39 U.S.C. § 409 — Suits by and against the Postal Service

Page 22 TITLE 39—POSTAL SERVICE § 408 and undistorted competition between United States and foreign merchants. Such efforts include: (i) ensuring that rates charged for delivery of foreign- origin mail containing goods do not favor foreign mail- ers over domestic mailers; (ii) setting rates charged for delivery of foreign-ori- gin mail in a manner that does not favor postal opera- tors over non-postal operators; and (iii) ensuring the collection of advance electronic cus- toms data. SEC. 3. Relations with the UPU. (a) The United States must seek reforms to the UPU that promote the poli- cies outlined in this memorandum. Such reforms shall provide for: (i) a system of fair and nondiscriminatory rates for goods that promotes unrestricted and undistorted com- petition; and (ii) terminal dues rates that: (A) fully reimburse the USPS for costs to the same extent as domestic rates for comparable services; (B) avoid a preference for inbound foreign small packages containing goods that favors foreign mail- ers over domestic mailers; and (C) avoid a preference for inbound foreign small packages containing goods that favors postal opera- tors over private-sector entities providing transpor- tation services. (b) If negotiations at the UPU’s September 2018 Sec- ond Extraordinary Congress in Ethiopia fail to yield re- forms that satisfy the criteria set forth in subsection (a) of this section, the United States will consider tak- ing any appropriate actions to ensure that rates for the delivery of inbound foreign packages satisfy those cri- teria, consistent with applicable law. SEC. 4. Actions by the Secretary. (a) The Secretary shall notify the Director General of the UPU of the policies and intentions of the United States described in this memorandum. (b) The Secretary or his designee shall, consistent with 39 U.S.C. 407(b)(1), seek agreement on future Con- vention texts that comport with the policies of this memorandum in meetings of the UPU, including at the September 2018 Extraordinary Congress. (c) No later than November 1, 2018, the Secretary shall submit to the President a report summarizing the steps being taken to implement this memorandum. If the Secretary determines that sufficient progress on re- forms to promote compatibility of the Acts of the UPU with the policy of this memorandum is not being achieved, the Secretary shall include recommendations for future action, including the possibility of adopting self-declared rates. SEC. 5. General Provisions. (a) Nothing in this memo- randum shall be construed to impair or otherwise af- fect: (i) the authority granted by law to an executive de- partment or agency, or the head thereof; or (ii) the functions of the Director of the Office of Man- agement and Budget relating to budgetary, administra- tive, or legislative proposals. (b) This memorandum shall be implemented con- sistent with applicable law and subject to the avail- ability of appropriations. (c) This memorandum is not intended to, and does not, create any right or benefit, substantive or proce- dural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. (d) The Secretary is authorized and directed to pub- lish this memorandum in the Federal Register. DONALD J. TRUMP. § 408. International money-order exchanges The Postal Service may make arrangements with other governments, with which postal con- ventions are or may be concluded, for the ex- change of sums of money by means of postal or- ders. It shall fix limitations on the amount which may be so exchanged and the rates of ex- change. (Pub. L. 91–375, Aug. 12, 1970, 84 Stat. 725.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective July 1, 1971, pursuant to Resolution No. 71–9 of the Board of Governors. See section 15(a) of Pub. L. 91–375, set out as a note preceding section 101 of this title. § 409. Suits by and against the Postal Service (a) Except as otherwise provided in this title, the United States district courts shall have original but not exclusive jurisdiction over all actions brought by or against the Postal Serv- ice. Any action brought in a State court to which the Postal Service is a party may be re- moved to the appropriate United States district court under the provisions of chapter 89 of title 28. (b) Unless otherwise provided in this title, the provisions of title 28 relating to service of proc- ess, venue, and limitations of time for bringing action in suits in which the United States, its officers, or employees are parties, and the rules of procedure adopted under title 28 for suits in which the United States, its officers, or employ- ees are parties, shall apply in like manner to suits in which the Postal Service, its officers, or employees are parties. (c) The provisions of chapter 171 and all other provisions of title 28 relating to tort claims shall apply to tort claims arising out of activi- ties of the Postal Service. (d)(1) For purposes of the provisions of law cited in paragraphs (2)(A) and (2)(B), respec- tively, the Postal Service— (A) shall be considered to be a ‘‘person’’, as used in the provisions of law involved; and (B) shall not be immune under any other doctrine of sovereign immunity from suit in Federal court by any person for any violation of any of those provisions of law by any officer or employee of the Postal Service. (2) This subsection applies with respect to— (A) the Act of July 5, 1946 (commonly re- ferred to as the ‘‘Trademark Act of 1946’’ (15 U.S.C. 1051 and following)); and (B) the provisions of section 5 of the Federal Trade Commission Act to the extent that such section 5 applies to unfair or deceptive acts or practices. (e)(1) To the extent that the Postal Service, or other Federal agency acting on behalf of or in concert with the Postal Service, engages in con- duct with respect to any product which is not reserved to the United States under section 1696 of title 18, the Postal Service or other Federal agency (as the case may be)— (A) shall not be immune under any doctrine of sovereign immunity from suit in Federal court by any person for any violation of Fed- eral law by such agency or any officer or em- ployee thereof; and (B) shall be considered to be a person (as de- fined in subsection (a) of the first section of the Clayton Act) for purposes of— Page 23 TITLE 39—POSTAL SERVICE § 409 (i) the antitrust laws (as defined in such subsection); and (ii) section 5 of the Federal Trade