Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 1 of 39

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STATE OF NEW YORK, et al.,
Plaintiffs,
v.

No. 20-cv-2340(EGS)

DONALD J. TRUMP, in his
official capacity as President
of the United States, et al.,
Defendants.
MEMORANDUM OPINION
I. Introduction
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 Donald J. Trump, 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. Plaintiffs seek a preliminary injunction with
regard to their Postal Accountability and Enhancement Act claim.
Upon consideration of the Plaintiffs’ motion, the response, and
1

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 2 of 39

reply thereto, the applicable law, and the entire record, the
Court GRANTS Plaintiffs’ motion.
II. 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 United States 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).
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).

2

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 3 of 39

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
“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).

3

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 4 of 39

B. Factual Background
1.

The COVID-19 Pandemic

Plaintiffs assert that the COVID-19 pandemic has increased
reliance on mail delivered by the USPS. See Mem. Supp. Mot.
Prelim. Inj. (“Mot.”), ECF No. 12-1 at 8. 1 According to
Plaintiffs, ‘“[b]ecause COVID-19 is ‘primarily spread through
person-to-person contact,’ Ku[2] Decl.[, ECF No. 12-13]

¶ 13,

state and local governments, including Plaintiffs here, have
undertaken serious efforts to minimize in-person gatherings.”
Id. Plaintiffs further state that “some . . . have transformed
their plans for the November 2020 election to facilitate voting
by mail.” Id. (citing

Adinaro 3 Decl., ECF No. 12-4 ¶ 9; Kellner 4

Decl., ECF No. 12-12 ¶¶ 16–17; Ku Decl., ECF No. 12-13 ¶¶ 8–10;
P.L. 2020, ch.72 (N.J. August 28, 2020) (providing that New
Jersey’s November General Election is to be conducted primarily
by vote-by-mail in part to reduce the risk of community spread
of COVID-19 at polling locations)). Those Plaintiffs that have

When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
2
Leighton Ku is a Professor of Public Health Policy and
Management and Director of the Center for Health Policy Research
at the Milken Institute School of Public Health, George
Washington University.
3
David Adinaro is the Deputy Commissioner for Public Health
Services for the New Jersey Department of Health.
4
Douglas Kellner is the Co-Chair of the New York State Board of
Elections.
1

4

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 5 of 39

“mail-based election systems” in place “seek to preserve [them]
during a pandemic.” Id. (citing Henricks 5 Decl. ¶ 3, ECF No. 129; Kaohu 6 Decl., ECF No. 12-11 ¶ 3; Takahashi 7 Decl., ECF No. 1219 ¶ 3.) Plaintiffs state they “have also expended time, money,
and resources to educate the public about social distancing, see
Adinaro Decl., ECF No. 12-4

¶ 8, and to continue to meet their

legal obligations to their residents and to administer public
benefits programs by increased reliance on U.S. mail, Banks 8
Decl., ECF No. 12-5 ¶¶ 4–7, 11, 14; Newton 9 Decl., ECF No. 12-15
¶ 9.” Id.
2.

USPS Postal Policy Changes

In June and July 2020, the USPS announced and implemented
four changes (collectively, “Postal Policy Changes”) to how it
collects, processes and delivers mail. First, on June 17, 2020,
the USPS announced that it would be removing 671 high-speed
sorting machines nationwide “over the next several months.”
Pls.’ Ex. 17, ECF No. 12-20 at 2-4.
Second, on July 10, 2020, the USPS announced an
“operational pivot” to make “immediate, lasting, and impactful
Jon Henricks is the County Clerk for the County of Hawaii.
Kathy Kaohu is the County Clerk for the County of Maui.
7 Glen Takahashi is the City Clerk for the City and County of
Honolulu.
8 Steven Banks is the Commissioner of the New York City
Department of Social Services.
9 Jack Newton is the Director of the Public Benefits Unit as
Bronx Legal Services.
5
6

5

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 6 of 39

changes in our operations and culture.” Pls.’ Ex. 21, ECF No.
12-24 at 2. These changes included prohibiting “late trips” and
“extra trips.” Id. “[I]t has long been typical for postal
drivers to depart for post offices or delivery points a short
period after the prescribed time if needed to ensure that all
the mail for that truck would be loaded before departure.”
Coradi 10 Decl., ECF No. 12-34 ¶ 13. “Extra” trips are nonscheduled delivery trips, which ensure that the agency can
maintain the necessary flexibility to timely deliver mail to 160
million addresses for six days a week, id. ¶¶ 5, 14; and have
long allowed the agency to account for daily fluctuations in
mail volume, processing malfunctions or errors, and other
disruptions, id. ¶¶ 13-4. Late trips and extra trips “are needed
adjustments to adequately administer a system responsible for
delivering over 470 million pieces of mail per day. They are
features of the postal system, not bugs.” Id. ¶ 14.
The USPS knew that prohibiting these 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 mail on the workroom floor or docks (in P&DCs), which

Peter Coradi has been the National Business Agent “A” for the
Clerk Division, New York Region of the American Postal Workers
Union since November 2001. Clerks in the Clerk Division are
responsible for, among other things, mail processing, bulk mail
entry, retail windows, and call centers.
10

