[Federal Register Volume 88, Number 183 (Friday, September 22, 2023)]
[Notices]
[Pages 65409-65411]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-20560]


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POSTAL REGULATORY COMMISSION

[Docket No. C2023-6; Order No. 6688]


Complaint Proceeding

AGENCY: Postal Regulatory Commission.

ACTION: Notice.

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SUMMARY: The Commission is appointing a presiding officer to set a 
procedural schedule and conduct limited discovery for the purpose of 
determining disputed issues of fact in the case. This notice informs 
the public of the filing and takes other administrative steps.

FOR FURTHER INFORMATION CONTACT: David A. Trissell, General Counsel, at 
202-789-6820.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction
II. Background
III. Commission Analysis and Limited Discovery
IV. Ordering Paragraphs

I. Introduction

    On July 7, 2023, Mark Allan Edwards (Complainant) filed a complaint 
pursuant to 39 U.S.C. 3662(a), 401(2), and 403(c) with the Commission 
challenging the Postal Service's decision to terminate delivery of 
oversized packages to his front door.\1\ On July 27, 2023, the Postal 
Service filed a motion to dismiss the Complaint.\2\ Complainant did not 
respond to the Motion to Dismiss.
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    \1\ Complaint of Mark Allan Edwards, July 7, 2023 (Complaint). 
Citations to the Complaint will be to the page number of the PDF.
    \2\ United States Postal Service's Motion to Dismiss, July 27, 
2023 (Motion to Dismiss).
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    For the reasons discussed below, the Commission concludes that the 
Complaint raises material issues of fact, and therefore denies in part 
the Postal Service's Motion to Dismiss pursuant to 39 U.S.C. 3662(b) 
and 39 CFR 3022.30(a)(1). Accordingly, the Commission appoints a 
presiding officer to set a procedural schedule and conduct limited 
discovery for the purpose of determining the disputed issues of fact in 
the case. 39 CFR 3030.21. The scope of the discovery proceeding will be 
limited only to fact-finding conducted by the presiding officer on the 
specific matters of fact identified in this order.

II. Background

A. General Background

    Complainant is an individual resident of Clayton, Georgia and 
resides in the Mountain Creek Estates housing development. Complaint at 
2; Motion to Dismiss at 3. The approved method of delivery for Mountain 
Creek Estates is central delivery with cluster mailboxes located at the 
entrance of the community, which is more than one-half mile from 
Complainant's home. Complaint at 1; Motion to Dismiss at 3. The 
Complaint alleges that from December 2019 until March 2022, the Postal 
Service delivered oversized packages to his door, even though it was 
more than one-half mile away from the centralized mailbox location. 
Complaint at 1.

B. Federal Court Proceedings

    After the Postal Service stopped delivery of oversized packages, 
Complainant filed suit in the Northern District of Georgia, and sought 
resumption of that delivery and alleged a violation of the Postal 
Operations Manual. Complaint, Edwards v. United States Postal Service, 
No. 2:22-CV-160-SCJ (N.D. Ga. Aug. 15, 2022); Amended Complaint by 
Court Order, Edwards v. United States Postal Service, No. 2:22-CV-160-
SCJ (N.D. Ga. Dec. 15, 2022). The United States filed a Motion to 
Dismiss in which it argued that the district court lacked subject 
matter jurisdiction to consider the complaint because Complainant 
failed to identify a specific statute that expressly waived

[[Page 65410]]

sovereign immunity and the complaint raised a service-related claim 
over which the Commission has exclusive jurisdiction. Memorandum in 
Support of Defendant's Motion to Dismiss at 3-8, Edwards v. United 
States Postal Service, No. 2:22-CV-160-SCJ (March 6, 2023). The motion 
to dismiss is pending before the district court.

