POSTAL POLICE OFFICERS ASSOCIATON, Plaintiff, v. UNITED STATES POSTAL SERVICE, et al., Defendants.
Case No. 20-cv-2566 (CRC)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
November 24, 2020
This case is the latest proceeding to raise a long-debated question: What, exactly, is the lawful role of Postal Police Officers (“PPOs“) employed by the United States Postal Service? USPS recently declared that PPOs may exercise law-enforcement functions only when they are protecting Postal Service real estate. Plaintiff Postal Police Officers Association (“PPOA” or “the Union“) disagrees, arguing that Congress also authorized PPOs to enforce the law away from Postal Service premises to protect chattel property, such as in-transit mail and delivery trucks. The Union sued the Postal Service and Postmaster General Louis DeJoy (together, “USPS“), claiming that USPS exceeded its statutory authority by unduly restricting PPOs’ law-enforcement jurisdiction. The Complaint asks the Court to set aside the USPS policy limiting PPOs’ authority or, alternatively, temporarily enjoin the policy while the parties arbitrate their dispute. The Union has also moved for a preliminary injunction or temporary restraining order granting PPOs off-premises authority during this litigation. USPS has moved to dismiss the Complaint.
The Court concludes that USPS did not exceed its statutory authority by interpreting the Postal Accountability and Enhancement Act to either require or permit USPS to restrict PPOs’ law-enforcement activities to contexts related to postal real estate. The agency‘s reading of the statute is reasonable and therefore entitled to deference. The Court is also persuaded that it lacks jurisdiction to enter a temporary injunction pending arbitration. Accordingly, the Court will dismiss the Complaint and deny the Union‘s request for preliminary relief.
I. Background
A. Facts
The following facts are alleged in the Complaint or drawn from declarations in the record that are not disputed in relevant part, except where otherwise noted. USPS has employed PPOs since 1971. Compl. ¶ 15. PPOs are part of the agency‘s Inspection Service, which also includes a separate group of employees called Postal Inspectors. Id. ¶¶ 15, 30. Today, about 534 PPOs work for USPS, stationed in 20 major metropolitan areas around the country. Brubaker Decl. ¶ 7, ECF No. 14-1; First Bjork Decl. ¶ 3, ECF No. 7-2. PPOA is the labor union that represents most PPOs in collective bargaining with USPS. Compl. ¶ 12; First Bjork Decl. ¶ 3.
Prior to 2006, Congress periodically granted law enforcement authority to PPOs through appropriations bills. Compl. ¶ 17. During this period, PPOs were assigned to various duties. Some of these duties took place on premises owned, occupied, or controlled by USPS, but other duties occurred away from such premises. For example, armed PPOs sometimes accompanied high-value mail shipments in transit to provide protection. Id. ¶ 19.
In 2006, Congress enacted the Postal Accountability and Enhancement Act, which permanently authorized USPS to employ PPOs “for duty in connection with the protection of property owned or occupied by the Postal Service or under the
USPS and the Union are currently operating under a collective bargaining agreement (“CBA“) that went into effect in 2012. First Bjork Decl. ¶ 4. The CBA prohibits USPS from unilaterally making certain changes to PPOs’ terms and conditions of employment. Compl. ¶ 36. It also provides that USPS handbooks, manuals, and regulations directly related to PPOs’ wages, hours, and working conditions must be consistent with the CBA, and it establishes a process for the Union to object to any proposed change that might conflict with the CBA. Id. ¶¶ 39-40. In the event of a dispute about the interpretation of the CBA, the Union may file a grievance, which is subject to arbitration. Id. ¶ 35.
The current CBA is due to be replaced by a new one, but the terms of the forthcoming CBA will depend on the outcome of a currently pending arbitration (“the Interest Arbitration“). First Bjork Decl. ¶ 4. At a February 2020 hearing in the Interest Arbitration, the Union sought to prove that PPOs are fully functioning police officers who do much of their work off-premises. Id. ¶ 5. In the same proceeding, Craig Goldberg, Deputy Chief Inspector of the Postal Service, testified that he did not know whether PPOs’ law-enforcement authority was limited to USPS real estate. Compl. ¶ 44.
