Note: The convoluted formatting is the result of converting from a .pdf to a web page. Please contact me for a forwarded .pdf if needed. Chuck Klein, cklein@chuckkleinauthor.com 

 

 

Pursuant to Federal Rule of Appellate Procedure and Sixth Circuit Rule 26.1, counsel for Plaintiffs-Appellants certify that no party to this appeal is a subsidiary or affiliate of a publicly owned corporation and no publicly owned corporation that is not a party to this appeal has a financial interest in the outcome. Plaintiffs-Appellants are all individual citizens.

 

 

TABLE OF AUTHORITIES........................................................................ v

STATEMENT REGARDING ORAL ARGUMENT.................................... vii

JURISDICTIONAL STATEMENT............................................................... ix

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW................... 1

STATEMENT OF THE CASE...................................................................... 4

SUMMARY OF THE ARGUMENT............................................................. 10

ARGUMENT............................................................................................... 11

I.          THE DISTRICT COURT ERRED BY APPLYING 39 U.S.C. 3662 TO DEPRIVE

THE KLEIN APPELLANTS OF MEANINGFUL FEDERAL COURT JUDICIAL

REVIEW OF THEIR CLAIM FOR INJUNCTIVE RELIEF FROM APPELLEES’ ONGOING UNCONSTITUTIONALCONDUCT........................................................................................ 11

A.      INTRODUCTION                                                                                                           11

B.       SUPREME COURT PRECEDENT DIRECTS THE CONCLUSION THAT CONGRESS HAS NOT IMPLIEDLY PREEMPTED FEDERAL DISTRICT COURT

SUBJECT MATTER JURISDICTION OVER CONSTITUTIONAL CLAIMS FOR

INJUNCTIVE RELIEF AGAINST USPS............................................................................. 16

 

II.       THE DISTRICT COURT ERRED BY ADDRESSING THE MERITS OF THE

KLEIN APPELLANTS’ EQUAL PROTECTION CLAIM AFTER THE DISTRICT

COURT HAD ALREADY DISCLAIMED SUBJECT MATTER JURISDICTION................................................................................... 28

CONCLUSION................................................................................................................... 28

CERTIFICATE OF SERVICE AND COMPLIANCE............................................................. 30

ADDENDUM....................................................................................................................... 31

DESIGNATION OF RELEVANT DOCUMENTS IN RECORD                                                             32

321F.3d1166(D.C.Cir.2003)..................................................................................................................................... 26

406F.3d689(D.C.Cir.2005)........................................................................................................................................ 26

567U.S.1(2012)............................................................................................................................................................... 25,26

561U.S.477(2010)............................................................................................................................................................ 21

 

704F.3d145(D.C.Cir.2013)...................................................................................................................................................... 27

 

5U.S.137(1803)............................................................................................................................................................. 3,11, 22

 

565U.S.368(2012)................................................................................................................................................................ 18

 

165U.S.257(1897)................................................................................................................................................................ 18

523U.S.83(1998)............................................................................................................................................................... 28

  

80U.S.128(1871)................................................................................................................................................................ 3, 22

28U.S.C.1331....................................................................................................................................................... 11,18,24,27

30U.S.C.801........................................................................................................................................................... 23

Pursuant to Federal Rules of Appellate Procedure 34(a)(1) and Sixth Circuit Rule 34(a), the Appellants (“Klein”) request oral argument.

The case at bar presents a fundamental and essential issue of statutory and constitutional construction determining citizens’ meaningful access to the federal judiciary for purposes of seeking injunctive relief against the United States Postal Service and its officials (“USPS”) for ongoing deprivation of the constitutional right to equal protection. USPSintentionally and arbitrarily treats Klein differently than others similarly situated in all relevant material respects.Contrary to the letter and spirit of the United States Constitution, the district court disclaimed subject matter jurisdiction over the constitutional claim based upon 39 U.S.C. 3662(a), an act of Congress.The district court unconstitutionally applied 39 U.S.C. 3662(a) to Klein’s constitutional equal protection claim and redirected Klein to the Postal Regulatory Commission (“PRC”), an administrative tribunal.¹ The district court did this even though the government acknowledged it “reserves the right to argue to the PRC that it lacks jurisdiction to hear any complaint Plaintiffs may file there regarding their factual allegations.”

