[Federal Register Volume 85, Number 104 (Friday, May 29, 2020)]
[Notices]
[Pages 32429-32431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-11518]
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POSTAL REGULATORY COMMISSION
[Docket No. C2020-1; Order No. 5519]
Complaint of Randall Ehrlich
AGENCY: Postal Regulatory Commission.
ACTION: Notice.
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SUMMARY: The Commission is noticing an order denying a motion to expand
issues in the Complaint of Randall Ehrlich v. United States Postal
Service, which relates to alleged discrimination by Postal Service
management in continuing a suspension of mail service due to a dog hold
on the Complainant's residence. This notice informs the public of that
denial.
ADDRESSES: For additional information, Order No. 5519 can be accessed
electronically through the Commission's website at https://www.prc.gov.
FOR FURTHER INFORMATION CONTACT: David A. Trissell, General Counsel, at
202-789-6820.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction and Procedural History
II. Motion To Expand Issues
III. Commission Analysis
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\ The Complainant
alleges that the Postal Service unreasonably discriminated against him
in its suspension of mail delivery to his front porch mailbox.
Complaint at 13. He requests that the Commission require delivery to be
restored to his front porch mailbox and that ``all discriminatory acts
and omissions'' against Complainant ``cease immediately.'' Id. at 14.
On January 13, 2020, the Postal Service filed a motion to dismiss the
Complaint.\2\ Complainant responded to the Motion to Dismiss on January
31, 2020.\3\
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\1\ Complaint of Randall Ehrlich, December 23, 2019 (Complaint).
\2\ United States Postal Service Motion to Dismiss with
Prejudice the Complaint of Randall Ehrlich, January 13, 2020 (Motion
to Dismiss).
\3\ Response to Motion to Dismiss, January 31, 2020 (Response).
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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\ Response of the United States Postal Service to Questions 1-
4 of 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. Order No. 5425 at
2.
\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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On March 17, 2020, the Commission concluded that the Complaint
raised material issues of fact, and therefore denied the Postal
Service's Motion to Dismiss pursuant to 39 U.S.C. 3662(b) and 39 CFR
3030.30(a)(1).\11\ Additionally, the Commission appointed a Presiding
Officer to set a procedural schedule and conduct limited discovery for
the purpose of determining disputed issues of fact in the case.\12\ The
Commission stated that the scope of the discovery proceeding would be
limited only to fact-finding conducted by the Presiding Officer on
specific issues of fact to resolve whether a violation of 39 U.S.C. 403
occurred, namely:
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\11\ Order Denying Postal Service Motion to Dismiss Complaint
and Notice of Limited Formal Proceedings, March 17, 2020, at 7
(Order No. 5455).
\12\ Order No. 5455 at 8; see 39 CFR 3030.21.
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1. Whether any dogs remain at Complainant's residence that are
[[Page 32430]]
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.
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.
Order No. 5455 at 8.
On March 18, 2020, the Presiding Officer issued a ruling scheduling
a prehearing teleconference between the parties and established initial
case management procedures.\13\ The prehearing teleconference was held
as scheduled.\14\ The Presiding Officer subsequently propounded the
first set of interrogatories to the Complainant and to the Postal
Service on April 16, 2020, pursuant to 39 CFR 3001.12(a), 3001.26(a),
and 3001.27(a).\15\ Since then, the Presiding Officer has issued
several other rulings modifying the procedural schedule and setting
forth additional case management procedures.\16\
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\13\ Presiding Officer's Ruling Scheduling Prehearing
Teleconference and Establishing Initial Case Management Procedures,
March 18, 2020.
\14\ Notice of Posting of Recording, April 17, 2020.
\15\ Certificate Regarding Discovery, April 16, 2020.
\16\ Presiding Officer's Ruling Establishing Procedural Schedule
and Additional Case Management Procedures, April 16, 2020; Presiding
Officer's Ruling Denying Request for an Indefinite Abeyance and
Granting 30-Day Extension of Procedural Deadlines, April 24, 2020;
Presiding Officer's Ruling Adjusting Procedural Schedule, May 8,
2020.
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II. Motion To Expand Issues
On May 13, 2020, Complainant filed a motion \17\ requesting that
the Commission expand the issues under consideration to include the
following issues related to dog holds under the Seattle District
Animal/Insect Policy (Policy):
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\17\ Complainant's Motion to Expand Issues, May 13, 2020
(Motion).