6

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 7 of 39

is not typical.” Pls.’ Ex. 21, ECF No. 12-24 at 2. By August 13,
2020, the USPS had reduced the number of late trips by 71
percent. Pls.’ Ex. 19, ECF No. 12-22 at 2. Defendants have
clarified that late or extra trips are not “banned”; however,
they acknowledge that they continue “at a reduced level.” Suppl.
Cintron Decl., ECF No. 39-1 ¶ 4. On September 21, 2020, USPS
also issued “Operational Instructions” providing that
“transportation, in the form of 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.” See Ex. 1 to Notice Suppl. Material, ECF
No. 50-1 at 4.
Third, the USPS announced another “initiative” that
prohibited mail carriers in certain cities from spending time in
the morning sorting mail so they could “leave for the street
earlier.” Pls.’ Ex. 22, ECF No. 12-25 at 2. This meant that
carriers were being ordered to not deliver mail that had arrived
overnight, but rather sort it in the afternoon, meaning that it
would not be delivered until the next day. Id. On August 24,
2020, Mr. DeJoy testified that he stopped this pilot project.
See House Oversight and Reform Committee Hearing Tr. (“House
Committee Hearing”), Aug. 24, 2020, Defs.’ Ex. 14, ECF No. 30-3
at 449.
7

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 8 of 39

Fourth, on or around July 29, 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 U.S. Postal
Service letters to states, Wash. Post (Aug. 17, 2020),
https://contextcdn.washingtonpost.com/notes/prod/default/documents/d1b752f9f8c9-4c18-b548-4eb9668c672a/note/36253644-7029-4dd3-bd1cf824054400c2. 11 This was a change to the USPS policy of treating
election mail and political mail mailed as marketing mail on an
expedited First-Class basis. Pls.’ Ex. 30, 12-33 at 12.
It is undisputed that the USPS did not seek an advisory
opinion pursuant to Section 3661(b) from the PRC prior to
implementing these changes.
3.

USPS Postal Policy Changes Have Led to Nationwide
Delays and Continue to Have a Nationwide Impact

USPS records indicate that nationally, on-time delivery of
First-Class Mail began to decline in late June 2020, going from
roughly 90 to 94 percent prior to the implementation of the
Postal Policy changes to 82 percent in early August. Pls.’ Ex.
28, ECF No. 12-31 at 11. In the August 13, 2020 email to all

The Court takes judicial notice of the letters from the USPS to
46 states and the District of Columbia. Fed. R. Evid. 201(b)(2).
11

8

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 9 of 39

USPS employees, Mr. DeJoy acknowledged that “this transformative
initiative has had unintended consequences that impacted our
overall service levels.” Pls.’ Ex. 19, ECF No. 12-22 at 2; see
also House Committee Hearing, Defs.’ Ex. 14, ECF No. 30-3 at 455
(Mr. DeJoy testifying that mitigating late trips and extra trips
“was not expected to have the impact it had for the duration of
the period that it had”).
On August 18, 2020, Mr. DeJoy issued a statement that the
USPS would be suspending “some longstanding operational
initiatives—efforts that predate my arrival at the Postal
Service—that have been raised as areas of concern as the nation
prepares to hold an election in the midst of a devastating
pandemic.” Pls.’ Ex. 20, ECF No. 12-23 at 2. Specifically, Mr.
DeJoy stated that: (1) “[r]etail hours at Post Offices will not
change”; (2) “[m]ail processing equipment and blue collection
boxes will remain where they are”; (3) “[n]o mail processing
facilities will be closed”; (4) “overtime has, and will continue
to be, approved as needed.” Id.; see also House Committee
Hearing, ECF No. 30-3 at 484 (Mr. DeJoy testifying that he
halted the pilot program, the removal of collection boxes,
reducing hours at postal retail centers, and the removal of flat
and mail sorting machines).
Except for “mail processing equipment,” the suspension did
not apply to the rest of the Postal Policy Changes at issue
9

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 10 of 39

here. See also Senate Homeland Security and Government Affairs
Committee Hearing (“Senate Committee Hearing”), Aug. 21, 2020,
Defs.’ Ex. 5, ECF No. 30-2 at 107 (Mr. DeJoy stating that the
policy of mitigating extra trips would not be suspended); id. at
108 (Mr. DeJoy stating that none of the mail processors that had
been removed would be brought back).
With regard to election mail, Mr. DeJoy testified before
the Senate Committee that states would not have to use FirstClass Mail for election mail. Id. at 110. However, in his
testimony before the House Committee, he testified that states
and election boards should follow the recommendation in letters
from the USPS General Counsel to the states and the District of
Columbia that election officials use First-Class Mail to mail
ballots to voters. House Committee Hearing, Defs.’ Ex. 14, ECF
No. 30-3 at 433; see also id. at 394 (Mr. DeJoy testifying that
the USPS “will try to fulfill” “objectives” for “normal
processing procedures plus enhanced procedures” to ensure the
ballots get delivered in time).
USPS records indicate that nationally, on-time delivery of
First-Class Mail as of August 22, 2020 was slightly above 85
percent. Pls.’ Ex. 28, ECF No. 12-31 at 11.
B.

