. Bernhardt, 2020 WL 3402379, * 3 n.4 (D.D.C. June 19, 2020). The Court takes judicial notice of certain information at the World Health Organization website, the Johns Hopkins University website, and the Mayo Clinic website which is “not subject to reasonable dispute” because they are “sources whose accuracy cannot be reasonably questioned.” Fed. R. Evid. 201(b)(2).
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sick/prevention.html. Symptoms range from mild to severe. See Mayo Clinic, Coronavirus Disease 2019 (COVID-19), Symptoms and Causes (updated Sep. 11, 2020), https://www.mayoclinic.org/diseasesconditions/coronavirus/symptoms-causes/syc-20479963. Older people and people with existing chronic medical conditions have a higher risk of serious illness from COVID-19. Id. Such chronic medical conditions include “serious heart disease . . . , cancer, chronic obstructive pulmonary disease, type 2 diabetes, severe obesity, chronic kidney disease, sickle cell disease, and weakened immune system from solid organ transplants.” Id. COVID19 can result in severe medical complications including “pneumonia and trouble breathing, organ failure in more than one organ, heart problems, acute respiratory distress syndrome, blood clots, acute kidney injury, and additional viral and bacterial infections.” Id. A disproportionate number of black people have been infected and killed by the disease. The COVID Tracking Project, The COVID Racial Data Tracker, https://covidtracking.com/race.
As of October 10, 2020, just over one million people worldwide, and 214,004 Americans have died from COVID-19. See Johns Hopkins University, Coronavirus Resource Center, https://coronavirus.jhu.edu/map.html. Also as of October 6, 2020, over 37 million people worldwide have been infected, with
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the United States having more infections than any other country, with just over seven and a half million infections. Id.
In light of the COVID-19 pandemic, the Centers for Disease Control and Prevention (“CDC”) has provided guidance to voters and election polling locations to prevent the spread of the disease, including recommending “a wide variety of voting options . . . such as alternative voting options that minimize contact.” See CDC, Coronavirus Disease 2019 (COVID-19): Considerations for Election Polling Locations and Voters, Interim Guidance to Prevent Spread of Coronavirus Disease 2019 (COVID-19) (last updated June 22, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/electionpolling-locations.html. Consistent with this guidance, states have enacted temporary changes for the 2020 election including expanding the ability to vote by mail. Nat’l Conference of State Legislatures, COVID-19 and Elections, (last updated Oct. 2, 2020), https://www.ncsl.org/research/elections-andcampaigns/absentee-and-mail-voting-policies-in-effect-for-the2020-election.aspx.
2. USPS Implements Changes that Lead to Nationwide Mail Delays
The key changes that Plaintiff challenges are the prohibition on “late trips” and “extra trips” (collectively
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“Transportation Policy Changes”)2 announced on July 10, 2020.3 Reply, ECF No. 25 at 9.4 Defendants have since clarified that late or extra trips are not “banned”; however, they acknowledge that they continue “at a reduced level” that began in July 2020. Suppl. Cintron Decl., ECF No. 24-3 ¶ 4. By August 13, 2020, the USPS had reduced the number of late trips by 71 percent. Email from Mr. DeJoy to All Employees (“August 13, 2020 Email”), Aug. 13, 2020, ECF No. 25-1. Mr. DeJoy acknowledged that the “transformative initiative has had unintended consequences that impacted our overall service levels.” Id. at 2. On September 21, 2020, USPS issued “Operational Instructions” providing that “transportation, in the form of 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.” Ex. 1 to Notice Suppl. Material, ECF No. 29-1 at 4.
2 “Late trips” and “extra trips” have been employed by the USPS to “complete timely mail delivery.” Ex. 1 to Notice Suppl. Material, ECF No. 29-1 at 4. 3 Plaintiff originally challenged changes in addition to the Transportation Policy Changes, see Mem. in Supp. of Mot. for Prelim. Inj. (“Mot.”), ECF No. 8-1 at 22-23; but clarified that they challenge the Transportation Policy Changes, see Reply, ECF No. 25 at 9. 4 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document.
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It is undisputed that the USPS did not seek an advisory opinion pursuant to 39 U.S.C. § 3661(b) from the PRC prior to implementing these changes.
C. Procedural Background Plaintiff filed this lawsuit on August 20, 2020. On September 1, 2020, Plaintiff filed a motion for a preliminary injunction, which requests that the Court enjoin Defendants from enforcing certain USPS policies and practices. See Mem. in Supp. of Mot. for Prelim. Inj. (“Mot.”), ECF No. 8-1. Defendants filed their opposition on September 11, 2020. See Defs.’ Opp’n Mot. Prelim. Inj. (“Defs.’ Opp’n”), ECF No. 21. Plaintiff filed its reply brief on September 16, 2020. See Pls.’ Reply (“Reply”), ECF No. 25. The motion is ripe for the Court’s consideration. III. Standard of Review “A plaintiff seeking a preliminary injunction must establish [1] that [it] is likely to succeed on the merits, [2] that [it] is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.’” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (alteration in original) (quoting Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011)). 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). A
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preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). “The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). In this Circuit, the four factors have typically been evaluated on a “sliding scale,” such that if “the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor.” Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291–92 (D.C. Cir. 2009).
In the wake of the Supreme Court’s decision in Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008), “the D.C. Circuit has suggested that a positive showing on all four preliminary injunction factors may be required.” Holmes v. FEC, 71 F. Supp. 3d 178, 183 n.4 (D.D.C. 2014); see also Sherley, 644 F.3d at 393 (“[W]e read Winter at least to suggest if not to hold that a likelihood of success is an independent, freestanding requirement for a preliminary injunction.”) (quotation marks omitted). Nonetheless, “the Circuit has had no occasion to decide this question because it has not yet encountered a postWinter case where a preliminary injunction motion survived the
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less rigorous sliding-scale analysis.” ConverDyn v. Moniz, 68 F. Supp. 3d 34, 46 n.2 (D.D.C. 2014). IV. Analysis
Plaintiff argues that it is likely to succeed on the merits of its Section 3661(b) claim because “Congress has mandated that before implementing changes that have a nationwide impact on mail delivery, the Postal Service must provide an opportunity for public comment and seek an advisory opinion from the [PRC].” Mot., ECF No. 8-1 at 13. Plaintiff further argues that in rushing to make the Transportation Policy Changes, “Defendants failed to consider key statutory objectives about reliable mail service and the need to give the highest consideration to delivery [of] important mail, including ballots and checks . . . and failed to consider the adverse impact on timely delivery of medications” which they contend is inconsistent with the mandate set forth in Section 101. Id.
Defendants respond that Plaintiff lacks Article III standing, that district courts lack subject matter jurisdiction over Section 3661 claims, that the ultra vires doctrine does not provide for judicial review here, and that Plaintiff’s claim that defendants’ failure to comply with Section 101(e) was arbitrary and capricious cannot be brought. Defs.’ Opp’n, ECF No. 21 at 33-38, 39-43, 43-49, 49-51.
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A. Plaintiff Is Likely To Succeed On The Merits Of Its 39 U.S.C. § 3661(b) Claim 1. Plaintiff Likely Has Standing to Bring this Challenge
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, 134 S. Ct. 2334, 2341 (2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). “These requirements apply whether an organization asserts standing to sue, either on its own behalf, or on behalf of its members.” Nat’l Treasury Emps. Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 378 (1982). “Standing to seek . . . forward-looking injunctive relief requires [Plaintiff] to show [that it] is suffering an ongoing injury or faces immediate injury. For a future injury, that means submitting evidence showing that there is a substantial risk that the harm will recur.” Narragansett Indian Tribal Historic Pres. Office v. FERC, 949 F.3d 8, 13 (D.C. Cir. 2020) (internal quotation marks, citations, and alterations in original omitted).
“The party invoking federal jurisdiction bears the burden of establishing these elements.” Lujan, 504 U.S. at 561
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(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.
Defendants argue that Plaintiff fails to demonstrate injury to its members or to itself as an organization. “First, the fact that one of the Plaintiff’s members [Mr. Earl Graham, a disabled veteran] allegedly has been harmed by delayed mail in the past does not entitle Plaintiff to standing now, at least when it is seeking forward-looking injunctive relief” because Defendants have provided “evidence that mail delays have been mitigated” and so “there is no basis to conclude that this purported injury is likely to recur.” Defs.’ Opp’n, ECF No. 21 at 34-35 (citing City of Los Angeles v. Lyons, 461 U.S. 95, 107-108, 1983). However, Mr. Graham has described persisting mail delays. Decl. of Earl Graham,5 ECF No. 8-3 ¶ 6 (“Before this summer, my mailorder medications would arrive generally a few days after my doctor approved any prescription. Since mid-July, however, my medications have taken much longer to arrive, including sometimes arriving one week or longer after my doctor has
5 Earl Graham is a member of the NAACP. 12

