Jones et al v. United States Postal Service et al

Filing 86

LETTER addressed to Judge Victor Marrero from Rebecca S. Tinio dated October 9, 2020 re: Weekly Update. Document filed by Louis DeJoy, Donald J. Trump, United States Postal Service. (Attachments: # 1 Exhibit 1 - October 8, 2020 Congressional Update, # 2 Exhibit 2 - October 8, 2020 USPS Press Release, # 3 Exhibit 3 - Service and Variances Report, # 4 Exhibit 4 - All Clear Reports and Election Mail Service Performance).(Tinio, Rebecca)

Case 1:20-cv-06516-VM Document 86 Filed 10/09/20 Page 1 of 5
U.S. Department of Justice
[Type text]
United States Attorney
Southern District of New York
86 Chambers Street, 3rd Floor
New York, New York 10007

October 9, 2020
VIA ECF
Hon. Victor Marrero, United States District Judge
United States District Court for the Southern District of New York
Daniel Patrick Moynihan United States Courthouse
500 Pearl Street
New York, New York 10007-1312
Re:

Jones et al. v. United States Postal Service et al., No. 20 Civ. 6516 (VM)

Dear Judge Marrero:
This Office represents the defendants in the above-referenced case. We write
respectfully pursuant to the Court’s September 25, 2020 Order, ECF No. 57 (the “Order”).1 In
accordance with paragraph 6 of the Order, Defendants submit herewith:
(1) The weekly service performance update provided by the United States Postal Service
(“USPS”) to Congress on October 8, 2020 (pertaining to First-Class Mail, Marketing
Mail, and Periodicals) (Exhibit 1), as well as a relevant USPS press release (Exhibit
2);
(2) A report reflecting the weekly national scores and service variance for Presort FirstClass Mail (Overnight, 2-Day and 3-5 Day) and Single-Piece First-Class Mail (2-Day
and 3-5 Day), for the same period of time covered by the October 8, 2020
Congressional update2 (attached hereto as Exhibit 3);
(3) As discussed in more detail below, a summary of any and all data and information
collected by USPS Headquarters regarding USPS’s handling of Election Mail at the
Headquarters level and compliance with USPS policies regarding Election Mail,
USPS recommended practices regarding Election Mail, and the terms of the Court’s
September 25, 2020 Order specifically pertaining to Election Mail.

1

The information contained in this letter has been provided to this Office by the United
States Postal Service, to be provided to the Court to comply with Defendants’ obligations under
the Order.
2

The first column in each category shows the overall service performance score; the Percent
within +1 day, +2 days, and +3 days columns show the performance one day later, two days
later, and three days later (service variances).

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Summary of Data and Information Regarding Election Mail Handling and Compliance
Historically, USPS Headquarters has compiled three categories of data or information
relating to its handling of Election Mail and compliance in the field with Election Mail policies
and practices: (1) All Clear Reports, (2) Advanced Volume Reports, and (3) Election Mail
Service Reporting.3 Since its previous report (ECF No. 68), USPS has begun to develop and
utilize a new type of service reporting data, tracking mailpieces specifically marked (at the
discretion of election officials) with ballot identifiers, and will also begin reporting this to the
Court as soon as it has been sufficiently validated.
1. All Clear Reports
As USPS has previously described to the Court, see ECF No. 28 ¶ 19, USPS uses daily
“all clears” to ensure that all Election Mail is accounted for within the system. In the all clear
process, in-plant support personnel in processing or delivery units use a checklist to confirm that
mail scheduled or “committed” to go out that day has gone out, and anything committed for the
next day is at the front of the line.4 Personnel conducting all clears consult Election Mail logs,
and also check all locations within the facility (e.g., processing equipment) to ensure that all
pieces of Election Mail in the facility’s possession are in the right location.
All Clear Reports help USPS identify facilities that require additional follow-up to
enforce their compliance with the daily all clear policy. Each USPS processing plant, delivery
unit, and reporting retail unit is required to certify, through an online system, its all clear
performance every day. Reports showing USPS’s “all clear” reporting results for the time period
from September 26 to October 2 are attached hereto as Exhibit 4, broken down by geographic
Division (for mail processing plants) and by geographic Area (for delivery/retail units).
In these reports, the “Total Count” column totals the number of facility reports expected
each week (in other words, it reflects the number of facilities multiplied by seven); “No
Response” reflects how many expected reports were not submitted; and “Non-Compliant”
indicates that a facility did not clear all of its Election Mail that day. It is important to note that a
“Non-Compliant” certification does not necessarily indicate that a facility failed to properly
comply with the all clear process on a given day; it indicates primarily that the facility located
some Election Mail that it did not clear that day, often for reasons unrelated to any operational
3

