Richardson v. Trump, Civ. Action No. 20-2262 (EGS)

• Decision Date: 08 October 2020
• Docket Number: Civ. Action No. 20-2262 (EGS)
• Citation: 496 F.Supp.3d 165
• Parties: Teresa RICHARDSON; Christopher Carroll; Gina Arfi; and Aida Zygas, Plaintiffs, v. Donald J. TRUMP, in his official capacity as President of the United States; Louis DeJoy, in his official capacity as Postmaster General of the United States; and United States Postal Service, Defendants.
• Court: U.S. District Court — District of Columbia

496 F.Supp.3d 165

Teresa RICHARDSON; Christopher Carroll; Gina Arfi; and Aida Zygas, Plaintiffs,

v.Donald J. TRUMP, in his official capacity as President of the United States; Louis DeJoy, in his official capacity as Postmaster General of the United States; and United States Postal Service, Defendants.

Civ. Action No. 20-2262 (EGS)

United States District Court, District of Columbia.

Signed October 8, 2020

David Howard Berg, Pro Hac Vice, Kathryn Page Berg, Pro Hac Vice, Bronwyn James, Pro Hac Vice, James W. Quinn, Pro Hac Vice, Berg & Androphy, New York, NY, Joel M. Androphy, Berg & Androphy, Houston, TX, for Plaintiffs.

Kuntal Virendra Cholera, United States Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

EMMET G. SULLIVAN, United States District Judge

Plaintiffs—four voter-eligible individuals from Texas, Pennsylvania, New York, and Wisconsin—bring this lawsuit against Defendants President Donald J. Trump ("President 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") alleging (1) violation of the constitutional right to vote; (2) civil conspiracy to violate the right to vote; and (3) ultra vires agency action. Am. Compl., ECF No. 49.¹ Plaintiffs seek a preliminary injunction with regard to each of their claims.

Upon consideration of the Plaintiffs’ motion, the response, and reply thereto, the applicable law, and the entire record, the Court GRANTS IN PART and DENIES IN PART Plaintiffs’ motion.

I. Background

A. Factual Background

1. The COVID-19 Pandemic

The COVID-19 pandemic has increased reliance on mail delivered by the USPS. See Hersh Decl., ECF No. 57-6 ¶ 10. Several states have adjusted their election procedures to allow for all eligible voters to vote by mail-in ballot in the November 2020 election. For example, nine states and the District of Columbia will automatically send voters ballots this year, and another nine states will automatically send voters an application to request an absentee ballot. Id. ¶ 12. In addition, "some 77% of Americans live in jurisdictions in which anyone can request a mail ballot (without an excuse) or are mailed applications to vote by mail or are mailed actual ballots to cast votes by mail." Id. ¶ 14. In total, the adjustments made by many states in response to the COVID-19 pandemic will result in approximately 80 million mail-in ballots being submitted for the November election. See id.

2. USPS Postal Policy Changes

In June and July 2020, the USPS announced and implemented a series of changes (collectively, "Postal Policy Changes") to how it collects, processes, and delivers mail.

First, in a "leaked PowerPoint" titled "PMGs expectations and plan," USPS announced that penalty overtime "will be eliminated" and "[o]vertime will be eliminated" because "we are paying too much in [overtime] and it is not cost effective" ("Overtime Policy"). Am. Compl., ECF No. 49 ¶ 48 (citing Leaked USPS PowerPoint Indicates PMG DeJoy Focus on Getting Operating Costs Under Control , Alliance of Nonprofit Mailers (July 14, 2020), nonprofitmailers.org/leaked-usps-powerpoint-indicates-pmg-dejoy-focus-on-getting-operating-costs-under-control/ [hereinafter "USPS PowerPoint"]² ). In testimony before the House Oversight and Reform Committee on August 24, 2020, Mr. DeJoy stated that he "did not direct the elimination or any cutback in overtime." See Ex. 14 to Defs.’ Response Pls.’ Mot. Prelim. Inj. ("Defs.’ Opp'n"), ECF No. 55-4 at 305.

Second, on June 17, 2020, the USPS announced that it would be removing high-speed sorting machines nationwide over the course of several months. Am. Compl., ECF No. 49 ¶¶ 50-51 (citing Letter from Rickey R. Dean, Manager of Contract Admin., Am. Postal Workers Union, to Mark Diamondstein, Pres., Am. Postal Workers Union (June 17, 2020), https://www.21cpw.com/wp-content/uploads/2020/06/mail-processing-equipment-reduction_6-17-2020.pdf³ ); see also Ex. A to Reply Further Supp. Pls.’ Mot. Prelim. Inj. ("Pls.’ Reply"), ECF No. 57-2. Defendants state that the further removal of equipment has been suspended until after the November 2020 election. Defs.’ Opp'n, ECF No. 55 at 23-24.

