1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

STATE OF NEW YORK, et al.,

Plaintiffs, 

v.

JOSEPH R. BIDEN, JR., in his 

official capacity as President 

of the United States, et al.,

Defendants.

No. 20-cv-2340(EGS)

MEMORANDUM OPINION

Plaintiffs the States of New York, Hawaii, and New Jersey; 

the City of New York; and the City and County of San Francisco 

filed this lawsuit against Defendants Joseph R. Biden, Jr., in 

his official capacity as President of the United States; Louis 

DeJoy (“Mr. DeJoy”), in his official capacity as Postmaster 

General of the United States; and the United States Postal 

Service (“USPS”) or (“Postal Service”) alleging the following 

claims: (1) Ultra Vires Agency Action—Postal Accountability and 

Enhancement Act; (2) Ultra Vires Agency Action—Postal 

Reorganization Act; and (3) violation of the Elections Clause of 

the United States Constitution. See Compl., ECF No. 1 at 59-61.

Currently pending before the Court are the parties’ crossmotions for summary judgment. See Pls.’ Mot. Summ. J., ECF No. 
2

58; Defs.’ Cross Mot. Summ. J., ECF No. 66.1 Upon consideration 

of the motions, the responses and replies thereto, the 

applicable law, the entire record, and for the reasons stated 

below, the Court GRANTS IN PART AND DENIES IN PART Plaintiffs’ 

Motion for Summary Judgment and GRANTS IN PART AND DENIES IN 

PART Defendants’ Cross-Motion for Summary Judgment.

I. Background

A. Statutory and Regulatory Framework

In the Postal Reorganization Act (“PRA”), Public Law 91-

375, 84 Stat. 719 (Aug. 12, 1970), Congress replaced the Post 

Office Department with the Postal Service as “an independent 

establishment of the executive branch of the Government of the 

United States, under the direction of a Board of Governors, with 

the Postmaster General as its chief executive officer.” 39 

C.F.R. § 1.1. The PRA also created an independent oversight body 

for the USPS, the Postal Rate Commission. 39 U.S.C. § 501. 

Congress passed the PRA to “[i]nsulate” the management of the 

USPS “from partisan politics . . . by having the Postmaster 

General responsible to the [Postal Rate] Commission, which 

represents the public interest only, for his conduct of the 

affairs of the Postal Service.” H.R. Rep. No. 91-1104, 3660-61 

(1970). 

1 When citing electronic filings throughout this Memorandum 

Opinion, the Court cites to the ECF page number, not the page 

number of the filed document.
3

The PRA defines the “postal polic[ies]” of the Postal 

Service. Section 101 of the Act provides that the USPS “shall 

provide prompt, reliable, and efficient services to patrons in 

all areas and shall render postal services to all communities,” 

and “shall provide a maximum degree of effective and regular 

postal services to rural areas, communities, and small towns 

where post offices are not self-sustaining.” 39 U.S.C. § 101(a)-

(b). In addition, Section 101(e) directs that, “[i]n determining 

all policies for postal services, the Postal Service shall give 

the highest consideration to the requirement for the most 

expeditious collection, transportation, and delivery of 

important letter mail.” Id. § 101(e). Section 403 further 

defines USPS’s “[g]eneral duties.” Section 403 provides:

(a) The Postal Service shall plan, develop, 

promote, and provide adequate and efficient 

postal services at fair and reasonable rates 

and fees. The Postal Service shall receive, 

transmit, and deliver throughout the United 

States, its territories and possessions, and, 

pursuant to arrangements entered into under 

sections 406 and 411 of this title, throughout 

the world, written and printed matter, 

parcels, and like materials and provide such 

other services incidental thereto as it finds 

appropriate to its functions and in the public 

interest. The Postal Service shall serve as 

nearly as practicable the entire population of 

the United States. 

(b) It shall be the responsibility of the 

Postal Service—
4

(1) to maintain an efficient system of 

collection, sorting, and delivery of the 

mail nationwide; 

(2) to provide types of mail service to meet 

the needs of different categories of mail 

and mail users; and 

(3) to establish and maintain postal 

facilities of such character and in such 

locations, that postal patrons throughout 

the Nation will, consistent with reasonable 

economies of postal operations, have ready 

access to essential postal services.

Id. § 403(a)-(b).

In the Postal Accountability and Enhancement Act (“PAEA”), 

Pub. L. No. 109-435, 120 Stat. 3198 (Dec. 20, 2006) (codified at 

39 U.S.C. § 3600 et seq.), Congress replaced the Postal Rate 

Commission with the Postal Regulatory Commission (“PRC” or 

“Commission”) and “strengthened its role.” Carlson v. Postal 

Regul. Comm’n, 938 F.3d 337, 340 (D.C. Cir. 2019). 

The USPS is responsible for “develop[ing] and promot[ing] 

adequate and efficient postal services.” 39 U.S.C. § 3661(a). 

“When the Postal Service determines that there should be a 

change in the nature of postal services [that] will generally 

affect service on a nationwide or substantially nationwide 

basis,” it must “submit a proposal, within a reasonable time 

prior to the effective date of such proposal, to the Postal 

Regulatory Commission requesting an advisory opinion on the 

change.” Id. § 3661(b). This provision was enacted in the PRA, 

and the only change made in the PAEA was to replace the original 
5

“Postal Rate Commission” with the “Postal Regulatory 

Commission.” 

Following the submission of a proposal, “[t]he Commission 

shall not issue its opinion on any proposal until an opportunity 

for hearing on the record under [the Administrative Procedure 

Act] has been accorded the Postal Service, users of the mail, 

and an officer of the Commission who shall be required to 

represent the interests of the general public. The opinion shall 

be in writing and shall include a certification by each 

Commissioner agreeing with the opinion that in his judgment the 

opinion conforms to the policies established under this title.” 

39 U.S.C. § 3661(c).

B. Factual Background

1. The COVID-19 Pandemic

In response to the COVID-19 pandemic, Plaintiffs took 

actions to mitigate the spread of the virus and promote social 

distancing in 2020, and, as a result, increased their reliance 

on the Postal Service to administer public benefits programs, 

including “public assistance to low-income families, healthcare 

assistance, child support enforcement, and drivers’ licenses. 

See Pls.’ Mot., ECF No. 60 at 13 (citing See Adinaro Decl., ECF 

No. 59-1 ¶ 12; Banks Decl., ECF No. 59-2 ¶¶ 3–5, 8, 10–12; Betts 

Decl., ECF No. 59-3 ¶¶ 7–15; DiGiovanni-Abatto Decl., ECF No. 

59-5 ¶¶ 3–5; Hein Decl., ECF No. 59-8 ¶¶ 2–3, 8, 13, 15; Jacobs 
6

Decl., ECF No. 59-11 ¶¶ 4–10; Lau Decl., ECF No. 59-15 ¶¶ 3, 5–

9; Poole Decl., ECF No. 59-17 ¶¶ 2, 6–11; Roye Decl., ECF No. 

59-18 ¶¶ 4-5, 12–13; Roye Suppl. Decl., ECF No. 59-14 ¶¶ 18–20; 

Shah Decl., ECF No. 59-19 ¶¶ 3, 5–6, 10); see also N.Y. Exec. 

Order No. 202.8; Hawaii Sixth Supplementary Proclamation 

Relating to COVID-19; N.J. Exec. Order No. 107; San Francisco 

Third Supplement to Mayoral Proclamation Declaring the Existence 

of a Local Emergency dated Feb. 25, 2020; N.Y. City Emergency 

Executive Order No. 100. Plaintiffs also devoted resources to 

transforming their election processes to expand and encourage 

absentee and mail voting. Adinaro Decl., ECF No. 59-1 ¶ 9; 

Kellner Decl., ECF No. 59-13 ¶¶ 11, 16–17, 19; Ku Decl., ECF No. 

59-14 ¶¶ 8–10.

2. USPS Postal Policy Changes

In June and July 2020, the Postal Service announced and 

implemented several changes and strategies to how it collected, 

processed, and delivered mail. At issue in this case are five 

actions, which the Court refers to as the “Postal Policy 

Changes.” See Pls.’ Mot., ECF No. 60 at 14.

First, on June 17, 2020, USPS announced that it would 

eliminate more than 600 sorting machines in the United States 

“over the next several months.” See Pls.’ Ex. 37, ECF No. 59-37. 

In total, USPS reduced 711 sorting machines by mid-August 2020, 

which was an approximately 14.7 percent reduction in the number 
7

of machines across the country, as part of an initiative started 

in 2017 to determine the optimum number of machines by running 

computer models analyzing mail-flow volume. See DeChambeau 

Decl., ECF No. 59-33 ¶ 15. Excluding fiscal year 2016, the total 

number of letter and flat sorting machines USPS reduced exceeded 

the rates of elimination in previous years. See id. ¶ 21 (3.3 

percent in FY2020; 1.9 percent in FY2019; 6.5 percent in FY2018;

3.5 percent in FY2017, and 0 percent in FY2015). On August 18, 

2020, USPS suspended all removals of equipment until after the 

November 2020 election. Id. ¶ 22. 

Second, on June 26, 2020, USPS held a teleconference with 

Area Vice Presidents regarding strategies to reduce, among other 

things, unearned overtime. See Pls.’ Ex. 39, ECF No. 59-39. 

Unearned time is the “time that an employee takes to complete 

[his or her] duties over and above the earned time.” Curtis Dep. 

Tr., ECF No. 66-14 at 14. Those attending the teleconference 

were asked to go “all in” on these strategies. Id.; June 26, 

2020 Presentation, Pls.’ Ex. 39, ECF No. 59-39 at 7. On 

September 21, 2020, USPS issued “Clarifying Operational 

Instructions” stating that “[o]vertime use has not been banned, 

nor have any caps been placed on overtime hours.” USPS 

Clarifying Operational Instructions, Defs.’ Ex. 12, ECF No. 66-

16 at 2.
8

Third, on July 10, 2020, USPS held a teleconference with 

Area Vice Presidents during which the agency’s chief operating 

officer gave a presentation regarding the elimination of late 

and extra trips.2 See Cintron Suppl. Decl., ECF No. 66-19 at 2. 

The slides presented at the teleconference stated “NO EXTRA 

TRANSPORTATION” and “NO LATE TRANSPORTATION,” advising that 

“[e]ffective July 13 all extra trips and Postal caused late 

trips are unauthorized contractual commitments.” See July 10, 

2020 Presentation, Pls.’ Ex. 41, ECF No. 59-41 at 10-11. Some 

USPS employees distributed instructions the same day in line 

with the presentation’s directives. See Email, Pls.’ Ex. 42, ECF 

No. 59-42 at 2 (“[T]here is no more waiting on mail and there is 

no coming back for parcels. The excuses of why people can’t get 

done with their routes is gone. We NEED to start capturing the 

downtime.”). Another employee distributed a “Mandatory Stand-Up 

Talk: All Employees,”3 stating that “[r]ight now, we are at a 

critical juncture in our organization and must make immediate, 

lasting, and impacting changes in our operations and in our 

culture.” See Pls.’ Ex. 43, ECF No. 59-43. According to the 

2 Late trips are trips that depart after their scheduled 

departure time, and extra trips are additional trips that were 

not originally scheduled to occur. See Coradi Decl., ECF No. 59-

4 ¶¶ 13–14.