In August 2020, Deputy Chief Inspector David Bowers issued a management communication to all divisions of the Inspection Service (“the Bowers Memo“). Id. ¶ 45. The Bowers Memo declares that “PPOs may not exercise [their] law enforcement authority in contexts unrelated to Postal Service premises.” First Bjork Decl., Ex. K, ECF No. 7-2. Accordingly, it states that, “[e]ffective immediately,” any utilization of PPOs away from USPS premises requires approval from a Deputy Chief Inspector. Id. It further clarifies that PPOs may travel off USPS premises on their way to assignments, but “during this travel they are not to be placed into situations in which it would be reasonably likely that they would be compelled to exercise law enforcement activity[.]” Id.
Since the Bowers Memo was issued, PPOs have been assigned mostly to duties at postal facilities. Compl. ¶ 46. The Union alleges that “in many places, the U.S. mail and postal personnel are receiving less protection” due to this change. Id. ¶ 47. In September 2020, the Union filed a grievance
B. Proceedings in this Case
Days after filing its grievance against the Bowers Memo, the Union filed this lawsuit. In the Complaint, the Union alleges that USPS acted in excess of its statutory authority by purporting to limit PPOs’ law-enforcement authority to postal premises. Id. ¶ 60. It also alleges that, regardless of whether the Bowers Memo can be reconciled with the governing statute, the Union is likely to succeed on the merits of its grievance challenging the Bowers Memo as a violation of the CBA. Id. ¶ 50. However, the Union contends that by the time it wins the grievance arbitration, its members will have already suffered irreparable harm. Id. ¶ 49. The Complaint therefore seeks either a permanent injunction striking down the Bowers Memo or, alternatively, an injunction prohibiting the Memo‘s enforcement pending the grievance arbitration. Id. ¶ 15.
The Union then filed the present Motion for a Temporary Restraining Order and/or a Preliminary Injunction (“PI Motion“), seeking temporary relief requiring USPS to rescind the Bowers Memo and recognize PPOs’ “authority to protect the U.S. Mail and other postal property away from postal real estate.” PI Mot. 1.
USPS responded in opposition to the PI Motion and, simultaneously, moved to dismiss the Complaint. USPS argues that the Union‘s statutory-authority claim should be dismissed for failure to state a claim on which relief can be granted, and that the Court lacks jurisdiction to enter an injunction pending arbitration of the Union‘s grievance. Defs.’ Mem. 15, 21.
The Union filed a combined reply in support of its PI Motion and response in opposition to USPS‘s Motion to Dismiss. USPS replied in support of its Motion. The PI Motion and the Motion to Dismiss are now fully briefed and ripe for decision.
II. Legal Standards
A. Motion to Dismiss for Failure to State a Claim
B. Motion to Dismiss for Lack of Subject Matter Jurisdiction
The Court must dismiss any claim over which it lacks subject matter jurisdiction. Auster v. Ghana Airways Ltd., 514 F.3d 44, 48 (D.C. Cir. 2008). The plaintiff bears the burden of establishing jurisdiction. Knapp Med. Ctr. v. Hargan, 875 F.3d 1125, 1128 (D.C. Cir. 2017). On a motion to dismiss for lack of subject matter jurisdiction under
C. Motion for Temporary Restraining Order or Preliminary Injunction
A preliminary injunction or temporary restraining order “is an extraordinary remedy that should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion.” Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004). The same standard governs both types of preliminary relief. Hall v. Johnson, 599 F. Supp. 2d 1, 3 n.2 (D.D.C. 2009). The moving party must show: (1) that it is likely to succeed on the merits of its claim; (2) that it is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in its favor; and (4) that a preliminary injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
An absence of irreparable injury is fatal to a motion for a preliminary injunction or temporary restraining order. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). The D.C. Circuit has suggested, without holding, that failure to establish a likelihood of success on the merits also categorically forecloses preliminary relief. Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011).