Third, on July 10, 2020, the USPS announced several "transportation changes," including changes prohibiting "late trips" and "extra trips" ("Late/Extra Trips Policy"). Am. Compl., ECF No. 49 ¶ 52 (citing Jory Heckman, USPS Warns Staff of Temporary Mail Delays As It Cuts ‘Soaring’ Delivery Costs , Fed. News Network (July 15, 2020), https://federalnewsnetwork.com/management/2020/07/usps-warns-staff-of-temporarymail-delays-as-it-cuts-soaring-delivery-costs⁴ ). 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) ...." Id. ¶ 53. By August 13, 2020, the USPS had reduced the number of extra trips by 71 percent. Pls.’ Reply, ECF No. 57 at 8 (citing Path Forward: PMG Addresses Restructuring , USPS LINK (Aug. 13, 2020), https://link.usps.com/2020/08/13/path-forward-2⁵ ). Defendants have clarified that late or extra trips are not "banned"; however, they acknowledge that they continue "at a reduced level." Cintron Decl., ECF No. 55-3 ¶ 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. A to Notice Suppl. Material, ECF No. 62-1 at 4.

Fourth, on July 16, 2020, 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." Mem. Points Authorities Supp. Pls.’ Appl. Prelim. Inj. ("Pls.’ Mot."), ECF No. 15 at 22. The National Association of Letter Carriers thereafter expressed concern that "USPS chose to test [the initiative] unilaterally" without their participation and because it did not seem to "conform" with specific USPS handbook provisions regarding certain types of mail. See Am. Compl., ECF No. 49 ¶¶ 54-55 (citing USPS Announces New ESAS Delivery Initiative Test , Nat'l Ass'n of Letter Carriers (July 21, 2020), https://www.nalc.org/news/nalc-updates/usps-announces-new-esas-delivery-initiative-test⁶ ). A subsequent USPS internal memo clarified that the initiative meant that "[c]ity carriers will not sort any mail during the morning operation," but will instead sort delivery in the afternoon "[u]pon return from street delivery." Id. ¶ 56 (citing Memorandum from USPS (July 2020), http://www.nalc3825.com/SUT.ESAS.July.2020.pdf⁷ ). Defendants state that this program has been "suspended at the Postmaster General's Direction." Defs.’ Opp'n, ECF No. 55 at 28.

Fifth, on August 7, 2020, Mr. DeJoy "released a reorganization memo reflecting that twenty-three postal executives, including several with decades of experience, were reassigned or displaced." Am. Compl., ECF No. 49 ¶ 59 (citing Jacob Bogage, Postal Service Overhauls Leadership as Democrats Press for Investigation of Mail Delays , Wash. Post (Aug. 7, 2020), https://www.washingtonpost.com/business/2020/08/07/postal-service-investigationdejoy⁸ ). In addition, USPS announced it had implemented a "management hiring freeze and will be requesting future Voluntary Early Retirement Authority from the Office of Personnel Management for employees not represented by a collective bargaining agreement." Id. ¶ 60 (citing Press Release, Postmaster General Louis DeJoy Modifies Organizational Structure to Support USPS Mission (Aug. 7, 2020), https://about.usps.com/newsroom/national-releases/2020/0807-pmg-modifiesorganizational-structure.htm⁹ ). Defendants have stated that "[f]or a period of time beginning in August 2020, there has been a management hiring freeze for all non-bargaining unit employees. However, that hiring freeze has had no impact on craft employees. Indeed, [USPS] has hired thousands of new employees to help address staff shortages caused by the pandemic." Curtis. Decl., ECF No. 55-1 ¶ 25.

Sixth, in August 2020, USPS also began removing mailboxes in New York, Pennsylvania, Oregon, and Montana. Pls.’ Mot., ECF No. 15 at 22. Defendants state that the removal of mailboxes has been suspended until after the November 2020 election. Defs.’ Opp'n, ECF No. 55 at 23-24.

Seventh, 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 Pls.’ Reply, ECF No. 57 at 12; see also Goldway Decl., ECF No. 57-7 ¶¶ 4-6. This was a change to the USPS practice of treating "Election Mail"¹⁰ and political mail mailed as marketing mail on an expedited First-Class basis. Pls.’ Reply, ECF No. 57 at 12; see also Goldway Decl., ECF No. 57-7 ¶¶ 5-7.

3. USPS Postal Policy Changes Have Led To Nationwide Delays And Continue To Have A Nationwide Impact

"[O]n-time mail delivery fell abruptly following ... [Mr.] DeJoy's July 2020 directives ordering operational changes in mail service and delivery. By the second week of August 2020, on-time delivery of First-Class Mail nationwide had fallen nearly 10 percentage points compared to the week preceding the change." Pls.’ Reply, ECF No. 57 at 9-10 (quoting Senator Gary Peters, U.S. Senate Comm. on Homeland Sec. & Gov't Affairs, Failure to Deliver: Harm Caused by U.S. Postmaster General DeJoy's Changes to Postal Service Mail Delivery 3 (Sept. 16, 2020), https://www.hsgac.senate.gov/imo/media/doc/200916_FullReport_PetersPostalInvestigation.pdf [hereinafter ...