National Association for the Advancement of Colored People v. United…

                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA


 NATIONAL ASSOCIATION FOR THE
 ADVANCEMENT OF COLORED PEOPLE,

                 Plaintiff,
                                       No. 20-cv-2295(EGS)
 v.


 UNITED STATES POSTAL SERVICE,
 et al.,

                 Defendants.


                          MEMORANDUM OPINION

I.    Introduction

      Plaintiff, the National Association for the Advancement of

Colored People (“NAACP”) filed this lawsuit against Defendants

the United States Postal Service (“USPS” or “Postal Service”)

and Louis DeJoy (“Mr. DeJoy”), in his official capacity as

Postmaster General of the United States, alleging the following

claims: (1) Non-statutory review of unlawful agency action for

failure to follow the procedures required by 39 U.S.C. § 3661;

(2) Non-statutory review of unlawful agency action that is

arbitrary, capricious, and not in accordance with 39 U.S.C. §

101(e); (3) Mandamus to enforce 29 U.S.C. § 3991; and (4)

Mandamus to enforce 39 U.S.C. § 101(e). Plaintiff seeks a

preliminary injunction with regard to their first and second

claims. Upon consideration of Plaintiff’s motion, the response,

                                  1
and reply thereto, the applicable law, and the entire record,

the Court GRANTS Plaintiff’s motion.

II.   Background

      A.   Statutory and Regulatory Framework

      In the Postal Reorganization Act (“PRA”), Public Law 91-375,

84 Stat. 719 (Aug. 12, 1970), Congress replaced the Post Office

Department with the Postal Service as “an independent establishment

of the executive branch of the Government of the United States,

under the direction of a Board of Governors, with the Postmaster

General as its chief executive officer.” 39 C.F.R. § 1.1. The PRA

establishes that the policy of the USPS includes the mandate to

“provide prompt, reliable, and efficient services to patrons in all

areas and . . . render postal services to all communities.” 39

U.S.C. § 101. The PRA also created an independent oversight body

for the USPS, the Postal Rate Commission. 39 U.S.C. § 501.

Congress passed the PRA to “[i]nsulate” the management of the

USPS “from partisan politics    . . . by having the Postmaster

General responsible to the [Postal Rate] Commission, which

represents the public interest only, for his conduct of the

affairs of the Postal Service.” H.R. Rep. No. 91-1104, 3660-61

(1970).

      In the Postal Accountability and Enhancement Act (“PAEA”),

Pub. L. No. 109-435, 120 Stat. 3198 (Dec. 20, 2006) (codified at

39 U.S.C. § 3600 et seq.), Congress replaced the Postal Rate


                                  2
Commission with the Postal Regulatory Commission (“PRC” or

“Commission”) and “strengthened its role.” Carlson v. Postal

Regul. Comm’n, 938 F.3d 337, 340 (D.C. Cir. 2019).

     The USPS is responsible for “develop[ing] and promot[ing]

adequate and efficient postal services.” 39 U.S.C. § 3661(a).

“When the Postal Service determines that there should be a

change in the nature of postal services [that] will generally

affect service on a nationwide or substantially nationwide

basis,” it must “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.” Id. § 3661(b).

     Following the submission of a proposal, “[t]he Commission

shall not issue its opinion on any proposal until an opportunity

for hearing on the record under [the Administrative Procedure

Act] has been accorded the Postal Service, users of the mail,

and an officer of the Commission who shall be required to

represent the interests of the general public. The opinion shall

be in writing and shall include a certification by each

Commissioner agreeing with the opinion that in his judgment the

opinion conforms to the policies established under this title.”

39 U.S.C. § 3661(c).




                                3
     B.   Factual Background

          1.   The COVID-19 Pandemic and Its Impact on Voting in
               the 2020 Election. 1

     On March 11, 2020, the World Health Organization (“WHO”)

declared a global pandemic as a result of the spread of COVID-

19. See Dr. Tedros Adhanom, WHO Director-General’s Opening

Remarks at the Media Briefing on COVID-19 (Mar. 11, 2020),

https://www.who.int/dg/speeches/detail/who-director-general-s-

opening-remarks-at-the-media-briefing-on-covid-19---11-march-

2020. On March 13, 2020, President Donald J. Trump declared a

national emergency as a result of the outbreak. Proclamation No.

9994, 85 Fed. Reg. 15,337 (Mar. 18, 2020).

     The virus that causes COVID-19 is highly contagious, is

believed to spread mostly from person-to-person when people are

in within six feet of each other, and may be spread by people

who are not showing symptoms of the virus. See Centers for

Disease Control, Coronavirus Disease 2019 (COVID-19): How to

Protect Yourself and Others (last updated Sep. 11, 2020),

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-


1 The Court takes judicial notice of documents and information on
official government websites. Fed. R. Evid. 201(b)(2); see also
Western Watershed Project v. Bernhardt, 2020 WL 3402379, * 3 n.4
(D.D.C. June 19, 2020). The Court takes judicial notice of
certain information at the World Health Organization website,
the Johns Hopkins University website, and the Mayo Clinic
website which is “not subject to reasonable dispute” because
they are “sources whose accuracy cannot be reasonably
questioned.” Fed. R. Evid. 201(b)(2).
                                4
sick/prevention.html. Symptoms range from mild to severe. See

Mayo Clinic, Coronavirus Disease 2019 (COVID-19), Symptoms and

Causes (updated Sep. 11, 2020),

https://www.mayoclinic.org/diseases-

conditions/coronavirus/symptoms-causes/syc-20479963. Older

people and people with existing chronic medical conditions have

a higher risk of serious illness from COVID-19. Id. Such chronic

medical conditions include “serious heart disease . . . ,

cancer, chronic obstructive pulmonary disease, type 2 diabetes,

severe obesity, chronic kidney disease, sickle cell disease, and

weakened immune system from solid organ transplants.” Id. COVID-

19 can result in severe medical complications including

“pneumonia and trouble breathing, organ failure in more than one

organ, heart problems, acute respiratory distress syndrome,

blood clots, acute kidney injury, and additional viral and

bacterial infections.” Id. A disproportionate number of black

people have been infected and killed by the disease. The COVID

Tracking Project, The COVID Racial Data Tracker,

https://covidtracking.com/race.

     As of October 10, 2020, just over one million people

worldwide, and 214,004 Americans have died from COVID-19. See

Johns Hopkins University, Coronavirus Resource Center,

https://coronavirus.jhu.edu/map.html. Also as of October 6,

2020, over 37 million people worldwide have been infected, with

                                  5
the United States having more infections than any other country,

with just over seven and a half million infections. Id.

