This is the text of the USPS’s response to Judge Alsup’s March 26th request in the matter of City of Berkeley v USPS, having to do with USPS’ Motion to Dismiss.
This Court requested that, [w]ithin one week defendant shall advise the Court if it rescinds the final determination regarding relocation of retail services in Berkeley, CA. ECF No. 53.
The answer is yes. The 2013 Final Determination was superseded – now having no further force an effect – by the September 2014 decision to maintain services in the Berkeley Main Post Office. Should the Postal Service at some future time decide again that it would be in the best interest of its operations to relocate retail services, the Postal Service will re-initiate the process pursuant to 39 C.F.R. 241.4.
The 2013 Final Determination Regarding Relocation, issued pursuant to 39 C.F.R. 241.4,provides that the Postal Service may relocate retail services. ECF No. 24-1. Under the Postal Service’s regulations, there is no formal procedure for withdrawal of these types of determinations, as any further action following the determination would require additional regulatory and internal approvals. Although the Postal Service does not have a formal procedure for withdrawal of the 2013 Final Determination, the Postal Service retains the discretion not to proceed with such a decision. The Postal Service has exercised this discretion as set forth in our briefs that are currently before the Court. See ECF No. 47 at
2-3, 14; ECF No. 51 at 4; see also Alvarado Decl. 24, 7; Lowe Decl. ECF No. 25, 3.
The Postal Service has indicated on a number of occasions that it would explore potential sales transactions that would include a lease-back provision, thereby allowing the Postal Service to lease a portion of the Berkeley Main Post Office for continued retail services. See ECF No. 24-1 at 2. The Postal Service clarified in two declarations, dated November 24, 2014, that the Postal Service had finalized a plan in September of 2014 in which the Postal Service would maintain retail operations at the Berkeley Post Office. See Alvarado Decl., ECF No. 24, 7; Lowe Decl., ECF No. 25, 3. The Postal Service therefore considers the Final Determination Regarding Relocation to have been rendered obsolete as of September 2014.
Should the re-initiated process culminate in a closure or consolidation of retail postal services from the Berkeley Post Office, Plaintiffs can seek to challenge that decision in the venue that has exclusive jurisdiction over such a claim: the Postal Regulatory Commission. In 39 U.S.C. 404(d)(5), Congress provided that the Postal Regulatory Commission was the exclusive avenue for the limited review of closure and consolidation of post offices. Mittleman v. Postal Regulatory Commn, 757 F.3d 300, 302, (D.C. Cir. 2014) (emphasis added). When review under 404(d) is triggered, the Commission may set aside the Postal Service’s determination and remand it for further consideration if the Commission finds the determination to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; (B) without observance of procedure required by law; or (C) unsupported by substantial evidence on the record.