1 

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

NATIONAL ASSOCIATION OF POSTAL 

SUPERVISORS, 

Plaintiff,

v. Case No. 1:19-cv-2236-RCL

UNITED STATES POSTAL SERVICE,

 Defendant. 

MEMORANDUM OPINION

The National Association of Postal Supervisors (“the Association”) alleges that the United 

States Postal Service (“the Postal Service”) acted outside the scope of its authority under the Postal 

Reorganization Act of 1970, Pub. L. No. 91-375, 84 Stat. 719 (“the Act”). Compl., ECF No. 1. 

The Association seeks discovery to “assist the Court in ascertaining whether and how the 

Postal Service has broken the law and what the remedies for those violations should be.” Pl.’s Mot. 

for Discovery (“Pl.’s Mot.”), ECF No. 36 at 2. The Postal Service opposes discovery on the ground 

that “the Court’s review of the [Postal Service’s] ultra vires claims . . . is appropriately limited to 

the administrative record.” Def.’s Opp’n to Pl.’s Mot. (“Def.’s Opp’n”), ECF No. 37 at 10. There 

is no caselaw directly addressing whether discovery is available for an ultra vires challenge to 

Postal Service action under the Act. 

Upon consideration of the parties’ filings, the record, and the applicable law, the Court 

agrees with the Association that discovery is proper with respect to some of the Association’s 

claims but not others. Accordingly, the Association’s motion for entry of a civil discovery order is 

GRANTED in part and DENIED in part. 
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I. BACKGROUND

A. Factual Background

The Act requires the Postal Service to “fix the compensation and benefits of all officers 

and employees in the Postal Service.” 39 U.S.C. § 1003(a). The Act states that the Postal Service 

“shall achieve and maintain compensation for its officers and employees comparable to the rates 

and types of compensation paid in the private sector of the economy of the United States.” Id.

§ 101(c); see also id. § 1003(a) (“It shall be the policy of the Postal Service to maintain 

compensation and benefits for all officers and employees on a standard of comparability to the 

compensation and benefits paid for comparable levels of work in the private sector of the 

economy.”). The Postal Service must “provide adequate and reasonable differentials in rates of 

pay between employees in the clerk and carrier grades in the line work force and supervisory and 

other managerial personnel.” Id. § 1004(a). And it must “provide a program for consultation with 

recognized organizations of supervisory and other managerial personnel[, which] shall be entitled 

to participate directly in the planning and development of pay policies and schedules.” Id. §

1004(b).

The Postal Service sent the Association a proposed pay package (“Field Pay Package”) for

its Field Executive and Administrative Schedule (“EAS”) employees for fiscal years 2016 to 2019

in September 2017. Nat’l Ass’n of Postal Supervisors v. USPS, 26 F.4th 960, 968 (D.C. Cir. 2022) 

(“NAPS II”). “[T]he Postal Service consulted with the Association on the package” in the following 

months but ultimately rejected most of its recommendations. Id. The Postal Service issued its 

initial Field Pay Package in summer 2018. Id. That initial package included a five percent 

“Supervisory Differential Adjustment.” Id. “The Association requested that the Federal Mediation 

and Conciliation Services convene a factfinding panel to review the [initial] Field Pay Package”

because it believed the package violated several provisions of the Act. Id. The Association alleged 
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the Supervisory Differential Adjustment “resulted in thousands of supervisors earning less than 

persons who they supervised.” Id. Regarding comparability, “the Association alleged that the 

Postal Service took no steps to compare compensation or benefits to the private sector before 

issuing the initial Field Pay Package.” Id.

A two-day hearing was held in December 2018 and the Federal Mediation and Conciliation 

Services filed its report in April 2019 finding: that the “Supervisory Differential Adjustment” in 

the package created “unreasonable and inadequate pay differentials”; that the Postal Service 

“violated the Act’s comparability requirement by issuing a final decision” without first conducting 

“any market survey into private compensation”; and that the Postal Service’s “method for 

determining pay increases” did not “satisfy the statutory criteria for comparability.” Id. “The 

factfinding panel made recommendations” for bringing the Field Pay Package into compliance 

with the Act. Id. Approximately two weeks later, “the Postal Service rejected most of the panel’s 

recommendations and issued a final decision adhering to the differential and comparability 

conclusions in the [initial] Field Pay Package.” Id.

