UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
NATIONAL ASSOCIATION OF POSTAL SUPERVISORS, ) ) Plaintiff, ) ) v. ) Case No. 1:19-cv-2236-RCL ) UNITED STATES POSTAL SERVICE, ) ) Defendant. )
MEMORANDUM OPINION
The National Association of Postal Supervisors ("the Association") is an organization
representing active and retired supervisors of the United States Postal Service ("USPS" or "Postal
Service").
The Association sued USPS alleging that USPS undercompensated postal supervisors in
violation of federal statute. The Association also alleged that USPS violated federal law by
declining to recognize the Association's authority to represent postmasters and certain other
managers. USPS moved to dismiss the complaint, arguing that the statutory provisions cited by
the Association do not provide a private cause of action. The United Postmasters and Managers
of America ("Postmasters") intervened in support of USPS and filed a motion to dismiss the
Association's claim that it had authority to represent postmasters.
Upon consideration of the complaint (ECF. No. 1), motions to dismiss (ECF Nos. 11, 19),
memorandum in opposition (ECF No. 16), replies (ECF Nos. 20, 21), and exhibits filed in support
thereof, the Court will GRANT USPS's and Postmasters' motions to dismiss.
1 I. BACKGROUND
A. The Postal Reorganization Act
The Postal Reorganization Act of 1970 ("PRA"), Pub. L. No. 91-375, 84 Stat. 719 (1970),
created USPS as "an independent establishment of the executive branch of the Government of the
United States," 39 U.S.C. § 201, with broad internal operating powers, id. § 401. Under the PRA,
USPS establishes compensation policies after negotiations with employee representatives. See id.
§§ 1202-09. Collective bargaining units represent non-managerial employees in discussions
governed by National Labor Relations Board ("NLRB") policies. Id. § 1202.
In contrast, supervisory and managerial personnel are expressly excluded from collective
bargaining and NLRB policies. Id. § 1202(1). Instead, managerial and supervisory personnel are
represented by "recognized ·organizations" which are "entitled to participate· directly in the
planning and development of pay policies and schedules, fringe benefit programs, and other
programs relating to supervisory and other managerial employees." Id. § 1004(b). Recognized
organizations review USPS's compensation proposals and provide recommendations. Id.
§ 1004(d)(l)(B). USPS is not required to accept but only "give any recommendation from the
organization full and fair consideration." Id. § 1004(d)(l)(C).
If a recognized organization is dissatisfied with a USPS compensation decision, the
organization may request the creation of a fact-finding panel. Id. § 1004(f)( 1). USPS and the
recognized organization present their compensation proposals to a panel of three experts on
managerial compensation policies. Id. §§ 1004(£)(2)-(3). After reviewing both sides, the panel
issues its own recommendations to USPS. Id. § 1004(£)(4). Just as with the recognized
organization's recommendations, Congress only instructed USPS to "give full and fair
consideration to the panel's recommendation." Id. § 1004(£)(5).
2 Separately, a recognized organization may ask for a panel to review the "effectiveness" of
USPS employment policy procedures. Id. § 1004(g). Under this process, the panel provides
recommendations directly to Congress. Id.
B. Factual Background
This action involves proposed compensation policies for Executive and Administrative
Schedule ("EAS") employees, described as "the nearly 50,000 managers, supervisors, and other
middle-management employees who are not members of collective bargaining units." Compl. 1 1,
ECF No. 1. The Association, a recognized organization, claims to represent approximately 27,000
active and retired EAS employees, which include "active and retired USPS managers, supervisors,
postmasters, and other professionals." Id. at 12 (emphasis added).
USPS sent the Association a proposed EAS pay and benefits package for fiscal years 2016- , 19 that addressed areas such as "Pay for Performance, Salary Ranges, Health Benefits
Contribution, Promotional Pay Increase, Position Upgrade, and Work Groups." Id. at 1116-17.
For the next nine months, the Association provided recommendations to USPS regarding changes
to the pay package "via meetings, letters, and emails." Id. at 1 18.
