Right now the Postal Service has committed to Congress to hold off closing postal facilities and implementing Network Optimization Initiative (NOI) until mid-May. This date is two months before the Postal Regulatory Commission (PRC) will close the record on the Postal Service’s NOI proposal and between three to five months before the Commission publishes its opinion.
The difference in time between when the Postal Service promised Congress that it would implement Network Optimization Imitative and when the Commission will issue raises an interesting question.
Does the Postal Service have to wait for the Commission’s decision to act?
Some believe that the Postal Service does not have the legal obligation to wait. It can act now and the PRC’s review of the change becomes little more than an academic exercise. Others are less certain as to whether acting before a PRC opinion would have legal consequences.
Traditionally, it has waited until after a PRC advisory opinion to act, even if it was not legally required to do so. By waiting until after a PRC advisory opinion, the Postal Service avoided criticisms that it did not follow all due-process steps set in law, regulation or custom.
The Postal Service followed that path when it proposed changes to service standards between a limited number of zip codes. The Postal Service filed the changes before the PRC, the PRC then issued an opinion opposing the changes, and finally the Postal Service made the changes that it wanted.
So why would the Postal Service want to change its traditional schedule of not making changes until after an advisory opinion from the PRC?
The answer is the need for postal reform legislation. Congress has only a limited amount of time to act on legislation and passing legislation in both houses of Congress may require an indication from the Postal Service that it is committed to cutting costs in order to get the adjustments to its payment schedules for pensions and retiree health benefits and a refund of overpayments to its pension plans. Implementing the network initiative shortly after the May 15th moratorium ends would give Congress the signal that Postal Service management is serious about making changes that warrant legislation that removes pension and retiree health benefit payments that the Postal Service cannot afford and are not needed to ensure full funding of these retiree benefit programs.
Are there Political consequences if the Postal Service does not wait?
Acting before a PRC advisory opinion would be very unpopular among a number of politically-powerful Postal Service stakeholders. These stakeholders include postal labor unions and management associations, and a number of Postal Service customers that would be adversely affected by the closure of a particular processing facility.
Acting before a PRC advisory opinion would also anger a number of members of Congress that have actively fought to keep one or more processing plants open. By acting before a PRC advisory opinion, the Postal Service prevents these Senators and Representatives from stating “We fought the Postal Service every step of the way and before every venue available and we regret we cannot do anything else to stop the Postal Service from taking action”.
Are there legal consequences if the Postal Service does not wait?
This is the $64,000 question. As far as I know, the Postal Service has never acted before the PRC filed an advisory opinion. Therefore, it is possible that the Postal Service could be sued to delay implementation of the Network Optimization Initiative, at least until the PRC publishes its opinion. Postal attorneys who read this post are urged to comment as to whether opponents of the Network Optimization Initiative have a reasonable chance to delay implementation until after the PRC opinion is published.
