UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ANATOL ZUKERMAN & CHARLES KRAUSE REPORTING, LLC , Plaintiffs,

v. U.S. POSTAL SERVICE , Defendants. Case No. 1:15-cv-02131 (CRC)

MEMORANDUM OPINION
The United States Postal Servi ce (“USPS”) permits the use of pe rsonalized postage stamps. Believing that a bes poke stamp would help publicize an upcoming gallery exhibition, local artist Anatol Zukerman submitted a proposed design—aimed at critiquing the Supreme Court’s Citizens United decisi on—to a third-party vendor that p rints the customized stamps on USPS’s behalf. After the vendor r ejected Zukerman’s rendering as unduly “partisan or political,” he and the gallery s ued, alleging that USPS, throug h its agent contractor, had engaged in impermissible content and vi ewpoint discrimination in violat ion of the First Amendment. Currently before the Court is a motion to dismiss by USPS that raises a threshold jurisdictional question: whether exclusive jur isdiction over the case lies wi th the Postal Regulatory Commission, an administrative tribunal primarily charged with a djudicating postal rate and service complaints. The Court fi nds that the rele vant authoriz ing statute vests the Commission with jurisdiction over only a ha ndful of subject matter-specifi c claims, none of which may fairly2 be understood to encompass core Fir st Amendment challenges like those presented here. The Court will therefore deny USPS’ s motion and asser t jurisdictionover the case.
I. Background A. Statutory Context In 1970, through passage of the Posta l Reorganization Act (“PRA ”), Congress sought “to improve and modernize the postal service,” S. Rep. No. 91-12, a t 1 (1970), and “to minimize external intrusions on the Postal Service’s managerial independ ence,” LeMay v. USPS, 450 F.3d 797, 800 (8th Cir. 2006). As part of that effort, the PRA vest ed jurisdiction over “classic questions of postal rates and services” in the hands of an admi nistrative body called the Postal Rate Commission, LeMay, 450 F.3d a t 801; see 39 U.S.C. § 3662 ( 2006), while nevertheless leaving to U.S. district cour ts “original . . . jurisdiction ov er all actions bro ught by or against the Postal Service,” 39 U.S.C. § 409(a) (2006). The Postal Accountability and Enhancement Act (“PAEA”), passed in 2006, further defined the Commission’s juri sdictional boundaries, but it kept the broad contours in place. Now, the renamed Postal Regulatory Commission (“PRC” or the “Com mission”) is specifically tasked with hearing complaints alleging violations of “sections 101(d), 401(2), 403(c), 404a, or 601” of Title 39. 39 U.S.C. § 3662(a). T hose sections general ly pertain to “postal rates and service standards.” Sears, R oebuck & Co. v. U.S. Postal Serv., 134 F. Supp. 3d 365, 382 (D.D.C. 2015). At issue here is whether the facts alleged by M r. Zukerman fall within § 403(c), and are therefore within the j urisdiction of the Commission. T hat section requires that “[i]n providing services and in establis hing classifications, rates, and fees under this title, the Postal Service shall not . . . make any undue or unreasonable discrimi nation among users of the mails, nor shall it grant any undue or unr easonable preferences to any such user.”3 B. Factual & Procedural History In July 2013, an art gallery owne d by Charles Krause Reporting, LLC, displayed a drawing by Mr. Zukerman depicting Uncle Sam imprisoned by a sna ke named “Citizens United.” See Am. Compl. ¶ 17. The drawing was part of a colle ction of Zukerman’s work entitled “Truth to Power: Anatol Z ukerman’s ‘Responsible’ Art.” Id. In order to promote an exhibition planned for