Zukerman v. United States Postal Service, Case No. 15-cv-2131 (CRC)

CourtUnited States District Courts. United States District Court (Columbia)
Citation567 F.Supp.3d 161
Docket NumberCase No. 15-cv-2131 (CRC)
Parties Anatol ZUKERMAN, and Charles Krause Reporting, LLC, Plaintiffs, v. UNITED STATES POSTAL SERVICE, Defendant.
Decision Date24 September 2021

Julius Plaut Taranto, Aaseesh P. Polavarapu, Geoffrey M. Klineberg, Kenneth Chris Todd, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., Washington, DC, for Plaintiffs.

Rebecca Michelle Kopplin, United States Department of Justice, Civil Division, Washington, DC, for Defendant.


CHRISTOPHER R. COOPER, United States District Judge

Before last year, the United States Postal Service ("USPS" or "Postal Service") permitted people to order customized postage featuring images of their choosing. The program appeared to be a win-win. USPS generated much-needed revenue while its customers could add a personal touch to their mail. Baby and puppy stamps abounded.

Enter Anatol Zukerman, an 82-year-old Soviet émigré who creates political artwork. In 2015, Zukerman hoped to promote an upcoming gallery exhibition featuring his art. Thinking that customized postage would do the trick, Zukerman placed an order with Zazzle, Inc., an authorized USPS vendor, for 40 stamps depicting one of his drawings. But Zazzle rejected the order, finding that the drawing Zukerman submitted, which criticized the Supreme Court's Citizens United decision, was political in nature and thus violated its content guidelines. Zukerman, along with the gallery that sponsored the exhibition, has been disputing this decision ever since.

Zukerman brought the fight to this Court in late 2015. He alleged that the Postal Service, through Zazzle, engaged in viewpoint discrimination in violation of the First Amendment by rejecting his stamp design while approving other designs with obvious political content. After defeating an initial jurisdictional motion by USPS and mounting a successful appeal of the Court's dismissal of the case as moot following the Postal Service's revision of its content guidelines, Zukerman is now back before the Court on remand. Meanwhile, the Postal Service, citing falling demand and legal challenges (doubtless including this one), has shuttered the customized stamp program entirely.

The parties have completed discovery and cross moved for summary judgment. Zukerman asks the Court to declare that USPS has engaged in unconstitutional viewpoint discrimination. And to remedy that violation, he seeks an order requiring USPS to print valid U.S. postage bearing his Citizens United drawing or, failing that, to "make reasonable efforts" to recall from circulation or "decertify" all political designs that it previously issued under the program. The Postal Service disputes the merits of Zukerman's claim. But should the Court find in his favor, USPS argues that Zukerman's proposed remedies are both unworkable and unreasonable for a host of reasons.

The Court will grant judgment for Zukerman on the merits. He has demonstrated through discovery that Zazzle accepted orders for at least some custom postage that carried a political message while rejecting his Citizens United design. And USPS cannot disassociate itself from Zazzle's actions by claiming that the vendor was not a state actor. The Postal Service is therefore liable for viewpoint discrimination in violation of the First Amendment.

But the Court declines to grant Zukerman's main proposed remedies. Whether or not the Postal Service has legal authority to print Zukerman's design now that it has discontinued the custom stamp program—an issue the parties vigorously dispute—prudence counsels against compelling USPS to do so. Among other considerations, discovery has not revealed direct involvement by USPS in Zazzle's approval of obviously political stamp designs; the evidence instead suggests that Zazzle printed other political designs either inadvertently or in clear contravention of USPS policy (including a few ordered by Zukerman's lawyers to prove up their case). Zukerman also has not established that the relative volume of political designs that made their way into circulation was particularly large. And forcing USPS to issue Zukerman's stamps would open the gates to similar requests from others claiming that their designs were improperly rejected at some point during the sixteen-year history of the program. Nor will the Court order USPS to invalidate, decertify, or recall other "political" postage designs from circulation. That exercise would require the Postal Service to engage in the same "haphazard interpretation[ ]" of the term "political" that led the D.C. Circuit to strike down the 2018 version of USPS's content guidelines. See Zukerman v. USPS, 961 F.3d 431, 448, 450 (D.C. Cir. 2020). It would also be nearly impossible as a practical matter.

This result does not leave Zukerman without any remedy. The parties declined a prior invitation from the Court to explore alternative measures that USPS might take to vindicate Zukerman's First Amendment interests. The Court will now give them another opportunity, with the benefit of this opinion and a few suggestions of potential options.

