USPS Motion To Dismiss and Reply in Support of Motion to Dismiss

USPS Motion to Dismiss and Reply in Support of Motion to Dismiss

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

CHARLES H. KLEIN, JR.,
: ANNETTE KLEIN,
ERIC HAVENS,
: and
: SHANDRA HAVENS,

: PLAINTIFFS, : CASE NO. 1:24-cv-00672

vs. : JUDGE JEFFERY P. HOPKINS

UNITED STATES POSTAL SERVICE,
: MARY MITCHELL, POSTMASTER
: GEORGETOWN POST OFFICE,
in her official capacity,
: and
: TERRENCE MANEY, POST OFFICE
: OPERATIONS MANAGER,
in his official capacity,

: DEFENDANTS.

: MOTION TO DISMISS
Pursuant to Federal Rule of Civil Procedure 12(b)(1), Defendants move to dismiss Plaintiffs’ Amended Complaint for lack of subject matter jurisdiction. This Motion is supported by the attached Memorandum in Support.
[signature block on following page]
1 Case: 1:24-cv-00672-JPH Doc #: 16 Filed: 04/03/25 Page: 2 of 10 PAGEID #: 60
Respectfully submitted,
KELLY A. NORRIS
Acting United States Attorney
s/Margaret A. Castro
MARGARET A. CASTRO (0078968)
Assistant United States Attorney
Attorney for Defendants 221 East Fourth Street, Suite 400
Cincinnati, Ohio 45202
Office: (513) 684-3711
E-mail: Margaret.Castro@usdoj.gov

2 Case: 1:24-cv-00672-JPH Doc #: 16 Filed: 04/03/25 Page: 3 of 10 PAGEID #: 61

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
FOR LACK OF SUBJECT MATTER JURISDICTION
Plaintiffs’ Amended Complaint alleges that the United States Postal Service (the “Postal Service” or “USPS”) arbitrarily and capriciously refused delivery of mail to Plaintiffs’ homes in Brown County, Ohio. This Court lacks jurisdiction over the Amended Complaint because jurisdiction over service-related discrimination claims against the Postal Service like those of Plaintiffs resides exclusively with the Postal Regulatory Commission. Furthermore, Plaintiffs cite no waiver of sovereign immunity that confers upon this Court subject matter jurisdiction over their claims. As a result, this Court should deny Plaintiffs’ request for injunctive relief and dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(b)(1).

I. PLAINTIFFS’ ALLEGATIONS AND CLAIMS
On March 9, 2025, Plaintiffs filed an Amended Complaint against the Postal Service and two of its employees in their official capacities. (ECF No. 3, Amend. Compl., PageID 46.) The Amended Complaint alleges that the Postal Service “refuse[s] to deliver mail to the Plaintiffs’ properties in Brown County, Ohio, . . .” and requires Plaintiffs to use a mailbox “one-quarter mile from their properties.” (Id., PageID 47.) Plaintiffs contend that the Postal Service “deliver[s] mail to the properties of similarly situated individuals in Brown County, Ohio,” (Id., PageID 48), asserting claims of deprivation of Plaintiffs’ right to “class of one” equal protection under the Fourteenth Amendment and 28 U.S.C. 1343. (Id., PageID 53.)
Plaintiffs seek injunctive relief enjoining the Postal Service from “violating Plaintiffs’ constitutional rights to receive USPS mail delivery at their properties” and declaratory relief establishing their “right under law to receive USPS mail delivery at their properties.” (Id.)