     In light of the COVID-19 pandemic, the Centers for Disease

Control and Prevention (“CDC”) has provided guidance to voters

and election polling locations to prevent the spread of the

disease, including recommending “a wide variety of voting

options . . . such as alternative voting options that minimize

contact.” See CDC, Coronavirus Disease 2019 (COVID-19):

Considerations for Election Polling Locations and Voters,

Interim Guidance to Prevent Spread of Coronavirus Disease 2019

(COVID-19) (last updated June 22, 2020),

https://www.cdc.gov/coronavirus/2019-ncov/community/election-

polling-locations.html. Consistent with this guidance, states

have enacted temporary changes for the 2020 election including

expanding the ability to vote by mail. Nat’l Conference of State

Legislatures, COVID-19 and Elections, (last updated Oct. 2,

2020), https://www.ncsl.org/research/elections-and-

campaigns/absentee-and-mail-voting-policies-in-effect-for-the-

2020-election.aspx.

          2.   USPS Implements Changes that Lead to Nationwide
               Mail Delays

     The key changes that Plaintiff challenges are the

prohibition on “late trips” and “extra trips” (collectively




                                6
“Transportation Policy Changes”) 2 announced on July 10, 2020. 3

Reply, ECF No. 25 at 9. 4 Defendants have since clarified that

late or extra trips are not “banned”; however, they acknowledge

that they continue “at a reduced level” that began in July 2020.

Suppl. Cintron Decl., ECF No. 24-3 ¶ 4. By August 13, 2020, the

USPS had reduced the number of late trips by 71 percent. Email

from Mr. DeJoy to All Employees (“August 13, 2020 Email”), Aug.

13, 2020, ECF No. 25-1. Mr. DeJoy acknowledged that the

“transformative initiative has had unintended consequences that

impacted our overall service levels.” Id. at 2. On September 21,

2020, USPS issued “Operational Instructions” providing that

“transportation, in the form of late or extra trips that are

reasonably necessary to complete timely mail delivery, is not to

be unreasonably restricted or prohibited. Managers are

authorized to use their best business judgment to meet our

service commitments.” Ex. 1 to Notice Suppl. Material, ECF No.

29-1 at 4.




2 “Late trips” and “extra trips” have been employed by the USPS
to “complete timely mail delivery.” Ex. 1 to Notice Suppl.
Material, ECF No. 29-1 at 4.
3 Plaintiff originally challenged changes in addition to the

Transportation Policy Changes, see Mem. in Supp. of Mot. for
Prelim. Inj. (“Mot.”), ECF No. 8-1 at 22-23; but clarified that
they challenge the Transportation Policy Changes, see Reply, ECF
No. 25 at 9.
4 When citing electronic filings throughout this Opinion, the

Court cites to the ECF page number, not the page number of the
filed document.
                                 7
     It is undisputed that the USPS did not seek an advisory

opinion pursuant to 39 U.S.C. § 3661(b) from the PRC prior to

implementing these changes.

     C.   Procedural Background

     Plaintiff filed this lawsuit on August 20, 2020. On

September 1, 2020, Plaintiff filed a motion for a preliminary

injunction, which requests that the Court enjoin Defendants from

enforcing certain USPS policies and practices. See Mem. in Supp.

of Mot. for Prelim. Inj. (“Mot.”), ECF No. 8-1. Defendants filed

their opposition on September 11, 2020. See Defs.’ Opp’n Mot.

Prelim. Inj. (“Defs.’ Opp’n”), ECF No. 21. Plaintiff filed its

reply brief on September 16, 2020. See Pls.’ Reply (“Reply”),

ECF No. 25. The motion is ripe for the Court’s consideration.

III. Standard of Review

     “A plaintiff seeking a preliminary injunction must

establish [1] that [it] is likely to succeed on the merits, [2]

that [it] is likely to suffer irreparable harm in the absence of

preliminary relief, [3] that the balance of equities tips in his

favor, and [4] that an injunction is in the public interest.’”

Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (alteration

in original) (quoting Sherley v. Sebelius, 644 F.3d 388, 392

(D.C. Cir. 2011)). Where the federal government is the opposing

party, the balance of equities and public interest factors

merge. See Nken v. Holder, 556 U.S. 418, 435 (2009). A

                                  8
preliminary injunction is an “extraordinary remedy that may only

be awarded upon a clear showing that the plaintiff is entitled

to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 22 (2008). “The purpose of a preliminary injunction is

merely to preserve the relative positions of the parties until a

trial on the merits can be held.” Univ. of Tex. v. Camenisch,

451 U.S. 390, 395 (1981). In this Circuit, the four factors have

typically been evaluated on a “sliding scale,” such that if “the

movant makes an unusually strong showing on one of the factors,

then it does not necessarily have to make as strong a showing on

another factor.” Davis v. Pension Benefit Guar. Corp., 571 F.3d

1288, 1291–92 (D.C. Cir. 2009).

     In the wake of the Supreme Court’s decision in Winter v.

Natural Resources Defense Council, 555 U.S. 7 (2008), “the D.C.

Circuit has suggested that a positive showing on all four

preliminary injunction factors may be required.” Holmes v. FEC,

71 F. Supp. 3d 178, 183 n.4 (D.D.C. 2014); see also Sherley, 644

F.3d at 393 (“[W]e read Winter at least to suggest if not to

hold that a likelihood of success is an independent, free-

standing requirement for a preliminary injunction.”) (quotation

marks omitted). Nonetheless, “the Circuit has had no occasion to

decide this question because it has not yet encountered a post-

Winter case where a preliminary injunction motion survived the



                                  9
less rigorous sliding-scale analysis.” ConverDyn v. Moniz, 68 F.

Supp. 3d 34, 46 n.2 (D.D.C. 2014).

IV.   Analysis

      Plaintiff argues that it is likely to succeed on the merits

of its Section 3661(b) claim because “Congress has mandated that

before implementing changes that have a nationwide impact on

mail delivery, the Postal Service must provide an opportunity

for public comment and seek an advisory opinion from the [PRC].”

Mot., ECF No. 8-1 at 13. Plaintiff further argues that in

rushing to make the Transportation Policy Changes, “Defendants

failed to consider key statutory objectives about reliable mail

service and the need to give the highest consideration to

delivery [of] important mail, including ballots and checks . . .

and failed to consider the adverse impact on timely delivery of

medications” which they contend is inconsistent with the mandate

set forth in Section 101. Id.