B. Procedural Background

The Association then filed a Complaint on July 26, 2019, alleging that the Postal Service 

violated the Act. Compl. Specifically, the Association alleged that the Postal Service violated: (1) 

39 U.S.C. § 1003(a) and 39 U.S.C. § 101(c) by failing to pay comparably to the private sector (id.

at ¶¶ 80–87) (“Count I”); (2) 39 U.S.C. § 1004(a) by failing to provide for an adequate supervisory 

differential adjustment (id. at ¶¶ 88–92) (“Count II”); (3) 39 U.S.C. § 1004(a) by failing to provide 

sufficient compensation to attract or retain qualified management personnel and failing to establish 

a compensation program adequate to maintain a well-motivated workforce (id. at ¶¶ 93–99)

(“Count III”); (4) 39 U.S.C § 1004(b) by failing to consult the Association regarding compensation 
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for different categories of employees (id. at ¶¶ 100–06) (“Count IV”); and (5) 39 U.S.C. § 1004(b) 

by refusing to recognize the Association’s authority to represent postmasters (id. at ¶¶ 107–15)

(“Count V”). The Association seeks a declaratory judgment, an injunction requiring the Postal 

Service to adjust future pay, and a purported injunction requiring the Postal Service to provide 

retroactive pay increases. Id. at ¶ 116.

The Postal Service moved to dismiss for failure to state a claim, namely, that the 

Association cannot lawfully represent postmasters. ECF No. 11. The United Postmasters and 

Managers of America (“UPMA”) intervened in support of the Postal Service’s position and filed 

its own motion to dismiss. ECF. Nos. 14 and 19. 

This Court granted the Postal Service’s and the Postmasters’ motions, finding that the 

Association failed to state a claim because it had not shown that the Postal Service had violated a 

“clear and mandatory” statutory directive. See Nat’l Ass’n of Postal Supervisors v. USPS, No. 19-

cv-2236 (RCL), 2020 WL 4039177, at *7 (D.D.C. July 17, 2020). The Association appealed and 

the D.C. Circuit reversed, holding that the Act’s requirements—that the Postal Service “shall” (a) 

consult with recognized organizations, (b) maintain “adequate and reasonable differentials in rates 

of pay” between supervisors and clerks and carriers, and (c) “achieve and maintain compensation 

for its officers and employees comparable to the rates and types of compensation paid in the private 

sector”—are clear and mandatory, enforceable provisions subject to ultra vires review. NAPS II, 

26 F.4th at 972. The D.C. Circuit relied in large part on its earlier decision in Nat’l Ass’n of Postal 

Supervisors v. USPS, 602 F.2d 420 (D.C. Cir. 1979) (“NAPS I”), which it declared “good law” for 

the proposition that “the pay differential, comparability requirements, and requirement to consult” 

are subject to ultra vires review. NAPS II, 26 F.4th at 970–71. The D.C. Circuit remanded five 
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claims to this Court. Id. at 980. The present dispute implicates all but Counts III and V. Pl.’s Mot. 

at 7–8.1

The Postal Service then filed its Answer. ECF No. 33. Afterwards, the Postal Service added

a Certified Index of Administrative Record. Def.’s Notice of Certified Index (“Def.’s Notice”), 

ECF No. 34. In response, the Association filed a motion asking this Court for a civil discovery 

order, arguing that the Postal Service was refusing to meet and confer and propose a discovery 

plan on the grounds that the case is exempted from discovery under Federal Rule of Civil 

Procedure 26(a)(1)(B)(i). Pl.’s Mot. at 4. The Association asked this Court to deem discovery 

proper and to order the parties to meet and confer and submit a proposed discovery plan pursuant 

to Federal Rule of Civil Procedure 26(f) and Local Civil Rule 16.3(a). Pl.’s Mot. at 1–2. The 

Association argues that this case is not exempted from ordinary civil discovery and seeks written 

discovery, depositions, and the opportunity to develop and present expert testimony. The Postal 

Service opposed, contending that the Court should apply the Administrative Procedure Act 

(“APA”) record review rule and limit its review to the administrative record prepared by the Postal 

Service. Def.’s Opp’n at 10; Def.’s Notice. The Association replied to the Postal Service’s 

opposition. Pl.’s Reply to Def.’s Opp’n (“Pl.’s Reply”), ECF No. 40. The Association’s motion is 

ripe for review.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 26 and Local Civil Rule 16.3 require parties to meet and 

confer and propose a discovery plan unless the proceeding is exempted from initial disclosure 

under specific subparts of those rules, namely, Federal Rule of Civil Procedure 26(a)(1)(B) and 