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approved prescriptions.”); Second Decl. of Earl Graham, ECF No. 25-2 ¶ 2 (“The delays I discussed have continued since I submitted by August 28, 2020 declaration.); ¶ 3 (“A week [after an August 25, 2020 teleconference appointment with a Veterans Affairs doctor] the medicine approved by my doctor during my August 25, 2020, teleconference appointment still had not arrived. Without the medication, I began experiencing serious pain.”); ¶¶ 5-6 (explaining that he was eligible to be sent medication through express mail due to the seriousness of the pain he was experiencing and that he received the medication sent via express mail within two days); ¶ 6 (“By the time the delayed medication arrived, it had been almost two weeks since my August 25, 2020 teleconference appointment.”). As Plaintiff has provided evidence of continuing mail delays, Defendants’ reliance on City of L.A. for the proposition that the alleged injury is unlikely to recur is misplaced. In that case, the Supreme Court observed that “five months had elapsed between [the traffic stop resulting in a chokehold] and the filing of the complaint, yet there was no allegation of further unfortunate encounters between [Mr.] Lyons and the police.” City of Los Angeles, 461 U.S. at 108. Here, Plaintiff has provided evidence demonstrating that mail delays persist.
As part of this argument, Defendants contend that the Complaint does not allege what exactly caused the mail delays.
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Defs.’ Opp’n, ECF No. 21 at 34-35. However, Defendants’ own evidence demonstrates that Mr. DeJoy has acknowledged that the Transportation Policy Changes caused mail delays. See Ex. 5, Tr. of Senate Homeland Security and Governmental Affairs Comm. Hr’g on USPS Operations During COVID-19 and the Elections, Aug. 21, 2020, ECF No. 21-1 at 104 (Mr. DeJoy stating that the reduction in late trips resulted in mail delays); Id. at 309, (Mr. DeJoy stating that “[w]e are very concerned with the deterioration and service and are working very diligently.”); Id. at 323 (Mr. DeJoy stating that “[o]ur recovery process is taking too long. This should have been resolved in a couple of—in a few days and it’s-it’s not.”); Id. at 350 (Mr. DeJoy stating that “I think there is a lot of different issues going on within the country that are—impact mail delay, including the actions that we took with regard to transportation.”); August 13, 2020 Email, ECF No. 25-1 at 4 (“Unfortunately, this transformative initiative has had unintended consequences that impacted our overall service levels.”)
Second, Defendants argue that Plaintiff’s members’ concerns about future mail delays impacting their ability to vote fails to establish standing because future injury must be “certainly impending.” Defs.’ Opp’n, ECF No. 21 at 35 (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2010)). Defendants contend that “the Postal Service has numerous policies and practices
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designed to ensure that ballots will be timely delivered before the election,” that it is within Plaintiff’s members’ control to timely mail their ballots, and so their injury is speculative. Id. However, Defendants are incorrect to assert that standing to obtain injunctive relief requires the injury to be “certainly impending.” Rather, “[s]tanding to seek . . . forward-looking injunctive relief requires [Plaintiff] to show [that it] is suffering an ongoing injury or faces immediate injury. For a future injury, that means submitting evidence showing that there is a substantial risk that the harm will recur.” Narragansett Indian Tribal Historic Pres. Office, 949 F.3d at 13 (internal quotation marks, citations, and alterations in original omitted). Accordingly, as explained above, Plaintiff has demonstrated that its members face a “substantial risk that the harm will recur” and has demonstrated injury to its members.
Third, Defendants contend that Plaintiff alleges issue advocacy harm, which is insufficient to establish organizational standing. Defs.’ Opp’n, ECF No. 21 at 35-37. Plaintiff responds that it has provided evidence demonstrating that because of the impact of the mail delays, it is “diverting resources away from its ordinary voter registration activities, voter protection activities, and education activities designed to promote voter turnout” which pursuant to League of Women Voters v. Newby, 838
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F.3d 1 (D.C. Cir. 2016), constitutes irreparable injury. Reply,
ECF No. 25 at 30.
The Court of Appeals for the District of Columbia Circuit
(“D.C. Circuit”) recently articulated the test for determining
whether an organization satisfies the “irreparable harm” prong:
An organization is harmed if the “actions taken by [the defendant] have ‘perceptibly impaired’ the [organization's] programs.” Fair Emp't Council of Greater Wash., Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1276 (D.C. Cir. 1994) (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S. Ct. 1114, 71 L. Ed. 2d 214 (1982)); see also Nat'l Treasury Emps. Union v. United States, 101 F.3d 1423, 1430 (D.C. Cir. 1996) (explaining that the initial question is whether “a defendant's conduct has made the organization's activities more difficult”). If so, the organization must then also show that the defendant's actions “directly conflict with the organization's mission.” Nat'l Treasury Emps. Union, 101 F.3d at 1430. The second step is required to ensure that organizations cannot engage in activities simply to create an injury. Id.
League of Women Voters, 838 F.3d at 8. “Irreparable harm” is a
higher burden than that necessary to establish Article III
standing. Nat. Res. Def. Council, Inc. v. EPA, 383 F. Supp. 3d
1, 11 (D.D.C. 2019) (“‘an identifiable trifle is enough for
standing’”) (quoting United States v. Students Challenging Reg’y
Agency Procedures, 412 U.S. 669, 689 n.14 (1973)).
Plaintiff has provided evidence demonstrating that it “has
established a civic engagement program, which is designed to
encourage citizens to be fully engaged in the democratic
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process, and to raise awareness for political, educational, social and economic equality for communities of color in the electoral and legislative process. . . [T]he program seeks to increase turnout among Black voters in federal, state, and local elections.” Decl. of Carmen Watkins,6 ECF No. 8-2 ¶¶ 2, 6. Plaintiff has also demonstrated that Defendants’ actions have “made the organization’s activities more difficult,” League of Women Voters, 838 F.3d at 8 (citation omitted); because Plaintiff has explained that needing to address the impact of the mail delays is causing it to “divert[] resources from the regular activities of the NAACP’s civil engagement program,” which includes “registering voters, contacting registered voters to ensure that they have accurate voting information and encouraging them to vote, organizing events to get out the vote, and conducting voter protection activities during early voting.” Id. ¶ 11.
Next, Plaintiff must show that “the defendant's actions ‘directly conflict with the organization's mission’” in order “to ensure that organizations cannot engage in activities simply to create an injury.” League of Women Voters, 838 F.3d at 8. Plaintiff’s civic engagement program is clearly part of its mission “to ensure the political, educational, social, and
6 Carmen Watkins is the Interim Vice President of Field Operations for the NAACP.
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economic equality of all persons and to eliminate race-based discrimination.” Watkins Decl., ECF No. 8-2 ¶ 2. And as stated above, the civic engagement program includes “registering voters, contacting registered voters to ensure that they have accurate voting information and encouraging them to vote, organizing events to get out the vote, and conducting voter protection activities during early voting.” Id. ¶ 11. Accordingly, Plaintiff has provided evidence demonstrating that to Defendants’ actions “directly conflict with [its] mission” because it has needed to divert resources from the civic engagement program to instead “organize transportation for voters to drop off their absentee ballots” in various states. Id. ¶¶ 8, 9, 10, 12.
Defendants fail to distinguish League of Women Voters in their opposition brief and the authorities they point to support Plaintiff’s ability to satisfy “irreparable harm,” a higher burden than that necessary to establish Article III standing. Plaintiff has provided evidence that due to mail delays caused by Defendants’ action, they have needed in the past and will need in the future to divert resources from their civic engagement program to organize transportation to ensure that votes are counted. This constitutes a “drain on the organization’s resources”; not simply a “setback to the organization’s abstract social interests.” Nat’l Ass’n of Home
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Builders v. EPA, 667 F.3d 6, 11 (D.C. Cir. 2011) (quoting Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433 (D.C. Cir. 1995)). Similarly, Plaintiff’s provision of services through its civic engagement program demonstrates that it does not engage solely in “pure issue-advocacy.” Ctr. for Law & Educ v. Dep’t of Educ., 396 F.3d 1152, 1162 (D.C. Cir. 2005). Rather, Plaintiff’s activities are more akin to those of Housing Opportunities Made Equal (“HOME”), which the Supreme Court held had standing in Havens Realty Corp. v. Coleman. In so holding, the Supreme Court stated:
If, as broadly alleged, petitioner’s steering practices have perceptibly impaired HOME’s ability to providing counseling and referral services for low-and moderate-income home seekers, there can be no question that the organization has suffered injury in fact. Such concrete and demonstrable injury to the organization’s activities–with the consequent drain on the organization’s resources— constitutes far more than simply a setback to the organization’s abstract social interests.
455 U.S. at 379. Similarly, here Plaintiff has provided evidence demonstrating how mail delays are causing it to divert resources from its usual civic engagement activities, which is distinguishable from the situation in Int’l Acad. Of Oral Medicine & Toxicology v. FDA, 195 F. Supp. 3d 243 (D.D.C. 2016), where the Plaintiff failed to explain how the agency action “forced it to divert or modify its activities in any meaningful way from its standard programmatic efforts.” Id. at 259.
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For all of these reasons, Plaintiff has provided evidence “showing that there is a substantial risk that the harm will recur.” Narragansett Indian Tribal Historic Pres. Office, 949 F.3d at 13.
Finally, Defendants argue that “Plaintiff cannot establish causation or redressability because it seeks to enjoin changes that have not occurred.” Defs.’ Opp’n, ECF No. 38. Specifically, Defendants argue that “the only specific change that was actually implemented was additional guidance on complying with long-established transportation schedules by departing on time and thus mitigating extra trips.” Id. This, however, is precisely what Plaintiff challenges. Reply, ECF No. 25 at 9, 1921.
For all of these reasons, Plaintiff has demonstrated that it likely has standing to bring its claims on behalf of its members and itself as an organization.
2. This Court Likely Has Subject Matter Jurisdiction Over The Section 3661 Claim
Defendants contend that this court lacks subject matter jurisdiction over “complaints regarding” Section 3661 because such complaints must first be made to the PRC and then to the D.C. Circuit. Defs.’ Opp’n, ECF No. 21 at 39. The statutory scheme provides as follows. 39 U.S.C. § 409(a) provides that “[e]xcept as otherwise provided in this title, the United States
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district courts shall have original but not exclusive jurisdiction over all actions brought by or against the Postal Service.” One of the exceptions to this original jurisdiction is set forth in 39 U.S.C. § 3662, which 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 [PRC] . . .” Section 3662(b) requires the PRC to respond to the complaint within 90 days and provides that if a complaint is not timely responded to, a petition for review may be filed with the D.C. Circuit, which also has jurisdiction to review final orders or decisions of the PRC.
Plaintiff’s complaint alleges a procedural violation—that the USPS failed to comply with the requirement 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.” 39 U.S.C. § 3661.
Defendants contend that “[c]ourts have repeatedly held that 39 U.S.C. §§ 3662 and 3663 constitute the exclusive jurisdictional remedy for complaints about postal services that
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fall within the statutory provisions specifically identified in [S]ection 3662.” Defs.’ Opp’n, ECF No. 21 at 40. However, defendants have provided no mandatory authority to support their assertion that Sections 3662 and 3663 constitute the exclusive jurisdictional remedy for a claim that the USPS has failed to comply with the procedural requirements set forth in Section 3661. Indeed, Plaintiff points out that none of the cases cited by defendants “concerns a failure to follow the procedural requirements of [S]ection 3661” but rather “considered a complaint about Postal Service prices and the manner in which the Postal Service provides delivery services.” Reply, ECF No. 25 at 12.
“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, 307 (1994) (internal citation omitted). The language of the statute is broad: “[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 . . .” 39 U.S.C. § 3662. This could certainly be read to mean that the failure of the USPS to comply with the
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procedural requirement set forth in Section 3661 would be encompassed by Section 3662. Plaintiff argues that the use of the permissive “may” in Section 3662 coupled with the mandatory phrasing “shall” in Section 3662(c) shows Congress did not intend to limit jurisdiction over Section 3661 claims. See Reply, ECF No. 25 at 10. 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. The use of the permissive “may” coupled with the use of the mandatory “shall” 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 v. Panama Canal Co., 475 F.2d 1280, 1828 (D.C. Cir. 1973) (“[T]he permissive interpretation is conclusively proven to be 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 . . . .”). This interpretation is strengthened because the statute expressly provides that this
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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).
The availability of judicial review for the USPS’s failure to comply with Section 3661 is consistent with the legislative history of the PRA. In the discussion of the section of the PRA that established the “procedures for changes in postal service,” the House Committee Report states that “[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 Buchanan v. U.S. Postal Serv., 508 F.2d 259, 263 n.6 (5th Cir. 1975) (“[T]he procedures mandated by 3661 are sufficiently elaborate to amount to a significant impediment in the path of the decision-making process of the Postal Service.”).
The Court must also consider 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
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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.”7 Jaresky v. SEC, 803 F.3d 9, 17 (D.D.C. 2015) (quoting Free Enter. Fund v. Pub. Company Acct. Oversight Board, 561 U.S. 477, 489-90 (2010). Mindful of the fact that there is a 90-day window for the PRC to respond to a complaint brought pursuant to Section 3661, Defendants contend that it does not matter that the PRC cannot provide immediate relief because eventual relief is sufficient as a matter of law. Defs.’ Opp’n, ECF No. 21 at 43 n.11. However, the authority upon which Defendants rely is inapposite. In American Federation of Government Employees, AFLCIO v. Trump, 929 F.3d 748 (D.D.C. 2019), the court held that meaningful judicial review was not foreclosed because Plaintiffs were unable to obtain “pre-implementation review of executive orders or immediate relief barring all agencies from implementing the executive orders,” Id. at 755 (internal quotation marks omitted); because there the parties agreed to consolidate their preliminary injunction requests with the
7 Defendants’ assertion that the three factors must be met is incorrect. See Jaresky v. SEC, 803 F.3d 9, 17 (D.D.C. 2015).
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merits, see Scheduling Order, Civil Action No. 18-1261, ECF No. 16 at 1.
With regard to the first consideration—whether Plaintiff would be denied meaningful review—it is clear that it would. There is no dispute that the USPS did not comply with Section 3661 in implementing the Transportation Policy Changes, and Plaintiff has provided evidence demonstrating that the changes have resulted in mail delays which cause Plaintiff’s members and Plaintiff as an organization harm. See supra IV.A.1. Accordingly, even if there was a “fairly discernible” intent in the statutory scheme to preclude district court jurisdiction, requiring Plaintiff to go through the PRC process would deny it meaningful review. See Berkley v. Mountain Valley Pipeline, LLC, 896 F.3d 624, 631 (4th Cir. 2018) (noting that “plaintiffs are denied meaningful review when they are subject to some additional and irremediable harm beyond the burdens associated with the dispute resolution process” (internal quotation marks and citations omitted)); Krescholleck v. S. Stevedoring Co., 78 F.3d 868, 875 (3d Cir. 1996) (noting that the plaintiff had “alleged a sufficiently serious irreparable injury to lead us to conclude that the administrative review process is insufficient to afford him full relief”). And persuasive authority holds that this factor is the “most important.” Berkley, 896 F.3d at 630. Accordingly, this first factor weighs in favor of finding
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Congress intended district courts to have jurisdiction over claims such as the one brought by Plaintiff. The second consideration–whether the claim is wholly collateral to the statutory scheme—is “‘related’ to whether ‘meaningful judicial review’ is available, and the two considerations are analyzed together.” Am. Fed’n of Gov’t Emps., AFL-CIO v. Trump, 929 F.3d 748, 758 (D.C. Cir. 2019) (quoting Jarskey, 803 F.3d at 22.) The question to ask is “whether the plaintiffs ‘aimed to obtain the same relief they could seek in the agency proceeding.’” Id. at 758-60 (quoting Jarskey, 803 F.3d at 23). Here, the relief Plaintiff seeks cannot be meaningfully redressed through filing a Section 3662 complaint.
The third consideration is whether the claim is “beyond the expertise” of the PRC. Plaintiff’s claim is that the USPS failed to comply with the procedural requirement set forth in Section 3661. This procedural claim does not require the “agency expertise” the statutory procedures contemplate. Berkley, 896 F.3d at 630. Accordingly, precluding district court jurisdiction here would completely deny Plaintiff meaningful review given the timing of the implementation of the Transportation Policy Changes.
For all these reasons, the Court likely has subject matter jurisdiction over Plaintiff’s Section 3661(b) claim. See Commonwealth of Pennsylvania v. DeJoy, Civil Action No. 20-4096,
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2020 WL 5763553, *22 (E.D. Pa. Sept. 29, 2020) (stating that “Congressional intent to preclude district courts from hearing claims relating to [S]ection 3661(b) is not fairly discernible from the text, structure, and legislative history of the PRA.”).
3. Plaintiff’s Section 3661(b) Claim Is Likely Reviewable Pursuant To The Ultra Vires Doctrine
While as a general matter “the Postal Service is exempt from review under the Administrative Procedure Act, . . . its actions are reviewable to determine whether it has acted in excess of its statutory authority.” N. Air Cargo v. U.S. Postal Serv., 674 F.3d 852, 858 (D.C. Cir. 2012). “The scope of Non-APA review is narrow . . . [and] is available only to determine whether the agency has acted ultra vires—that is whether it has exceeded its statutory authority.” Sears, Roebuck & Co. v. U.S. Postal Serv., 844 F.3d 260, 265 (D.C. Cir. 2016) (quotation marks and citations omitted).
Defendants contend that ultra vires review is unavailable because: (1) Plaintiff cannot show that USPS acted “in excess of its delegated powers and contrary to a specific prohibition” because they cannot show that USPS violated Section 3661(b); and (2) Plaintiff has a “meaningful and adequate means of vindicating [their] statutory rights” because they can file a complaint with the PRC pursuant to Section 3662. Defs.’ Opp’n, ECF No. 21 at 44 (citing Nat’l Air Traffic Controllers Ass’n
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AFL-CIO v. Fed. Serv. Impasses Panel, 437 F.3d 1256, 1258 (D.C.
Cir. 2006) (internal quotation marks and citations omitted)).
The Court is persuaded that Plaintiff’s claim is
reviewable:
“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) (citing the leading case, Leedom v. Kyne, 358 U.S. 184, 188, 79 S.Ct. 180, 183-84, 3 L. Ed. 2d 210 (1958) (finding judicial review proper despite statutory preclusion of judicial review, where the NLRB acted “in excess of its delegated powers and contrary to a specific prohibition” in the NLRA)).
Aid Ass’n for Lutherans v. U.S. Postal Service, 321 F.3d 116,
1172-73 (D.C. Cir. 2003). Plaintiff’s claim here is that the
USPS failed to comply with the requirement Congress set forth in
Section 3661. Accordingly, Plaintiff’s claim “clearly admit[s]
of judicial review.” Id. at 1173.
4. USPS Likely 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 of Postal Sup’rs v. U.S. Postal Serv., 602 F.2d 420, 432
(D.C. Cir. 1979). 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
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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.”
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.
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Buchanan v. U.S. Postal Service, 508 F.2d 259, 263 (5th Cir. 1975).
There is no dispute that the USPS did not comply with Section 3661(b) prior to implementing the Transportation Policy Changes. Defendants argue that the Transportation Policy Changes do not implicate Section 3661(b) because: (1) there has been no “meaningful impact on service;” (2) postal services available to the user have not been altered; and (3) the changes have not affected service in a broad geographical area. Defs.’ Opp’n, ECF No. 21 at 46 (quoting and citing Buchanan 508 F.2d at 263). In support, Defendants argue that “[t]he only notable change USPS has made has been to renew its emphasis on adhering to its published schedule, including developing written guidance clarifying the circumstances under which extra truck trips were acceptable, in order to mitigate the number of unplanned and unnecessary trips” which is not a “change” that is contemplated in Section 3661. Id. at 46-47. Defendants contend that this “is not a new policy but rather has a renewed focus on ensuring the Postal Service complies with its existing policies, and that it operates as efficiently as possible.” Id. Defendants conclude that this is “precisely the type of management direction to which [S]ection 3661 does not apply.” Id. at 47.
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The Court is persuaded that Plaintiff is likely to succeed on its claim that Defendants violated Section 3661(b) by failing to submit the Transportation Policy Changes to the PRC. First, it was a “change” because it has had a “meaningful impact on service.” Buchanan, 508 F.2d at 263. Plaintiff points to evidence showing that the reduction in extra and late trips has resulted in changes to service standards nationwide because it has resulted in nationwide delays. See supra at 6-7, 13-14; see also August 13, 2020 Email, ECF No. 25-1 at 4 (“We have also reduced extra trips by 71 percent – a tremendous achievement.”) Furthermore, Plaintiff has demonstrated that Defendants’ position that the Transportation Policy Changes do not constitute a “change” is not supported by the USPS’s own statements. See id. at 3-4 (“In order to transform . . . we must make a significant number of changes that will not be easy . . . ); Id. at 4 (“Unfortunately, this transformative initiative has had unintended consequences that impacted out overall service levels. However, recent changes are not the only contributing factors.”); Id. (“I ask that you bear with me while we work through these changes to transform for the better . . .”).
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, Plaintiff
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points to evidence showing that the reduction in extra and late trips 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. Defendants’ own evidence demonstrates that service was affected on a nation-wide basis. See Defs.’ Ex. 14, ECF No. 21-1 at 452-53 (Mr. DeJoy stating that the reduction in late and extra trips occurred in “[e]very state a truck moves in”).
Defendants contend that pursuant to past practice, the types of “nationwide changes that trigger 3661’s review are general changes to postal facility hours or service standards for mail delivery”; and not the type of operational change at issue here. Id. at 47-49. However, based on the analysis above, the significant reduction in late and extra trips has resulted in a change to service standards.
While it is clear that Congress did not intend for the courts to micromanage the operations of the USPS, requiring the USPS to comply with the statutory requirement that it obtain an advisory opinion from the PRC and provide for notice and comment prior to implementing “a change in the nature of postal services which will generally affect service on a nationwide or substantially nationwide basis” is not micro-managing; it is requiring the USPS to act within its statutory authority.
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Furthermore, Congress clearly intended Section 3661 to require an opportunity for public participation and for independent review before the USPS implements service changes that will have a broad effect. The broad scope of the Transportation 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.
Finally, Defendants argue that because Plaintiff has a “meaningful and adequate means of vindicating their statutory rights” by filing a complaint with the PRC and then seek judicial review in the D.C. Circuit if unsatisfied, they cannot establish ultra vires jurisdiction. Defs.’ Opp’n, ECF No. 21 at 44. Plaintiff responds—and the Court agrees—that the PRC complaint process, even if it is available for their procedural challenge, would not redress its injury due to the timeframes involved. Reply, ECF No. 25 at 18. Because the Court finds that Plaintiff has shown it will likely succeed on its claim that Defendants’ Transportation Policy Changes likely violated 39 U.S.C. § 3661(b), the Court need not evaluate Plaintiff’s claim that Defendants acted arbitrarily, capriciously, and contrary to the mandate of Section 101(e) at this time.
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C. Plaintiff Faces Irreparable Harm “In this Circuit, a litigant seeking a preliminary
injunction must satisfy ‘a high standard’ for irreparable injury.” ConverDyn, 68 F. Supp. 3d at 46 (quoting Chaplaincy of Full Gospel Churches, 454 F.3d at 297). The movant must demonstrate that it faces an injury that is “both certain and great; it must be actual and not theoretical,” and of a nature “of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.” Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (quotation marks and emphasis omitted). Furthermore, an organization faces irreparable harm where (1) the “actions taken by [the defendant] have ‘perceptibly impaired’ the [organization’s] programs,” League of Women Voters v. Newby, 838 F.3d 1, 8 (D.C. Cir. 2016) (quoting Fair Emp’t Council of Greater Wash., 28 F.3d at 1276), and (2) “the defendant’s actions ‘directly conflict with the organization’s mission,” id. (quoting Nat’l Treasury Emps. Union, 101 F.3d at 1430.
With regard to the irreparable harm to its members, Plaintiff argues and submits evidence demonstrating that the “changes that USPS implemented without following the required [S]ection 3661 process have caused delays that harm, and will continue to harm, NAACP members.” Mot., ECF No. 8-1 at 38. Defendants counter first, that there is no procedural injury
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because “Plaintiff cannot state a claim under [S]ection 3661 and thus cannot have suffered any procedural injury as a result of any violation of that statute.” Defs.’ Opp’n, ECF No. 21 at 52. However, the Court has determined that Defendants likely violated Section 3661(b). See supra Section IV.A.4. And a failure to comply with Section 3661(b) is sufficient to show irreparable harm. See Buchanan, 375 F. Supp. 1014, 1022 (N.D. Ga. 1974) (“The denial of . . . a [Section 3661] hearing, should one be required, is sufficient irreparable injury to support interlocutory injunctive relief, for it is clear that no hearing will be conducted and that the changes will continue unless enjoined.”) aff’d in relevant part, 508 F.2d at 266 (stating that the district court “was correct in its determinations that plaintiffs had properly established that there was a substantial threat of irreparable injury”). Second, Defendants counter that “Plaintiff has not identified that its members are likely to suffer any injuries in terms of the potential future delay of their ballots” in light of the USPS’s service improvements, noting that all Mr. Graham has to do is “mail[] his ballot a reasonable time before the election (which is approximately two months away).” Defs.’ Opp’n, ECF No. 21 at 52. However, Mr. Graham’s ability to return his ballot on time is not wholly within his control as the mailing of ballots is a matter of state law. See supra Section II.B.1 Furthermore, Plaintiff has
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demonstrated that mail delays have persisted. See generally Second Decl. of Earl Graham, ECF No. 25-2.
With regard to irreparable harm to Plaintiff as an organization, Plaintiff argues and submits evidence demonstrating that “the delays caused by the Postal Service’s changes have harmed, and continue to harm, the NAACP itself by frustrating its mission and requiring it to divert resources to counteract the effect of USPS’s action.” Mot., ECF No. 8-1 at 39-40. Defendants counter that Plaintiff’s claimed injury to its resources fails because “Plaintiff has not established that mail delays were necessarily the result of the challenged policies, or that future delays, if there are any, would be the result of these Postal Service operational changes,” Defs.’ Opp’n, ECF No. 21; and that in view of the steps USPS has taken to improve service performance, Plaintiff cannot show that “future harm is imminent or likely to recur,” id. at 53. However, the Court has already determined that Plaintiff as an organization has demonstrated irreparable harm. See supra at 15-20.
Accordingly, both Plaintiff’s members and Plaintiff as an organization face irreparable harm absent a preliminary injunction.
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D. The Balance Of Equities And Public Interest Favor An Injunction
The balance-of-equities factor directs the Court to “‘balance the competing claims of injury and . . . consider the effect on each party of the granting or withholding of the requested relief.’” ConverDyn, 68 F. Supp. 3d at 52 (quoting Winter, 555 U.S. at 24). “When the issuance of a preliminary injunction, while preventing harm to one party, causes injury to the other, this factor does not weigh in favor of granting preliminary injunctive relief.” Id.; see also Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1326 (D.C. Cir. 1998). By contrast, the balance of equities may favor a preliminary injunction that serves only “‘to preserve the relative positions of the parties until a trial on the merits can be held.’” 64 F. Supp. 3d 195, 205 (D.D.C. 2014) (quoting Camenisch, 451 U.S. at 395). “The purpose of . . . interim relief is not to conclusively determine the rights of the parties, University of Tex. v. Camenisch, 451 U.S. 390, 395 (1981), but to balance the equities as the litigation moves forward. In awarding a preliminary injunction a court must also ‘conside[r] . . . the overall public interest,’ Winter, 555 U.S. at 26.” Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017).
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Plaintiff argues that, as it explained in its argument that it has standing to bring its claims, without an injunction, “the NAACP and its members will suffer serious and immediate harms that could not be sufficiently remedied later . . . [and that] the Postal Service would not be harmed by an order requiring it to follow the law, and the public interest is served when administrative agencies comply with their statutory obligations,” noting that “[t]his point applies fully to procedural obligations imposed by statute.” Mot., ECF No. 8-1 at 41-42. Plaintiff also notes that “the public would not be harmed (to the contrary) by the restoration of reliable postal service, providing the timely delivery of medicines and checks and other important mail.” Id. at 42.
Defendants fail to respond to Plaintiff’s arguments, responding only that they are “undertaking extensive efforts to facilitate the timely delivery of Election Mail” and that “Plaintiff’s member voters have an opportunity to avoid any harm by mailing in their ballots without delay.” Defs.’ Opp’n, ECF No. 21 at 54. Defendants also contend that ensuring “full compliance could [inappropriately] require the Court to act as an overseer of the agency’s day-to-day activities.” Id.
The balance of the equities and the public interest favor an injunction. First, Defendants identify no harms to themselves whereas Plaintiff has demonstrated serious, immediate, and
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recurring harms to its members and to itself as an organization.

Defendants’ suggestion that an injunction could require the

Court to oversee the USPS’s “day-to-day activities” is without

merit given that the Court will issue a targeted preliminary

injunction enjoining the USPS from implementing the

Transportation Policy Changes. Second, “there is a substantial

public interest ‘in having governmental agencies abide by the

federal laws that govern their existence and operations.’”

League of Women Voters, 838 F.3d at 12 (quoting Washington v.

Reno, 35 F.3d 1093, 1103 (6th Cir. 1994).

V. Conclusion For the foregoing reasons, the Court GRANTS Plaintiff’s

motion for a preliminary injunction. Any request to stay this

decision pending appeal will be denied for substantially the

same reasons as those articulated in this Opinion. An

appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed:

Emmet G. Sullivan United States District Judge October 10, 2020

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 Case 1:20-cv-02295-EGS Document 22 Filed 09/09/20 Page 1 of 23

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE,

Plaintiff, v.