Procedural Background

Plaintiffs filed this lawsuit on August 25, 2020. On
September 2, 2020, they filed a motion for a preliminary
10

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 11 of 39

injunction, which requests that the Court enjoin the defendants
from enforcing the Postal Policy Changes. See Mot., ECF No. 121. The defendants filed their opposition on September 11, 2020.
See Defs.’ Opp’n Mot. Prelim. Inj. (“Defs.’ Opp’n”), ECF No. 30.
The Plaintiffs filed their reply brief on September 16, 2020.
See Pls.’ Reply (“Reply”), ECF No. 40. The motion is ripe for
the Court’s consideration.
III. Standard of Review
“A plaintiff seeking a preliminary injunction must
establish [1] that [they are] likely to succeed on the merits,
[2] that [they are] likely to suffer irreparable harm in the
absence of preliminary relief, [3] that the balance of equities
tips in his favor, and [4] that an injunction is in the public
interest.” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014)
(alteration in original) (quoting Sherley v. Sebelius, 644 F.3d
388, 392 (D.C. Cir. 2011)). 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). A
preliminary injunction is an “extraordinary remedy that may only
be awarded upon a clear showing that the plaintiff is entitled
to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 22 (2008). “The purpose of a preliminary injunction is
merely to preserve the relative positions of the parties until a
trial on the merits can be held.” Univ. of Tex. v. Camenisch,
11

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 12 of 39

451 U.S. 390, 395 (1981). In this Circuit, the four factors have
typically been evaluated on a “sliding scale,” such that if “the
movant makes an unusually strong showing on one of the factors,
then it does not necessarily have to make as strong a showing on
another factor.” Davis v. Pension Benefit Guar. Corp., 571 F.3d
1288, 1291–92 (D.C. Cir. 2009).
In the wake of the Supreme Court’s decision in Winter v.
Natural Resources Defense Council, 555 U.S. 7 (2008), “the D.C.
Circuit has suggested that a positive showing on all four
preliminary injunction factors may be required.” Holmes v. FEC,
71 F. Supp. 3d 178, 183 n.4 (D.D.C. 2014); see also Sherley, 644
F.3d at 393 (“[W]e read Winter at least to suggest if not to
hold that a likelihood of success is an independent, freestanding requirement for a preliminary injunction.”) (quotation
marks omitted). Nonetheless, “the Circuit has had no occasion to
decide this question because it has not yet encountered a postWinter case where a preliminary injunction motion survived the
less rigorous sliding-scale analysis.” ConverDyn v. Moniz, 68 F.
Supp. 3d 34, 46 n.2 (D.D.C. 2014).
IV.

Analysis
Plaintiffs argue that they are likely to succeed on the

merits of their Section 3661 claim because the USPS “failed to
submit the Postal Policy Changes to the Postal Regulatory
Commission in advance for an advisory opinion as required under
12

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 13 of 39

39 U.S.C. § 3661(b) (and the Commission’s rules), despite their
significant effect on postal service nationwide,” Mot., ECF No.
12-1 at 16; and that this Court has the authority to review the
Postal Policy changes as ultra vires agency action, id.
Defendants respond that Plaintiffs lack Article III
standing, that district courts lack subject matter jurisdiction
over Section 3661 claims, and that Plaintiffs’ claim does not
satisfy the requirements for ultra vires review. Defs.’ Opp’n,
ECF No. 30 at 32, 35, 39.
A.

Plaintiffs Are Likely To Succeed On The Merits Of Their
39 U.S.C. § 3661(b) Claim
1.

Plaintiffs Likely Have Standing To Bring This
Challenge

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, 134 S. Ct. 2334,
2341 (2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992)). “Standing to seek . . . forward-looking
injunctive relief requires [Plaintiff] to show [that it] is
suffering an ongoing injury or faces immediate injury. For a
future injury, that means submitting evidence showing that there
is a substantial risk that the harm will recur.” Narragansett
Indian Tribal Historic Preservation Office v. FERC, 949 F.3d 8,
13

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 14 of 39

13 (D.C. Cir. 2020) (internal quotation marks, citations, and
alterations in original omitted).
“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.
Defendants contend that Plaintiffs lack standing for two
reasons. 12 First, they cannot show a causal connection because
they have “produce[d] no evidence that any delay in mail
delivery will come from the reduction in capacity of mail
processing machines,” noting that the “mail processing machines
are still only being utilized at a sixty-five percent rate . . .
which means that there is ample extra capacity.”