Februar y 2016 that would feature the dra wing, “and to raise awareness about . . . the harm caused by the Citizens United decision,” t he gallery suggested that Zukerman create a custom postage stam p depicting the drawing. Id. ¶¶ 18 –19. In early 2015, Zukerman submitted his proposed stamp design to Zazzle, Inc., a third-party vendor that assists USPS in administering its custom-pos tage program. See id. ¶¶ 13, 20. The design featured an image of the drawing with the caption “De mocracy is Not for Sale.” Id. ¶ 20. Zazzle responded with the message that it was unable to pro cess Zukerman’s order because the submitted “design[] [was] in conflict with [the applicable ] content guidelines.” Id. ¶ 22. In response to Zukerman’s request for more information, Zazzle poin ted to “special Appropriate Us e Guidelines,” which included a prohibition on “printing . . . any pos tage with content that is primarily partisan or political in nature.” Id. ¶ 23. Plaintiffs brought suit against USPS, initially raising both co nstitutional challenges and a statutory claim under 39 U.S.C. § 40 3(c), the material provisio n discussed above. Compl. ¶ 41. USPS then moved to dismiss, argui ng that the Court “lack[ed] su bject-matter jurisdiction to adjudicate Plaintiffs’ statutory c laim” since there was an “exc lusive administrative scheme to hear claims under section 403(c),” and that Plaintiffs’ constit utional claims were so inextricably tied to their statuto ry claim—being based on the same facts—tha t those claims should be dismissed, too. Defs.’ Mem. Supp. First Mot. Dismiss 8–10. Af ter a hearing on the motion,4 Plaintiffs amended their compl aint, this time alleging only con stitutional claims. Am. Compl. ¶ 44. In their Amended Complaint, Plaintiffs mainly contend th at because Zazzle printed stamps promoting the 2016 presidential cam paigns of Jeb Bush, Ted Cruz , and Bernie Sanders, Am. Compl. ¶ 24, its decision not to print Zukerman’s Citizens Unit ed stamp constituted “content and viewpoint discrimination in viol ation of Plaintiffs’ rights und er the First and Fifth Amendments,” id. ¶ 33; see also id. ¶ 44. Nevertheless, USPS has again move d to dismiss, arguing that because Plaintiffs’ allegations are “cognizable under [39 U.S.C.] § 403 (c),” those claims must be “channeled . . . to the PRC for adj udication in the first insta nce[.]” Defs.’ Mem. Supp. Second Mot. Dismiss (“Defs.’ MTD”) 2. USPS’s motion turns on whether Pl aintiffs’ claims properly fal l within the scope of § 403(c), which USPS concedes is the only potentially applicabl e provision conferring jurisdiction on the C ommission. As the text, structure, and le gislative history of the PAEA make clear, however, Congress never in tended for that provision to s weep in genuine First Amendment claims like these. Accordingly, the Court will deny USPS’s dis missal motion.
II. Legal Standards A motion to dismiss under Rule 12(b )(1) “presents a threshold c hallenge to the court’s jurisdiction[.]” Morrow v. United States, 723 F. Supp. 2d 71, 75 (D.D.C. 2010) (quoting Haase v. Sessions, 835 F.2d 902, 906 (D.C. C ir. 1987)). A court acce pts all factual allegations in the operative complaint as true. G ordon v. Office of the Architect of the Capitol, 750 F. Supp. 2d 82, 86 (D.D.C. 2010). And “the plain tiff bears the burden of e stablishing the [c]ourt’s jurisdiction by a preponderance of the evidence.” Morrow, 723 F. Supp. 2d at 76 (citing Moore v. Bush, 535 F. Supp. 2d 46, 47 (D.D.C. 2008)); see also Arpaio v. Obama, 797 F.3d 11, 195 (D.C. Cir. 2015) (“The plaintiff bears the burden of invoking t he court’s subject matter jurisdiction[.]”).
