I.          THE DISTRICT COURT ERRED BY APPLYING 39 U.S.C. 3662 TO DEPRIVE THE KLEIN APPELLANTS OF MEANINGFUL FEDERAL COURT JUDICIAL REVIEW OF THEIR CLAIM FOR INJUNCTIVE RELIEF FROM APPELLEES’ ONGOING UNCONSTITUTIONALCONDUCT.................................................................................................... 1

B.       SUPREMECOURTPRECEDENTDIRECTSTHECONCLUSION THATCONGRESSHASNOTIMPLIEDLYPREEMPTEDFEDERAL DISTRICT COURT SUBJECT MATTER JURISDICTION OVER CONSTITUTIONALCLAIMSFORINJUNCTIVERELIEFAGAINST USPS............................................................................................................ 4

II.       THE DISTRICT COURT ERRED BY ADDRESSING THE MERITS OF THE KLEIN APPELLANTS’ EQUAL PROTECTION CLAIM AFTER THE DISTRICT COURT HAD ALREADY DISCLAIMED SUBJECTMATTERJURISDICTION......................................................................... 12

No.21-1422,2022U.S.App.LEXIS2824(6^thCir.,Jan.31,2022)..... 8,14

146S.Ct.736(2026).................................................................................... 11

 

 

 

 

The parties agree that the issue before this Court is whether Congresshas, with 39 U.S.C. 3662, impliedly preempted the federal judiciary from having subject matter jurisdiction over claims the United States Parcel Service (“USPS”) is depriving customers of a constitutional right (Brief of Appellees, p. 12: “the [Supreme Court] Thunder Basin framework . . . remains the controlling test for implied preemption of district court jurisdiction;” and p. 24: “The Supreme Court nevertheless held that the constitutional claims in Elgin were impliedly preempted under Thunder Basin.”). USPS claims that the Klein Appellants “err in applying that [Thunder Basin] framework” (id., p. 12) and claims there is “no serious doubt that plaintiffs may obtain ‘meaningful judicial review’ of their equal protection claim in the scheme that Congress prescribed” (id., p. 16). In fact, however,USPSerrsinapplyingtheSupremeCourt’s ThunderBasinfactors. Congress has not impliedly preempted federal court subject matter

Accepting the USPS argument means that a Trump-protesting Muslim-American woman in Alaska USPS intentionally limits mail service to because of her religion and/or the content of her message and/or her sex, has to bring her constitutional claims in a very distant executive agency in Washington, D.C., under the limited guidance provided by Congress for vague statutory claims, and at her own expense without any opportunity for recovery of attorney fees and costs.

Congress has not explicitly legislated that outcome.Hence, the parties each invoke what is available from the Supreme Court about Congressional implied preemption of federal court jurisdiction over an individual’s constitutional claim seeking injunctive relief for ongoing unconstitutional deprivations of protected individual rights by the federal government. Congress has not deprived the Muslim-American woman in Alaska of her access to her local federal court.Congress has not deprived the Klein Appellants (“Klein”) in the case at bar of their access to their local federal courts seeking to enjoin USPS’s unconstitutional conduct.

USPSover-imputesandover-generalizeslegislativepurposetoCongress. A claim of constitutional deprivation is not the “commonplace service complaint” USPS repeatedly attributes to it.Repeatedly characterizing the statutes under review here as “comprehensive” and “exclusive” do not make thestatutescomprehensiveandexclusive.Theyareneither.Theprobabilistic chance that somehow, some day, the D.C. Circuit Court of Appeals may possibly begin to address, without a record, and after the Postal Regulatory Commission (“PRC”) declined to address it, the constitutional claim Klein filed in the Amended Complaint in federal district court is not “meaningful” within the context of the Supreme Court implied preemption factors.

At least some Justices on the United Supreme Court believe the law of implied preemption of federal court subject matter jurisdiction is sorely in need of upgrading.In any event, even the existing Supreme Court decisions on the matter of implied preemption of federal court subject matter jurisdiction do not support the district court’s conclusion that 39 U.S.C.3662 impliedly preempts federal court subject matter jurisdiction over the Appellants’ claim for injunctive relief that USPS is depriving them of their constitutional right to equal protection under the law. Congress cannot so facilely foreclose either the Muslim-American woman in Alaska, nor Klein here, from immediate and direct access to their local federal judiciary.