USPS then issued its final proposed pay package. Id. at 1 19. Dissatisfied with USPS' s
decision, the Association requested a factfinding panel to review USPS' s proposal in accordance
with the dispute resolution mechanism provided by 39 U.S.C. § 1004(t). Id. at 120. Both USPS
and the Association presented exhibits and witnesses to the panel during a two-day hearing. Id. at
1 64. Afterwards, the panel issued a report incorporating several of the Association's
recommendations, including pay increases for certain Association-represented employees, a
revision of salary differentials between supervisors and their subordinates, and the establishment
of a working group to review future compensation policies. Id. at 1166-68. In response, USPS
3 issued a revised pay package agreeing to engage a working group but declining to implement pay
increases or adjust the differential. Id. at ,r,r 69-74.
The Association then instituted this action raising the following claims:
1) USPS violated 39 U.S.C. § 1003(a) and 39 U.S.C. § l0l(c) by failing to pay comparably to the private sector (see id. ,r,r 80-87);
2) USPS violated 39 U.S.C. § 1004(a) by failing to provide for an adequate supervisory differential adjustment (see id. at ,r,r 88-92);
3) USPS violated 39 U.S.C. § 1004(a) by failing to provide sufficient compensation to attract or retain qualified management personnel and failing to establish a compensation program adequate to maintain a well-motivated workforce (see id. at ,r,r 93-99);
4) USPS violated 39 U.S.C § 1004(b) by failing to consult the Association regarding compensation for different categories of employees (see id. at ,r,r 100-06); and
5) USPS violated 39 U.S.C. § 1004(b) by refusing to recognize the Association's authority to represent postinasters (see id. at ,r,r 107....'.15).
The complaint seeks a declaratory judgment, an injunction requiring USPS to adjust
future pay, and purported injunction requiring USPS to provide retroactive pay increases. See id.
at ,r 116. USPS moved to dismiss the complaint, arguing that the PRA provisions cited by the
Association do not provide a private cause of action. See USPS Mot. to Dismiss 6-9, ECF No.
11. USPS further argued that the Association did not have authority to represent certain groups,
including employees, managers, and postmasters. See id. at 15-20. Intervenor Postmasters
separately moved to dismiss Claim 5, arguing that Postmasters-not the Association-was the
recognized organization with the authority to represent postmasters. See Postmasters Mot. to
Dismiss, ECF No. 19.
II. LEGAL STANDARDS
Federal Rule of Civil Procedure 12(b)(6) requires courts to dismiss any case wherein the
plaintiff has failed to state a legal claim upon which relief can be granted. "To survive a motion
to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to
4 relief that is plausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 6_78 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When deciding a motion to dismiss under
Fed. R. Civ. P. 12(b)(6), courts must construe the pleadings broadly and assume that the facts are
as the plaintiff alleges; however, "[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. Additionally,
courts are not obligated to ''accept as true a legal conclusion couched as a factual allegation."
Papasan v. Allain, 4 78 U.S. 265, 286 (1986). Moreover, "a plaintiff who fails to show that the
law authorizes him to bring his lawsuit fails to state a claim upon which relief can be granted."
Eagle Tr. Fundv. US. Postal Serv., 365 F. Supp. 3d 57, 63 (D.D.C. 2019) (citing Sacks v. Reynolds
Sec., Inc., 593 F.2d 1234, 1239 (D.C. Cir. 1978)).
III. ANALYSIS
A. Private Cause of Action
It is well-settled that the "violation of a federal statute alone is inadequate to support a
private cause of action." Tax Analysts v. IRS, 214 F.3d 179, 185 (D.C. Cir. 2000). Instead, courts
must first look to the statute's text to determine if the statute provides an express cause of action.
See Johnson v. Interstate Mgmt. Co., LLC, 849 F.3d 1093, 1097 (D.C. Cir. 2017) ("[i]fthe text of
a statute does not provide a cause of action, there ordinarily is no cause of action.").
Implied causes of action are permitted "on rare occasions," but only if the court finds a
clear congressional intent "to create a 'private right' and a 'private remedy."' Id. (citing Alexander
v. Sandoval, 532 U.S. 275, 286 (2001)). "[T]hat is a high bar to clear" because "[the court] ha[s]
to conclude that Congress intended to provide a cause of action even though Congress did not
expressly say as much in the text of the statute." Id. at 1097-98 (emphasis in original).
