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Decades-old loophole lets Postal Service escape the law

Given declining consumer marks on “recent USPS delivery performance” for three years in a row, the service needs to shore up its credibility.

Delivery vehicles parked at the United States Post

Delivery vehicles parked at the United States Post Office in downtown Fort Collins, Colorado on Aug. 16, 2013. Photo Credit: Getty Images / RiverNorthPhotography

For public safety organizations such as the Buck Creek Fire Department, hosting and getting the word out on fundraisers is key to serving the public. Even a seemingly simple event requires the coordination of vendors and service providers able to follow through on their promises.

In this case, one key provider, the U.S. Postal Service, dropped the ball. The service failed to mail all of the fliers for the event, despite the fire department spending nearly $4,000 in printing and postage costs. According to event organizer Lisa Spitznagle, “Certain people are not getting these fliers and this is years in the making … they are just not getting them delivered and multiple people in the same area.”

If a paper printing company agreed to print fliers for the event, accepted payment, and didn’t follow through on the job, the breach of contract would naturally have legal consequences.

But despite thousands of dollars in lost fundraising money, the fire department — or any group in a similar situation — can’t take the Postal Service to task for breaking delivery promises. Like most of the federal government, the service uses something called “sovereign immunity” to shield itself from legal claims. But unlike most of the government, the Postal Service conducts itself as a business with regular, paying consumers (even using “.com” rather than “.gov” in their web address).

Continuing to shield the service from liability is not only bad for consumers and taxpayers but also bad for the service itself. Without any exposure to the law, America’s mail carrier has little incentive to do better.

As a pseudo-agency of the federal government, the Postal Service can claim sovereign immunity should a consumer try to take them to court. This isn’t always the case; physical damages resulting from a postal vehicle collision (or any federal vehicle) would fall under the “tort” section of the Federal Tort Claims Act. But any sort of negligence, miscarriage, and/or loss of mail is simply not open to legal liability. This goes above and beyond understandable delivery/handling issues, such as weather and infrastructure problems.

When the Postal Service lost a package containing expensive jewelry, watches and baseball cards, an ensuing lawsuit was dropped because, well, the government cannot be sued without its consent. In this particularly bizarre case, a houseguest of the claimant stole the items from his home, and immediately shipped them via the Postal Service. While the service was able to intercept the items, it subsequently lost track of the package, costing the claimant thousands of dollars. Here, especially, the tired refrain of “expensive parcels should be insured” doesn’t hold up.

The service urges consumers to buy indemnity insurance for “security and peace of mind when you send a valuable item through the mail” but insurance covers the value of items lost and neglects additional costs that come with items being delivered late. A late mail piece can mean frayed business dealings, lost credibility, and ruined relationships, which have very real consequences for the hapless sender. Only a legal proceeding can remedy these indirect damages, a recourse that hundreds of millions of postal consumers simply don’t have.

Beyond that, the logic of forcing consumers to rely on insurance in the absence of legal protection is deeply troubling. Despite consumers paying for postage, the Postal Service is essentially telling senders that it’s still their responsibility that packages get from Point A to Point B in a timely manner.

Consumers don’t even have a reliable way of knowing the chances that their mail will reach its destination. The service fails to keep consistent, reliable public records on lost mail, though the Postal Regulatory Commission reported in 2012 that the “lost mail volume is 1.7 percent.”

The service does report on-time percentages for different mail categories, but the results are disappointing. Packages and three-to-five-day first-class mail are on time less than 90 percent of the time (as of fiscal year 2017). And, after an inspector general report last year finding that the Postal Service understated delayed mail by 2 billion pieces, even these figures are hard to trust.

Given declining consumer marks on “recent USPS delivery performance” for three years in a row, the service needs to shore up its credibility. To restore the public’s trust in the service and increase business over the long run, Congress can change the law and expose the agency to negligence claims. By ending the Federal Tort Claims Act’s exception for “negligent transmission,” Congress can do right by consumers and the service itself. The threat of the law, after all, is a powerful motivator to do better.

Ross Marchand is the director of policy for the Taxpayers Protection Alliance. He wrote this for InsideSources.com.

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