3 Case: 1:24-cv-00672-JPH Doc #: 16 Filed: 04/03/25 Page: 4 of 10 PAGEID #: 62

II. THIS COURT SHOULD DISMISS PLAINTIFFS’ CLAIMS FOR LACK OF SUBJECT-MATTER JURISDICTION
The Amended Complaint is subject to dismissal for lack of subject matter jurisdiction over Plaintiffs’ claims on two grounds. First, Plaintiffs have not exhausted their remedies under the Postal Accountability and Enforcement Act of 2006, in which Congress authorized the Postal Regulatory Commission (“PRC”) to hear complaints regarding postal services, with appeal rights to the United States Court of Appeals for the District of Columbia, and with district courts only having jurisdiction to enforce, and to enjoin and restrain the Postal Service from violating any order issued by the PRC.
Second, Plaintiffs fail to identify a private cause of action that waives the Postal Service’s sovereign immunity.

A. Standard of Review
A party may move to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction when a court lacks the statutory or constitutional power to adjudicate the case. “When a defendant attacks subject matter jurisdiction under Rule 12(b)(1), the plaintiff must meet the burden of proving jurisdiction.” Cline v. United States, 13 F. Supp. 3d 868, 870 (M.D. Tenn. 2014) (citing Golden v. Gorno Bros., Inc., 410 F.3d 879, 881 (6th Cir. 2005)).

B. Exclusive Jurisdiction Over Plaintiffs’ Claims Rests with The Postal Regulatory Commission
Plaintiffs allege discrimination in mail service in this case. While the Amended Complaint frames the fact allegations summarized above “as arbitrary and capricious” (Id., PageID 46) and as a denial of equal protection under the Fourteenth Amendment (Id., PageID 53), allegations of discrimination regarding mail service squarely fall into 39 U.SC. § 403(a). LeMay v. U.S. Postal Service, 450 F.3d 797, 801 (8th Cir. 2006) (“The words echo contract, but the issues are classic

4 Case: 1:24-cv-00672-JPH Doc #: 16 Filed: 04/03/25 Page: 5 of 10 PAGEID #: 63
questions of postal rates and services . . . [Plaintiff] cannot avoid the PRC’s exclusive jurisdiction . . . through artful pleading.”); Rapid Enters., LLC v. U.S. Postal Serv., No. 2:22-cv-00627, 2023 WL 5979999, at 5 (D. Utah Sept. 14, 2023) (“[T]he court lacks subject-matter jurisdiction over [Plaintiffs’] § 404a claims, despite Plaintiff’s attempt to artfully plead such claims as arising in contract.”); Powell v. U.S. Postal Serv., No. 15-12913-FDS, 2016 WL 409672, at 2 (D. Mass. Feb. 2, 2016) (a claim arising from the Postal Service’s refusal to deliver mail through its General Delivery service is a service-related claim).
The Postal Regulatory Commission (the “PRC” or the “Commission”) has exclusive jurisdiction over service-related complaints like discrimination. 39 U.S.C. § 3662. See also id. at 799 (“ . . . Congress removed the district courts’ jurisdiction over claims regarding postal rates and services . . . by enacting 39 U.S.C. § 3662[.]”); Erickson v. U.S. Post Office, 250 F. App’x 757, 758 (8th Cir. 2007) (“the Postal Regulatory Commission has exclusive jurisdiction over [] claims regarding postal rates and services.”); Price v. U.S. Postal Serv., No. 1:13cv1194, 2014 WL 3704286, at 2 (W.D. Mich. July 24, 2014) (“To the extent that plaintiff’s claim could be construed as a service complaint against the United States Postal Service, the Postal [Regulatory] Commission (the Commission) has exclusive jurisdiction over it.”) (quoting Naskar v. United States, 82 Fed. Cl. 319, 322 n.1 (2008)).
Section 3662 provides that a person may file a complaint with the Commission if they believe that “the Postal Service is not operating in conformance with the requirements of the provisions of [the Postal Reorganization Act].” 39 U.S.C. § 3662. And pursuant to Section 3663, a person may appeal any adverse decision of the Commission to the U.S. Court of Appeals for the District of Columbia. 39 U.S.C. § 3663. A hearing by the Commission is the sole remedy for a postal service customer with a service-related complaint. See Bovard v. U.S. Post Office, No. 94- 6360, 1995 WL
5 Case: 1:24-cv-00672-JPH Doc #: 16 Filed: 04/03/25 Page: 6 of 10 PAGEID #: 64 74678, at 1 (10th Cir. Feb. 24, 1995) (“The language of section 3662 makes clear that a postal customer’s remedy for unsatisfactory service lies with the Postal [Regulatory] Commission, and that Congress did not intend to create a private right of action for service complaints.”); Glennborough Homeowners Ass’n v. United States Postal Serv., No. 20-12526, 2021 WL 858730, at 6 (E.D. Mich. Mar. 8, 2021), aff’d, 21 F.4th 410 (6th Cir. 2021); Pep-Wku, LLC v. U.S. Postal Serv., No. 1:20-cv-00009, 2020 WL 2090514, at 2 (W.D. Ky. Apr. 30, 2020) (“the exclusive remedy for an individual or entity complaining about the USPS’s mail delivery service lies in 39 U.S.C. §§ 3662 and 3663.”); A African-American U.S. Citizen v. Tennessee, No. 3:08-cv-196, 2009 WL 676619, at 1 (E.D. Tenn. Mar. 11, 2009) (“. . . there is not a private right of action against the U.S. Postal Service for an alleged failure to provide mail service.”).
Because Plaintiffs assert discrimination claims against the Postal Service stemming from their dissatisfaction with postal services falling under §3662(a), those claims must be raised to the PRC under its exclusive jurisdiction.1 This Court lacks subject matter jurisdiction over those claims.

