As of September 29, 2020, 5 Federal Courts Have Ruled Against the Postal Service

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Yves here. A welcome bit of good news on the Postal Service front.

By run75441. Originally published at Angry Bear

Prof. Steve Hutkins at Save the Post Office adds information on court rulings.

The Postal Service is now 0 and 5 in the eleven lawsuits filed against it as a result of the mail delays caused by the operational changes that went into effect in July. Yesterday two more orders were against the Postal Service.

In Pennsylvania v DeJoy, Judge Gerald McHugh of the Eastern District of Pennsylvania ruled that the Postal Service can’t restrict extra or late trips for mail delivery and can’t prohibit overtime. In Vote Forward v DeJoy, Judge Emmet Sullivan issued his second order against the Postal Service.

Here are the five orders that have been issued in federal courts banning the Postal Service from making the kinds of operational changes that caused delays over the summer:

  • Pennsylvania v DeJoyJudge Gerald A. McHugh, Pennsylvania Eastern District Court (Sept. 28, 2020)
  • Vote Forward v DeJoy, Judge Emmet G. Sullivan, District Of Columbia District Court (Sept. 28, 2020)
  • New York v USPS, Judge Emmet G. Sullivan, District of Columbia District Court (Sept. 27, 2020)
  • Jones v USPS, Judge Victor Marrero, New York Southern District Court (Sept. 25, 2020)
  • Washington v Trump, Judge Stanley A. Bastian, Washington Eastern District Court (Sept. 17, 2020)

As a result of these five preliminary injunctions, the Postal Service has had to walk back all the changes it made over the summer as well as making all sorts of commitments about what it will do to ensure timely delivery of mail ballots. That’s good news for voters and others who depend on the Postal Service for things like their medications.

These five rulings should mean something else as well. The Postmaster General and the Board of Governors have received the strongest of rebukes from four federal judges in five cases representing twenty-four states, several national organizations, and many individuals. This turn of events has to be unprecedented, and it has been a total embarrassment for the Postal Service’s leaders. It won’t happen, but they should be thinking about resigning.

Like Sullivan’s ruling in New York v Trump, McHugh’s order in Pennsylvania focuses on the Postal Service’s failure to present its plans for cutbacks to the Postal Regulatory Commission for an advisory opinion, which would have afforded the public an opportunity to review it and comment on it.

District Judge Gerald Austin McHugh: “Plaintiffs and the Postal Service agree that the Postal Service undertook a major new initiative following Louis DeJoy’s installation as Postmaster General. Both sides also agree that the Postal Service did not seek an advisory opinion and that no public hearing occurred before the Postal Service implemented these changes in July 2020. Against that background, Plaintiffs have produced compelling evidence from Defendants themselves, indicating that there has been a pronounced increase in mail delays across the country since the implementation of these changes. And the Postal Service insists that it is rolling back the changes and improving performance.

The Postal Service is a critical agency that preceded the birth of the nation itself, one of a few agencies that the Constitution explicitly authorized. U.S. Const. art. I, § 8.

Congress has described it as ‘a basic and fundamental service provided to the people by the Government of the United States. . . .’ 39 U.S.C. § 101(a). Its ability to fulfill its mission during a presidential election taking place in the midst of a public health crisis is vital. The record in this case strongly supports the conclusion that irreparable harm will result unless its ability to operate is assured. I will therefore grant injunctive relief.”

There are articles about McHugh’s ruling in the Washington Post, the Philadelphia Inquirer, the Philadelphia TribuneCNN, and Courthouse News.

Sullivan’s ruling in Vote Forward differs from his ruling in New York v Trump in significant ways. The most apparent is that the New York decision focused primarily on the Postal Service’s failure to request a PRC advisory opinion before implementing changes that had a nationwide impact. The Vote Forward order doesn’t even mention the advisory opinion issue. Instead it’s about voting rights (as was true with the Jones case).

