Zukerman v. United States Postal Service, No. 19-5168 (D.C. Cir. 2020)Annotate this Case
Plaintiff filed suit contending that USPS's custom postage program violated the prohibition against viewpoint discrimination under the First Amendment. While the parties were completing discovery and nearing summary judgment, the Postal Service adopted the 2018 Rule, which deems custom postage designs acceptable only if they are commercial or social and exclude any content that is political. After plaintiff filed a Supplemental Complaint, the district court granted the Government's motion to dismiss the viewpoint discrimination claim as moot and plaintiff's challenge to the 2018 Rule for failure to state a claim.
The DC Circuit held that it had jurisdiction on appeal, because plaintiff's Supplemental Complaint raises two challenges to the Postal Service's current policies covering custom postage and neither claim is moot. First, the Supplemental Complaint incorporates the allegation that plaintiff suffers ongoing viewpoint discrimination. Second, the Postal Service has not met its heavy burden of making it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. Accordingly, the court reversed the viewpoint discrimination claim and remanded for further proceedings on the merits.
The court reversed the district court's dismissal of plaintiff's facial challenge to the 2018 Rule, because the rule's blanket ban on political content fails the objective, workable standards test articulated by the Supreme Court in Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876, 1891 (2018). Therefore, the contested rule is unconstitutional.