 

USPS’s argument creates a false equivalence between a constitutional deprivationandastatutoryclaim.USPScollapsestwoseparatelegal categoriesintoone.Thisisnotamatterofmeresemantics.USPSwantsa statutoryclaimtodisplaceaconstitutionalclaim,asamatteroflaw. CongressdidnotexpresslyeventrytopreventtheMuslim-Americanwoman inAlaskafromprotectingherconstitutionalrightsinlocalfederalcourt based on religion, speech, or sex. Nor did Congressimpliedly preemptherright to access her local federal court to vindicate her constitutional rights.ThefactthatKlein’sclaimsareVillageofWillowbrookv.Olechequalprotection   constitutional    claims,    and    not    religion,   speech,   or    sex constitutional equal protection and other constitutional claims, is immaterial. USPScannotneutralizethemeaningofThunderBasinandElginas applied by   the   Supreme   Court   in   very   different   statutory   and   fact circumstances compared to the case at bar.Thunder Basin and Elgin werecomprehensive   and   mandatory   statutory   schemes   evidencing   a   clear Congressionalintenttochannelclaimstoacarefullydefinedadministrative

tribunal with guaranteed judicial review.By contrast, 39 U.S.C. 3662 and 3663 aresuperficial,cryptic,anddiscretionary.They arenotcomprehensive, not mandatory, and do not guarantee judicial review of an actual administrative ruling on Klein’s constitutional claim. The PRC is not even required to rule on a statutory claim had Klein sought review of a statutory claim.A statutory “discrimination” claim is itself vague and does not direct a claimant to a regulatory source of “discrimination.” Whatever Congress meant by “discrimination,” USPS admits the statute does not include an Olech constitutional equal protection claim.

In Thunder Basin and Elgin, the agency had to hear and substantively decide the complaint. Respectively, the Federal Mine Safety and Health Review Commission, and the Merit Systems Protection Board, and the comprehensive regulatory schemes addressing the claims in each of those cases. Not so with the PRC and Klein where the agency has discretion to declineadecision,thestatutoryclaimis amorphous,and the PRC may never create an evidentiary record for review. The statutory schemes in Thunder Basin and Elgin were comprehensive remedial schemes. The PRC does not even have to adjudicate Klein’s statutory rights and admits it cannot adjudicate Klein’s constitutional rights. And, it bears repetition and emphasis,PRCcannotadjudicatethereligion,speech,andsexconstitutional

claims of the metaphorical Alaskan Muslim-American Trump-protesting woman deprived by USPS for reasons of religion, speech, and/or sex.

39 U.S.C. 3662 and 3663 limit appellate review by the D.C. Circuit to final PRC orders.But, there may be no final substantive PRC order, evenfor a statutory claim and there will be no final substantive PRC order for a constitutional claim.39 U.S.C. 3662 providesanoptional proceduralchoice for Klein, a mechanism to go to Washington, D.C., to a “complex” (Brief of Appellees, p. 26) executive level agency to seek relief for a vaguely defined “discrimination” statutory claim. However, Klein chose otherwise as an American citizen seeking to use the power and rights constitutionally conferred on American citizens, and also by 28 U.S.C. 1331, to directly accessthefederaljudiciarytoenjoinongoingunconstitutional deprivationof equal protection conduct by the federal government.

39 U.S.C. 3662 and 3663 have no exclusive review language, no comprehensive enforcement scheme, and no mandatory adjudication structure. The case at bar materially and dispositively varies from the Supreme Court’s Thunder Basin and Elgin implied preemption cases USPS invokes to defend the district court’s dismissal for lack of subject matter jurisdiction. Moreover, the PRC has no expertise whatsoever to hear and decideclaimsofanyunconstitutionaldeprivation,noauthoritytoissuea

judicial injunction, no authority to award recovery of attorney fees and costs to a prevailing complainant USPS has deprived of constitutional rights.