The Court may benefit from the opportunity to discuss whether the district court erred in applying 39 U.S.C. 3662 to divest Article III courts of jurisdiction over Klein’s equal protection claim seeking injunctive relief from ongoing arbitrary executive action, where the statutory administrative forum lacks authority to decide constitutional claims, its administrative review is discretionary, and there is no meaningful de novo federal court review of the constitutional claim.

The district court had jurisdiction pursuant to 28 U.S.C. 1331 because the action arises under the Constitution of the United States.The district court entered its Opinion and Order, and its Judgment, on October 27, 2025, erroneously dismissing the Klein’s First Amended Complaint on the ground that the district court lacked subject matter jurisdiction over Klein’s claimfor injunctive relief that the federal government was unconstitutionally depriving the Appellants of their entitlement to equal protection under the law.RE ## 21-22, PageID ## 85-96.

The district court erred because the PRC, the statutory agency designated in 39 U.S.C. 3662, lacks authority to hear and decide constitutional claims.39 U.S.C. 3663 only confers limited appellate review authority on the United States Court of Appeals for the District of Columbia Circuit for actual decisions of the PRC within the scope of the PRC’s authority.This statutory scheme, as applied to Klein, does not confer meaningful federal court judicial review over the federal government’s unconstitutional conduct.

Klein timely filed a Notice of Appeal on December 9, 2025.RE # 23, PageID # 97.This Court of Appeals has jurisdiction over the district court’s Opinion and Order, and Judgment, pursuant to 28 U.S.C. 1291.

 

 

Klein ultimately seeks injunctive remedy for the federal government’s unconstitutional refusal to provide USPS mail delivery to the Klein properties in Brown County, Ohio. However, the district court disclaimed subject matter jurisdiction over the merits of Klein’s constitutional claim against USPS seeking injunctive relief.Consequently, the issue presented for review to this Court of Appeals is whether the district court erred by denying its subject matter jurisdiction over Klein’s claim that the federal government is unconstitutionally denying Klein of entitlement to equal protection of the law by intentionally treating Klein differently than others similarly situated in all relevant material respects.

For purposes of determining federal court subject matter jurisdictionin response to the USPS facial attack on Klein’s First Amended Complaint, the facts before the Court are deemed admitted.The district court recited many of those facts in its Opinion and Order, Doc #21, PAGEID ##85-95, and the district court acknowledged it “treats the facts alleged in the Amended Complaint as true.”

Klein’s underlying rights in issue with regard to the federal government’s arbitrary and selective conducte manate from the Constitution, not from Congress.The plaintiffin Village of Willowbrook v.Olech,528

U.S. 562 (2000), was able to access the federal judiciary to challenge the local government’s deprivation of the right to equal protection with regard to local government utility service and the local government’s arbitrary and selective treatment of Olech. Klein here similarly can access the federal judiciary to challenge the federal government’s deprivation of the right to equal protection for a federal government service and to seek injunctive

 

 

The following facts, deemed true by the district court for purposes of deciding the USPS motion to dismiss for lack of subject matter jurisdiction, are in Klein’s First Amended Complaint.RE #13, PAGEID ## 47-52.

In April 2015, USPS Postal Area Supervisor Lisa Chapman-Walters, A/MPOO Area 3, Lawrenceburg Post Office, expressly approved Klein’s request to place his mailbox at the end of Klein’s driveway at 6500 Hillman Ridge Road, a rural road in Brown County, Ohio. Postal Area Supervisor Chapman-Walters informed Klein:

I am in receipt of your recent email regarding the movement of your mailbox on Hillman Ridge Road. After discussing the issue with the current Postmaster in Georgetown, the placement of your mailbox will be permitted at the end of your driveway on 6500 Hillman. In addition, you will not be required to retain a letter from Pleasant Township Trustees nor will you be required to create a turn-around for the mail carrier. In closing,I would like to extend an apology for the inconvenience this issue may have given you. I would further like to add if there are any additional issues please do not hesitate to call on me.