If a statute does not provide an express or implied cause of action, a plaintiff suing a federal
agency in federal court may obtain a legal remedy through the Administrative Procedure Act 5 ("APA"). See 5 U.S.C. § 704 ("Agency action made reviewable by statute and final agency action
for which there is no other adequate remedy in a court are subject to judicial review.").
Non-statutory review is the final option for judicial review of administrative agency
activities. See Mittleman v. Postal Reg. Comm 'n, 757 F.3d 300, 307 (D.C. Cir. 2014). However,
non-statutory review is unavailable if the court finds either that (a) Congress intended to preclude
judicial review or (b) the issues involved are better left to agency discretion. Nat 'l Ass 'n ofPostal
Supervisors v. US. Postal Serv. ("NAPS''), 602 F.2d 420, 429-30 (D.C. Cir. 1979). When
conducting non-statutory review, a court's only role is "to determine whether the agency has acted
"'ultra vires'- that is, whether it has 'exceeded its statutory authority."' Mittleman, 757 F.3d at
307 (quoting Aid Ass 'nfor Lutherans v. US. Postal Serv., 321 F.3d 1166, 1173 (D.C. Cir. 2003)).
An agency acts ultra vires when it violates a "clear and mandatory" statutory provision. See Int 'l
Ass 'n of Machinists & Aero. Workers v. Griffin, 590 F. Supp. 2d 171, 176 (D.D.C. 2008) (citing
Nat 'l Air Traffic Controllers Ass 'n AFL-CIO v. Fed. Serv. Impasses Panel, 437 F.3d 1256, 1263
(D.C. Cir. 2006)). A statutory provision is "clear and mandatory" when it has only one
unambiguous interpretation. See Nat'! Air Traffic Controllers, 437 F.3d at 1264. 1
B. The Association Cannot Sue Under Any Statutory Cause of Action.
i. The cited PRA provisions neither provide an express cause of action nor are susceptible to APA review.
While the Circuit has not addressed the specific question of whether the PRA provides
private causes of action, this Court and other circuits consistently find that various provisions of
the PRA "do[] not indicate a Congressional intent to create a private remedy." Nat'! Postal Prof'!
Nurses v. US. Postal Serv., 461 F. Supp. 2d 24, 33 (D.D.C. 2006) (refusing to recognize a cause
1 The Association argues that an action is ultra vires when, in undertaking the action, the agency fails to engage in · reasoned decision making. See Association Opp'n 14-15, ECF No. 16. The Circuit's precedent favors "clear and mandatory" as the standard for non-statutory review. See Mittleman, 757 F.3d at 307.
6 of action under 39 U.S.C. § 1001); see generally Glenn v. US. Postal Serv., 939 F.2d 1516, 1520
(11th Cir. 1991) (refusing to recognize a cause of action under § 1006); Stupy v. US. Postal Serv.,
951 F.2d 1079, 1081-82 (9th Cir. 1991) (same); Kaiser v. US. Postal Serv., 908 F.2d 47, 50-52
(6th Cir. 1990)(same); Blaze v. Payne, 819 F.2d 128, 129-30 (5th Cir. 1987)(refusing to recognize
a cause of action under§ 1001); Gajv. US. Postal Serv., 800 F.2d 64, 68-69 (3d Cir. 1986) (same).
Because Congress enacted the PRA to increase operational efficiency, improve labor relations, and
establish "a new 'businesslike' agency," NAPS,' 602 F.2d at 430, the law does not leave room for
judicial interference in USPS compensation decisions, see id. at 431-32.
Additionally, the Circuit has already determined that "the Postal Service is exempt from
review under the Administrative Procedure Act." Mittleman, 757 F.3d at 305 (citing N Air Cargo
v. US. Postal Serv., 674 F.3d 852, 858 (D.C. Cir. 2012)). ·This position is rooted in'the plain text
of the PRA, which states that, absent specific exceptions not relevant here, "no Federal law dealing
with public or Federal contracts, property, works, officers, employees, budgets, or funds, including
the provisions of chapters 5 and 7 of title 5, shall apply to the exercise of the powers of the Postal
Service." 39 U.S.C. § 410(a).
ii. The cited PRA provisions neither provide an implied cause of action nor are susceptible to non-statutory review.
