Vote Forward v. DeJoy
| Decision Date | 28 September 2020 |
| Docket Number | Civ. Action No. 20-2405 (EGS) |
| Citation | 490 F.Supp.3d 110 |
| Parties | VOTE FORWARD; Amy Bolan; Aaron Carrel ; Dante Flores-Demarchi; Paul Hunter; Sebastian Immonen; Kathryn Montgomery ; Sean Morrison ; Inderbir Singh Datta; Martha Thompson; Linda Roberson ; Gary Young; Voces Unidas de las Montañas; Colorado Organization for Latina Opportunity and Reproductive Rights; Padres & Jóvenes Unidos, Plaintiffs, v. Louis DEJOY, in his official capacity as the Postmaster General; and the United States Postal Service, Defendants. |
| Court | U.S. District Court — District of Columbia |
Shankar Duraiswamy, Covington & Burling LLP, Washington, DC, Robert D. Fram, Pro Hac Vice, Covington & Burling LLP, San Francisco, CA, for Plaintiffs.
Kuntal Virendra Cholera, John Robinson, U.S. Department of Justice, Washington, DC, for Defendants.
Plaintiffs—eleven voter-eligible individuals and four organizations dedicated to seeking greater civic engagement in the November 2020 election—bring this lawsuit against Defendants Louis DeJoy ("Mr. DeJoy"), in his official capacity as Postmaster General of the United States, and the United States Postal Service ("USPS"), alleging that a new USPS policy implemented in July 2020 violates Plaintiffs’ constitutional right to vote and constitutes ultra vires agency action. See Pls.’ Am. Compl., ECF No. 15.1 Plaintiffs seek a preliminary injunction with regard to their constitutional claim.
Upon consideration of the Plaintiffs’ motion, the response, the reply thereto, the applicable law, and the entire record, the Court GRANTS Plaintiffs’ motion.
Plaintiffs assert that the COVID-19 pandemic has increased reliance on mail delivered by the USPS. Pls.’ Mem. Law Supp. Mot. Prelim. Inj. ( ), ECF No. 16-1 at 7. According to Plaintiffs, several states have adjusted their election procedures to allow for all eligible voters to vote by mail-in ballot in the November 2020 election: 43 states and the District of Columbia will permit all eligible voters to vote by mail, and 28 states will require that the ballots be received, rather than postmarked, by Election Day. Id. at 7-8 (citing news reports). In total, the adjustments made by many states in response to the COVID-19 pandemic will result in approximately 83% of all eligible voters having the opportunity to vote in this method. Id. (citing news reports). It is anticipated that at least 80 million mail-in ballots will be submitted for the November election. See Hersh Decl., ECF No. 16-15 ¶ 14.
On July 10, 2020, USPS announced an "operational pivot" to make "immediate, lasting, and impactful changes in our operations and culture." Ex. 4 to Pls.’ Mot., ECF No. 16-6 at 2. As most relevant here, the document stated that (1) "[a]ll trips will depart on time (Network, Plant and Delivery); late trips are no longer authorized or accepted"; (2) "[e]xtra trips are no longer authorized or accepted"; (3) "[c]arriers must begin on time, leave for the street on time, and return on time"; and (4) "no additional transportation will be authorized to dispatch mail to the Plant after the intended dispatch" (collectively, the "Late/Extra Trips Policy"). Id. 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 in the workroom floor or docks ..., which is not typical." Id. However, the document noted expectations that "operations will begin to run more efficiently and that delayed mail volumes will soon shrink significantly." Id. at 3. These changes were also confirmed in a USPS PowerPoint presentation, which explained that if Ex. 5, ECF No. 16-7 at 5-6. Since the USPS policy took effect, USPS has eliminated an average of 32,900 extra or late trips per week, Grimmer Decl., ECF No. 16-11 ¶¶ 10-11, or a 75% drop in the number of both types of trips, Pls.’ Reply, ECF No. 24 at 11.