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[1.] Whether the Policy, in blanketly stating that carriers shall
not deliver mail to homes where dogs are kept only behind a screen or
storm door, without consideration for the dog's age, sex, size, breed
composition, sterilization status, degree of training, assistance
animal legal status (protection under state or federal law, such as
Americans with Disabilities Act, Fair Housing Act, or Washington Law
Against Discrimination), animal control complaint history, adverse
designation legal status, ambulatory capability or degree of
incapacitation, weight, and other factors, illegally discriminates
against postal customers without air conditioning or those who simply
wish to enjoy a natural breeze inside their dwelling instead or
artificially cooled air, rendering its continued enforcement violative
of 39 U.S.C. 403(c).
[2.] Whether the presence or supervision by the customer of the dog
while behind the screen or storm door negates the foregoing Policy
proscription, rendering its continued enforcement violative of 39
U.S.C. 403(c).
[3.] Whether a gate or secondary barrier behind the screen or storm
door negates the foregoing Policy proscription, rendering its continued
enforcement violative of 39 U.S.C. 403(c).
[4.] Whether Mr. Ehrlich's carrier, Tonya Voisine, with or without
USPS condonation, has engaged in retaliatory, harassing, and
destructive behavior, which constitutes unreasonable or undue
discrimination against Mr. Ehrlich in the course of delivering and
retrieving his mailpieces in violation of 39 U.S.C. 403(c). Motion at
2.
In support of the Motion, Complainant submitted a declaration
providing statements in support of his assertion that the Policy
unreasonably discriminates against dog owners without air
conditioning.\18\ He also reiterates his concern that the mail carrier
assigned to his route would continue to ``tamper with, deface, and
destroy'' his mail if she is not removed from the route. Third
Declaration at 2. The Postal Service responded to the Motion on May 20,
2020.\19\ The Postal Service urges that the Commission deny the Motion
in its entirety. Opposition at 1. It asserts that expanding the scope
of the proceeding beyond the limited issue of potential discrimination
against the Complainant in the maintenance of a dog hold is contrary to
the intent of Order No. 5455. Id. at 6. It also states that expanding
the scope of issues under consideration is unnecessary because the
Postal Service is taking steps to permanently restore mail delivery to
the front porch mailbox at Complainant's residence. Id.
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\18\ Third Declaration of Randall Ehrlich, May 13, 2020, at 2
(Third Declaration).
\19\ United States Postal Service's Opposition to Complainant's
Motion to Expand Issues, May 20, 2020 (Opposition).
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II. Commission Analysis
The Commission has previously stated that it lacks the jurisdiction
to rule on internal postal personnel issues such as carrier assignments
and disciplinary actions.\20\ The Motion and supporting Third
Declaration seek to reintroduce the Complainant's prayer for removal of
the mail carrier assigned to his route. Given the precedent on the
Commission's lack of jurisdiction, it would be inappropriate to expand
the issues considered to include those over which an appropriate remedy
could not be granted.
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\20\ See Docket No. C2015-2, Order Granting Motion to Dismiss,
July 15, 2015 (Order No. 2585); Docket No. C2019-1, Order Granting
Motion to Dismiss, December 12, 2018, at 11 (Order No. 4924)
(``Complainant requests several remedies related to Postal Service
personnel--including the removal of a letter carrier from her route
as well as initiation of disciplinary actions, including the
termination of several employees. . .[t]hese actions are outside the
Commission's authority to grant relief. Labor and personnel
decisions are the purview of the Postal Service as the postal
operator.'').
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Complainant also seeks to shift the focus of the Complaint away
from a dispute between the Postal Service and himself, and introduce a
referendum on the Postal Service's policy writ large. The Commission
found discrete material issues that it referred to the Presiding
Officer for resolution after careful examination of the Complaint and
responses. Moreover, the Commission notes that the parties are in the
midst of ongoing discovery under the direction and supervision of the
Presiding Officer in an attempt to resolve those discrete issues. The
extensive procedural history of this matter as well as the discovery
already underway suggest that the Commission avoid expanding the scope
of the issues under consideration at this juncture. If Complainant's
allegations of undue discrimination vis a vis similarly situated dog
owners are proven true, then the Commission could grant the relief of
ordering restoration of porch delivery to the Complainant's residence
without the introduction of the additional allegations. Whether the
Complainant does or does not have air conditioning or the structure of
his storm door are not necessary elements in obtaining the relief
sought in his claim.
Finally, the Postal Service alleges in its Opposition that it is
taking steps to restore porch mailbox delivery to Complainant, thereby
rendering his Motion moot. The Commission commends the Postal Service
for taking steps towards resolving the issue but declines to rule on
the mootness claim at this time.
It is ordered:
[[Page 32431]]
1. Complainant's Motion to Expand Issues, filed May 13, 2020, is
denied.
2. The Secretary shall arrange for publication of this Order in the
Federal Register.
By the Commission.
Erica A. Barker,
Secretary.
[FR Doc. 2020-11518 Filed 5-28-20; 8:45 am]
BILLING CODE 7710-FW-P