1 The D.C. Circuit affirmed this Court’s dismissal of Count III. NAPS II, 26 F.4th at 969. The Association apparently 

does not seek discovery concerning Count V, the Postal Service’s failure to consult with it regarding postmasters. Pl.’s 

Mot. at 7 n.4.
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Local Civil Rule 16.3(b). Fed. R. Civ. P. 26(f); LCvR 16.3(a). Proceedings exempted from initial 

disclosure include actions for review on an administrative record. Fed. R. Civ. P. 26(a)(1)(B)(i); 

LCvR 16.3(b)(1). This exclusion is “intended to reach proceedings that are framed as an ‘appeal’ 

based solely on an administrative record.” Fed. R. Civ. P. 26 advisory committee’s note (2000 

amendments). The exclusion is not meant to “apply to a proceeding in a form that commonly 

permits admission of new evidence to supplement the record.” Id. Judicial review under the APA 

is paradigmatically limited to the administrative record (the “APA record review rule”). CTS Corp.

v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014); see also 5 U.S.C. § 706. A court reviewing agency action 

under the APA should have before it the same information the agency had when it made its 

decision. CTS Corp., 759 F.3d at 64. Exceptions are “quite narrow and rarely invoked” and are 

primarily limited to cases where the procedural validity of the agency’s action is in serious question 

or the agency affirmatively excluded relevant evidence. Id. If an action is not limited to the 

administrative record, then the Federal Rules governing discovery apply unless otherwise 

exempted. Fed. R. Civ. P. 26.

III. DISCUSSION

On remand, the Court must determine whether the Postal Service violated: (1) 39 U.S.C. 

§ 1003(a) and 39 U.S.C. § 101(c) by failing to consider private sector pay and achieve 

comparability (NAPS II, 26 F.4th at 973–74) (Count I); (2) 39 U.S.C. § 1004(a) by failing to 

maintain “some” pay differential (id. at 972–73) (Count II); (3) 39 U.S.C § 1004(b) by refusing to 

consult regarding Area and Headquarters employees without providing any explanation (id. at 

975–77) (Count IV); (4) 39 U.S.C. § 1004(b) by refusing to consult with the Association regarding

postmasters (id. at 977–80) (Count V); and (5) 39 U.S.C. § 1004(b) by failing to give reasons for 
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rejecting the Association’s recommendations (id. at 980) (“Failure to Give Reasons Claim”).

2 The 

D.C. Circuit affirmed this Court’s dismissal of Count III, so, it is not before this Court on remand. 

Id. at 969. The Association seeks discovery concerning Counts I, II, and IV. Pl.’s Mot at 2–3. The 

Court assumes the Association also seeks discovery concerning the Failure to Give Reasons Claim.

The Association does not seek discovery concerning Count V. Pl.’s Mot. at 7 n.4.

The Association’s motion asks the Court to order the parties to meet and confer and submit 

a proposed discovery plan. Pl.’s Mot. at 14. The Association argues that it is entitled to discovery 

because its claims do not arise under the APA. Pl.’s Mot. at 5. The Postal Service opposes 

discovery and argues that the Court should apply the APA record review rule and limit its review 

to the administrative record. Def.’s Opp’n at 10. Hence, to resolve the Association’s motion, the 

Court must decide whether the APA record review rule applies to ultra vires review under the Act. 

If the record review rule applies, then the Court must limit its review to the administrative record

and extra-record discovery is improper. If the record review rule does not apply, then the Court 

may permit discovery. 

For the reasons that follow, the Court will grant in part and deny in part the Association’s

motion. The Court finds that ultra vires review under the Act is not categorically restricted to the 

administrative record. The Court will permit limited discovery with respect to Counts II and IV. 

The Court will allow the Association’s proffered requests for position, location, base salary, and 

overtime pay data, Pl.’s Mot. at 10, and job descriptions for positions excluded from 

representation, Pl.’s Mot. at 14. However, the Court will not allow the Association to depose Postal 

Service officials regarding their internal deliberations. Def.’s Opp’n at 14 n.6. The Court will 

2 This claim does not correspond to any single count in the Complaint but was specifically remanded to this Court by 

the D.C. Circuit. 
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preclude discovery with respect to Count I and the Failure to Give Reasons Claim. The Court will 

review these two claims based on the administrative record.