      Defendants respond that Plaintiff lacks Article III

standing, that district courts lack subject matter jurisdiction

over Section 3661 claims, that the ultra vires doctrine does not

provide for judicial review here, and that Plaintiff’s claim

that defendants’ failure to comply with Section 101(e) was

arbitrary and capricious cannot be brought. Defs.’ Opp’n, ECF

No. 21 at 33-38, 39-43, 43-49, 49-51.




                                10
     A.   Plaintiff Is Likely To Succeed On The Merits Of Its 39
          U.S.C. § 3661(b) Claim

          1.   Plaintiff Likely Has Standing to Bring this
               Challenge

     To establish standing, “a plaintiff must show (1) an

‘injury in fact,’ (2) a sufficient ‘causal connection between

the injury and the conduct complained of,’ and (3) a

‘likel[ihood]’ that the injury ‘will be redressed by a favorable

decision.’” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334,

2341 (2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S.

555, 560-61 (1992)). “These requirements apply whether an

organization asserts standing to sue, either on its own behalf,

or on behalf of its members.” Nat’l Treasury Emps. Union v.

United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996) (citing

Havens Realty Corp. v. Coleman, 455 U.S. 363, 378 (1982).

“Standing to seek . . . forward-looking injunctive relief

requires [Plaintiff] to show [that it] is suffering an ongoing

injury or faces immediate injury. For a future injury, that

means submitting evidence showing that there is a substantial

risk that the harm will recur.” Narragansett Indian Tribal

Historic Pres. Office v. FERC, 949 F.3d 8, 13 (D.C. Cir. 2020)

(internal quotation marks, citations, and alterations in

original omitted).

     “The party invoking federal jurisdiction bears the burden

of establishing these elements.” Lujan, 504 U.S. at 561

                               11
(citations omitted). “Since they are not mere pleading

requirements but rather an indispensable part of the plaintiff's

case, each element must be supported in the same way as any

other matter on which the plaintiff bears the burden of proof,

i.e., with the manner and degree of evidence required at the

successive stages of the litigation.” Id.

       Defendants argue that Plaintiff fails to demonstrate injury

to its members or to itself as an organization. “First, the fact

that one of the Plaintiff’s members [Mr. Earl Graham, a disabled

veteran] allegedly has been harmed by delayed mail in the past

does not entitle Plaintiff to standing now, at least when it is

seeking forward-looking injunctive relief” because Defendants

have provided “evidence that mail delays have been mitigated”

and so “there is no basis to conclude that this purported injury

is likely to recur.” Defs.’ Opp’n, ECF No. 21 at 34-35 (citing

City of Los Angeles v. Lyons, 461 U.S. 95, 107-108, 1983).

However, Mr. Graham has described persisting mail delays. Decl.

of Earl Graham, 5 ECF No. 8-3 ¶ 6 (“Before this summer, my mail-

order medications would arrive generally a few days after my

doctor approved any prescription. Since mid-July, however, my

medications have taken much longer to arrive, including

sometimes arriving one week or longer after my doctor has



5
    Earl Graham is a member of the NAACP.
                                 12
approved prescriptions.”); Second Decl. of Earl Graham, ECF No.

25-2 ¶ 2 (“The delays I discussed have continued since I

submitted by August 28, 2020 declaration.); ¶ 3 (“A week [after

an August 25, 2020 teleconference appointment with a Veterans

Affairs doctor] the medicine approved by my doctor during my

August 25, 2020, teleconference appointment still had not

arrived. Without the medication, I began experiencing serious

pain.”); ¶¶ 5-6 (explaining that he was eligible to be sent

medication through express mail due to the seriousness of the

pain he was experiencing and that he received the medication

sent via express mail within two days); ¶ 6 (“By the time the

delayed medication arrived, it had been almost two weeks since

my August 25, 2020 teleconference appointment.”). As Plaintiff

has provided evidence of continuing mail delays, Defendants’

reliance on City of L.A. for the proposition that the alleged

injury is unlikely to recur is misplaced. In that case, the

Supreme Court observed that “five months had elapsed between

[the traffic stop resulting in a chokehold] and the filing of

the complaint, yet there was no allegation of further

unfortunate encounters between [Mr.] Lyons and the police.” City

of Los Angeles, 461 U.S. at 108. Here, Plaintiff has provided

evidence demonstrating that mail delays persist.

     As part of this argument, Defendants contend that the

Complaint does not allege what exactly caused the mail delays.

                               13
Defs.’ Opp’n, ECF No. 21 at 34-35. However, Defendants’ own

evidence demonstrates that Mr. DeJoy has acknowledged that the

Transportation Policy Changes caused mail delays. See Ex. 5, Tr.

of Senate Homeland Security and Governmental Affairs Comm. Hr’g

on USPS Operations During COVID-19 and the Elections, Aug. 21,

2020, ECF No. 21-1 at 104 (Mr. DeJoy stating that the reduction

in late trips resulted in mail delays); Id. at 309, (Mr. DeJoy

stating that “[w]e are very concerned with the deterioration and

service and are working very diligently.”); Id. at 323 (Mr.

DeJoy stating that “[o]ur recovery process is taking too long.

This should have been resolved in a couple of—in a few days and

it’s-it’s not.”); Id. at 350 (Mr. DeJoy stating that “I think

there is a lot of different issues going on within the country

that are—impact mail delay, including the actions that we took

with regard to transportation.”); August 13, 2020 Email, ECF No.

25-1 at 4 (“Unfortunately, this transformative initiative has

had unintended consequences that impacted our overall service

levels.”)

     Second, Defendants argue that Plaintiff’s members’ concerns

about future mail delays impacting their ability to vote fails

to establish standing because future injury must be “certainly

impending.” Defs.’ Opp’n, ECF No. 21 at 35 (quoting Clapper v.

Amnesty Int’l USA, 568 U.S. 398, 409 (2010)). Defendants contend

that “the Postal Service has numerous policies and practices

                               14
designed to ensure that ballots will be timely delivered before

the election,” that it is within Plaintiff’s members’ control to

timely mail their ballots, and so their injury is speculative.

Id. However, Defendants are incorrect to assert that standing to

obtain injunctive relief requires the injury to be “certainly

impending.” Rather, “[s]tanding to seek . . . forward-looking

injunctive relief requires [Plaintiff] to show [that it] is

suffering an ongoing injury or faces immediate injury. For a

future injury, that means submitting evidence showing that there

is a substantial risk that the harm will recur.” Narragansett

Indian Tribal Historic Pres. Office, 949 F.3d at 13 (internal

quotation marks, citations, and alterations in original

omitted). Accordingly, as explained above, Plaintiff has

demonstrated that its members face a “substantial risk that the

harm will recur” and has demonstrated injury to its members.

