The Post Office Is Above the Law, and We All Pay the Price

Instead of sitting idly by while USPS gains more legal privileges, Congress should force the agency to confront its own failings and decline in innovation.

Last month, an Arizona mail carrier brazenly stole a Walmart gift card from the mail. She’s facing charges for theft and fraud, but her employer—the United States Postal Service (USPS)—is unlikely to see any consequence for failing to provide competent management or supervision. Indeed, thanks to special legal protections the agency enjoys, citizens cannot bring most lawsuits against the USPS even though they can sue USPS’s private competitors like UPS and FedEx. Sure, individual employees can get sued for their misdeeds, but any accountability stops there.

So it’s not surprising that trust in the USPS falls to low after low. But even if the agency finds a way to reverse its tide of red ink (losses totaling more than $1.5 billion for the first quarter of 2019), its “sovereign immunity” legal privileges are still in full force, and citizens have no recourse for postal worker misdeeds. This needs to change.

The Tide of Public Opinion Is Turning 

Last year, the Office of the Inspector General (IG) released a sobering report card for the agency. Three-year “delivery satisfaction” grades slipped in almost all categories examined, including “carrier friendliness and courtesy,” “mail and package condition,” and “delivery accuracy.” Nearly a quarter of respondents did not approve of their mail carrier’s performance over the past month—an inexplicably large number given that nearly 90 percent of the public has a favorable opinion of USPS.

The problem is that visible slip-ups are becoming more glaring. For first-class mail meant to be delivered in three to five days, the USPS was late more than 10 percent of the time in 2018. Examples of rampant theft are piling up quickly, which could cause a consumer to forever avoid using their Post Office to send anything remotely valuable. Further, an IG report in 2017 concluded that at least two billion pieces of mail over the past year had been delayed, but not reported as delayed, by USPS.

Rampant theft is an even more obvious issue, and examples are piling up quickly.

On February 25th, the editor of the Postal Times released a compilation of “Postal Workers behaving badly,” concluding that there are “so many articles about postal workers behaving badly that I am putting them all in one post.” A read of this report could explain why a consumer would forever avoid using their Post Office to send anything remotely valuable.

No Avenue for Legal Recourse

But justice remains elusive. The 1946 Federal Tort Claims Act (FTCA) protects the USPS from being sued for “[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.” It’s bizarre that USPS retains such a lucrative respite from the law, especially since they do function as a quasi-business, charging for services. USPS competes with private carriers every day, yet if those competitors slip up, they can expect to face legal consequences.

Why isn’t the same true for USPS?

The mail exception baked into the FTCA isn’t even the most valuable legal privilege USPS has in its pocket. If USPS starts using an invention already patented by somebody else, the court can’t use an injunction to force the agency to stop.

Instead of sitting idly by while USPS gains more legal privileges, Congress should force the agency to confront its own failings and decline in innovation.

For example, if USPS starts using a valuable piece of scanning technology dreamt up and patented by somebody else, the patent holder can at best get some compensation from USPS if the court rules in their favor. But after paying damages, USPS can simply carry on using it as before—hardly a daunting prospect since the agency receives more than $3.6 billion annually in taxpayer subsidies, according to a recent report by the Taxpayers Protection Alliance, where I work.

Apparently, these patent privileges aren’t good enough for USPS, which is now in front of the Supreme Court arguing for the power to invalidate patents without due process. If the agency gets its way, it will have yet another avenue to co-opt the countless scanning and delivery innovations that entrepreneurs dream up.

But it doesn’t have to be this way. Instead of sitting idly by while USPS gains more legal privileges, Congress should force the agency to confront its own failings and decline in innovation. By ending legal loopholes in the federal torts and patent protection process, lawmakers can make the agency clean up its act. USPS can live up to its moniker of America’s favorite public agency, but only with the right rules in place.

Further Reading

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