3 USPS considers a “Stand-Up Talk” as a document with talking 

points that local postal managers use to relay information to 

employees. See Curtis Dep. Tr., ECF No. 66-14.
9

document, such “changes” included that “[a]ll trips will depart 

on time (Network, Plant and Delivery); late trips are no longer 

authority or accepted” and “[e]xtra trips are no longer 

authorized or accepted.” Id. The document further instructed 

that the transportation changes would be “implemented 

immediately (today).” Id. Following the teleconference and the 

Stand-Up Talk, some employees were confused about the parameters 

of the policy regarding late and extra trips. See 66-19 at 2-3

(postal workers contacting USPS officials to get clarification 

on whether late and extra trips were banned). On July 14, 2020, 

Robert Cintron, the USPS Vice President of Logistics, 

distributed via email a document entitled “Keys to Success for 

Elimination of Extras and Lates” (the “Cintron Guidelines”), 

stating that the “focus is to eliminate unplanned extra 

transportation, “[d]eviations to the extent possible should be 

utilized to eliminate extras,” and “[t]rips must depart on 

time.” See Pls.’ Ex. 45, ECF No. 59-45 at 2; Pls.’ Ex. 46, ECF 

No. 59-46 at 2-3. The Cintron Guidelines included examples of 

when a late or extra trip was acceptable or unacceptable. See 

Pls.’ Ex. 46, ECF No. 59-46 at 2-3.

At least some USPS employees knew that the process of 

eliminating late and extra trips would result in delayed mail 

delivery: “One aspect of these changes that may be difficult for 

employees is that—temporarily—we may see mail left behind or 
10

mail on the workroom floor or docks (in P&DCs), which is not 

typical.” See Pls.’ Ex. 43, ECF No. 59-43. Following the 

issuance of the above documents, the number of late and extra 

trips dropped significantly. Cintron Dep. Tr., ECF No. 59-28; 

Grimmer Decl., ECF No. 59-7 ¶ 19; Pls.’ Ex. 32, ECF No. 59-32; 

Pls.’ Ex. 33, ECF No. 59-33; Pls.’ Ex. 53, ECF No. 59-53; Pls.’ 

Ex. 59, ECF No. 59-59. On September 21, 2020, USPS issued 

“Clarifying Operational Instructions” that stated that “late or 

extra trips that are reasonably necessary to complete timely 

mail delivery, is not to be unreasonably restricted or 

prohibited. Managers are authorized to use their best business 

judgment to meet our service commitments.” Clarifying 

Operational Instructions, Defs.’ Ex. 12, ECF No. 66-16.

Fourth, in July 2020, USPS announced an initiative entitled 

“Expedited to Street/Afternoon Sortation” (or “ESAS”) at 384 

facilities, including facilities in Plaintiff States. See StandUp Talk, Expedited to Street/Afternoon Sortation, Pls.’ Ex. 47, 

ECF No. 59-47. Pursuant to the initiative, city carriers were 

prohibited from spending time in the morning sorting mail so 

that they could leave for the street earlier. See id. After 

completing their routes, city carriers would then return to the 

office and stage mail for delivery the next scheduled day. Pls.’ 

Ex. 47, ECF No. 59-47. In effect, this meant that carriers were 

being ordered to not deliver mail that had arrived overnight, 
11

but rather sort it in the afternoon for delivery the next day. 

Id. The initiative is no longer in effect. See Curtis Dep. Tr., 

ECF No. 66-14 at 27.

Fifth, on or around July 30, 2020, the USPS General Counsel 

informed 46 states and the District of Columbia that if the 

States did not pay First Class postage on ballots sent to 

voters, there would be a risk that voters would not receive 

their ballots in time to return them by mail. See Second Glass 

Dep. Tr., ECF No. 59-30 at 9-10; Pls.’ Ex. 49, ECF No. 59-49. 

USPS officials indicated that states should mail election mail 

as First Class Mail, not Marketing Mail. See Pls.’ Ex. 38, ECF 

No. 59-38 at 2. On September 21, 2020, USPS issued instructions 

stating that it will prioritize Election Mail that is entered as 

Marketing Mail, regardless of the paid class. Clarifying 

Operational Instructions, Defs.’ Ex. 12, ECF No. 66-16.

USPS did not seek an advisory opinion pursuant to Section 

3661(b) from the PRC prior to taking the above actions. See 

Pls.’ Ex. 58, ECF No. 59-58 at 6.

C. Procedural History

Plaintiffs filed this lawsuit on August 25, 2020. On 

September 2, 2020, they filed a motion for a preliminary 

injunction, which requests that the Court enjoin the defendants 

from enforcing the Postal Policy Changes. See Mot., ECF No. 12-

1. On September 27, 2020, the Court granted Plaintiffs’ motion 
12

for a preliminary injunction. See New York v. Trump, 490 F. 

Supp. 3d 225, 231 (D.D.C. 2020) (EGS). The Court held that 

Plaintiffs were likely to succeed on the merits of their 29 

U.S.C. § 3661(b) claim because (1) they had established a 

likelihood of standing; (2) the Court likely had subject-matter 

jurisdiction over the Section 3661(b) claim; (3) the claim was 

likely reviewable pursuant to the ultra vires doctrine; and (4) 

USPS decision to implement the Postal Policy Changes without 

receiving a prior opinion from the PRC likely violated Section 

3661(b). See id. at 236-43. The Court also held that Plaintiffs 

faced irreparable harm in the absence of a preliminary 

injunction and that the balance of equities and public interest 

favored a preliminary injunction. See id. at 243-45. 

Accordingly, the Court preliminarily enjoined the Postal Policy 

Changes. See Order, ECF No. 51. The Court clarified its Order on 

August 23, 2021 to reflect that the preliminary injunction did

not prohibit the Postal Service from declining approval for 

extra network trips pursuant to the following principles: (1) 

where an extra trip would not be service responsive, and (2) 

where not using an extra trip would delay a volume of mail that 

is no greater than 15% of the truck’s total capacity. See Mem. 

Op. & Order, ECF No. 98 at 16.

Plaintiffs filed their motion for summary judgment on 

October 19, 2020, see Pls.’ Mot., ECF No. 58, and Defendants 
13

filed a cross-motion for summary judgment on October 26, 2020, 

see Pls.’ Mot., ECF No. 66. The motions are ripe for 

adjudication.

II. Legal Standard

A. Summary Judgment

Pursuant to Federal Rule of Civil Procedure 56, summary 

judgment should be granted if the moving party has shown that 

there are no genuine issues of material fact and that the moving 

party is entitled to judgment as a matter of law. Fed. R. Civ. 

P. 56(a); Celotex Corp v. Catrett, 477 U.S. 317, 325 (1986). In 

determining whether a genuine issue of material fact exists, a 

court must view all facts in the light most favorable to the 

non-moving party. See Matsushita Elec. Indus. Co. v. Zenith 

Radio Corp., 475 U.S. 574, 587 (1986). In ruling on cross-motions 

for summary judgment, a court shall grant summary judgment only 

if one of the moving parties is entitled to judgment as a matter 

of law upon material facts that are not genuinely disputed. 

Shays v. FEC, 424 F. Supp. 2d 100, 109 (D.D.C. 2006); Winston & 

Strawn LLP v. F.D.I.C., No. 06-1120 (EGS), 2007 WL 2059769, at 

*3 (D.D.C. July 13, 2007).

B. Availability of Judicial Review

The Postal Service is “exempt 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). “However, 
14

the case law in this circuit is clear that judicial review is 

available when an agency acts ultra vires, or outside of the 

authority Congress granted.” Nat’l Ass’n of Postal Supervisors 

v. USPS, 26 F.4th 960, 970 (D.C. Cir. 2022) (quotation marks 

omitted) (citation omitted). Ultra vires is available where “(i) 

there is no express statutory preclusion of all judicial review; 

(ii) there is no alternative procedure for review of the 

statutory claim; and (iii) the agency plainly acts in excess of 

its delegated powers and contrary to a specific prohibition in 

the statute that is clear and mandatory.” Fed. Express Corp. v. 

U.S. Dep’t of Commerce, 39 F.4th 756, 763 (D.C. Cir. 2022) 

(cleaned up) (quoting Nyunt v. Broad. Bd. of Governors, 589 F.3d 

445, 449 (D.C. Cir. 2009)).

Such claims are “confined to ‘extreme’ agency error where 

the agency has ‘stepped so plainly beyond the bounds of [its 

statutory authority], or acted so clearly in defiance of it, as 

to warrant the immediate intervention of an equity court.’” Id. 

at 764 (quoting Griffith v. Fed. Labor Relations Auth., 842 F.2d

487, 493 (D.C. Cir. 1988)). Only error that is “patently a 

misconstruction of the Act,” that “disregard[s] a specific and 

unambiguous statutory directive,” or that “violate[s] some 

specific command of a statute” will support relief. Id. “[T]he 

Supreme Court and [District of Columbia Circuit (“D.C. 

Circuit”)] have long required in ultra vires cases that the 
15

agency action go beyond mere legal or factual error and amount 

to a clear departure by the agency from its statutory mandate or 

be blatantly lawless agency action.” Id. (cleaned up) (citation 

omitted).

III. Analysis

A. Plaintiffs Have Standing

To establish standing, “a plaintiff must show (1) an 

‘injury in fact,’ (2) a sufficient ‘causal connection between 

the injury and the conduct complained of,’ and (3) a 

‘likel[ihood]’ that the injury ‘will be redressed by a favorable 

decision.’” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 134 

(2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 

560-61 (1992)). “The party invoking federal jurisdiction bears 

the burden of establishing these elements.” Lujan, 504 U.S. at 

561 (citations omitted). “Since they are not mere pleading 

requirements but rather an indispensable part of the plaintiff’s 

case, each element must be supported in the same way as any 

other matter on which the plaintiff bears the burden of proof, 

i.e., with the manner and degree of evidence required at the 

successive stages of the litigation.” Id. “Now, on summary 

judgment, the plaintiffs must prove injury in fact with 

‘specific facts’ in the record.” Humane Soc’y of the U.S. v. 

Perdue, 935 F.3d 598, 602 (D.C. Cir. 2019) (quoting Lujan, 504 

U.S. at 561).
16

Defendants contend that Plaintiffs lack standing for three 

reasons. First, Defendants argue that “Plaintiffs cannot 

establish that the alleged USPS policy changes at issue have 

caused any material mail delays.” Defs.’ Reply, ECF No. 74 at 

10. They contend that “the lack of a causal relationship is 

shown by the numerous injunctions that have been issued against 

the Postal Service in this and related cases.” Defs.’ Mot., ECF 

No. 66-1 at 23. Further, Defendants argue that any mail delays 

could have been caused by several unrelated issues, such as the 

COVID-19 pandemic, wildfires, and inclement weather. Id. at 25.

Plaintiffs, however, have provided evidence establishing 

that the implementation of the Postal Policy Changes, and 

specifically the changes to and impacts on the USPS 

transportation schedule, in the summer of 2020 were a de facto 

cause of the decline in on-time delivery rates. See Dep’t of 

Commerce v. New York, 139 S. Ct. 2551, 2566 (2019) (“Article III 

‘requires no more than de facto causality . . . .” (quoting

Block v. Meese, 793 F.2d 1303, 1309 (D.C. Cir. 1986)); see also 

USPS Office of Inspector General, Operational Changes to Mail 

Delivery (October 19, 2020), ECF No. 63-1 at 5 (“The Postal 

Service’s mail service performance significantly dropped 

beginning in July 2020, directly corresponding to implementation 

of the operational changes and initiatives.”). Defendants 

themselves have stated that the initial drop in service scores 
17

in late July 2020 was connected to USPS’s efforts to mitigate 

late and extra trips nationwide. See, e.g., Pls.’ Ex. 43, July 

10, 2020 Mandatory Stand-up Talk, ECF No. 59-43 at 2 (stating 

that because “late trips are no longer authorized or accepted” 

and “[e]xtra trips are no longer authorized or accepted,” there 

would be “mail left behind or mail on the workroom floor or 

docks (in P&DCs), which is not typical”); Pls.’ Ex. 52, Aug. 13, 

2020 Message from the Postmaster General, ECF No. 59-52 at 2-3 

(noting that USPS had “reduced extra trips by 71 percent” and 

that “this transformative initiative has had unintended 

consequences that impacted our overall service levels”); Defs.’ 