Defs.’ Opp’n,

ECF No. 30 at 33. However, Plaintiffs have provided evidence
that the elimination of the machines has and will continue to
Defendants also argue that plaintiffs lack standing because
they allege an injury by the “expedited to Street/Afternoon
Sortation” initiative, which has been suspended. Defs. Opp’n,
ECF No. 30 at 26. Plaintiffs respond—and the Court agrees—that
defendants “may not defeat [p]laintiffs’ standing by voluntarily
suspending just one of several offending policies, especially
where there is no prohibition on that policy’s resumption.”
Reply, ECF No. 40 at 13.
12

14

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 15 of 39

cause delayed mail. See Coradi Decl., ECF No. 12-31 ¶ 9
(“[E]mployees report astonishing amounts of delayed mail in
facilities that I have visited multiple times . . . I have never
heard anything like it in my 36 years serving the U.S. Postal
Service and its employees.”); id. ¶ 16 (“With fewer sorting
machines for letter mail and flat mail, Postal employees must
adapt the remaining machines to accommodate more volume or sort
letter and flat mail manually.”).
Second, Defendants concede that the policy change regarding
extra and late trips resulted in delayed mail in the past, but
argue that “Plaintiffs cannot show that USPS’s activities are
harming Plaintiffs now and in the future,” stating that “while
there ‘was a temporary decline in meeting service standards’ in
mid-July” that decline was addressed and “‘service performance
is rapidly returning to early July levels.’” Defs.’ Opp’n, ECF
No. 30 at 33. Defendants also argue that Plaintiffs’ complaint
about election mail delays are entirely speculative, noting “the
enormous efforts that USPS has put into place (and will continue
or supplement through the Election) to ensure that ballots are
timely delivered.” Id. at 34. Defendants also argue that
Plaintiffs have not established that the decline was due to
reducing unnecessary trips rather than staffing shortages due to
COVID-19. Id. at 34.

15

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 16 of 39

However, Plaintiffs have provided evidence that reducing
extra or late trips will necessarily cause delays in the
delivery of mail. See Grimmer 13 Decl., ECF No. 40-3 ¶ 10
(decrease in the number of extra or late trips will delay the
delivery of letters); Goldway 14 Decl., ECF No. 40-5 ¶ 31 (“It is
my opinion, based on my two decades of experience reviewing
Postal Service operations, that eliminating local flexibility
and requiring rigid adherence to transportation scheduled would
negatively impact service performance.”). Moreover, Plaintiffs
have provided proof that delays, both locally and nationally,
have continued. See Failure to Deliver, U.S. Senate Committee on
Homeland Security and Governmental Affairs, Minority Staff
Report, ECF No. 40-9 at 3 (finding that nationwide during the
second week of August, “85 million more deliveries were late in
a single week compared to what the late deliveries would have
been that week under on-time delivery rates before the
changes”); id. (finding that “[s]ome parts of the country saw
on-time delivery drop by 15-20 percentage points in the weeks
following Mr. DeJoy’s July 2020 changes”). USPS’s own data shows

Justin Grimmer, a Professor of Political Science at Stanford
University, made a preliminary assessment of the impact of the
policy change limiting the number of extra and late trips based
on the USPS August 31, 2020 powerpoint.
14 Ruth Goldway served on the U.S. Postal Regulatory Commission
from 1998 to 2015, having been appointed and reappointed by
Presidents Clinton, George W. Bush, and Obama.
13

16

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 17 of 39

declines in on-time delivery of First-Class Mail continuing into
August. Ex. 37, ECF No. 40-8. Moreover, in an August 13, 2020
email to all USPS employees, Mr. DeJoy acknowledged that “this
transformative initiative has had unintended consequences that
impacted our overall service levels.” Pls.’ Ex. 19, ECF No. 1222 at 2. Finally, Plaintiffs have rebutted Defendants’ argument
that the decline was due to reducing unnecessary trips rather
than staffing shortages due to COVID-19 by pointing out that the
sharp decline in on-time deliveries occurred in July and August
2020, months after COVID-19 infections began to spike in the
United States in March 2020. Reply, ECF No. 40 at 11.
Accordingly, Plaintiffs have shown that there is a
substantial likelihood that the on-going non-speculative harms
they allege caused by mail delays are “fairly traceable” to the
Postal Policy Changes. Lujan, 504 U.S. at 560.
2.

This Court Likely Has Subject Matter Jurisdiction
Over The Section 3661 Claim

Defendants contend that this Court lacks subject matter
jurisdiction over “complaints regarding” Section 3661 because
such complaints must first be made to the PRC and then appealed
to the United States Court of Appeals for the District of
Columbia Circuit (“D.C. Circuit”). Defs.’ Opp’n, ECF No. 30 at
35. The statutory scheme provides as follows. 39 U.S.C. § 409(a)
provides that “[e]xcept as otherwise provided in this title, the
17

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 18 of 39

United States district courts shall have original but not
exclusive jurisdiction over all actions brought by or against
the Postal Service.” One of the exceptions to this original
jurisdiction is 39 U.S.C. § 3662, which 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 . . . .” Section 3662(b) requires the PRC
to respond to the complaint within 90 days and that if a
complaint is not timely responded to, a petition for review may
be filed with the D.C. Circuit, which also has jurisdiction to
review final orders or decisions of the PRC.
Plaintiffs’ complaint alleges a procedural violation—that
USPS failed to comply with the requirement 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.” 39 U.S.C. § 3661. Section
3661(c) requires that the opinion shall not be issued until
there is opportunity for notice and comment under applicable
provisions of the Administrative Procedure Act.
18

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 19 of 39

Defendants contend that “[c]ourts have repeatedly held that
19 U.S.C. §§ 3662 and 3663 constitute the exclusive
jurisdictional remedy for complaints about postal services that
fall within the statutory provisions specifically identified in
section 3662.” Defs.’ Opp’n, ECF No. 30 at 36. However,
Defendants have provided no mandatory authority to support their
assertion that Sections 3662 and 3663 constitute the exclusive
jurisdictional remedy for a claim that the USPS has failed to
comply with the procedural requirements of Section 3661.
“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, 307 (1994) (internal citation omitted). The
language of the statute is broad:

