Administrative Judge’s Order Rejecting Postal Service’s Encouraging of Claimants to Request Final Agency Decision

In response to the Administrative Judge’s February Order setting out a process to review claims by the use of Special Masters, the Postal Service filed a motion seeking to both delay the case and encourage as many class members as possible to withdraw from the case.

In particular, the Postal Service wanted to encourage claimants to request Final Agency Decisions (or FAD) in order to drop out of this case and start over.

On March 22, 2021, the Judge issued an Order squarely rejecting the Postal Service’s motion. The Judge’s Order explains that “the very question of FADs is premature, baffling and utterly irrelevant at this point.” The Judge emphasized that the Postal Service was required to wait for the Judge to issue a decision on claimant relief before issuing a FAD. The Judge’s Order says, “no claimant is entitled to a FAD until the AJ issues a decision on the disputed claims. Since no decision has been issued on any of the disputed claims, NO ONE IS ENTITLED TO A FAD. NO ONE SHOULD BE REQUESTING A FAD and THE AGENCY SHOULD NOT BE ISSUING FADs.”

The Judge went on to explain that although claimants themselves can seek a FAD and thus leave this case, the Judge also said it is:

unclear why any claimant would opt out of the class and seek a FAD. The purpose of this class action is to remedy a harm that has adversely affected over 28,000 individuals nationwide in the Postal Service. The value and strength of the lawsuit is that there are so many people who the Commission has found to have been harmed by the NRP. How is withdrawing from the class and requesting a FAD beneficial to the individual claimant (who risks getting nothing from the Agency) or to the class (whose numbers will quickly lessen)?

These are strong words from the Judge, indicating her resolve to push forward with the claims process as fast as possible.

On a related issue, a few claimants have asked if they can both request a FAD and still get the advantages of this case. The Judge answered this question explicitly, and the answer is “No.” The Judge noted that there are two ways this case will be resolved: (1) either through the special master process; OR (2) if a claimant opts out and seeks a FAD. However, the Judge emphasized the perils of seeking a FAD: “If a claimant seeks a FAD and gets nothing, the process of appeal and hearings and evidence starts all over again for that individual complaint and if there has been a settlement in the McConnell Class Action, said Complaint runs the risk of being foreclosed for any review of their claims or compensation from any prospective settlement.”

Although as discussed above the Judge did not think it was a good idea to opt-out of this case, she noted that people have the legal right to do so. The Judge set forth what the opt out claimant would need to expressly state in writing:

that claimant is aware that they are seeking a Final Agency Decision (FAD) on whether they are entitled to damages and to how much they are entitled, that the FAD may or may not be in their favor, and if so, claimant has the right to seek an appeal from OFO, said appeal may or may not be reviewed given that there is a McConnell Class Action Remedial Phase litigation. If claimant’s appeal is heard by OFO, the Agency’s decision can be upheld or the case can be remanded to an AJ in that claimant’s geographical area to determine damages.

As your attorneys, we agree with the Judge’s negative view of the opt-out process. We strongly recommend that you do not opt out of this process. As the Judge noted in her decision, “the value and strength of the lawsuit is that there are so many people who the Commission has found to have been harmed by the NRP.”