USPS then delivered mail to Klein and his wife until a subsequent one-time confrontation between one of Klein’s former neighbors and the USPS carrier.

Only after that unrelated conflict, and seemingly in retaliation, the localPostmasteratthetimecreatedthispretextfordeliveryrefusaltoKlein

 

 

(although the local Postmaster had previously informed Klein that he did not consider the road unsafe):

becauseofthewidthoftheroad,whichisasinglelaneroadand the carrier has been having trouble going down that driveway. Well he, he meets somebody, somebody, another neighbor down there and they get a big fight and nobody will back upand nobody will move and it just, it just got old and she um, neighborwentaroundhim,scratchedhercaronatreebranch or something then to try to give us the bill and we’re not allowed to back-up our vehicles whatsoever, but it’s just a mess down there and yeah, it does have to come out to the road.

Plaintiff Klein observed the unlawful conduct of his neighbor. Upon information and belief, the neighbor’s conduct violated Ohio law but USPS and its officials did not report the neighbor’s unlawful conduct to law enforcement agencies. Instead, USPS and its officials unlawfully deprived Klein of mail delivery service.

In October 2017, USPS stopped delivery of mail to Klein and his wife at 6500 Hillman Ridge Road. The USPS mail carrier at the time told Klein that the mail carrier had not had any accidents on the road, but he intimated that the former neighbor might continue to cause problems. The mail carrier expressed to Klein that he delivered mail on many similar narrow roads. Klein now has to drive 0.4 miles up the road from his home to retrieve his mailandhasa10-mileround-tripjourneyintoGeorgetown,Ohio,toretrieve parcels.UnderUSPSunlawfulthreat tohaveallhismaildesignated “Return

 

 

to Sender” if he did not relocate his mailbox 0.4 miles up Hillman Ridge Road, Klein involuntarily acquiesced.

USPS has not determined that the subject portion of Hillman Ridge Road has hazardous conditions. Since the time USPS first concluded Klein’s road was safe,but hence as eddelivery of mail to the properties, the road has been repaved, pull-overs added, trees and brush have been cleared, and the road is even safer than when USPS first authorized mail delivery to Klein’s property in 2015.

There are no reported vehicular accidents in the road’s history. FedEx, UPS, and other delivery vehicles continue to deliver to Klein’s home. The temporary Postmaster informed Klein in 2024 that Klein could restore the mailbox to the end of his driveway. The temporary Postmaster also said he did not consider theroad unsafe but subsequently claimed his carrier refused to travel the subject portion of the road and did not deliver mail to Klein until, under duress, Klein moved the mailbox back to the distant location. The temporary Postmaster claimed he was without authority to rectify the USPS delivery refusal.

USPS has never provided Klein a professionally-supported analytic evidence-based traffic engineering report justifying the USPS delivery refusal.TherearemanyUSPScustomersinBrownCountyandelsewhere

 

 

On October 18, 2024, USPS arbitrarily and capriciously, and withoutrational explanation and evidentiary justification, continued its ongoing refusal to deliver mail to Klein’s addresses. Nevertheless, USPS delivers mail to the properties of similarly situated individuals in Brown County, Ohio.

Klein’s request to USPS for mail service to the properties complies with all USPS General Guidelines and Policies for Rural Delivery.USPS touts its rural mail delivery:

Rural letter carriers perform a vital function in the United States Postal Service (USPS) serving thousands of families and businesses in rural and suburban areas while traveling millions of miles daily. Rural letter carriers are highly respected by the American public. This respect has been earned by many yearsof dedication to the Postal Service and to postal customers. During national and local emergencies, including prolonged periods of extreme weather conditions, rural carriers have demonstrated great responsibility in providing mail service to postal customers.