“[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 . . . .” 39 U.S.C. § 3662. This could certainly be
read to mean that the failure of the USPS to comply with the
procedural requirement set for in Section 3661 would be
encompassed by Section 3662. Plaintiff argues that the use of
the permissive “may” in Section 3662 coupled with the mandatory
19

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 20 of 39

phrasing “shall” in Section 3662(c) shows Congress did not
intend to limit jurisdiction over Section 3661 claims. Reply,
ECF No. 40 at 14. 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. The use of the permissive “may” coupled
with the use of the mandatory “shall” 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 v. Panama Canal Co., 475
F.2d 1280, 1828 (D.C. Cir. 1973) (“[T]he permissive
interpretation is conclusively proven to be 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 . . . .”). This interpretation is
strengthened because the statute 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).
20

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 21 of 39

The availability of judicial review for the USPS’s failure
to comply with the procedural requirements in Section 3661 is
consistent with the legislative history of the PRA. 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.”).
The Court must also consider 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
21

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 22 of 39

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.” 15
Jaresky v. SEC, 803 F.3d 9, 17 (D.D.C. 2015) (quoting Free
Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 48990 (2010). Mindful of the fact that the 90-day window for the
PRC to respond to a complaint brought pursuant to Section 3661,
Defendants contend that it does not matter that the PRC cannot
provide immediate relief because eventual relief is sufficient
as a matter of law. Defs.’ Opp’n, ECF No. 30 at 39 n.11.
However, the authority upon which Defendants rely, American
Federation of Government Employees, AFL-CIO v. Trump, 929 F.3d
748 (D.D.C. 2019), is inapposite. There, the court held that
meaningful judicial review was not foreclosed because Plaintiffs
were unable to obtain “‘pre-implementation’ review of executive
orders or immediate relief barring all agencies from
implementing the executive orders,’” id. at 755-56, because
there the parties agreed to consolidate their preliminary
injunction requests with the merits, see Scheduling Order, Civil
Action No. 18-1261, ECF No. 16 at 1.
With regard to the first consideration—whether Plaintiffs
would be denied meaningful review—it is clear that they would.
Defendants’ assertion that the three factors must be met is
incorrect. See Jaresky v. SEC, 803 F.3d at 17.
15

22

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 23 of 39

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.” Reply, ECF No. 40 at 16. Accordingly, even if there
was a “fairly discernible” intent in the statutory scheme to
preclude district court jurisdiction, requiring Plaintiffs to go
through the PRC process would deny them meaningful review. See
Berkley v. Mountain Valley Pipeline, LLC, 896 F.3d 624, 631 (4th
Cir. 2018) (noting that “plaintiffs are denied meaningful review
when they are subject to some additional and irremediable harm
beyond the burdens associated with the dispute resolution
process”) (internal quotation marks and citations omitted));
Krescholleck v. S. Stevedoring Co., 78 F.3d 868, 875 (3d Cir.
1996) (noting that the plaintiff had “alleged a sufficiently
serious irreparable injury to lead us to conclude that the
administrative review process is insufficient to afford him full
relief”). And persuasive authority holds that this factor is the
“most important.” Berkley, 896 F.3d at 630. Accordingly, this
first factor weighs in favor of finding Congress intended
district courts to have jurisdiction over claims such as this
23

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 24 of 39

one brought by Plaintiffs. The second consideration–whether the
claim is wholly collateral to the statutory scheme—is “‘related’
to whether ‘meaningful judicial review’ is available, and the
two considerations are analyzed together.” Am. Fed’n of Gov’t
Emps., AFL-CIO v. Trump, 929 F.3d 748, 758 (D.C. Cir. 2019)
(quoting Jarskey, 803 F.3d at 22). The question to ask is
“whether the plaintiffs ‘aimed to obtain the same relief they
could seek in the agency proceeding.’” Id. at 758-60 (quoting
Jarskey, 803 F.3d at 23). Here, the relief Plaintiffs seek
cannot be meaningfully redressed through filing a Section 3662
complaint.
The third consideration is whether the claim is “beyond the
expertise” of the PRC. Plaintiffs’ procedural claim does not
require the “agency expertise” the statutory procedures
contemplate. Berkley, 896 F.3d at 630. Accordingly, precluding
district court jurisdiction here would completely deny plaintiff
meaningful review given the timing of the implementation of the
Postal Policy Changes.
3.