The PRA provisions cited by the Association-39 U.S.C. §§ 101, 1003, and 1004--do not
contain express private causes of action, nor are USPS actions subject to APA review. Therefore,
the only possible way for the Association to obtain the remedy it seeks is through either (1) an
implied private cause of action or (2) non-statutory review. Neither of these options are available.
Count 1 of the Association's complaint alleges that USPS's failure to maintain
compensation commensurate with the private sector violates 39 U.S.C. § l0l(c) and § 1003(a).
See Compl. ,r,r 80-87. These provisions read similarly, stating: "the Postal Service shall achieve
7 and maintain compensation for its officers and employees comparable to the rates and types of
compensation paid in the private sector of the economy of the United States," 39 U.S.C. § lOl(c),
and "[i]t shall be the policy of the Postal Service to maintain compensation and benefits for all
officers and employees on a standard of comparability to the compensation and benefits paid for
comparable levels of work in the private sector of the economy," id at§ 1003(a). USPS's failure
to conduct studies of comparable salaries in the private sector and failure to appropriately adjust
EAS employees' salaries allegedly violates these provisions. See Compl. ~~ 83-87.
Of the few courts to review cases brought under § 101 or § 1003, all determined that the
provisions do not provid~ private causes of action. See, e.g., Williams v. Brennan, No. CV 17-
1285 (TSC), 2017 U.S. Dist. LEXIS 114101, at *2 (D.D.C. Jul. 17, 2017); Reeder v. Frank, 813
F. Supp. 773, 778 (D. Utah 1992), aff'd,' 986 F.2d 1428 (10th Cir.'1993). These courts fourid that
Congress did not intend to imply a private cause of action or create judicially manageable standards
for review. This Court agrees.
Counts 2 and 3 involve§ 1004(a), which states:
It shall be the policy of the Postal Service to provide compensation, working conditions, and career opportunities that will assure the attraction and retention of qualified and capable supervisory and other managerial personnel; to provide adequate and reasonable differentials in rates of pay between employees in the clerk and carrier grades in the line work force and supervisory and other managerial personnel; to establish and maintain continuously a program for all such personnel that reflects the essential importance of a well-trained and well-motivated force to improve the effectiveness of postal operations; and to promote the leadership status of such personnel with respect to rank-and-file employees, recognizing that the role of such personnel in primary level management is particularly vital to the process of converting general postal policies into successful postal operations.
39 U.S.C. § 1004(a). The Association alleges that USPS's use of a different salary differential
adjustment and calculation method than the private sector, see Compl. ~~ 90-92, resulted in
"inadequate pay policies and schedules" and impeded the attraction and retention of qualified
management, thus violating§ 1004(a), see id. at~~ 96-99.
8 The Circuit previously ruled on the merits of a case involving the differential requirement
in § 1004(a) but declined to address the question of whether the Association had a private cause
of action. See NAPS, 602 F.2d at 429-32. The NAPS court found that it had jurisdiction to hear
the case under 28 U.S.C. § 1339,2 id. at 427, but also that Congress intended for courts to give
strong deference to USPS discretion, see id. at 441. In ruling on the merits, the Circuit stated that
"[ s]ection 1004(a) does not set a fixed differential" and that "Congress chose instead to leave the
precise differential to the discretion of the agency, mandating only that the differential at any given
time be 'adequate and reasonable."' Id. at 433. The Circuit determined it could not reverse
Congress's decision to give deference to USPS's determination of the differential; or in other
words, that the courts could not "through statutory construction create more precise standards and
rights than Congress elected to create." Id.
Regardless, following Sandoval, it is clear that neither the differential requirement nor the
mandate to develop a "well-trained and well-motivated force" in § 1004(a) generates an implied
private cause of action because the text does not display a congressional intent to create a "private
right" or a "private remedy." See Sandoval, 532 U.S. at 286.
Relatedly, even though NAPS referred to the case as a "nonstatutory review proceeding,"
NAPS, 602 F.2d at 432, the court determined that Congress did not intend for judicial review of
USPS action, making the case ineligible for non-statutory review under the modern "clear and
mandatory" standard. See id. at 431-32 ("Congress intended to vest the Postal Service with broad
discretion in setting compensation policies and to limit judicial oversight of the Postal Service's
exercise of that discretion.").