C. There Has Been No Waiver of the Postal Service’s Sovereign Immunity
Even if the Court were to improperly construe Plaintiffs’ claims as outside the exclusive jurisdiction of the PRC, Plaintiffs have failed to establish a waiver of sovereign immunity. “It is axiomatic that the United States may not be sued without its consent and the existence of that consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983). Indeed, “[j]urisdiction over any suit against the [United States] requires a clear statement from the
1 The Postal Service is not representing that Plaintiffs in fact do have claims cognizable before the PRC; it denies there has been any discrimination in service as Plaintiffs continue to receive curbside delivery and simply are unhappy with the location of their mailboxes. Additionally, the Postal Service expressly reserves the right to argue to the PRC that it lacks jurisdiction to hear any complaint Plaintiffs may file there regarding their factual allegations.
6 Case: 1:24-cv-00672-JPH Doc #: 16 Filed: 04/03/25 Page: 7 of 10 PAGEID #: 65
United States waiving sovereign immunity…together with a claim falling within the terms of the waiver . . . .” United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003). In U.S. Postal Serv. v. Flamingo Indus. (USA) Ltd., 540 U.S. 736, 744 (2004), the Supreme Court noted that the Postal Service “is part of the Government and that status indicates immunity unless there is a waiver.”
“The source of plaintiffs’ rights must be found, if at all, in the substantive provisions of the [statute] which they seek to enforce, not in the jurisdictional provision.” Touche Ross & Co. v. Redington, 442 U.S. 560, 577 (1979). “[P]rivate rights of action … must be created by Congress.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001). “The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy.” Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 290 (2002).
The Sixth Circuit explains that “‘[a] private right of action is the right of an individual to bring suit to remedy or prevent an injury that results from another party’s actual or threatened violation of a legal requirement.’” Mik v. Fed. Home Loan Mortg. Corp., 743 F.3d 149, 158 (6th Cir. 2014) (quoting Wisniewski v. Rodale, Inc., 510 F.3d 294, 296 (3d Cir.2007)). “‘[T]he fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person.’” Id. (quoting Cannon v. Univ. of Chicago, 441 U.S. 677, 688 (1979)).
None of the three statutes Plaintiffs reference in the Amended Complaint—28 U.S.C. § 1331, 28 U.S.C § 1343, and 28 U.S.C. § 2201 (ECF No. 13, PageID 49) —create a private right of action against the Postal Service.
7 Case: 1:24-cv-00672-JPH Doc #: 16 Filed: 04/03/25 Page: 8 of 10 PAGEID #: 66
1. 28 U.S.C. § 1331 Does Not Create a Private Right of Action.
28 U.S.C. § 1331 provides that “district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” There must be a recognized action over which a court can exercise jurisdiction pursuant to § 1331. The Supreme Court has explained that jurisdiction under 28 U.S.C. § 1331 will not be found when the federal statute invoked by a plaintiff does not create a private right of action. Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 814 (1986) (holding that “the congressional determination that there should be no federal remedy for the violation of [a] federal statute is tantamount to a congressional conclusion that the presence of a claimed violation of the statute as an element of a state cause of action is insufficiently ‘substantial’ to confer federal-question jurisdiction.”)