A. Non-Statutory Ultra Vires Review of Compensation Set Pursuant to the Act Is Not 

Categorically Restricted to the Administrative Record

The Association alleges that the Postal Service acted ultra vires by exceeding its authority 

under 39 U.S.C. § 1003 and 39 U.S.C. § 1004 (“sections 1003 and 1004”). NAPS II, 26 F.4th at 

966. The D.C. Circuit held that the Association plausibly pled agency action in excess of its 

delegated authority and that this Court must hear those claims on remand. Id. at 980. The 

Association seeks discovery regarding these claims to “assist the Court in ascertaining whether 

and how the Postal Service has broken the law and what the remedies for those violations should 

be.” Pl.’s Mot. at 2.

The Postal Service opposes discovery and argues that review of non-APA ultra vires claims 

should be limited to the administrative record. Def.’s Opp’n at 10. Courts tend to restrict review 

of non-APA claims to the administrative record when they are brought in parallel to APA claims 

or when review under the APA is otherwise available. Bellion Spirits, LLC v. United States, 335 

F. Supp. 3d 32, 43 (D.D.C. 2018) (“[D]istrict courts have been hesitant to permit a plaintiff 

asserting a constitutional challenge to agency action to avoid the APA’s bar on extra-record 

evidence.”); Chiayu Chang v. U.S. Citizenship & Immigration Servs., 254 F. Supp. 3d 160, 161 

(D.D.C. 2017) (“[A]llow[ing] fresh discovery, submission of new evidence and legal arguments 

would incentivize every unsuccessful party to agency action to allege . . . constitutional violations 

in order to trade in the APA’s restrictive procedures for the more evenhanded ones of the Federal 

Rules of Civil Procedure.”) (internal quotation marks omitted). This is not one of those cases. The 

Association has not raised a non-APA claim in parallel to an APA claim in an attempt to “avoid” 

the strictures of the APA. Bellion Spirits, 335 F. Supp. 3d at 43. As the Postal Service effectively 
9

concedes, the Court should limit review of non-APA ultra vires claims to the administrative record 

only when it is appropriate to do so. See Def.’s Opp’n at 9.

The Act expressly exempts the Postal Service “from review under the Administrative 

Procedure Act.” N. Air Cargo v. USPS, 674 F.3d 852, 858 (D.C. Cir. 2012); see also 39 U.S.C. 

§ 410(a). This means that procedural restraints placed on agencies by the APA, which went beyond 

pre-existing administrative law requirements, do not apply to the Postal Service. N. Air Cargo, 

674 F.3d at 860. Congress exempted the Postal Service from the APA because it was concerned 

that postal efficiency and modernization would be hampered by laws that limited the discretion of 

Postal Service management. See Nat’l Easter Seal Soc. for Crippled Children & Adults v. USPS, 

656 F.2d 754, 767 (D.C. Cir. 1981). Indeed, the Postal Service enjoys broad management authority 

and discretion over its affairs. See Buchanan v. USPS, 508 F.2d 259, 263 (5th Cir. 1975). By 

exempting the Postal Service from the APA, Congress expressed the “particular trust” it places in

the Postal Service to manage its operations. N. Air Cargo, 674 F.3d at 861; see also Nat’l Easter 

Seal, 656 F.2d at 767 (explaining that exemption from the APA was meant to free the Postal 

Service from interference with efforts to remedy management and efficiency problems identified 

by Congress). 

The Act also sought to ensure that the Postal Service would not lose sight of its public 

functions and responsibilities. See Nat’l Easter Seal, 656 F.2d at 767. To achieve this goal, the Act 

imposed certain procedural and substantive constraints on compensation packages produced by 

the Postal Service. 39 U.S.C. §§ 1003, 1004; see also NAPS I, 602 F.2d at 435 (explaining that the 

Act requires the Postal Service to “consider” and “fulfill” a salary differential requirement). 

Although sections 1003 and 1004 of the Act provide the Postal Service with substantial discretion 

and cabin the scope of judicial review, they are not “meaningless” or “empty.” NAPS I, 602 F.2d 
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at 435. These sections impose real constraints on how the Postal Service compensates its 

supervisory and managerial employees. See NAPS II, 26 F.4th at 973 (noting that “a differential 

must be present” and that the Act entails “some showing that it is keeping pace with rising private 

sector rates”).

Although the APA does not apply to judicial review of Postal Service action, the APA’s 

procedural strictures may serve Congress’s goal of affording the Postal Service substantial 

deference and discretion. See Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989) (“[The] principle 

[that review of agency action is limited to the administrative record] exerts its maximum force 

when the substantive soundness of the agency’s decision is under scrutiny.”). It is black-letter law 

that review of agency action under the APA is limited to the administrative record, subject to 

certain limited exceptions. CTS Corp., 759 F.3d at 64. The Supreme Court has cautioned against 

under- and over-inclusive review of administrative records, stating that “review is to be based on 

the full administrative record that was before the Secretary at the time he made his decision.”

