Cooper v. U.S. Postal Service, Docket No. 07-4825-cv (L).

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: Dennis Jacobs
• Citation: 577 F.3d 479
• Parties: Bertram COOPER, Plaintiff-Appellee, v. U.S. POSTAL SERVICE, John E. Potter, as Postmaster General, Ronald G. Boyne, as Postmaster, Manchester, Connecticut Post Office, Defendants-Appellants, Full Gospel Interdenominational Church Inc., Dr. Philip Saunders Heritage Association, Inc., Sincerely Yours Inc., Intervenors-Defendants-Appellants, Gary Chipman, Kimon Karath, Leslie Strong, Intervenors.
• Docket Number: Docket No. 07-4826-cv (Con).,Docket No. 07-4825-cv (L).
• Decision Date: 20 August 2009

577 F.3d 479 Bertram COOPER, Plaintiff-Appellee,
v.
U.S. POSTAL SERVICE, John E. Potter, as Postmaster General, Ronald G. Boyne, as Postmaster, Manchester, Connecticut Post Office, Defendants-Appellants,
Full Gospel Interdenominational Church Inc., Dr. Philip Saunders Heritage Association, Inc., Sincerely Yours Inc., Intervenors-Defendants-Appellants,

[577 F.3d 480]

Gary Chipman, Kimon Karath, Leslie Strong, Intervenors. Docket No. 07-4825-cv (L). Docket No. 07-4826-cv (Con). United States Court of Appeals, Second Circuit. Argued: March 20, 2009. Decided: August 20, 2009.

[577 F.3d 483]

Jeffrey A. Shafer, Benjamin W. Bull, Jordan W. Lorence, Matthew S. Bowman, Alliance Defense Fund, Washington, D.C., Joseph P. Secola, Secola Law Offices, Brookfield, CT, for Appellant.

Aaron S. Bayer, Kevin M. Smith, Alex J. Glage, Wiggin and Dana LLP, New Haven, CT, Daniel Mach, American Civil Liberties Union Foundation, Washington, D.C., David McGuire, Connecticut Civil Liberties Union Foundation, Hartford, CT, for Appellees.

Murad Hussain, Ronald L. Johnston, Arnold & Porter LLP, Los Angeles, CA, Ayesha N. Khan, Alex J. Luchenitser, Americans United for Separation of Church and State, for Amicus Curiae Americans United for Separation of Church and State.

Jeffrey I. Pasek, Cozen O'Connor, New York, NY, Theodore R. Mann, Jewish Social Policy Action Network, Philadelphia, PA, for Amicus Curiae Jewish Social Policy Action Network.

Steven M. Freeman, Steven C. Sheinberg, Anti-Defamation League, New York, NY, for Amicus Curiae Anti-Defamation League.

Before: JACOBS, Chief Judge, WESLEY, Circuit Judge, and CROTTY, District Judge.^*

[577 F.3d 484]

DENNIS JACOBS, Chief Judge:

This case raises an Establishment Clause challenge to religious displays at a contract postal unit operated by a church in Manchester, Connecticut. Contract postal units, or "CPUs," are postal facilities operated by private entities on private property (such as general stores or private homes) pursuant to contracts with the United States Postal Service. Plaintiff Bertram Cooper ("Cooper"), a Manchester resident, alleged discomfort with encountering religious materials displayed at the Manchester CPU and sued the United States Postal Service ("USPS"), the Postmaster General of the United States (John E. Potter ("Potter")), and the Postmaster of Manchester, Connecticut (Ronald G. Boyne ("Boyne")) for declaratory and injunctive relief. The Full Gospel Interdenominational Church (the "Church"), which operates the CPU pursuant to a revenue-sharing contract with the United States government, intervened as a Defendant.¹ The Manchester CPU is a purpose-built storefront with postal facilities on one side and the Church's outreach and ministry efforts on the other, with some spillover.

On cross-motions for summary judgment, the U.S. District Court for the District of Connecticut (Squatrito, J.) initially decided that the religious displays at the CPU violated the Establishment Clause, ordered removal of the religious displays from the premises, and issued a permanent injunction preventing the Church— and proprietors of other CPUs—from displaying religious materials in contract postal units. On a motion to amend the judgment, the district court concluded that Cooper lacked standing to challenge Postal Service policies as to other CPUs and the decision was amended to apply only to the Manchester CPU. The injunction is stayed pending this appeal.

On appeal, the Church argues that the grant of partial summary judgment to Cooper was error because the displays: (i) were erected without involvement or encouragement by the USPS, (ii) do not violate regulations governing the appearance of CPUs, and (iii) constitute private speech.

Cooper, in turn, contends that the CPU is a state actor because (i) the USPS delegated to it an exclusively public function and (ii) the extensive and detailed contracts which accompany participation in the CPU program sufficiently involve the state in the CPU's activities. Cooper argues that as state action, the religious displays violate the Establishment Clause. Cooper stopped using the CPU when he entered a nursing home, but the suit has continued on behalf of three intervenors who are similarly aggrieved.