Ex. 13, Transcript of Senate Homeland Security and Governmental 

Affairs Committee Hearing (Aug. 21, 2020), ECF No. 66-17 

(explaining that delays in mail delivery were due to the 

mitigation of extra trips, the COVID-19 pandemic, and employee 

availability, and that USPS “all feel . . . bad about what the . 

. . dip in our service level has been”). Indeed, after the 

changes were implemented, the record shows that service scores 

precipitously declined in late July and had not fully rebounded 

by October 2020. See, e.g., Grimmer Suppl. Decl., ECF No. 59-23.

And though Defendants argue that “the historical evidence 

demonstrates that these USPS policy changes cannot be causing 

the mail delays,” Defs.’ Reply, ECF No. 74 at 10, the Court 

disagrees. Though mail delays continued after multiple courts, 
18

including this Court, enjoined the alleged policy changes, as 

Plaintiffs point out, the record also demonstrates confusion 

following USPS’s conflicting messaging regarding whether late 

and extra trips were authorized. See USPS Office of Inspector 

General, Operational Changes to Mail Delivery (October 19, 

2020), ECF No. 63-1 at 4 (concluding that the USPS initiative to 

“[e]liminat[e] . . . late and extra trips to transport mail,” 

among other initiatives, was “implemented quickly and [was] 

communicated primarily orally, which resulted in confusion and 

inconsistent application across the country”); see also Jones, 

488 F. Supp. 3d at 122 (noting, in granting plaintiffs’ 

preliminary injunction, that “there is sufficient evidence 

suggesting that . . . the rollback of policies has not been 

fully implemented or adequately communicated throughout the 

entire Postal Service organization, which is tiered in multiple 

national, regional, and local levels”). For example, though 

Defendants claim that “USPS never prohibited or set a firm limit 

on late and extra trips” at the July 10, 2020 teleconference 

with USPS Area Vice Presidents, Defs.’ Mot., ECF No. 66-1 at 17, 

the message that trickled down to several Postal Service 

employees in the aftermath of that presentation was that all 

late and extra trips were unauthorized. Among other things, at 

least one Area Vice President distributed a “Mandatory Stand-Up 

Talk” directing that late trips and extra trips “are no longer 
19

authorized and accepted,” Pls.’ Ex. 41, ECF No. 59-41, and 

others contacted USPS officials to get clarification on whether 

late and extra trips were banned, see Cintron Suppl. Decl., ECF 

No. 39-1. Likewise, though Defendants describe the Cintron 

Guidelines as “simply identify[ing] when late and extra trips 

may improve overall efficiency,” Defs.’ Mot., ECF No. 66-1 at 

24, at the same time, Mr. Cintron also stated that the “focus is 

to eliminate unplanned extra transportation,” “[d]eviations to 

the extent possible should be utilized to eliminate extras,” and 

“[t]rips must depart on time,” Email Re: Cintron Guidelines, Ex. 

45, ECF No. 59-45 at 2. The Cintron Guidelines were not 

explicitly rescinded until October 27, 2020. See Min. Order 

(Oct. 27, 2020), NAACP v. USPS, No. 20-cv-2295 (D.D.C. 2020) 

(EGS). Furthermore, the Court does not disagree with Defendants 

that USPS service scores could have been negatively impacted by 

multiple sources. However, the possibility that other events may 

have also contributed to any delays in mail delivery does not 

suggest that the Postal Policy Changes had no impact. 

Traceability “does not require that the [challenged action] be 

the most immediate cause, or even a proximate cause, of the 

plaintiffs’ injuries.” Attias v. Carefirst, Inc., 865 F.3d 620, 

629 (D.C. Cir. 2017); see also Massachusetts v. EPA, 549 U.S. 

497, 523 (2007) (finding plaintiff had standing where EPA’s 

refusal to regulate manmade greenhouse gas emissions 
20

“contribute[d]” to injuries). The Court therefore concludes that 

Plaintiffs’ injuries are fairly traceable to the Postal Policy 

Changes.

Second, Defendants argue that, “because Plaintiffs cannot 

show that these policy changes are causing the current delays, 

they also cannot show that an injunction against these policy 

changes will redress the delays.” Defs.’ Reply, ECF No. 74 at 

10. However, as described above, the Plaintiffs have established 

that the Postal Policy Changes are fairly traceable to the 

delays in mail delivery. Therefore, a decision in favor of 

Plaintiffs would redress their alleged injuries.

Third, Defendants argue that, “even if Plaintiffs could 

establish causation or redressability, they cannot establish 

that the alleged USPS policy changes will cause material mail 

delays that will inflict any injury upon Plaintiffs in 

particular.” Defs.’ Reply, ECF No. 74 at 11. Though Defendants 

do not provide any clarification on what would constitute a 

“material” mail delay or offer any case law supporting their 

contention, the Court concludes that the record evidence 

demonstrating a significant decline in service scores in 

Plaintiffs’ jurisdictions beginning in July 2020, as well as 

testimony that mail delays were indeed causing issues with 

voting procedures in the relevant jurisdictions, suffice. See 

Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2565 (2019) 
21

(“Several state respondents here have shown that if noncitizen 

households are undercounted by as little as 2% . . . they will 

lose out on federal funds that are distributed on the basis of 

state population. That is a sufficiently concrete and imminent 

injury to satisfy Article III, and there is no dispute that a 

ruling in favor of respondents would redress that harm.”). 

Moreover, Plaintiffs have provided evidence that mail delays 

impeded their ability to combat the spread COVID-19, impeded

their ability to provide safe alternatives to in-person voting, 

imposed “direct financial costs to state and local agencies,” 

and imposed “administrative burdens . . . on state and local 

agencies.” See Adinaro Decl., ECF No. 59-1 ¶ 9; Banks Decl., ECF 

No. 59-2 ¶¶ 7–9; Kellner Decl., ECF No. 59-13 ¶¶ 11, 16–17, 19; 

Ku Decl., ECF No. 59-14 ¶¶ 8-10, 13; Newton Decl., ECF No. ECF 

No. 59-16 ¶¶ 13–16; Roye Decl., ECF No. 59-18 ¶¶ 5, 11–13; Shah 

Decl., ECF No. 59-19 ¶¶ 3, 5-6, 10; Roye Suppl. Decl., ECF No. 

59-24 ¶¶ 13, 18-20. And though Defendants claim that these 

injuries were “self-inflicted” and therefore “insufficient to 

confer standing,” Defs.’ Mot., ECF No. 66-1 at 26, Plaintiffs 

here are not attempting to “manufacture standing merely by 

inflicting harm on themselves,” Clapper v. Amnesty Int’l USA, 

568 U.S. 398, 416 (2013); see also District of Columbia v. U.S. 

Dep’t of Agric., 444 F. Supp. 3d 1, 35 (D.D.C. 2020) (“[S]elfinflicted generally means curable by the moving party without an 
22

injunction.”). Rather, Plaintiffs suffered injuries in response 

to the effects of the significant USPS changes; in other words, 

“Plaintiffs could not otherwise avoid these injuries absent the 

relief sought through this litigation,” Pls.’ Opp’n, ECF No. 71 

at 17.

Finally, this Court has also already rejected Defendants’ 

argument that States cannot bring parens patriae claims against 

the federal government. See New York, 490 F. Supp. 3d at 244. 

The evidence before the Court demonstrates that Plaintiffs’

efforts to mitigate the spread of COVID-19 are aimed at 

protecting the public health of their respective jurisdictions 

as a whole. See Banks Decl., ECF No. 59-2 ¶¶ 7–9; Newton Decl., 

ECF No. ECF No. 59-16 ¶¶ 13–16; Roye Decl., ECF No. 59-18 ¶¶ 5, 

11–13; Roye Suppl. Decl., ECF No. 59-24 ¶¶ 13, 18-20; Ku Decl., 

ECF No. 59-14 ¶¶ 8-10, 13; Shah Decl., ECF No. 59-19 ¶¶ 3, 5-6, 

10; Adinaro Decl., ECF No. 59-1 ¶ 9; Kellner Decl., ECF No. 59-

13 ¶¶ 11, 16–17, 19. Impeding these mitigation efforts results 

in harm to Plaintiffs as well as the residents of the states. 

See Air All. Houston v. EPA, 906 F.3d 1049, 1059-60 (D.C. Cir. 

2018) (holding that State petitioners had “demonstrated their 

independent proprietary interests in avoiding chemical releases 

in their territory sufficient to support standing”); cf. New 

York v. U.S. Dep’t of Homeland Sec., 475 F. Supp. 3d 208, 226–27 

(S.D.N.Y. 2020) (finding that the State plaintiffs adequately 
23

demonstrated irreparable harm where the governmental “Plaintiffs 

provide[d] ample evidence that the [challenged conduct] deters 

immigrants from seeking testing and treatment for COVID-19, 

which in turn impedes public efforts in the Governmental 

Plaintiffs jurisdictions to stem the spread of the disease”), 

stayed on other grounds, No. 20-2537, 974 F.3d 210, (2d Cir. 

Sept. 11, 2020).

In view of the above, the Court concludes that Plaintiffs 

have standing.

B. 39 U.S.C. § 3661(b)

Plaintiffs first argue that the Court should grant them 

summary judgment on their claim that Defendants violated 39 

U.S.C. § 3661(b) by failing to ask the PRC for an advisory 

opinion prior to implementing the Postal Policy Changes. See 

Pls.’ Mot., ECF No. 60 at 27. Section 3661(b) provides that 

“[w]hen the Postal Service determines that there should be a 

change in the nature of postal services which will generally 

affect service on a nationwide or substantially nationwide 

basis, it shall submit a proposal, within a reasonable time 

prior to the effective date of such proposal,” to the PRC 

“requesting an advisory opinion on the change.” 

For the reasons discussed below, the Court grants 

Plaintiffs’ motion for summary judgment on this claim.
24

1. The Court Has Subject-Matter Jurisdiction Over 

Plaintiffs’ Section 3661 Claim

Defendants argue that this Court lacks subject-matter 

jurisdiction over Plaintiffs’ Section 3661 claim because 

complaints regarding Section 3661 must first be lodged with the 

PRC, with any appeals directed to the United States Court of 

Appeals for the D.C. Circuit. See Defs.’ Mot., ECF No. 66-1 at 

27. The Court disagrees.

Pursuant to 39 U.S.C. § 409(a), “[e]xcept as otherwise 

provided in this title, the United States district courts shall 

have original but not exclusive jurisdiction over all actions 

brought by or against the Postal Service.” 39 U.S.C. § 409(a); 

see also 28 U.S.C. § 1339 (“The district courts shall have 

original jurisdiction of any civil action arising under any Act 

of Congress relating to the postal service.”). As is relevant 

here, Section 3661, entitled “Postal services,” provides:

(a) The Postal Service shall develop and 

promote adequate and efficient postal 

services. 

(b) When the Postal Service determines that 

there should be a change in the nature of 

postal services which will generally affect 

service on a nationwide or substantially 

nationwide basis, it shall submit a 

proposal, within a reasonable time prior to 

the effective date of such proposal, to the 

Postal Regulatory Commission requesting an 

advisory opinion on the change. 

