The policy covered all Postal Service-sponsored direct mail marketing pieces that communicate a co-branded offer by direct mail using the employee mailing list and via other internal employee communications vehicles. “The employee mailing list is derived from the Postal Service employee master file, which is the complete home address database of all career and non-career, full and part-time employees. The direct mail piece must be co-branded. Mailings may only use the Postal Service brand identity or Postal Service brand, or be co-branded, as expressly provided for in the agreement between the Postal Service and the business firm, and as approved by the manager of Brand Equity and Design.”
USPS recently announced:
“Effective immediately, Management Instruction AS-333-2004-7, Direct Marketing and Co-Branded Products and Services to Employees, is obsolete.”
This “Strategic Business Initiatives Plan, Management Instruction – AS-333-2004-7″ was at the center of a lawsuit filed in 2007 by a 10-year employee in Seattle, Washington. Over 100 Postal Employees had “opted-in” to join the complaint by claiming their rights under the Privacy Act were violated. Many of the Postal Employees were unaware the Management Instruction existed or Postal Employees could “opt-out” of the initiative. The class action lawsuit was dismissed by a District Court judge in late 2009.
The lawsuit accused USPS of selling the personal information of its workers to credit card and other companies without consent:
Postal Employees claimed that USPS violated the Privacy Act by selling its employee master file, containing personal, private employee information, including “the complete home address database of all career and non-career, full and part-time employees.
According to lawsuit, the Postal Service’s disclosure of information is evidenced by the Postal Service’s “Strategic Business Initiatives Plan, Management Instruction – AS-333-2004-7,” a postal regulation that allows private corporations to submit competitive bids for co-branding and other types of marketing agreements using the employee master file. Postal Employees complained that all of this is done without the Postal Service employee’s approval, consent, or knowledge. They also argued that the Postal Service received more than $8.5 million in profit by selling its employee master file.
The Postal Service admitted that it engaged in direct marketing of co-branded products and services to its employees but their actions does not violate the Privacy Act. The Postal Service argued in part the lawsuit should be dismissed because (1) it is an improper challenge to a Postal Service regulation, i.e., the “Strategic Business Initiatives Plan, Management Instruction – AS-333-2004-7,” ; (2) it arises out of Postal Employees’ employment relationship with the Postal Service; and (3) there is no clearly defined independent cause of action for unjust enrichment under federal common law.
The court finds Plaintiffs’ attempt to circumvent the prohibition against challenging a Postal Service regulation by contending that they are not challenging the regulation itself, but the profits received from enacting the regulation, to amount to a distinction without a difference. The core of Plaintiffs’ claim against the Postal Services is its enactment and implementation of the Management Instruction. Accordingly, the court concludes that Plaintiffs’ claim of unjust enrichment is a direct challenge to the Postal Service’s Management Instruction – the regulation granting it authority to enter into the co-branding agreements – and therefore there is no waiver of the Postal Service’s sovereign immunity for this remaining claim. Accordingly, the court concludes that it does not have jurisdiction to adjudicate Plaintiffs’ unjust enrichment claim based on a Postal Service regulation.
For the reasons stated GRANTS the Postal Service’s motion to dismiss (Dkt. # 55). The court DISMISSES Plaintiffs’ complaint against the Postal Service