United States District Court, District of Columbia
CHRISTOPHER R. COOPER, UNITED STATES DISTRICT JUDGE
United States Postal Service (“USPS”) allows
customers to design and print customized postage stamps.
We've all seen them: personalized postage for a wedding
invitation featuring a photograph of the happy couple, a
birth announcement featuring an image of the newborn, or an
upcoming sale featuring the company's logo. Artist Anatol
Zukerman wanted to create his own personalized postage to
promote an upcoming gallery exhibition and submitted a
proposed design to a third-party vendor that printed
customized postage on USPS's behalf. The vendor rejected
Zukerman's design as too “partisan or
political” under USPS's then-extant guidelines:
aimed at critiquing the Supreme Court's Citizens
United decision, the design cautioned that
“Democracy is not for sale” and featured the
image of a snake-marked with the words “Citizens
United” and shaped like a dollar sign-strangling Uncle
Sam. Zukerman and the gallery sued, alleging that USPS,
through the vendor, had violated the First Amendment. The
Court denied a previous motion to dismiss the suit for lack
of jurisdiction, and the parties proceeded to discovery. In
the meantime, though, USPS promulgated new regulations to
govern the customized postage program, redefining and
narrowing somewhat the type of content that is permitted.
Again, Zukerman submitted proposed designs to a vendor;
again, those designs- substantially similar to the previous
one-were rejected; and again, Zukerman and the gallery sued,
supplementing their original claims with a facial First
Amendment challenge to the new regulations.
has moved to dismiss Plaintiffs' suit. It says that
Plaintiffs' original claims are moot because they are
based on guidelines that have been superseded by the
operative regulations. And it contends that Plaintiffs'
supplemental claims challenging those regulations fail to
state a claim because the customized postage program is a
nonpublic forum and its governing regulations need only be
reasonable and viewpoint neutral, which they are. For the
reasons that follow, the Court concludes that Plaintiffs'
original claims are moot and must be dismissed under Federal
Rule of Civil Procedure 12(b)(1). The Court further concludes
that Plaintiffs' supplemental claims fail to state a
claim and must be dismissed under Rule 12(b)(6).
The Customized Postage Program
launched its customized postage program in 2004 to allow
customers to print at home “evidence of prepayment of
postage” using their own images. 39 C.F.R. §
501.1(a). These products are distinct from U.S. postal
stamps, which are produced and controlled by USPS.
See 18 U.S.C. § 8. Consumers may only use
authorized third-party vendors to create customized postage.
Since the program's inception, it has been “the
Postal Service's declared intent not to allow its
Customized Postage program to become a public forum for
dissemination, debate, or discussion of public issues.”
Customized Postage, 71 Fed. Reg. 12, 718-01, 12, 719 (Mar.
13, 2006). Rather, the program is designed to promote
USPS's commercial objectives as set forth in 39 U.S.C.
§ 3622(b)(5), which directs the Postal Regulatory
Commission “[t]o assure adequate revenues, including
retained earnings, [and] to maintain financial
stability.” See Request of the U.S. Postal
Service to Add Postal Products to the Mail Classification
Schedule, Attachment D (Statement of Supporting Justification
for Customized Postage) at 1, Modification of Mail
Classification Schedule Product Lists in Response to Order
No. 154, No. MC2009-19 (Postal Regulatory Comm'n
Mar. 10, 2009) (hereinafter “USPS Statement of Support,
most of the program's history, USPS restricted the
permissible content of customized postage by requiring
authorized vendors to abide by Standardized Image Guidelines
incorporated in the vendors' authorization agreements.