USPSfurthermandatesthatitslettercarriers:

 

Use ingenuity and knowledge of local roads to provide as complete service as possible when portions of the route cannot be traveled with the vehicle ordinarily used. However, you are not required to provide service if it would incur excessive expense, jeopardize your safety, or require undue physical strain.

Nevertheless, USPS continues to arbitrarily and capriciously, and otherwise contrary to law and without substantial evidence, except Klein from thisbeneficial and lawfully required USPS rural mail delivery. Delivering mailto the Klein properties does not subject USPS to excessive expense, safety risk, or undue physical strain. All other vendors and services deliver to Klein’s properties. Only USPS refuses, arbitrarily and selectively, contraryto how it treats similarly situated USPS customers. Klein filed the Complaint on November 22, 2024, and First Amended Complaint on March 9, 2025.RE# 13, PAGE ID # 46, et seq.USPS filed its Rule 12(b)(1) Motion to Dismiss on April 3, 2025, arguing that the district court lacked subject matter jurisdiction over Klein’s constitutional equal protection claim.USPS also reserved the right to argue to the Postal Regulatory Commission that the agency lacked jurisdiction over any claim Klein might file with the agency. Not only did the district court erroneously grant USPS’s 12(b)(1) Motion to Dismiss and conclude the district court lacked subject matter jurisdiction, then, after disclaiming subject matter jurisdiction, the district court improperly and superficially addressed the merits of Klein’s constitutional equal protection claim. Citing, in part, case law preceding Village of Willowbrook v. Olech, the district court sua sponte erroneously asserted jurisdiction over the merits of Klein’s equal protection claim and concluded that, as a matter of law, Klein did not, and could not, plead a constitutional equal protection claim against USPS.

The district court also cited an inapposite unpublished Order of this Court of Appeals affirming a district court dismissal of a complaint that (unlike the case at bar) did not allege USPS had acted selectively and arbitrarily against that citizen in deprivation of his individually enforceable constitutional equal protection rights.

Because the regulatory scheme created by Congress, as applied by the district court to Klein, deprives Klein of meaningful access to federal court judicial review of the constitutional equal protection claim, and the district court erred by granting the USPS Motion to Dismiss for lack of subject matter jurisdiction, Klein filed the Notice of Appeal to this Court on December 9, 2025.

The district court erred by overbroadly applying the doctrine of implied preemption of subject matter jurisdiction and by overbroadly applying 39 U.S.C. 3662 to bar the Klein Appellants from accessing meaningful judicial review for their constitutional claim.

 

 

As a matter of constitutional sense, a citizen of the United States has meaningful access to the federal judiciary to seek injunctive relief for an ongoing federal government deprivation of a constitutionally protected individual right.Other statutory procedural and substantive rights Congress may choose to provide individuals in the UnitedStates are inaddition to, not in derogation of, the individuals’ core constitutional right of meaningful access to the federal judiciary to enjoin ongoing unconstitutional federal government conduct.

Even without 28 U.S.C. 1331, an individual would have inherent access to the federal judiciary to seek injunctive relief against unconstitutional federal government conduct. The Constitution itself contemplatesjudicialenforcementofconstitutionallimits.Priorto28U.S.C. 1331, the federal judiciary applied its own inherent adjudicatory power pursuant to the letter and spirit of Marbury v. Madison and enjoined unconstitutional federal government executive conduct. Congress may create and channel statutory causes of action and Klein does not dispute that legislative power.But, considering the matrix of factors created by the Supreme Court, Congress has not impliedly preempted otherwise existing federal district court subject matter jurisdiction over Klein’s constitutional claim.