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971) (emphasis added).

Reviewing less than the full administrative record risks allowing a party to withhold evidence 

unfavorable to its case. Walter O. Boswell Memorial Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. 

Cir. 1984). Reviewing more than the full administrative record risks requiring agency officials to 

be prescient or allowing them to take advantage of post hoc rationalizations. Id. This rule also 

protects agencies against intrusive and costly inquiries into internal agency deliberationsthat might 

otherwise chill or impede the exercise of agency discretion. See United States v. Morgan, 313 U.S. 

409, 422 (1941); Oceana Inc. v. Ross, 920 F.3d 855, 865 (D.C. Cir. 2019); Dallas Safari Club v. 

Bernhardt, 518 F. Supp. 3d 535, 542–43 (D.D.C. 2021).
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But the fact that the APA’s administrative record review rule may serve Congress’s goal 

of affording the Postal Service substantial discretion does not mean it categorically applies to ultra 

vires challenges to Postal Service action. There is no caselaw holding that review under the Act is 

subject to the record review rule. And the Court finds it significant that the text of the Act does 

not, by its terms, limit review of challenges under sections 1003 and 1004 to the administrative 

record. See 39 U.S.C. § 1004 (describing the process for review by a factfinding panel but failing 

to prescribe standards for judicial review of the panel’s recommendation and the Postal Service’s 

final decision). 

Of course, exceptions to the APA administrative record review rule are quite narrow. See 

District Hosp. Partners, L.P. v. Burwell, 786 F.3d 46, 55 (D.C. Cir. 2015) (identifying three 

exceptions: “(1) the agency deliberately or negligently excluded documents that may have been 

adverse to its decision; (2) the district court needed to supplement the record with background 

information in order to determine whether the agency considered all of the relevant factors; or (3) 

the agency failed to explain administrative action so as to frustrate judicial review”). This reflects 

the rule’s broad applicability, which the Court is loath to ignore. But the Act specially reflects the 

Postal Service’s unique mandate to fulfill public functions and responsibilities simultaneously with

operating like a business. See Franchise Tax Bd. of California v. USPS, 467 U.S. 512, 519–20 

(1984) (“Congress . . . wished the Postal Service to be run more like a business.”); Nat’l Easter 

Seal, 656 F.2d at 767–68 (explaining that by mandating certain proceedings, the Act ensures the 

Postal Service does not lose sight of its public functions and responsibilities). This mandate shapes 

the bounds of the Postal Service’s discretion and the Court’s role in reviewing exercise of that 

discretion. See NAPS I, 602 F.2d at 435 (explaining that the Postal Service’s duty under section 

1004(a) must be measured “in light of the other standards Congress included in the Postal 
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[Reorganization] Act”); NAPS II, 26 F.4th at 975 (explaining that it is the ultimate responsibility 

of the judiciary to determine the bounds of administrative discretion). 

In other words, the Act must be evaluated on its own terms. The Court declines to import 

the APA record review rule wholesale, which means that in at least some ultra vires review cases, 

discovery will be appropriate. The Court acknowledges that subjecting the Postal Service to 

potentially more discovery than agencies may cut against the purpose of exempting the Postal 

Service from the APA. But as already discussed, the Postal Service is supposed “to be run more 

like a business,” and businesses are subject to discovery in the ordinary course of litigation. See 

Franchise Tax Bd. of California, 467 U.S. at 519–20. So, the special status and purpose of the 

Postal Service cuts both ways. Additionally, because the Postal Service is exempt from the APA, 

it is subject to fewer procedural strictures, strictures which ordinarily ensure the development of 

an administrative record. See Occidental Petroleum Corp. v. S.E.C., 873 F.2d 325, 339 (D.C. Cir. 