Due to the policy changes expressly prohibiting late trips and extra trips, the ability to deliver mail in an efficient manner can be inhibited at three different points in the delivery chain. First, mail handlers deliver mail from the local post office to a USPS processing plant; if the mail arrives at the post office after the handler has already left for the processing plant, the mail may wait at the post office until the next day. Pls.’ Mot., ECF No. 16-1 at 12-13. Second, once the mail arrives at the processing plant, if it is not processed prior to the mail handler's scheduled departure time from the plant to the relevant delivery unit, it again may remain at the plant until the next day. Id. at 13. Third, once the letter has made it to the delivery unit, it still must arrive prior to the mail carrier's trip to the final intended destination; if it arrives after the mail carrier has left for her delivery route, the letter may be delayed one day. Id. at 13. Thus, the USPS policy changes may potentially delay certain mail items for up to three days more than typical prior to the policy changes.
The USPS policy changes stand in contrast with prior practices that allowed postal workers to conduct late trips or extra trips "to delay or supplement their scheduled deliveries to ensure that they have collected and transported all outstanding mail at any given facility." Pls.’ Mot., ECF No. 16-1 at 10 ).
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. 21-3 ¶ 4. On September 21, 2020, USPS also issued "Operational Instructions" providing that See Ex. 1 to Notice Suppl. Material, ECF No. 30-1 at 4.
USPS records indicate that nationally, on-time delivery of First-Class Mail began to decline following implementation of the USPS policy changes. On-time services scores are the "measure of the frequency with which USPS is able to deliver mail in the timeframe defined by its service standards." Pls.’ Reply, ECF No. 24 at 11; see also Suppl. Grimmer Decl., ECF No. 24-2 ¶¶ 5, 7. During the pre-policy period, from January 4, 2020 to July 4, 2020, the average USPS service score was 91.6% nationally; however, the August 29, 2020 service score was 3.56 percentage points lower than the pre-policy average. Suppl. Grimmer Decl., ECF No. 24-2 ¶ 5; see also id. (). The overall decline in service scores is consistent across all but one region in the United States, though the service scores vary. For example, while the USPS "Capital Metro" area has a service score that has declined 6.3 percentage points since implementation of the USPS policy, the service score in the "Southern" area has declined by only approximately two percentage points. See id. ¶ 7. Moreover, services scores in 91% of USPS districts around the United States are lower as compared to the pre-policy average from January 4, 2020 to July 4, 2020. Id. ¶¶ 8-9.
Defendant Mr. DeJoy has recognized that USPS made only "one change" in early July 2020, and that change regarded his request that "the team ... run the transportation on time and mitigate extra trips." Ex. 6 to Pls.’ Mot., ECF No. 16-8 at 4. In the August 13, 2020 letter to all USPS employees, Mr. DeJoy also acknowledged delivery delays were "unintended consequences" of the USPS policy changes. See Pls.’ Mot., ECF No. 16-1 at 16 (citing USPS, Path Forward: PMG Addresses Restructuring (Aug. 13, 2020), https://rb.gy/y6tbre). Furthermore, in testimony before the House Committee on Oversight and Reform on August 24, 2020, Mr. DeJoy again recognized that the USPS policy changes were causing delivery delays and that it "expose[d] a need to realign some of [USPS's] processing and scheduling that caused mail to miss the scheduled transportation." See Ex. 8 to Pls.’ Mot., ECF No. 16-10 at 10. Mr. DeJoy stated that because "production schedules within the plants were not aligned with the transportation schedules going out," "about 10% of the mail was not aligned." See Ex. 6 to Pls.’ Mot., ECF No. 16-8 at 7.
Plaintiffs filed this lawsuit on August 28, 2020. See Compl., ECF No. 1. On September 8, 2020, Plaintiffs filed an amended complaint against Defendants, see Am. Compl., ECF No. 15, and subsequently filed a motion for preliminary injunction requesting that the Court enjoin Defendants and their agents from implementing the USPS policy changes, see Pls.’ Mot. Prelim. Inj., ECF No. 16. Defendants filed their opposition on September 15, 2020. See Defs.’ Resp. Pls.’ Mot. Prelim. Inj. ( ), ECF No. 21. Plaintiffs filed their reply brief on September 20, 2020. See Pls.’ Reply Supp. Mot. Prelim. Inj. ( ), ECF No. 24. The motion is ripe for the Court's consideration.
"A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is 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,...
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