228 U.S.C § 1339 provides: "The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to the postal service."
9 Counts 4 and 5 allege violations of§ 1004(b) for failure to consult with and recognize the
Association's representation of certain "headquarters" and "area" employees as well as
postmasters. See Compl. ,i,i 100-15. Section 1004(b) states:
The Postal Service shall provide a program for consultation with recognized organizations of supervisory and other managerial personnel who are not subject to collective-bargaining agreements ... Upon presentation of evidence satisfactory to the Postal Service that a supervisory organization represents a majority of supervisors, that an organization (other than an organization representing supervisors) represents at least 20 percent of postmasters, or that a managerial organization (other than an organization representing supervisors or postmasters) represents a substantial percentage of managerial employees, such organization or organizations shall be entitled to participate directly in the planning and development of pay policies and schedules, fringe benefit programs, and other programs relating to supervisory and other managerial employees.
39 U.S.C. § 1004(b).
While the Circuit has not addressed § 1004(b ), this Court underscored the provision's
discretionary nature by reading it to require that USPS "'discuss its proposed ... policies with the
[Association] ... in a meaningful, good faith manner"' but further noted that '" [u]nder no
circumstances, however, does that mean that the Postal Service can be forced to accept [the
Association's] proposals ... on policies or even be compelled to negotiate those policies with [the
Association]."' Nat'! Ass'n of Postmasters v. Runyon, 821 F. Supp. 775, 778 (D.D.C. 1993)
(quoting NAPS, 602 F.2d at 436).
The Association claims that USP S's previous denial of its request to represent postmasters
was incorrect. See Compl. i)l 14. USPS and intervenor Postmasters maintain that the Association
does not have the legal authority to represent postmasters. USPS Mot. to Dismiss 15-19; see also
Postmasters Mot. to Dismiss.
Overall, there are two fundamental reasons why 39 U.S.C. §§ lOl(c), 1003(a), and
1004(a)-(b) are not subject to judicial review. First, when a statute is "phrased as a directive to
federal agencies engaged in the distribution of public funds ... there is far less reason to infer a
10 private remedy." Sandoval, 532 U.S. at 289 (internal quotations and alterations omi~ed). Because
the cited PRA provisions contain the type of directive language referenced by the Supreme Court
as antithetical to implied private causes of action, it seems clear that Congress did not intend for
these provisions to create such remedies. Moreover, the Circuit previously concluded that
appealing to Congress-rather than the courts-is the proper recourse to resolve compensation-
related disputes. See NAPS, 602 F.2d at 435 ("[i]f the Associations are dissatisfied and seek
additional guarantees, they must carry their plea to the legislature.")
Second, § 1004 provides for remedies other than judicial review which the Association
failed to exhaust. '" [N]o one is entitled to judicial relief for a supposed or threatened injury until
the prescribed administrative remedy has been exhausted."' Ass 'n of Flight Attendants-CWA v.
Chao, 493 F.3d 155, 158 (D.C. Cir. 2007) (quoting Myers v. Bethlehem Shipbuilding Corp., 303
U.S. 41, 50-51 (1938)). If the Association is dissatisfied with USPS policies enacted pursuant to
§ 1003 or § 1004, the Association may request the creation of a fact-finding panel to provide
recommendations that USPS must consider. 39 U.S.C. § I 004(f). Separately, the Association may
request the creation of a panel to review the effectiveness of the procedures and provisions of
§§ 1003 and 1004 and make recommendations to Congress for changes. Id. § 1004(g).
After nine months of negotiating the details of the proposed FY 2016-19 pay package with
USPS, "via meetings, letters, and emails," the Association requested a factfinding panel to review
the compensation proposal in accordance with § 1004(f). Compl. ,r,r 18, 20. The panel delivered
its report, id. at ,r 66, and USPS issued a revised pay package which the Association felt did not adequately incorporate the panel's recommendations. Association Opp'n 7. Then, the Association
instituted the present action instead of requesting another panel pursuant to § 1004(g), as USPS
argues was required. USPS Mot. to Dismiss 3. The Association contends that § 1004(g) is not
11 mandatory because "it is a process that can be invoked at any time-without connection to a
dispute." Association Opp'n 7 n.3.
