[Federal Register Volume 85, Number 56 (Monday, March 23, 2020)]
[Notices]
[Pages 16396-16398]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06048]
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POSTAL REGULATORY COMMISSION
[Docket No. C2020-1; Order No. 5455]
Complaint Proceeding
AGENCY: Postal Regulatory Commission.
ACTION: Notice.
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SUMMARY: The Commission is appointing a presiding officer to set a
procedural schedule and conduct limited discovery for the purpose of
determining disputed issues of fact in the case. This notice informs
the public of the filing and takes other administrative steps.
FOR FURTHER INFORMATION CONTACT: David A. Trissell, General Counsel, at
202-789-6820.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction and Procedural History
II. Complaint
III. Motion To Dismiss
IV. Response to Motion To Dismiss
V. Information Requests and Reply
VI. Commission Analysis and Limited Discovery
VII. Ordering Paragraphs
I. Introduction and Procedural History
On December 23, 2019, Randall Ehrlich (Complainant) filed a
complaint pursuant to 39 U.S.C. 3662(a) and 403(c) concerning an
ongoing suspension of mail service to his home.\1\
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\1\ Complaint of Randall Ehrlich, December 23, 2019 (Complaint).
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On January 13, 2020, the Postal Service filed a motion to dismiss
the Complaint, asserting that the Complainant fails to state a claim
upon which relief can be granted, the Commission lacks statutory
authority to grant the remedy requested, and that res judicata
precludes the Commission from considering the allegations set forth in
the Complaint.\2\ The Postal Service's Motion to Dismiss here stands in
place of an answer as required by 39 CFR 3030.12 because the Motion to
Dismiss contains the material issues of fact which the Postal Service
relied upon in determining that it did not unlawfully discriminate
against the Complainant. See 39 CFR 3030.14.
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\2\ United States Postal Service Motion to Dismiss with
Prejudice the Complaint of Randall Ehrlich, January 13, 2020 (Motion
to Dismiss).
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Complainant timely responded to the Motion to Dismiss on January
31, 2020.\3\ The Response disputes the basis of the Postal Service's
claims and alleges that genuine issues of fact and law exist that
preclude the Commission from granting the Motion to Dismiss. See
Response at 11-15.
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\3\ Response to Motion to Dismiss, January 31, 2020 (Response).
Concurrent with the Response, Complainant also filed a motion
requesting that the Commission accept his delayed filing. Motion for
Extension of Time of Approximately Ninety Minutes, January 31, 2020
(Complainant's Motion). The Commission hereby grants the
Complainant's Motion.
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Chairman's Information Request No. 1 was issued on January 16,
2020,\4\ which the Postal Service responded to on January 23, 2020.\5\
Chairman's Information Request No. 2 \6\ was issued February 4, 2020,
to which the Postal Service responded on February 18, 2020,\7\ after
requesting \8\ and receiving \9\ an extension of time to respond.
Complainant replied to the Response to CHIR No. 2 on February 24,
2020.\10\
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\4\ Chairman's Information Request No. 1, January 16, 2020 (CHIR
No. 1).
\5\ Responses of the United States Postal Service to Questions
No 1-2 of Chairman's Information Request No. 1, January 23, 2020
(Response to CHIR No. 1).
\6\ Chairman's Information Request No. 2, February 4, 2020 (CHIR
No. 2).
\7\ United States Postal Service Response to Questions 1-4 or
Chairman's Information Request No. 2, February 18, 2020 (Response to
CHIR No. 2).
\8\ United States Postal Service Motion for Extension of Time to
File Response to Questions 1-4 of Chairman's Information Request No.
2, February 11, 2020 (Postal Service Motion).
\9\ Order Granting Motion for Extension of Time to File
Responses to Chairman's Information Request No. 2, February 12, 2020
(Order No. 5425). Order No. 5425 also granted Complainant additional
time to respond to the Postal Service's answers.