As a general matter, USPS collects an enormous amount of raw data regarding its products
and operations, some of which would incidentally bear on the performance of Election Mail. For
example, in accordance with paragraphs 6(a) and (b) of the Order, USPS is providing weekly
data updates to the Court regarding the service performance of all First-Class Mail, Marketing
Mail, and Periodicals, which encompasses but extends far beyond Election Mail. USPS
understands paragraph 6(c) of the Order as referring to data and information that USPS
Headquarters customarily collects specifically relating to Election Mail, all of which is discussed
herein.
4

Many, but not all, retail units are also required to certify their all clear performance each day.
Some very small retail units are not required to certify their all clear performance.

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deficiency. As discussed above, the all clear process is principally aimed at making sure that all
Election Mail within a facility is accounted for, and anticipates that some Election Mail (for
example, Election Mail received too late in the day or night to process) may be located during a
facility-wide check and committed to go out at the front of the line the next day.
If a facility submits no “all clear” response on a given day, USPS Headquarters alerts the
relevant District Manager or Division director to follow up. If a particular facility exhibits a
pattern of non-responses, USPS may take a corrective action.
2. Advanced Volume Reports
Advanced Volume Reports help USPS estimate the amount of Election Mail, primarily
that which is sent as Marketing Mail, that is advanced. Using the Mail Condition Visualization
system, which is USPS’s system of record for mail processing conditions, USPS can count the
number of mailpieces that receive their final processing scan (meaning that they have gone
through processing and are about to be sent to delivery units) prior to their expected date of
delivery. In other words, USPS is able to detect mailpieces that are processed and readied for
delivery ahead of schedule, when compared with their expected delivery standard, as a
consequence of USPS’s policies of advancing mail (especially Election Mail).5 It is important to
note that Advanced Volume Reports set forth absolute numbers without denominators, and as
such may not fully depict USPS’s general performance with respect to Election Mail in a given
week (e.g., what percent of Election Mail USPS received and advanced in a given week).
For the time period from September 26 to October 2, USPS data shows that 15,362,663
pieces of Election Mail were advanced. This data represents a 32% increase over the previous
week, in which 11,637,830 pieces of Election Mail were advanced.
3. Election Mail Service Reporting
USPS has recently collected and referred to, for internal purposes, data from mailpieces
that election officials have chosen to track using USPS’s Intelligent Mail barcode (“IMB”), and
identified on “entry” as Election Mail.6 Only a subset of Election Mail is sent using this tracking
technology, and USPS does not currently have data to specifically track and analyze the service
performance of Election Mail that does not utilize this feature. Therefore, the Election Mail

5

Generally speaking, the vast majority (approximately 98%) of mailpieces that receive their
final processing scan are delivered the next day. Due to a number of factors, including mail being
missorted, missequenced, or natural disasters, a very small fraction of mail that has received its
final processing scan may be delivered a day later.
6

As USPS has previously noted, because state and local election officials control all aspects
of the design of Election Mail, those officials are responsible for choosing whether to make use
of USPS’s Intelligent Mail Barcode for Election Mail. See, e.g., ECF No. 28 ¶ 4. USPS does
not charge an additional fee for the IMB; in fact, election officials may receive a discount for
opting to use that tracking feature.