Plaintiffs’ Section 3661(b) Claim Is Likely
Reviewable Pursuant To The Ultra Vires Doctrine

While as a general matter “the Postal Service is exempt
from review under the Administrative Procedure Act, . . .

its

actions are reviewable to determine whether it has acted in
excess of its statutory authority.” N. Air Cargo v. U.S. Postal
24

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 25 of 39

Serv., 674 F.3d 852, 858 (D.C. Cir. 2012). “The scope of Non-APA
review is narrow . . . [and] is available only to determine
whether the agency has acted ultra vires—that is whether it has
exceeded its statutory authority.” Sears, Roebuck & Co. v. U.S.
Postal Serv., 844 F.3d 260, 265 (D.C. Cir. 2016) (quotation
marks and citations omitted).
Defendants contend that ultra vires review is unavailable
because: (1) Plaintiffs cannot show that USPS acted “in excess
of its delegated powers and contrary to a specific prohibition”
because they cannot show that USPS violated Section 3661(b); and
(2) Plaintiffs have a “meaningful and adequate means of
vindicating [their] statutory rights” because they can file a
complaint with the PRC pursuant to Section 3662. Defs.’ Opp’n,
ECF No. 30 at 40 (citing Nat’l Air Traffic Controllers Ass’n
AFL-CIO v. Fed. Serv. Impasses Panel, 437 F.3d 1256, 1258 (D.C.
Cir. 2006) (internal quotation marks and citations omitted)).
The Court is persuaded that Plaintiffs claim is reviewable:
“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) (citing the leading
case, Leedom v. Kyne, 358 U.S. 184, 188, 79
S.Ct. 180, 183-84, 3 L.Ed.2d 210 (1958)
(finding
judicial
review
proper
despite
statutory preclusion of judicial review, where
the NLRB acted “in excess of its delegated
25

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 26 of 39

powers and contrary to a specific prohibition”
in the NLRA)).
Aid Ass’n for Lutherans v. U.S. Postal Serv., 321 F.3d 116,
1172-73 (D.C. Cir. 2003). Plaintiffs claim here is that the USPS
failed to comply with the requirement Congress set forth in
Section 3661. Accordingly, Plaintiffs’ claims “clearly admit of
judicial review.” Id. at 1173.
4.

USPS Likely 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 of Postal Sup’rs v. U.S. Postal Serv., 602 F.2d 420, 432
(D.C. Cir. 1979). 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
26

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 27 of 39

proposal, to the Postal Regulatory Commission requesting an
advisory opinion on the change.”
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.
There is no dispute that the USPS did not comply with
Section 3661(b) prior to implementing the Postal Policy Changes
at issue in this case. Defendants argue that the Postal Policy
Changes do not implicate Section 3661(b) because: (1) there has
been no “meaningful impact on service;” (2) postal services
available to the user have not been altered; and (3) the changes
have not affected service in a broad geographical area. Defs.’
Opp’n, ECF No. 30 at 42 (quoting and citing Buchanan 508 F.2d at
263). In support, Defendants argue that sorting machines are
27

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 28 of 39

being removed pursuant to a long-existing policy; not a change,
noting that the USPS is in Phase 6 of this initiative. Id.
Second, there is no change with regard to election mail because
it is being treated the same as it has in the past. Id. at 43.
Third, the ESAS pilot program, which has been suspended, was not
national in scope. Id. Fourth, USPS has not prohibited extra or
late trips, but rather has “renewed its emphasis on adhering to
its published schedule.” Id. Defendants conclude that this
latter change is “precisely the type of management direction to
which [S]ection 3661 does not apply.” Id. Finally, Defendants
contend that pursuant to past practice, the types of “nationwide
changes that trigger [Section] 3661’s review are general changes
to postal facility hours or service standards for mail
delivery.” Id. at 44.
The Court is persuaded that Plaintiffs are likely to
succeed on their claim that Defendants violated Section 3661(b)
by failing to submit the new transportation policy to the PRC.
First, the new transportation policy was a “change” because it
has had a “meaningful impact on service.” Buchanan, 508 F.2d at
263. Plaintiffs have provided evidence showing that the
reduction in extra and late trips has had a meaningful impact on
service because it has resulted in nationwide delays. See supra
at 7-8. Second, Plaintiffs have demonstrated that the reduction
in sorting machines was dramatically accelerated beginning in
28

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 29 of 39

January 2020 as compared with the prior fiscal year. DeChambeau 16
Decl., ECF No. 30-2 ¶ 21. Specifically, while 101 machines were
removed in FY 2019, 711 machines were removed in FY 2020 as of
August 18, 2020, resulting in a nearly 15 percent reduction in
capacity. Id. Defendants have provided no explanation for the
sudden acceleration of the removal of the sorting machines.
Plaintiffs have also demonstrated that the combination of
the reduction of late trips, extra trips and reduced sorting
capacity puts the timely delivery of election mail at risk.
Coradi Decl., ECF No. 12-34 ¶ 17 (“If postal employees are not
able to make the necessary daily adjustments via late trips,
extra trips, and the full fleet of sorting machines for the 2020
election season, I am deeply concerned about whether the U.S.
Postal Service will be able to deliver election mail as quickly
as it has in the past. Since I began as a letter carrier in
1984, it has been standard practice to treat election mail as
First Class mail with delivery times of one to three days—or
better—regardless of whether it was marked as Marketing Mail,
which has a delivery time of three to 10 days.”); id. ¶ 18
(“Given the recent U.S. Postal Service policy changes which have
reduced sorting capacity and limitations on late trips and extra
trips, I fear that the dedicated employees of the U.S. Postal
Jason Chambeau is the Headquarter Director of Processing
Operations for the United States Postal Service.
16