(c) The Commission shall not issue its 

opinion on any proposal until an opportunity 
25

for hearing on the record under sections 556 

and 557 of title 5 has been accorded to the 

Postal Service, users of the mail, and an 

officer of the Commission who shall be 

required to represent the interests of the 

general public. The opinion shall be in 

writing and shall include a certification by 

each Commissioner agreeing with the opinion 

that in his judgment the opinion conforms to 

the policies established under this title.

Next, Section 3662, entitled “Rate and service complaints,” 

provides that “[a]ny interested person . . . who believe[s] the 

Postal Service is not operating in conformance with the 

requirements of a provision of . . . this chapter (or 

regulations promulgated under any of these provisions) may lodge 

a complaint with the Postal Regulatory Commission.” If such a 

complaint is lodged with the PRC, Section 3662(b) requires that 

the PRC respond within 90 days by either “begin[ning] 

proceedings” or “issu[ing] an order dismissing the complaint.” 

39 U.S.C. § 3662(b). Section 3663 provides that a petition for 

review may be filed with the D.C. Circuit by any “adversely 

affected or aggrieved by a final order or decision” of the PRC.

39 U.S.C. § 3663.

“Whether a statute is intended to preclude initial judicial 

review is determined by the statute’s language, structure, and 

purpose, its legislative history, and whether the claims can be 

afforded meaningful review.” Thunder Basin Coal Co. v. Reich, 

510 U.S. 200, 207 (1994) (internal citation omitted). Here, 
26

Section 3662’s use of the word “may” in describing the right to 

file a complaint with the PRC suggests that the avenue for PRC 

review of certain claims is permissive. See Bennett v. Panama 

Canal Co., 475 F.2d 1280, 1282 (D.C. Cir. 1973) (“Ordinarily 

‘may’ is a permissive not a mandatory term.”). Indeed, the 

statute consistently uses the word “may” when setting forth the 

procedure for filing complaints and for seeking appellate review 

of the PRC’s determination (or failure to make a determination):

any interested person “may” lodge a complaint with the PRC, and 

if the interested person is unsatisfied with the response or 

does not receive a timely response, they “may” file a petition 

with the D.C. Circuit. 39 U.S.C. §§ 3662(a), 3663; see also id.

§ 3662(a) (stating the PRC “may” prescribe the “form and manner” 

of complaints); id. § 3662(d) (“[T]he Postal Regulatory 

Commission may order, based on the nature, circumstances, 

extent, and seriousness of the noncompliance, a fine (in the 

amount specified by the Commission in its order) for each 

incidence of noncompliance.” (emphasis added)). Moreover, the 

use of the permissive “may” coupled with the use of the 

mandatory “shall” elsewhere in the statute further suggests that 

Sections 3662(a) and 3663 were not intended to be the exclusive 

avenue for bringing a procedural challenge to the USPS’s failure 

to comply with Section 3661. See Bennett, 475 F.2d at 1282

(“[T]he permissive interpretation is conclusively proven to be 
27

correct [together with the particular legislative history] by 

the fact that when in the same statute Congress intended a 

mandatory direction it used the auxiliary ‘shall’ not ‘may’-a 

contrast which is generally significant . . . .”); see, e.g., 39 

U.S.C. § 3662(b) (stating that the PRC “shall” respond to 

complaints within 90 days). This interpretation is strengthened 

because the statute also expressly provides that this Court has 

original jurisdiction “over all actions brought by or against 

the Postal Service” unless “otherwise provided in [title 39].” 

39 U.S.C. § 409(a).

Defendants argue, however, that “[g]enerally, when Congress 

creates procedures designed to permit agency expertise to be 

brought to bear on particular problems, those procedures are to 

be exclusive.” Defs.’ Mot., ECF No. 66-1 at 28 (quoting Free 

Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 

589 (2010)). According to Defendants, “numerous courts of 

appeals have held that 39 U.S.C. §§ 3662 through 3664 constitute 

the exclusive jurisdictional remedy for complaints about postal 

services that fall within the statutory provisions identified in 

[S]ection 3662, which includes a claim that the Postal Service 

is not complying with [S]ection 3661.” Defs.’ Mot., ECF No. 66-1 

at 27. 

But, as stated above, the text of the statute itself does 

not indicate that Congress intended the PRA to be the exclusive 
28

avenue for bringing complaints of alleged ultra vires action. 

See Kaufman v. Nielsen, 896 F.3d 475, 485 (D.C. Cir. 2018) 

(presuming an undefined term “carries its ordinary meaning at 

the time the provision was enacted”); cf. Am. Postal Workers 

Union, AFL-CIO v. USPS, No. 06-cv-726 (CKK), 2007 WL 2007578, at 

*7 (D.D.C. July 6, 2007) (noting that plaintiff’s Section 

3661(b) claim that USPS failed to ask for an advisory opinion 

from the PRC “appears to be properly brought before this Court 

pursuant to 39 U.S.C. § 409”). The statute’s legislative history 

also does not suggest such a reading. Rather, in the discussion 

of the section of the PRA that established the “procedures for 

changes in postal service,” the House Committee Report states 

the “[t]he postal service is—first, last, and always—a public 

service” and that the PRA “require[s] [Postal Services 

management] to seek out the needs and desires of its present and 

potential customers—the American public.” H.R. Rep. No. 91-1104 

at 3668. The Committee Report describes provisions in the Act 

that “contain[] specific provisions requiring justification and 

review of changes in service.” Id.; see also Buchanan v. U.S. 

Postal Serv., 508 F.2d 259, 263 n.6 (5th Cir. 1975) (“[T]he 

procedures mandated by [Section] 3661 are sufficiently elaborate 

to amount to a significant impediment in the path of the 

decision-making process of the Postal Service.”).
29

Moreover, as this Court previously explained in its 

September 27, 2020 Memorandum Opinion, none of the case law 

Defendants cite as support for their arguments are binding on 

this Court. Neither did any of the cases “involve[] a claim that 

the USPS circumvented the process required when making a ‘change 

in the nature of postal services which will generally affect 

service on a nationwide or substantially nationwide basis.’” 

Pennsylvania v. DeJoy, 490 F. Supp. 3d 833, 861 (E.D. Penn. 

2020) (analyzing similar case law and finding that “[a]lthough 

these lawsuits were largely filed by pro se plaintiffs who were 

likely without the legal background to ground their claims in a 

specific statutory provision, the overwhelming majority of the 

claims at issue are precisely captured by section 3661(a), which 

requires the Postal Service to provide adequate and efficient 

service to the public.”). The Court finds this distinction to be 

significant, given that the “claims in the cases cited by 

Defendants” largely deal with “the adequacy and efficiency of 

service under [S]ection 3661(a),” which “can most properly be 

characterized as localized service-related disputes,”4 while 

4 See Foster v. Pitney Bowes Corp., 549 F. App’x 982, 986 (Fed. 

Cir. 2013) (alleged “fraud, conversion, unjust enrichment, and 

misappropriation of trade secrets”); LeMay v. U.S. Postal Serv., 

450 F.3d 797, 799-800 (8th Cir. 2006) (alleged breach of 

contract); Bovard v. U.S. Post Office, 47 F.3d 1178 (10th Cir. 

1995) (alleged discrimination, libel, and slander); Pep-Wku, LLC 

v. USPS, No. 20-cv-0009-GNS, 2020 WL 2090514, at *3 (W.D. Ky. 

Apr. 30, 2020) (alleged refusal to properly deliver mail);
30

“Plaintiffs’ core challenge is that the Postal Service acted 

outside of its authority in making changes without consulting 

first with the Commission in violation of section 3661(b),” 

which is “a wholly separate provision” that “focuses on the 

process to which the Postal Service must adhere.” Id. at 861-62.

Defendants argue, however, that despite the above, “[a] 

number of considerations militate against allowing courts to 

short-circuit an established administrative review process, 

including respect for Congress’s conferral of administrative 

autonomy; administrative expertise and discretion as to 

specialized, complex problems; development of an initial factual 

record; conservation of judicial resources; and avoidance of 

McClintock v. United States, No. 3:18-CV-01937-SB, 2020 WL 

1868264, at *2 (D. Or. Mar. 18, 2020) (alleged improper mail 

delivery); McDermott v. Potter, No. C09-0776RSL, 2009 WL 

2971585, at *3 (W.D. Wash. Sept. 11, 2009) (Freedom of 

Information Act, the Employee Retirement Income Security Act of 

1974, and the Postal Accountability and Enforcement Act of 2006 

claims relating to closure of mail center and alleged job 

outsourcing); Rodriguez v. Hemit, No. C16-778 RAJ, 2018 WL 

3618260, at *2 (W.D. Wash. July 30, 2018) (alleged harassment); 

Striley v. U. S. Postal Serv., No. 16-CV-07233-HRL, 2017 WL 

513166, at *3 (N.D. Cal. Feb. 8, 2017) (alleged unlawful 

increase of the rates for post office box, crammed box full of 

advertising materials, and failed to deliver an article of 

mail); Murphy v. U.S. Postal Serv., No. C 14-02156 SI, 2014 WL 

4437731, at *3 (N.D. Cal. Sept. 9, 2014) (alleged improper 

denial of services; Powell v. U.S. Postal Serv., No. CV 15-

12913-FDS, 2016 WL 409672, at *1–2 (D. Mass. Feb. 2, 2016)

(alleged refusal to deliver mail); see also Sears, Roebuck & Co. 

v. U.S. Postal Serv., 134 F. Supp. 3d 365, 382 (D.D.C. 2015) 

(alleged unreasonable interpretation of the Domestic Mail 

Manual).
31

conflicting litigation.” Defs.’ Mot., ECF No. 66-1 at 28-29

(citing Nader v. Volpe, 466 F.2d 261, 265-68 (D.C. Cir. 1972)). 

But while the concerns listed in Nader may generally apply in 

such situations, the D.C. Circuit in Nader also explained that 

“when Congress has specified a procedure for judicial review of 

administrative action, courts will not make nonstatutory 

remedies available without a showing of patent violation of 

agency authority or manifest infringement of substantial rights 

irremediable by the statutorily-prescribed method of review.” 

466 F.2d at 266. As Plaintiffs point out, their “ultra vires

claim involves the very type of ‘violation of agency authority’ 

contemplated by the court in Nader.” Pls.’ Reply, ECF No. 71 at 

22. 

Finally, the Court considers whether the claim may be 

reviewed because there is no other meaningful or adequate avenue 

for judicial review. See Thunder Basin Coal Co., 510 U.S. at 

307. District court jurisdiction may not be implicitly precluded 

based on consideration of the following factors: (1) if “a 

finding of preclusion could foreclose all meaningful judicial 

review”; (2) if the claim is “wholly collateral to a statute’s 

review provisions”; and (3) if the claims are “outside the 

agency’s expertise” to discern “whether the particular claims at 

issue fall outside an overarching congressional design.” Jarkesy 
32

v. SEC, 803 F.3d 9, 17 (D.D.C. 2015) (quoting Free Enter. Fund, 

561 U.S. at 489-90).

The Court previously held in its September 27, 2020 

Memorandum Opinion that precluding district court jurisdiction 

here would deny Plaintiffs meaningful review because: (1) 

“Plaintiffs have shown that the USPS implemented dramatic 

operational changes that have resulted in delayed mail that 

‘have negatively affected and will continue to negatively affect 

Plaintiffs’ ability not only to provide necessary services to 

residents in need and administer their own laws and regulations, 

but also to protect public health by providing safe and 

effective means to vote by mail in the upcoming general 

election,’” 490 F. Supp. 3d at 239-40 (citing Berkley v. 