     Third, Defendants contend that Plaintiff alleges issue

advocacy harm, which is insufficient to establish organizational

standing. Defs.’ Opp’n, ECF No. 21 at 35-37. Plaintiff responds

that it has provided evidence demonstrating that because of the

impact of the mail delays, it is “diverting resources away from

its ordinary voter registration activities, voter protection

activities, and education activities designed to promote voter

turnout” which pursuant to League of Women Voters v. Newby, 838



                               15
F.3d 1 (D.C. Cir. 2016), constitutes irreparable injury. Reply,

ECF No. 25 at 30.

     The Court of Appeals for the District of Columbia Circuit

(“D.C. Circuit”) recently articulated the test for determining

whether an organization satisfies the “irreparable harm” prong:

          An organization is harmed if the “actions
          taken by [the defendant] have ‘perceptibly
          impaired’ the [organization's] programs.”
          Fair Emp't Council of Greater Wash., Inc. v.
          BMC Mktg. Corp., 28 F.3d 1268, 1276 (D.C. Cir.
          1994) (quoting Havens Realty Corp. v. Coleman,
          455 U.S. 363, 379, 102 S. Ct. 1114, 71 L. Ed.
          2d 214 (1982)); see also Nat'l Treasury Emps.
          Union v. United States, 101 F.3d 1423, 1430
          (D.C. Cir. 1996) (explaining that the initial
          question is whether “a defendant's conduct has
          made   the  organization's   activities   more
          difficult”). If so, the organization must then
          also show that the defendant's actions
          “directly conflict with the organization's
          mission.” Nat'l Treasury Emps. Union, 101 F.3d
          at 1430. The second step is required to ensure
          that organizations cannot engage in activities
          simply to create an injury. Id.

League of Women Voters, 838 F.3d at 8. “Irreparable harm” is a

higher burden than that necessary to establish Article III

standing. Nat. Res. Def. Council, Inc. v. EPA, 383 F. Supp. 3d

1, 11 (D.D.C. 2019) (“‘an identifiable trifle is enough for

standing’”) (quoting United States v. Students Challenging Reg’y

Agency Procedures, 412 U.S. 669, 689 n.14 (1973)).

     Plaintiff has provided evidence demonstrating that it “has

established a civic engagement program, which is designed to

encourage citizens to be fully engaged in the democratic

                               16
process, and to raise awareness for political, educational,

social and economic equality for communities of color in the

electoral and legislative process. . . [T]he program seeks to

increase turnout among Black voters in federal, state, and local

elections.” Decl. of Carmen Watkins, 6 ECF No. 8-2 ¶¶ 2, 6.

Plaintiff has also demonstrated that Defendants’ actions have

“made the organization’s activities more difficult,” League of

Women Voters, 838 F.3d at 8 (citation omitted); because

Plaintiff has explained that needing to address the impact of

the mail delays is causing it to “divert[] resources from the

regular activities of the NAACP’s civil engagement program,”

which includes “registering voters, contacting registered voters

to ensure that they have accurate voting information and

encouraging them to vote, organizing events to get out the vote,

and conducting voter protection activities during early voting.”

Id. ¶ 11.

     Next, Plaintiff must show that “the defendant's actions

‘directly conflict with the organization's mission’” in order

“to ensure that organizations cannot engage in activities simply

to create an injury.” League of Women Voters, 838 F.3d at 8.

Plaintiff’s civic engagement program is clearly part of its

mission “to ensure the political, educational, social, and


6  Carmen Watkins is the Interim Vice President of Field
Operations for the NAACP.
                                17
economic equality of all persons and to eliminate race-based

discrimination.” Watkins Decl., ECF No. 8-2 ¶ 2. And as stated

above, the civic engagement program includes “registering

voters, contacting registered voters to ensure that they have

accurate voting information and encouraging them to vote,

organizing events to get out the vote, and conducting voter

protection activities during early voting.” Id. ¶ 11.

Accordingly, Plaintiff has provided evidence demonstrating that

to Defendants’ actions “directly conflict with [its] mission”

because it has needed to divert resources from the civic

engagement program to instead “organize transportation for

voters to drop off their absentee ballots” in various states.

Id. ¶¶ 8, 9, 10, 12.

     Defendants fail to distinguish League of Women Voters in

their opposition brief and the authorities they point to support

Plaintiff’s ability to satisfy “irreparable harm,” a higher

burden than that necessary to establish Article III standing.

Plaintiff has provided evidence that due to mail delays caused

by Defendants’ action, they have needed in the past and will

need in the future to divert resources from their civic

engagement program to organize transportation to ensure that

votes are counted. This constitutes a “drain on the

organization’s resources”; not simply a “setback to the

organization’s abstract social interests.” Nat’l Ass’n of Home

                               18
Builders v. EPA, 667 F.3d 6, 11 (D.C. Cir. 2011) (quoting Nat’l

Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433 (D.C.

Cir. 1995)). Similarly, Plaintiff’s provision of services

through its civic engagement program demonstrates that it does

not engage solely in “pure issue-advocacy.” Ctr. for Law & Educ

v. Dep’t of Educ., 396 F.3d 1152, 1162 (D.C. Cir. 2005). Rather,

Plaintiff’s activities are more akin to those of Housing

Opportunities Made Equal (“HOME”), which the Supreme Court held

had standing in Havens Realty Corp. v. Coleman. In so holding,

the Supreme Court stated:

          If, as broadly alleged, petitioner’s steering
          practices have perceptibly impaired HOME’s
          ability to providing counseling and referral
          services for low-and moderate-income home
          seekers, there can be no question that the
          organization has suffered injury in fact. Such
          concrete and demonstrable injury to the
          organization’s activities–with the consequent
          drain   on   the   organization’s   resources—
          constitutes far more than simply a setback to
          the organization’s abstract social interests.

455 U.S. at 379. Similarly, here Plaintiff has provided evidence

demonstrating how mail delays are causing it to divert resources

from its usual civic engagement activities, which is

distinguishable from the situation in Int’l Acad. Of Oral

Medicine & Toxicology v. FDA, 195 F. Supp. 3d 243 (D.D.C. 2016),

where the Plaintiff failed to explain how the agency action

“forced it to divert or modify its activities in any meaningful

way from its standard programmatic efforts.” Id. at 259.

                               19
      For all of these reasons, Plaintiff has provided evidence

“showing that there is a substantial risk that the harm will

recur.” Narragansett Indian Tribal Historic Pres. Office, 949

F.3d at 13.