No. 1:20-cv-2295-EGS

UNITED STATES POSTAL SERVICE and LOUIS DEJOY, in his official capacity as Postmaster General of the United States Postal Service,

Defendants.

BRIEF OF MEMBERS OF CONGRESS AS AMICI CURIAE IN SUPPORT OF PLAINTIFF
Elizabeth B. Wydra (DC Bar No. 483298) Brianne J. Gorod (DC Bar No. 982075) Dayna J. Zolle (DC Bar No. 1672633) CONSTITUTIONAL ACCOUNTABILITY
CENTER 1200 18th Street NW, Suite 501 Washington, D.C. 20036 (202) 296-6889 elizabeth@theusconstitution.org brianne@theusconstitution.org dayna@theusconstitution.org
Counsel for Amici Curiae

Case 1:20-cv-02295-EGS Document 22 Filed 09/09/20 Page 2 of 23

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES.................................................................................................. ii
INTEREST OF AMICI CURIAE ............................................................................................ 1
INTRODUCTION .................................................................................................................. 1
ARGUMENT ......................................................................................................................... 4
I. Since the Nation’s Founding, The Post Office Has Played a Critically Important Role in American Society .................................................................... 4
II. Reflecting the Importance of the Postal System’s Role, Congress Has Required the Postal Service to Follow Certain Procedures Whenever It Seeks to Change the Nature of Postal Services in a Way That Will Generally Affect Service on a Substantially Nationwide Basis ............................................................................ 7
III. By Failing to Request an Opinion from the Postal Regulatory Commission Before Making Its Recent Changes, the Postal Service Has Violated Federal Law ....................................................................................................................... 12
CONCLUSION ...................................................................................................................... 16
APPENDIX: LIST OF AMICI................................................................................................ 1A

i

Case 1:20-cv-02295-EGS Document 22 Filed 09/09/20 Page 3 of 23

TABLE OF AUTHORITIES

Page(s)

CASES

Buchanan v. U.S. Postal Serv., 508 F.2d 259 (5th Cir. 1975).....................................................................................

11, 14

Carlson v. Postal Regulatory Comm’n, 938 F.3d 337 (D.C. Cir. 2019) ..................................................................................

9, 14

GameFly, Inc. v. Postal Regulatory Comm’n,

704 F.3d 145 (D.C. Cir. 2013) ..................................................................................

9

Govs. of U.S. Postal Serv. v. U.S. Postal Rate Comm’n,

654 F.2d 108 (D.C. Cir. 1981) ..................................................................................

8, 9

United Parcel Serv., Inc. v. U.S. Postal Serv., 604 F.2d 1370 (3d Cir. 1979).................................................................................... 8, 11, 14

U.S. Postal Serv. v. Flamingo Indus. (USA) Ltd.,

540 U.S. 736 (2004) ..................................................................................................

10

CONSTITUTIONAL PROVISIONS, STATUTES, AND LEGISLATIVE MATERIALS

Conf. Rep. No. 91-1363, 91st Cong., 2d Sess. (Aug. 3, 1970) .....................................

12

H.R. Rep. No. 91-1104 (1970) ...................................................................................... passim

Postal Accountability and Enhancement Act of 2006, Pub. L. No. 109-435, 120 Stat. 3198

(Dec. 20, 2006) (codified at 39 U.S.C. § 3600 et seq.) .............................................

1, 12

Postal Reorganization Act of 1970, Pub. L. No. 91-375, 84 Stat. 719 (Aug. 12, 1970) (codified at 39 U.S.C. § 101 et seq.) ..............................................

1, 8, 9

Postal Service Act of 1792, ch. 7, 1 Stat. 232 ...............................................................

2, 5

39 U.S.C. § 202(a) .........................................................................................................

8

39 U.S.C. § 202(c) .........................................................................................................

8

39 U.S.C. § 202(d).........................................................................................................

8

39 U.S.C. § 402 .............................................................................................................

11

ii

Case 1:20-cv-02295-EGS Document 22 Filed 09/09/20 Page 4 of 23

TABLE OF AUTHORITIES – cont’d

Page(s)

39 U.S.C. § 3601 ...........................................................................................................

9

39 U.S.C. § 3621 ...........................................................................................................

11

39 U.S.C. § 3622 ...........................................................................................................

9

39 U.S.C. § 3623 ...........................................................................................................

9

39 U.S.C. § 3624 ...........................................................................................................

9

39 U.S.C. § 3661(b)....................................................................................................... 39 U.S.C. § 3661(c) ....................................................................................................... 39 U.S.C. § 3663 ...........................................................................................................

passim 3, 7 9

U.S. Const. art. 1, § 8 ....................................................................................................

2, 4

OTHER AUTHORITIES

Compl., NAACP v. U.S. Postal Serv., No. 1:20-cv-2295 (D.D.C. Aug. 20, 2020) ....... 2, 6, 12, 13

Compl., New York v. Trump, No. 1:20-cv-2340 (D.D.C. Aug. 25, 2020).................... 2, 12, 13, 15

Compl., Washington v. Trump, No. 1:20-3127 (E.D. Wash. Aug. 18, 2020) ...............

9, 12

The Federalist No. 42 (James Madison) (Clinton Rossiter ed., 1961) ..........................

5

Wendell Phillips Garrison, 1 William Lloyd Garrison, 1805-1879: The Story of His Life

Told by His Children (1885) .....................................................................................

6

Richard R. John, Spreading the News: The American Postal System from Franklin to

Morse (1995).............................................................................................................

5

Pres. Richard Nixon, Remarks upon Signing the Postal Reorganization Act

(Aug. 12, 1970) .........................................................................................................

11

President’s Commission on Postal Organization, Towards Postal Excellence (1968) . 3, 4, 8, 10

Rural and Urban Origins of the U.S. Postal Service, RISC Report WP-19-007

(Aug. 26, 2019) .........................................................................................................

6

iii

Case 1:20-cv-02295-EGS Document 22 Filed 09/09/20 Page 5 of 23

TABLE OF AUTHORITIES – cont’d

Page(s)

W. Sherman Savage, Abolitionist Literature in the Mails. 1835-1836,

13 J. Afr. Am. Hist. 150 (1928) ................................................................................

6

Alex Seitz-Wald, How Do You Know Voting by Mail Works? The U.S. Military’s Done It

Since the Civil War, NBC News (Apr. 19, 2020),

https://www.nbcnews.com/politics/2020-election/how-do-you-know-voting-mail-

works-u-s-military-n1186926 ...................................................................................

13

iv

Case 1:20-cv-02295-EGS Document 22 Filed 09/09/20 Page 6 of 23
INTEREST OF AMICI CURIAE1 Amici are members of the U.S. Senate, many of whom served when key components of the nation’s laws governing the U.S. Postal Service, including provisions pertinent to this case, were drafted, debated, and passed. Based on their experience serving in Congress, amici understand that the Postal Reorganization Act of 1970, Pub. L. No. 91-375, 84 Stat. 719 (Aug. 12, 1970) (codified at 39 U.S.C. § 101 et seq.), as amended by the Postal Accountability and Enhancement Act of 2006, Pub. L. No. 109-435, 120 Stat. 3198 (Dec. 20, 2006) (codified at 39 U.S.C. § 3600 et seq.), was passed to ensure that management of the Postal Service remains free from partisan politics and accountable to the American public, particularly when the Postal Service seeks to make nationwide changes in the nature of postal services. Amici therefore have a substantial interest in ensuring that this Court recognizes that when the Postal Service and Postmaster General failed to follow the procedures set forth in 39 U.S.C. § 3661—which requires that the Postal Regulatory Commission and members of the public have the opportunity to weigh in before the Postal Service implements certain changes—they not only violated the plain text of § 3661 but also acted counter to Congress’s plan in enacting that legislation. A full listing of amici appears in the Appendix.
INTRODUCTION In June and July 2020, Postmaster General Louis DeJoy instituted several major changes that have had a significant effect on the nature of postal services nationwide. According to Plaintiffs in this lawsuit and others, the U.S. Postal Service has, under DeJoy’s instruction, “removed hundreds of collection boxes and high-speed sorting machines; cut or curtailed
1 Amici state that no counsel for a party authored this brief in whole or in part, and no person other than amici or their counsel made a monetary contribution to the brief’s preparation or submission.
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overtime; prohibited needed late trips and extra trips; and [begun] a pilot program in almost 400 localities that turned how the agency processes mail on its head.” Compl. 2, New York v. Trump, No. 1:20-cv-2340 (D.D.C. Aug. 25, 2020). These changes have allegedly “produced serious delays across the country despite the fact that letter mail volume had decreased during the [COVID-19] pandemic.” Id. at 3; see Compl. 2, NAACP v. U.S. Postal Serv., No. 1:20-cv-2295 (D.D.C. Aug. 20, 2020) (“[T]he Postal Service has made significant changes that have resulted in unreliable service and widespread delays.”). Particularly troubling, these changes “will hinder the delivery of mail ballots and ballot applications” across the country, Compl. 61, New York, No. 1:20-cv-2340, just as many states are “expect[ing] a record-breaking volume of mail-in voting for the November 2020 election,” Compl. 16, NAACP, No. 1:20-cv-2295. The Postal Service has imposed these changes in violation of federal laws that Congress passed to protect the Postal Service from partisan influence and ensure its accountability to the public.
The U.S. Constitution vests Congress with the power to “establish Post Offices and post Roads,” U.S. Const. art. 1, § 8, and Congress created the U.S. Post Office Department just a few years after the Constitution’s ratification, Postal Service Act of 1792, ch. 7, § 1, 1 Stat. 232. The postal system quickly became fundamental to the functioning of American democracy and American society more broadly. As the United States developed and grew, the Post Office Department made changes to the postal system to ensure that it was accessible to everyone, no matter where they lived or how much money they had.
Reflecting the critically important role the Postal Service has played in American society since the nation’s founding, Congress has acted over time to protect the integrity and effectiveness of the postal system. As relevant here, Congress enacted the Postal Reorganization Act of 1970, as amended by the Postal Accountability and Enhancement Act of 2006, which
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requires the Postal Service to follow certain procedures that allow the public to weigh in “[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.” 39 U.S.C. § 3661(b). Specifically, when the Postal Service seeks to make such a change, it “shall submit a proposal . . . to the Postal Regulatory Commission requesting an advisory opinion on the change.” Id. The Act also states that “[t]he Commission shall not issue its opinion on any proposal until an opportunity for hearing on the record . . . 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.” Id. § 3661(c).
The history of the Postal Reorganization Act makes clear that Congress passed that law to “[i]nsulate” management of the Postal Service “from partisan politics . . . by having the Postmaster General responsible to the [Postal Regulatory] 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). The Act was based on the recommendations of the Kappel Commission, which President Johnson assembled to determine whether the postal system needed to be reorganized in light of the nation’s growing economy and population. President’s Commission on Postal Organization, Towards Postal Excellence v (1968). The Commission recommended a major reorganization of the Postal Service, explaining, among other things, that “[b]ecause postal patronage was once a source of party power, the Post Office is still burdened with an anachronistic postmaster selection system,” and that “[b]ecause [the Postmaster General] presides over what was once a major policy arm of Government, [he] is still a member of the President’s Cabinet.” Id. at 47. It concluded that “[p]ostmaster patronage suggests to many that
3