I. Background

The Court presumes familiarity with its prior opinions in this case. See Zukerman v. USPS, 220 F. Supp. 3d 27 (D.D.C. 2016) (" Zukerman I"); Zukerman v. USPS, 384 F. Supp. 3d 44 (D.D.C. 2019) (" Zukerman II"), rev'd and remanded, 961 F.3d 431 (D.C. Cir. 2020). It will only briefly summarize the background here.

A. Customized Postage Program

In 2004, USPS launched a customized postage program which allowed customers to print at home "evidence of prepayment of postage" using their own selected images. 39 C.F.R. § 501.1(a). Through the program, USPS invited the public to "[c]apture life's special moments," such as "birth announcements" and "weddings," "by turning ... pictures into postage." Am. Compl. ¶ 13 (alteration in original); see also id. Ex. H. USPS launched the program in hopes of generating revenue, reaching new mail users, and making the Postal Service "more relevant ... in today's environment." USPS SUMF ¶ 5.1

Instead of printing the customized postage itself, USPS partnered with a number of authorized vendors to process and issue the postage. Zazzle.com ("Zazzle") was one such authorized vendor. See Am. Compl. ¶¶ 7, 13. To participate in the customized postage program, Zazzle paid USPS an annual fee of $300,000. USPS SUMF ¶ 6. In exchange, Zazzle agreed to the terms set forth in its authorized vendor agreement, which, among other things, obligated Zazzle to fulfill orders only for customized postage that complied with USPS's standardized content guidelines. Pls. SUMF ¶ 48.

"From the outset, the Postal Service sought to use the custom postage program to generate revenue without entangling itself in controversy or exposing itself to legal liability." Zukerman, 961 F.3d at 436. To that end, USPS adopted policies to regulate the types of content that could be depicted on customized stamps. For instance, the terms of Zazzle's 2009 authorization agreement required the company "to establish and maintain an image control process which will ensure that all images appearing in Customized Postage Products ... conform in every respect to the Statement of Purpose and Standardized Image Guidelines" attached to the contract. Decl. of Daniel Guarnera Ex. 1 ("Zazzle Agreement") at USPS_00000302. The attached Standardized Image Guidelines, in turn, required Zazzle "[t]o maintain neutrality on religious, social, political, legal, moral, [and] other public issues." Id. at USPS_00000307; see also Am. Compl. ¶¶ 10, 26, 34. Zazzle was to reject any content, "regardless of the viewpoint expressed," that was "[p]artisan or political, ... including but not limited to content or images supporting or opposing election of any candidate(s) to any ... governmental office." Zazzle Agreement at USPS_00000308. Likewise, USPS barred all "[c]ontent or images actively advocating or disparaging the religious, political, or legal agenda of any person or entity." Id. Per the authorization agreement, Zazzle was required to administer these guidelines "to the best of its ability, regardless of the viewpoint expressed by any image submitted for approval." Id. at USPS_00000302.

Zazzle also maintained its own content guidelines. For all Zazzle products, the company retained the right to reject any orders that were "deemed offensive or in bad taste" by "the sole judgment of Zazzle." Am. Compl. ¶ 14; see also id. Ex. I. As to the customized postage program specifically, Zazzle prohibited users from designing stamps that included "any content or design element that in [Zazzle's] sole judgment and discretion" was found "controversial or offensive." Am. Compl. ¶ 15; see also id. Ex. J. Such content, Zazzle explained, included images that "[a]dvocate[d] or protest[ed] any social, political, legal, moral or religious agenda in a way that may appear controversial to others." Id.

In 2017, USPS issued amended content guidelines for the customized postage program in response to "confusion" caused by "inconsistency of publicly available provider content guidelines." 82 Fed. Reg. 60,117, 60,118 (Dec. 19, 2017) (codified at 39 C.F.R. pt. 501). The amended guidelines included a new set of "Eligibility Criteria," which established exclusive categories of permissible content. See 39 C.F.R. § 501.21(c)(1), (2)(i). Among other things, the amended guidelines prohibited "[a]ny depiction of political ... content," id., whereas USPS's prior guidelines had merely barred "images actively advocating " for or against a political agenda. Pls. SUMF ¶ 89 (citing 39 C.F.R. § 501.21(b)(2)(iii) (emphasis added)). The amended regulations went into effect on May 15, 2018. That same day, USPS allowed Zazzle's customized postage authorization to expire. Id. ¶ 94.

In the spring of 2020, USPS decided to wind down the customized postage program altogether. USPS SUMF ¶ 44. In June 2020, it terminated the last authorized vendor...

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