\10\ Response to USPS's Answers to Chairman Information Request
No. 2, with Third Ehrlich Declaration, February 24, 2020 (Reply to
CHIR No. 2 Responses).
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For the reasons discussed below, the Commission concludes that the
Complaint raises material issues of fact, and therefore denies the
Postal Service's Motion to Dismiss pursuant to 39 U.S.C. 3662(b) and 39
CFR 3030.30(a)(1). Accordingly, the Commission appoints a presiding
officer to set a procedural schedule and conduct limited discovery for
the purpose of determining disputed issues of fact in the case. 39 CFR
3030.21. The scope of the discovery proceeding will be limited only to
fact-finding conducted by the presiding officer on specific matters of
fact identified in this order.
II. Complaint
Complainant alleges that shortly after an encounter between his dog
Cookie and a mail carrier at his residence in July of 2015, mail has
not been delivered to his porch mailbox in violation of 39 U.S.C.
403(c). Complaint at 4-5. He states the cessation of mail has continued
despite the fact that Cookie no longer resides at Complainant's home.
Id. at 5. He states that he attempted to contact postal representatives
at the Ballard Postal Annex to inquire about the non-delivery of his
mail and request restoration of mail service to his porch. Id. at 5-6.
Complainant claims that he notified Postal Service representatives that
Cookie had been adopted out of his residence but that notification did
not result in the restoration of his mail. Id. at 6. Specifically, he
states that he received a visit from a Postal Service inspector who had
a positive interaction with the remaining dog at his residence, but
that this report ``had no impact on management'' as the hold on
Complainant's mail continued. Id. at 5.
Complainant alleges that the Postal Service's proffered solution to
his mail delivery issue was to relocate his mailbox to the intersection
of his driveway and sidewalk, which was unacceptable to Complainant
because of his ongoing concerns about theft from his mailbox. Id. at 4,
7, Exhibit A. He states that his attempts at mounting the mailbox at
another location on his side fence located ``approximately 10 feet 6
inches from the sidewalk'' were rebuffed by the Postal Service.
Complaint at 9-10. He claims that his treatment was discriminatory
because other similarly situated mailers, including neighbors with
well-behaved dogs and ``other resident[s] whose premises present no
dangers to the letter carrier'' are still receiving mail at their
residences. Complaint at 13. He requests that the Commission require
delivery to be restored to his porch mailbox and ``that all
discriminatory acts and omissions'' against Complainant ``cease
immediately.'' Id. at 14.
III. Motion To Dismiss
The Postal Service contends that dismissing the Complaint is
appropriate because Complainant fails to state a claim upon which
relief can be granted, and cites lack of Commission jurisdiction,
mootness, and res judicata as additional grounds for dismissal. Motion
to Dismiss at 8, 20, 22. It justifies the cessation of mail delivery to
Complainant's residence by framing the matter as one of carrier safety.
Id. at 5-6. It cites section 623.3 of the Postal Operations Manual,
which provides that `` `[d]elivery service may be suspended when there
is an immediate threat (including, but not limited to threats due to
loose animals) to the delivery employee . . .' '' Id. at 6 n.24. The
Postal Service states that contrary to Complainant's claim, he is not
similarly situated to other postal customers with well-behaved dogs and
whose premises present no dangers to the letter carrier because ``he
has been and remains the owner of at least one dog that behaved in such
a manner that a dog hold was issued.'' Id. at 10 (footnote omitted). As
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such, it goes on to state, the allegations in the Complaint do not
violate Sec. 403(c) as any disparate treatment between him and well-
behaved dog owners is reasonable to ensure carrier safety. Id. at 15.
The Postal Service alleges that the Complainant ``admits he has been
and remains the owner of at least one dog whose behavior required the
issuance of a dog hold.'' Id. at 13.
On the issue of mailbox placement, the Postal Service cites section
623.1 of the Postal Operations Manual for the proposition that the
Postal Service may withdraw service to a delivery point if a customer
does not provide a mail receptacle in a postal-approved location after
being given written notification to do so. Id. at 16. According to the
Postal Service, the Complainant's refusal to comply with mailbox
placement at the alternate location approved by the Postal Service is a
legitimate reason to continue suspending mail delivery to the
Complainant's residence. Id. at 18.