USPS’s argument effectively extinguishes the constitutional claims of the Alaskan Muslim-American woman and effectively extinguishes the constitutional claims of Klein.

In order to deflect the Court’s attention from the substance of Klein’s constitutional equal protection claim, USPS accuses Klein of “artful pleading.” Brief of Appellees, p. 1.Yet, USPS also admits “the Postal Regulatory Commission may lack jurisdiction to declare discrimination in mail services unconstitutional . . . .” Id., p. 17.That admission is not surprising because USPS also admits that USPS “acts as a Government-ownedcorporation.” Id.,p. 3. Asif thefederal statutes under reviewhere are not distinguishable enough, on their face, from the comprehensive statutory schemes in Thunder Basin and Elgin, USPS cites a series of discretionary regulatory procedural elements wherein the PRC “may” do this and “may” do that.Id., pp. 4-5.We know that the PRC “must dismiss the complaint” when it lacks jurisdiction and USPS admits the PRC lacks jurisdiction over Klein’s constitutional claim that USPS is depriving Klein of the constitutional right to equal protection under the law.

Like the district court, USPS mischaracterizes Klein’s constitutional claim as a “commonplace service complaint.” Id., p. 9.We should all hope that deprivations of equal protection of the law are not “commonplace” within USPS.

Citing the case at least eight times, USPS repeatedly relies upon this Court’s unpublished ruling in Torp v. United States, No. 21-1422, 2022 U.S. App. LEXIS 2824 (6^th Cir., Jan. 31, 2022).Torp is inapposite.¹Torp raiseda dispute with the USPS Domestic Mail Manual and the Manual’s general delivery requirements as construed by USPS. Presenting the converse of the case at bar (where the Klein Appellants seek delivery of mail to their properties and USPS refuses to do so), in Torp USPS applied its Domestic Mail Manual and insisted upon delivering mail to Torp’s residence.

Torp did not allege a justiciable and cognizable constitutional claim that USPS had deprived him of an individually protected constitutional freedom. Torp’scomplaintallegedanon-justiciableandnon-cognizable

¹USPS also string cites a number of other inapposite unpublished decisions that are monetary damages claims, class actions, statutory claims, and/or otherwise materially distinguishable from the case at bar.Furthermore, in any event, the listed cases do not identify and apply the Thunder Basin factors and asclarifiedin subsequent Supreme Court decisions.The implied preemption issue before this Court presents the meaning and application of 39U.S.C.3662,andrequires precisescrutiny, inthecontextof thehistoryof our Constitution ensuring meaningful and timely access to the federal judiciary by an individual the federal government is depriving of a constitutional equal protection right.

violation of “the constitutional provision empowering Congress ‘[t]o establish Post Offices and post Roads.’”Klein, by contrast, has alleged the same justiciable and cognizable equal protection claim the Supreme Court affirmed in Village of Willowbrook v. Olech.Klein’s complaint is about the federal government’s ongoing unconstitutional conduct. The suggestion that the USPS conduct may also violate its own regulations is not a bar to the inherent access an individual has to federal court seeking to enjoin ongoing unconstitutional conduct by the federal government.Congress did not expressly preempt federal court jurisdiction over Klein’s constitutional claim.Congress did not impliedly preempt federal court jurisdiction over Klein’s constitutional claim.Regulatory compliance and “constitutional torts” are not equivalent.Torp is not even unpublished dicta.

The Thunder Basin factors each tilts in favor of Klein. There is no meaningful judicial review of Klein’s constitutional equal protection claim. The constitutional equal protection deprivation is collateral to the nature and scope of how Congress established the PRC.By definition, the executive agency PRC does not have expertise to hear and adjudicate claims thatUSPS has deprived individuals of constitutional rights. The PRC does not have jurisdiction over Klein’s constitutional equal protection claim. PRC jurisdiction,inanyevent,isdiscretionaryevenoverstatutoryclaims.USPS

admits the PRC will not hear and decide Klein’s constitutional equal protection claim and USPS even informed the district court that USPS reserves the right to challenge PRC jurisdiction were Klein to file at the PRC.