      Finally, Defendants argue that “Plaintiff cannot establish

causation or redressability because it seeks to enjoin changes

that have not occurred.” Defs.’ Opp’n, ECF No. 38. Specifically,

Defendants argue that “the only specific change that was

actually implemented was additional guidance on complying with

long-established transportation schedules by departing on time

and thus mitigating extra trips.” Id. This, however, is

precisely what Plaintiff challenges. Reply, ECF No. 25 at 9, 19-

21.

      For all of these reasons, Plaintiff has demonstrated that

it likely has standing to bring its claims on behalf of its

members and itself as an organization.

           2.   This Court Likely Has Subject Matter Jurisdiction
                Over The Section 3661 Claim

      Defendants contend that this court lacks subject matter

jurisdiction over “complaints regarding” Section 3661 because

such complaints must first be made to the PRC and then to the

D.C. Circuit. Defs.’ Opp’n, ECF No. 21 at 39. The statutory

scheme provides as follows. 39 U.S.C. § 409(a) provides that

“[e]xcept as otherwise provided in this title, the United States


                                20
district courts shall have original but not exclusive

jurisdiction over all actions brought by or against the Postal

Service.” One of the exceptions to this original jurisdiction is

set forth in 39 U.S.C. § 3662, which provides that “[a]ny

interested person . . . who believe[s] the Postal Service is not

operating in conformance with the requirements of a provision of

. . . this chapter (or regulations promulgated under any of

these provisions) may lodge a complaint with the [PRC] . . .”

Section 3662(b) requires the PRC to respond to the complaint

within 90 days and provides that if a complaint is not timely

responded to, a petition for review may be filed with the D.C.

Circuit, which also has jurisdiction to review final orders or

decisions of the PRC.

     Plaintiff’s complaint alleges a procedural violation—that

the USPS failed to comply with the requirement that “[w]hen 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.” 39 U.S.C. § 3661.

     Defendants contend that “[c]ourts have repeatedly held that

39 U.S.C. §§ 3662 and 3663 constitute the exclusive

jurisdictional remedy for complaints about postal services that

                               21
fall within the statutory provisions specifically identified in

[S]ection 3662.” Defs.’ Opp’n, ECF No. 21 at 40. However,

defendants have provided no mandatory authority to support their

assertion that Sections 3662 and 3663 constitute the exclusive

jurisdictional remedy for a claim that the USPS has failed to

comply with the procedural requirements set forth in Section

3661. Indeed, Plaintiff points out that none of the cases cited

by defendants “concerns a failure to follow the procedural

requirements of [S]ection 3661” but rather “considered a

complaint about Postal Service prices and the manner in which

the Postal Service provides delivery services.” Reply, ECF No.

25 at 12.

     “Whether a statute is intended to preclude initial judicial

review is determined by the statute’s language, structure, and

purpose, its legislative history, and whether the claims can be

afforded meaningful review.” Thunder Basin Coal Co. v. Reich,

510 U.S. 200, 307 (1994) (internal citation omitted). The

language of the statute is broad:   “[a]ny interested person . .

. who believe[s] the Postal Service is not operating in

conformance with the requirements of a provision of   . . . this

chapter (or regulations promulgated under any of these

provisions) may lodge a complaint with the Postal Regulatory

Commission . . .” 39 U.S.C. § 3662. This could certainly be read

to mean that the failure of the USPS to comply with the

                               22
procedural requirement set forth in Section 3661 would be

encompassed by Section 3662. Plaintiff argues that the use of

the permissive “may” in Section 3662 coupled with the mandatory

phrasing “shall” in Section 3662(c) shows Congress did not

intend to limit jurisdiction over Section 3661 claims. See

Reply, ECF No. 25 at 10. The statute consistently uses the word

“may” when setting forth the procedure for filing complaints and

for seeking appellate review of the PRC’s determination (or

failure to make a determination): any interested person “may”

lodge a complaint with the PRC, and if the interested person is

unsatisfied with the response or does not receive a timely

response, they “may” file a petition with the D.C. Circuit. 39

U.S.C. §§ 3662(a), 3663. The use of the permissive “may” coupled

with the use of the mandatory “shall” suggests that Sections

3662(a) and 3663 were not intended to be the exclusive avenue

for bringing a procedural challenge to the USPS’s failure to

comply with Section 3661. See Bennett v. Panama Canal Co., 475

F.2d 1280, 1828 (D.C. Cir. 1973) (“[T]he permissive

interpretation is conclusively proven to be correct   [together

with the particular legislative history] by the fact that when

in the same statute Congress intended a mandatory direction it

used the auxiliary ‘shall’ not ‘may’-a contrast which is

generally significant . . . .”). This interpretation is

strengthened because the statute expressly provides that this

                               23
Court has original jurisdiction “over all actions brought by or

against the Postal Service” unless “otherwise provided in [title

39].” 39 U.S.C. § 409(a).

     The availability of judicial review for the USPS’s failure

to comply with Section 3661 is consistent with the legislative

history of the PRA. In the discussion of the section of the PRA

that established the “procedures for changes in postal service,”

the House Committee Report states that “[t]he postal service is—

first, last, and always—a public service” and that the PRA

“require[s] [Postal Services management] to seek out the needs

and desires of its present and potential customers—the American

public.” H.R. Rep. No. 91-1104 at 3668. The Committee Report

describes provisions in the act that “contain[] specific

provisions requiring justification and review of changes in

service.” Id.; see Buchanan v. U.S. Postal Serv., 508 F.2d 259,

263 n.6 (5th Cir. 1975) (“[T]he procedures mandated by 3661 are

sufficiently elaborate to amount to a significant impediment in

the path of the decision-making process of the Postal

Service.”).

     The Court must also consider whether the claim may be

reviewed because there is no other meaningful or adequate avenue

for judicial review. See Thunder Basin Coal Co., 510 U.S. at

307. District court jurisdiction may not be implicitly precluded

based on consideration of the following factors: (1) if “‘a

                               24
finding of preclusion could foreclose all meaningful judicial

review’”; (2) if the claim is “‘wholly collateral to a statute’s

review provisions’”; and (3) if the claims are “‘outside the

agency’s expertise’” to discern “whether the particular claims

at issue fall outside an overarching congressional design.” 7

Jaresky v. SEC, 803 F.3d 9, 17 (D.D.C. 2015) (quoting Free

Enter. Fund v. Pub. Company Acct. Oversight Board, 561 U.S. 477,

489-90 (2010). Mindful of the fact that there is a 90-day window

for the PRC to respond to a complaint brought pursuant to

Section 3661, Defendants contend that it does not matter that

the PRC cannot provide immediate relief because eventual relief

is sufficient as a matter of law. Defs.’ Opp’n, ECF No. 21 at 43

n.11. However, the authority upon which Defendants rely is

inapposite. In American Federation of Government Employees, AFL-

CIO v. Trump, 929 F.3d 748 (D.D.C. 2019), the court held that

meaningful judicial review was not foreclosed because Plaintiffs

were unable to obtain “pre-implementation review of executive

orders or immediate relief barring all agencies from

implementing the executive orders,” Id. at 755 (internal

quotation marks omitted); because there the parties agreed to

consolidate their preliminary injunction requests with the




7 Defendants’ assertion that the three factors must be met is
incorrect. See Jaresky v. SEC, 803 F.3d 9, 17 (D.D.C. 2015).
                                25
merits, see Scheduling Order, Civil Action No. 18-1261, ECF No.