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partisan politics plays a part in the operation of a post office,” a notion that “undermines public confidence and employee morale.” Id. at 42.
Thus, a key committee report on the Postal Reorganization Act declared that “[i]f the American public is to have the Postal Service that it expects and deserves, the post office must be taken out of politics and politics out of the post office. Nineteenth Century customs of political patronage have no place in a late 20th Century Postal System.” H.R. Rep. No. 91-1104, supra, at 3654. That goal prompted Congress to create the procedures set forth in § 3661. To shield management of the Postal Service from partisan influence and to ensure that the Postal Service is responsive to the public interest, Congress required that the public be allowed to weigh in before the Postal Service implements changes to the nature of postal services on a substantially nationwide basis.
In this case, the Postal Service failed to notify the Postal Regulatory Commission of any of its recent changes in the nature of postal services before their implementation, and it therefore failed to allow the Commission or the public the opportunity to comment in any meaningful way on these reforms. The Postal Service’s decision to bypass the presribed procedures of § 3661 flies in the face of Congress’s plan in passing the Postal Reorganization Act, which was to buffer Postal Service management from partisan influence and to ensure its accountability to the public. Accordingly, this Court should conclude that the Postal Service’s actions are unlawful.
ARGUMENT I. Since the Nation’s Founding, The Post Office Has Played a Critically Important
Role in American Society. The U.S. Constitution vests Congress with the power to “establish Post Offices and post Roads.” U.S. Const. art. 1, § 8. In The Federalist No. 42, James Madison explained, “The power of establishing post roads must, in every view, be a harmless power and may, perhaps, by
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judicious management become productive of great public conveniency. Nothing which tends to facilitate the intercourse between the States can be deemed unworthy of the public care.” The Federalist No. 42, at 271 (James Madison) (Clinton Rossiter ed., 1961).
This important constitutional power did not lie dormant for long. Just a few years after the Constitution’s ratification, Congress enacted the first substantive federal postal law, creating the U.S. Post Office Department led by “one Postmaster General, who . . . shall provide for carrying the mail of the United States” and who served under the direction of the President. Postal Service Act of 1792, ch. 7, § 3, 1 Stat. 232, 234. The law also established post roads, id. § 1; allowed the Postmaster General to enter into contracts, id. § 2; determined postage rates, id. § 9; and set penalties for “neglecting, detaining, delaying, or secreting letters,” id. § 16. Finally, the law subsidized newspaper circulation, allowing for the distribution of newspapers across the country. Id. §§ 21-22.
Scholars have explained that the development of the postal system “spurred a communications revolution that was as profound in its consequences for American public life as the subsequent revolutions that have come to be associated with the telegraph, the telephone, and the computer.” Richard R. John, Spreading the News: The American Postal System from Franklin to Morse vii (1995). Indeed, the Post Office Department created a central communications system that allowed for a robust exchange of ideas—a system that is core to our democracy. As Alexis de Tocqueville aptly commented in his famous study of American democracy, the post office was a “great link between minds.” Id. at 3.
As the United States continued to develop, the Post Office Department made changes to the postal system to ensure that the post was accessible to everyone, no matter where they lived or how much money they had. For example, in the 1840s, after a study from a congressionally
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appointed Postal Commission found that mail was an essential tool for democracy, Congress altered the postage scale to be based on weight, which greatly reduced the cost of postage stamps and made the post more affordable and accessible. Rural and Urban Origins of the U.S. Postal Service, RISC Report WP-19-007 (Aug. 26, 2019).
The U.S. postal system has also provided an essential forum for some of the nation’s most important debates. During the nineteenth century, abolitionists used the mail to circulate newspapers, books, and pamphlets in an effort “to show the horrors of the institution [of slavery,] . . . to develop sentiment against it . . . [and] to arouse the people to a realization of the evils of the institution.” W. Sherman Savage, Abolitionist Literature in the Mails. 1835-1836, 13 J. Afr. Am. Hist. 150, 150 (1928). The American Anti-Slavery Society specifically stated that it would “circulate unsparingly and extensively Anti-Slavery tracts and periodicals,” and William Lloyd Garrison, editor of the abolitionist paper The Liberator, raised money to “provide for the gratuitous distribution of anti-slavery publications” through the postal system. Wendell Phillips Garrison, 1 William Lloyd Garrison, 1805-1879: The Story of His Life Told by His Children 412, 483 (1885). As the nation had little to no communications technology at the time, it was the postal system that made an extensive debate over slavery possible.
Today, the postal service is as important as ever in maintaining our democracy. In light of COVID-19, millions of Americans hope to vote by mail in the upcoming election, but they need a functioning post office to exercise their fundamental right to vote without endangering their health and the health of others. See Compl. 16, NAACP, No. 1:20-cv-2295 (“States witnessed surges in applications for vote-by-mail ballots for 2020 primary elections, and historical levels of mail-in voting during primaries in 2020. . . . Many states likewise expect a record breaking volume of mail-in voting for the November 2020 election.” (footnotes omitted)).
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In sum, ever since Congress created the Post Office in the early years of the Republic, the postal system has played an important role in maintaining our society and our democracy. To help ensure that it is always able to play that role effectively, Congress has over time put in place important procedural requirements that must be followed before changes can be made to the nature of postal services, as the next Section discusses.
II. Reflecting the Importance of the Postal System’s Role, Congress Has Required the Postal Service to Follow Certain Procedures Whenever It Seeks to Change the Nature of Postal Services in a Way That Will Generally Affect Service on a Substantially Nationwide Basis.
Reflecting the important role the postal system plays, Congress has long sought to ensure that the Postal Service is properly managed, free from partisan influence, and accountable to the public. Most significantly, under the Postal Reorganization Act of 1970, as amended by the Postal Accountability and Enhancement Act of 2006 (PAEA), Congress has required the Postal Service to follow certain procedures that allow the public to weigh in “[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.” 39 U.S.C. § 3661(b). Specifically, when the Postal Service seeks to make such a change, it “shall submit a proposal . . . to the Postal Regulatory Commission requesting an advisory opinion on the change” within “a reasonable time prior to the effective date of such proposal,” id., and the Commission must issue a written opinion after providing “an opportunity for hearing on the record under [the Administrative Procedure Act, 5 U.S.C. §§ 556-57] . . . 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,” 39 U.S.C. § 3661(c). Congress viewed these requirements as critical to the proper provision of postal services, as this Section describes.
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A. By the 1960s, the Post Office Department was suffering from inefficiency because of “inadequate or diffused management authority.” Govs. of U.S. Postal Serv. v. U.S. Postal Rate Comm’n, 654 F.2d 108, 109 (D.C. Cir. 1981). President Johnson assembled the Kappel Commission in 1967 to investigate whether to reorganize the postal system in light of the nation’s growing economy and population, Towards Postal Excellence, supra, at v, and Congress itself devoted significant time and resources to determine how best to address the situation. Indeed, the House Committee on Post Office and Civil Service remarked in 1970 that “rarely has any subject received as much careful and intensive consideration by a committee of the Congress as this committee has given to the very complex and important subject of postal reform.” H.R. Rep. No. 91-1104, supra, at 3651.
Based on these careful deliberations, Congress passed the Postal Reorganization Act of 1970, 39 U.S.C. § 101 et seq., which abolished the Post Office Department and established in its place the U.S. Postal Service and the Postal Rate Commission. Id.; see United Parcel Serv., Inc. v. U.S. Postal Serv., 604 F.2d 1370, 1371 (3d Cir. 1979). The Postal Service is managed by an eleven-member Board of Governors, nine of whom are appointed by the President. The Postmaster General is appointed by those nine governors, and the Deputy Postmaster General is appointed by the nine governors and the Postmaster General. Govs. of USPS, 654 F.2d at 109 (citing 39 U.S.C. § 202(a), 202(c)-(d)).
The Postal Reorganization Act, as intially enacted, created the Postal Rate Commission “as an independent establishment,” id. at 110, to serve as a “partner” to the Postal Service’s Board of Governors, id. at 114. To that end, the Act provided 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
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a reasonable time prior to the effective date of such proposal, to the Postal Rate Commission requesting an advisory opinion on the change.” Postal Reorganization Act of 1970, Pub. L. No. 91-375, 84 Stat. 719, 764 (Aug. 12, 1970) (codified at 39 U.S.C. § 3661(b)).
Congress similarly charged the Postal Rate Commission “with the duty of making recommendations to the Governors of the Postal Service with respect to rate, fee and classification matters.” Govs. of USPS, 654 F.2d at 110 (citing 39 U.S.C. §§ 3601, 3622-24). “In considering Postal Service requests for recommended decisions on rates, fees, and classifications . . . [,] the Commission [was] required to accord to the Postal Service, users of the mails, and an officer of the Commission representing the public, an opportunity for a hearing,” and the Commission would then provide a written recommendation for the Postal Service. Id.
In 2006, Congress enacted the PAEA. Carlson v. Postal Regulatory Comm’n, 938 F.3d 337, 340 (D.C. Cir. 2019); see Compl. 14, Washington v. Trump, No. 1:20-3127 (E.D. Wash. Aug. 18, 2020). The PAEA “reconstituted the Postal Rate Commission as the Postal Regulatory Commission” and “strengthened the role of the Commission.” Carlson, 938 F.3d at 340 (emphasis added). As amended by the PAEA, the Postal Reorganization Act requires the Postal Service to follow the same procedures it initially required for nationwide changes in the nature of postal services, except that the Postal Service must now seek a written opinion from the Postal Regulatory Commission, rather than the Postal Rate Commission. 39 U.S.C. § 3661(b); see id. (“[The Postal Service] 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.”). The PAEA “incorporates the APA as the framework for review” of proposed rate changes as well. Carlson, 938 F.3d at 343 (citing 39 U.S.C. § 3663, and GameFly, Inc. v. Postal Regulatory Comm’n, 704 F.3d 145, 148 (D.C. Cir. 2013)).
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B. According to the House Committee on Post Office and Civil Service, which drafted the Postal Reorgnization Act, Congress’s plan in making these changes was to “convert the Post Office Department into an independent establishment in the executive branch of the government freed from direct political pressures.” H.R. Rep. No. 91-1104, supra, at 3650. Indeed, the Supreme Court has recognized that the Act “was adopted to increase the efficiency of the Postal Service and reduce political influences on its operations.” U.S. Postal Serv. v. Flamingo Indus. (USA) Ltd., 540 U.S. 736, 740 (2004).
The House Committee drafted the Postal Reorganization Act based on the findings of the Kappel Commission, H.R. Rep. No. 91-1104, supra, at 3654, which noted, among other things, that “[b]ecause postal patronage was once a source of party power, the Post Office is still burdened with an anachronistic postmaster selection system,” Towards Postal Excellence, supra, at 47. The Commission explained that “[b]ecause he presides over what was once a major policy arm of Government, the Postmaster General is still a member of the President’s Cabinet.” Id. According to the Commission, “[p]ostmaster patronage suggests to many that partisan politics plays a part in the operation of a post office. Warranted or not, the suspicion undermines public confidence and employee morale.” Id. at 42.
Thus, Congress passed the Postal Reorganization Act to “[i]nsulate” management of the Postal Service “from partisan politics . . . by having the Postmaster General responsible to the [Postal Regulatory] Commission, which represents the public interest only, for his conduct of the affairs of the Postal Service.” H.R. Rep. No. 91-1104, supra, at 3660-61. The House Committee Report explained that the Postal Regulatory Commission in particular “provides an invaluable buffer between the management of the Postal Service and the possible influence of partisan politics.” Id. at 3660. Indeed, the Report emphasized that “[i]f the American public is to have
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the Postal Service that it expects and deserves, the post office must be taken out of politics and politics out of the post office. Nineteenth Century customs of political patronage have no place in a late 20th Century Postal System.” Id. at 3654; see Pres. Richard Nixon, Remarks upon Signing the Postal Reorganization Act (Aug. 12, 1970) (“There is no Republican way or Democratic way to deliver the mail. There is only the right way and that is what this occasion is all about.”).
In describing the portion of the Act establishing “procedures for changes in postal services” in particular, the Committee Report emphasized that “[t]he Postal Service is—first, last and always—a public service.” H.R. Rep. No. 91-1104, supra, at 3668. The Report stated that under the Act, therefore, the Postal Service must “seek out the needs and desires of its present and potential customers—the American public,” and that the Act “provides significant assurance that the postal management will in fact be responsive to the people to a greater degree than has heretofore been known.” Id. The Report described how the Act “contains specific provisions requiring justification and review of changes in service,” and that those provisions compel the Postal Service, when seeking to make those changes in service, to “follow[] procedures comparable to those for proposed rate changes.” Id.; cf. UPS, 604 F.2d at 1377 (“The Act grants the Governors [of the Postal Service] the exclusive and nondelegable authority to establish ‘classes of mail’ and ‘rates of postage’, but only after the Governors have received a recommended decision from the Postal Rate Commission.” (citing 39 U.S.C. §§ 402, 3621)).
The Report concluded that those procedures requiring notice and a public hearing “represent significant innovations that should materially enhance the responsiveness of the Postal Service to the American public.” Id.; see Buchanan v. U.S. Postal Serv., 508 F.2d 259, 263 n.6 (5th Cir. 1975) (“[T]he procedures mandated by 3661 are sufficiently elaborate to amount to a
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significant impediment in the path of the decision making process of the Postal Service.”). Ultimately, Congress largely adopted the House Committee’s version of what became § 3661, see Conf. Rep. No. 91-1363, 91st Cong., 2d Sess., at 3719 (Aug. 3, 1970), and, as explained above, Congress did not alter the required procedures in § 3661 when it passed the PAEA in 2006, except to replace the term “Postal Rate Commission” with “Postal Regulatory Commission.” Postal Accountability and Enhancement Act, Pub. L. No. 109-435, 120 Stat. 3198, § 604(e)-(f).
III. By Failing to Request an Opinion from the Postal Regulatory Commission Before Making Its Recent Changes, the Postal Service Has Violated Federal Law.
The Postal Service’s recent changes are unlawful because they were made without complying with these important requirements that Congress put in place to ensure proper management of the nation’s mail delivery. For example, without seeking input on the matter, the Postal Service “prohibited postal workers from making the extra trips necessary to ensure that no mail is left sitting in postal facilities at the end of the day.” Compl. 23, New York, No. 1:20-cv2340. Likewise, the Postal Service “prohibited network, plant, and delivery workers from making late trips—i.e., from embarking on their trip any later than the scheduled time.” Id. In addition, “671 machines used by the Postal Service to organize and sort letters or other pieces of mail have been or will be removed from dozens of cities across America[,] . . . effectively decommission[ing] 10 percent of the Postal Service’s sorting machines.” Compl. 18-19, Washington, No. 1:20-cv-3127. These changes and others to the Postal Service’s central operations have allegedly “resulted in unreliable service and widespread delays,” Compl. 2, NAACP, No. 1:20-cv-2295, and “there have been widespread reports of mail piling up in
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regional distribution centers and post offices around the country, and of customers experiencing substantial delays and disruptions in mail service,” id. at 19.
If these changes continue to cause widespread delays, they could threaten the reliability of mail-in voting, Compl. 61, New York, No. 1:20-cv-2340—an option that at least some Americans have used to cast their ballots since the American Revolution, see Alex Seitz-Wald, How Do You Know Voting by Mail Works? The U.S. Military’s Done It Since the Civil War, NBC News (Apr. 19, 2020), https://www.nbcnews.com/politics/2020-election/how-do-youknow-voting-mail-works-u-s-military-n1186926—with enormous implications for our country and our democracy.
These changes thus have already affected and will continue to “generally affect service on a nationwide or substantially nationwide basis,” 39 U.S.C. § 3661(b), and the Postal Service made them without so much as notifying the Postal Regulatory Commission, much less having received a written opinion from the Commission following the completion of a public hearing.
The government may argue that these changes are not sufficiently significant to require public comment, but that is plainly wrong. Because Congress was seeking to ensure that there would be public accountability with regard to management of the Postal Service, it required that these procedures be followed with respect to any changes that “generally affect service on a nationwide or substantially nationwide basis,” as these changes plainly do.
Significantly, Congress required the Postal Service to follow comparable procedures for even seemingly minor changes in postal rates or mailing classifications, see H.R. Rep. No. 911104, supra, at 3668 (under the Postal Reorganization Act, “[f]ollowing procedures comparable to those for proposed rate changes, operating management would submit proposals relating to changes in service to the rate board with public notice and opportunity for public comment”
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(emphasis added)), and multiple courts have determined that the procedures governing those changes apply broadly, see, e.g., Carlson, 938 F.3d at 343; UPS, 604 F.2d at 1380. Indeed, the D.C. Circuit has held that the Postal Service needed to submit a proposed 5-cent increase for the price of stamps to the Postal Regulatory Commission before it could lawfully implement that change, recognizing that “Congress directed the Commission to serve as more than just a rubber stamp of the Postal Service’s proposed rate increases.” Carlson, 938 F.3d at 351; see id. (“The PAEA establishes a robust rulemaking process for the Commission, subjecting rate-change proposals to the deliberative and participatory process of notice-and-comment rulemaking under the APA.”). Likewise, the Third Circuit has emphasized that “any proposal which would effect a change in mail classification or a rate, including a test or experiment embodying those features, must be submitted to the Rate Commission, no matter how experimental, temporary, or limited in scope the change.” UPS, 604 F.2d at 1380 (emphasis added).
To be sure, the Fifth Circuit has suggested that § 3661 applies only when the Postal Service seeks to make “changes of significance” that will have a “meaningful impact” on postal services. See Buchanan, 508 F.2d at 262-63. But that notion is contrary to § 3661’s plain text, which states that the statute applies any time “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.” 39 U.S.C. § 3661(b) (emphasis added). This statutory language is broad, reflecting Congress’s plan to ensure that the Postal Regulatory Commission and the public could meaningfully weigh in on any prospective changes to postal services that would have a substantially nationwide impact.
In any event, the postal changes at issue in this case would satisfy even the Fifth Circuit’s heightened standard because they are significant, and they have had, and will continue to have, a
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meaningful impact on postal services on a nationwide or substantially nationwide basis. As discussed above, the Postal Service’s changes have already had a major impact on the delivery of the mail with attendant consequences for people throughout the country. Moreover, the changes allegedly “will hinder the delivery of mail ballots and ballot applications” for the November election. Compl. 61, New York, No. 1:20-cv-2340. Changes of this magnitude plainly cannot be made without input from the public and without following the requirements set out in federal law.
* * * In sum, the Postal Service’s recent changes not only violated the plain terms of § 3661 but also cannot be reconciled with Congress’s plan in passing the Postal Reorganization Act. Congress passed that legislation not to impose modest requirements on the Postal Service but to provide a substantial buffer between management of the Postal Service and partisan politics, as well as to ensure accountability to the public. Here, the Postal Service has implemented significant institutional changes that have already affected service nationwide without seeking the requisite input from the independent Postal Regulatory Commission or the American public. These changes exemplify the kind of partisan decisionmaking and lack of public accountability that Congress designed the Postal Reorganization Act, as amended by the PAEA, and the Postal Regulatory Commission to prevent. This Court should therefore hold that the Postal Service and Postmaster General violated § 3661.
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CONCLUSION For the foregoing reasons, this Court should grant plaintiff’s motion for a preliminary injunction.
Respectfully submitted, /s/ Brianne J. Gorod Elizabeth B. Wydra (DC Bar No. 483298) Brianne J. Gorod (DC Bar No. 982075) Dayna J. Zolle (DC Bar No. 1672633) CONSTITUTIONAL ACCOUNTABILITY
CENTER 1200 18th Street NW, Suite 501 Washington, D.C. 20036 (202) 296-6889 elizabeth@theusconstitution.org brianne@theusconstitution.org dayna@theusconstitution.org Counsel for Amici Curiae Dated: September 8, 2020
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Blumenthal, Richard Senator of Connecticut
Booker, Cory A. Senator of New Jersey
Brown, Sherrod Senator of Ohio
Carper, Tom Senator of Delaware
Hirono, Mazie K. Senator of Hawaii
Klobuchar, Amy Senator of Minnesota
Markey, Edward J. Senator of Massachusetts
Merkley, Jeffrey A. Senator of Oregon
Reed, Jack Senator of Rhode Island
Sanders, Bernard Senator of Vermont
Shaheen, Jeanne Senator of New Hampshire
Warren, Elizabeth Senator of Massachusetts
Whitehouse, Sheldon Senator of Rhode Island
Wyden, Ron Senator of Oregon

APPENDIX LIST OF AMICI

1A

Case 1:20-cv-02295-EGS Document 22 Filed 09/09/20 Page 23 of 23

CERTIFICATE OF SERVICE

I hereby certify that on September 8, 2020, the foregoing document was filed with the Clerk

of the Court, using the CM/ECF system, causing it to be served on all counsel of record.

Dated: September 8, 2020

/s/ Brianne J. Gorod Brianne J. Gorod

 
 Case 1:20-cv-02295-EGS Document 28 Filed 09/22/20 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE,
Plaintiff,
v.
UNITED STATES POSTAL SERVICE and LOUIS DEJOY, in his official capacity as United States Postmaster General of the United States Postal Service,
Defendants.

No. 1:20-cv-2295-EGS

BRIEF OF U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE IN SUPPORT OF THE PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