2. 28 U.S.C. § 1343 Does Not Apply to Actions of the Federal Government.
28 U.S.C. § 1343 provides federal jurisdiction for actions taken only “under color of any State law” and does not apply to cases such as this, where the plaintiffs allege a violation by the employees of a federal agency subject to federal law. 28 U.S.C. § 1343(a)(3) (providing original federal jurisdiction of “any civil action authorized by law to be commenced by any person . . . to redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights or of all persons within the jurisdiction of the United States.”). See, e.g., Ajamu v. U.S. Postal Service, No. 6:13–cv–450–ORL–28KRS, 2014 WL 169830, at 9 (M.D.F.L. Jan. 10, 2014) (“The 14th Amendment applies to state actors, not the federal government, and 28 U.S.C. § 1343 is a jurisdictional statute, not a cause of action, let alone a waiver of the USPS’s sovereign immunity.”); Gadsden v. United States Postal Service, No. 95 8 Case: 1:24-cv-00672-JPH Doc #: 16 Filed: 04/03/25 Page: 9 of 10 PAGEID #: 67 Civ. 0734 (MBM), 1995 WL 758775, at *5 (S.D.N.Y. Dec. 26, 1995) (§ 1343(a)(3) is applicable only where an alleged violation was “committed by an agency or officer of one of the 50 states”).
Even if this Court were to convert Plaintiffs’ purported Fourteenth Amendment equal protection claims under § 1343(a)(3) to Fifth Amendment equal protection claims (which Plaintiffs did not plead and therefore would fail under Federal Rule of Civil Procedure 12(b)(6)), the discrimination piece again is exclusive to the PRC: 39 USC § 3662 applying Section 403(c) which prohibits the Postal Service, except as specifically authorized under Title 39, from making any undue or unreasonable discrimination among mail users when providing services and establishing classifications, rates, and fees under Title 39, as well as granting any undue or unreasonable preferences to any mail use.
3. 28 U.S.C. § 2201(a) Does Not Create a Private Right of Action.
28 U.S.C. § 2201(a) is the Declaratory Judgment Act and provides for declaratory judgments in a case of actual controversy. Normally, “[s]uits for declaratory judgment are a statutory creation enacted by Congress in the Declaratory Judgment Act.” Mut. of N.Y. v. Shaya, 970 F. Supp. 1226, 1227 (E.D. Mich. 1997) (quoting Gulf Life Ins. Co. v. Arnold, 809 F.2d 1520 (11th Cir. 1987)). However, the Sixth Circuit has held that the Declaratory Judgment Act “does not create an independent cause of action.” Davis v. United States, 499 F.3d 590, 594 (6th Cir. 2007) (citing Skelly Oil Co. v Phillips Petrol. Co., 339 U.S. 667, 671 (1950)).
As the three statutes cited in the Amended Complaint do not provide a single private cause of action against the federal government (the Postal Service) and do not apply to federal actors, Plaintiffs again have failed to allege or establish that this Court has subject matter jurisdiction over their claims.
9 Case: 1:24-cv-00672-JPH Doc #: 16 Filed: 04/03/25 Page: 10 of 10 PAGEID #: 68
III. CONCLUSION
For these reasons, this Court should dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1).
Respectfully submitted,
KELLY A. NORRIS
Acting United States Attorney
s/Margaret A. Castro
MARGARET A. CASTRO (0078968)
Assistant United States Attorney Attorney for Defendants
221 East Fourth Street, Suite 400
Cincinnati, Ohio 45202
Office: (513) 684-3711
E-mail: Margaret.Castro@usdoj.gov

