Del Gallo v. Parent

• Decision Date: 25 February 2009
• Docket Number: No. 08-1511.,08-1511.
• Citation: 557 F.3d 58
• Parties: Rinaldo DEL GALLO, III, Plaintiff, Appellant, v. Roger PARENT, United States Postal Service Postmaster; Pittsfield Post Office, Defendants, Appellees, Anthony Riello, Chief, Pittsfield Police Department, Defendant.
• Court: U.S. Court of Appeals — First Circuit

557 F.3d 58

Rinaldo DEL GALLO, III, Plaintiff, Appellant, v. Roger PARENT, United States Postal Service Postmaster; Pittsfield Post Office, Defendants, Appellees, Anthony Riello, Chief, Pittsfield Police Department, Defendant.

No. 08-1511.

United States Court of Appeals, First Circuit.

Heard December 1, 2008.

Decided February 25, 2009.

David F. Klein with whom Shara L. Boonshaft, Heller Ehrman LLP, William C. Newman, and American Civil Liberties Union of Massachusetts were on brief for appellant.

Thomas R. Lotterman, Duke K. McCall, III, Carol E. Head, and Bingham McCutchen LLP on brief for Humane Society of the United States, amicus curiae.

Karen L. Goodwin, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellees.

Before LYNCH, Chief Judge, BOUDIN and LIPEZ, Circuit Judges.

LYNCH, Chief Judge.

This case concerns whether the Free Speech Clause of the First Amendment compels the U.S. Postal Service to allow campaigning activity for election to public office on a post office sidewalk, constructed and used to give postal patrons access to the door of the post office and distinguishable from neighboring public sidewalks.

Plaintiff Rinaldo Del Gallo, III, a candidate for public office in Massachusetts, brought suit in 2006 seeking to prevent the Pittsfield Post Office from enforcing a Postal Service regulation that restricted his ability to collect signatures for his campaign on its sidewalk. The district court granted summary judgment for the defendants, Pittsfield Postmaster Roger Parent and the Pittsfield Post Office, finding that the restriction did not violate the First Amendment. See Del Gallo v. Parent, 545 F.Supp.2d 162, 183-84 (D.Mass.2008). We affirm.

I.

A. The Modern Postal Service and the Regulation

The Constitution empowers Congress "`To establish Post Offices and post Roads' and `To make all Laws which shall be necessary and proper' for executing this task." U.S. Postal Serv. v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 121, 101 S.Ct. 2676, 69 L.Ed.2d 517 (1981) (quoting U.S. Const. art. I, § 8). Congress has directed the Postal Service to "plan, develop, promote, and provide adequate and efficient postal services at fair and reasonable rates and fees," 39 U.S.C. § 403(a), and to "maintain an efficient system of collection, sorting, and delivery of the mail nationwide," id. § 403(b)(1). Congress expressly authorized the Postal Service to adopt rules and regulations to accomplish these ends. Id. § 401(2); see also Council of Greenburgh Civic Ass'ns, 453 U.S. at 123, 101 S.Ct. 2676.

The Postal Service has regulations concerning conduct on its property, which are set forth at 39 C.F.R. § 232.1. At issue is the application of paragraph (h) of that regulation, which bans "campaigning for election to any public office" on post office property. The regulation was applied to stop plaintiff from campaigning on the Pittsfield Post Office sidewalk. Along with the ban on election campaigning, which is at issue here, the regulation also bans "collecting signatures on petitions," "[s]oliciting alms and contributions," "vending for commercial purposes," and other related conduct on postal property, but these bans are not at issue.

Significantly, the Postal Service's regulation itself draws distinctions based on the character and location of its property. The ban on election campaigning applies to sidewalks on post office property. 39 C.F.R. § 232.1(a). But the ban explicitly does not apply to postal sidewalks "along the street frontage of postal property ... that are not physically distinguishable from adjacent municipal or other public sidewalks." Id. § 232.1(a)(ii).¹

As the Supreme Court noted in another First Amendment challenge to a Postal Service restriction, "only by review of the history of the postal system and its present statutory and regulatory scheme can the constitutional challenge to [the restriction] be placed in its proper context." Council of Greenburgh Civic Ass'ns, 453 U.S. at 121, 101 S.Ct. 2676. The regulation at issue relates to one of the Postal Service's longstanding problems and grows out of Congress's and the Service's attempts to address this problem.