Mountain Valley Pipeline, LLC, 896 F.3d 624, 631 (4th Cir. 

2018); Kreschollek v. S. Stevedoring Co., 78 F.3d 868, 875 (3d 

Cir. 1996)); (2) “the relief Plaintiffs seek cannot be 

meaningfully redressed through filing a Section 3662 complaint,” 

id. at 240; and (3) “Plaintiffs’ procedural claim does not 

require the “agency expertise” the statutory procedures 

contemplate,” id.

Defendants now contend that “even if Plaintiffs could have 

established these elements when they moved for a preliminary 

injunction, they certainly cannot do so now” because “any 

alleged election-related injuries will be moot at or immediately 
33

after the time the Court issues a decision,” and “Plaintiffs 

identify no reason why the PRC could not provide meaningful 

relief as to any non-election injuries that Plaintiffs allege 

are ongoing.” Defs.’ Mot., ECF No. 66-1 at 32. However, the 

Court’s conclusion in its September 27, 2020 Memorandum Opinion 

was not limited to election-related injuries—the Court also 

noted that the Postal Policy Changes negatively affected and 

would continue to be negatively affect Plaintiffs’ ability to 

provide necessary services to residents in need and administer 

their own laws and regulations. 490 F. Supp. 3d at 239-40. Thus, 

the Court disagrees that Plaintiffs’ injuries are moot.

In view of the above, the Court concludes it has subjectmatter jurisdiction over Plaintiffs’ claim. See Buchanan v. 

USPS, 375 F. Supp. 1014, 1017 (N.D. Ala. 1974), aff’d in part, 

vacated in part, 508 F.2d 259 (5th Cir. 1975); Washington v. 

Trump, 487 F. Supp. 3d 976, 981 n.1 (E.D. Wash. 2020) (finding 

it likely that “39 U.S.C. § 3662 does not limit this Court’s 

jurisdiction” because (1) “[b]y its terms, § 3662 is 

discretionary, not mandatory”; (2) “Section 3662 does not divest 

district courts of the broad jurisdiction granted to them under 

28 U.S.C. § 1339 over ‘any civil action arising under any Act of 

Congress relating to the postal service,’ nor the grant of 

‘jurisdiction over all actions brought by or against the Postal 

Service’ in 39 U.S.C. § 409(a)”; and (3) “[Section] 3662 
34

encompasses claims that the Postal Service has failed to adhere 

to its rate and service standards or that those standards are 

inadequate,” which “is not the case here”).

2. Plaintiffs’ Section 3661 Claim Is Reviewable Pursuant 

to the Ultra Vires Doctrine

Defendants also argue that Plaintiffs’ Section 3661 claim 

is not subject to judicial review. Defs.’ Mot., ECF No. 66-1 at 

32. Defendants argue that (1) Section 3661 expressly precludes 

judicial review, and (2) Plaintiffs have not demonstrated that 

USPS is acting “in excess of its delegated powers and contrary 

to a specific prohibition.” Id. (quoting DCH Reg’l Med. Ctr. v. 

Azar, 925 F.3d 503, 509 (D.C. Cir. 2019)). 

“Even where Congress is understood generally to have 

precluded review, the Supreme Court has found an implicit but 

narrow exception, closely paralleling the historic origins of 

judicial review for agency actions in excess of jurisdiction,” 

Griffith v. FLRA, 842 F.2d 487, 492 (D.C. Cir. 1988), and, as 

the Court explained above, the right to file a complaint with 

the PRC is not exclusive. Moreover, Section 3661 is a “clear and 

specific statutory mandate” involving “positive statutory 

commands.” Nat’l Air Traffic Controllers Ass’n AFL-CIO v. Fed. 

Serv. Impasses Panel, 437 F.3d 1256, 1263 (D.C. Cir. 2006). 

Because the statutory provision “plainly delineates the outer 

limits of agency authority,” the claim is subject to review for 
35

ultra vires acts. Nat’l Ass’n of Postal Supervisors v. USPS, 26 

F.4th 960, 972 (D.C. Cir. 2022).

3. USPS Failed to Comply with Section 3661(b)

The scope of non-APA review includes, among other things, 

“a straightforward question of statutory interpretation.” Nat’l 

Ass’n, 602 F.2d at 432. In conducting this review, “[t]he 

judicial role is to determine the extent of the agency’s 

delegated authority and then determine whether the agency has 

acted within that authority. In this as in other settings, 

courts owe a measure of deference to the agency’s own 

construction of its organic statute, but the ultimate 

responsibility for determining the bounds of administrative 

discretion is judicial.” Id. at 432-33 (internal citations 

omitted).

Section 3661(b) provides that “[w]hen the Postal Service 

determines that there should be a change in the nature of postal 

services which will generally affect service on a nationwide or 

substantially nationwide basis, it shall submit a proposal, 

within a reasonable time prior to the effective date of such 

proposal, to the Postal Regulatory Commission requesting an 

advisory opinion on the change.” There is no dispute that the

USPS did not submit a proposal to the PRC prior to implementing 

the Postal Policy Changes at issue in this case. 
36

Persuasive authority has construed Section 3661(b) as 

follows:

The language of the statute . . . indicates 

that three factors must coexist before 3661 

applies. First, there must be a ‘change.’ This 

implies that a quantitative determination is 

necessary. There must be some meaningful 

impact on service. Minor alterations which 

have a minimal effect on the general class of 

postal users do not fall within 3661. Second, 

the change must be ‘in the nature of postal 

services.’ This involves a qualitative 

examination of the manner in which postal 

services available to the user will be 

altered. Third, the change must affect service 

‘on a nationwide or substantially nationwide 

basis.’ A broad geographical area must be 

involved. These three factors combine to 

demonstrate that Congress intended the 

safeguards of 3661 to apply only when changes 

of significance were contemplated.

Buchanan, 508 F.2d at 263.

The Court concludes that Defendants violated Section 

3661(b) by failing to submit a proposal to the PRC prior to 

implementing its changes.

First, the record demonstrates that there was a “change” 

that had a “meaningful impact on service.” Buchanan, 508 F.2d at 

263. As the Court explained in Section III.A, there was a 

meaningful drop in service performance immediately following the 

implementation of the Postal Policy Changes. In particular, the 

changes to and impacts on the USPS transportation schedule

contributed to the decline in on-time delivery rates in July 
37

2020. See Grimmer Suppl. Decl., ECF No. 59-23; Pls.’ Ex. 52, 

Aug. 13, 2020 Message from the Postmaster General, ECF No. 59-52 

at 2-3 (noting that USPS had “reduced extra trips by 71 percent” 

and that “this transformative initiative . . . impacted our 

overall service levels”); Defs.’ Ex. 13, Transcript of Senate 

Homeland Security and Governmental Affairs Committee Hearing 

(Aug. 21, 2020), ECF No. 66-17 (explaining that the “dip in our 

service level” was due to the mitigation of extra trips, the 

COVID-19 pandemic, and employee availability); USPS Office of 

Inspector General, Operational Changes to Mail Delivery (October 

19, 2020), ECF No. 63-1 at 5 (“The Postal Service’s mail service 

performance significantly dropped beginning in July 2020, 

directly corresponding to implementation of the operational 

changes and initiatives.”). For example, Defendants concede that 

“[t]he drop in on-time delivery during the week of August 8, 

2020 meant that approximately 85 million more deliveries were 

late that week than they would have been prior to the challenged 

changes.” Defs.’ Counter-Statement of Disputed Facts, ECF No. 

67-1 at 33. USPS has also acknowledged the connection between 

the decrease in service performance and its efforts to mitigate 

late and extra trips nationwide, and further data demonstrates 

that service scores had not fully rebounded by October 2020. 

See, e.g., Grimmer Suppl. Decl., ECF No. 59-23; Pls.’ Ex. 43, 

July 10, 2020 Mandatory Stand-up Talk, ECF No. 59-43 at 2 
38

(stating that because “late trips are no longer authorized or 

accepted” and “[e]xtra trips are no longer authorized or 

accepted,” there would be “mail left behind or mail on the 

workroom floor or docks (in P&DCs), which is not typical”). In 

addition, the pace of the removal of high-speed sorting machines 

was accelerated in 2020. In fiscal year 2020, USPS reduced 711 

high-speed sorting machines—600 of which were announced on June 

17, 2020—representing an approximately 14.7 percent reduction in 

the number of machines nationwide. See DeChambeau Decl., ECF No. 

30-2 ¶ 21; Pls.’ Ex. 37, ECF No. 59-37.

Defendants, however, argue that because it “never 

prohibited extra or late trips” and only developed “written 

guidance clarifying the circumstances under which late and extra 

trips were acceptable,” USPS did not initiate a “change” within 

the meaning of Section 3661. Defs.’ Mot., ECF No. 66-1. However, 

the evidence on this point is conflicting. Compare Pls.’ Ex. 41, 

ECF No. 59-41 (Area Vice President distributed a “Mandatory 

Stand-Up Talk” directing that late trips and extra trips “are no 

longer authorized and accepted”), and Cintron Suppl. Decl., ECF 

No. 39-1 (postal workers contacting USPS officials to get 

clarification on whether late and extra trips were banned), and 

Email Re: Cintron Guidelines, Ex. 45, ECF No. 59-45 at 2 (“focus 

is to eliminate unplanned extra transportation,” “[d]eviations 

to the extent possible should be utilized to eliminate extras,” 
39

and “[t]rips must depart on time”), with Defs.’ Mot., ECF No. 

66-1 at 24 (describing the Cintron Guidelines as “simply 

identify[ing] when late and extra trips may improve overall 

efficiency”). And even if the official policy was never to “ban” 

such trips, the “focus” was to eliminate them. See Pls.’ Ex. 45, 

ECF No. 59-45 (stating that the “focus is to eliminate unplanned 

extra transportation,” “[d]eviations to the extent possible 

should be utilized to eliminate extras,” and “[t]rips must 

depart on time”). In addition, though Defendants now take the 

position that their actions in June and July 2020 did not 

constitute “changes,” their position is not supported based on 

USPS’s own statements. See Email from Mr. DeJoy to All 

Employees, August 13, 2020, ECF No. 12-22 at 2 (“In order to 

transform . . . we must make a significant number of changes 

that will not be easy . . . .”); id. (“Unfortunately, this 

transformative initiative has had unintended consequences that 

impacted our overall service levels. However, recent changes are 

not the only contributing factors.”); id. at 3 (“I ask that you 

bear with me while we work through these changes to transform 

for the better . . . .”).

The Court is also unpersuaded by Defendants’ argument that 

a “change” only encompasses “new” policies, and as such the 

agency’s removal of sorting machines is not a change because it 

was part of a years-long process. See Defs.’ Mot., ECF No. 66-1 
40

at 35. Although the Postal Service may have been removing excess 

machines from its facilities since 2017, “the pace of removals 

was accelerated beginning in June 2020.” USPS Office of 

Inspector General, Operational Changes to Mail Delivery (October 

19, 2020), ECF No. 63-1 at 4; see also DeChambeau Decl., ECF No. 

30-2 ¶ 21 (noting rate of reductions of sorting machines).

Second, the changes were “in the nature of postal 

services,” 39 U.S.C. § 3661(b), because they qualitatively 

altered “the manner in which postal services [are] available to 

the user,” Buchanan, 508 F.2d at 263. As stated above, the 

record evidence shows that changes in transportation policies 

resulted in nationwide delays.

Third, the changes affected service “on a nationwide or 

substantially nationwide basis,” 39 U.S.C. § 3661(b), because 

“[a] broad geographical area [was] involved,” Buchanan, 508 F.2d 

at 263. As stated above, the record demonstrates that the 

changes resulted in delays on a nationwide basis.