III. Analysis Much of USPS’s briefing is de voted to applying Thunder Basin Co al Co. v. Reich, 510 U.S. 200 (1994), and its progeny, cas es which develop “a framew ork for determining when a statutory scheme of administrative and judicial review foreclos es parallel district-court jurisdiction,” where “[t]he ulti mate question [at issue] is whe ther Congress intended exclusivity” by establishing such a scheme. Jarkesy v. SEC., 803 F.3d 9, 12 (D.C. Cir. 2015). But in those cases, the parties did not dispute the agency’s jurisdiction—in the first instance—over the relevant claims. Here, before t he Court may determine if the P RC’s jurisdiction is exclusive, it must first determine if such jur isdiction exists. As Plaintiff s note, and as USPS does not dispute, “whether [an administrative tri bunal such as] the PRC has exclu sive jurisdiction over certain claims depends first on whether [it] has jurisdiction over thos e claims at all .” Pls.’ Mem. Opp’n Def.’s Mot. Dismiss (“Pls.’ O pp’n”) 5. Answering that question requires no peculiar “framework”—only the traditional tools of statutory interpretat ion. 1 Here, the text, structure, purpose, and legislative histor y of the relevant statute all po int in the same direction: They indicate that Congress did not int end for the PRC to have juris diction over the types of claims Plaintiffs here allege. As discussed above, the PAEA conferred on the Commission jurisd iction over complaints alleging violations of one of a ha ndful of discrete statutory p rovisions. See 39 U.S.C. § 3662(a).

1 Other courts in this District ha ve considered whether the revi ew scheme established by the PAEA—for those claims to whi ch it applies—is exclusive. Se e Sears, Roebuck & Co. v. U.S. Postal Serv., 134 F. Supp. 3d 365 (D.D.C. 2015); S. Califo rnia Edison v. United States Postal Serv., 134 F. Supp. 3d 311 (D.D.C. 2015). But none have addressed whether the PRC has jurisdiction—exclusiv e or otherwise—over claims such as these.6 USPS contends that one, and only on e, of those provisions cover s the conduct Plaintiffs allege. In particular, USPS argues that t he rejection of Zukerman’s sta mp design may have constituted “undue or unreasonable discrimina tion among users of the mail” under 39 U.S.C. § 403(c). But to frame that argument is to reveal its first major defect: Zu kerman does not allege facts suggesting that USPS discriminated against him or any particular class of “users of the mail.” Complaints sounding in § 403(c) as ageneral matter allege that certain classes of mail users are being treated differently than other such classes , and that there is no good reason for the disparate treatment. See , e.g., Currier v. Potter, 379 F.3d 71 6 (9th Cir. 2004) (complaint alleging that USPS’s provision of mail serv ice only at a main office, an d not at citywide branch offices, unreasonably discriminated against homeless persons ); UPS Worldwide Forwarding, Inc. v. U.S. Postal Serv., 66 F.3d 621 (3d Cir. 1995) (complaint alleging th at a new USPS international mail service, which permitted certain large-volume mailers to negoti ate favorable postage rates, unreasonably discriminated against small-volume mailers ). Zukerman’s complaint, by contrast, alleges facts suggesting that USPS has unconstitutionally discr iminated among various stamp designs . See Am. Compl. ¶ 23 (Zukerman’s stamp allegedly rejected bec ause his “proposed design was in conflict with Zazzle’ s content guidelines”). Eve n USPS frames Plaintiffs’ allegations in these terms. See Def.’s MTD Def.’s Reply 6 (“Th ese allegations form the basis of Plaintiffs’ claims, which assertthat USPS engaged in discrimin ation on the basis of content and viewpoint in providing Customize d Postage.”). Nothing in the c omplaint suggests that Zukerman is a member of a class of discriminated-against “users .” Nor does Zukerman’s complaint appear to fit § 4 03(c) any better when the lens is widened, so as to consider the P AEA’s structure. Section 3662, the provision defining the extent7 of the PRC’s jurisdiction, is ti tled “[r]ate and service compla ints,” 2 and it permits the