IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

CHARLES H. KLEIN, JR., et al,

Case No. 1:24-cv-00672

Plaintiffs,

Judge Jeffery P. Hopkins

v.

UNITED STATES POSTAL SERVICE, et al,

Defendants.

PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

I. INTRODUCTION

The federal government Defendants argue that Congress has divested this Court of its authority to hear cases arising under the Constitution because, according to the Defendants, Congress requires that the Plaintiffs instead present their claim of constitutional deprivation to a five-person statutory administrative body created by Congress called the Postal Regulatory Commission (“PRC”) for its possible discretionary review. Congress did not delegate constitutional claims to the administrative tribunal, nor could it.

This Court hears claims by a citizen that federal government officials have deprived the citizen of his constitutional right to equal protection of the laws. PRC, an administrative body of limited statutory jurisdiction, does not have authority or expertise to hear and adjudicate constitutional claims. Moreover, PRC is not even required to hear and decide all statutory claims presented to it for alleged violations of the Postal Accountability and Enhancement Act (“PAEA”). Furthermore, the PAEA does not purport to confer jurisdiction on the PRC to hear and decide claims of constitutional deprivation and, even had it attempted to do so, such delegation would itself be unconstitutional. PRC lacks the power to interpret constitutional law and to provide the requisite binding injunctive relief required. Its authority is limited, is technical, and does not include adjudicating constitutional claims.

The Plaintiffs (collectively “Klein”) understand that the Court will necessarily decide whether the Court has subject matter jurisdiction in the case at bar; however, Defendants United States Postal Service and its federal Defendant officials (collectively “USPS”) seek to nullify a citizen’s right to federal court jurisdiction to enjoin ongoing unconstitutional conduct by the federal government. Worse than that, as discussed below, USPS invokes a classic “catch-22” for Klein by arguing to this Court both that the Court itself lacks jurisdiction over Klein’s constitutional claim but also that the PRC lacks jurisdiction over a statutory claim. According to USPS, Klein has no possible remedy.

USPS wants this Court to decline jurisdiction but USPS does not refute the Plaintiffs’ actual basis for invoking federal court jurisdiction. Instead of directly addressing the issue of the Court’s jurisdiction to enjoin unconstitutional conduct by federal officials, the Defendants deflect and recast the Plaintiffs’ constitutional equal protection claim as a statutory claim.

The Plaintiffs do not present a statutory claim in their Amended Complaint. Rather, the Plaintiffs’ sole claim in the Amended Complaint is that the federal government Defendants arbitrarily and capriciously deprived the Plaintiffs of their constitutional right to equal protection of the laws. Nevertheless, USPS implicitly argues that Congress may override Article III of the Constitution and the Plaintiffs’ access to this Court to seek injunctive relief from USPS’s unconstitutional conduct. Article III and 28 U.S.C. 1331 confer jurisdiction on this Court to provide judicial review of Klein’s claim that USPS is acting unconstitutionally.

II. PLAINTIFFS’ AMENDED COMPLAINT ASSERTS A CLAIM FOR UNCONSTITUTIONAL DEPRIVATION OF EQUAL PROTECTION OF THE LAW

Klein’s Amended Complaint includes that USPS previously provided mail delivery service to Klein at his property; USPS apologized to Klein for prior “inconvenience” when refusing to provide service; USPS instructed Klein he will not “be required to create a turn-around for the mail carrier.” It was only after USPS had a confrontation with a former neighbor that USPS terminated Klein’s service for pretextual reasons, of which Klein has evidence of the pretext. USPS has not determined that the road segment in issue has hazardous conditions. Since the time of termination the road has been improved over its condition at the time USPS had been providing mail delivery service and there are no reported accidents on the road segment. In 2024 the temporary Postmaster informed Klein that he could restore mail delivery service to Klein’s property and that the road was not unsafe. USPS has never provided a traffic engineering report justifying its arbitrary refusal to serve Klein although other similarly situated residents in the same county receive USPS mail service at their properties and even on roads in lesser condition than Klein’s road. The road segment now has two professionally excavated and maintained pullovers and also a designated turn-around and all other vendors and services deliver to Plaintiffs’ properties. Plaintiffs’ Amended Complaint, Doc #13, PageID passim.

Just as in Village of Willowbrook v. Olech, 528 U.S. 562 (2000), where the Supreme Court held that the equal protection embedded in the United States Constitution gives rise to a cause of action against local government officials when they arbitrarily and capriciously treat a citizen differently from others similarly situated, and there is no rational basis for the different treatment, so the equal protection embedded in the United States Constitution gives rise to a cause of action against USPS when it arbitrarily and capriciously treats a citizen differently from others similarly situated.