See Proposed Rule, Revisions to the Requirements for
Customized Postage Products, 82 Fed. Reg. 1, 294-01, 1, 294
(Jan. 5, 2017). The Guidelines attached to the 2009 agreement
of one such vendor, Zazzle, Inc., directed the vendor not to
accept, among other categories, “[c]ontent or images
actively advocating or disparaging the religious, political,
or legal agenda of any person or entity, including but not
limited to content or images designed to influence a specific
piece of legislation” or “[p]artisan or political
content or images, including but not limited to content or
images supporting or opposing election of any candidate(s) to
any federal/state/local governmental office or supporting or
opposing any referendum conducted by federal/state/local
government.” Standardized Image Guidelines, Exhibit A
to Customized Postage Amended and Restated Authorization
between USPS and Zazzle, Inc. (May 7, 2009), ECF No. 43-7, at
9 (Filed Under Seal). In interpreting and applying these
Guidelines, Zazzle imposed additional restrictions, which
prohibited “the printing of any postage with content
that is primarily partisan or political in nature” or
that “[a]dvocate[s] or protest[s] any social,
political, legal, moral or religious agenda in a way that may
appear controversial to others.” Am. Compl.
(“FAC”), ECF No. 17-2, ¶¶ 15, 23.
January 2017, USPS noticed in the Federal Register a proposed
rule that would give “regulatory form” to these
content restrictions and remedy any “inconsistency of
publicly available provider content guidelines” that
“caused confusion over Customized Postage
products.” 82 Fed. Reg. at 1, 294. USPS finalized the
rule in December 2017. Final Rule, Revisions to the
Requirements for Customized Postage Products, 82 Fed. Reg.
60, 117-01, 60, 117-18 (Dec. 19, 2017). The final rule
emphasized that although customized postage is a specialized
form of evidence of prepayment of postage, there is a
possibility that consumers will believe that the images
originated with the Postal Service. Accordingly, USPS
concluded that it “must limit eligible private content
to protect its own business and brand interests against
dilution, false attribution, appearances of endorsement, and
other potential impacts.” Id. at 60, 117. The
new Regulations thus limit the type of content allowed on
customized postage to just two categories:
“commercial” and “social” content. 39
C.F.R. § 501.21(b)(1). They also require that images be
suitable for all ages. Id. § 501.21(b)(2).
Finally, the Regulations “exclud[e] entire categories
of content, ” 82 Fed. Reg. at 60, 118, including all
“political, religious, violent or sexual
content”; “[a]ny depiction of controlled
substances”; and “[a]ny non-incidental depiction
of alcohol, tobacco, gambling, or firearms, ” 39 C.F.R.
§ 501.21(b)(2). Thus, under the Regulations, which went
into effect in May 2018, the “default
presumption” is that images are ineligible for
printing. 82 Fed. Reg. at 60, 118.
Factual and procedural background
2013, an art gallery owned by Charles Krause Reporting, LLC,
displayed a drawing by Mr. Zukerman depicting Uncle Sam being
strangled by a snake marked “Citizens United.”
FAC ¶ 17. To promote an exhibition titled “Truth
to Power: Anatol Zukerman's ‘Responsible' Art,
” planned for February 2016, the gallery suggested that
Zukerman create a custom postage design using the drawing.
Id. ¶¶ 18-19. In early 2015, Zukerman
submitted a proposed design to Zazzle, Inc., an authorized
vendor under the customized postage program. Id.
¶¶ 13, 20. Zazzle rejected the design, saying that
applicable content guidelines prohibited “printing 
any postage with content that is primarily partisan or
political in nature.” Id. ¶ 23 (quoting
Apr. 27, 2015 Email from Zazzle Support to A. Zukerman,
Exhibit M to FAC at 91).
and the gallery sued. Their First Amended Complaint alleges
that USPS, through Zazzle, engaged in content and viewpoint
discrimination in violation of the First Amendment because
Zazzle printed postage promoting the campaigns of several
2016 presidential candidates while declining to produce
Zukerman's proposed Citizens United design.
Id. ¶¶ 24, 33, 44. Zazzle's decision
to print postage depicting specific candidates appears to
violate both the Standardized Image Guidelines, which barred
“[p]artisan or political content or images, including .