PRC to adjudicate alleged violations of five discrete statutory provis ions. 39 U.S.C. § 3662. Aside from a provision permitting USPS to pr omulgate regulations, see 39 U .S.C. § 401(2), all of these provisions expressly govern “posta l rates and service standards .” Sears Roebuck, 134 F. Supp. 3d at 382. For instance, § 101(d) provides that “[p]ostal serv ice rates shall be established to apportion the costs of all postal op erations to all users of th e mail on a fair and equitable basis,” and § 601 prescribes packaging, wei ght, and postage requirement s for deliverable mail. If “a word may be known by the company it keeps” under the noscitur a sociis interpretive maxim, Graham Cty. Soil & Water Conservation Dist. v. U.S. ex rel. Wil son, 559 U.S. 280, 287 (2010) (quoting Russell Motor Car Co. v. United States, 261 U.S. 514, 519 (1923)), then surely so may a statutory provision. And it w ould be unusual, to say the lea st, for a provision encompassing First Amendment law to fraternize with a provision stipulating that “[a] letter may . . . be carried out of the mails when [it] we ighs at least 12 1⁄2 ounces[.]” 39 U.S.C. § 601(b)(2). Courts have accordingly read § 403(c) in context, as a provision prohibitin g run-of-the-mine postal rate and service discrimination. See, e .g., Nat’l Post Office Collabora tive v. Donahoe, No. 3:13CV1406 JBA, 2014 WL 4544094, at *4 (D. Conn. Sept. 12, 2014) (“[§ 403( c)’s] prohibition on discrimination in the provision of services appears logically r elated to its mandate to ‘provide

2 The Court recognizes that “[t ]he title of a statute . . . cann ot limit the plain meaning of the text.” Def.’s Reply Supp. Mot. Dismiss (“Def.’s Reply”) (q uoting Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212 (1998)). Thatis why, for instance, the PRC undoubtedly has jurisdiction to consider complai nts alleging that USPS has exce eded its rulemaking authority, see 39 U.S.C. § 401(2), even though this is not a mere “[r]ate and service complaint,” 39 U.S.C. § 3662. But here, there is no clear gr ant of jurisdictional auth ority to the PRC over First Amendment-related complaints. T he title of the relevant jurisd ictional provision thus aids in clarifying § 403(c)’s scope.8 prompt, reliable, and efficient services to patrons in all area s,’ including ‘rural areas, communities, and small towns where post offices are not self-su staining’ and operate at a loss.”). That Congress intended for the P RC to adjudicate postal “[r]ate and service complaints,” 39 U.S.C. § 3662, rather than genuine First Amendment claims, i s further confirmed by the types of potential relief the statute identifies. Although the statu te’s relief provision states generally that, in the event of a violati on, the PRC “shall order that th e Postal Service take such action as the Commission considers appropri ate in order to achieve compli ance with the applicable requirements and to remedy the effects of any noncompliance,” i d. § 3662(c), that same provision follows up with four illustrative examples. The PRC may “order[] unlawful rates to be adjusted to lawful levels, orde r[] the cancellation of market t ests, order[] the Postal Service to discontinue providing loss-maki ng products, or requir[e] the Po stal Service to make up for revenue shortfalls in competitive products.” Id. Those are no t remedies for First Amendment violations. PAEA’s legislative history s upports—and certainly does nothing to undermine—the conclusion that Congress did not i ntend for the PRC to adjudica te claims that USPS violated the First Amendment. USPS points to broad statements by the Act’s sponsor, Senator Susan Collins, to the effect that the PRC woul d have “enhanced authority to en sure that there is greater oversight of the Postal Se rvice,” 152 Cong. Rec. S00000-15 (200 6), S11674, and from former Senate Majority Leader Bill Frist, who explained that the Act w as grounded in the “principle [that] [e]very person in the United States—no matter who, no ma tter where—has the right to equal access to secure, efficient, and affordable mail service. ” Id. at S11676. Def.’s MTD 