The Supreme Court has established that the due process clause of the Fifth Amendment protects a citizen from deprivation of his right to equal protection by federal officials. Bolling v. Sharpe, 347 U.S. 497 (1954). III. THIS COURT HAS SUBJECT MATTER JURISDICTION OVER PLAINTIFFS’ CLAIM THAT FEDERAL OFFICIALS DEPRIVED THE PLAINTIFFS OF THEIR ENTITLEMENT TO EQUAL PROTECTION OF THE LAW

USPS does not challenge the merits of Klein’s allegations in its Motion to Dismiss. Rather, by reference to unrelated principles of law, USPS filed a Rule 12(b)(1) motion and implicitly argues that Klein has no access at all to this Court for purposes of seeking an adjudication of his claim that the federal government is unconstitutionally depriving him of his right to equal protection of the law. USPS also argues both that the Postal Regulatory Commission lacks jurisdiction to hear the Plaintiffs’ claim (Doc#16, Motion to Dismiss, PageID 64, n. 1.) and that the PRC has exclusive jurisdiction to hear the Plaintiffs’ claim (Id., PageID 62-63).

USPS does not directly challenge a citizen’s right under Article III of the Constitution: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution . . . to Controversies to which the United States shall be a Party . . . .” USPS does not directly challenge 28 U.S.C. 1331 as applied to claims arising under the Constitution. The USPS Motion to Dismiss does not identify any authority by which Congress may divest this Court from jurisdiction to hear claims of unconstitutional deprivation of equal protection.

28 U.S.C. 1331 explicitly confers jurisdiction in this Court for a civil action arising under the Constitution. USPS insufficiently argues against federal court jurisdiction over Klein’s equal protection claim arising under the Constitution (Motion to Dismiss, Doc #16, PageID 66) by referencing one case considering a statute that did not create a private cause of action.

There is an obvious dispositive difference between Klein’s equal protection claim arising under the Constitution and Merrell Dow Pharm, Inc. v. Thompson, 478 U.S. 804, 814 (1986), the case USPS references for the inapposite proposition that there is no private cause of action for violations of the Federal Food, Drug, and Cosmetic Act. That reference to a federal statute is the whole extent of USPS’s argument that 28 U.S.C. 1331 does not allow this Court to hear Klein’s claim arising under the Constitution.

USPS further references and analyzes a hypothetical statutory claim that is not in the Amended Complaint. USPS goes so far afield in its Motion to Dismiss that it references the 14th Amendment on several occasions (Doc#16, Motion to Dismiss, PageID 61, 62, 66, 67) even though the Amended Complaint does not ever mention the 14th Amendment. The principle of law imposed by USPS is inapposite to the jurisdiction of this Court over Klein’s claim that USPS deprived the Klein Plaintiffs of their constitutional right to equal protection of the law. The other cases cited by USPS are similarly inapposite and do not consider cognizable constitutional claims seeking injunctive relief like Klein’s equal protection claim.

USPS argues that 39 U.S.C. 3662 is the source for divesting this Court of jurisdiction over Klein’s equal protection claim. 39 U.S.C. 3662 refers to the statute itself and does not even purport to divest this Court of jurisdiction over claims that federal government conduct is unconstitutional:

(a) IN GENERAL.— Any interested person (including an officer of the Postal Regulatory Commission representing the interests of the general public) who believes the Postal Service is not operating in conformance with the requirements of the provisions of sections 101(d), 401(2), 403(c), 404a, or 601, or this chapter (or regulations promulgated under any of those provisions) may lodge a complaint with the Postal Regulatory Commission in such form and manner as the Commission may prescribe.

(emphasis added). Klein understands that Congress has created a statutory scheme and a process for considering matters covered by the statutory scheme. However, the Plaintiffs’ claim in the case at bar arises under the Constitution and not under a statute. Just as the federal court had jurisdiction over Olech’s equal protection claim in Village of Willowbrook, supra, so this Court has jurisdiction over Klein’s functionally comparable equal protection claim here. Whether or not the Plaintiffs have an alternative statutory claim under 39 U.S.C. 3662, Congress did not, and cannot, divest Plaintiffs of access to this Court for their claim arising under the Constitution.

USPS basically argues that Klein’s access to this Court for judicial review over his claim of unconstitutional conduct by the federal government is a matter of Congress’s political judgment but not a constitutional right. In the context of federal court lawsuits against state and local government officials challenging their unconstitutional conduct, the Supreme Court ruled that exhaustion of alternative administrative remedies is unnecessary and states may not condition the vindication of federal constitutional rights. Patsy v. Board of Regents of Fla., 457 U.S. 496 (1982); Felder v. Casey, 487 U.S. 131 (1988). Yet, in the context of a federal court lawsuit against USPS challenging the unconstitutional conduct of its federal officials, USPS argues that alternative remedies not only have to be exhausted, or are exclusive, but that they actually bar any attempt by Klein to enjoin the challenged unconstitutional conduct.