III. Analysis
In its Complaint and motion papers, the Union presses three claims for relief: (1) that USPS exceeded its statutory authority by giving PPOs a narrower scope of law-enforcement authority than Congress mandated; (2) that USPS also exceeded its statutory authority by failing to seek an advisory opinion from the Postal Regulatory Commission regarding the Bowers Memo; and (3) that the Court should issue a temporary injunction while the parties arbitrate their dispute. The Court will address each claim in turn.
A. USPS‘s interpretation of PPOs’ authority follows from a reasonable reading of the governing statute.
The Union claims USPS acted in excess of its statutory authority by adopting an unduly narrow view of PPOs’ law-enforcement jurisdiction. After careful consideration, the Court concludes that this claim must be dismissed under
The Court begins with the text of
(1) The Postal Service may employ police officers for duty in connection with the protection of property owned or occupied by the Postal Service or under the charge and control of the Postal Service, and persons on that property, including duty in areas outside the property to the extent necessary to protect the property and persons on the property.
(2) With respect to such property, such officers shall have the power to-
(A) enforce Federal laws and regulations for the protection of persons and property;
(B) carry firearms; and
(C) make arrests without a warrant for any offense against the Unite[d] States committed in the presence of the officer or for any felony cognizable under the laws of the United States if the officer has reasonable grounds to believe that the person to be arrested has committed or is committing a felony.
(3) With respect to such property, such officers may have, to such extent as the Postal Service may by regulations prescribe, the power to—
(A) serve warrants and subpoenas issued under the authority of the United States; and
(B) conduct investigations, on and off the property in question, of offenses that may have been committed against property owned or occupied by the Postal Service or persons on the property.
This statutory text is ambiguous with respect to at least two material issues: (1) whether USPS may assign PPOs to engage in law-enforcement activities unrelated to USPS real property, and (2) if so, whether USPS must grant such off-premises authority to any PPOs it employs.
First, the text tends to suggest, without quite making clear, that Congress intended for PPOs to protect postal real estate rather than postal chattels. Initially, the statute uses language that does not, in isolation, seem limited to real estate: PPOs may protect “property owned or occupied by the Postal Service or under the charge and control of the Postal Service.”
The Union argues that the statute must be read to authorize PPOs’ protection of USPS‘s chattel property because otherwise, the phrase “under the charge and control of the Postal Service” would be rendered superfluous. Pl.‘s Reply 13. Not so. While it is true that courts should “give effect, if possible, to every clause and word” of a statute, Duncan v. Walker, 533 U.S. 167, 174 (2001) (citation omitted), that rule is not implicated here. Subtle as the distinction may be, real property “under the charge and control of” USPS is not necessarily the same as real property “owned or occupied by” USPS. See Gunn v. Harris Methodist Affiliated Hosps., 887 S.W.2d 248, 251 (Tex. App. 1994) (“[A] party may occupy a premises, in whole or in part, without actually controlling it.“); United States v. Fox, 60 F.2d 685, 688 (2d Cir. 1932) (bartender was “in charge” of the premises in question but not the “occupant“). Numerous other federal statutes distinguish between occupancy and charge or control with respect to real estate. See, e.g.,
Nor is the Union‘s interpretation compelled by the fact that Congress used the word “property” to include both real and chattel property elsewhere in the same statute. The Union points out, for example, that the statute authorizes Postal Inspectors to “make seizures of property as provided by law.” Pl.‘s Reply 12 (quoting
It is far from clear that § 3061(c) should be interpreted to leave USPS with so little discretion. A plausible alternative reading is that § 3061(c)(2) grants PPOs law-enforcement powers with respect to “such property” as USPS has actually assigned them to protect, not as to every piece of property to which USPS lawfully could assign PPOs. Indeed, that is the most commonsense reading of the statute, if not the most literal one. As the Union concedes, the statute does not compel USPS to assign PPOs to protect every piece of postal property; USPS has “discretion to choose whether and where to employ” PPOs. Pl.‘s Reply 11 (emphasis added). Given this discretion, one would think that USPS could adopt a policy of assigning PPOs to the locations of some, but not all, categories of property covered by § 3061(c)(1). And if PPOs are ultimately answerable to USPS—-as the word “employ” suggests, see
Because the isolated text of § 3061(c) contains ambiguities, the Court next considers the Union‘s argument regarding the legislative history behind the statute. “Legislative history can serve to inform the court‘s reading of an otherwise ambiguous text[.]” Recording Industry Ass‘n of Am., Inc. v. Verizon Internet Servs., Inc., 351 F.3d 1229, 1237 (D.C. Cir. 2003). However, absent a “clear indication” that Congress intended a specific result, courts should be wary of relying on legislative history materials such as committee reports to conclude that a statute has an unambiguous meaning. S. Pac. Pipe Lines Inc. v. Dep‘t of Transp., 796 F.2d 539, 543 (D.C. Cir. 1986).