29

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 30 of 39

Service will be prevented from making the necessary adjustment
to accommodate potential influxes of election mail. Election
mail includes ballots, voter registration cards, absentee voting
applications, and poling place notifications. If delivery is
being significantly delated in August, which, in my experience
is when mail volume it typically lower, the risk of even more
dramatic delays beginning in the fall is high.”).
Plaintiffs have also demonstrated that Defendants’ position
in this litigation that the Postal Policy Changes are not
“changes” 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 . . . .”).
Second, the change was “in the nature of postal services,”
39 U.S.C. § 3661(b), because it qualitatively altered “the
manner in which postal services [are] available to the user,”
Buchanan, 508 F.2d at 263. As stated above, Plaintiffs point to
evidence showing that the reduction in extra and late trips

30

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 31 of 39

combined with the reduction in sorting machines resulted in
nationwide delays.
Third, the change 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. Plaintiffs have submitted evidence that the Postal
Policy Changes have resulted in delays on a nationwide basis.
See supra at 16-17.
While it is clear that Congress did not intend for the
courts to micromanage the operations of the USPS, requiring the
USPS to comply with the statutory requirement that it obtain an
advisory opinion from the PRC and provide for notice and comment
prior to implementing “a change in the nature of postal services
which will generally affect service on a nationwide or
substantially nationwide basis” is not micro-managing; it is
requiring the USPS to act within its statutory authority.
Furthermore, Congress clearly intended Section 3661 to require
an opportunity for public participation and for independent
review before the USPS implements service changes that will have
a broad effect. The 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.

31

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 32 of 39

Finally, defendants argue that because Plaintiffs have a
“meaningful and adequate means of vindicating their statutory
rights” by filing a complaint with the PRC and then seek
judicial review in the D.C. Circuit if unsatisfied, they cannot
establish ultra vires jurisdiction. Defs.’ Opp’n, ECF No. 30 at
41. Plaintiffs respond—and the Court agrees as explained above—
that they lack a “meaningful and adequate means of vindicating
their statutory rights” since “section 3662 would not afford
[them] judicial review of an adverse PRC ruling within a
timeframe that would allow for the meaningful vindication of
their right to notice and opportunity to participate as required
under 39 U.S.C. § 3661(b).” Reply, ECF No. 40 at 19.
B.

Plaintiffs Face Irreparable Harm

“In this Circuit, a litigant seeking a preliminary
injunction must satisfy ‘a high standard’ for irreparable
injury.” ConverDyn, 68 F. Supp. 3d at 46 (quoting Chaplaincy of
Full Gospel Churches, 454 F.3d at 297). The movant must
demonstrate that it faces an injury that is “both certain and
great; it must be actual and not theoretical,” and of a nature
“of such imminence that there is a clear and present need for
equitable relief to prevent irreparable harm.” Wis. Gas Co. v.
FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (quotation marks and
emphasis omitted).

32

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 33 of 39

Plaintiffs argue that the Postal Policy Changes impede
their ability to combat the spread of COVID-19 because the
failure to timely deliver mail and other reductions in service
standards results in more in-person interactions with government
officials and adversely affects their “ability to provide safe
alternatives to in person voting.” Mot., ECF No. 12-1 at 21-22.
Defendants counter that Plaintiffs have failed to meet their
burden of establishing “that mail delays were necessarily the
result of the challenged policies, or that future delays, if
there are any, would be the result of” the Postal Policy
Changes. Defs.’ Opp’n, ECF No. 30 at 46-47. However, the Court
has already determined that Plaintiffs have shown that there is
a substantial likelihood that the on-going non-speculative harms
they allege caused by mail delays are “fairly traceable” to the
Postal Policy Changes. See supra at 14-17.
Defendants further counter that this alleged harm is to the
citizens of the states and that States cannot bring parens
patriae claims against the federal government, and that even if
they could, Plaintiffs’ injury is entirely speculative. Defs.’
Opp’n, ECF No. 30 at 48-49. However, Plaintiffs have provided
evidence that the efforts to mitigate the spread of COVID-19 is
aimed at protecting the public health of their respective
jurisdictions as a whole. See Adinaro Decl. ECF No. 12-4 ¶¶ 7-8
(describing the efforts of the New Jersey Department of Health
33

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 34 of 39

to mitigate the spread of COVID-19); Ku Decl. (describing the
efforts of New York, New Jersey, and Hawaii to institute
absentee or mail voting to mitigate the spread of COVID-19).
Impeding these mitigation efforts results in harm to government
Plaintiffs as well as the residents of the states. New York v.
U.S. Dep’t of Homeland Sec., No. 19 Civ. 7777, 2020 WL 4347264,
at *10 (S.D.N.Y. July 29, 2020) (finding that the state
plaintiffs adequately 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, 2020 WL
5495530 (2d Cir. Sept. 11, 2020).
Defendants also argue that Plaintiffs’ argument that their
efforts to curb the spread of COVID-19 will be undermined by
mail delays because more residents will opt to vote in person as
speculative. Defs.’ Opp’n, ECF No. 30 at 25. At this juncture,
Plaintiffs need only demonstrate the likelihood of an increased
risk of injury. Winter, 555 U.S. at 22 (“Our frequently
reiterated standard requires plaintiffs seeking preliminary
relief to demonstrate that irreparable injury is likely in the
absence of an injunction.”). Plaintiffs have provided ample
evidence that mail delays are likely to cause more residents to
34