IV. Response to Motion To Dismiss
In the Response, the Complainant claims that without an
individualized assessment of the dogs currently at his residence, the
Postal Service is ``excessive, unreasonable, and highly
discriminatory'' in applying a dog hold in perpetuity to a residence
where the offending dog may no longer reside. Response at 9.
Complainant also notes that the Seattle District's Animal/Insect Policy
\11\ provides that mail delivery may be resumed when the carrier feels
no immediate threat. Response at 13. Complainant notes that after the
singular incident in July 2015, no further complaints were made and
failure to restore mail to the porch mailbox after Cookie left
constitutes an abuse of discretion by the district manager. Id.
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\11\ See Response to CHIR No. 1, Exhibit 1 at 1.
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V. Information Requests and Reply
The Postal Service clarified that it does not have specific
knowledge of the dogs currently residing at Complainant's residence,
but states that ``dog holds are not specific to a particular dog or
animal at a customer's residence.'' Response to CHIR No. 1, question
1.a. It goes on to state that once a ``dog hold'' letter is issued, it
``remains in effect indefinitely until management, in consultation with
the letter carrier, determines that mail can safely be resumed.'' Id.
(footnote omitted).
The Postal Service states that Complainant's offer to mount a mail
box on his side fence is unacceptable because it would compromise the
mail carrier's safety by exposing the carrier to a greater risk of an
unexpected dog attack. Id. question 2. It states that the location
chosen by the Postal Service is safer because it does not place the
mail carrier in the direct path of the front door, should a dog run
out. Id. It also allows the letter carrier to see the front door and
have a few more seconds of warning to take cover by the bushes
alongside the fence if a dog were to attack from Complainant's
residence. Id.
In Response to CHIR No. 2, the Postal Service states that after
Cookie was adopted out, the Complainant allegedly acquired a second
dog, who ``also behaved aggressively when the letter carrier attempted
to deliver mail to Complainant's residence.'' Response to CHIR No. 2,
question 1.a. (footnote omitted). It goes on to state that if the
Complainant contends that the second dog is also no longer present, the
Postal Service may still continue to withhold mail from Complainant's
residence. According to the Postal Service, this ongoing hold is
justified because Complainant has not notified management that there is
no longer an aggressive dog present, has not demonstrated that the dog
hold should be lifted, and has failed to comply with the mailbox
relocation necessitated by the original dog hold. Response to Id.
question 1.b. It states that Occupational Safety and Health
Administration (OSHA) issued a complaint on February 15, 2017, related
to Complainant's aggressive dog(s), which resulted in a determination
by local management that Complainant's mailbox needed to be moved to
ensure mail carrier safety. Id. question 1.d., Exhibit 3. The Postal
Service also states that ``a single, positive interaction with an
animal while its owner/caregiver is present and nearby--whether
experienced by a Postal Service employee or an OSHA inspector--is
insufficient to warrant the discontinuance of a dog hold.'' Response to
CHIR No. 2, question 2.a.
In the Reply to CHIR No. 2 Responses, Complainant disputes a number
of allegations made by the Postal Service, including: (1) That Cookie
never attacked or was aggressive toward the mail carrier in 2015; (2)
that any of the dogs residing at his home have been aggressive towards
the mail carrier; and (3) the sidewalk fence mailbox location is not a
viable option due to theft concerns. Reply to CHIR No. 2 Responses,
Third Declaration of Randall Ehrlich at 2-4.
