USPS dismisses Boston City Council subpoena and refuses to testify on late mail concerns

After blowing off an emergency hearing last month, the U.S. Postal Service said that it would not be complying with a Boston City Council subpoena to testify at Wednesday’s follow-up hearing on late mail, leading to an abrupt cancellation.

The snub was laid out in a letter sent to the City Council Tuesday by Nathan Solomon, USPS chief counsel, who said the body’s “request for testimony” from Boston Postmaster Joshua Balcunas “does not comply with applicable federal regulations” and that Balcunas would not be testifying at the hearing. It was later canceled.

Further, Solomon wrote, in a letter obtained by the Herald, the City Council likely has little to no legal authority to pursue enforcement action for the Postal Service’s failure to comply with its subpoena, such as fines or penalties for defaults.

“Federal courts have routinely held that state entities, including state courts, lack the authority to compel federal agencies and their employees to testify in state proceedings,” he wrote. “The Postal Service is an independent establishment of the executive branch of the Government of the United States of America and sovereign immunity and federal supremacy defenses are available with respect to enforcement of subpoenas issued by state entities.”

Solomon said the availability of Postal testimony is governed by regulations, “which are designed to minimize the disruption of postal operations, and “the validity of federal regulations restricting the testimony of federal employees has been upheld by the United States Supreme Court.”

A request must state “the nature of the testimony, describe its relevance to the proceeding, and explain why the information sought through this testimony is not available through any other means.”

“As the General Counsel’s designee … I do not authorize Postmaster Balcunas to testify because the request for testimony does not comply with the applicable regulations, and because authorizing testimony would be contrary to the interests of the Postal Service,”  Solomon wrote.

“Although your request for testimony indicates that it seeks information related to ‘inadequate delivery services by the United States Postal Service within Mission Hill and other Boston neighborhoods,’ it fails to explain the relevance of this information to the City Council’s work and why this information is unavailable through other means.”

Solomon noted that the City Council could have looked to the USPS website, which lists “various root causes of service delays,” to obtain the answers it was seeking from postmaster testimony. He also refuted late mail complaints by saying on-time delivery in the Massachusetts-Rhode Island District is “solid and stable.”

The City Council, led by Councilors Sharon Durkan and Liz Breadon, issued a rare subpoena last month to compel testimony from the Boston postmaster, a power that is spelled out in the Boston City Charter and City Council rules, enshrined in state law and is among the body’s most powerful tools.

“I’m a little surprised that this Council, it’s better than the previous Council for sure, but nevertheless I think they should understand the subpoena power is to be used very rarely,” Michael McCormack, an attorney who served five terms on the City Council, said. “It’s not something to either do, or threaten, because you can.”