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Service Reporting described in this section is not a representatively accurate measurement of the
service performance of all Election Mail handled by USPS.
The Election Mail Service information discussed herein and reported last week (ECF No.
68) has not previously been customarily or “officially” reported outside USPS. Because of the
novelty of the reporting called for by this Court’s September 25, 2020 Order, USPS has
endeavored to comply with that Order while simultaneously working to gain a full understanding
of the attributes of the Election Mail Service data reported last week and again this week. While
that data is used internally by USPS, it has not gone through USPS’s rigorous data validation
processes (similar to the processes used for the data reported to the Postal Regulatory
Commission, and more recently reflected in the weekly service performance reports to
Congress). Therefore, the Election Mail Service figures reported last week and this week do not
constitute official service performance measurements. As such, while these figures may provide
some insight about trends in service, the underlying numbers are subject to revision and change,
once they are subjected to thorough validation. USPS has been working to validate the Election
Mail Service data responsive to paragraph 6(c) of the Order, and will start reporting those
validated numbers once they are available, including updated numbers (if applicable) from prior
weeks.
USPS also provides herein a more complete description of the attributes of the Election
Mail Service figures reported last week and this week. This particular figure tracks the
performance of Election Mail within USPS’s operational network, which is the mailpiece’s time
between its first and last processing operations. It does not incorporate the “First Mile,” which
represents the time from acceptance of the mailpiece (e.g., from a collection box or retail unit) to
the first processing operation, or the “Last Mile,” which tracks mailpieces from their last
processing hit to delivery. “First Mile” and “Last Mile” data are not incorporated into this
Election Mail Service figure for two principal reasons: first, those two measurements are derived
from statistically valid sampling at the aggregate product level (e.g., sampling of all First-Class
Mail), which cannot practicably or reliably be adapted to specifically track Election Mail; and
second, because Marketing Mail, including Election Mail entered by election officials as
Marketing Mail, does not have a “First Mile” measurement. In addition, USPS clarifies that the
Election Mail Service information reported last week and this week does not include a subset of
Election Mail that election officials may choose to identify through the use of ballot-specific
Service Type ID (“STID”) codes within IMBs. USPS has determined that information relating
to the performance of mailpieces that election officials opt to identify using ballot STID codes is
maintained separately and has not been incorporated into the Election Mail data that USPS has
collected and referred to for internal purposes. As such, that data was not included in the metric
provided last week or this week. However, as noted above, USPS is in the process of validating
this data so that it can be used internally, and will also provide it to the Court as soon as that
process is complete and the data is assessed to be sufficiently reliable.
Lastly, USPS considers this Election Mail Service Performance information to be
confidential and not subject to public disclosure under 39 U.S.C. § 410(c). In addition to not
being a representatively accurate measurement of the service performance of all Election Mail
handled by USPS for the reasons described above, it is also a subset of First-Class Mail and
Marketing Mail data that is more disaggregated than is otherwise publicly shared. Nor does the

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USPS otherwise report on a combination of a subset of First-Class Mail and Marketing Mail in
this manner in other contexts. As such, this information is commercial in nature and would not
be disclosed under good business practices. USPS is providing the information pursuant to
paragraph 6 of the Order, but reserves the right to assert the confidential nature of this
information in other contexts.
Bearing these limitations in mind, USPS provides again, herewith, a weekly on-time
service percentage for the Election Mail that is trackable using the IMB feature. This figure is
included on Exhibit 4, attached, for the week ending October 2, 2020, as well as the previous
week, for purposes of comparison.
In addition to the three types of data and information discussed above, which USPS
Headquarters customarily collects relating to Election Mail (and the data relating to mailpieces
bearing a ballot-specific STID code), USPS is currently collecting additional data as part of
ongoing attempts to develop new techniques and metrics related to Election Mail, including its
ballot cancelation performance, and other useful metrics. Attempts to gather and interpret this
data are still in the early stages, and the data is not currently reliable enough for the Postal
Service to use to track its performance. As such, this data is not currently susceptible to analysis.
The Postal Service is attempting to develop these new metrics as quickly as possible and will
supplement its reporting to the Court as soon as they are developed.
Respectfully,
AUDREY STRAUSS
Acting United States Attorney for the
Southern District of New York
Attorney for Defendants
By: /s/ Rebecca S. Tinio__
_
REBECCA S. TINIO
STEVEN J. KOCHEVAR
Assistant United States Attorneys
86 Chambers Street, Third Floor
New York, New York 10007
Tel.: [phone]
E-mail: [e-mail]
[e-mail]