1989). As discussed in further detail below, the administrative record here apparently does not 

even broach one of the issues remanded by the D.C. Circuit. Pl.’s Mot. at 13–14; Def.’s Opp’n at 

17–18. If this were an APA case, that would suffice to trigger the exception to the record review 

rule that applies “where the administrative record itself is so deficient as to preclude effective 

review,” and again, suggests that the record review rule is inapt for review of at least some claims 

under the Act. See Hill Dermaceuticals, Inc. v. FDA, 709 F.3d 44, 47 (D.C. Cir. 2013); see also 

America First Legal Foundation v. Cardona, 630 F. Supp. 3d 170, 187 (D.D.C. 2022) (Lamberth, 

J.). Finally, although the record review rule has some basis in pre-APA administrative law, this 

does not mean that the Postal Service’s administrative decisions are necessarily limited to review 

under pre-APA administrative law principles. Cf. Morris v. Runyon, 870 F. Supp. 362, 368 n.9 

(D.D.C. 1994). The Act, which created the Postal Service in 1970, suggests its own principles for 
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review of Postal Service action, principles that may or may not dovetail with the record review 

rule depending on the precise claims at issue. See Nat’l Easter Seal, 656 F.2d at 756, 767–78.

The Court does not mean to say that the record review rule is entirely inapt to review of 

claims under the Act. As the Court will explain below, review of at least some of the Association’s 

claims resembles review under the APA enough that the Court will follow the record review rule 

with respect to those claims and limit its review to the administrative record. But the Court declines 

to hold that ultra vires review under the Act is categorically limited to the administrative record 

such that discovery is always improper. 

For these reasons, rather than import the APA record review rule wholesale, the Court will 

evaluate the claims remanded by the D.C. Circuit to determine whether discovery may be 

appropriate in light of established exceptions to the APA record review rule and the Court’s own 

determination that extra-record evidence will aid in effective adjudication of the Association’s

claims. See Bellion Spirits, 335 F. Supp. 3d at 38 (explaining that the purpose of admitting extrarecord evidence is to secure effective judicial review). If the logic behind the APA record review 

rule convincingly applies to the claim at issue here such that review of that claim should be limited 

to the administrative record, then the Court will apply the record review rule to that claim. If it 

does not convincingly apply, then the Court will permit discovery to the extent it is consistent with 

the Act and permits effective adjudication of the claim.

B. The Association Is Entitled to Discovery Specifically Tailored to the Questions Before 

the Court on Remand to the Extent that Extra-Record Evidence Will Aid the Court 

in Effectively Adjudicating the Association’s Claims

At the outset, the Court notes that it is unpersuaded by the Association’s contention that 

the Postal Service is precluded from arguing that the case should be limited to review of the 

administrative record because it failed to file an index when it filed its motion to dismiss pursuant 
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to Local Civil Rule 7(n)(1). Pl.’s Mot. at 6–7. Strict compliance with Local Civil Rule 7(n)(1) is 

not required when the administrative record is not necessary to the Court’s decision. See Arab v. 

Blinken, 600 F. Supp. 3d 59, 65 n.2 (D.D.C. 2022). The issues raised in the Postal Service’s motion 

to dismiss were purely legal and did not require the administrative record to resolve. Therefore, 

the Postal Service’s non-compliance with Local Civil Rule 7(n)(1) does not prevent it from arguing 

for restricted review. With that preliminary matter out of the way, the Court will now evaluate 

whether extra-record discovery is appropriate or whether the scope of the Court’s evidentiary 

review should be limited to the administrative record. 

1. Discovery Permitted: Counts II and IV

(i) Count II: Failure to Maintain “Some” Pay Differential

The Association claims that the Postal Service acted ultra vires by failing to maintain an 

adequate supervisory differential (Count II). NAPS II, 26 F.4th at 972–73; Compl. ¶¶ 88–92. 

According to the Association, the Field Pay Package provides “no differential” for thousands of 

supervisory employees. NAPS II, 26 F.4th at 973. This allegedly violates 39 U.S.C. § 1004(a), 

which requires the Postal Service to provide “some differential” that is adequate and reasonable. 

Id. at 973. Per the D.C. Circuit, a differential “must be present.” Id. (emphasis added). However, 

the Postal Service has broad discretion to decide the size of the differential and how it is computed. 

Id. 

Whether the Postal Service violated 39 U.S.C. § 1004(a) will turn on the applicable 

standard. It may be the case that the Postal Service only needs to show that it considered the factors 

directed by the Act and reached a reasonable conclusion. In that case, review limited to the record 

would be appropriate. NAPS I, 602 F.2d at 440–41 (“[T]o prevail on remand, [the Postal Service 

by its] submissions must at the very least show that . . . it considered all the factors as directed by 
15

the Postal Act and that it applied such factors in establishing adequate and reasonable salary 

differentials for all supervisory and other managerial personnel.”).3 Or, it may need to show that 

the final Field Pay Package secures at least a de minimis pay differential between all supervisory 

and non-supervisory employees, in which case extra-record evidence may be necessary. See id. at 