. . content or images supporting or opposing election of any
candidate(s) to any federal governmental office, ”
Standardized Image Guidelines at 9, as well as Zazzle's
own Appropriate Use Guidelines, which prohibited content that
“incorporate[s] a . . politician . . or other famous
person's name or likeness, ” Exhibit J to FAC at
December 2016, the Court denied USPS's motion to dismiss
the First Amended Complaint for lack of jurisdiction.
See Memorandum Opinion, ECF No. 23. The parties
proceeded to discovery. In July 2018, two weeks after
Plaintiffs moved for summary judgment, they sought leave to
file a supplemental complaint setting forth a facial First
Amendment challenge to the 2018 Regulations. See
Motion for Leave to File Suppl. Compl., ECF No. 48. The Court
granted this request. See July 18, 2018 Minute
Supplemental Complaint alleges that the Regulations violate
the First Amendment by barring “political”
designs. Plaintiffs aver that they placed two orders for
customized postage with Stamps.com, another authorized
vendor. The orders were for a “substantively
identical” design to that previously submitted to
Zazzle in April 2015. Suppl. Compl., ECF No. 52, ¶¶
5, 6, 8. But in addition to the image of the dollar-sign
snake strangling Uncle Sam, the design features the text
“Democracy is Not for Sale, But This Artwork
Is!”- presumably included to situate the design within
USPS's allowance for commercial content- and the name
“Charles Krause Reporting Fine Art.” Id.
¶ 6. Both orders were rejected because they “did
not meet the ‘content guidelines.'”
Id. ¶¶ 7, 9.
has moved to dismiss Plaintiffs' claims originally set
forth in the First Amended Complaint, which challenge the
prior Guidelines, and the claims set forth in the
Supplemental Complaint, which target the 2018 Regulations.
See Mem. Supp. Mot. Dismiss (“MTD”), ECF
No. 55-1. The government argues that the original
claims are moot because the Regulations replaced the
Guidelines and that the supplemental claims fail to state a
facial First Amendment challenge to the operative
Regulations. Plaintiffs oppose the motion. See
Opp'n, ECF No. 56. The Court heard oral argument on April
Standard of Review
evaluating a motion to dismiss, the Court must “treat
the complaint's factual allegations as true and must
grant [the] plaintiff ‘the benefit of all inferences
that can be derived from the facts alleged.'”
Sparrow v. United Air Lines, Inc., 216 F.3d 1111,
1113 (D.C. Cir. 2000) (citations omitted); Am. Nat'l
Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011)
(citation omitted). The Court need not accept the
plaintiff's legal conclusions, however. Browning v.
Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). USPS has
moved to dismiss the complaint for lack of jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1) and for
failure to state a claim under Rule 12(b)(6).
motion to dismiss for mootness is properly brought under Rule
12(b)(1) because mootness itself deprives the court of
jurisdiction.” Indian River Cty. v. Rogoff,
254 F.Supp.3d 15, 18 (D.D.C. 2017). Unlike some
jurisdictional questions such as standing or ripeness, the
party asserting mootness-here, USPS-bears the “initial
‘heavy burden'” of establishing that the case
is moot. Honeywell Int'l, Inc. v. NRC, 628 F.3d
568, 576 (D.C. Cir. 2010) (citation omitted). This burden
remains when the defendant contends that its voluntary action
deprives the court of jurisdiction. PETA v. U.S.
Dep't of Agric., 918 F.3d 151, 157 (D.C. Cir. 2019)
(quoting Friends of the Earth, Inc. v. Laidlaw Envt'l
Servs., Inc., 538 U.S. 167, 189 (2000)).
survive a 12(b)(6) motion, it is the plaintiff who bears the
(relatively light) burden of showing that the complaint
contains sufficient facts which, if accepted as true, state a
plausible claim for relief. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
are two central issues before the Court. First, whether it
has jurisdiction to consider Plaintiffs' claims based on
the Standardized Image Guidelines or whether the superseding
Regulations render the original claims moot. And second,
whether Plaintiffs' Supplemental Complaint states a
plausible First Amendment challenge to the 2018 Regulations.