C. Complaint

    While his case was pending in Federal district court, Complainant 
filed the Complaint with the Commission. As noted above, he alleges 
that from December 2019 until March 2022, the Postal Service delivered 
oversized packages that would not fit into his mailbox to his door. 
Complaint at 2. The Complaint alleges that because the Postal Service 
delivered oversized packages to his door for over 2 years, it 
improperly changed that mode of delivery without his consent in 
violation of the Postal Operations Manual (POM) sections 631.1 and 
631.8 and 39 U.S.C. 401(2). Id. at 2-3.
    The Complaint further asserts that Complainant was given 
inconsistent reasons for the change in the method of delivery. Id. at 
4-6. First, he asserts, he was told the change was prompted by safety 
concerns in that his driveway was ```too narrow for a safe turnaround 
for the carrier.' '' Id. at 4-5. Complainant then asserts that after he 
filed an informal complaint with the Commission, a letter carrier 
informed him that delivery of oversized packages to his door was 
discontinued because his home was too far from the central delivery 
point. Id. at 5. The Complaint alleges that this constituted improper 
retaliation. Id. at 4-5.
    Finally, the Complaint also alleges that because, currently, the 
Postal Service ``delivers to homes on the first western circular road 
with the furthest home getting oversized package delivery just over \1/
2\ mile from the [cluster] mailboxes[,]'' discontinuing delivery to 
Complainant's home, which is similarly situated to other homes that 
receive delivery of oversized packages, constitutes discrimination in 
violation of 39 U.S.C. 403(c). Id. at 4-6. Complainant requests that 
the Commission order the Postal Service to resume delivery of oversized 
packages to his door as a remedy to this alleged discrimination. Id. at 
9-10.

D. Motion To Dismiss

    In its Motion to Dismiss, the Postal Service asserts that the 
Commission lacks jurisdiction over the claims related to POM section 
631.81 and retaliation because those claims do not fall under the 
enumerated bases for jurisdiction set forth in 39 U.S.C. 3662(a). 
Motion to Dismiss at 6-10. While the Complaint references 39 U.S.C. 
401(2), which is an enumerated basis to bring a complaint, that statute 
applies only to scenarios where the Postal Service adopts, amends, or 
repeals rules or regulations inconsistent with title 39. Id. at 8-9. 
Since, according to the Postal Service, application of POM section 
631.8, even if incorrect, does not involve the Postal Service 
``adopting, amending, or repealing'' a rule or regulation in a manner 
that is inconsistent with title 39, the Commission lacks jurisdiction 
over the claim. Id. at 9-10.
    Regarding, the 39 U.S.C. 403(c) discrimination claim, the Postal 
Service asserts that Complainant fails to state a claim for which 
relief may be granted. Id. at 11-14. For purposes of the Motion to 
Dismiss, the Postal Service accepted as fact that ``customers in 
Mountain Creek Estates and elsewhere in Rabun County who live more than 
one-half mile from the carrier's line of travel or delivery route'' 
receive delivery of oversized packages to their doors. Id. at 12. 
Still, the Postal Service argues, Complainant cannot succeed on a 39 
U.S.C. 403(c) claim because there is a rational and legitimate basis to 
deny the same delivery to Complainant--it ``is contrary to section 
331.21 of PO-603, which limits door delivery of oversized packages to 
residences and businesses `on the line of travel, or within one-half 
mile of the route . . . .' '' Id. (quoting the Postal Service's Rural 
Carrier Duties and Responsibilities Handbook (PO-603) section 331.21).

III. Commission Analysis and Limited Discovery

    The Commission finds that the pleadings raise issues of fact 
relevant to whether the actions or inactions of the Postal Service 
violate 39 U.S.C. 403(c). Viewed in the light most favorable to 
Complainant, the allegations in the Complaint may raise a cognizable 
claim of undue or unreasonable discrimination. The Commission also 
recognizes that the Postal Service has the legal obligation to ``adopt, 
amend, and repeal such rules and regulations, . . . as may be necessary 
in the execution of its functions'' under title 39.\3\ Accordingly, the 
Commission's role in this inquiry is not to question that obligation, 
but to determine if the current postal policy, as applied to the 
Complainant, presents a potential violation of 39 U.S.C. 403(c).\4\
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    \3\ See 39 U.S.C. 401(2).
    \4\ The Commission's authority, should a complaint be justified, 
is to ``order that the Postal Service take such action as the 
Commission considers appropriate in order to achieve compliance with 
the applicable requirements and to remedy the effects of any 
noncompliance . . . .'' See 39 U.S.C. 3662(c).
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A. Violations of POM Section 631.8 and Retaliation