16 at 1.

     With regard to the first consideration—whether Plaintiff

would be denied meaningful review—it is clear that it would.

There is no dispute that the USPS did not comply with Section

3661 in implementing the Transportation Policy Changes, and

Plaintiff has provided evidence demonstrating that the changes

have resulted in mail delays which cause Plaintiff’s members and

Plaintiff as an organization harm. See supra IV.A.1.

Accordingly, even if there was a “fairly discernible” intent in

the statutory scheme to preclude district court jurisdiction,

requiring Plaintiff to go through the PRC process would deny it

meaningful review. See Berkley v. Mountain Valley Pipeline, LLC,

896 F.3d 624, 631 (4th Cir. 2018) (noting that “plaintiffs are

denied meaningful review when they are subject to some

additional and irremediable harm beyond the burdens associated

with the dispute resolution process” (internal quotation marks

and citations omitted)); Krescholleck v. S. Stevedoring Co., 78

F.3d 868, 875 (3d Cir. 1996) (noting that the plaintiff had

“alleged a sufficiently serious irreparable injury to lead us to

conclude that the administrative review process is insufficient

to afford him full relief”). And persuasive authority holds that

this factor is the “most important.” Berkley, 896 F.3d at 630.

Accordingly, this first factor weighs in favor of finding

                               26
Congress intended district courts to have jurisdiction over

claims such as the one brought by Plaintiff. The second

consideration–whether the claim is wholly collateral to the

statutory scheme—is “‘related’ to whether ‘meaningful judicial

review’ is available, and the two considerations are analyzed

together.” Am. Fed’n of Gov’t Emps., AFL-CIO v. Trump, 929 F.3d

748, 758 (D.C. Cir. 2019) (quoting Jarskey, 803 F.3d at 22.) The

question to ask is “whether the plaintiffs ‘aimed to obtain the

same relief they could seek in the agency proceeding.’” Id. at

758-60 (quoting Jarskey, 803 F.3d at 23). Here, the relief

Plaintiff seeks cannot be meaningfully redressed through filing

a Section 3662 complaint.

     The third consideration is whether the claim is “beyond the

expertise” of the PRC. Plaintiff’s claim is that the USPS failed

to comply with the procedural requirement set forth in Section

3661. This procedural claim does not require the “agency

expertise” the statutory procedures contemplate. Berkley, 896

F.3d at 630. Accordingly, precluding district court jurisdiction

here would completely deny Plaintiff meaningful review given the

timing of the implementation of the Transportation Policy

Changes.

     For all these reasons, the Court likely has subject matter

jurisdiction over Plaintiff’s Section 3661(b) claim. See

Commonwealth of Pennsylvania v. DeJoy, Civil Action No. 20-4096,

                               27
2020 WL 5763553, *22 (E.D. Pa. Sept. 29, 2020) (stating that

“Congressional intent to preclude district courts from hearing

claims relating to [S]ection 3661(b) is not fairly discernible

from the text, structure, and legislative history of the PRA.”).

          3.   Plaintiff’s Section 3661(b) Claim Is Likely
               Reviewable Pursuant To The Ultra Vires Doctrine

     While as a general matter “the Postal Service is exempt

from review under the Administrative Procedure Act, . . .   its

actions are reviewable to determine whether it has acted in

excess of its statutory authority.” N. Air Cargo v. U.S. Postal

Serv., 674 F.3d 852, 858 (D.C. Cir. 2012). “The scope of Non-APA

review is narrow . . . [and] is available only to determine

whether the agency has acted ultra vires—that is whether it has

exceeded its statutory authority.” Sears, Roebuck & Co. v. U.S.

Postal Serv., 844 F.3d 260, 265 (D.C. Cir. 2016) (quotation

marks and citations omitted).

     Defendants contend that ultra vires review is unavailable

because: (1) Plaintiff cannot show that USPS acted “in excess of

its delegated powers and contrary to a specific prohibition”

because they cannot show that USPS violated Section 3661(b); and

(2) Plaintiff has a “meaningful and adequate means of

vindicating [their] statutory rights” because they can file a

complaint with the PRC pursuant to Section 3662. Defs.’ Opp’n,

ECF No. 21 at 44 (citing Nat’l Air Traffic Controllers Ass’n


                                28
AFL-CIO v. Fed. Serv. Impasses Panel, 437 F.3d 1256, 1258 (D.C.

Cir. 2006) (internal quotation marks and citations omitted)).

     The Court is persuaded that Plaintiff’s claim is

reviewable:

          “Even where Congress is understood generally
          to have precluded review, the Supreme Court
          has found an implicit but narrow exception,
          closely paralleling the historic origins of
          judicial review for agency actions in excess
          of jurisdiction.” Griffith v. FLRA, 842 F.2d
          487, 492 (D.C. Cir. 1988) (citing the leading
          case, Leedom v. Kyne, 358 U.S. 184, 188, 79
          S.Ct. 180, 183-84, 3 L. Ed. 2d 210 (1958)
          (finding   judicial   review  proper   despite
          statutory preclusion of judicial review, where
          the NLRB acted “in excess of its delegated
          powers and contrary to a specific prohibition”
          in the NLRA)).


Aid Ass’n for Lutherans v. U.S. Postal Service, 321 F.3d 116,

1172-73 (D.C. Cir. 2003). Plaintiff’s claim here is that the

USPS failed to comply with the requirement Congress set forth in

Section 3661. Accordingly, Plaintiff’s claim “clearly admit[s]

of judicial review.” Id. at 1173.