USPS asks this Court to conclude that 39 U.S.C. 403 stands in the shoes of a Village of Willowbrook v. Olech equal protection claim.USPS seeks to have 39 U.S.C. 403 subsume individual constitutional equal protection claims but, as a matter of simple statutory construction plain meaning, Section 403 on its face discusses systemic and programmatic elements of USPS operations.Section 403 does not create even an administrative cause of action for individualized, irrational USPS conduct.

Section403definesUSPS’sresponsibilities:

 

 

USPS cites a monetary damages case against USPS and the explicit Congressional grant of immunity to USPS for certain monetary damages claims under the Federal Tort Claims Act.U.S. Postal Serv. v. Konan, 146 S.Ct. 736 (2026).The Supreme Court affirmed the immunity from suit soughtbyUSPSformonetarydamagesclaimsagainstUSPSunderthe

FTCA.Here, USPS also seeks to impliedly immunize itself from federal court claims USPS has deprived customers of constitutional rights even when the customers only seek injunctive relief.USPS both moved to dismiss Klein’s district court amended complaint for lack of subject matter jurisdiction while at the same time informing the district court the agency reservedtherighttochallengePRCjurisdictionwereKleintofileastatutory claim with the PRC.

As apparent from the district court’s ruling, the district court substantively transformed Klein’s constitutional equal protection claim intoa statutory claim while simultaneously disclaiming jurisdiction over Klein’s amended complaint.If USPS and the district court wanted to address the justiciability and cognizability of Klein’s constitutional equal protection claim they should have done that by means of a Rule 12(b)(6) motion to dismiss, not a Rule 12(b)(1) motion to dismiss for alleged lack of subject matter jurisdiction.

Accurately applied, the Supreme Court’s Thunder Basin implied preemption factors for federal court subject matter jurisdiction lean in favor of the Klein Appellants.There is no meaningful judicial review.The Olech constitutional equal protection claim is wholly collateral to the statutory matters 39 U.S.C. 3662 confers on the PRC.The PRC (a “complex” executive agency) has no expertise hearing and deciding claims that USPS has deprived individuals of constitutionally protected rights.Not the constitutional rights of the Klein Appellants.Not the constitutional rights of the Alaskan Muslim-American Trump-protesting woman.

USPS and the district court significantly discount the importance to Klein’s life of mail delivery to the properties.Both the indignity suffered of intentional irrational targeted treatment by the government and the real practical adversity to everyday life.Appellant Charles H. Klein, Jr., is 84-years old.

The logic and spirit of Marbury v. Madison and the 1871 UnitedStates v. Klein case support meaningful, not illusory, access to federal court whenthefederalgovernmentdeprivesindividualsofprotectedconstitutional rights.That is the constitutional structure of the United States:rule of law, supremacyoftheConstitution,necessityforjudicialremedies. The

contingent, indirect, and delayed review proposed by USPS is not meaningful.Instead, USPS and the district court nullify the constitutional right possessed by Klein.

The Supreme Court has acknowledged that certain claims remain within federal court subject matter jurisdiction even when the federal government argues otherwise.Axon Enter., Inc. v. Federal Trade Comm’n, 598 U.S. 175 (2023); Free Enter. Fund v. Public Co. Acct. Oversight Bd., 561 U.S. 477 (2010).The nature of Klein’s equal protection claim is not the same as the Axon and Free Enterprise claims, but nor is the Klein claim a matter of interpreting a USPS manual as in Torp.The Klein claim is not “commonplace.”Klein has alleged targeted irrational unconstitutional conduct by the federal government Appellees and, for that, and given our constitutional structure, the 39 U.S.C. 3662 and 3663 statutory framework is no implied bar to federal court subject matter jurisdiction.The Supreme Courthasneverappliedthismatrixofconsiderationstooverridemeaningful, timely, and competent review of ongoing federal government constitutional deprivations.

Klein requests that this Court of Appeals reverse the district court and restore federal court subject matter jurisdiction over Klein’s constitutional equal protection claim for injunctive relief against USPS.

Respectfullysubmitted,

 

RichardGanulin,Esq.(0025642) Attorney at Law

3662KendallAvenue

Cincinnati,Ohio45208

(513)405-6696