If Congress intends to displace federal court jurisdiction over an individual’s constitutional claims then Congress must be clear and unmistakable about its intent.The Supreme Court will not countenance casual implied preemption of the federal judiciary’s inherent constitutional authority to enjoin unconstitutional conduct by the federal government. Where, as here, PRC agency review is discretionary and not mandatory, review is delegated under a cryptic and limited regulatory scheme, agency review is for statutory questions, and appellate review is deferential to the agency and not de novo, the Supreme Court has not ratified the implied preemption of federal judiciary subject matter jurisdiction over claims for injunctive relief from ongoing unconstitutional conduct.

Congress did not, in 39 U.S.C. 3662 and 3663, clearly and affirmatively provide for meaningful and timely ArticleIII review of Klein’s constitutional claim for injunctive relief. In fact, USPS expressly reserved the right to object to PRC jurisdiction over Klein’s claim were Klein to file a complaint at the PRC.USPS Motion to Dismiss, RE# 16, PageID# 64.

It is common and normal for a citizen to have options in the face of government misconduct.For example, a citizen harmed by police excessive force may pursue administrative remedies, state remedies, or constitutional remedies. One does not foreclose the other. Another example is the government employment context where an aggrieved employee maypossibly have contract remedies or statutory remedies or constitutional claims. Zoning and land-use is another similar context with possible options.

 

 

Public utility regulation is yet another.Klein’s constitutional claim is not a creature of Congress.

The district court erroneously elevated the Congressional statutory PRCprocedureoverKlein’sconstitutionalrighttomeaningfulreviewbythe federal judiciary of the distinct injuries and separate questions under principles of constitutional law. Unlawful government conduct pursuant to regulatory standards is different than the government unconstitutionally singling out customers of services without a rational basis as in Village of Willowbrook v. Olech.

39 U.S.C. 3662 creates alimited and discretionary statutory procedure providingthatan interestedpersonwhobelieves USPSisviolatingahandful of specified statutes “may lodge a complaint with the Postal Regulatory Commission in such form and manner as the Commission may prescribe.” Congress conferred discretion on a claimant to choose whether to file a statutory claim at the PRC (“may”) and Congress also conferred discretion on the PRC whether to either begin proceedings or else dismiss the complaint (“either . . . “or”). Congress explicitly identified some possible remedies for the PRC and those explicit remedies bear no relationship whatsoever to the subject matter of Klein’s claim that USPS unconstitutionally deprived Klein of the right to equal protection under the laws: “ordering unlawful rates to be adjusted to lawful levels, ordering the cancellation of market tests, ordering the Postal Service to discontinue providing loss-making products, or requiring the Postal Service to make up for revenue shortfalls in competitive products.” Congress also conferred explicit authority on the PRC to order fines, a remedy that also does not provide the necessary relief to Klein.

In 39 U.S.C. 3663, Congress authorized a party adversely affected or aggrieved by a decision of the PRC to appeal to the United States Court of Appeals for the District of Columbia.That Court of Appeals must deferentially rule“onthebasis of therecord beforetheCommission [PRC].” Klein adds: “on the basis of the record [if any] before the Commission [PRC].”

Klein necessarily does not dispute the authority of Congress to createa statutory agency to hear statutory claims.But, Klein does not present a statutory claim.Klein disputes the district court’s application of 39 U.S.C. 3662and3663,anditsfocusonlimitedstatutoryclaims,todivestthedistrict court of subject matter jurisdiction over Klein’s constitutional claim for injunctive relief that USPS is unconstitutionally depriving Klein of the right to equal protection under the law by USPS’s ongoing intentional selective conduct. Constitutional injury exists independently of regulatory review.

 

created by each legislation, substituted for every claim concerning the respective agency’s action.The Supreme Court applied the Thunder Basin factors (discussed below) and concluded that each plaintiff had access to federal court to challenge the constitutional authority of each agency to proceed with its ongoing respective administrative enforcement action.

