Notice & Comment

D.C. Circuit Review – Reviewed: Postage Stamps

I learned something new this week: you can order custom postage stamps with an image of your own choosing.* I also learned something else: the Postal Service restricts what types of images you can use. Another thing: no politics are allowed. And one more: this make-your-own-postage program is going to end in a few days.

I learned all of this from Zukerman v. United States Postal Service. Here is a quick recap. In 2015, Zukerman sued the Postal Service on the ground that its “custom postage program violated the prohibition against viewpoint discrimination under the First Amendment.” The Postal Service used a vendor, Zazzle, which “rejected his custom postage design because it was incompatible with the program’s ban on ‘political’ designs.” According to Zukerman, however, other political stamps were allowed. At this point, if you’re like me, you want to see the stamps. Well, here you go; the opinion includes them. Here is the stamp Zukerman wanted to use but couldn’t:

And here are other stamps that were allowed:

The short version of the Court’s decision — per Judge Edwards (joined by Judges Griffith and Rao) — is that the Postal Service’s content rules are not sufficiently objective and workable. The longer version involves potential mootness. The Postal Service changed its rules for the program in 2018 and “[o]n May 4, 2020, the Postal Service filed a second letter stating that ‘the Postal Service has determined that the Customized Postage program should be terminated and has taken steps to effectuate that decision.’ This letter indicates that ‘the Postal Service has terminated the authorization of the last remaining vendor participating in the program (i.e.,, effective June 16, 2020.’” The Court concluded that the Postal Service’s “voluntary cessation of disputed conduct” did not moot the dispute. (I suspect that going forward, this case will be cited most often for its discussion of mootness.)

Because the notion of custom stamps intrigues me, this week’s post will create a custom stamp for each case.

Let’s start with American Federation of Government Employees v. FLRA. The union filed a grievance against the U.S. Customs and Border Protection claiming it should have negotiated about a new memo for vehicle inspections at the U.S./Mexico border. The FLRA concluded the memo was not subject to bargaining because it affected only “working conditions” and not “conditions of employment.” Judge Henderson — joined by Chief Judge Srinivasan and Judge Randolph — held the FLRA acted arbitrarily and capriciously for two reasons: (1) it failed to appropriately explain why it departed from an earlier policy that “working conditions” and “conditions of employment” are effectively synonymous, and (2), at any rate, it also failed to explain why its new view precluded bargaining. Here are some stamps:

In Independent Union of Pension v. FLRA, Judge Rogers (joined by Judges Tatel and Ginsburg) also addressed the FLRA. A union became the exclusive representative of a group of employees after winning an election over the group’s prior union. The prior union had negotiated a collective bargaining agreement and executed a Memorandum of Agreement naming specific arbitrators to resolve disputes. After taking over, the new Union asked the arbitrators to step down. The FLRA found that these demands constituted unfair labor practices and the Court upheld that determination.  First, the FLRA was not arbitrary and capricious in finding that the Union committed unfair labor practices. A CBA “negotiated by a predecessor union remains effective until a new one is implemented.”  Second, the FLRA “did not act contrary to law” in determining that the Union’s demands to the arbitrators were coercive.  Third, the Union’s First Amendment rights were not violated because it cited no public concern implicated by its speech.  Fourth, the FLRA’s remedy did not exceed its statutory authority.  Finally, the Court denied the Union’s application for leave to add new evidence.  Here’s the stamp:

Next, consider Circus Circus Casinos, Inc. v. NLRB.  Here’s the basic story.  Michael Schramm was a Circus Circuit employee who, at a staff meeting, raised concerns about working conditions. According to some witnesses, his supervisor said, “[M]aybe we just won’t need you anymore.“ Later, Schramm was allegedly uncooperative at a work-sponsored event. In a resulting disciplinary investigation, he said, “I called the Union three times [and] nobody showed up, I’m here without representation.” He was fired, and the NLRB found that Circuit Circus violated the NLRA by ignoring a request for union representation, wrongfully terminating Schramm, and threatening him for his complaint.  Judge Rao (joined by Judge Randolph) vacated the NLRB’s order because precedent “requires an employee to affirmatively request union representation in a manner reasonably calculated to put the employer on notice” but Schramm hadn’t done that.  (Chief Judge Srinivasan disagreed, reasoning that Schramm’s statement “convey[ed] a continuing interest in . . . representation.”)  Rao also concluded that the company had grounds to fire Schramm and that the NLRB “entirely fail[ed]” to address relevant evidence.  Finally, and noteworthy, Rao found that the NRLB’s factual determinations were “patently insupportable” regarding the alleged threat.   According to the Court, the NLRB credited witnesses favoring Schramm while discrediting witnesses who met the same criteria but favored Circus Circus. In his dissent, Srinivasan concluded that these credibility determinations were not “hopelessly incredible.” So what’s the stamp here?

In Level the Playing Field v. FEC, Judge Randolph (joined by Judges Pillard and Katsas) confronted FEC regulations concerning presidential debates. A non-profit corporation promoting independent candidates claimed that the Commission on Presidential Debates violated FEC rules requiring political neutrality of debate sponsors. The petitioner criticized the partisan history of the Commission on Presidential Debates and its requirement that candidates meet a 15% polling threshold. The FEC rejected both arguments and declined to revise its regulations.  The Court deferred to that conclusion.  Regarding the argument that the CPD is an “overtly partisan” organization, the FEC “thoughtfully evaluated the record” and “offered detailed explanations” finding a lack of impermissible bias. No evidence shows that its decisionmaking “was arbitrary or unreasonable.”  The FEC likewise gave “reasonable and well-supported” responses to expert reports claiming that the 15% threshold was unattainable for third-party candidates. Furthermore, “a threshold does not become ‘subjective’ merely because it is difficult to reach.”  Here’s a stamp:

Judge Griffith (joined by Chief Judge Srinivasan and Judge Millett) authored the opinion in Frank v. Autovest, LLC. There, a plaintiff sued a debt collector for violating the Fair Debt Collection Practices Act. The Court, however, found that she lacked standing because she did not suffer a concrete injury traceable to the alleged violations.  “In fact, Frank testified unequivocally that she neither took nor failed to take any action because of these statements.” If you understand this stamp, you’ll want to read this opinion:

Finally, in Seed Company Limited v. Westerman, Hattori, Daniels, & Adrian, LLP, Judge Henderson (joined by Judges Rogers and Garland) analyzed malpractice in a patent case.  Wait. If I wanted to read about patent cases, I’d write Federal Circuit Review — Reviewed. Easy stamp:

Enjoy the weekend — and, I suppose, your postage.

* According to the Court, everyone already knew this: “The basic idea of custom postage is simple and (by now) familiar: You can navigate to a website of an authorized third-party vendor, upload a custom design including text or images, pay a fee, print your custom stamps — which are, strictly speaking, customized evidence of prepayment, not stamps — and use them to send first class mail and other USPS products.” I confess it was not familiar to me! I need to mail more letters.

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