The Association had a statutory remedy-§ 1004(g)-which it chose not to pursue. While
failure to exhaust an optional remedy is not an independent ground to dismiss an action, the
Association's choice not to exercise an available option is further evidence of non-reviewability.
Congress's explicit addition of an alternate dispute resolution mechanism in the PRA indicates
that Congress did not intend for implied judicial review. Additionally, though the Association is
frustrated that USPS did not accept the panel's recommendations, the Association has not
sufficiently pleaded that USPS failed to consider its recommendations, which is all USPS is
required to do by statute. See 39 U.S.C. § 1004(£)(5).
The PRA leaves significant room for agency discretion and provides specific procedures
other than judicial review to challenge agency action. At this stage, only Congress can provide
the remedy the Association seeks.
C. Even if the Cited PRA Provisions Were Subject to Non-Statutory Review, the Association Has Not Sufficiently Pleaded that USPS Acted Ultra Vires.
Since ( 1) ultra vires activity requires the violation of a clear and mandatory directive with
only a single interpretation and (2) the Association has not shown that USPS's conduct violated a
such a directive, the Association has not sufficiently pleaded that USPS acted ultra vires.
As stated above, 39 U.S.C. § 101 and§ 1003 provide a broad directive to USPS to establish
a policy for providing compensation commensurate with the private sector. Congress did not
dictate how USPS should create such a policy or what metrics to use. Other than offering anecdotal
evidence about how USPS' s compensation differs from the private sector, see Compl. ,r,r 21-22, 24-27, 30-31, 34, and providing general suggestions for how USPS could improve its
12 compensation policy, see id. at 1123-24, the Association has not established how USPS violated
a clear and mandatory directive in either § 101 or § 1003.
Additionally, the Circuit already determined that § 1004(a) affords USPS significant
discretion in setting a salary differential. See NAPS, 602 F.2d at 433. The Association claims that
the current differential is too low. See Compl. 1138-41. The differential, when combined with
accelerated overtime rates for certain non-managerial employees, can result in occasional
discrepancies where supervisors are paid less than their subordinates. See id. However,§ 1004(a)
only requires that the differential determination be "adequate and reasonable" as determined by
USPS; a court "cannot substitute its own judgment of what is adequate and reasonable for that of
the Postal Service." NAPS, 602 F.2d at 435. Though the Association may disagree with USPS's
differential determination, it cannot demonstrate that § 1004(a) provides a clear· and mandatory
directive n'o r that the directive was expressly violated.
The same logic follows for the provisions of§ 1004(b), which are similarly left to USPS's
discretion. See Runyon, 821 F. Supp. at 777. The Association cites USPS-commissioned surveys
that demonstrate "abysmal employee engagement" as evidence that the Association's constituents
have low morale due to USPS's "inadequate pay policies and schedules." See Compl. 198.
Though the Association implicitly suggests that increasing pay would increase employee morale,
the Association does not demonstrate (a) that the reason for low morale is employee pay or (b) that
USPS has violated a clear and mandatory directive regarding compensation.
Finally, the Association has multiple claims stemming from USPS's alleged failure to
recognize the Association's authority to represent certain groups. Compl. 11107-15. However,
these claims necessarily fail based on the "clear and mandatory" ultra vires review standard. The
Association, USPS, and intervenor Postmasters all provided their own reasonable interpretations
13 of whether the Association can represent postmasters and certain other types of employees. See
USPS Mot. to Dismiss 15-20; Association Opp'n 19-24; Postmasters Mot. to Dismiss; USPS
Reply 13-16. Based on these submissions, § 1004(b) does not establish a single, unambiguous
interpretation, meaning -that the Association has not met its burden to plead that USPS's action
was ultra vires.
IV. CONCLUSION
Based on the foregoing, the Court will GRANT USPS's and Postmasters' motions to
dismiss by separate order.
IT IS SO ORDERED.
· SIGNED this / ff;yof July 2020.
Royce C. Lamberth United States District Judge