Concurring Justice Thomas, and separately concurring Justice Gorsuch, vigorously argued to retire the Thunder Basin factors. The Justices cautioned against judicial activism in overextending exceptions to the plain meaning of the subject matter jurisdiction conferred on the federal judiciary by 28U.S.C.1331.They advocated allowing plaintiffs meaningful access to the federal judiciary to challenge unlawful federal government conduct.³

 

3 Justice Gorsuch presented the appropriate framework for analysis. He emphasizes that 28 U.S.C. 1331 provides “Not may have jurisdiction, but shall.Not some civil actions arising under federal law, but all.The statute isasclear asstatutes get....”Axon,598 U.S.at205(emphasisinoriginal). Quoting Rosencrans v. United States, 165 U.S. 257, 262, 17 S.Ct. 302, 41 L.Ed. 708 (1897), Justice Gorsuch properly reminds that “statutes clearly defining the jurisdiction of courts . . . must control . . . in the absence of subsequent legislation equally express.”Axon at 208.He added (quoting Mimsv.ArrowFinancialServices,LLC,565U.S.368,383,132S.Ct.740,

181 L.Ed.2d 881 (2012)) that is why the Supreme Court has said that “jurisdiction conferred by 28 U.S.C. 1331 . . . should hold firm against mere implication[s].” Id. (emphasis added).

Justice Gorsuch left no doubt about the framework this Court of Appeals must apply when determining whether Klein has meaningful access to the federal judiciary to adjudicate the claim for injunctive relief that USPS is depriving Klein of the constitutional right to equal protection under the law:

 

 

The cryptic and superficial 39 U.S.C. 3662 and 3663 (and the Postal Regulatory Commission) are much more limited and discretionary than the two different broad statutory agency enforcement schemes under review in Axon and are very different than the expansive and detailed procedural and substantiveSECandFTCenforcementpowers.AxondemonstratesCongress does not have plenary constitutional authority to divest the citizenry of meaningful access to the federal judiciary for all claims against unlawful federal agency conduct. Klein’s claims here, albeit not the substantive equivalent of each “sweeping” claim in Axon the Supreme Court required to be heard on the merits in federal court, nevertheless raise constitutional issues of individual rights requiring meaningful access to the federal judiciary.

Unlike the case a tbar, the two matters consolidated in Axon originated as federal government administrative enforcement actions against an individual and against a corporation, respectively.The detailed regulatory schemes for each agency enforcement action in Axon bear no substantial resemblance to 39 U.S.C. 3662 and 3663.

 

“When Congress withholds jurisdiction, we must respect its choice.But when Congress grants jurisdiction to the Nation’s courts, we must respect that choice too. We have no authority to froth plain statutory text withfactors of our own design, all with an eye to denying some people the day in court the law promises them.”Id. at 217.

 

 

In Axon, the Supreme Court zeroed in on “covered cases” for a Congressionally-enacted regulatory scheme, 598 U.S. at 185, and emphasized: “But a statutory review scheme of that kind does notnecessarily extend to every claim concerning agency action.”Id.Stating this another way, the Court echoed the earlier Thunder Basin by reminding of an essential question:“whether the particular claims brought were ‘of the type Congress intended to be reviewed within this statutory structure.’”Id.,

p. 186.The Supreme Court concluded in Axon:“The claims are not ‘of the type’ the statutory review schemes reach . . . . A district court can therefore review them.” Id., p. 196.

The Supreme Court delineated the three applicable Thunder Basin factors: 1) could precluding district court jurisdiction “foreclose all meaningful judicial review” of the claim; 2) is the claim “wholly collateralto [the] statute’s review provisions”;and 3) is the claim “outside the agency’s expertise.” Id. The Court advised that “Congress rarely allows claims about agency action to escape effective judicial review,” while also acknowledging an agency often has a “heightened role in the matters it customarily handles, and can apply distinctive knowledge to.”Unlike a federal district court, the Postal Regulatory Commission does not customarily handle claims that USPS has deprived individuals of

In Elgin v. Department of Treasury, 567 U.S. 1, 132 S.Ct. 2126, 183 L.Ed.2d 1 (2012), an employment case, the Supreme Court held the district court lacked jurisdiction to hear a claim that the federal draft law was unconstitutional and directed the employee to the Merit Systems Protection Board (“MSPB”). The Supreme Court explained that the very comprehensive, integrated, and exclusive Civil Service Reform Act (“CSRA”), regulating all aspects of federal employment claims and remedies, required that employees raise all challenges to covered adverse employment actions—including constitutional challenges—in the