Through much of its history, the post office was closely tied to partisan politics. Until 1970, the post office was organized as a Cabinet-level department within the executive branch of the federal government. See H.R.Rep. No. 91-1104 (1970), reprinted in 1970 U.S.C.C.A.N. 3649, 3657. The Postmaster General was appointed by the President, and his "presence in the President's Cabinet creat[ed] a link between partisan politics and the [post office]." Id. at 3660. Congress was deeply involved in the management of the post office, including rate setting, selection of local postmasters, and the details of labor relations. See id. at 3653, 3662, 3667; R. Geddes, Saving the Mail 7-9 (2003). As one aspect of the political entanglement, the post office was also an important source of political patronage jobs. H.R.Rep. No. 91-1104, reprinted in 1970 U.S.C.C.A.N. at 3661 (stating that "vestiges of 19th century political patronage practices have persisted in the Post Office Department"); Geddes, supra, at 8 ("[P]ostmasters were often chosen to provide political patronage under a[ ] ... system [that] allowed members of Congress and occasionally local party officials to choose the local postmaster."); S. Calabresi & C. Yoo, The Unitary Executive During the Second Half-Century, 26 Harv. J.L. & Pub. Pol'y 667, 672 (2003) (describing the nineteenth century Post Office Department as being "heavily patronage-influenced"); S. Kernell & M. McDonald, Congress and America's Political Development The Transformation of the Post Office from Patronage to Service, 43 Am. J. Pol. Sci. 792, 792, 796-97 (1999) (stating that "[t]hroughout the nineteenth century the political fortunes of members of Congress depended heavily on their ability to send patronage home to their states" and that "[m]ost of these [patronage] jobs were located in the post office"); L. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 Colum. L.Rev. 215, 280 & n. 256 (2000) ("State and local parties ... exerted influence over federal administration through spoils rotation, providing personnel to staff local federal post offices...."); J. Mashaw, Administration and "The Democracy": Administrative Law from Jackson to Lincoln, 1829-61, 117 Yale L.J. 1568, 1621, 1691 (2008) (noting the "massive use of patronage" in the Post Office Department in the nineteenth century). These historic associations between the post office and electoral politics are no longer considered acceptable.

In 1970, Congress passed the Postal Reorganization Act, Pub.L. No. 91-375, 84 Stat. 719, "to deal with the problems of increasing deficits and shortcomings in the overall management and efficiency of the Post Office," Council of Greenburgh Civic Ass'ns, 453 U.S. at 122, 101 S.Ct. 2676. In doing so, Congress recognized that partisan political entanglement was one of the foremost problems facing the post office. See H.R.Rep. No. 91-1104, reprinted in 1970 U.S.C.C.A.N. at 3661 ("[O]ne of the cardinal needs of postal reform is to seal off the Postal Service from partisan political influence."). The close connection between partisan politics and Post Office Department contributed to inefficiencies and to problems in rate setting and management. See id. at 3653, 3660-61, 3667; Geddes, supra, at 7-11.

Congress was also concerned with the effect that the connection between electoral politics and the post office had on public perception. See H.R.Rep. No. 91-1104, reprinted in 1970 U.S.C.C.A.N. at 3653 ("[D]etailed congressional involvement in the technical details of postal economics ... [led to] a widespread public impression that the influence of special interests has a determining effect on the structure of today's postal rates."). Moreover, Congress determined that "political patronage practices [had] persisted in the Post Office Department too long." H.R.Rep. No. 91-1104, reprinted in 1970 U.S.C.C.A.N. at 3661; see also id., reprinted in 1970 U.S.C.C.A.N. at 3654 ("Nineteenth century customs of political patronage have no place in a late 20th century postal system.").

Thus, Congress sought to have "the Post Office ... taken out of politics and politics out of the Post Office." H.R.Rep. No. 91-1104, reprinted in 1970 U.S.C.C.A.N. at 3654. The Postal Reorganization Act abolished the Post Office Department as a Cabinet-level Department and established in its place the United States Postal Service as a government-owned corporation. Id. at 3657; see also Council of Greenburgh Civic Ass'ns, 453 U.S. at 122, 101 S.Ct. 2676. Significantly, Congress directed the new Postal Service be funded by its own revenue and "run more like a business than had its predecessor, the Post Office Department." Franchise Tax Bd. v. U.S. Postal Serv., 467 U.S. 512, 519-20, 104 S.Ct. 2549, 81 L.Ed.2d 446 (1984). In an increasingly competitive market, "Congress ... directed the Service to become a self-sustaining service industry and to `seek out the needs and desires of its present and potential customers—the American public.'" United States v. Kokinda, 497 U.S. 720, 732, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990) (plurality opinion) (quoting H.R.Rep. No. 91-1104, reprinted in 1970 U.S.C.C.A.N. at 3668).

Congress sought to insulate the Postal Service from electoral politics by "establishing institutional buffers between the President and the Congress on the one hand, and the officers and employees of the Postal Service on the other." H.R.Rep. No. 91-1104, reprinted in 1970 U.S.C.C.A.N. at 3661. The Postal Reorganization Act distanced elected officials from rate setting and the day-to-day management of the Postal Service and put additional protections in place to address the problem of patronage. See id. It also empowered the Postal Service to...