          4.   USPS Likely Failed to Comply with Section 3661(b)

     The scope of non-APA review includes, among other things,

“a straightforward question of statutory interpretation.” Nat’l

Ass’n of Postal Sup’rs v. U.S. Postal Serv., 602 F.2d 420, 432

(D.C. Cir. 1979). In conducting this review, “[t]he judicial

role is to determine the extent of the agency’s delegated

authority and then determine whether the agency has acted within

                               29
that authority. In this as in other settings, courts owe a

measure of deference to the agency’s own construction of its

organic statute, but the ultimate responsibility for determining

the bounds of administrative discretion is judicial.” Id. at

432-33 (internal citations omitted).

     Section 3661(b) provides that “[w]hen 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.”

     Persuasive authority has construed Section 3661(b) as

follows:

           The language of the statute . . . indicates
           that three factors must coexist before 3661
           applies. 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. These three factors combine to
           demonstrate   that   Congress    intended   the
           safeguards of 3661 to apply only when changes
           of significance were contemplated.

                                 30
Buchanan v. U.S. Postal Service, 508 F.2d 259, 263 (5th Cir.

1975).

     There is no dispute that the USPS did not comply with

Section 3661(b) prior to implementing the Transportation Policy

Changes. Defendants argue that the Transportation Policy Changes

do not implicate Section 3661(b) because: (1) there has been no

“meaningful impact on service;” (2) postal services available to

the user have not been altered; and (3) the changes have not

affected service in a broad geographical area. Defs.’ Opp’n, ECF

No. 21 at 46 (quoting and citing Buchanan 508 F.2d at 263). In

support, Defendants argue that “[t]he only notable change USPS

has made has been to renew its emphasis on adhering to its

published schedule, including developing written guidance

clarifying the circumstances under which extra truck trips were

acceptable, in order to mitigate the number of unplanned and

unnecessary trips” which is not a “change” that is contemplated

in Section 3661. Id. at 46-47. Defendants contend that this “is

not a new policy but rather has a renewed focus on ensuring the

Postal Service complies with its existing policies, and that it

operates as efficiently as possible.” Id. Defendants conclude

that this is “precisely the type of management direction to

which [S]ection 3661 does not apply.” Id. at 47.




                               31
     The Court is persuaded that Plaintiff is likely to succeed

on its claim that Defendants violated Section 3661(b) by failing

to submit the Transportation Policy Changes to the PRC. First,

it was a “change” because it has had a “meaningful impact on

service.” Buchanan, 508 F.2d at 263. Plaintiff points to

evidence showing that the reduction in extra and late trips has

resulted in changes to service standards nationwide because it

has resulted in nationwide delays. See supra at 6-7, 13-14; see

also August 13, 2020 Email, ECF No. 25-1 at 4 (“We have also

reduced extra trips by 71 percent – a tremendous achievement.”)

Furthermore, Plaintiff has demonstrated that Defendants’

position that the Transportation Policy Changes do not

constitute a “change” is not supported by the USPS’s own

statements. See id. at 3-4 (“In order to transform . . . we must

make a significant number of changes that will not be easy . . .

); Id. at 4 (“Unfortunately, this transformative initiative has

had unintended consequences that impacted out overall service

levels. However, recent changes are not the only contributing

factors.”); Id. (“I ask that you bear with me while we work

through these changes to transform for the better . . .”).

     Second, the changes were “in the nature of postal

services,” 39 U.S.C. § 3661(b) because they qualitatively

altered “the manner in which postal services [are] available to

the user,” Buchanan, 508 F.2d at 263. As stated above, Plaintiff

                               32
points to evidence showing that the reduction in extra and late

trips resulted in nationwide delays.

     Third, the changes affected service “on a nationwide or

substantially nationwide basis,” 39 U.S.C. § 3661(b) because

“[a] broad geographical area [was] involved,” Buchanan, 508 F.2d

at 263. Defendants’ own evidence demonstrates that service was

affected on a nation-wide basis. See Defs.’ Ex. 14, ECF No. 21-1

at 452-53 (Mr. DeJoy stating that the reduction in late and

extra trips occurred in “[e]very state a truck moves in”).

     Defendants contend that pursuant to past practice, the

types of “nationwide changes that trigger 3661’s review are

general changes to postal facility hours or service standards

for mail delivery”; and not the type of operational change at

issue here. Id. at 47-49. However, based on the analysis above,

the significant reduction in late and extra trips has resulted

in a change to service standards.

     While it is clear that Congress did not intend for the

courts to micromanage the operations of the USPS, requiring the

USPS to comply with the statutory requirement that it obtain an

advisory opinion from the PRC and provide for notice and comment

prior to implementing “a change in the nature of postal services

which will generally affect service on a nationwide or

substantially nationwide basis” is not micro-managing; it is

requiring the USPS to act within its statutory authority.

                               33
Furthermore, Congress clearly intended Section 3661 to require

an opportunity for public participation and for independent

review before the USPS implements service changes that will have

a broad effect. The broad scope of the Transportation Policy

Changes demonstrates on its face that it is precisely the kind

of change that is to be the subject of the public-participation

and independent review safeguards provided by Section 3661.

     Finally, Defendants argue that because Plaintiff has a

“meaningful and adequate means of vindicating their statutory

rights” by filing a complaint with the PRC and then seek

judicial review in the D.C. Circuit if unsatisfied, they cannot

establish ultra vires jurisdiction. Defs.’ Opp’n, ECF No. 21 at

44. Plaintiff responds—and the Court agrees—that the PRC

complaint process, even if it is available for their procedural

challenge, would not redress its injury due to the timeframes

involved. Reply, ECF No. 25 at 18. Because the Court finds that

Plaintiff has shown it will likely succeed on its claim that

Defendants’ Transportation Policy Changes likely violated 39

U.S.C. § 3661(b), the Court need not evaluate Plaintiff’s claim

that Defendants acted arbitrarily, capriciously, and contrary to

the mandate of Section 101(e) at this time.




                               34
C.   Plaintiff Faces Irreparable Harm

     “In this Circuit, a litigant seeking a preliminary

injunction must satisfy ‘a high standard’ for irreparable

injury.” ConverDyn, 68 F. Supp. 3d at 46 (quoting Chaplaincy of

Full Gospel Churches, 454 F.3d at 297). The movant must

demonstrate that it faces an injury that is “both certain and

great; it must be actual and not theoretical,” and of a nature

“of such imminence that there is a clear and present need for

equitable relief to prevent irreparable harm.” Wis. Gas Co. v.

FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (quotation marks and

emphasis omitted). Furthermore, an organization faces

irreparable harm where (1) the “actions taken by [the defendant]

have ‘perceptibly impaired’ the [organization’s] programs,”

League of Women Voters v. Newby, 838 F.3d 1, 8 (D.C. Cir. 2016)

(quoting Fair Emp’t Council of Greater Wash., 28 F.3d at 1276),

and (2) “the defendant’s actions ‘directly conflict with the

organization’s mission,” id. (quoting Nat’l Treasury Emps.