434 (“[T]he fact that Congress refused to establish a Fixed differential does not mean that the 

differential guarantee is a meaningless, empty promise, one which the Postal Service can ignore at 

will. The Postal Act does require Some differential.”) (emphasis added); NAPS II, 26 F.4th at 973 

(“[T]he Postal Service [has] to indicate that it has established ‘some differential.’”). It may need 

to show both. The precise contours of what the Postal Service must show or what criteria the Field 

Pay Package must satisfy (if any) are not yet clear. Language in NAPS I and NAPS II suggest it 

could go either way, and the issue has not yet been briefed by the parties. At bottom, the Court has 

not yet determined whether it will ultimately need to consult extra-record evidence; but it does not 

wish to hamstring its future decision-making by foreclosing all discovery at this early juncture. 

For this reason, the Court will permit limited discovery relating to the question of whether the final 

Field Pay Package in fact results in “some differential.” NAPS II, 26 F.4th at 973. 

Although review of an agency’s substantive decision is usually subject to the record review 

rule, Esch, 876 F.2d at 991, the Court believes that allowing discovery will ultimately aid the Court 

in exercising its limited role of determining “the extent of the agency’s delegated authority 

and . . . whether the agency . . . acted within that authority” by allegedly providing no differential 

for thousands of employees. NAPS II, 26 F.4th at 970 (quoting NAPS I, 602 F.2d at 432). The

Court’s decision to allow limited discovery does not reflect a judgment on the merits. To reiterate, 

the Court has not yet determined the applicable standard of review or whether the Postal Service 

3 This example, and the examples that follow, are merely illustrative.
16

must provide a de minimis pay differential between all supervisory and non-supervisory 

employees (or something of the like). The Court will decide the ultimate merits question pursuant 

to the applicable standard. But given the possibility that the administrative record will be 

inadequate to answer this question, the Court is inclined to permit limited discovery. See Hill 

Dermaceuticals, 709 F.3d at 47.

(ii) Count IV: Refusing to Consult Regarding Area and Headquarters Employees

The Association claims that the Postal Service failed to consult with it regarding 

compensation for Area or Headquarters employees that it alleges it is statutorily authorized to 

represent (Count IV). NAPS II, 26 F.4th at 974; Compl. ¶¶ 100–06. The Postal Service claims that 

Area and Headquarters employees are not “supervisory” or “other managerial employees” under 

the Act and thus the Postal Service was not obligated to consult them. NAPS II, 26 F.4th at 975. 

The D.C. Circuit found that it was unable to assess whether the Postal Service’s claim was 

plausible because the Postal Service failed to offer any support for its position. Id. The D.C. Circuit 

has charged this Court with determining on remand which of the Area and Headquarters employees 

have been improperly excluded from the right of representation granted in 39 U.S.C. § 1004(b). 

Id. at 977. The issue was not raised during the factfinding proceeding and the Postal Service does 

not dispute that it is not addressed in the administrative record. Pl.’s Mot. at 13–14; Def.’s Opp’n 

at 17–18. It is clear from this mandate and the absence of relevant evidence in the administrative 

record that the Court must permit discovery with respect to this claim. Even if the APA record 

review rule applied directly, extra-record evidence (and discovery thereof) would be permitted 

under the exception for unexplained agency action evading judicial review. Hill Dermaceuticals, 

709 F.3d at 47. Moreover, the Court is confused by the Postal Service’s claim that there is no 

disagreement with the Association over the scope of representation. Compare Def.’s Opp’n at 17–
17

18 (stating there is no dispute) with NAPS II, 26 F.4th at 977 (describing the disputed issue) and 

Pl.’s Mot. at 13–14 and Pl.’s Reply at 9–10 (stating there is a dispute and providing evidence 

thereof). For this reason, the Court will permit discovery concerning the Association’s failure to 

consult claim.

2. Discovery Prohibited: Count I and the Failure to Give Reasons Claim

(i) Count I: Failure to Consider Private Sector Pay and Achieve Comparability

The Association claims that the Postal Service acted ultra vires by failing to pay 

comparably to the private sector (Count I). NAPS II, 26 F.4th at 974; Compl. ¶¶ 80–87. According 

to the Association, the Postal Service failed to consider information the Association alleges it was 

required to consider, such as private sector compensation and benefit rates, failed to make a good 

faith determination that compensation and benefits are comparable, and failed to establish pay 

comparable to compensation for work in the private sector. NAPS II, 26 F.4th at 973–74. It is 

apparent from NAPS I and NAPS II that this claim will ultimately turn on whether the Postal 

Service adequately justified its conclusion that comparability has been achieved and maintained. 