    The Commission has jurisdiction over complaints that meet the 
statutory requirements of 39 U.S.C. 3662(a). Section 3662(a) permits 
any interested person, including the Public Representative, to file a 
complaint with the Commission if they believe the Postal Service is not 
operating in conformance with the requirements of 39 U.S.C. chapter 36; 
39 U.S.C. 101(d), 401(2), 403(c), 404a, or 601; or any regulations 
promulgated under any of these provisions.\5\ Within 90 days after 
receiving a complaint under section 3662(a), the Commission must either 
(1) begin proceedings on the complaint upon finding that such complaint 
raises material issues of fact or law; or (2) issue an order dismissing 
the complaint.\6\ The Commission must issue a written statement setting 
forth the bases of its determination. 39 U.S.C. 3662(b)(1)(B).
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    \5\ 39 U.S.C. 3662(a); see 39 CFR 3022.2. The Public 
Representative is an officer of the Commission representing the 
interests of the general public. 39 U.S.C. 3662(a), 505.
    \6\ 39 U.S.C. 3662(b)(1)(A); see 39 CFR 3022.30(a).
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    The first two claims raised by Complainant are (1) that the Postal 
Service violated POM section 631.8 and (2) the Postal Service 
improperly retaliated against him for making a complaint after the 
Postal Service discontinued door delivery of oversized packages. While 
the alleged violation of POM section 631.8 refers to 39 U.S.C. 401(2), 
which is an enumerated basis of the Commission's complaint 
jurisdiction, because Complainant alleges that the Postal Service is 
violating a provision of the POM untethered to any statute or 
regulation, it fails to invoke the Commission's jurisdiction under 39 
U.S.C. 3662(a).
    As the Postal Service argues, and the Commission has previously 
concluded,\7\ the mere reference to 39 U.S.C. 401(2) does not create a 
tether for jurisdiction over the claim because it applies only to 
scenarios where the Postal Service adopts, amends, or repeals rules or 
regulations inconsistent with title 39. Motion to Dismiss at 8-9. And 
because, as the Postal Service correctly argues, application of POM 
section 631.8, even if incorrect, does not involve the Postal Service 
``adopting, amending, or repealing'' a rule or regulation in a

[[Page 65411]]

manner that is inconsistent with title 39, id. at 9-10, the Commission 
lacks jurisdiction over the claim. Second, a claim for retaliation does 
not fall within any of the enumerated bases of the Commission's 
complaint jurisdiction as it does not implicate the requirements of 39 
U.S.C. chapter 36; 39 U.S.C. 101(d), 401(2), 403(c), 404a, or 601; or 
any regulations promulgated under any of these provisions.\8\
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    \7\ See Docket No. C2015-1, Order Granting Motion to Dismiss, 
March 4, 2015, at 6-7 (Order No. 2377); Docket No. C2015-3, Order 
Dismissing Complaint, August 26, 2015, at 18 (Order No. 2687).
    \8\ 39 U.S.C. 3662(a).
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    Complainant objects to the Postal Service's alleged noncompliance 
with its own regulations, not to the regulations themselves. Thus, the 
Complaint does not fall within the Commission's jurisdiction under 39 
U.S.C. 401(2) and neither of the first two claims are encompassed under 
the Commission's complaint jurisdiction. Therefore, the Postal 
Service's Motion to Dismiss is granted as to these two claims.

