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Initiative and Referendum Institute v. United States Postal Service

September 8, 2010

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



The opinion of the court was delivered by: Richard W. Roberts United States District Judge

MEMORANDUM OPINION

Plaintiffs challenge the constitutionality of an amended United States Postal Service ("USPS") regulation that prohibits collecting signatures for petitions, polls or surveys on certain USPS sidewalks, arguing that the restriction is overbroad because the regulation applies to a substantial number of postal sidewalks that are public forums. The parties conducted a survey of postal facilities in an attempt to quantify the extent of expressive activity on USPS sidewalks and have filed renewed cross-motions for summary judgment. Because material facts are not in dispute, the regulation no longer applies to exterior USPS sidewalks that are indistinguishable from public sidewalks, and the plaintiffs have not shown that the interior sidewalks to which the regulation still applies are public forums or that the regulation is unreasonable or void for vagueness, the defendant's motion will be granted and the plaintiffs' motion will be denied.

BACKGROUND

The background of this case is set out in Initiative & Referendum Inst. v. U.S. Postal Serv., 116 F. Supp. 2d 65 (D.D.C. 2000) ("IRI I"), Initiative & Referendum Inst. v. U.S. Postal Serv., 297 F. Supp. 2d 143 (D.D.C. 2003) ("IRI II"), and Initiative & Referendum Inst. v. U.S. Postal Serv., 417 F.3d 1299 (D.C. Cir. 2005) ("IRI III"). Briefly, USPS regulations restrict certain conduct on postal property. The relevant regulation had stated at the time this action was brought:

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) (2002) (emphasis added). The underlined language, added in 1998, gave rise to this suit in which the plaintiffs challenge the regulation's application to exterior postal property. See IRI I, 116 F. Supp. 2d at 67-68. After summary judgment was granted in favor of USPS on the grounds that the regulation was content neutral, promoted a significant governmental interest, and left open ample alternative channels of communication, IRI II, 297 F. Supp. 2d at 147, the plaintiffs appealed. On appeal, the D.C. Circuit concluded that USPS' ban on soliciting signatures could not be upheld as a time, place, or manner restriction if applied to a public forum. IRI III, 417 F.3d at 1312. The court of appeals further concluded that a facial challenge did not require proof that all exterior postal properties constitute public forums. Rather, the regulation would be overbroad "if a substantial number of external postal properties constitute public forums." Id. at 1313. The court of appeals opined that it "seem[ed] likely that many urban post offices do [have Grace*fn1 sidewalks], and that the regulation's restraint on protected speech is thus substantial[.]" Id. at 1314. The court of appeals remanded the case for a determination of "whether the Postal Service's regulation 'abridges protected speech . . . in a good number of cases.'" Id. (alteration in original) (quoting Ruggiero v. FCC, 317 F.3d 239, 248 (D.C. Cir. 2003) (Randolph, J., concurring)).

Following the court of appeals' decision, USPS amended § 232.1(h)(1) and it now states:

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, collecting signatures on petitions, polls, or surveys (except as otherwise authorized by Postal Service regulations), are prohibited.

39 C.F.R. § 232.1(h)(1) (2010) (emphasis added). USPS also modified § 232.1 such that it no longer applies to "sidewalks along the street frontage of postal property falling within the property lines of the Postal Service that are not physically distinguishable from adjacent municipal or other public sidewalks, and any paved areas adjacent to such sidewalks that are not physically distinguishable from such sidewalks." 39 C.F.R. § 232.1(a)(ii) (2010).

Also after the remand, the parties conducted a survey of selected postal properties to determine the type and extent of expressive activity that takes place on various postal sidewalks. They sent questionnaires to the facility manager at each retail post office in twelve postal Districts,*fn2 constituting 4,513 of the 32,621 retail postal facilities nationwide that existed at the time of the survey. (Def.'s Stmt. ¶¶ 22-23.) Seventy-nine percent of these surveyed postal facilities responded, yielding 3,566 completed questionnaires. (Def.'s Mem. of P. & A. in Supp. of Def.'s Renewed Mot. for Summ. J. ("Def.'s Mem."), Decl. of Gregory M. Whiteman ¶ 12.) Although the "Districts selected are representative of postal Districts nationwide[,]" they "were not chosen on a statistical basis and therefore the survey was not designed to be a valid statistical representation of postal Districts nationwide." (Def.'s Stmt. ¶ 23.) The survey divided postal sidewalks into four categories:

A. Sidewalks at the border of the postal property that are continuations of and/or indistinguishable from adjacent municipal or public sidewalks. . . .

B. Sidewalks within, but not at the border of, postal property that run along any side of the post office building. . . .

C. Sidewalks that provide ingress/egress to the post office, i.e. pathways from the street or parking ...


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