Case 1:20-cv-02295-EGS Document 28 Filed 09/22/20 Page 2 of 18
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ......................................................................................................... ii INTRODUCTION AND STATEMENT OF INTEREST ............................................................. 1 ARGUMENT ................................................................................................................................. 2
I. CONGRESS ESTABLISHED AND REFORMED THE UNITED STATES POSTAL SERVICE TO ENSURE A CONNECTED, INFORMED NATION. ......................................................................................... 2 A. Congress Created the United States Post Office, the Forerunner to the Modern-Day Postal Service, in Part to Provide Critical Infrastructure for Connecting and Informing the Electorate...................... 2 B. The Postmaster General’s Service Rollbacks Undermine the Postal Service’s Operations and Contravene Congressional Intent...................... 4
II. CONGRESS HAS LONG RECOGNIZED THAT FREE AND FAIR ELECTIONS DEPEND UPON RELIABLE MAIL SERVICE. ........................... 7 A. Congress Has Repeatedly Legislated to Secure and Enhance the Fundamental Right to Vote Through the Use of the Mail. ........................ 7 B. A Reliable Postal Service Is Essential to a Free and Fair Electoral Process. .................................................................................................... 10 C. The Postal Service’s Recent Changes Threaten Participation in, and the Integrity of, the Upcoming Election............................................ 11
CONCLUSION............................................................................................................................ 12
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TABLE OF AUTHORITIES
Page(s)
Cases
MacDougall v. Green, 335 U.S. 281 (1948).................................................................................................................12
McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003).....................................................................................................................7
Rowan v. U.S. Post Office Dep’t, 397 U.S. 728 (1970)...................................................................................................................3
United States v. Slone, 411 F.3d 643 (6th Cir. 2005) .....................................................................................................7
Constitution, Statutes, and Legislative Materials
U.S. Const. Amend. XIV...............................................................................................................................7 Amend. XV ................................................................................................................................7 Amend. XIX...............................................................................................................................7 Amend. XXIV............................................................................................................................7 Amend. XXVI............................................................................................................................7 Art. I, § 4, cl. 1 ...........................................................................................................................7 Art. I, § 8, cl. 7 ...........................................................................................................................2
39 U.S.C. § 101(a) ......................................................................................................................................4 § 3406(a) ....................................................................................................................................9 § 3661(b) ....................................................................................................................................4 § 3661(c) ....................................................................................................................................4
52 U.S.C. § 10502(a) ..................................................................................................................................9 § 10502(d) ..................................................................................................................................9 § 20302(a)(1) .............................................................................................................................8 § 20501(b)(1) ...........................................................................................................................10 § 20505.....................................................................................................................................10
Act of Feb. 20, 1792 (Postal Service Act), ch. 7, 1 Stat. 232 § 1...................................................................................................................3
Postal Reorganization Act of 1970, Pub. L. No. 91-375, 84 Stat. 719 ...............................................................................................4
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H. Rep. No. 9, 103d Cong. (1st Sess. 1993) ..................................................................................10
H. Rep. No. 765, 99th Cong. (2d Sess. 1986) ..................................................................................8
H. Rep. No. 1104, 91st Cong. (2d Sess. 1970) ................................................................................4
Rules of the U.S. House of Representatives (116th Cong.), Rule II.8(b), https://perma.cc/M25F-496H................................................................................1
Other Authorities
Boyd A. Martin, The Service Vote in the Elections of 1944, 39 Am. Pol. Sci. Rev. 720 (1945) ..........................................................................................7, 8
Department of Justice Archives, The MOVE Act (Oct. 21, 2010), https://perma.cc/9NNU-VHNB .................................................................................................9
Erin Cox et al., Postal Service Warns 46 States Their Voters Could Be Disenfranchised by Delayed Mail-In Ballots, Washington Post (Aug. 14, 2020), https://perma.cc/5WEL-692T.............................................1
George Washington, Third Annual Message to Congress (Oct. 25, 1791), https://perma.cc/4FV4-2E5E .....................................................................................................3
House Committee on Oversight and Reform, DeJoy Admits that Mail Delays Are Far Worse than Expected, But Fails to Take Responsibility (Aug. 24, 2020), https://perma.cc/XQ73-Q7SZ ....................................................................................................5
House Committee on Oversight and Reform, Oversight Committee to Issue Subpoena to DeJoy (Aug. 31, 2020), https://perma.cc/M62Y-3XBA .......................................5
James Madison, Notes on Debates, 6 December 1782, Founders Online, National Archives, https://perma.cc/8P7H-BSWS .......................................2
Juliette Love et al., Where Americans Can Vote by Mail in the 2020 Elections, New York Times (Aug. 14, 2020), https://perma.cc/T67Z-MS6M .........................................11
Louis DeJoy, Letter to Committee on Homeland Security and Governmental Affairs and Committee on Oversight and Reform, dated August 31, 2020 https://perma.cc/VDR9-6P43 .....................................................................................................5
Miles Parks, Why Is Voting By Mail (Suddenly) Controversial?, NPR (June 4, 2020), https://perma.cc/TT44-AYG7.......................................................................................10
National Association of Secretaries of States, Letter to Postmaster General DeJoy, dated August 7, 2020, https://perma.cc/5YH8-8BQQ .............................................................12
National Conference of State Legislatures, Receipt and Postmark Deadlines for Absentee Ballots (Aug. 17, 2020), https://perma.cc/L9VV-EHVA...........................................6
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Postal Times, PMG Addresses Restructuring (Aug. 13, 2020), https://perma.cc/LUC2-FUGN...................................................................................................1
Richard B. Kielbowicz, Preserving Universal Postal Service As A Communication Safety Net: A Policy History and Proposal, 30 Seton Hall Legis. J. 383 (2006) ...................................................................................................................3
Remarks in the Capitol Rotunda at the Signing of the Voting Rights Act, 2 Pub. Papers 841 (Aug. 6, 1965) .........................................................................................................9
Royce Crocker, The National Voter Registration Act of 1993: History, Implementation, and Effects, CRS Report For Congress 7-5700 (Sept. 18, 2013), https://perma.cc/GB77-XFF6.......................................................................10
The Federalist No. 84 (Alexander Hamilton), https://perma.cc/6UHW-QG6A ..............................2 U.S. Election Assistance Commission, 2016 Comprehensive Report (June 2017),
https://perma.cc/L3KZ-HS75.....................................................................................................9 U.S. Election Assistance Commission, 2018 Comprehensive Report (June 2019),
https://perma.cc/G66L-W2K2 .................................................................................................10 U.S. Election Assistance Commission, Post Office and Election Office, Critical
Partners in Democracy (May 9, 2019), https://perma.cc/2MQJ-3XDD .................................11 United States Postal Service, Congressional Briefing: Transportation & Service
Performance Updates (Aug. 31, 2020), https://perma.cc/2VD4-6AHX ...................................5 USPS OIG, 20-225-R20, Audit Report: Processing Readiness of Election and
Political Mail During the 2020 General Elections (Aug. 31, 2020) https://perma.cc/Z2Q9-TYU6 ................................................................................................5, 6 USPS OIG, MS-AR-13-008, Audit Report: Political & Election Mail Sales, Audit Report (June 19, 2013), https://perma.cc/D78Z-6YNL ...........................................................11 USPS OIG, 19XG010NO000-R20, Audit Report: Service Performance of Election and Political Mail During the 2018 Midterm and Special Elections (Nov. 4, 2019), https://perma.cc/FQR8-L5AE.......................................................................................11 USPS Postal Bulletin 22342, https://perma.cc/2WTH-3P5S.........................................................11
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INTRODUCTION AND STATEMENT OF INTEREST Amicus curiae, the United States House of Representatives, has a special interest in this case, which challenges service rollbacks by the United States Postal Service in advance of the upcoming national election.1 Since June 2020, the Postal Service has abruptly eliminated or substantially altered multiple operational policies and practices essential to the timely delivery of mail. The Postmaster General has described these changes as “transformative.” Postal Times, PMG Addresses Restructuring (Aug. 13, 2020).2 Key rollbacks include removing hundreds of collection boxes and high-speed sorting machines, cutting or curtailing overtime for postal workers, and prohibiting postal workers from making extra or late trips to complete deliveries. These changes have created dramatic delays in mail delivery. See Erin Cox et al., Postal Service Warns 46 States Their Voters Could Be Disenfranchised by Delayed Mail-In Ballots, Washington Post (Aug. 14, 2020).3 Congress established and oversees the Postal Service, and has enacted various statutes to, among other benefits, secure and protect the right to vote, which in today’s world depends upon a properly functioning postal system. The House is well-suited to describe how the Postmaster General’s recent changes run contrary to centuries-old principles underlying the Postal Service’s
1 The Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives, which “speaks for, and articulates the institutional position of, the House in all litigation matters,” has authorized the filing of an amicus brief in this matter. Rules of the U.S. House of Representatives (116th Cong.), Rule II.8(b), https://perma.cc/M25F-496H. The BLAG comprises the Honorable Nancy Pelosi, Speaker of the House, the Honorable Steny H. Hoyer, Majority Leader, the Honorable James E. Clyburn, Majority Whip, the Honorable Kevin McCarthy, Republican Leader, and the Honorable Steve Scalise, Republican Whip. Representative McCarthy and Representative Scalise dissented.
2 https://perma.cc/LUC2-FUGN. 3 https://perma.cc/5WEL-692T.
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operation, and how those changes undermine Congressional efforts to secure fair and accurate elections.
ARGUMENT I. CONGRESS ESTABLISHED AND REFORMED THE UNITED STATES POSTAL
SERVICE TO ENSURE A CONNECTED, INFORMED NATION. A. Congress Created the United States Post Office, the Forerunner to the
Modern-Day Postal Service, in Part to Provide Critical Infrastructure for Connecting and Informing the Electorate. Article I of the Constitution entrusts to Congress, as one of its enumerated powers, the authority “[t]o establish Post Offices and post Roads.” U.S. Const., art. I, § 8, cl. 7 (the “Postal Power”). The Founders provided the Postal Power to Congress cognizant that, in the words of Alexander Hamilton, “citizens who inhabit the country at and near the seat of government will, in all questions that affect the general liberty and prosperity, have the same interest with those who are at a distance.” The Federalist No. 84 (Alexander Hamilton).4 This shared interest operates with particular force in the context of the upcoming election, which is expected to depend on the mail to an unprecedented extent to determine the outcomes of local and national contests. As Hamilton stated, a well-functioning “expeditious” post office is essential to ensure that informed citizens can “sound the alarm when necessary” and “point out the actors in any pernicious project.” Id. James Madison likewise recognized that a national postal service would be the “principal channel through which a general knowledge of public affairs[] was diffused.” James Madison, Notes on Debates, 6 December 1782, Founders Online, National Archives.5 And George Washington urged Congress to establish a postal service because, as he explained, it would be an “instrumentality in diffusing a knowledge of the laws and proceedings of the government [among
4 https://perma.cc/6UHW-QG6A. 5 https://perma.cc/8P7H-BSWS.
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citizens], which … serves also to guard them against the effects of misrepresentation and misconception.” George Washington, Third Annual Message to Congress (Oct. 25, 1791).6 Recent USPS actions endanger citizens’ ability to participate in those “public affairs” and “proceedings of the Government” by threatening to impede their fundamental right to vote.
These developments contravene and undermine one of the very purposes for which Congress created the postal system. Congress exercised the Postal Power when it adopted the Postal Service Act of 1792, which created the United States Post Office Department. The Act outlined in extensive detail the “roads [to] be established as post roads,” stretching from Maine to Georgia in a network of arteries and veins that would connect the nation. Act of Feb. 20, 1792 (Postal Service Act), ch. 7, 1 Stat. 232 § 1.
As the nation expanded, Congress continued to play a significant role with detailed legislation that shaped the corresponding growth of the postal service. See, e.g., Richard B. Kielbowicz, Preserving Universal Postal Service As A Communication Safety Net: A Policy History and Proposal, 30 Seton Hall Legis. J. 383, 394 (2006) (noting that from 1792 “until the closing of the frontier in the late 1800s, Congress required the Post Office to inaugurate service on new routes that lawmakers delineated in excruciatingly detailed postal acts”).
In modern times, through World Wars and great social and economic change, the Post Office has remained an “indispensable adjunct of … civilized society” facilitating the interpersonal “communication … imperative to a healthy social order.” Rowan v. U.S. Post Office Dep’t, 397 U.S. 728, 736 (1970). In the latter half of the twentieth century, to continue fulfilling this essential mission, the Post Office needed systemic modernization. Accordingly, in 1970, Congress passed the Postal Reorganization Act (“PRA”), converting the Cabinet-agency Post Office into an
6 https://perma.cc/4FV4-2E5E.
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independent agency within the Executive Branch—the present-day Postal Service—which was intended to “free[]” postal operations “from direct political pressures,” H. Rep. No. 1104, 91st Cong. (2d Sess. 1970); see Pub. L. No. 91-375, 84 Stat. 719.
In effectuating this transformation, the PRA reaffirmed the Postal Service’s “basic function” of “provid[ing] postal services to bind the Nation together through the personal, educational, literary, and business correspondence of the people.” 39 U.S.C. § 101(a). Far from condoning service rollbacks in the name of purported modernization, the PRA provided that the Postal Service would ensure “prompt, reliable, and efficient services to patrons in all areas … [and] all communities.” Id. To accomplish these goals, the PRA placed substantive limits on the Postal Service’s authority to implement unilateral transformative changes by requiring the Postal Service to request “an advisory opinion” from the Postal Regulatory Commission—also established by the PRA as an independent agency in the Executive Branch—on any changes “which will generally affect service on a nationwide or substantially nationwide basis.” 39 U.S.C. § 3661(b). The Commission may not issue such an opinion until users of the mail have been afforded an opportunity to present their views at a hearing. Id. § 3661(c).
B. The Postmaster General’s Service Rollbacks Undermine the Postal Service’s Operations and Contravene Congressional Intent.
As part of its constitutional prerogative and to inform potential legislation, Congress actively monitors and investigates the Postal Service. This is essential for Congress to remain “fully informed on postal affairs so that it may discharge its responsibilities to see to it that the Postal Service is conducted consistently with” Congressional intent. H. Rep. No. 1104, 91st Cong. (2d Sess. 1970) (noting that Congress must set the “policy guidelines for the operations of the Postal Service”).
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Pursuant to Congress’s oversight authority, the House Committee on Oversight and Reform recently issued a subpoena for documents related to, and held a hearing about, Postmaster General Louis DeJoy’s service rollbacks.7 The House’s investigation has uncovered disturbing evidence that Mr. DeJoy’s recent maneuvers are causing substantial systemic mail delivery delays.
For example, on August 31, 2020, in response to inquiries from the House Committee on Oversight and Reform, the Postal Service released jarring statistics revealing that delivery metrics have, in the weeks since Mr. DeJoy’s “transformative” changes, fallen substantially for First-Class and Marketing Mail—the classes that include election ballots and other election-related mail. United States Postal Service, Congressional Briefing: Transportation & Service Performance Updates (Aug. 31, 2020) (“August 31 Congressional Briefing”).8 For example, overall service performance for presorted First-Class Mail dropped nearly ten percent following Mr. DeJoy’s changes—in just a matter of weeks—and even after his purported delay of further rollbacks, performance for presorted First-Class Mail remains over five percent lower than prior to his actions. Id. at 9.
Also on August 31, 2020, the Postal Service’s Office of Inspector General (“OIG”) released an audit report demonstrating the challenges already faced by the Postal Service with respect to election-related mail even prior to Mr. DeJoy’s rollbacks. USPS OIG, 20-225-R20, Audit Report: Processing Readiness of Election and Political Mail During the 2020 General Elections (Aug. 31,
7 See, e.g., House Committee on Oversight and Reform, DeJoy Admits that Mail Delays Are Far Worse than Expected, But Fails to Take Responsibility (Aug. 24, 2020), https://perma.cc/XQ73-Q7SZ; House Committee on Oversight and Reform, Oversight Committee to Issue Subpoena to DeJoy (Aug. 31, 2020), https://perma.cc/M62Y-3XBA.
8 https://perma.cc/2VD4-6AHX; see Louis DeJoy, Letter to Committee on Homeland Security and Governmental Affairs and Committee on Oversight and Reform, dated August 31, 2020, at 1 (First-Class and Marketing Mail includes ballots and election-related mail), https://perma.cc/VDR9-6P43.
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2020) (“August 2020 OIG Report”).9 Given these extant challenges, Mr. DeJoy’s rollbacks are all the more dangerous.
The Postal Service’s experience handling ballots for state and local elections and primaries earlier this year specifically demonstrates these preexisting challenges. See August 2020 OIG Report at 3 (reporting that the amount of election and political mail delivered on time decreased nearly two percent compared to 2018). Against this backdrop, Mr. DeJoy’s rollbacks are particularly perilous, as the existing challenges with the distribution of election-related mail are likely only to multiply in November because the general and Presidential elections historically generate far larger turnout than these earlier contests. This November, with the nation in the grips of a pandemic and many Americans fearful of gathering with strangers in indoor polling places, much of that increased turnout will depend on the success of the postal system.
As the August 2020 OIG Report recognizes, “[t]he Postal Service plays a vital role in the American democratic process and this role continues to grow as the volume of Election and Political Mail increases.” Id. at 1. The August 2020 OIG Report revealed that, in the seven Postal Service facilities audited by OIG, approximately eight percent of “identifiable Election and Political Mail mailpieces [were] not delivered on time from April 2020 through June 2020,” amounting to 1.6 million total untimely deliveries of election-related mail in that three-month period. Id. at 3. The facilities’ overall performance score decreased markedly from prior years, id., a downward trend that has only worsened since Mr. DeJoy assumed his position. See, e.g., August 31 Congressional Briefing. Such delays in delivery pose an unacceptable and unmitigated risk for the upcoming election, particularly because 29 states count only those ballots received by Election Day, regardless of when they are postmarked. See, e.g., National Conference of State
9 https://perma.cc/Z2Q9-TYU6.
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Legislatures, Receipt and Postmark Deadlines for Absentee Ballots (Aug. 17, 2020).10 Given the rapidly approaching November election, now is the time to, in Hamilton’s words, “sound the alarm.” II. CONGRESS HAS LONG RECOGNIZED THAT FREE AND FAIR ELECTIONS
DEPEND UPON RELIABLE MAIL SERVICE. A. Congress Has Repeatedly Legislated to Secure and Enhance the Fundamental
Right to Vote Through the Use of the Mail. The Elections Clause, U.S. Const., art. I, § 4, cl. 1, empowers Congress “to protect the integrity of federal elections.” United States v. Slone, 411 F.3d 643, 649 (6th Cir. 2005) (citing McConnell v. Federal Election Comm’n, 540 U.S. 93, 187 (2003)). The Constitution also grants Congress broad authority to enact legislation to ensure that all citizens enjoy the right to vote equally and free from discrimination. See U.S. Const. amends. XIV, XV, XIX, XXIV, XXVI. Pursuant to these constitutional powers, Congress has enacted numerous laws that promote and protect the right to vote through use of the mail, including laws that provide absentee ballots to military and civilian service members stationed overseas; provisions of the Voting Rights Act (“VRA”); and the National Voter Registration Act of 1993 (“NVRA”). Through each of these Acts, Congress has increased access to absentee ballots and mail-in voter registration. As reflected by these enactments, Congress views a well-functioning Postal Service as essential to securing Americans’ fundamental right to vote. Soldier Voting Acts. Legislatures have long recognized the importance of preserving service members’ right to vote: during the Civil War, some states coordinated commissions to “record votes [of soldiers] in the field or for absentee voting.” Boyd A. Martin, The Service Vote in the Elections of 1944, 39 Am. Pol. Sci. Rev. 720, 720 (1945). Still, prior to World War II,
10 https://perma.cc/L9VV-EHVA.
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service members stationed overseas who sought to vote were required to do so pursuant to the myriad requirements of state laws, which were not designed to facilitate overseas voting. Id. at 724. Some states prohibited absentee voting altogether, and others imposed onerous requirements, such as requiring that ballots be mailed within the boundaries of the state. Id. Such state laws had, for example, disenfranchised millions of Americans serving in World War I. Id.
Two decades later, with 5.5 million Americans mobilized for World War II, the public demanded that Congress take action for “service personnel to be given the privilege of voting.” Id. at 724. Congress thus adopted the 1942 Soldier Voting Act “to overcome the[] difficulties, differences, and the inevitable inequities arising” from varying state laws and other obstacles. Id. at 724–25. Two years later, Congress amended the 1942 Soldier Voting Act to expand the franchise further; that year, “approximately 4,400,000 federal and state absentee ballots were cast by service personnel.” Id. at 730, 732. The difficulties, differences, and inequities caused by Mr. DeJoy’s service cutbacks contradict longstanding Congressional intent to rely on the mail to protect voters’ rights.
Congress repeatedly demonstrated, and acted upon, that intent in the decades that followed. For example, Congress responded when new problems arose for military and overseas voters attempting to vote in the 1984 election. Thousands had been disenfranchised “simply because their ballots arrived either too late or not at all.” H. Rep. No. 765, 99th Cong. (2d Sess. 1986) at 10–13. Shortly thereafter, in 1986, Congress responded by passing the Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”). Through that enactment, Congress guaranteed that active duty service members, their dependents, and other United States citizens residing overseas have the right “to vote by absentee ballot in general, special, primary, and runoff elections for Federal office.” 52 U.S.C. § 20302(a)(1). Congress further strengthened UOCAVA’s guarantees
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in 2009 by passing the Military and Overseas Voter Empowerment Act, which “expanded [UOCAVA] significantly … to provide greater protections for servicemembers, their families and other overseas citizens.” Department of Justice Archives, The MOVE Act (Oct. 21, 2010).11
UOCAVA requires states to use the Postal Service to transmit validly requested ballots to eligible voters at least 45 days before a federal election, and mandates that balloting materials be “carried expeditiously and free of postage.” 39 U.S.C. § 3406(a). In the last Presidential election, voters returned over 630,000 ballots pursuant to this statute. U.S. Election Assistance Commission (EAC), 2016 Comprehensive Report, at 12 (June 2017) (“2016 EAC Report”).12
Voting Rights Act. Congress passed the VRA—hailed by President Lyndon Johnson as “one of the most monumental laws in the entire history of America”—to enshrine every citizen’s right to an equal opportunity to participate in our democracy. Remarks in the Capitol Rotunda at the Signing of the Voting Rights Act, 2 Pub. Papers 841 (Aug. 6, 1965). Recognizing that “the lack of sufficient opportunities” for absentee registration and balloting abridged “the inherent constitutional right” to vote, Congress amended the VRA in 1970 to ensure that all qualified voters, regardless of where they might be on election day, have the opportunity to vote in Presidential elections. 52 U.S.C. § 10502(a) (Congressional findings). The 1970 VRA amendments ordered states to provide absentee ballots in Presidential elections to all qualified residents who expect to be absent from their districts on Election Day and who apply for a ballot at least seven days before the election. 52 U.S.C. § 10502(d). In the last Presidential election, twenty-three percent of all ballots cast were through the mail. 2016 EAC Report at 10.
11 https://perma.cc/9NNU-VHNB. 12 https://perma.cc/L3KZ-HS75.
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National Voter Registration Act. In 1993, Congress passed the NVRA to “increase the number of eligible citizens who register to vote in elections for Federal office.” 52 U.S.C. § 20501(b)(1). The NVRA reflects Congress’s view that the mail is a “key element” essential to increasing voter registration. H. Rep. No. 9, 103d Cong. at 3 (1st Sess. 1993). The Act requires states to provide for registration by mail and to set a voter registration cutoff for federal elections of no more than 30 days before the election. 52 U.S.C. § 20505. By 2013, twenty years after the NVRA’s enactment, voter registration had increased nationally by seven percent. Royce Crocker, The National Voter Registration Act of 1993: History, Implementation, and Effects, CRS Report For Congress R40609 (Sept. 18, 2013).13 Mail-in registration continues to play a vital role. EAC, 2018 Comprehensive Report, at 35 (June 2019) (“2018 EAC Report”) (noting by-mail applications account for eleven percent of registration applications).14
The Postal Service rollbacks challenged in this litigation cause delays—and thus exacerbate the likelihood of potential disenfranchisement—at every stage in the process, from application, to registration, to the citizen’s ultimate vote. Such measures impede Congress’s goal of securing each citizen’s right to vote as reflected in the legislation described above.
B. A Reliable Postal Service Is Essential to a Free and Fair Electoral Process. Registering to vote and voting by mail—including as contemplated by these various Congressional enactments—depend on a properly functioning and apolitical Postal Service. All 50 states and the District of Columbia have some form of vote-by-mail procedure. Miles Parks, Why Is Voting By Mail (Suddenly) Controversial?, NPR (June 4, 2020).15 Over the past 20 years, Americans nationwide have cast more than 250 million ballots by mail. Id. In the last federal
13 https://perma.cc/GB77-XFF6. 14 https://perma.cc/G66L-W2K2. 15 https://perma.cc/TT44-AYG7.
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election, more than 31 million Americans voted by mail, over a quarter of all voters. 2018 EAC Report at 12. Because these ballots are delivered by the Postal Service, the agency is charged with a critical role in the electoral process—ensuring that “every eligible voter is able to cast their ballot.” EAC, Post Office and Election Office, Critical Partners in Democracy (May 9, 2019).16
In recognition of its “vital role in the American democratic process,” the Postal Service has long embraced policies and procedures to facilitate the prompt and reliable delivery of election mail. USPS OIG, MS-AR-13-008, Audit Report: Political & Election Mail Sales (June 19, 2013).17 For example, in the 2018 Midterm and Special Elections, the Postal Service committed to treating all election mail as First-Class mail or better, developed an official election mail logo to help distinguish it from other types of mail, and trained employees on the proper handling of election mail. USPS OIG, 19XG010NO000-R20, Audit Report: Service Performance of Election and Political Mail During the 2018 Midterm and Special Elections, at 7 (Nov. 4, 2019);18 USPS Postal Bulletin 22342.19
C. The Postal Service’s Recent Changes Threaten Participation in, and the Integrity of, the Upcoming Election.
Due to the COVID-19 pandemic, the Postal Service will play an even greater role in the election process. So far, 27 states and the District of Columbia have expanded voter access to mail ballots. Juliette Love et al., Where Americans Can Vote by Mail in the 2020 Elections, New York Times (Aug. 14, 2020).20 All told, an unprecedented seventy-five percent of Americans are now eligible to vote by mail. Id. Those jurisdictions—and the voters within those jurisdictions—rely
16 https://perma.cc/2MQJ-3XDD. 17 https://perma.cc/D78Z-6YNL. 18 https://perma.cc/FQR8-L5AE. 19 https://perma.cc/2WTH-3P5S. 20 https://perma.cc/T67Z-MS6M.
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on the Postal Service as a “partner in administering” successful elections. National Association of Secretaries of States, Letter to Postmaster General DeJoy, dated August 7, 2020.21 To the extent the Postal Service cannot fully serve as that partner because of Mr. DeJoy’s destructive and transformative operational changes, the integrity of the November election is imperiled.
“Free and honest elections are the very foundation of our republican form of government.” MacDougall v. Green, 335 U.S. 281, 288 (1948) (Douglas, J., dissenting). Today, as during the Civil War and World War II, America faces a sudden surge of citizens who will rely on absentee ballots. Congress has already provided for mechanisms to protect the right to vote in such extreme circumstances, including by establishing and maintaining the Postal Service, adopting laws that endorse and facilitate voting by mail, and overseeing the Postal Service’s operations. Mr. DeJoy’s changes undermine these enactments and threaten the integrity of the upcoming election. They should be enjoined.
CONCLUSION For the reasons stated above, the House submits this brief in support of the Plaintiff.
21 https://perma.cc/5YH8-8BQQ.
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KATHLEEN R. HARTNETT COOLEY LLP 101 California Street San Francisco, CA 94111 (415) 693-2000 khartnett@cooley.com
ELIZABETH B. PRELOGAR ELIAS S. KIM COOLEY LLP 1299 Pennsylvania Ave. NW Washington, DC 20004 (202) 842-7800 eprelogar@cooley.com
ADAM S. GERSHENSON LIZ A. TRAFTON ZACHARY SISKO COOLEY LLP 500 Bolyston St Boston, MA 02116 (617) 937-2300 agershenson@cooley.com
BARRETT J. ANDERSON COOLEY LLP 4401 Eastgate Mall San Diego, CA 92121-1909 (858) 550-6000 banderson@cooley.com