Judge Sullivan states: “Here, the Court finds that the ‘character and magnitude’ of Plaintiffs’ asserted injury to the right to vote is significant. Plaintiffs have provided sufficient evidence suggesting that Defendants’ policy has caused and will continue to cause inconsistency and delays in the delivery of mail across the United States, placing at particular risk voters residing in one of the 28 states that require mail ballots to be received, not just post-marked, by Election Day.

Furthermore, while content neutral, Defendants’ policy changes place an especially severe burden on those who have no other reasonable choice than to vote by mail, such as those who may be at a high risk of developing a severe case of COVID-19 should they become exposed to the virus at the polling place, and those who are not physically able to travel to the polls due to disability.

The Court respects that the federal government, and USPS in particular, have legitimate interests in maintaining efficient programs and in saving money; however, these interests do not justify the resulting harms Plaintiffs face. As stated above, the burden the USPS policy changes place on Plaintiffs’ constitutional right to vote and have their vote counted is significant. At risk is disenfranchisement in the November election of potentially hundreds of thousands of individuals.”

There have been developments in some of the other cases as well. In Montana Governor Bullock’s case, an amicus brief has been filed by twenty-four members of Congress. It focuses on the Postal Service failure to request an advisory opinion when planning changes with nationwide impacts.

In Jones, attorneys for the government have requested an extension as the parties continue to work out the wording of the passage on overtime in the Supplemental Guidance Document.

In New York, an amicus brief has been filed by Brady and Team Enough, two gun violence prevention organizations.

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17 comments

  1. JacobiteInTraining

    Do we have any USPS peeps in the crew?

    I would be interested to hear about what they know about the feasibility of re-connecting those automated mail sorting machines.

    I keep seeing comments elsewhere stating that they were ‘torn out’ and ‘surplused’ (left out back by the loading dock in the rain, for example) in ways that meant they were mostly broken, and not fixable in the short term…i.e., in time.

    Reply
    1. Dan

      No specific experience with these machines, but in general – installations can be expensive. More so, if the removals where not done with re-installation in mind. If scrapping the units was the objective at the time of removal, you can assume that the costs of re-installing will essentially make the machines a total loss – so expect that argument.

      Reply
    2. Anonymous For This

      As someone in a USPS-adjacent field, I hate to say it but those machines were probably always going away. All current leadership did was speed up the process. The USPS has been closing and consolidating regional sorting facilities (ASFs/SCFs/NDCs) for a decade at least; in comparison tearing out some machines is kind of small potatoes. Iirc, the machines were spread out over 5 -10 districts and we’re capable of sorting 50 million pieces of mail (although I don’t ever remember reading in what time frame). That sounds like a lot and on a very local level or short span of time it would be. On the other hand, 50 million pieces of mail is about a week’s worth of output for my current employer. Even with the drastic fall in mail over the last 20 years, there’s still an ocean of it out there. And as an article Lambert posted a few weeks ago mentioned, it’s not as if the election is Christmas.

      This is not to say that current leadership doesn’t have an agenda, I just don’t necessarily think messing with the election is it. All the alarmism I’ve seen has had union sourcing, and that makes sense if you consider that the latest set of moves have been about pressuring the union. Unplugging machines, insisting trucks leave NDCs half-full – that to me is about workers, not machines or trucks. They don’t want to pay overtime to have people “stand around”. And if machines were pulled – which may have already been scheduled to be pulled – that’s just the exclamation point at the end of the sentence: Hit these efficiency metrics or contract negotiations will go very, very badly for you!

      Just an opinion. I realize this sounds as if I’m dowplaying the impact of these decisions on the election process, when they very obviously could and may already have. I just think don’t think that’s the primary motivation for these decisions.

      Reply
  2. diptherio

    To me this sounds more like rulings for the Postal Service, as I associate the service with the workers, and from what I’ve seen on twitter, the workers were none too happy about these changes either. Imo, the headline should read “5 Federal Courts Have Ruled Against the Postal Service’s Leaders.”

    Reply
    1. Yik Wong

      “As of September 29, 2020, 5 Federal Courts Have Ruled Against some of the attempts by Congress and POTUS to do in the Postal Service”

      Reply
      1. Sue inSoCal

        Thanks much Yik Wong, I was confused about the wording as well, at first look.
        Goody!! Ahhh… DeJoy and campaign hijinks.