Union, 101 F.3d at 1430.

     With regard to the irreparable harm to its members,

Plaintiff argues and submits evidence demonstrating that the

“changes that USPS implemented without following the required

[S]ection 3661 process have caused delays that harm, and will

continue to harm, NAACP members.” Mot., ECF No. 8-1 at 38.

Defendants counter first, that there is no procedural injury

                               35
because “Plaintiff cannot state a claim under [S]ection 3661 and

thus cannot have suffered any procedural injury as a result of

any violation of that statute.” Defs.’ Opp’n, ECF No. 21 at 52.

However, the Court has determined that Defendants likely

violated Section 3661(b). See supra Section IV.A.4. And a

failure to comply with Section 3661(b) is sufficient to show

irreparable harm. See Buchanan, 375 F. Supp. 1014, 1022 (N.D.

Ga. 1974) (“The denial of . . . a [Section 3661] hearing, should

one be required, is sufficient irreparable injury to support

interlocutory injunctive relief, for it is clear that no hearing

will be conducted and that the changes will continue unless

enjoined.”) aff’d in relevant part, 508 F.2d at 266 (stating

that the district court “was correct in its determinations that

plaintiffs had properly established that there was a substantial

threat of irreparable injury”). Second, Defendants counter that

“Plaintiff has not identified that its members are likely to

suffer any injuries in terms of the potential future delay of

their ballots” in light of the USPS’s service improvements,

noting that all Mr. Graham has to do is “mail[] his ballot a

reasonable time before the election (which is approximately two

months away).” Defs.’ Opp’n, ECF No. 21 at 52. However, Mr.

Graham’s ability to return his ballot on time is not wholly

within his control as the mailing of ballots is a matter of

state law. See supra Section II.B.1 Furthermore, Plaintiff has

                               36
demonstrated that mail delays have persisted. See generally

Second Decl. of Earl Graham, ECF No. 25-2.

     With regard to irreparable harm to Plaintiff as an

organization, Plaintiff argues and submits evidence

demonstrating that “the delays caused by the Postal Service’s

changes have harmed, and continue to harm, the NAACP itself by

frustrating its mission and requiring it to divert resources to

counteract the effect of USPS’s action.” Mot., ECF No. 8-1 at

39-40. Defendants counter that Plaintiff’s claimed injury to its

resources fails because “Plaintiff has not established that mail

delays were necessarily the result of the challenged policies,

or that future delays, if there are any, would be the result of

these Postal Service operational changes,” Defs.’ Opp’n, ECF No.

21; and that in view of the steps USPS has taken to improve

service performance, Plaintiff cannot show that “future harm is

imminent or likely to recur,” id. at 53. However, the Court has

already determined that Plaintiff as an organization has

demonstrated irreparable harm. See supra at 15-20.

     Accordingly, both Plaintiff’s members and Plaintiff as an

organization face irreparable harm absent a preliminary

injunction.




                               37
     D.   The Balance Of Equities And Public Interest Favor An
          Injunction

     The balance-of-equities factor directs the Court to

“‘balance the competing claims of injury and . . . consider the

effect on each party of the granting or withholding of the

requested relief.’” ConverDyn, 68 F. Supp. 3d at 52 (quoting

Winter, 555 U.S. at 24). “When the issuance of a preliminary

injunction, while preventing harm to one party, causes injury to

the other, this factor does not weigh in favor of granting

preliminary injunctive relief.” Id.; see also Serono Labs., Inc.

v. Shalala, 158 F.3d 1313, 1326 (D.C. Cir. 1998). By contrast,

the balance of equities may favor a preliminary injunction that

serves only “‘to preserve the relative positions of the parties

until a trial on the merits can be held.’” 64 F. Supp. 3d 195,

205 (D.D.C. 2014) (quoting Camenisch, 451 U.S. at 395). “The

purpose of . . . interim relief is not to conclusively determine

the rights of the parties, University of Tex. v. Camenisch, 451

U.S. 390, 395 (1981), but to balance the equities as the

litigation moves forward. In awarding a preliminary injunction a

court must also ‘conside[r]   . . . the overall public interest,’

Winter, 555 U.S. at 26.” Trump v. Int’l Refugee Assistance

Project, 137 S. Ct. 2080, 2087 (2017).




                                38
     Plaintiff argues that, as it explained in its argument that

it has standing to bring its claims, without an injunction, “the

NAACP and its members will suffer serious and immediate harms

that could not be sufficiently remedied later . . . [and that]

the Postal Service would not be harmed by an order requiring it

to follow the law, and the public interest is served when

administrative agencies comply with their statutory

obligations,” noting that “[t]his point applies fully to

procedural obligations imposed by statute.” Mot., ECF No. 8-1 at

41-42. Plaintiff also notes that “the public would not be harmed

(to the contrary) by the restoration of reliable postal service,

providing the timely delivery of medicines and checks and other

important mail.” Id. at 42.

     Defendants fail to respond to Plaintiff’s arguments,

responding only that they are “undertaking extensive efforts to

facilitate the timely delivery of Election Mail” and that

“Plaintiff’s member voters have an opportunity to avoid any harm

by mailing in their ballots without delay.” Defs.’ Opp’n, ECF

No. 21 at 54. Defendants also contend that ensuring “full

compliance could [inappropriately] require the Court to act as

an overseer of the agency’s day-to-day activities.” Id.

  The balance of the equities and the public interest favor an

injunction. First, Defendants identify no harms to themselves

whereas Plaintiff has demonstrated serious, immediate, and

                               39
recurring harms to its members and to itself as an organization.

Defendants’ suggestion that an injunction could require the

Court to oversee the USPS’s “day-to-day activities” is without

merit given that the Court will issue a targeted preliminary

injunction enjoining the USPS from implementing the

Transportation Policy Changes. Second, “there is a substantial

public interest ‘in having governmental agencies abide by the

federal laws that govern their existence and operations.’”

League of Women Voters, 838 F.3d at 12 (quoting Washington v.

Reno, 35 F.3d 1093, 1103 (6th Cir. 1994).

V.   Conclusion
     For the foregoing reasons, the Court GRANTS Plaintiff’s

motion for a preliminary injunction. Any request to stay this

decision pending appeal will be denied for substantially the

same reasons as those articulated in this Opinion. An

appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed:   Emmet G. Sullivan
          United States District Judge
          October 10, 2020




                                 40
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