See NAPS I, 602 F.2d at 435 (reducing comparability to whether the Postal Service properly 

considered and balanced relevant factors); NAPS II, 26 F.4th at 974 (explaining that to defeat the 

claim the Postal Service must “show[]” that it considered private sector compensation and benefits, 

“explain[]” how it achieved comparability, provide a “justification” for its conclusion that 

comparability was achieved, and “explain[]” its resolution of factors built into the comparability 

requirement). Unlike the differential requirement, which as construed by the D.C. Circuit facially 

suggests the existence of some non-discretionary constraints on the substance of the Field Pay 

Package, it is apparent that the comparability requirement implicates the procedural validity of the 

Postal Service’s decision-making process. See NAPS II, 26 F.4th at 974 (“Within these bounds, 
18

the Postal Service has broad discretion to ‘achieve and maintain’ comparability to the private 

sector using the means it sees fit.”). The level of discretion called for here clearly implicates the 

rationales for the APA record rule. See NAPS I, 602 F.2d at 435 (“Some factors, like the differential 

requirement, may at times conflict with others, like the comparability standard. But it is for the 

Postal Service and the Postal Service alone to resolve those conflicts.”). For this reason, the Court 

will not permit discovery concerning the Association’s comparability claim.

(ii) Failure to Give Reasons for Rejecting the Association’s Recommendations

The Court will not permit discovery regarding the Postal Service’s alleged failure to give 

reasons for rejecting the Association’s recommendations (Failure to Give Reasons Claim). NAPS 

II, 26 F.4th at 980. The Court sees no basis for deviating from the record review rule with respect 

to this claim. Whether the Postal Service gave reasons will be evident upon review of the 

administrative record.

C. The Court’s Ruling Allowing Limited Discovery Is Consistent with Circuit Precedent 

Permitting discovery here is consistent with decisions of courts in this Circuit implicating

the availability of discovery in ultra vires actions against the Postal Service. In Bellion Spirits, the

court applied the APA record rule to review of a non-APA constitutional claim brought in parallel 

to an APA claim after finding that extra-record evidence was irrelevant to the constitutional claim. 

335 F. Supp. 3d at 43–44. The court determined that extra-record evidence was irrelevant because 

applicable principles of substantive law limited review to the administrative record. Id. In other 

words, the Bellion Spirits court looked to the substantive rule of decision applicable to the nonAPA claim to determine the evidentiary scope of its review of that claim. So too here. The Court 

believes that extra-record evidence may be relevant to Counts II and IV and may aid the Court in 

effectively adjudicating those claims under the substantive decision rules provided by the Act.
19

Moreover, extra-record evidence may be necessary to supplement the administrative record where 

it is so deficient as to preclude effective judicial review (as with Count IV and possibly count II). 

See Hill Dermaceuticals, 709 F.3d at 47. That is enough to justify discovery in the absence of a 

statutory command to the contrary. 

Similarly, in New York v. Biden, the court granted the plaintiff’s discovery motion where

the defendants opposed only the appropriateness of expedited discovery for a challenge to Postal 

Service action, not the general availability. No. 20-cv-2340 (EGS), Minute Order (October 2, 

2020); ECF No. 43. Finally, in NAPS I, the Association challenged Postal Service action under 

sections 1003 and 1004 and was permitted to engage in discovery. 602 F.2d at 427. Although the

D.C. Circuit reversed the district court’s determination of the scope of Postal Service’s discretion 

to set compensation, it did not find that discovery was inappropriate. See id. at 441. The scarce 

caselaw that touches on the availability of discovery in ultra vires actions supports permitting 

limited discovery.

* * *

Because review of at least some of the claims in this case is not confined to the 

administrative record, discovery may proceed with respect to these claims pursuant to the Federal 

Rules of Civil Procedure and the Local Rules. See, e.g., Fed. R. Civ. P. 26; LCvR 16.3. For claims 

where the Court has not authorized discovery and intends to limit its review to the administrative 

record (e.g., comparability), the Court will presume that the record provided by the Postal Service 

is complete with respect to that claim. See Cardinal Health, Inc. v. Holder, 846 F. Supp. 2d 203, 

219 (D.C. Cir. 2012) (presuming that the administrative record is complete absent “clear evidence 

to the contrary”). The Court will allow some of the discovery suggested in the Association’s

briefing, such as the Association’s proffered requests for position, location, base salary, and