Here, the Union points to the House Committee on Government Reform‘s 2004 report on the Postal Accountability and Enhancement Act. That report states, “The Postal Service currently employs more than one thousand uniformed Postal Police Officers who are assigned to critical postal facilities throughout the country. The officers provide perimeter security, escort high-value mail shipments, and perform other essential protective functions.” H.R. Rep. No. 108-672, pt. 1, at 24 (2004). The Union quotes the second of those sentences,
In short, § 3061(c) is ambiguous with respect to the issues at the heart of this case. Faced with these ambiguities, USPS did not act unreasonably by interpreting the statute to limit PPOs’ law-enforcement jurisdiction to the protection of postal real property or, alternatively, to leave the question of PPOs’ off-premises policing authority to USPS‘s discretion. As already discussed, these conclusions follow from what is probably the most natural reading of the statute, if not the sole permissible reading.
The Union argues that USPS‘s interpretation of § 3061(c) is nevertheless ultra vires because it conflicts with existing postal regulations. Pl.‘s Reply 14-15. But a conflict between the Bowers Memo and postal regulations would not, by itself, mean that USPS “acted in excess of its statutory authority,” which is the sole basis for relief on an ultra vires claim. N. Air Cargo, 674 F.3d at 858. As the D.C. Circuit recently noted, “none of [its] decisions have placed an agency‘s failure to follow its own regulations in the ‘ultra vires’ category[.]” Eagle Trust Fund v. USPS, 811 F. App‘x 669, 670 (D.C. Cir. 2020) (mem.); see also Aid Ass‘n for Lutherans, 321 F.3d at 1172 (noting that
B. The Union has not pled a plausible claim that USPS acted ultra vires by failing to seek an advisory opinion from the Postal Regulatory Commission.
In addition to its claim that USPS misinterpreted § 3061(c), the Union makes a second argument for ultra vires relief. It contends that USPS was required under
Even if the § 3661 claim were properly before the Court, it would fail because it does not plausibly show that USPS acted ultra vires. Section 3661(b) provides:
When the Postal Service determines that there should be a change in the nature of postal services which will generally affect service on a nationwide or substantially nationwide basis, it shall submit a proposal, within a reasonable time prior to the effective date of such proposal, to the Postal Regulatory Commission requesting an advisory opinion on the change.
The Fifth Circuit has explained that before USPS‘s obligation to seek an advisory opinion from the PRC is triggered, three conditions must be satisfied.
First, there must be a ‘change.’ This implies that a quantitative determination is necessary. There must be some meaningful impact on service. Minor alterations which have a minimal effect on the general class of postal users do not fall within [§] 3661. Second, the change must be ‘in the nature of postal services.’ This involves a qualitative examination of the manner in which postal services available to the user will be altered. Third, the change must affect service ‘on a nationwide or substantially nationwide basis.’ A broad geographical area must be involved.
Buchanan v. USPS, 508 F.2d 259, 262-63 (5th Cir. 1975) (emphases added); accord New York v. Trump, No. 20-cv-2340 (EGS), 2020 WL 5763775, at *9 (D.D.C. Sept. 27, 2020) (quoting and applying the Buchanan factors).