Despite the above, Defendants argue that the PRC’s 

interpretations of Section 3661(b) are entitled to deference. 

Defs.’ Mot., ECF No. 66-1 at 34-35. According to Defendants, the 

PRC has interpreted the section to require USPS to submit a 

proposal only when an action or program “has as its goal, or 

will have as a reasonably foreseeable effect, an appreciable 

alteration in the accessibility of postal services to the public 
41

or in the type and quality of postal services offered to the 

public which is substantial and extends over a broad 

geographical area.” Id. at 34 (citations omitted). Put another 

way, USPS is required to seek an advisory opinion “only if the 

complainant can show (1) ‘that the Postal Service has already, 

or [plans] to implement, new service standards’ or (2) ‘that the 

Postal Service is knowingly and/or intentionally denigrating 

service.’” Id. (citations omitted). Defendants argue that they 

did not violate Section 3661(b) because they did not knowingly 

or intentionally denigrate service. Id. at 36-37. 

However, there is no evidence that Defendants analyzed the

impacts its changes would have on overall service standards 

prior to implementing multiple changes at the same time. See, 

e.g., USPS Office of Inspector General, Operational Changes to 

Mail Delivery (October 19, 2020), ECF No. 63-1 at 4 (“While the 

Postal Service estimated workhour savings for many of the 

initiatives, it did not complete a study or analysis of the 

impact the changes would make on mail service prior to 

implementation.”). Permitting USPS to avoid the requirements of 

Section 3661(b) because it refused to study the consequences of 

its changes prior to implementation would stand in conflict with 

the purpose of Section 3661(b). As the Court stated in its 

September 27, 2020 Memorandum Opinion, “Congress clearly 

intended Section 3661 to require an opportunity for public 
42

participation and for independent review before the USPS 

implements service changes that will have a broad effect,” and 

“[t]he broad scope of the Postal Policy Changes demonstrates on 

its face that it is precisely the kind of change that is to be 

the subject of the public-participation and independent review 

safeguards provided by Section 3661.” New York, 490 F. Supp. 3d 

at 243. 

The Court also is not persuaded that it was not 

“foreseeable” that the simultaneous implementation of multiple 

policy changes during the height of the pandemic would 

negatively impact service. See, e.g., Pls.’ Ex. 43, July 10, 

2020 Mandatory Stand-up Talk, ECF No. 59-43 at 2 (stating that 

because “late trips are no longer authorized or accepted” and 

“[e]xtra trips are no longer authorized or accepted,” there 

would be “mail left behind or mail on the workroom floor or 

docks (in P&DCs), which is not typical”); see also USPS Office 

of Inspector General, Operational Changes to Mail Delivery 

(October 19, 2020), ECF No. 63-1 at 4 (“These initiatives 

undertaken individually may not have been significant. However, 

launching all of these efforts at once, in addition to the 

changes instituted by the Postmaster General, had a significant 

impact on the Postal Service.”).

Finally, Defendants argue that Plaintiffs’ ultra vires

claim should fail because they have a “meaningful and adequate 
43

means of vindicating [their] statutory rights” by filing a 

complaint with the PRC. Defs.’ Mot., ECF No. 66-1 at 38-39. 

However, because of the nature of Plaintiffs’ claims and because 

of the impending general election at the time Plaintiffs filed 

suit, forcing Plaintiffs to raise their claims administratively 

would not have afforded them meaningful vindication of their 

right to notice and opportunity to participate as required under 

Section 3661(b) in a timely manner. See New York, 490 F. Supp. 

3d at 243.

C. 39 U.S.C. §§ 101 and 403

Plaintiffs next argue that the implementation of certain

Postal Policy Changes constituted ultra vires action in 

violation of 39 U.S.C. §§ 101 and 403. For the reasons below, 

the Court disagrees.

1. Sections 101 and 403 Claims Are Reviewable Pursuant to 

the Ultra Vires Doctrine

Defendants first argue that Plaintiffs’ 39 U.S.C. §§ 101 

and 403 claims are not subject to judicial review under the 

ultra vires doctrine. The parties do not contest that there is 

no express statutory preclusion of all judicial review and that

there is no alternative procedure for review of the statutory 

claim. Rather, Defendants contend that “[u]ltra vires review is 

not available where a statute leaves an agency with discretion 

in how to comply with broadly articulated aims or goals,” and 

here, the provisions in Sections 101 and 403 are “statements of 
44

broad policies that the Postal Service strives toward in 

exercising its ‘significant’ discretion that the PRA gives the 

Postal Service over its operations pertaining to the handling, 

collection, transportation, and delivery of mail.” Defs.’ Mot., 

ECF No., 66-1 at 40-41. 

Defendants’ arguments, however, rely on a district court 

case—Nat’l Ass’n of Postal Supervisors v. USPS, No. 19-2236, 

2020 WL 4039177 (D.D.C. July 17,2020)—that the D.C. Circuit has 

since reversed in Nat’l Ass’n of Postal Supervisors v. USPS

(“NAPS”), 26 F.4th 960 (D.C. Cir. 2022). In NAPS, the circuit 

court considered whether 39 U.S.C. §§ 101(c), 1003(a), and 1004 

were subject to judicial review. 26 F.4th at 970. These 

provisions—found in the same Act as those at issue in this case—

provided that the Postal Service “‘shall’ consult with 

recognized organizations, maintain ‘adequate and reasonable 

differentials in rates of pay’ between supervisors and clerks 

and carriers, and ‘achieve and maintain compensation for its 

officers and employees comparable to the rates and types of 

compensation paid in the private sector.’” Id. at 972 (quoting 

39 U.S.C. §§ 101(c), 1003(a), 1004(a), (b)). The court held that 

the provisions were subject to judicial review pursuant to the 

ultra vires doctrine because, among other things, they contained 

“explicit language stating what the Postal Service ‘shall’ do,” 

which was “undoubtedly mandatory” language. Id. at 971 (citing 
45

Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 172 

(2016)). Notably, in reaching its decision, the circuit court 

took no issue with discretionary language used in 39 U.S.C. § 

1004(a), which granted USPS the authority to decide whether the 

required pay differential was “adequate and reasonable.” Id. at 

971-72. The D.C. Circuit also explained that the mere use of the 

word “policy” in a statute “does not presumptively make a 

directive voluntary.” Id. at 971. Rather, in view of the 

“mandatory” language of the provisions at issue, Congress had 

“expressly removed certain policy choices” from USPS. Id.

In view of the NAPS decision, the Court rejects Defendants’ 

arguments that any statute that leaves an agency with discretion 

is not subject to judicial review, or that the directives 

contained in Sections 101 or 403 are unenforceable policy goals. 

See id. at 970 (“While a court ‘can defer to the exercise of 

administrative discretion on internal management matters, . . . 

[we] cannot abdicate [our] responsibility to insure compliance 

with congressional directives setting the limits on that 

discretion.’” (quoting Nat’l Ass’n of Postal Supervisors v. 

USPS, 602 F.2d 420, 432 (D.C. Cir. 1979))). Sections 101(a)-(b), 

(e), and 403(a)-(b) each incorporate either the mandatory term 

“shall” or the mandatory phrase “[i]t shall be the 

responsibility of” in requiring USPS to take certain actions. 

Compare Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 
46

523 U.S. 26, 35 (1998) (stating that “shall” is “mandatory” and 

“normally creates an obligation impervious to judicial 

discretion”), with United States v. Rodgers, 461 U.S. 677, 706 

(1983) (“The word ‘may,’ when used in a statute, usually implies 

some degree of discretion.”). In addition, despite the use of 

the term “policy” in Section 101, “Congress effectively mandated 

certain policies to be followed by the Postal Service, leaving 

no discretion for the agency to do otherwise.” NAPS, 26 F.4th 

971.

The Court therefore turns to Plaintiffs’ claims. 

2. The Postal Service Did Not Act Ultra Vires In 

Violation of Sections 101 and 403

In analyzing Plaintiffs’ Sections 101 and 403 claims, the 

Court is “mindful that ‘[r]eviewability and the scope of review 

are two separate questions.’” NAPS, 26 F.4th at 972 (quoting

Nat’l Ass’n, 602 F.2d at 432). While the Postal Service may have 

“broad discretion” in running its operations, “this does not 

mean that its decisions are entirely insulated from judicial 

surveillance.” Id. (citation omitted). “The judicial role is to 

determine the extent of the agency’s delegated authority and 

then determine whether the agency has acted within that 

authority.” Nat’l Ass’n, 602 F.2d at 432.

a. Section 101(a)

Section 101(a) of the Act provides that the USPS “shall 

provide prompt, reliable, and efficient services to patrons in 
47

all areas and shall render postal services to all communities.” 

39 U.S.C. § 101(a). Plaintiffs allege that because the Postal 

Policy Changes—specifically that Defendants “require[ed] manual 

sorting, remov[ed] sorting machines, and eliminat[ed] 

commonsense measures to alleviate backlogs”—caused “substantial 

delays in mail delivery,” implementation of these changes 

violated the text of the section or unreasonably interpreted its 

terms. Pls.’ Mot., ECF No. 60 at 39.

Plaintiffs have not shown that Defendants have “patently” 

misinterpreted the provision or “clear[ly] departed” from its 

mandate. See Fed. Express Corp., 39 F.4th at 762. As the D.C. 

Circuit has explained, “vague statutory provisions, such as one 

that requires an agency to use ‘appropriate data’ to calculate a 

payment amount, are not sufficiently clear and mandatory to 

warrant non-APA review.” NAPS, 26 F.4th at 971-72 (citing DCH 

Reg’l Med. Ctr. v. Azar, 925 F.3d 503, 509-10 (D.C. Cir. 2019);

see also Nyunt v. Broad. Bd. of Governors, 589 F.3d 445, 449

(D.C. Cir. 2009) (holding that a statutory provision requiring 

an agency to hire “suitably qualified” U.S. citizens was not 

subject to ultra vires review). Although the terms included in 

Section 101(a) may be more definite in nature than “appropriate” 

or “suitably,” the provision still “lack[s] discernible 

standards by which a court can identify a limit to agency 

authority.” NAPS, 26 F.4th at 971-72.
48

Significantly, the statute does not define “prompt, 

reliable, and efficient.” In the absence of statutory 

definitions, the Court “must presume that Congress intended to 

give the term[s] [their] ordinary meaning.” Aid Ass’n for 

Lutherans v. USPS, 321 F.3d 1166, 1176 (D.C. Cir. 2003). As 

defined by the Merriam-Webster dictionary, “prompt” means “being 

ready and quick to act as occasion demands” or “performed 

readily or immediately”; “reliable” means “suitable or fit to be 

relied on” or “giving the same result on successive trials”; and 

“efficient” means “capable of producing desired results with 

little or no waste (as of time or materials).” See Prompt 

Merriam-Webster Dictionary, https://www.merriamwebster.com/dictionary/prompt; Reliable, Merriam-Webster 

Dictionary, https://www.merriam-webster.com/dictionary/reliable; 

Efficient, Merriam-Webster Dictionary, https://www.merriamwebster.com/dictionary/efficient. While there are certainly 

potentially egregious actions USPS could take that would fall 

outside of these definitions, the terms are largely subjective 

and involve a question of degree. Moreover, the terms may at 

times conflict with each other—for example, one could imagine a 

situation in which the most “reliable” method of mail delivery 

is not the most “efficient” or “prompt” method—and are thus 

heavily dependent on how the agency decides to weigh its 

operational considerations. Ultimately, “it is for the Postal 
49

Service and the Postal Service alone to resolve those 

conflicts,” Nat’l Ass’n, 602 F.2d at 435, and a claim that “the 

agency reached the wrong result” when “validly exercising its 

judgment” is not appropriate under the ultra vires doctrine, 

Eagle Trust Fund v. USPS, 365 F. Supp. 3d 57, 67 (D.D.C. 2019) 

(KBJ). Even if the Court may agree with Plaintiffs that the 

Postal Policy Changes resulted in mail delays across the 

country, the Court cannot substitute its own judgment of what is 

prompt, reliable, and efficient for that of the Postal Service. 