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 35 of 39

vote in person which in turn is likely to impede the spread of
the virus. See Kellner Decl., ECF No. 12-12 ¶ 14 (“Due to
[voters not receiving their ballots on time], additional voters
went to polling places who would not have otherwise needed to,
adding to significant crowds and delays at certain polling sites
for in-person voting. Longer wait times at polling sites is of
particular concern to election officials as this increases the
risk of exposure to COVID-19, thereby threatening the health and
safety of voters, voting officials, and the larger community.”);
Ku Decl., ECF No. 12-13 ¶¶ 17-18 (describing empirical evidence
demonstrating that “voting in crowded polling places increases
the risk of infection”); id. ¶ 12 (describing polls indicating
fewer people intend to vote by mail due to concerns about mail
delays).
Finally, Defendants argue that all residents need to do is
“mail their ballots a reasonable time before the election (which
is approximately two months away).” Defs.’ Opp’n, ECF No. 30 at
39. However, as Plaintiffs point out, the ability of the
residents of New York, Hawaii, and New Jersey to mail their
ballots is not entirely within the residents’ control since
ballots are not mailed to the residents two months before the
election.
Plaintiffs’ harm is “both certain and great . . . actual
and not theoretical” because mail delays are impeding
35

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 36 of 39

Plaintiffs’ ability to combat the spread of a highly contagious
and deadly disease and are impeding their ability to provide
safe alternatives to in-person voting. As of September 27, 2020,
204,607 Americans have died from the disease and over seven
million people have been infected with it. See Coronavirus
Resource Center, https://coronavirus.jhu.edu/map.html.
Plaintiffs’ harm is also “of such imminence that there is a
clear and present need for equitable relief to prevent
irreparable harm” because Election Day is November 3, 2020.
Because Plaintiffs have demonstrated that absent an
injunction they will suffer immediate and irreparable harm to
their ability to combat the spread of COVID-19 and to provide
safe alternatives to in-person voting, the Court need not reach
whether Plaintiffs have also demonstrated the Postal Policy
Changes have resulted in direct, unrecoverable financial harms
nor whether Plaintiffs have demonstrated that the Postal Policy
changes disrupt Plaintiffs’ administration of federal, state,
and local laws and impose additional, unnecessary administrative
burdens.
C.

The Balance Of Equities And Public Interest Favor An
Injunction

The balance-of-equities factor directs the Court to
“‘balance the competing claims of injury and . . . consider the
effect on each party of the granting or withholding of the
36

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 37 of 39

requested relief.’” ConverDyn, 68 F. Supp. 3d at 52 (quoting
Winter, 555 U.S. at 24). “When the issuance of a preliminary
injunction, while preventing harm to one party, causes injury to
the other, this factor does not weigh in favor of granting
preliminary injunctive relief.” Id.; see also Serono Labs., Inc.
v. Shalala, 158 F.3d 1313, 1326 (D.C. Cir. 1998). By contrast,
the balance of equities may favor a preliminary injunction that
serves only “‘to preserve the relative positions of the parties
until a trial on the merits can be held.’” Rufer v. FEC, 64 F.
Supp. 3d 195, 205 (D.D.C. 2014) (quoting Camenisch, 451 U.S. at
395). “The purpose of . . . interim relief is not to
conclusively determine the rights of the parties, University of
Tex. V. Camenisch, 451 U.S. 390, 395 (1981), but to balance the
equities as the litigation moves forward. In awarding a
preliminary injunction a court must also ‘conside[r]

. . . the

overall public interest,’ Winter, 555 U.S. at 26.” Trump v.
Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017).
Defendants fail to identify any equities in their favor and
do not contest the equities in the Plaintiffs’ favor.
Defendants’ only arguments are that they are “undertaking
extensive efforts to facilitate the timely delivery of Election
Mail,” that the two of the four postal policies are not changes—
"one has been stopped, and the fourth has been
mischaracterized”—and that ensuring compliance with the
37

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 38 of 39

injunction “could require the Court to act as an overseer of the
agency’s day-to-day activities.” Defs.’ Opp’n, ECF No. 30 at 50.
Here, the balance of the equities and the public interest
favor an injunction. It 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. The equities balance in favor of Plaintiffs because the
relief sought is a targeted preliminary injunction that
prohibits Defendants from continuing to implement the Postal
Service Policies with respect to which an advisory opinion from
the PRC should have been obtained prior to implementation.
Furthermore, the proposed injunction does not contemplate the
Court becoming involved in overseeing the day-to-day operations
of the USPS.

38

 Case 1:20-cv-02340-EGS Document 52 Filed 09/27/20 Page 39 of 39

V. Conclusion

For the foregoing reasons, the Court GRANTS the Plaintiffs’

motion for a preliminary injunction. Any request to stay this
decision pending appeal will be denied for substantially the
same reasons as those articulated in this Opinion. An
appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed:

Emmet G. Sullivan
United States District Judge
September 27, 2020

39