Respectfully submitted,
/s/ Douglas N. Letter DOUGLAS N. LETTER
General Counsel TODD B. TATELMAN
Principal Deputy General Counsel ADAM A. GROGG ERIC R. COLUMBUS JONATHAN B. SCHWARTZ OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 (202) 225-9700 Douglas.Letter@mail.house.gov

Counsel for Amicus Curiae U.S. House of Representatives September 10, 2020

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 Case 1:20-cv-02295-EGS Document 149 Filed 03/05/21 Page 1 of 33

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE,
4805 Mount Hope Drive Baltimore, MD 21215,
Plaintiff,
v.
UNITED STATES POSTAL SERVICE, 475 L’Enfant Plaza SW Room 4012 Washington, DC 20260-2200,
and
LOUIS DEJOY, in his official capacity as Postmaster General of the United States Postal Service,
U.S. Postal Service Office 475 L’Enfant Plaza SW Room 4012 Washington, DC 20260-2200,
Defendants.

Case No. 20-2295
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION 1. From the earliest days of the Republic, the United States Post Office, now known as the United States Postal Service (USPS), has been essential to our constitutional democracy. In the Pulitzer-winning words of Daniel Walker Howe, the early Post Office had a dual mission “as a service to the public and to national unification.”1 It facilitated communication across our