See Nat’l Ass’n, 602 F.2d at 433, 435 (stating that courts 

“cannot through statutory construction create more precise 

standards and rights than Congress elected to create”).

Thus, because Plaintiffs have not shown that Defendants 

patently misconstrued Section 101(a) or violated its terms, 

Plaintiffs’ claim fails.

b. Section 101(b)

Plaintiffs’ Section 101(b) claim fails for similar reasons. 

Section 101(b) provides:

The Postal Service shall provide a maximum 

degree of effective and regular postal 

services to rural areas, communities, and 

small towns where post offices are not selfsustaining. No small post office shall be 

closed solely for operating at a deficit, it 

being the specific intent of the Congress that 

effective postal services be insured to 

residents of both urban and rural communities.
50

39 U.S.C. § 101(b). Plaintiffs argue that “[u]nexplained

reductions in service and removals of equipment, and the 

imposition of oddly technical roadblocks to efficient services 

not previously in place—all implemented at the same time—

necessarily are less that the ‘maximum degree of effective and 

regular postal services.’” Pls.’ Mot., ECF No. 60 at 39. 

As an initial matter, Plaintiffs do not include any 

allegations or evidence that the Postal Policy Changes 

negatively impacted “rural areas, communities, and small towns 

where post offices are not self-sustaining” specifically. See 

Pls.’ Mot., ECF No. 60 at 39; Pls.’ Reply, ECF No. 71 at 34-35. 

Because Section 101(b) refers to effective and regular postal 

services only with regard to those types of areas, Plaintiffs’ 

arguments lack any support.

In addition, though “maximum degree” may have a commonsense meaning, the terms “effective and regular” are not defined 

in the statute. Looking to the dictionary, Merriam-Webster 

defines “effective” as “producing a decided, decisive, or 

desired effect.” Effective, Merriam-Webster Dictionary, 

https://www.merriam-webster.com/dictionary/effective. “Regular” 

is defined as “constituted, conducted, scheduled, or done in 

conformity with established or prescribed usages, rules, or 

discipline” or “recurring, attending, or functioning at fixed, 

uniform, or normal intervals.” Regular, Merriam-Webster 
51

Dictionary, https://www.merriam-webster.com/dictionary/regular. 

Again, the definitions of these terms do not provide clear

limits on what the agency must provide to the “maximum degree,”

but rather place considerable discretion in USPS’s hands to 

determine its goals and schedules. Moreover, Congress recently 

amended Section 101(b) to insert the following language: 

The Postal Service shall maintain an 

integrated network for the delivery of marketdominant and competitive products (as defined 

in chapter 36 of this title). Delivery shall 

occur at least six days a week, except during 

weeks that include a Federal holiday, in 

emergency situations, such as natural 

disasters, or in geographic areas where the 

Postal Service has established a policy of 

delivering mail fewer than six days a week as 

of the date of enactment of the Postal Service 

Reform Act of 2022.

39 U.S.C. § 101(b). Reading the entire provision in context thus 

strongly suggests that “regular” and “effective” postal services 

refers to Congress’s explicit direction that mail delivery occur

six days a week in most circumstances. FDA v. Brown & Williamson 

Tobacco Corp., 529 U.S. 120, 133 (2000) (“It is a fundamental 

canon of statutory construction that the words of a statute must 

be read in their context and with a view to their place in the 

overall statutory scheme.” (internal quotation marks omitted)).

Here, there is no claim that the Postal Policy Changes resulted 

in mail deliveries occurring fewer than six days a week. 
52

Plaintiffs therefore have not demonstrated that the Postal 

Service acted ultra vires with respect to Section 101(b). 

c. Section 101(e)

Plaintiffs next challenge Defendants’ actions under Section 

101(e). This provision provides that: “In determining all 

policies for postal services, the Postal Service shall give the 

highest consideration to the requirement for the most 

expeditious collection, transportation, and delivery of 

important letter mail.” 39 U.S.C. § 101(e). Plaintiffs argue 

that “there is no indication the Postal Service gave any 

consideration, let alone highest consideration, to the 

expeditious delivery of important letter mail,” when the agency 

decided to remove of “hundreds of sorting machines,” prohibit or 

drastically curtail late and extra trips, and prevent postal 

workers “at nearly 400 facilities from sorting any mail in the 

morning before leaving to deliver the mail.” Pls.’ Mot., ECF No. 

60 at 38.

Section 101(e) requires that the Postal Service consider

“the requirement for the most expeditious . . . delivery of 

important letter mail.” Accordingly, the Court “can compel the 

Postal Service to consider” that factor. NAPS, 26 F.4th at 973. 

Because Congress did not define “expeditious” within the 

statutory scheme, the Court presumes that its ordinary meaning 

applies, which is “marked by or acting with prompt efficiency.” 
53

Expeditious, Merriam-Webster Dictionary, https://www.merriamwebster.com/dictionary/expeditious; see also Aid Ass’n for 

Lutherans, 321 F.3d at 1176. This definition includes two 

further terms not subject to precise definition—“prompt” and 

“efficiency”—and necessarily requires a balancing of speed 

versus resource management. Thus, though the Court may review 

the record for evidence of consideration, the Court “cannot 

substitute its own judgment of what is” expeditious “for that of 

the Postal Service.” NAPS, 26 F.4th at 973 (determining, with 

regard to provision that required USPS to “provide adequate and 

reasonable differentials in rates of pay,” that a court “can 

compel the Postal Service to consider and fulfill the 

differential requirement, but . . . cannot substitute its own 

judgment of what is adequate and reasonable for that of the 

Postal Service”). And contrary to Plaintiffs’ assertion, Section 

101(e) does not require the Postal Service to seek guidance from 

the PRC, nor does it require the agency to perform its analyses 

in any specific form or manner.

With regard to the removal of unnecessary processing 

machines, Defendants explained that between 2017 and April 2020, 

USPS created and ran a computer model “to determine the optimum 

number of machines required for efficient mail processing at 

facilities across the nation and monitored the reductions on an 

ongoing basis.” DeChambeau Decl., ECF No. 59-33 at 6. The 
54

reduction of the number of machines depended upon an “ongoing 

analysis of mail volume and mail processing needs nationwide.” 

Id. at 8. In May 2020, USPS concluded that based upon its data 

monitoring and analysis, it “needed fewer letter and flat 

sorting machines and more package machines and/or more workroom 

floor space for nonautomated package processing” so that the 

agency could “operate more efficiently.” Id. at 6-7. USPS 

explained that, in its estimation, “removing unnecessary 

machines frees up space for other package-processing machines, 

which may be staffed with employees who are no longer needed for 

running additional letter or flat mail sorting machines,” and 

the greater floor space “accommodate[s] [an] increased volume of 

packages.” Id. at 7; see also Barber Decl., ECF No. 66-9 at 3.

And with regard to the prohibition or reduction in late and 

extra trips, on June 16, 2020, the USPS Office of the Inspector 

General released a report analyzing whether the processing 

network was “operating at optimal efficiency and meeting service 

standards.” Ex. 14, ECF No. 70-2 at 4. The report noted that in 

fiscal year 2019 the Postal Service had spent $280 million in 

late and extra transportation, yet the agency “only met service 

performance targets for five . . . or 15 percent of the 33 mail 

products” that fiscal year. Id. at 5. In view of the decreases 

in “operational efficiency,” the Postal Service stated that two 

“best practices” to “increase efficiency” included: (1) front-
55

line managers implementing actions “to complete processing 

operations early and transport mail on a trip prior to the last 

scheduled transportation trip”; and (2) employees “took sorted 

packages to the dock, while the processing operations were still 

ongoing, in order to have as many mailpieces as possible on the 

last scheduled transportation trip rather than having them go 

later on extra trips.” Id. In addition, Robert Cintron testified 

that prior to July 2020, trainings and meetings were provided to 

“management about the need to adhere to transportation 

schedules.” Cintron Dep. Tr., ECF No. 66-35 at 20-21.

In view of the record evidence above and because the 

statute does not define the term “expeditious,” the Court cannot 

hold that USPS clearly acted outside of its statutory authority.

See Eagle Trust Fund, 365 F. Supp. 3d at 67.

d. Section 403(a)

Section 403(a) provides:

The Postal Service shall plan, develop, 

promote, and provide adequate and efficient 

postal services at fair and reasonable rates 

and fees. The Postal Service shall receive, 

transmit, and deliver throughout the United 

States, its territories and possessions, and, 

pursuant to arrangements entered into under 

sections 406 and 411 of this title, throughout 

the world, written and printed matter, 

parcels, and like materials and provide such 

other services incidental thereto as it finds 

appropriate to its functions and in the public 

interest. The Postal Service shall serve as 

nearly as practicable the entire population of 

the United States.
56

39 U.S.C. § 403(a). Plaintiffs argue that Defendants acted ultra 

vires by implementing inadequate and inefficient services. Pls. 

Mot., ECF No. 60 at 40. 

Plaintiffs first contend the Postal Policy Changes are 

inefficient because “[b]y removing sorting machines . . . and by 

restricting or banning policies that enabled faster processing 

and delivery of mail, the Postal Policy Changes both increase 

the amount of effort expended by postal workers and reduce the 

Postal Service’s output.” Pls.’ Mot., ECF No. 60 at 41. However, 

as explained above, USPS has the discretion to interpret the 

term “efficient,” and USPS reached the conclusion that the 

removal of machines and reduction of extra and late trips would 

create a more efficient system. See, e.g., DeChambeau Decl., 

ECF No. 59-33 at 6-8 (sorting machines); OIG Report, Ex. 14, ECF 

No. 70-2 at 4 (late and extra trips). Whether USPS made a 

reasonable judgment regarding efficiency is not an appropriate 

inquiry under ultra vires review. See Eagle Trust Fund, 365 F. 

Supp. 3d at 67. 

Plaintiffs also contend that the Postal Policy Changes 

undermined the adequacy of postal services by delaying mail, 

disrupting Plaintiffs’ plans to administer the 2020 general 

election, and threatening the timely delivery of election mail 

and public benefits mail. Pls.’ Mot., ECF No. 60 at 42-43.

Plaintiffs argue that “adequate” means, “at minimum, that which 
57

is necessary to provide the postal services envisioned by the 

PRA.” Id. at 41 (quoting Glob. Tel*Link v. FCC, 866 F.3d 397,

420-21 (D.C. Cir. 2017)). Even if the Court accepts Plaintiffs’ 

definition of “adequate,” however, the definition still does not 

establish clear limits on USPS’s delegated authority. Indeed, 

the D.C. Circuit in NAPS held that the word “adequate” is 

subject to the Postal Service’s interpretation and that courts 

“cannot substitute its own judgment of what is adequate . . . 

for that of the Postal Service.” 460 F.4th at 972-73. Though the 

circuit court was analyzing a different provision than the one 

at issue here, the same reasoning applies. 

e. Section 403(b)

Finally, Plaintiffs allege that USPS acted ultra vires in 

violation of Section 403(b). The provision states:

It shall be the responsibility of the Postal 

Service—

(1) to maintain an efficient system of 

collection, sorting, and delivery of the mail 

nationwide; 

(2) to provide types of mail service to meet 

the needs of different categories of mail and 

mail users; and 

(3) to establish and maintain postal 

facilities of such character and in such 

locations, that postal patrons throughout the 

Nation will, consistent with reasonable 

economies of postal operations, have ready 

access to essential postal services.