The Union has not pled sufficient facts to state a plausible claim that the Bowers Memo will cause more than a “[m]inor alteration[]” to “the nature of postal services” that USPS offers its users. Buchanan, 508 F.2d at 262-63. The allegations in the Complaint, if proven, would show that the recent alteration of PPOs’ duties would result in some marginal increase in the risk of mail theft and similar crimes. See Compl. ¶¶ 29-32 (describing aspects of PPOs’ pre-Bowers Memo duties that involved protection of in-transit mail), id. ¶ 47 (alleging that PPOs’ former “off-site mobile patrols are going undone” and that “in many places, the U.S. mail and postal personnel are receiving less protection“). However, the Complaint lacks allegations suggesting that this is a change of sufficient scale and scope to have more than a de minimis effect on the nature of postal
Therefore, to the extent the Union seeks to plead an ultra vires claim based on
C. The Court lacks jurisdiction to enter an injunction pending arbitration of the underlying labor dispute.
As an alternative to its ultra vires claims seeking to invalidate the Bowers Memo, the Union brings a narrower claim for an injunction pending the arbitration of its grievance. The Court concludes that it lacks jurisdiction to enter such an injunction.
The Norris-LaGuardia Act provides that “[n]o court of the United States . . . shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in a strict conformity with the provisions of this chapter[.]”
Some courts have noted that the inquiry into whether an injunction is necessary to make arbitration meaningful dovetails with the question of whether the moving party has demonstrated irreparable injury. See, e.g., Local Lodge No. 1266, Int‘l Ass‘n of Machinists & Aerospace Workers, AFL-CIO v. Panoramic Corp., 668 F.2d 276, 286 (7th Cir. 1981). However, on a request for an injunction pending labor arbitration, “[i]rreparable injury means not simply any injury resulting from a breach of contract that would not be fully redressed by an arbitral award, but rather ‘injury so irreparable that a decision of the [arbitrator] in the [union‘s] favor would be but an empty victory.‘” Id. at 285-86 (quoting Brotherhood of Locomotive Engineers v. Missouri-Kansas-Texas R.R. Co., 363 U.S. 528, 534 (1960)). And, regardless of whether the issue arises in a labor dispute or another context, “the degree of proof required for irreparable harm is high[.]” Olu-Cole v. E.L. Haynes Pub. Charter Sch., 930 F.3d 519, 529 (D.C. Cir. 2019) (internal quotation marks omitted). “The injury must be both certain and great; it must be actual and not theoretical and of such imminence that there is a clear and present need for equitable relief.” Id. (cleaned up).
Here, the parties agree that the dispute over whether the Bowers Memo violates the CBA is arbitrable. The Union argues that the Court nevertheless has jurisdiction to enter an injunction pending arbitration because such relief is necessary to protect the Union and its members from several forms of irreparable harm. After considering each of the Union‘s arguments, the Court is not persuaded that the Union has satisfied the ordinary standard for irreparable harm, let alone the heightened standard required for an injunction pending labor arbitration.
First, the Union contends that before the parties can finish arbitrating their dispute over the Bowers Memo, USPS will “proceed to close PPO divisions and lay off its PPO workforce” unless this Court blocks USPS from doing so. Pl.‘s Reply 20. As the Union observes, courts have sometimes found that an injunction pending arbitration is appropriate where an employer‘s actions, if not enjoined, would eliminate a bargaining unit and thus eviscerate any opportunity to arbitrate. See Panoramic, 668 F.2d at 286; see also Pl.‘s Reply 21 (collecting cases). However, these cases do not authorize courts to issue an injunction based on a speculative possibility of such harm. See Local 715, United Rubber, Cork, Linoleum & Plastic Workers of Am. v. Michelin Am. Small Tire, 840 F. Supp. 598, 604 (N.D. Ind. 1993) (denying injunction where “the loss of jobs [was] merely speculative“); Olu-Cole, 930 F.3d at 529 (irreparable harm must be actual, not theoretical).