4 Having concluded that Congress channeled the mine operator to mandatory and exclusive agency review, the Supreme Court stated in passing that even though the general rule is that the constitutionality of congressional enactments is beyond the jurisdiction of administrative agencies, in that case the mine operator’s constitutional claim raised as a defense to the enforcement process could be “meaningfully addressed in the Court of Appeals.”510 U.S. at 215.However, the referenced constitutional claim in Thunder Basin arose as a defense within a comprehensive regulatory structure and a mandatory and exclusive enforcement proceeding. 39 U.S.C. 3663, by contrast, oversees PRC regulatory decisions, there is no comprehensive enforcement scheme, and nothing evidences that the D.C. Circuit serves as the sole forum for adjudicating constitutional claims arising independent of PRC authority. 39 U.S.C. 3663 has no nexus to a mandatory enforcement proceeding, no exclusivity language, no express displacement of district court jurisdiction, and no indication Congress intended that claims arising anywhere in the country of deprivation of the constitutional right to equal protection be funneled to the United States Court of Appeals for the District of Columbia.

 

 

administrative process, with judicial review available in the Federal Circuit. The same cannot reasonably and accurately be said of 39 U.S.C. 3662 and 3663.These statutes are not comprehensive, integrated, and exclusive in the way the CSRA is for federal employment. Unlike the CSRA in Elgin,39

U.S.C. 3662 and 3663 do not mandate that claimants raise constitutional deprivation claims before the PRC. Congress did not make PRC review exclusive or mandatory for Klein’s constitutional claim.

39 U.S.C. 3663, and its deferential appellate review of PRC rulings, does not justify implied preemption of federal district court subject matter jurisdiction over Klein’s claim that USPS is depriving him of the constitutional right to equal protection under the law. Appellate reviewunder 39U.S.C.3663 is derivativeof PRC statutory authority.The PRChas no jurisdiction over Klein’s claim that USPS is depriving Appellants of their constitutional right to equal protection and, consequently, neither does the Court of Appeals. The Court of Appeals for the District of Columbia may only review substantive issues the statute empowers the PRC to resolve and the agency actually resolves.American Library Association v. FCC, 406 F.3d 689, 698 (D.C. Cir. 2005)(an agency is a creature of statute); Aid Association for Lutherans v. USPS (321 F.3d 1166, 1173 (D.C. Cir. 2003)(USPS acts unlawfully if it exceeds its statutory authority). Moreover, 

The D.C. Circuit emphasized that in reviewing PRC decisions its role is confined to assessing whether the Commission acted “within the scope of its statutory authority.” GameFly, Inc. v. Postal Regulatory Commission,704 F.3d 145, 148 (D.C. Cir. 2013).39 U.S.C. 3662 allows (but does not even require) the PRC to decide issues of statutory compliance.The statute does not empower the PRC to decide constitutional violations and the agency will not create a record or issue a decision for Klein’s constitutional claim, the sole claim in the case at bar.

Without an express and sufficient statutory divestment of jurisdiction, 28 U.S.C. 1331 continues to govern federal court jurisdiction over ongoing claims for injunctive relief that the federal government is violating Klein’s right to equal protection under the law.The district court erred by concluding that 36 U.S.C. 3662 and 3663 impliedly preempted the Constitution and 28 U.S.C. 1331 and divested the district court of subject matter jurisdiction.

The district court erred by granting USPS’s 12(b)(1) Motion to Dismiss for lack of subject matter jurisdiction.

 

 

Respectfullysubmitted,

 

RichardGanulin,Esq.(0025642) Attorney at Law

3662KendallAvenue

Cincinnati,Ohio45208

(513)405-6696

 

 

 

 

 

RichardGanulin