Federal Register / Vol. 88, No. 183 / Friday, September 22, 2023 / Notices 65409 

1See Docket No. RM2018–3, Order Adopting 

Final Rules Relating to Non-Public Information, 

June 27, 2018, Attachment A at 19–22 (Order No. 

4679). 

1Complaint of Mark Allan Edwards, July 7, 2023 

(Complaint). Citations to the Complaint will be to 

the page number of the PDF. 

2United States Postal Service’s Motion to 

Dismiss, July 27, 2023 (Motion to Dismiss). 

notice informs the public of the filing, 

invites public comment, and takes other 

administrative steps. 

DATES: Comments are due: September 

26, 2023. 

ADDRESSES: Submit comments 

electronically via the Commission’s 

Filing Online system at http://

www.prc.gov. Those who cannot submit 

comments electronically should contact 

the person identified in the FOR FURTHER

INFORMATION CONTACT section by 

telephone for advice on filing 

alternatives. 

FOR FURTHER INFORMATION CONTACT: 

David A. Trissell, General Counsel, at 

202–789–6820. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Introduction 

II. Docketed Proceeding(s) 

I. Introduction 

The Commission gives notice that the 

Postal Service filed request(s) for the 

Commission to consider matters related 

to negotiated service agreement(s). The 

request(s) may propose the addition or 

removal of a negotiated service 

agreement from the Market Dominant or 

the Competitive product list, or the 

modification of an existing product 

currently appearing on the Market 

Dominant or the Competitive product 

list. 

Section II identifies the docket 

number(s) associated with each Postal 

Service request, the title of each Postal 

Service request, the request’s acceptance 

date, and the authority cited by the 

Postal Service for each request. For each 

request, the Commission appoints an 

officer of the Commission to represent 

the interests of the general public in the 

proceeding, pursuant to 39 U.S.C. 505 

(Public Representative). Section II also 

establishes comment deadline(s) 

pertaining to each request. 

The public portions of the Postal 

Service’s request(s) can be accessed via 

the Commission’s website (http://

www.prc.gov). Non-public portions of 

the Postal Service’s request(s), if any, 

can be accessed through compliance 

with the requirements of 39 CFR 

3011.301.1

The Commission invites comments on 

whether the Postal Service’s request(s) 

in the captioned docket(s) are consistent 

with the policies of title 39. For 

request(s) that the Postal Service states 

concern Market Dominant product(s), 

applicable statutory and regulatory 

requirements include 39 U.S.C. 3622, 39 

U.S.C. 3642, 39 CFR part 3030, and 39 

CFR part 3040, subpart B. For request(s) 

that the Postal Service states concern 

Competitive product(s), applicable 

statutory and regulatory requirements 

include 39 U.S.C. 3632, 39 U.S.C. 3633, 

39 U.S.C. 3642, 39 CFR part 3035, and 

39 CFR part 3040, subpart B. Comment 

deadline(s) for each request appear in 

section II. 

II. Docketed Proceeding(s) 

1. Docket No(s).: MC2023–271 and 

CP2023–274; Filing Title: USPS Request 

to Add Priority Mail & USPS Ground 

Advantage Contract 56 to Competitive 

Product List and Notice of Filing 

Materials Under Seal; Filing Acceptance 

Date: September 18, 2023; Filing 

Authority: 39 U.S.C. 3642, 39 CFR 

3040.130 through 3040.135, and 39 CFR 

3035.105; Public Representative: 

Kenneth R. Moeller; Comments Due: 

September 26, 2023. 

This Notice will be published in the 

Federal Register. 

Erica A. Barker, 

Secretary. 

[FR Doc. 2023–20572 Filed 9–21–23; 8:45 am] 

BILLING CODE 7710–FW–P 

POSTAL REGULATORY COMMISSION 

[Docket No. C2023–6; Order No. 6688] 

Complaint Proceeding 

AGENCY: Postal Regulatory Commission. 

ACTION: Notice. 

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. 

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 factfinding 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 onehalf 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 


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65410 Federal Register / Vol. 88, No. 183 / Friday, September 22, 2023 / Notices 

3See 39 U.S.C. 401(2). 

4The 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). 

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). 

7See 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). 

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

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). 

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 


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Federal Register / Vol. 88, No. 183 / Friday, September 22, 2023 / Notices 65411 

8 39 U.S.C. 3662(a). 

9See Docket No. C2015–2, Order Granting Motion 

to Dismiss, July 15, 2015, at 12 (Order No. 2585). 

10See 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)). 

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)). 

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

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

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

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. 

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 

SECURITIES AND EXCHANGE 

COMMISSION 

[SEC File No. 270–037, OMB Control No. 

3235–0031] 

Submission for OMB Review; 

Comment Request; Extension: Rule 

17f–2(e) 

Upon Written Request, Copies Available 

From: Securities and Exchange 

Commission, Office of FOIA Services, 

100 F Street NE, Washington, DC 

20549–2736. 

Notice is hereby given that pursuant 

to the Paperwork Reduction Act of 1995 

(‘‘PRA’’) (44 U.S.C. 3501 et seq.), the 

Securities and Exchange Commission 

(‘‘Commission’’) has submitted to the 

Office of Management and Budget 

(‘‘OMB’’) a request for approval of 


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