For the reasons that follow, the Court concludes that
Plaintiffs' challenges to the Guidelines are moot and
will therefore dismiss the claims originally set forth in
Plaintiffs' First Amended Complaint for lack of
jurisdiction. And even if it did have jurisdiction over those
claims, both precedent and practicality counsel against
passing on the constitutionality of a superseded enforcement
regime. The Court further concludes that Plaintiffs have
failed to state a facial First Amendment challenge to the
Regulations because the customized postage program is a
nonpublic forum and the Regulations are both reasonable and
viewpoint neutral. The Court will, therefore, also dismiss
the claims first advanced in the Supplemental Complaint.
Challenge to the Guidelines
courts lack jurisdiction to decide moot cases because their
constitutional authority extends only to actual cases or
controversies.” Conservation Force, Inc. v.
Jewell, 733 F.3d 1200, 1204 (D.C. Cir. 2013) (quoting
Iron Arrow Honor Soc'y v. Heckler, 464 U.S. 67,
70 (1983)). “A case becomes moot-and therefore no
longer a ‘Case' or ‘Controversy' for
purposes of Article III-‘when the issues presented are
no longer ‘live' or the parties lack a legally
cognizable interest in the outcome.'” Already,
LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quoting
Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per
“intervening events make it impossible to grant the
prevailing party effective relief, ” no live
controversy remains. Lemon v. Green, 514 F.3d 1312,
1315 (D.C. Cir. 2008) (citation omitted). As relevant here,
“when an agency has rescinded and replaced a challenged
regulation, litigation over the legality of the original
regulation becomes moot.” Akiachak Native Cmty. v.
U.S. Dep't of Interior, 827 F.3d 100, 113 (D.C. Cir.
2016) (listing cases); see also Initiative &
Referendum Inst. v. USPS (“IRI”),
685 F.3d 1066, 1074 (D.C. Cir. 2012) (“A challenge to a
superseded law is rendered moot unless there [is] evidence
indicating that the challenged law likely will be
reenacted.” (alteration in original) (internal
quotation marks, citation omitted)); CREW v.
Wheeler, 352 F.Supp.3d 1, 11 (D.D.C. 2019) (“The
promulgation of a superseding policy or program can have the
power to moot a challenge to the old one.”). The D.C.
Circuit has advised that in “such cases,  if the
agency promulgates a new regulation contrary to one
party's legal position, that party may ‘cure its
mootness problem by simply starting over again' by
challenging the regulations currently in force.”
Akiachak Native Cmty., 827 F.3d at 113 (second
alteration in original) (citations omitted).
argues that is precisely what happened here: issuance of the
new Regulations is an intervening event that moots any claim
based upon Guidelines no longer in force. Because the
customized postage program is now governed by the 2018
Regulations, and Plaintiffs supplemented their complaint to
challenge the constitutionality of those regulations, USPS
says the Court should dismiss as moot any claims based on the
Guidelines. The Court agrees: it is “a perfectly
uncontroversial and well-settled principle of law” that
rescinding and replacing a challenged regulation moots
litigation over the original regulation. Id. at 113.
USPS has rescinded and replaced the Guidelines with the
Regulations, so any challenge to the constitutionality of the
Guidelines is now moot.
actually also agree-to a degree. They “concede that
some of the relief [originally] sought . . . is now
moot in light of the new USPS regulations”: the Court
cannot declare that the Guidelines are unconstitutional and
cannot enjoin USPS from enforcing Guidelines no longer in
effect. Opp'n at 11. Even so, Plaintiffs contend that
USPS's adoption of the 2018 Regulations does not moot
their original claims because they “continue to suffer