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Initiative and Referendum Institute v. United States Postal Service

July 17, 2001

INITIATIVE AND REFERENDUM INSTITUTE, ET AL., PLAINTIFFS,
v.
UNITED STATES POSTAL SERVICE, DEFENDANT.



MEMORANDUM OPINION AND ORDER

Plaintiffs, individuals and associations gathering signatures to place initiatives on state ballots in upcoming elections, allege that a United States Postal Service ("USPS") regulation that prevents people from soliciting signatures for petitions on USPS property is unconstitutional as applied to twelve distinct post office properties. Defendant has moved to sever the eleven claims related to properties not within this Court's jurisdiction, and to transfer these claims to the nine different jurisdictions where the respective post offices are located. *fn1 Because the interests of justice weigh against the severance and transfer defendant seeks, defendant's motion will be denied.

BACKGROUND

On June 28, 1998, USPS amended its regulation regarding the kinds of activities that were prohibited on postal property to read as follows:

Soliciting alms and contributions, campaigning for election to any public office, collecting private debts, soliciting and vending for commercial purposes (including, but not limited to, the vending of newspapers and other publications), displaying or distributing commercial advertising, soliciting signatures on petitions, polls, or surveys (except as otherwise authorized by Postal Service regulations), and impeding ingress to or egress from post offices are prohibited. 39 C.F.R. § 232.1(h)(1) (2000) ("§ 232.1(h)(1)") (emphasis added).

Specifically, the new regulation added language prohibiting solicitation of signatures. The Initiative and Referendum Institute, a national nonprofit organization dedicated to assisting citizens' government participation through initiatives and referenda, together with other organizations and individuals, brought this suit challenging the amendment as applied to all post offices. *fn2

Eight individual plaintiffs state in affidavits that after the amended § 232.1(h)(1) took effect, each was asked by a USPS employee to stop gathering petition signatures on postal property. (Pls.' Mot. Summ. J. Exs. 13, 15-21.) Plaintiffs moved for summary judgment, arguing that § 232.1(h)(1) is unconstitutional on its face and as applied to them because it is a content-based restriction on speech in a public forum and, therefore, the regulation is not narrowly tailored to serve a compelling state interest. Defendant also moved for summary judgment, arguing that exterior USPS property is a nonpublic forum and therefore § 232.1(h)(1) is valid because it is viewpoint-neutral and reasonable, and that even if the property at issue was a public forum, § 232.1(h)(1) is a valid time, place and manner regulation.

Neither party, however, provided adequate information about the exact configuration of those locations or the actual physical attributes or historical use of any specific post office. Accordingly, this Court denied the parties' cross-motions for summary judgment for failing to show that there were no genuine issues of material fact. Plaintiffs filed an amended complaint, challenging the regulation as applied to twelve distinct post office properties. USPS has now moved to sever pursuant to Federal Rule of Civil Procedure 21 and to transfer pursuant 28 U.S.C. § 1404(a) all claims in the amended complaint regarding post offices located outside of this Court's jurisdiction.

DISCUSSION

I. Severance

The parties do not dispute that each claim regarding a post office outside of the District of Columbia must be severed from the instant litigation before it can be transferred to the jurisdiction in which the post office property at issue is located. (Def.'s Mem. Supp. Mot. to Sever Claims and to Transfer ("Def.'s Mem.") at 6; Pls.' Mem. Opp'n to Def.'s Mot. ("Pls.' Opp'n") at 3.) USPS has moved to sever each such claim pursuant to Federal Rule of Civil Procedure 21. *fn3 "Claims against different parties can be severed for trial or other proceedings, under [Rule 21], if the Court determines in its discretion that the interests of justice would be served by doing so." In re Vitamins Antitrust Litig., No. MISC 99-197, 2000 WL 1475705, at *17 (D.D.C. May 9, 2000). In this case, defendant has not shown that any of the claims at issue were misjoined or involve different parties. Instead, defendant seems to be arguing that the Court should sever all claims relating to post offices outside the District of Columbia to serve the interests of justice.

Joinder rules are interpreted to encourage "the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged." United Mine Workers v. Gibbs, 383 U.S. 715 (1966) (denying severance where "plaintiffs' allegations allege a common series of transactions and occurrences and raise common questions of law and fact applicable to all defendants"). Here, plaintiffs' allegations raise common questions of constitutional law applicable to USPS and its regulation, § 232.1(h)(1). The same regulation will be applied to the facts regarding each claim.

All of plaintiffs' claims will require common factual inquiries into the public forum status of each of the postal properties. In addition, severing the case into ten separate actions would result in duplicative litigation, particularly when coupled with the transfers defendant seeks, and would waste vast amounts of judicial and litigant resources. Despite the number of post office properties involved, it is in the interests of justice to keep as many of plaintiffs' claims together in one case as would be fair to the parties. Accordingly, defendant's motion to sever all claims relating to post offices outside the District of Columbia will be denied.

II. Transfer

As the parties have stated, defendant must succeed on its motion to sever before the Court can entertain its motion to transfer under 28 U.S.C. ยง 1404(a). Since I have denied defendant's motion to ...


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