Here, the Union‘s prediction that USPS will lay off its PPOs and thus avoid meaningful arbitration is speculative. According to the Union‘s own former president James Bjork, USPS representatives have repeatedly, though inconsistently, taken the position that PPOs lack off-premises law-enforcement authority for decades. Suppl. Bjork Decl. ¶ 3. If none of these past episodes have led to USPS eliminating its PPO workforce, it is not apparent why the Court should draw the inference that this time will be different. Moreover, Mr. Bowers testified at the recent Interest Arbitration that “PPOs play an important role in the protection of Postal Service assets and personnel,” suggesting that USPS has no immediate plan to eliminate them. Stephens Decl., Ex. K at 411, ECF No. 7-15. Perhaps recognizing this, Mr. Bjork stops short of definitively asserting in his declaration that USPS is about to fire its PPOs. See First Bjork Decl. ¶ 33 (“Under the August 2020 policy change, it is likely that PPOA will have to dedicate its limited resources to mutual aid and job training as PPOs face likely layoffs or other disruptions to their jobs.” (emphases added)); id. ¶ 41 (“It is possible that [Postal Inspection Service leaders] want to prioritize preserving the jobs of postal inspectors over preserving the jobs of PPOs.” (emphasis added)). The Court cannot find irreparable harm based on the mere possibility of forthcoming PPO layoffs.
Second, the Union claims the Bowers Memo “puts Postal Police at increased risk of physical harm, discipline, and legal liability.” PI Mem. 35. Although its brief is less than perfectly clear, the Union‘s theory seems to be that two types of harm are likely: (1) PPOs will encounter violent criminals during the limited time they now spend away from USPS premises and will be unauthorized to protect themselves with force; and (2) PPOs will take law-enforcement action on the mistaken belief that they are authorized to do so under the circumstances (e.g., incorrectly believing they are on postal premises), causing them to be disciplined or sued. See id. at 35-36. In support of this argument, PPO Danny Simpson explains in a declaration that despite the Bowers Memo, USPS managers continue to suggest to PPOs in New York that they have “moral obligations” to intervene to stop some off-premises crimes. Simpson Decl. ¶ 6, ECF No. 7-8. Officer Simpson states that this inconsistent guidance puts him “in a very dangerous situation” because if he encounters off-premises crime, he must make a quick decision that could put him at risk of physical harm, liability, or both. Id. ¶ 7. While the Court agrees that USPS should avoid communications that could potentially lead to the predicament Simpson describes, nothing in the record shows that it is likely, rather than merely possible, that PPOs who make a good-faith effort to stay within their assigned duties will face such harm. This possibility is therefore too speculative to constitute irreparable harm, and certainly too speculative to support a conclusion that the arbitration process will become an empty ritual without an injunction.
Third, the Union argues that the Bowers Memo “threatens irreparable harm to letter carriers and the U.S. mail” by removing PPO protection from locations other than postal premises. PI Mem. 37. However, the Union‘s burden is to show irreparable harm to itself or its members. See Winter, 555 U.S. at 20 (“A plaintiff seeking a preliminary injunction must establish . . . that he is likely to suffer irreparable harm[.]” (emphasis added)). The Union “provides no authority
The Court therefore concludes that it lacks jurisdiction to enter an injunction pending arbitration of the Union‘s grievance. See Nat‘l Ass‘n of Letter Carriers, 419 F. Supp. 3d at 137 (“[B]ecause injunctive relief is unnecessary to preserve the arbitral process, the Court concludes that it lacks the jurisdiction to grant such relief in this case.” (internal citation omitted)). Alternatively, because the Complaint does not allege facts that would justify an injunction pending arbitration, that claim is also subject to dismissal under
* * *
Because the Union fails to state an ultra vires claim and the Court lacks jurisdiction to issue an injunction pending arbitration, the Complaint must be dismissed in full. It necessarily follows that the Union‘s motion for a preliminary injunction or temporary restraining order must be denied, both for failure to show a likelihood of success on the merits and for failure to demonstrate irreparable harm.
IV. Conclusion
For the foregoing reasons, the Court will grant Defendants’ Motion to Dismiss, deny Plaintiff‘s Motion for Temporary Restraining Order or Preliminary Injunction, and dismiss the case. A separate Order shall accompany this Memorandum Opinion.
Date: November 24, 2020
CHRISTOPHER R. COOPER
United States District Judge