***************************

REPLY IN SUPPORT OF MOTION TO DISMISS

CHARLES H. KLEIN, JR., ANNETTE KLEIN, ERIC HAVENS, and SHANDRA HAVENS,

PLAINTIFFS,

vs.

UNITED STATES POSTAL SERVICE, MARY MITCHELL, POSTMASTER GEORGETOWN POST OFFICE, in her official capacity, and TERRENCE MANEY, POST OFFICE OPERATIONS MANAGER, in his official capacity,

DEFENDANTS

CASE NO. 1:24-cv-00672 JUDGE JEFFERY P. HOPKINS Filed: 05/08/25

In their Memorandum in Opposition to Defendants’ Motion to Dismiss, Plaintiffs attempt to mold their run-of-the mill service-related claim against the Postal Service into constitutional claims of deprivation of equal protection. (ECF No. 17, PageId 70.) Yet a plain review of the allegations in the Amended Complaint leaves no doubt that Plaintiffs are persons who believe the United States Postal Service is not operating in conformance with the requirements of the Postal Reorganization Act of 1970, 39 U.S.C. § 101, et seq. They do not, and cannot, state broad constitutional claims related to the deprivation of their “constitutional right[s] to equal protection of the laws.” Id. (Emphasis in original.)

Plaintiffs’ Opposition at Section II reiterates the following allegations set forth in the Amended Complaint: including that USPS previously provided mail delivery service to Klein at his property; USPS apologized to Klein for prior “inconvenience” when refusing to provide service; USPS instructed Klein he will not “be required to create a turnaround for the mail carrier.” It was only after USPS had a confrontation with a former neighbor that USPS terminated Klein’s service for pretextual reasons, of which Klein has evidence of the pretext. USPS has not determined that the road segment in issue has hazardous conditions. Since the time of termination the road has been improved over its condition at the time USPS had been providing mail delivery service and there are no reported accidents on the road segment. In 2024 the temporary Postmaster informed Klein that he could restore mail delivery service to Klein’s property and that the road was not unsafe. USPS has never provided a traffic engineering report justifying its arbitrary refusal to serve Klein although other similarly situated residents in the same county receive USPS mail service at their properties and even on roads in lesser condition than Klein’s road. The road segment now has two professionally excavated and maintained pullovers and also a designated turn-around and all other vendors and services deliver to Plaintiffs’ properties. Merely repeating these allegations in an attempt to dissuade the Court from finding them to be service-related is like hammering a square peg into a round hole—no matter how long and hard you hammer, the peg just isn’t going to fit. The allegations themselves alone demonstrate that Plaintiffs’ claim raises only “classic questions of postal rates and services.” Lemay v. United States Postal Serv., 450 F.3d 797, 801 (8th Cir. 2006).