In 2015, the United States Supreme Court emphasized: What our cases demonstrate is that, “in a proper case, relief may be given in a court of equity . . . to prevent an injurious act by a public officer.” Carroll v. Safford, 3 How. 441, 463 (1845) . . . . The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England. See Jaffe & Henderson, Judicial Review and the Rule of Law: Historical Origins, 72 L. Q. Rev. 345 (1956). It is a judge-made remedy . . . ."

Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015) (emphasis added).

Just recently, the Supreme Court refused to leave plaintiffs in a “catch-22” (to use the Court’s words). In Williams, et al., v. Reed, Alabama Secretary of Workforce (February 21, 2025), the Supreme Court invalidated the State of Alabama’s attempt to immunize government conduct from claims that the government conduct was unconstitutional. Alabama tried to straitjacket the claims of unconstitutional conduct with a supposedly “exclusive” exhaustion of administrative remedies process. Similarly, USPS tries to immunize its officials from judicial review of their unconstitutional conduct, sometimes characterizing the statutory process as “exclusive” and sometimes characterizing the statutory process as a mandatory exhaustion of administrative remedies process (with the added admission by USPS that Klein cannot file an original action in federal district court for his constitutional claim even after exhausting the PRC administrative procedures). The analogy to the case at bar is that an individual’s right to seek injunctive relief from the judiciary for ongoing unconstitutional conduct by government officials is not a matter to be diminished in this country.

Other Supreme Court cases support Klein’s request for equitable relief against USPS: Philadelphia Co. v. Stimson, 223 U.S. 605 (1912) (federal officials can be enjoined for unlawful conduct violating the Constitution); Bell v. Hood, 327 U.S. 678 (1946) (federal courts have jurisdiction to grant equitable relief for constitutional violations); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949) (sovereign immunity does not protect officials who act unconstitutionally); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (allowing equitable relief against federal official); Davis v. Passman, 442 U.S. 228 (1979) (reaffirming that equitable relief is available as a remedy for constitutional violations by federal officials, and “the question of who may enforce a statutory right is fundamentally different from the question of who may enforce a right protected by the Constitution”); Boumediene v. Bush, 553 U.S. 728 (2008) (equitable relief against federal officials); Trump v. Hawaii, 138 S.Ct. 2392 (2018) (allowing suit seeking an injunction against federal officials to stop unconstitutional conduct). Sovereign immunity does not protect federal officials acting unconstitutionally from judicial review to consider enjoining the unconstitutional conduct.

The spirit of Marbury v. Madison, 5 U.S. 137 (1803), and its establishment of the primacy of judicial review over unconstitutional conduct of the federal executive and legislative branches, wafts over issues such as impliedly raised by USPS. In the case at bar, USPS seeks to quash judicial review of the Defendants’ unconstitutional conduct. Marbury v. Madison emphasized that the powers of Congress are defined and limited (“all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation . . . .”) (id., pp. 176-77) and “It is emphatically the province and duty of the judicial department to say what the law is”) (id., p. 177).

USPS’s Motion to Dismiss only discusses a hypothetical statutory claim but not the actual constitutional claim Klein filed in the Amended Complaint. Boiled down to its essentials, USPS impliedly argues that Klein may only sue in federal court to enjoin unconstitutional conduct by federal officials if Congress allows him to sue in federal court to enjoin unconstitutional conduct by federal officials. That premise is wrong.

IV. THE JUDICIARY CANNOT DEFER TO AN AGENCY’S INTERPRETATION

Another implication presented by USPS is that its interpretation of the PAEA should govern whether Klein is able to present a claim to this Court of unconstitutional deprivation by federal officials. Even assuming arguendo that Congress has authority under the Constitution to deprive Klein of access to the federal judiciary for purposes of presenting a claim that federal officials have acted unconstitutionally, in 2024 the United States Supreme Court overturned the Chevron doctrine in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). The federal judiciary is no longer required to defer to agency rulemaking and interpretations. There is no basis in law to deprive this Court of jurisdiction to hear Klein’s claim arising under the Constitution.

V. CONCLUSION

For the foregoing reasons, the Plaintiffs ask that the Court deny the Defendants’ Motion to Dismiss for Lack of Subject Matter Jurisdiction.

Respectfully submitted, /s/ Richard Ganulin Richard Ganulin, Esq. Attorney at Law
3662 Kendall Avenue
Cincinnati, Ohio 45208
(513) 405-6696
rganulin@gmail.com
Attorney for Plaintiffs

CERTIFICATE OF SERVICE This certifies that the foregoing was served on April 18, 2025 upon all counsel of record via the Court’s electronic notification system and/or via electronic mail.
Margaret Castro (0078968)
Assistant United States Attorney
221 East Fourth Street, Suite 400
Cincinnati, Ohio 45202
Office: (513) 684-3125
Fax: (513) 684-6972
E-mail: Margaret.Castro@usdoj.gov
Counsel for Defendants

/s/ Richard Ganulin