We now affirm in part and reverse in part. We conclude that Cooper had standing to raise an Establishment Clause challenge and that an Establishment Clause violation occurred at the Manchester CPU, but that any such violation is limited to the area of the CPU performing the public function; all other areas of the CPU remain the province of the private entity. Accordingly, by way of remedy, we require that the postal counter be free of religious material, and that visual cues distinguish the space operating as a postal facility from the space functioning as the private property of the Church.

577 F.3d 485

I

(A) The Post Office

Article I, Section 8 of the Constitution provides that "Congress shall have power ... [t]o establish Post Offices and post Roads." Congress has delegated the power to create Post Offices to the USPS, 39 U.S.C. § 404(a)(3), awarded the USPS a monopoly over the carriage of letter mail, see Private Express Statutes, 18 U.S.C. §§ 1693-1699; Air Courier Conf. of Am. v. Am. Postal Workers Union AFL-CIO, 498 U.S. 517, 519, 111 S.Ct. 913, 112 L.Ed.2d 1125 (1991), and forbidden the establishment of post offices without authority from the Postal Service, 18 U.S.C. § 1729.² Congress has also directed the Postal Service to "serve as nearly as practicable the entire population of the United States." 39 U.S.C. § 403(a). That directive includes "establish[ing] and maintain[ing] 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)(3). This entails "a maximum degree of effective and regular postal services to rural areas, communities, and small towns [even] where post offices are not self-sustaining." 39 U.S.C. § 101(b).

(B) CPUs

In order to comply with the Congressional mandate, the USPS uses both traditional post offices (or "classified" post offices) as well as CPUs, postal facilities operated by private parties on private property pursuant to revenue-sharing contracts with the government. The CPUs furnish postal services to places where it is not otherwise geographically or economically feasible to build and operate official "classified" post offices. Originally called "contract stations," CPUs have been used by the Postal Service since the 1880s.³

The "Glossary of Postal Terms" defines a CPU as:

A postal unit that is a subordinate unit within the service area of a main post office. It is usually located in a store or place of business and is operated by a contractor who accepts mail from the public, sells postage and supplies, and provides selected special services (for example, postal money order or registered mail)....

United States Postal Service Glossary of Postal Terms, Publication 32, May 1997 (Updated With Revisions Through July 5, 2007) at 27.⁴ Five thousand CPUs across the country are in locations as diverse as private homes, gas stations, seminaries, groceries, gift shops, and hardware stores. See Defendants' Statement Pursuant to Local Rule 56 of the Southern District of New York ("Local Rule 56(a)1 Statement"), ¶ 6, December 27, 2004; Postal Accountability and Enhancement Act § 302 Network Plan, June 2008, at 42-43.⁵ Several are operated by faith-based entities. See Defendants' Local Rule 56(a)1 Statement, ¶ 16.

(C) Postal Regulations

According to postal regulations, a CPU "must not be located in, or directly connected

577 F.3d 486

to, a room where intoxicating beverages are sold for consumption on the premises." Standard Operating Procedures for Contract Postal Units. Beyond that, instruction is provided by the Contract Postal Unit Operations Guide, a training and operations manual for proprietors of CPUs:

The appearance of your [CPU] reflects not only on you as a businessperson, but also on the Postal Service. Your unit should be organized and clean, conveying a professional image to your customers. It is very important to the success of your unit that our customers can recognize you as an official United States Post Office contract unit. The Postal Service has dedicated exterior and interior signage that will help you establish this identity.

CPUs are regulated by these few guidelines, which are mainly words of encouragement. Classified post offices, on the other hand, are governed by exacting regulations. Among them are limitations on the presence of religious displays, messages and symbols. For example, the Postal Operations Manual ("POM") provides that "[e]xcept for official postal and other governmental notices and announcements, no handbills, flyers, pamphlets, signs, posters, placards, or other literature may be deposited on the grounds, walks, driveways, parking and maneuvering areas; exteriors of buildings and other structures; or on the floors, walks, stairs, racks, counters, desks, writing tables, window ledges, or furnishings in interior public areas on postal premises [of classified post offices]." POM § 124.55.⁶ "Bulletin boards and other posting space in Post Office lobbies and other public access areas may not be used for posting or display of ... [r]eligious symbols...." Id. Seasonal holiday displays are tightly regulated (as set out in the margin⁷). No such regulations govern CPUs.

(D) The Manchester CPU

For more than 15 years, the Postal Service has relied on CPUs to supplement postal service in Manchester, Connecticut. Prior to 2001, the CPU was located in the "Community Place," an outreach organization. When Community Place suspended operation in 2001, the USPS solicited bids. There were two bidders: Manchester Hardware, Inc., and the Full Gospel Interdenominational Church. The Postal...