39 U.S.C. § 403(b).

Plaintiffs have failed to show that USPS has “plainly” 

stepped “beyond the bounds” of its statutory authority 
58

enumerated in Section 403(b). Griffith, 842 F.2d at 493

(citation omitted). Undefined terms and phrases such as 

“efficient,” “meet the needs of,” and “ready access to essential 

postal services” are not sufficiently specific or unambiguous as 

to be susceptible to ultra vires review. Id. (citation omitted). 

Because ultra vires claims are “confined to extreme agency 

error,” Fed. Express Corp., 39 F.4th at 764 (quoting Griffith, 

842 F.2d at 493), the Postal Service’s actions are not ultra 

vires.

D. The Postal Policy Changes Did Not Violate the Elections 

Clause

Next, Plaintiffs contend that “the Postal Policy Changes 

violate the Elections Clause of the United States Constitution 

because they impair—and were intended to impair—Plaintiffs’ 

administration of the elections process in their states.” Pls.’ 

Mot., ECF No. 60 at 44.5

The Elections Clause of the Constitution, Art. I, § 4, cl. 

1, provides that “[t]he Times, Places and Manner of holding 

Elections for Senators and Representatives, shall be prescribed 

in each State by the Legislature thereof; but the Congress may 

at any time by Law make or alter such Regulations.” U.S. Const., 

5 The Court finds that Plaintiffs’ claim is not moot, as 

Defendants’ actions in this case “fit comfortably within the 

established exception to mootness for disputes capable of 

repetition, yet evading review.” FEC v. Wisc. Right to Life, 

Inc., 551 U.S. 449, 450 (2007).
59

Art. I, § 4, cl. 1. “In practice, the Clause functions as ‘a 

default provision; it invests the States with responsibility for 

the mechanics of congressional elections, but only so far as 

Congress declines to pre-empt state legislative choices.’” 

Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 9 

(2013) (quoting Foster v. Love, 522 U.S. 67, 69 (1997)); see 

also Cook v. Gralike, 531 U.S. 510, 523 (2001) (“[T]he Elections 

Clause grants to the States ‘broad power’ to prescribe the 

procedural mechanisms for holding congressional 

elections.”(quoting Tashjian v. Republican Party of Conn., 479 

U.S. 208, 217 (1986))); U.S. Term Limits, Inc. v. Thornton, 514 

U.S. 779, 832 (1995) (“The Framers intended the Elections Clause 

to grant States authority to create procedural regulations . . . 

.”). 

The Postal Service, in implementing the Postal Policy 

Changes, has not violated the Elections Clause. As the Supreme 

Court has explained, the “function contemplated by [the 

Elections Clause] is that of making laws.” Smiley v. Holm, 285 

U.S. 355, 366 (1932). Though the implementation of the Postal 

Policy Changes contributed to the delay in mail deliveries 

nationwide, see generally Grimmer Suppl. Decl., ECF No. 59-23, 

which in turn risked a delay in the delivery of mail-in ballots 

during an election season, USPS’s actions do not amount to 

voting regulations that override the States’ existing 
60

regulations, nor do they alter the States’ existing regulations, 

see Foster, 522 U.S. at 69 (calling it “well settled” that 

Congress has the authority to “override state regulations by 

establishing uniform rules for federal elections” (internal 

quotation marks omitted) (citation omitted)). It is undisputed 

that Plaintiffs’ regulations remain intact. 

Neither do Plaintiffs cite to any case law supporting their 

position that the Elections Clause grants protection to State 

legislatures from federal policies that do not “make or alter” 

voting regulations. U.S. Const., Art. I, § 4, cl. 1; see Smiley, 

285 U.S. at 366, 368 (explaining that the Elections Clause 

“involves lawmaking in its essential features” and that 

“limitation[s]” to State legislatures are not “incongruous with 

the grant of legislative authority to regulate congressional 

elections”). The Court therefore declines to read the Elections 

Clause more expansively than either its language or precedent 

dictates. See Inter Tribal Council of Ariz., 570 U.S. at 8 

(stating that the Elections Clause has only “two functions”: 

granting the States the duty to “prescribe the time, place, and 

manner” of elections, and granting Congress the “power to alter 

those regulations or supplant them altogether”).

E. Scope of Relief

“In the declaratory judgment context, the normal principle 

that federal courts should adjudicate claims within their 
61

jurisdiction yields to considerations of practicality and wise 

judicial administration.” Wilton v. Seven Falls Co., 515 U.S. 

277, 288 (1995). “There are no dispositive factors a district 

court should consider in determining whether it should entertain 

an action brought under the Declaratory Judgment Act.” POM 

Wonderful LLC v. FTC, 894 F. Supp. 2d 40, 44 (D.D.C. 2012) 

(quoting Comm. on Judiciary v. Miers, 558 F. Supp. 2d 53, 95 

(D.D.C. 2008)) (internal quotation marks omitted). The D.C. 

Circuit has found the following to be useful considerations: (1) 

“whether [declaratory relief] would finally settle the 

controversy between the parties”; (2) “whether other remedies 

are available or other proceedings pending”; (3) “the 

convenience of the parties”; (4) “the equity of the conduct of 

the declaratory judgment plaintiff”; (5) “prevention of 

procedural fencing”; (6) “the state of the record”; (6) “the 

degree of adverseness between the parties”; and “the public 

importance of the question to be decided.” Id. (quoting Hanes 

Corp. v. Millard, 531 F.2d 585, 592 n.4 (D.C. Cir. 1976)); see 

also Glenn v. Thomas Fortune Fay, 222 F. Supp. 3d 31, 35 (D.D.C. 

2016) (“[D]eclaratory relief requires a determination of 1) an 

actual, substantial controversy, 2) involving an interested 

party, 3) that warrants the immediate issuance of a declaratory 

judgment.”). Moreover, “[i]n the D.C. Circuit, two criteria are 

ordinarily relied upon: 1) whether the judgment will serve a 
62

useful purpose in clarifying the legal relations at issue, or 2) 

whether the judgment will terminate and afford relief from the 

uncertainty, insecurity, and controversy giving rise to the 

proceeding.” Glenn, 222 F. Supp. 3d at 36.

“[A] plaintiff seeking a permanent injunction must satisfy 

a four-factor test before a court may grant such relief.” eBay 

Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). A plaintiff 

must demonstrate: “(1) that it has suffered an irreparable 

injury; (2) that remedies available at law, such as monetary 

damages, are inadequate to compensate for that injury; (3) that, 

considering the balance of hardships between the plaintiff and 

defendant, a remedy in equity is warranted; and (4) that the 

public interest would not be disserved by a permanent 

injunction.” Id. Where the federal government is the opposing 

party, the balance of equities and public interest factors 

merge. See Nken v. Holder, 556 U.S. 418, 435 (2009).6

Defendants do not contest that the Postal Policy Changes 

caused irreparable harm, that no other remedies are available at 

law, or that the balance of the equities and public interest 

weigh in favor of Plaintiffs. See Defs.’ Mot., ECF No. 66-1 at 

52-54. Defendants also do not contest that Plaintiffs meet the 

6 Plaintiffs do not seek injunctive or declaratory relief against 

the President, see Pls.’ Reply, ECF No. 71 at 42 n.20, and the 

Court grants relief against all Defendants other than the 

President.
63

test for granting declaratory relief. Id. Indeed, the evidence 

demonstrates that Plaintiffs suffered harm by impeding their 

ability to combat the spread COVID-19, impeding their ability to 

provide safe alternatives to in-person voting, imposing “direct 

financial costs to state and local agencies,” and imposing 

“administrative burdens . . . on state and local agencies.” See 

Banks Decl., ECF No. 59-2 ¶¶ 7–9; Newton Decl., ECF No. ECF No. 

59-16 ¶¶ 13–16; Roye Decl., ECF No. 59-18 ¶¶ 5, 11–13; Roye 

Suppl. Decl., ECF No. 59-24 ¶¶ 13, 18-20; Ku Decl., ECF No. 59-

14 ¶¶ 8-10, 13; Shah Decl., ECF No. 59-19 ¶¶ 3, 5-6, 10; Adinaro 

Decl., ECF No. 59-1 ¶ 9; Kellner Decl., ECF No. 59-13 ¶¶ 11, 16–

17, 19. In addition, “[i]t is clearly in the public interest to 

mitigate the spread of COVID-19, to ensure safe alternatives to 

in-person voting, and to require that the USPS comply with the 

law.” New York, 490 F. Supp. 3d at 245. Further, there is no 

dispute that declaratory relief would settle the issues before 

the parties and that there are no other remedies or proceedings 

pending. See Glenn, 222 F. Supp. 3d at 35 (“This inquiry should 

focus on whether the facts alleged, under all the circumstances, 

show that there is a substantial controversy, between parties 

having adverse legal interests, of sufficient immediacy and 

reality to warrant the issuance of a declaratory judgment.”

(internal quotation marks omitted)).
64

Instead, Defendants argue that the declaratory and 

injunctive relief Plaintiffs request is overly vague. However, 

the Court has the power to modify the terms of a proposed 

injunction, and it shall do so here. Although the simultaneous 

implementation of multiple policy changes in June and July 2020 

contributed to the decline in mail service and the overall 

confusion by postal workers, the record evidence demonstrates 

that changes to and impacts on the USPS transportation schedule 

regarding late and extra trips were the primary factor in

affecting service on a nationwide or substantially nationwide 

basis. See Pls.’ Statement of Facts, ECF No. 60-1 at 16 (“The 

decline in Service Scores has persisted even after the Postal 

Service has suspended all other new initiatives other than the 

policy limiting the number of Extra or Late Trips. Therefore, 

the observed declines in Service Scores are not attributable to 

other initiatives at the Postal Service.”); Aug. 13, 2020 

Message from the Postmaster General, Pls.’ Ex. 52, ECF No. 59-52 

at 2-3; Transcript of Senate Homeland Security and Governmental 

Affairs Committee Hearing (Aug. 21, 2020), Defs.’ Ex. 13, ECF 

No. 66-17; Grimmer Suppl. Decl., ECF No. 59-23. The Court shall 

therefore enjoin the Postal Service from prohibiting such trips 

in total or from curtailing such trips to the extent that 

nationwide service scores decline on average by more than 10 

percentage points for a period of at least two-weeks, without 
65

first seeking an advisory opinion from the PRC pursuant to 39 

U.S.C. § 3661(b). The Court also, in its discretion, grants 

declaratory relief to Plaintiffs because USPS’s steep reduction 

in late and extra trips in July 2020 violated Section 3661(b) 

when the agency failed to first seek an advisory opinion from 

the PRC. The Court declines Plaintiffs’ request to appoint an 

independent monitor in this case. See Fed. R. Civ. P. 

53(a)(1)(B).

IV. Conclusion

For the reasons stated above, the Court hereby orders that 

Plaintiffs’ motion for summary judgment, ECF No. 58, is granted 

in part and denied in part, and Defendants’ cross-motion for 

summary judgment, ECF No. 66, is granted in part and denied in 

part. The Order issued on September 30, 2022 accompanies this 

Memorandum Opinion.

SO ORDERED. 

Signed: Emmet G. Sullivan 

United States District Judge 

October 6, 2022