        Reply
    2. run75441

      I did have “5 Federal Courts Have Ruled Against the USPS” or the United States Postal Service. Steve had Postal Service.

      No harm done either way as the message gets out and I am happy Naked Capitalism picked this up. There are six other cases filed in other federal courts which are still pending.

      Reply
  3. run75441

    Jacobiteln:

    Many of the sorting machines have been dissembled, set outside in the weather, and/or outright dumped in a dumpster. The rest have not been handled carefully or they have been pirated for parts. I wrote about some of it here: https://angrybearblog.com/2020/08/former-deputy-pmg-ron-stroman-discusses-mail-delays-and-threats-to-the-election.html There are some pictures on this post.

    I could ask Steve or Mark and see what they think. I am pretty confident I got the possibilities correct. I can not over emphasize mailing early and allow at least two weeks. In Michigan, my township has a drop box at the township hall, Governor Whitmer is exploring in the courts whether she can bump up the start of counting by a day or so.

    The state House has been controlled by Repubs 80% of the time since 1992 and the state Senate 100% of the time since 1990. This reflects the impact of Gerrymandering. There is a bill in the House to start counting earlier than the day of the election. The likelihood of the legislature doing something is slim. It is fun to start rattling their cages on infrastructure issues and how long they have been in power and have done little. It gets quiet.

    Up till 2016, the state has voted for Dem presidents since 1992. In 2016, the “anybody but trump or Clinton” vote had an impact in the presidential election. It was multiple times greater than in 2012.Te trend for Dem Presidential candidates typically winning in Michigan in itself may cause them to do nothing or little.

    Reply
    1. JacobiteInTraining

      Thank you for the followup!!!

      I’m lucky here in WA State – longtime vote-by-mail process, and ballot drop off boxes abound. (and, WA being WA…no peeps with an ‘R’ by their name to limit them to just one-box-per-county!)

      Reply
      1. run75441

        JacobiteIn:

        You are welcome.

        In Michigan, the Drop Boxes are by Township which are far smaller than a county. Ours is ~18,000 people. It is a Repub administration. They do take voting seriously though.

        Reply
  4. shinola

    DeJoy’s installation is a twofer:

    1) Interfere with mail-in voting in hopes of increasing the odds of re-electing Trump.

    2) Promoting the strategy of the eventual privatizing of the Postal Service: Crapify it & declare the results as proof that the gov’t is incapable of running it properly. Therefore, it needs to put in the hands of a “Solid Business Leader” who will be able bring in “Modern Business Efficiencies” (aka profit maximization).

    It seems the Supremes aren’t buying it (for now)

    Reply
    1. run75441

      shinola:

      Keep in mind SCOTUS will “probably” not interfere unless courts disagree and from what I know, they will not review until COAs review and disagree unless someone pushes it beyond COA. The trump administration has bypassed COAs before and appealed directly to SCOTUS.

      Your points are correct.

      Reply
  5. Hayek's Heelbiter

    Oh, my lord. I only realized that this minute:

    POTUS = President of the United States
    SCOTUS = Supreme Court of the United States
    LOTUS* = Legislators of the United States.

    Which makes sense, as I don’t think in the course of human history a larger group of lotus eaters has ever been gathered under one roof.

    *Rearrange the letters and see what you come up with.

    Reply
  6. chuck roast

    Hmmmm…Sullivan…he is the guy who put the kibosh on the Justice Department for dropping the Flynn case. Even though the damn thing was totally flimsy to begin with. He insists on stepping in because Flynn pleaded guilty. Yeah, well Flynn was guilty of doing what all recent Prez-elect appointees have done. He has done the right thing in the P.O. cases, but really, the politics never ends with these guys.

    Reply
    1. Bob Tetrault

      Not flimsy, AT ALL. Emmett Sullivan is as straight arrow honest as they get; Flynn is/was as crooked as they get. It is not a given that “all … have done.”

      Wade through emptywheel.net for starters

      Reply

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