1 Daniel Walker Howe, What Hath God Wrought: The Transformation of America, 1815-1848 (2009).

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sprawling and diverse nation and encouraged civic engagement by subsidizing the distribution of newspapers.
2. Today, USPS is more important than ever to our democracy, as it is necessary for free and fair elections. Over three-quarters of Americans were potentially eligible to vote by mail in November 2020, and there was a surge in mail-in voting due to the COVID-19 pandemic. That pandemic has now cost 500,000 Americans their lives, with death rates particularly high for Black people due to disparities in access to health care and structural discrimination. Mail-in voting was essential to ensuring that Americans had an opportunity to vote without risking their safety in the November 2020 election, and mail-in voting requires prompt and reliable postal service. Prompt mail delivery is also especially important during the pandemic and the economic crisis it has caused, as Americans rely on the mail for medications, for benefits, to receive legal notices, and for many other important communications.
3. The importance of timely and reliable delivery of ballots is not limited to elections that occur during a pandemic. Even before the pandemic, as USPS itself recognized in January 2020, one-quarter of the 120 million Americans who participated in the 2018 election voted by mail. A number of states conduct elections principally by mail. In many other states, mail-in voting allows voters to cast their ballots without facing burdensome in-person voting conditions, which can include hours-long lines (especially in communities of color), and polling sites that are inaccessible to disabled voters or that are geographically remote and require voters to travel long distances even if they lack transportation.
4. At this moment in our history, when the prompt delivery of ballots and other mail matters more than ever, USPS has failed to take the measures required to ensure timely and reliable mail delivery. Instead, USPS: (a) made significant changes that resulting in unreliable service and
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widespread delays; and (b) failed to implement procedures to ensure that ballots will be delivered in a reliable and timely manner.
5. On May 6, 2020, Louis DeJoy was appointed as the new Postmaster General, and he assumed office on June 16. Then, on July 10, DeJoy announced changes to transportation policy, including a major operational “Pivot” that imposed significant new restrictions on the timing and nature of letter carrier routes. In so doing, he acknowledged that employees would “see mail left behind or on the workroom floor or docks” as a result. The changes to transportation policy, including the Pivot and Guidelines issued by USPS on July 14, 2020, caused substantial delays in mail service across the nation, with entire towns in rural areas not receiving their mail on certain days and people in some cities going days or weeks without receiving any mail at all. These delays have caused Americans to go without medicines and benefits, and they have prevented eligible Americans from voting by mail in their primary elections.
6. With respect to election mail, USPS officials recognized the need to implement special measures to ensure that ballots—especially ballots mailed close to Election Day—were accounted for and delivered in a timely manner. Yet USPS implemented no written guidelines mandating such procedures during the 2020 primary election season, and in fact made changes to longstanding practices that delayed the delivery of election mail.
7. On July 29, 2020, USPS’s General Counsel sent letters to 46 states warning them of a mismatch between their deadlines related to mail-in voting and USPS’s likely delivery times. In these letters, USPS indicated that ballots sent by marketing mail would not be accorded firstclass mail treatment, and thus take longer to deliver, even though USPS had previously trained its employees to give first-class treatment to ballots and other election-related materials sent as marketing mail. In those letters, USPS also warned there was a significant risk that voters would
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be disenfranchised if they mailed their ballots within one week of the State’s deadline for receiving ballots, even if (for example) state election deadlines allowed voters to request mail-in ballots a week before the receipt deadline.
8. USPS did not implement any written guidelines to prioritize and account for the delivery of ballots for the November 2020 election until after this lawsuit, and other suits across the country, were filed, and a federal judge in New York entered a preliminary injunction. Even then, the guidelines that USPS announced—culminating with an “Extraordinary Measures” memorandum on October 20, 2020—were primarily permissive rather than mandatory. USPS made mandatory key procedures to ensure that ballots were prioritized and accounted for in advance of the November 2020 Election only after Court orders entered on October 30, 2020, and November 1, 2020.
9. Although USPS eventually applied “Extraordinary Measures” to the November 2020 Election, it has not announced or implemented written guidance to ensure prompt and reliable mail-in ballot delivery in future elections.
10. Some states have elections scheduled in 2021, including as soon as the spring of 2021.
11. The National Association for the Advancement of Colored People (NAACP), the nation’s largest and oldest civil rights grassroots organization, brought this suit to require USPS to suspend the changes it implemented in its July “Pivot,” to restore prompt and reliable mail delivery, and to ensure that mail-in ballots are accorded priority status, as they have been in past years, in the November 2020 election. Congress has mandated that, before implementing changes that have a nationwide impact on mail delivery, USPS must provide an opportunity for public comment and seek an opinion from the Postal Rate Commission. See 39 U.S.C. § 3661. USPS
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failed to do so with respect to the reduction in late and extra trips or the change in treatment of ballots sent by marketing mail. Its changes were therefore unlawful. Congress has also mandated 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). USPS’s reversal of its policy of according first-class service to ballots sent by marketing mail, and its failure to implement policies necessary to ensure the prompt and reliable delivery of ballots for future elections, are inconsistent with that statutory mandate.
12. To preserve the integrity of the November 2020 election, and to ensure that every American has access to reliable mail service during the COVID-19 pandemic, the NAACP asked this Court to enjoin USPS’s unauthorized changes and to declare that USPS acted arbitrarily, capriciously, and in violation of section 101(e) by failing to give highest consideration to the delivery of important letter mail, including ballots.
13. This Court entered a preliminary injunction and a series of additional orders to enforce the injunction and to seek to ensure the prompt and reliable delivery of ballots close to the November 2020 general election and the run-off Georgia Special Elections for January 5, 2020.
14. USPS is reportedly planning imminently to adopt changes to mail delivery policies that will have a substantial impact on delivery times for first-class and other mail.
15. Judicial relief is needed to ensure that: (1) USPS does not implement policy changes that will have a substantial impact on mail delivery without first going through the process set forth in 39 U.S.C. § 3661; and (2) USPS implements procedures to ensure the prompt and reliable delivery of ballots in future elections, including accounting for and prioritizing ballot delivery close to Election Day, as required by USPS’s obligation to “give the highest consideration to the
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requirement for the most expeditious collection, transportation, and delivery of important letter mail.” 39 U.S.C. § 101(e).
JURISDICTION AND VENUE 16. This Court has jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1361. 17. Venue is proper in this district because a substantial part of the acts or omissions giving rise to the claim occurred in this judicial district. 28 U.S.C. § 1391(c)(2), (e)(1).
PARTIES 18. Plaintiff NAACP is the nation’s largest and oldest civil rights grassroots organization. Since its founding in 1909, the mission of the NAACP has been to ensure the political, educational, social, and economic equality of all persons and to eliminate race-based discrimination. The NAACP has fought in the courts for decades to protect the constitutional guarantee of equal protection under law. To advance its mission, the NAACP has brought landmark civil rights cases over its 109-year history and continues to do so. The NAACP also has filed numerous amicus briefs in cases that significantly impact people of color. 19. The NAACP is organized into state or state area and local units, known as conferences, chapters and branches, all of which are part of the NAACP. Every member of a state or local unit is also a member of the NAACP. The NAACP has state and local conferences or chapters in 48 states, and it has over 200,000 members nationwide. 20. The NAACP and its members rely on mail service by USPS for a variety of important purposes. Delays in mail delivery are of significant concern to the NAACP and to NAACP members, and NAACP members have been adversely impacted by delays in mail delivery that began last summer. For example, Earl Graham, a 62-year-old disabled veteran and NAACP
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member in South Carolina, experienced delays in connection with the delivery of his prescription drugs last summer, which resulted in his enduring substantial pain.
21. The NAACP engages in educational initiatives targeted at its members. A significant aspect of this educational work involves informing members of accurate information about voting, including voting by mail.
22. The NAACP has also established a civic engagement program, which is designed to encourage citizens to be fully engaged in the democratic process, and to raise awareness for political, educational, social, and economic equality for communities of color in the electoral and legislative process. Drawing upon the resources of its branches across the country, the program seeks to increase turnout among Black voters in federal, state, and local elections.
23. The NAACP’s civic engagement program is already planning to engage in election protection, voter registration and voter turnout activities in elections at the state and local level in multiple states for 2021, including elections that will occur this spring. The NAACP intends to continue its civic engagement program for elections in future years, including the 2022 and 2024 federal elections, as well as additional state and local elections.
24. Concerns about the reliability and timeliness of mail delivery caused the NAACP to divert civic engagement program resources in connection with the 2020 elections. For example, because of numerous reports documenting concerns about the reliability and timeliness of mail delivery, the Florida State Conference of the NAACP and volunteers it recruited as part of the civic engagement program disseminated information and organized transportation for voters to drop off their absentee ballots at local supervisors of elections in advance of Florida’s August 18, 2020 primary election, including after church services. Absent these concerns about the reliability and timeliness of mail delivery, the Florida State Conference of the NAACP and volunteers it
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recruited could have devoted these resources to the regular activities of the civic engagement program, including voter registration, contacting voters to ensure they have accurate information and encouraging them to vote, and conducting poll monitoring and other election activities.
25. If delays in postal service persist, or if USPS fails to implement clear procedures to prioritize—and ensure reliability of—the delivery of mail-in ballots close to Election Day, the NAACP will likely be required to divert resources that it would have otherwise expended on other aspects of its civic engagement program. For example, if concerns about the reliability and timeliness of mail-in ballot delivery persist close to election days, the NAACP (including state and local units) and volunteers it recruits will likely disseminate information encouraging voters to drop off absentee ballots at local election boards or drop boxes, or organize transportation to ensure that voters can do so. The NAACP will likely have to divert staff and/or volunteer time to these activities. Absent concerns about the reliability and timeliness of ballot delivery, the NAACP (including state and local units) would likely devote these resources—including staff and volunteer time—close to election days, to the regular activities of the civic engagement program, such as registering voters (when registration is still open), contacting registered voters to ensure they have accurate voting information and encouraging them to vote, organizing events to get out the vote, and conducting poll monitoring and other voter protection activities during early voting. NAACP staff or volunteers are also likely to be required to divert resources throughout the pre-election period, and on election day itself, to questions from voters about delayed delivery of mail-in ballots and how they can vote if their mail-in ballot was delayed or not delivered.
26. The timeliness and reliability for mail-in ballot delivery are also likely to impact the decisions and conduct of NAACP members. If delays persist in mail delivery, and absent clear procedures to identify and prioritize the delivery of ballots close to an election to ensure the
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reliability of mail-in voting, NAACP members are likely to choose other methods to cast their ballots, especially close to an election. These other measures may require NAACP members to have to wait in long lines, or travel significant distances, rather than cast their ballots by mail. Alternatively, NAACP members may have to cast their ballots sooner than they would like to, reducing the time they have to consider different candidates for different elections, in order to have confidence that their ballots will be delivered in time to be counted.
27. Defendant USPS is an independent agency of the executive branch of the United States.
28. Defendant Louis DeJoy is the Postmaster General, the chief executive officer of USPS. He is sued in his official capacity.
BACKGROUND Statutory and Regulatory Background
29. “The U.S. Postal Service is established under the provisions of the Postal Reorganization Act (the Reorganization Act) of 1970, Public Law 91-375, 84 Stat. 719, as amended by the Postal Accountability and Enhancement Act of 2006 (PAEA), Public Law 109435, 120 Stat. 3198, 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.
30. By statute, USPS is required to “operate[] as a basic and fundamental service provided to the people by the Government of the United States, authorized by the Constitution, created by Act of Congress, and supported by the people.” 39 U.S.C. § 101(a). It has “as its basic function the obligation to provide postal services to bind the Nation together through the personal, educational, literary, and business correspondence of the people. It shall provide prompt, reliable,
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and efficient services to patrons in all areas and shall render postal services to all communities.” Id.
31. Congress has directed 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).
32. The PAEA in 2006 established the Postal Regulatory Commission as “an independent establishment of the executive branch.” Id. § 501. “The Postal Regulatory Commission is composed of 5 Commissioners, appointed by the President, by and with the advice and consent of the Senate. The Commissioners shall be chosen solely on the basis of their technical qualifications, professional standing, and demonstrated expertise in economics, accounting, law, or public administration, and may be removed by the President only for cause. Each individual appointed to the Commission shall have the qualifications and expertise necessary to carry out the enhanced responsibilities accorded Commissioners under the Postal Accountability and Enhancement Act.” Id. § 502(a). “No Commissioner shall be financially interested in any enterprise in the private sector of the economy engaged in the delivery of mail matter.” Id. § 502(b). Process for Changes to the Provision of Postal Services
33. USPS is tasked with “develop[ing] and promot[ing] adequate and efficient postal services.” Id. § 3661(a).
34. “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).
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35. Before issuing its opinion, the Commission must provide “an opportunity for hearing on the record under sections 556 and 557 of [the Administrative Procedure Act] . . . 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.” Id. § 3661(c).
36. The Commission’s Rules of Practice and Procedure require USPS to file its request “not less than 90 days before the proposed effective date of the change in the nature of postal services involved.” 39 C.F.R. § 3020.112.
37. The Commission’s rules permit two forms of voluntary participation in Commission proceedings: (1) A person may file a notice of intervention pursuant to 39 C.F.R. § 3010.142(a) and, as a party, participate in discovery and motions practice, file testimony, and submit briefs, among other rights and responsibilities. (2) A person may participate by submitting comments in proceedings before the Commission except those involving an appeal of a Postal Service determination to close or consolidate a post office, pursuant to 39 C.F.R. § 3010.140.
38. Through section 3661, Congress provided the public a right to comment and an opportunity to provide input on any proposals to make meaningful changes in the delivery of the post nationwide. Consistent with the requirements of section 3661, USPS has, in the past, submitted proposed changes regarding the nature of postal services to the Commission within a reasonable time prior to the effective date of the proposal and requested an advisory opinion from the Commission.
39. For example, in 2014, USPS sought an advisory opinion on a proposal to change the manner by which it processes and dispatches mail that qualifies for a discounted price. For
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certain mail entered on Fridays or Saturdays, USPS proposed to change the delivery expectation or delivery service standard from 3 days to 4 days. The Commission’s advisory opinion recommended that the proposal required more study. After receiving comments and briefs from intervenors, the Commission found, among other things, that USPS’s proposal was based on limited test information and sometimes anecdotal accounts, and it noted concern that the proposal did not have sufficient “support within the mailing community.”2
40. Similarly, in 2012, USPS sought an advisory opinion under section 3661 on a proposal to reduce the hours of operation at more than 13,000 post offices nationwide by 6, 4, or 2 hours per weekday, and to increase hours at approximately 73 locations. USPS stated that its proposed plan was intended “to achieve cost savings with limited reductions in access and service,” and included provisions for soliciting community input with respect to the changes in hourly operations at specific offices. After soliciting public comment, the Commission made recommendations concerning access, community input, revenue, and staffing.3
USPS’S FAILURE TO GIVE HIGHEST CONSIDERATION TO THE COLLECTION, TRANSPORTATION, AND DELIVERY OF BALLOTS
41. Mail-in voting has existed for decades in the United States. All fifty States allow voters to use some sort of mail-in voting, and millions of voters vote by mail each year. Members of the United States military stationed on bases away from home in other states and outside the country rely on mail-in voting to participate in elections. Disabled voters, those who are hospitalized and voters in nursing homes also often vote by mail. In November 2000, Oregon
2 PRC, Advisory Op. on Service Changes Associated with Standard Mail Load Levels, N2014-1 at 1, Mar. 26, 2014, https://www.prc.gov/docs/89/89493/docket%20no.%20n2014-1_advisory %20opinion.pdf; id. at 5 (noting comments). 3 PRC, Advisory Op. on Post Office Structure, N2012-2, at 1–2, Aug. 23, 2012, https://www.prc. gov/docs/85/85013/n2012-2_adv_op_082312.pdf.
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became an all vote-by-mail state.4 Even before the pandemic, as USPS itself recognized in a January 2020 publication, one-quarter of the 120 million Americans who participated in the 2018 election voted by mail.5 In 2020, 46% of the more than Americans who participated in the November election voted by mail.6
42. In “giv[ing] the highest consideration to the requirement for the most expeditious collection, transportation, and delivery of important letter mail,” 39 U.S.C. § 101(e), USPS must implement policies that prioritize the delivery of ballots near election times, and that ensure ballots are not left behind in processing facilities or elsewhere in the delivery process. If USPS does not implement such policies, large numbers of Americans will be disenfranchised because their ballots will not arrive in time to be counted.
43. USPS recognizes the need to implement special procedures to prioritize the delivery of ballots close to elections, including by taking steps such as using the express mail network; creating special procedures for the local delivery of ballots that bypass traditional processing networks; contacting local boards of elections to coordinate deliveries; and conducting sweeps of processing facilities to ensure that ballots are not left behind. The 2020 Election
44. In response to Jones v. USPS, 2020 WL 5627002, __ F. Supp. 3d __ (S.D.N.Y. Sept. 21, 2020), which found USPS’s treatment of election mail to be inadequate, USPS issued memoranda on September 21 and September 25 providing further information about the handling of election mail. Although USPS’s September 25, 2020, memorandum acknowledged that extra
4 Oregon Sec. of State, Oregon Vote-By-Mail, https://sos.oregon.gov/elections/Documents/ statistics/vote-by-mail-timeline.pdf. 5 https://about.usps.com/kits/kit600.pdf, at 3. 6 http://electionlab.mit.edu/sites/default/files/2020-12/How-we-voted-in-2020-v01.pdf.
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steps would be required to ensure the timely delivery of ballots, both memoranda provided only general guidance.
45. USPS issued specific written policies describing the extra steps necessary to prioritize and account for the delivery of ballots in the November 2020 election only after required to do so by a court order. It disseminated a “Supplemental Guidance Memorandum” on October 13, 2020, and then an “Extraordinary Measures Memorandum” on October 20, 2020, that underscored the need to take special measures in advance of the election. The “Extraordinary Measures Memorandum” stated: “we must work together to put a relentless focus on Election Mail” over the next two weeks. It then described a number of measures that were “authorized to be used” beginning October 26, such as establishing a drive through ballot postmark/drop option; establishing a “hub-and-spoke” process for running ballots on November 2 and November 3 that were mailed in close proximity to a local Board of Election, bypassing the normal mail flow process; and, beginning October 30, using the Express Mail network. The October 20, 2020 memorandum also either authorized or required additional trips by mail carriers; coordination between USPS employees and local election officials; and, for many offices, running regular mail collections on Sunday, November 1.
46. Most of the measures set forth in the October 2020 memoranda were not required. 47. High-ranking USPS officials repeatedly acknowledged in testimony that the measures described in the October 2020 memoranda were necessary to ensure the prompt and reliable delivery of mail-in ballots for the November 2020 election, even though USPS had not made those measures mandatory in the October 2020 memoranda. 48. For example, Kristen Seaver, Chief Retail and Delivery Officer for USPS who was one of two signatories to the September and October memoranda, testified on October 30, 2020
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that expanded service is necessary the weekend before a Tuesday election day “because we know we can’t turn those ballots [that have been mailed] in time for that Tuesday election depending on the service standard.” Tr. 15:15-17. Ms. Seaver further testified that, to ensure that ballots in the mail network the weekend before a Tuesday election are delivered in a timely manner, “specific measures” are required, including: a dedicated person picking up collections from blue collections boxes the Sunday before the election; extra transportation between post offices and processing plants; and plants processing outgoing mail on Sunday. Id. at 12:10-13:13. Absent the implementation of these special measures the weekend before an election “we know we can’t turn these ballots around in time for that Tuesday election depending on the service standard.” Id. at 15:14-15.
49. Similarly, Michael Barber, Vice President of Processing and Maintenance Operation, testified on October 31, 2020, that, under USPS’s normal service standard, ballots entered into the system near in an election “would be at risk of not making it to their destination timely” if they were “left to go through the regular and normal process that we have.” Oct. 31, 2020 Tr. 3 at 10:15. As a result, Mr. Berber testified that, in preparation for the November 2020 election, USPS had to put in place measures to “isolate ballots in different ways,” implement “additional transportation,” identify additional resources with the logistics team including standby resources, including by “maximizing the full use of any overtime usage.” Id. at 3:17, 4:18-20, 7:1415; see also id. at 13:23-14:10 (testifying that because ballots collected the day before an election for local delivery would not necessarily be delivered in time if they went “through . . . regular sortation,” USPS had to implement extraordinary measures for the November 2020 election).
50. Dane Coleman, the Regional Vice President of Processing Operations, testified on October 31, 2020, that “We need all available resources” to deliver election mail in a timely
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manner, which including “utiliz[ing] as much overtime as necessary to get the job done.” Id. 24:1519. He further stated: “We all recognize how important it is to deliver our brand to the American public. So it’s all hands on deck. All resources available needed.” Id. at 25:1-3. Mr. Coleman testified that the extraordinary measures that USPS implemented for the November 2020 election were “necessary for us to finish strong.” Id. at 25:12-13.
51. Another USPS employee, Kevin Bray, testified on November 4, 2020, that his “real job is manager of In Plant Support,” but just four weeks earlier he had been given the job of being the executive in charge of mail processing for the 2020 election. Nov. 4 Tr. 33:15-34:6. Mr. Bray testified that, although he had not been made aware of any injunctions that courts had by then issued against the USPS, he “heard that that document [the October 20, 2020 Extraordinary Measures Memorandum] was being done because we were under some heat from the courts.” Id. at 111:19-21. Mr. Bray further testified that he heard this information from Justin Glass, the appointed manager in charge of election and political mail for the 2020 Election, and that Mr. Bray was further “told we’re going to have to do everything, move heaven and earth to deliver ballot mail. We don’t want the courts to come back and say we didn’t do everything we could. Make this detailed and make it right so we can deliver the mail. That was my overarching reason for being put in the position.” Id. at 112:2-7.
52. Mr. Bray further explained that sweeps, and certifications of sweeps, of mail processing facilities are important to ensuring that ballots are delivered in a timely manner because, for example, ballots can be found in unexpected locations such as manual operations and because mis-sorts and mis-sends happen at processing facilities. Id. at 66:3-68:2. The sweep and certification process allows such ballots to be identified and then expedited to ensure timely delivery if possible. See id.; see also id. at 78:6-9 (sweeps may identify “ballots that aren’t where
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they are supposed to be”). Mr. Bray further acknowledged “being asked to investigate why election mail wasn’t being delivered on time at a very high percentage” in certain facilities. Id. at 72:7-18.
53. Mr. Bray also testified that each plant was supposed to have a plan in place for a final sweep on Election Day in November 2020 in time to make the ballot receipt deadline, but he admitted that there was no written documentation instructing plants to have such plans and that he did not have anything to verify that such plans existed. Id. at 82:1-14.
54. Mr. Bray further acknowledged that, even with the extraordinary measures in place, USPS’s own data reflected that, in just one district, approximately 1,400 ballots delivered on Election Day in Central Pennsylvania were not delivered with USPS’s service standard for ontime delivery, which he agreed was “not something that should have happened based on the extraordinary measures that were put in place.” Id. at 93:20-21; id. at 94:6-7 (“I don’t know why and there’s no excuse. It should never have happened.”); see also id. at 90:17-18 (acknowledging, based on representations from plaintiff’s counsel in a related case about outbound ballots delivered to voters in Western Pennsylvania based on USPS’s own data, “[h]aving mail that late is bothersome.”). Mr. Glass also recognized that USPS was “by no means, perfect,” in the November 2020 election: some “ballots that were mailed on time did not make it.” Dec. 5 Tr. at 128:8-10.
55. On October 30, 2020, and November 1, 2020, this Court entered orders that required USPS employees in many districts to implement measures set forth in the October 20, 2020 memorandum (unless doing so would slow down mail delivery) and to take additional measures to prioritize and account for the delivery of ballots in advance of the November 2020 election. See Oct. 30, 2020, Minute Entry; ECF 62.
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56. In sum, USPS officials repeatedly testified that special measures, including those set forth in the October 2020 memoranda, were necessary to ensure the prompt and reliable delivery of ballots. Lack of USPS Election-Mail Policies
57. USPS has no written policies or guidance in place to ensure the prompt and reliable delivery of ballots with respect to election mail generally. USPS would not have issued the October 13, 2020, memorandum absent a court order. Dec 5 Tr. at 42:8-15.
58. The measures set forth in the October 2020 memoranda were limited to the November 2020 election.
