[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]



[[Page 16396]]

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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