B. Undue Discrimination

    Complainant's third claim alleges a potential violation of 39 
U.S.C. 403(c) because other similarly situated members of his community 
are receiving delivery of oversized packages to their doors. Complaint 
at 4-6. The Postal Service is prohibited from making any undue or 
unreasonable discrimination among mail users. 39 U.S.C. 403(c). When 
evaluating claims of discrimination among mail users, the Commission 
follows the guidance set forth in Egger v. USPS, 436 F. Supp. 138 (W.D. 
Va. 1977). In Egger, the district court held that it is ``obvious that 
the Postal Service may provide different levels of delivery service to 
different groups of mail users so long as the distinctions are 
reasonable.'' Egger, 436 F. Supp. at 142. Thus, the Postal Service may 
differentiate among customers where the differences have a rational 
basis.\9\
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    \9\ See Docket No. C2015-2, Order Granting Motion to Dismiss, 
July 15, 2015, at 12 (Order No. 2585).
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    Thus, in order to state a claim for a violation of 39 U.S.C. 
403(c), the Commission requires a complainant to plead three things: 
(1) the complainant is receiving less favorable services than those 
provided to one or more other postal customers, (2) the complainant is 
similarly situated to those postal customers receiving more favorable 
service, and (3) there is no rational or legitimate basis for denying 
the complainant the more favorable service currently being provided to 
those similarly situated postal customers.\10\
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    \10\ See Docket No. C2020-2, Order Granting the Postal Service's 
Motion to Dismiss Complaint with Prejudice, April 28, 2020, at 8 
(Order No. 5491) (citing Docket No. 2009-1, Order on Complaint, 
April 20, 2011, at 28 (Order No. 718)).
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    The Postal Service, solely for the purposes of the Motion to 
Dismiss, accepts that Complainant can meet the first two prongs. Motion 
to Dismiss at 12. The third prong of the test used to determine whether 
a 403(c) claim is actionable is that there is no rational or legitimate 
basis for the Postal Service to deny the Complainant the more favorable 
rates or terms and conditions offered to others.\11\ The Postal Service 
argues that delivery to homes outside of the half-mile radius violates 
Postal Service policy, and that constitutes a legitimate basis for the 
Postal Service to deny Mr. Edwards more favorable rates, terms, or 
conditions offered to others. Motion to Dismiss at 12-13.
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    \11\ Docket No. C2020-2, Order Granting the Postal Service's 
Motion to Dismiss Complaint with Prejudice, April 28, 2020, at 8 
(Order No. 5491) (citing Docket No. 2009-1, Order on Complaint, 
April 20, 2011, at 28 (Order No. 718)).
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    The Commission finds that this argument ignores the fact that, if 
Complainant can meet the first two prongs of the test, it means that 
other customers are receiving those exact ``rates or terms and 
conditions'' in violation of Postal Service policy. Accepting the 
Postal Service's argument on this point would in effect request the 
Commission to ignore potential discrimination because its preferential 
treatment of other customers violates its own policies. Thus, the 
Commission finds the Postal Service's arguments on the Complaint's 
failure to state a claim unpersuasive. Therefore, the Postal Service's 
Motion to Dismiss is denied as it relates to the potential violation of 
39 U.S.C. 403(c) pursuant to 39 U.S.C. 3662(b).
    The outstanding issues of fact required to resolve whether a 
violation of 39 U.S.C. 403(c) occurred are:
    1. Whether any similarly situated postal customers in Complainant's 
neighborhood are receiving delivery of oversized packages to their 
doors.
    2. Whether postal management followed non-discriminatory processes 
in the discontinuation of door delivery of oversized packages to 
Complainant's residence.
    Pursuant to 39 CFR 3010.106, the Commission appoints John Avila to 
serve as presiding officer to ascertain outstanding issues of material 
fact in this matter. Parties may request that the presiding officer 
obtain specific discovery but may not independently propound discovery. 
The presiding officer shall examine the disputed issues identified 
above and provide a public, written intermediate decision including 
findings of fact and conclusions of law on the issues raised in this 
proceeding. 39 CFR 3010.335.
    The Commission finds good cause to waive the appointment of an 
officer of the Commission designated to represent the interests of the 
general public in this proceeding as required by 39 CFR 30.30(c) 
because the violations alleged in the Complaint pertain solely to 
Complainant rather than the general public.

IV. Ordering Paragraphs

    It is ordered:
    1. The Commission finds that the Complaint of Mark Allan Edwards, 
filed July 7, 2023, raises material issues of fact.
    2. The United States Postal Service's Motion to Dismiss the 
Complaint of Mark Allan Edwards, filed July 27, 2023, is granted on all 
grounds except for the claim related to the alleged violation of 39 
U.S.C. 403(c).
    3. Pursuant to 39 CFR 3010.106, the Commission appoints John Avila 
as a presiding officer in this proceeding.
    4. Parties may request that the presiding officer obtain specific 
discovery but may not independently propound discovery.
    5. The presiding officer shall, pursuant to 39 CFR 3010.335, 
provide a public written intermediate decision including findings of 
fact and conclusions of law on the issues raised in this proceeding.
    6. The Secretary shall arrange for publication of this Order in the 
Federal Register.

    By the Commission.
Erica A. Barker,
Secretary.
[FR Doc. 2023-20560 Filed 9-21-23; 8:45 am]
BILLING CODE 7710-FW-P