59. At the October 30 hearing, Ms. Seaver testified that USPS had put in place policies to prioritize the delivery of election mail in prior elections as well. However, when asked by the Court: “So this is traditional. Is that right? Every election year, you do this. The Postal Service does this?,” Ms. Seaver responded: “We do this to some extent.” Oct. 30 Tr. 15:20-23.
60. USPS has not been consistent in its (unwritten) approach to election mail in prior elections. In September 2020, a federal court in New York found that “[t]he Postal Service’s approach to handling election mail” also “experienced changes in” 2020. Jones v. USPS, 2020 WL 5627002, at *7. Those changes included abandoning the prior practice of treating election mail as first-class mail even if it was sent at marketing mail rates. See id.7
61. On July 29, 2020, USPS sent letters to election officials in 46 states and the District of Columbia announcing a change to its treatment of election mail, including mailed ballots. In
7 See also USPS Office of the Inspector General, Audit Report, a Service Performance of Election and Political Mail During the 2018 Midterm and Special Elections at 7 (Nov. 4, 2019), https://www.uspsoig.gov/sites/default/files/document-library-files/2019/19XG010NO000.pdf OIG 2019 Report).
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those letters, USPS warned that “there is a significant risk that, at least in certain circumstances, ballots may be requested in a manner that is consistent with your election rules and returned promptly, and yet not be returned in time to be counted.”8
62. To account for that risk, the USPS letters “recommend[ed] that election officials use First-Class Mail to transmit blank ballots and allow 1 week for delivery to voters.” It warned that “[u]sing Marketing Mail will result in slower delivery times and will increase the risk that voters will not receive their ballots in time to return them by mail.”
63. The letters stated that “the Postal Service cannot adjust its delivery standards to accommodate the requirements of state election law.” The letters did not acknowledge USPS’s longstanding policy of according first-class treatment to ballots materials sent by Marketing Mail, or the change in policy reflected in the letters.
64. The letters also did not acknowledge USPS’s statutory obligation to provide highest consideration for the delivery of important letter mail, see 39 U.S.C. § 101(e), or its statutory duty to seek an advisory opinion from the Postal Regulatory Commission before making any changes “that will generally affect service on a nationwide or substantially nationwide basis,” see id. § 3661(a).
65. The slower delivery of ballots under the USPS policy announced in the letters would have compressed the time voters had to return their completed ballot for the November 2020 election. As USPS recognized in the July 29 letters, “the ballot needs to be in the hands of the voter so that he or she has adequate time to complete it and put it back in the mail stream so that it can be processed and delivered by the applicable deadline.” The delay in the delivery of
8 Letters from Thomas Marshall, Gen. Counsel, U.S. Postal Service, to Forty-Seven Secretary of States (July 29, 2020), https://www.washingtonpost.com/context/u-s-postal-service-letters-tostates/b50799f2-25ad-40ed-ba1e-9d648b1814ad/?itid=lk_interstitial_manual_6.
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mailed ballots that no longer receive first-class treatment risked causing significant numbers of completed ballots not to be counted because they would be delivered after states’ deadlines.
66. Although this change in the nature of postal services would have a nationwide effect, USPS failed to submit a proposal for the change to the Postal Regulatory Commission.
67. In Jones, the court issued an injunction that, among other things, required USPS to treat all Election Mail as First-Class Mail or Priority Mail Express to the extent excess capacity was available. See 2020 WL 5627002, at *28-*29.
68. Earlier in 2020, USPS managers directed employees to no longer prioritize ballots in the sorting process. The Jones court credited testimony that this change led to approximately 600 ballots being left on the mail room floor in a San Antonio processing facility during the March 2020 primary. Jones v. USPS, 2020 WL 5627002, at *7. Further, although USPS stated that it had in place “all clears” to ensure that Election Mail was accounted for, an August 31, 2020 report from the USPS’s Office of the Inspector General found that, of seven facilities audited, none used the USPS’s all-clear checklist. In addition, at that time, most of the measures that USPS contemplated with respect to election mail were “considered ‘practices’ not ‘policies,’ meaning … that they are not required and are instead ‘typically left to local managers’ to implement.” Id.
69. The October 2020 memoranda, see supra ⁋ 45, were the first time that USPS had created something “more codified” with respect to the delivery of election mail; those memoranda do not apply to future elections. Glass Dep., 12/5/20 at 138:1-15.
70. USPS received a total of between 30,000 and 40,000 calls from employees to its help desk related to election procedures, and the majority of those calls were questions about the memoranda that USPS issued in September and October of 2020 concerning the delivery of election mail. 12/5/20 Glass Dep. 150:4-16.
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THE COVID-19 PANDEMIC
71. On March 11, 2020, the World Health Organization declared a global pandemic
resulting from the spread of COVID-19.9 Two days later, then-President Trump announced that
the outbreak of COVID-19 in the United States constituted a national emergency.10
72. By April 2020, the United States became the epicenter of the COVID-19 pandemic
with the highest number of confirmed COVID-19 cases in the world.11 As of August 2020, there
were over 5,400,000 COVID-19 cases reported in the United States, including nearly 170,000
deaths.12 Given a combination of shortages in testing, false negatives, and asymptomatic carriers,
the actual number of cases and deaths is likely higher than officially reported.13 As of February
2020, more than 500,000 Americans have died from COVID-19.
73. COVID-19 is a respiratory infection caused by the novel coronavirus SARS-CoV-
2. It spreads via respiratory droplets, particularly through close in-person contacts.14 The virus can
9 Dr. Tedros Adhanom, WHO Director-General’s Opening Remarks at the Media Briefing on COVID-19 (Mar. 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-sopening-remarks-at-the-media-briefing-on-covid-19---11-march-2020. 10 Proclamation No. 9994, 85 Fed. Reg. 15,337 (Mar. 18, 2020), https://www.federalregister.gov/ documents/2020/03/18/2020-05794/declaring-a-national-emergency-concerning-the-novelcoronavirus-disease-covid-19-outbreak. 11 David Smith, US Surpasses China for Highest Number of Confirmed COVID-19 Cases in the World, The Guardian (Mar. 27, 2020), https://www.theguardian.com/world/2020/mar/26/ coronavirus-outbreak-us-latest-trump. 12 CDC, Coronavirus Disease 2019 (COVID-19): Cases in the U.S., https://www.cdc.gov/ coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited Aug. 18, 2020). 13 Apoorna Mandavilli, Coronavirus Infections Much Higher Than Reported Cases in Parts of the U.S., Study Shows, NY Times (July 21, 2020), https://www.nytimes.com/2020/07/21/health/ coronavirus-infections-us.html; Andrew Joseph, Actual Covid-19 Case Count Could be 6 to 24 Times Higher than Official Estimates, CDC Study Shows, STAT (July 21, 2020), https://www.statnews.com/2020/07/21/cdc-study-actual-covid-19-cases/. 14 CDC, Coronavirus Disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/prevention.html (last updated July 31, 2020).
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be spread by asymptomatic, pre-symptomatic, and symptomatic individuals.15 Understanding of
the full range of effects of COVID-19 infection continues to develop. Symptoms may be severe,
including fever, difficulty breathing, and loss of taste or smell.16 Individuals hospitalized with
COVID-19 may continue to experience persistent symptoms for months.17 Lethal at its worst,
COVID-19 infection can lead to long-term damage to the lungs, heart, brain, kidneys, or liver.18 It
is uncertain whether people who recover from COVID-19 can subsequently be re-infected.19
74. People of all ages have contracted and died from COVID-19.20 Several preexisting
medical conditions can increase the risk of serious complications from COVID-19, regardless of
15 Nathan W. Furukawa, et al., Evidence Supporting Transmission of Severe Acute Respiratory Syndrome Coronavirus 2 While Presymptomatic or Asymptomatic, 26 CDC Emerging Infectious Diseases (July 2020), https://wwwnc.cdc.gov/eid/article/26/7/20-1595_article. 16 CDC, Symptoms of Coronavirus, https://www.cdc.gov/coronavirus/2019-ncov/symptomstesting/symptoms.html (last updated May 13, 2020). 17 Victoria Foster, 80% Of People Hospitalized With Coronavirus Still Had Symptoms Two Months Later, Says New Study, Forbes (July 11, 2020), https://www.forbes.com/sites/ victoriaforster/2020/07/11/80-of-people-hospitalized-with-coronavirus-still-had-symptoms-twomonths-later-says-new-study/#37aedd2b1e93. 18 Jacqueline Howard, COVIID-19’s Impact on the Heart: Two New Studies Suggest ‘the Plot Thickening’, CNN (July 28, 2020), https://www.cnn.com/2020/07/28/health/covid-heart-damagetwo-studies/index.html; CDC, Coronavirus Disease 2019 (COVID-19): Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html (last updated June 30, 2020); Zoe Cormier, How Covid-19 can damage the brain, BBC (June 22, 2020), https://www.bbc.com/future/article/20200622-the-long-term-effects-of-covid-19-infec tion. 19 CDC, Coronavirus Disease 2019 (COVID-19): Duration of Isolation & Precautions for Adults (last updated Aug. 16, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/duration-isola tion.html. 20 CDC, COVID-19 Guidance for Older Adults, https://www.cdc.gov/aging/covid19guidance.html (last updated Aug. 17, 2020). See also CDC, Hospitalization Rates and Characteristics of Children Aged <18 Years Hospitalized with Laboratory-Confirmed COVID-19 (Aug. 14, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6932e3.htm (“Children are at risk for severe COVID-19. Public health authorities and clinicians should continue to track pediatric SARS-CoV-2 infections.”).
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age, including kidney disease, heart disease, asthma, hypertension, and diabetes.21 The pandemic has had a particularly devastating impact on Black people in the United States. As a result of disparities in access to health care and structural discrimination that leads to higher rates of comorbidities, Black people comprise a disproportionate number of both cases of infection and deaths caused by the virus.22
USPS IMPLEMENTS CHANGES IN NATIONWIDE POSTAL SERVICE IN THE MIDST OF THE COVID-19 PANDEMIC
A “Pivot” Affecting Nationwide Service 75. On May 6, 2020, Louis DeJoy was appointed Postmaster General of the United
States, assuming office on June 16, 2020. 76. Just weeks later, Postmaster General DeJoy directed USPS to implement significant
operational changes on a nationwide basis. Internal USPS documents acknowledged that those changes would impact USPS’s provision of postal services to the public, including by resulting in delays in mail delivery.
77. Specifically, on or about July 10, 2020, local USPS managers circulated a document entitled “PMGs expectations and plan,” which outlined their understanding of significant nationwide changes Postmaster General DeJoy was implementing. That document stated that overtime would be eliminated, that letter carriers would have to make changes limiting the timeframe and affecting the scope of their delivery routes, and that certain customer service
21 CDC, Coronavirus Disease 2019 (COVID-19): Groups at Higher Risk of Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html (last updated Aug. 14, 2020). 22 See Richard A. Oppel, Jr., et al., The Fullest Look Yet at the Racial Inequity of Coronavirus, NY Times, July 5, 2020, https://www.nytimes.com/interactive/2020/07/05/us/coronavirus-latinosafrican-americans-cdc-data.html; see also The COVID Tracking Project, The COVID Racial Data Tracker, https://covidtracking.com/race (last visited Aug. 18, 2020).
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windows would be closed during lunchtime.23 It also stated that employees should leave mail behind at distribution centers if it delayed letter carriers from their routes. These represented significant departures from prior practices, as postal workers had been trained not to leave letters behind and to make multiple trips to ensure timely distribution of letters and parcels.
78. USPS also circulated a document on July 10, 2020, entitled “Mandatory Stand-Up Talk: All Employees,” with a subtitle “Pivoting For Our Future” (herein “Pivot Instructions”). The Pivot Instructions described significant changes that USPS was immediately implementing on a nationwide basis and acknowledged that these changes would impact the delivery of mail.24
79. The Pivot Instructions state that USPS “must make immediate, lasting, and impactful changes in our operations and in our culture,” and stress that “[e]very single employee will receive this information” because every employee was “integral” to the success of those changes.
80. The Pivot Instructions further state that the “initial step in our pivot is targeted on transportation” which will involve “challenging” changes “as we seek to change our culture and move away from past practices previously used.” The Pivot Instructions then provide numerous specific examples of “transportation changes being implemented immediately (today),” including limiting the timeframe when employees are permitted to make mail delivery trips. The Pivot Instructions acknowledge that, as a result of these changes, employees “may see mail left behind or on the workroom floor or docks,” which is “not typical” and “may be difficult for employees.”
23 See, e.g., Jacob Bogage, Postal Service Memos Detail ‘Difficult’ Changes, Including Slower Mailer Delivery, Wash Post (Aug. 14, 2020) https://www.washingtonpost.com/business/2020/ 07/14/postal-service-trump-dejoy-delay-mail/. 24 Available at https://federalnewsnetwork.com/wp-content/uploads/2020/07/071020-stand-uptalk.pdf.
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81. The Pivot Instructions appear to contemplate that “delayed mail volumes” would result from the first phase of this pivot; the Instructions state that the transportation pivot is part of an “ongoing pivot” that would include additional phases, and that “operations will begin to run more efficiently and that delayed mail volumes will soon shrink significantly.” The Pivot Instructions do not, however, explain what those additional phases will be, when they will be implemented, or how they will reduce delayed mail volume.
82. Neither the “PMGs expectations and plan” nor the Pivot Instructions discuss prioritizing the delivery of ballots, election-related mail, or other important letter mail.
83. Despite the significant changes in the postal service operations, and their impact on the public, USPS did not follow the procedures set forth in 39 U.S.C. § 3661 before implementing them. Specifically, USPS did not submit a proposal to the Postal Regulatory Commission requesting an advisory opinion on those changes prior to implementing them. The “Pivot” Leads to Delays in Postal Service
84. In the wake of USPS’s “Pivot,” there were widespread reports of mail piling up in regional distribution centers and post offices around the country, and of customers experiencing substantial delays and disruptions in mail service.25
85. For example, in Philadelphia, Pennsylvania, residents reportedly experienced delays of up to three weeks in receiving mail, leading to missed worker’s compensation checks and paychecks.26 Baltimore County, Maryland, residents who had not
25 Luke Broadwater, Crisis Ripples Across Nation as Election Looms, NY Times (Aug. 18, 2020), https://www.nytimes.com/2020/08/15/us/post-office-vote-by-mail.html. 26 Ellie Rushing, Mail Delays are Frustrating Philly Residents, and A Short-Staffed Postal Service is Struggling to Keep Up, Philadelphia Inquirer (Aug. 2, 2020), https://www.inquirer.com/ news/philadelphia/usps-tracking-in-transit-late-mail-delivery-philadelphia-packages-postalservice-20200802.html.
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received mail in two weeks waited in line for hours at the post office to try and collect their mail.
Those residents reported that they were still unable to pick up their most important mail, including
checks and an unemployment benefit debit card needed to pay their bills.27 Similarly, in Southeast
Washington, DC, hundreds of residents went two weeks without receiving any mail.28
86. Mail has been arriving late across Western New York: the president of a local
chapter of the American Postal Workers Union reported that, as a result of the changes in service,
“we’ve had entire towns that didn’t get their mail that day,” including “some of the bigger ones—
East Aurora, Lancaster.”29 Similar delays have occurred across central Alabama.30 In Maine, postal
workers reported leaving 80,000 letters behind because they were not permitted to wait 10 minutes
for them to be processed.31
87. Similar delays in mail service were reported throughout the country, including in
California, Colorado, Connecticut, Illinois, Maryland, Michigan, Minnesota, Missouri, Nevada,
27 Kim Dacey, People Who Haven’t Received Mail in Weeks Line Up at Post Office, WBALTV (Aug. 6, 2020), https://www.wbaltv.com/article/baltimore-mail-delays-continue-no-mail-inweeks/33535355. 28 Kolbie Satterfield, Southwest DC Residents Go Weeks Without Mail Being Delivered, WUSA9 (Aug. 13, 2020), https://www.wusa9.com/article/news/local/dc/two-weeks-no-mail-in-southeastdc-neighborhood/65-31535798-3c83-45f8-b0e4-775ce6d6e8f8. 29 See Jerry Zremski, Mail Delays, Days With No Delivery Prompt Rising Concern in NY, Buffalo Times (Aug. 13, 2020), https://buffalonews.com/news/national/govt-and-politics/mail-delaysdays-with-no-delivery-prompt-rising-concern-in-wny/article_d9944036-dd92-11ea-8f15-778f24 015679.html. 30 See Lauren Walsh, Central Alabama Experiences Some Mail, Package Delays as USPS, UPS Feel COVID-19 Impact, ABC33/40 News (Aug. 12, 2020), https://abc3340.com/news/local/ central-alabama-experiences-some-mail-package-delays-as-usps-ups-feel-covid-19-impact. 31 See Alison Durkee, Postmaster General Acknowledges ‘Unintended Consequences’ of USPS Changes Causing Mail Delays, Forbes (Aug. 14, 2020), https://www.forbes.com/sites/ alisondurkee/2020/08/14/postmaster-general-louis-dejoy-acknowledges-unintended-consequ ences-of-usps-postal-service-changes-mail-delays/#764bfdf46052.
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New Mexico, Ohio, Oregon, Rhode Island, South Carolina, Texas, Utah, Vermont, Washington,
Wisconsin, and Virginia.32
88. These disruptions and delays in postal service have caused Americans to go without
their life sustaining medication and medical supplies, including medications to treat diabetes,
asthma, hypertension, among other serious chronic conditions.33 Veterans, who overwhelmingly
receive their medications through the mail, have reported delays of weeks to receive medication.34
Veterans have also reported that delayed bills and payments have caused them to incur late fees.35
89. Delays in mail delivery affected elections. For example, in St. Louis, Missouri, mail
delays contributed to ballots arriving too late to be completed or mailed back in time to be counted
in the state’s August 4, 2020 primary election.36
32 See, e.g., State of Washington v. Trump, No. 1:20-cv-03127 (E.D. Wash.), available at https://agportal-s3bucket.s3.amazonaws.com/001_ComplaintUSPS.pdf; Andrew Brown & Andrew Miller, Some SC Businesses Say They are Experiencing Delays Because of US Postal Service Changes, The Post and Courier, (Aug. 14, 2020), https://www.postandcourier.com/ business/some-sc-businesses-say-they-are-experiencing-delays-because-of-us-postal-servicechanges/article_e8716d38-dd6d-11ea-9c9e-a79f1c82a446.html; Ron Trevino, USPS Delivery Delays Leave 82-year-old Texas Man Without Heart Medication for a Week, WBNS (Aug. 17, 2020), https://www.10tv.com/article/news/nation-world/usps-delays-leave-humble-man-withoutheart-medication/285-49815193-bf3d-4b45-a1a5-b0afe16236f7; David Manoucheri, People Wait Weeks, Months for Packages to be Delivered, KCRA, (Aug. 15, 2020), https://www.kcra.com/ article/people-wait-weeks-months-for-packages-to-be-delivered/33606613; Ginna Roe, Utah Diabetic Waiting for More Than a Week For Supplies By Mail, KUTV, (Aug. 17, 2020); https://kutv.com/news/local/utah-diabetic-waiting-more-than-a-week-for-supplies-by-mail. 33 Rosalind Adams, et al., USPS Delays Are Causing People to Get their Prescriptions Late, Buzzfeed News (Aug. 17, 2020) https://www.buzzfeednews.com/article/rosalindadams/postoffice-delay-prescription-medicine. 34 See Letter from 31 Senators to Louis DeJoy (Aug. 13, 2020), https://bit.ly/345AaDj; James Clark, How the battle over the US Postal Service is costing veterans dearly, Task & Purpose (Aug. 18, 2020), https://taskandpurpose.com/news/postal-service-veteran-medication-delays. 35 Letter from Senator Gary Peters to Hal. J. Roesch II (Aug. 13, 2020), https://bit.ly/311tQe5. 36 Robert Patrick, Postal Delays, Greater Demand for Ballots Leading to Spike in Complaints, Groups Say, St. Louis Post-Dispatch, (Aug. 1, 2020), https://www.stltoday.com/lifestyles/healthmed-fit/coronavirus/postal-delays-greater-demand-for-ballots-leading-to-spike-in-complaints-
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90. In a memo circulated to USPS employees the week of August 10, Postmaster General DeJoy acknowledged that the Pivot “impacted our overall service levels.”
91. Following widespread complaint and media reports regarding the delays, the House of Representatives sent a notice requesting Mr. DeJoy appear for a hearing on August 21, 2020.
92. On August 18, 2020, Postmaster General DeJoy disseminated a public statement that he was suspending certain changes that had been implemented pursuant to “longstanding operational initiatives” that “predate my arrival at the Postal Service.”37 That statement did not, however, purport to suspend key changes announced in the July 10 Pivot directing reductions in service. It also did not address the changes discussed in the “PMGs expectations and plan” document, other than to say that “overtime has, and will continue to be, approved as needed.”
PERSISTING DELAYS AND PROPOSED CHANGES 93. Even after this Court entered a series of preliminary injunctions beginning September 27, 2020, requiring USPS to suspend its new policy limiting late and extra trips, USPS made no effort to comply because in the words of a USPS official testifying on October 15, 2020, “there wasn’t anything to change.” Late and extra trips remained well below their pre-July 10 levels, and service scores remained depressed. 94. Although late and extra trips increased temporarily beginning in late November during the holiday season, they declined again sharply in early January, and today late and extra trips today remain well below their levels prior to the July 10, 2020, transportation policy changes.
groups-say/article_4b65cb38-7cac-51dd-9c46-62c46ef5d7b8.html; Erin Richey, Delays at the Post Office Could Force Missouri Absentee Voters to the Polls, KSDK (Aug. 3, 2020), https://www.ksdk.com/article/news/politics/elections/absentee-ballot-delays-force-voters-pollsin-person/63-cbfd42b1-4df3-49f8-8845-68305c778074. 37 See, Phil Mattingly (@Phil_Mattingly), TWITTER, https://twitter.com/Phil_Mattingly/status/ 1295776474751012867/photo/1 (Aug. 18, 2020).
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Between February 1 and 24, for example, late trips generally averaged around 1,000 per day, with only two days in the 1,500-1,600 range. By contrast, in a the 24 days prior to July 10, 2020, there were generally over 2,000 late trips per day. Similarly, with respect to extra trips, between February 1 and 24, the daily number ranged from approximately 1,100 to 3,800, whereas in the period leading up to July 10, they were 4,500 or above on most days, and above 3,800 on 18 out of the 24 prior days.
95. Service scores also remain depressed. Indeed, service scores plummeted in December, with only 71% of local first-class mail being delivered on time and only 38% of nonlocal first-class mail being delivered on time, compared to on-time delivery scores of approximately 90% and 80% respectively before Mr. DeJoy became postmaster general.38
96. In congressional testimony delivered on February 24, 2021, Postmaster General DeJoy characterized persisting delays as “unacceptable.”39 He acknowledged that “during this peak season, we fell far short of meeting our service targets,” and “[t]oo many Americans were left waiting for weeks for important deliveries of mail and packages.”40
97. Postmaster General DeJoy also testified that he is contemplating significant changes in an upcoming strategic plan, including lengthening the service standard for first-class mail.41 In addition to leading to slower mail delivery generally, lengthening the service standard would increase the likelihood of ballots being delivered late in future elections.
38 https://www.washingtonpost.com/graphics/2021/business/usps-performance-whats-nextbiden/. 39 https://about.usps.com/newsroom/testimony-speeches/pdf/022421.pdfl. 40 Id. 41 See https://thehill.com/homenews/house/540285-postmaster-general-apologizes-for-maildelays.
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FIRST CAUSE OF ACTION (Non-statutory review of unlawful agency action for failure to follow statutorily required procedures) 98. Plaintiff has a non-statutory right of action to enjoin and declare unlawful official action that is ultra vires and unlawful. 99. Through the changes to transportation policy and to the treatment of election mail, USPS has implemented changes in the nature of postal services that will generally affect service on a nationwide or substantially nationwide basis, without following the procedures required by 39 U.S.C. § 3661. 100. USPS’s failure to follow required procedures has deprived Plaintiff NAACP and its members of the opportunity to comment on the changes in postal service, has impacted the timely delivery of mail to its members, and will impact the timely receipt of mail-in ballots by its members. 101. Plaintiff and its members will suffer irreparable injury if the changes are not declared unlawful, and Plaintiff and its members have no adequate remedy at law. 102. The public interest favors entry of a declaration that the changes are unlawful and invalid because they were issued and adopted without observance of the mandatory procedures required by 39 U.S.C. § 3661.
SECOND CAUSE OF ACTION (Non-statutory review of unlawful agency action that is arbitrary, capricious, and not in accordance with statutory requirements) 103. Plaintiff NAACP has a non-statutory right of action to enjoin and declare unlawful official action that is ultra vires and unlawful.
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104. Through the changes to transportation policy and to the treatment of election mail, USPS has failed to give the “highest consideration” to the “delivery of important letter mail,” including ballots as required by 39 U.S.C. § 101(e).
105. Similarly, by failing to implement policies mandating procedures that USPS itself recognizes are necessary to ensure the prompt and reliable delivery of ballots in election, USPS has violated 39 U.S.C. § 101(e), which mandates: “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).
106. In light of the mandate of section 101(e), the coronavirus pandemic, and the significant increase in voting by mail, the changes to transportation policy and to the treatment of election mail are unreasonable, arbitrary, capricious, or in violation of law.
107. In light of the mandate of section 101(e) and USPS’s recognition that it must implement special procedures to prioritize and account for the delivery of ballots close to elections, USPS’s failure to implement such policies is unreasonable, arbitrary, capricious, or in violation of law.
THIRD CAUSE OF ACTION (Mandamus to enforce 39 U.S.C. § 3661) 108. Plaintiff NAACP has a statutory right under 39 U.S.C. § 3661 to notice and an opportunity to comment on changes in the nature of postal services that will generally affect service on a nationwide or substantially nationwide basis. 109. Defendants have a nondiscretionary duty under 39 U.S.C. § 3661 to seek an advisory opinion from the Postal Regulatory Commission, in order that members of the public, such as plaintiff NAACP, will have notice and an opportunity to comment on changes in the nature
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of postal services that will generally affect service on a nationwide or substantially nationwide basis.
110. Defendants’ failure to follow the procedures required by 39 U.S.C. § 3661 warrants relief in the nature of mandamus pursuant to 28 U.S.C. § 1361 if no other adequate remedy is available to Plaintiff NAACP to enjoin Defendants’ unlawful action and compel action required of defendants by law.
111. Plaintiff NAACP has been and will continue to be harmed by Defendants’ unlawful actions because delays to mail to its members as a result of these actions are ongoing.
FOURTH CAUSE OF ACTION (Mandamus to enforce 39 U.S.C. § 101(e)) 112. Plaintiff NAACP and its members have a statutory right under 39 U.S.C. § 101(e) to have USPS provide “highest consideration” to the “requirement for the most expeditious collection, transportation, and delivery of” their “important letter mail.” 113. Defendants have a nondiscretionary duty under 39 U.S.C. § 101(e) to provide “highest consideration” to the delivery of “important letter mail” to the members of the public, including Plaintiffs. 114. Defendants’ failure to follow the procedures required by 39 U.S.C. § 101(e) warrants relief in the nature of mandamus pursuant to 28 U.S.C. § 1361 if no other adequate remedy is available to plaintiff NAACP to enjoin Defendants’ unlawful action and compel action required of Defendants by law. 115. Plaintiff NAACP has been and will continue to be harmed by Defendants’ unlawful actions because delays to mail to its members as a result of these actions are ongoing.
PRAYER FOR RELIEF WHEREFORE, Plaintiff NAACP prays that this Court:
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(A) Declare the changes announced in July 2020 to transportation policy, and to the

treatment of election mail described in the July 29, 2020, letters to states, invalid for failure to

follow required procedures;

(B) Declare the July 2020 changes to transportation policy and the changes to the

treatment of election mail described in the July 29, 2020 letters to states invalid as unreasonable,

arbitrary, capricious, or in violation of law;

(C) Enjoin Defendants from continuing to implement the July 2020 changes to postal

service;

(D) Enjoin Defendants to continue USPS’s prior policy of treating election mail sent as

Marketing Mail as First-Class mail;

(E) Establish policies to ensure the prompt and reliable delivery of ballots for future

elections; and

(D) Grant such other relief as this Court may deem just and proper.

Dated: March 5, 2021

Respectfully submitted,

Sam Spital (D.D.C. Bar No. SS4839) NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 40 Rector Street, 5th Floor New York, NY 10006 (212) 965-2200

/s/ Allison M. Zieve

.

Allison M. Zieve

(DC Bar No. 424786)

PUBLIC CITIZEN LITIGATION

GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

Counsel for Plaintiff NAACP

33