The Sixth Circuit recently addressed what constitutes a question of postal rates and services. In Torp v. United States, 2022 U.S. App. LEXIS 2824 (6th Cir. Jan. 31, 2022), a pro se plaintiff sought judicial review of a district court’s dismissal of his constitutional claims regarding the Postal Service’s decision to discontinue general delivery service of his mail because the volume of mail could not be reasonably accommodated through general delivery alone. The district court remarked that plaintiff’s complaint alleged “‘[a]t heart, . . . that he is entitled to general delivery of mail,’ which ‘is a service-related claim’.” Id., at 3 (citing district court decision). Elaborating, the Court found that Plaintiff “wants his mail delivered one way and the Defendants have refused to do so. This lawsuit is fundamentally a service-related complaint.” Id., at 6. The Sixth Circuit agreed with the district court’s ruling that general delivery related questions are “service-related complaints,” not constitutional claims. Id. It also ruled that such claims must be pursued before the Postal Regulatory Commission (“PRC”), and upheld the district court’s grant of a motion to dismiss for lack of subject matter jurisdiction because the PRC has “exclusive jurisdiction over service-related complaints under 39 U.S.C. § 3662.” Id.

There is an abundance of case law from other jurisdictions in which district courts find similar types of allegations raise PRC questions of postal rates and services, not federal constitutional claims. These include allegations that the Postal Service engaged in anticompetitive behavior by ending its reseller program, Rapid Enters., LLC v. U.S. Postal Serv., 2023 WL 597999 (D. Utah Sept. 14, 2023); allegations of improper rate and service determinations, Advantage Mailing, Inc. v. U.S. Postal Serv., 2021 WL 6427928 (C.D. Cal. Dec. 29, 2021); allegations of improper placement of a “dog hold” on home mail delivery service and a temporary suspension of home delivery service, Ehrlich v. United States, 2018 U.S. Dist. LEXIS 125376 (W.D. Wash. July 28, 2018); allegations of poor quality of general Postal delivery service, Powell v. United States Postal Serv., 2016 U.S. Dist. LEXIS 12175 (D. Mass. Feb. 2, 2016); allegations that mail delivery was not being received and thus not “accountable,” Nolen v. United States Postal Serv., 2013 U.S. Dist. LEXIS 24261 (D. Vt. Feb. 22, 2013); and allegations of discontent with a local post office’s decision to change the location of residential mail delivery (by delivering to a curbside mailbox rather than an individual’s front door), Hollander v. United States Postal Service, 1988 U.S. Dist. LEXIS 14370, (D. Mass. Dec. 20, 1988).

Like these grievances, Plaintiffs’ allegations too relate to postal rates and services.1 And as Plaintiffs acknowledge, “Congress has created a statutory scheme and a process for considering matters covered by the statutory scheme.” (ECF No. 17, PageId 74.) That consideration does not lie with this Court; instead, it lies with the PRC. And because jurisdiction over service-related discrimination claims against the Postal Service resides exclusively with the PRC, this Court lacks subject matter jurisdiction over Plaintiffs’ claims. Therefore, the Court should deny Plaintiffs’ request for injunctive relief and dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(b)(1).

1 To the extent Plaintiffs contend that the Postal Service is engaging in unreasonable discrimination among users of the mail in violation of 39 U.S.C. § 403(c), the exclusive remedy for such a scenario also would be to “lodge a complaint with the Postal Regulatory Commission.” 39 U.S.C. § 3662(a); Snyder v. Kendall, 2018 U.S. Dist. LEXIS 2976, *4-5 (D. Ariz. Jan. 5, 2018).

Also, Plaintiff’s allegations are plainly insufficient to state an independent, viable claim for an equal protection violation under the Fifth Amendment pursuant to Federal Rule of Civil Procedure 12(b)(6). First, “[t]here is no right to receive mail at the most convenient location . . . .” Currier v. Henderson, 190 F. Supp. 2d 1221, 1230 (W.D. Wash. 2002). See also Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir. 1985) (“It would always be more convenient to receive one’s mail as immediately as possible; however, convenience is not a right of constitutional magnitude.”) And Plaintiffs’ attempt to argue a class of one is factually inconsistent, as their Amended Complaint names four separate Plaintiffs at two separate addresses, and does not identify how the Postal Service intentionally treated those four plaintiffs differently from other similarly situated customers without a rational basis. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).

Respectfully submitted,

KELLY A. NORRIS Acting United States Attorney
s/Margaret A. Castro