4; Def.’s Reply 15. None of these sta tements suggests an intent o n the part of Congress to grant the PRC jurisdiction over the types of claims Plaintiffs allege. T he PRC’s remedial authority was9 indeed “enhanced”—but not so tha t it could hear constitutional claims against USPS. Rather, any expansion in authority was f or the purpose of adequately “r espond[ing] to complaints of pricing, service, or other actio ns by [USPS] in violation of la w,” such as by “adjust[ing] the rates of [c]ompetitive products to lawful levels if they are set belo w attributable costs.” H.R. Rep. 109-66, at 52. Congress evidenced no interest in having the PR C adjudicate claims that USPS had violated the F irst Amendment. Nor can Congress’s choice not to legislate on that point be att ributed to any novelty in the nature of the claims here at i ssue. “It is axiomatic that rest rictions upon the mail system implicate the First Amendment.” Currier, 379 F.3d at 727. Inde ed, the Supreme Court has recognized the validity in Justice Holmes’ near-century-old sta tement that “the use of the mails is almost as much a part of free speech as the right to use our to ngues.” Blount v. Rizzi, 400 U.S. 410, 416 (1971) (quoting United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407, 437 (1921) (Ho lmes, J., dissenting)). Unsurprisingly, then, well before PAEA’s enactment, USPS had bee n subject to suit in the district courts on First Amendment grounds. See, e.g., USPS v. Council of Greenburgh Civic Ass’ns , 453 U.S. 114 (1981) (suit to enjoin on First Amendment grounds USPS’s enforcement of a statu te prohibiting the deposit of unstamped mail in letterboxes); Initiative & Referendum Inst. v . USPS, 417 F.3d 1299 (D.C. Cir. 2005) (First Amendment challenge to USPS regulation prohibiting the solicitation of petition signatures on Postal Service prop erty); American Postal Workers Union, AFL-CIO v. USPS, 830 F.2d 294 (D.C. Cir. 1987) (suit alle ging postal employee’s disc harge was motivated by desire to suppress First Amendment-protected speech); Nat’l Anti-Drug Coa l., Inc. v. Bolger, 737 F.2d 717 (7th Cir. 1984) (claim that USPS regulation prohibiting var ious types of solicitation, vending, and advertising on Postal Se rvice property violated Fi rst Amendment); Friedlander v.10 USPS, 658 F. Supp. 95 (D.D.C. 1987) (Fi rst Amendment challenge to USPS cease and desist orders blocking certain fraudulen t mail advertisements). “[I]t is not only appropriate but also realistic to presume that Congress was thoroughly familiar” wit h this precedent, and that it provided a backdrop for the PAEA . N. Star Steel Co. v. Thomas, 515 U.S. 29, 34 (1995) (quoting Cannon v. Universit y of Chicago, 441 U.S. 677, 699 (19 79)). If Congress had wished to house cases such as these under the PRC’s roof, it easily co uld have indicated that intent. Locating Plaintiffs’ claims out side § 403(c) is also consistent with City & Cty. of San Francisco v. USPS, No. C 09-01964 JSW, 2009 WL 3756005 (N.D. Ca l. Nov. 5, 2009), which is—to the Court’s knowledge—the onl y case to have previously co nsidered whether the PRC has exclusive jurisdiction over wholly constitutional claims under the PAEA. There, Plaintiffs alleged that USPS’s “refusal to d eliver mail to individual lock ed mailboxes of residents at Single Room Occupancy buildings . . . violat e[d] the equal protection provision of the Fifth Amendment, the right of free speech and freedom of association under the First Amendment, and the right to privacy under the United States Constitution.” Id . at *1. USPS urged the court to “construe Plaintiffs’ claim[s] a s statutory claims under [§] 40 3(c).” Id. at *3. The court rejected that invitation, noting that “[b] y its terms, [§] 3662 applies only to violations of the statute or the regulations promulgated pursuant to the statute,” and that Plai ntiffs had asserted only constitutional claims. Id. Similarly, the Court here conclude s that the PRC lacks jurisdic tion over Plaintiffs’ claims because, as a substantive matter, those claims do not fall with in the scope of § 403(c). For the sake of clarity, the Court notes that this holding makes it unn ecessary for it to resolve the11 question taken up in The Enter prise, Inc. v. Bolger, 774 F.2d 1 59 (6th Cir. 1985) (per curiam) 3