VI. Commission Analysis and Limited Discovery
The Commission finds that the pleadings raise issues of fact
relevant to whether the actions or inactions of the Postal Service
violate 39 U.S.C. 403(c). Viewed in the light most favorable to
Complainant, the allegations in the Complaint may raise a cognizable
claim of undue or unreasonable discrimination. The Commission also
recognizes that the Postal Service has a legitimate interest in
ensuring mail carrier safety and providing a work environment
consistent with OSHA regulations. Accordingly, the Commission's role in
this inquiry is not to question that interest, but to determine if the
current postal policy, as applied to the Complainant, presents a
potential violation of 39 U.S.C. 403(c).
Additionally, the Commission finds the Postal Service's arguments
of lack of jurisdiction, mootness, and res judicata unpersuasive. The
Postal Service alleges lack of jurisdiction and mootness as overlapping
grounds for dismissal, in effect stating that because an aggressive dog
still resides at Complainant's residence, the Commission has no
authority to override internal postal policy on mail delivery \12\ and
that the Postal has ``already offered any remedy the Commission might
provide.'' See id. at 20. Because the Postal Service assumes that
aggressive dogs still reside at Complainant's residence, despite
Complainant's statements, the Postal Service's arguments regarding
mootness and lack of jurisdiction necessarily fail. Similarly, it
states that the Commission is precluded from considering the
allegations set forth in the Complaint due to res judicata. Id. at 22.
The Commission notes that although it has dismissed a previous
complaint brought by the Complainant with some similar allegations,\13\
the instant complaint raises new allegations of discriminatory
treatment distinct from other similarly situated mailers. Complaint at
13.
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\12\ See Motion to Dismiss at 18-19.
\13\ Docket No. C2019-1, Order Granting Motion To Dismiss,
December 12, 2018 (Order No. 4924).
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Therefore, the Postal Service's Motion to Dismiss is denied
pursuant to 39 U.S.C. 3662(b).
The outstanding issues of fact required to resolve whether a
violation of 39 U.S.C. 403(c) occurred are:
1. Whether any dogs remain at Complainant's residence that are
aggressive or could be a threat to carrier safety.
2. Whether postal management followed non-discriminatory processes
in its continuance of a dog hold on complainant's residence.
3. Whether the alternate mailbox site proposed by the Complainant
was a reasonable compromise between carrier safety and complainant's
security concerns.
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4. Whether the Complainant is obligated to comply with a mailbox
relocation if there are no aggressive dogs remaining at his residence.
5. Whether a locked mailbox at the mailbox site approved by the
Postal Service would alleviate Complainant's security concerns.
Pursuant to 39 CFR 3001.23, the Commission appoints Lauren
D'Agostino to serve as presiding officer to ascertain outstanding
issues of material fact in this matter. Parties may request that the
presiding officer obtain specific discovery, but may not independently
propound discovery. The presiding officer shall examine the disputed
issues identified above and provide a public, written intermediate
decision including findings of fact and conclusions of law on the
issues raised in this proceeding. 39 CFR 3001.39.
The Commission finds good cause to waive the appointment of an
officer of the Commission designated to represent the interests of the
general public in this proceeding as required by 39 CFR 3030.30(c)
because the violations alleged in the Complaint pertain solely to
Complainant, who is represented by counsel, and not to the general
public.
VII. Ordering Paragraphs
It is ordered:
1. The Commission finds that the Complaint of Randall Ehrlich,
filed December 23, 2019, raises material issues of fact.
2. The Motion of the United States Postal Service to Dismiss with
Prejudice the Complaint of Randall Ehrlich, filed January 13, 2020, is
denied.
3. Pursuant to 39 CFR 3001.23, the Commission appoints Lauren
D'Agostino as a presiding officer in this proceeding.
4. Parties may request that the presiding officer obtain specific
discovery but may not independently propound discovery.
5. The presiding officer shall, pursuant to 39 CFR 3001.39, provide
a public written intermediate decision including findings of fact and
conclusions of law on the issues raised in this proceeding.
6. The Secretary shall arrange for publication of this Order in the
Federal Register.
By the Commission.
Erica A. Barker,
Secretary.
[FR Doc. 2020-06048 Filed 3-20-20; 8:45 am]
BILLING CODE 7710-FW-P