— that is, whether the PRC may, or must, hear all claims whose substance is cognizable under any of the provisions listed in 39 U .S.C. § 3662(a), “regardless of how a plaintiff may characterize such claims.” Pls.’ Opp’n 19; see also Def.’s MTD 24; Def.’s R eply 4. In other words, for the purpose of determining jurisdict ion, should it matter which cla ims a plaintiff chooses to bring? It is true that, in cases like T hunder Basin, courts have been ave rse to the potential for a plaintiff, by alleging constitutional and not s tatutory claims, to effect “an end run around [a mandatory agency review] process by going di rectly to district court.” D ef.’s MTD 22 (quoting Sturm, Ruger & Co. v. Chao, 300 F.3d 867, 876 (D.C. Cir. 2002)). But the statutes at issue in those cases generally confer jurisdict ion over any challenges arising from specified agency actions

— such as enforcement actions or a dverse employment actions—no ma tter the grounds for the challenge. 4 By contrast, the scheme set up by t he PAEA is inherently clai m-dependent, and the

3 The Enterprise considered a ne wspaper publisher’s claim that a USPS regulation governing eligibility for sec ond-class mailing permits violatedthe First and Fifth Amendments. The court held that the suit—though framed in constitutional te rms—nevertheless challenged “a mail rate or classification decision,” and so should be exclusi vely adjudicated by the PRC’s predecessor Commission. 774 F.2d at 161.
4 For instance, when the Supreme Court evaluated the jurisdictio nal scope of the Civil Service Reform Act’s (“CSRA’s”) review scheme, the Court explai ned that “[t]he availability of . . . review under the CSRA generally turns on the type of civi l service employee and adverse employment action at issue,” a nd that “[n]othing in the CSRA’s text suggests that its exclusive review scheme is inapplicable simply because a covered employee challenges a covered action on the ground that the statute authorizing t hat action is unconstitutional.” Elgin v. Dep’t of Treasury, 132 S. Ct. 2126, 2134 (2012) (emphasis added). Simil arly, the Securities Exchange Act provision at issue in Jarke sy applies to any “person aggrie ved by a final order of the [Securities and Exchange] Commission.” 15 U.S.C. § 78y. Evalu ating the jurisdictional scope of that same provision, the Elev enth Circuit observed that “§ 7 8y covers all timely-raised objections to a Commiss ion’s final order, without qualification ,” and concluded that “[b]y its terms” the provision included the constitutional claims there r aised. Hill v. SEC, 825 F.3d 1236, 1244 (11th Cir. 2016) (emphasis added).12 relevant statutory language eve n suggests an aim on the part of Congress to allow complainants a role in framing their claims (a nd choosing their forum). See 3 9 U.S.C. § 3662(a) (providing that “[a]ny interested person . . . who believes the Postal Service is not operating in conformance” with any of the enumerated provisi ons “may lodge a complaint wi th the [PRC]” (emphasis added)). If such was the inten t, it would not be the first tim e Congress has devised a claim-based method for drawing jurisdicti onal lines. See Arbaugh v. Y&H Co rp., 546 U.S. 500, 513 n.10 (“A claim invoking federal-que stion jurisdiction . . . may be d ismissed [only] . . . if it is ‘immaterial and made solely for the purpose of obtaining jurisd iction’ or is ‘wholly insubstantial and frivolous.’” (quoting Bell v. Hood, 327 U.S. 678, 682–83 (1 946))). But those are considerations f or another day. Here, the Court merely concludes that Plaintiffs’ claims are not c ognizable under 39 U.S.C. 403(c). It follows that Congress did not intend for the PRC to adjudicate those claims, exclusively or o therwise.
IV. Conclusion For the reasons outlined above, the Court will deny USPS’s dism issal motion. An Order accompanies this Memorandum Opinion.

CHRISTOPHER R. COOPER United States District Judge

Date: December 6, 2016