Commis- sion Act to the extent that such section 5 applies to unfair methods of competition. For purposes of the preceding sentence, any pri- vate carriage of mail allowable by virtue of sec- tion 601 shall not be considered a service re- served to the United States under section 1696 of title 18. (2) No damages, interest on damages, costs or attorney’s fees may be recovered, and no crimi- nal liability may be imposed, under the anti- trust laws (as so defined) from any officer or em- ployee of the Postal Service, or other Federal agency acting on behalf of or in concert with the Postal Service, acting in an official capacity. (3) This subsection shall not apply with re- spect to conduct occurring before the date of en- actment of this subsection. (f)(1) Each building constructed or altered by the Postal Service shall be constructed or al- tered, to the maximum extent feasible as deter- mined by the Postal Service, in compliance with 1 of the nationally recognized model building codes and with other applicable nationally rec- ognized codes. (2) Each building constructed or altered by the Postal Service shall be constructed or altered only after consideration of all requirements (other than procedural requirements) of zoning laws, land use laws, and applicable environ- mental laws of a State or subdivision of a State which would apply to the building if it were not a building constructed or altered by an estab- lishment of the Government of the United States. (3) For purposes of meeting the requirements of paragraphs (1) and (2) with respect to a build- ing, the Postal Service shall— (A) in preparing plans for the building, con- sult with appropriate officials of the State or political subdivision, or both, in which the building will be located; (B) upon request, submit such plans in a timely manner to such officials for review by such officials for a reasonable period of time not exceeding 30 days; and (C) permit inspection by such officials dur- ing construction or alteration of the building, in accordance with the customary schedule of inspections for construction or alteration of buildings in the locality, if such officials pro- vide to the Postal Service— (i) a copy of such schedule before construc- tion of the building is begun; and (ii) reasonable notice of their intention to conduct any inspection before conducting such inspection. Nothing in this subsection shall impose an ob- ligation on any State or political subdivision to take any action under the preceding sen- tence, nor shall anything in this subsection re- quire the Postal Service or any of its contrac- tors to pay for any action taken by a State or political subdivision to carry out this sub- section (including reviewing plans, carrying out on-site inspections, issuing building per- mits, and making recommendations). (4) Appropriate officials of a State or a polit- ical subdivision of a State may make rec- ommendations to the Postal Service concerning measures necessary to meet the requirements of paragraphs (1) and (2). Such officials may also make recommendations to the Postal Service concerning measures which should be taken in the construction or alteration of the building to take into account local conditions. The Postal Service shall give due consideration to any such recommendations. (5) In addition to consulting with local and State officials under paragraph (3), the Postal Service shall establish procedures for soliciting, assessing, and incorporating local community input on real property and land use decisions. (6) For purposes of this subsection, the term ‘‘State’’ includes the District of Columbia, the Commonwealth of Puerto Rico, and a territory or possession of the United States. (g)(1) Notwithstanding any other provision of law, legal representation may not be furnished by the Department of Justice to the Postal Service in any action, suit, or proceeding aris- ing, in whole or in part, under any of the fol- lowing: (A) Subsection (d) or (e) of this section. (B) Subsection (f) or (g) of section 504 (relat- ing to administrative subpoenas by the Postal Regulatory Commission). (C) Section 3663 (relating to appellate re- view). The Postal Service may, by contract or other- wise, employ attorneys to obtain any legal rep- resentation that it is precluded from obtaining from the Department of Justice under this para- graph. (2) In any circumstance not covered by para- graph (1), the Department of Justice shall, under section 411, furnish the Postal Service such legal representation as it may require, except that, with the prior consent of the Attorney General, the Postal Service may, in any such cir- cumstance, employ attorneys by contract or otherwise to conduct litigation brought by or against the Postal Service or its officers or em- ployees in matters affecting the Postal Service. (3)(A) In any action, suit, or proceeding in a court of the United States arising in whole or in part under any of the provisions of law referred to in subparagraph (B) or (C) of paragraph (1), and to which the Commission is not otherwise a party, the Commission shall be permitted to ap- pear as a party on its own motion and as of right. (B) The Department of Justice shall, under such terms and conditions as the Commission and the Attorney General shall consider appro- priate, furnish the Commission such legal rep- resentation as it may require in connection with any such action, suit, or proceeding, except that, with the prior consent of the Attorney General, the Commission may employ attorneys by contract or otherwise for that purpose. (h) A judgment against the Government of the United States arising out of activities of the Postal Service shall be paid by the Postal Serv- ice out of any funds available to the Postal Service, subject to the restriction specified in section 2011(g). (Pub. L. 91–375, Aug. 12, 1970, 84 Stat. 725; Pub. L. 97–258, § 2(k), Sept. 13, 1982, 96 Stat. 1062; Pub. L. Page 24 TITLE 39—POSTAL SERVICE § 410 1 See References in Text note below. 109–435, title IV, § 404, Dec. 20, 2006, 120 Stat. 3227.) HISTORICAL AND REVISION NOTES 1982 ACT Revised section Source (U.S. Code) Source (Statutes at Large) 409(e) ...... 31:724a (last sentence). July 27, 1956, ch. 748, 70 Stat. 678, § 1302 (last sentence); added Aug. 12, 1970, Pub. L. 91–375, § 6(l)(3), 84 Stat. 782. The words ‘‘Notwithstanding the other provisions of this section’’ are omitted as unnecessary. Editorial Notes REFERENCES IN TEXT The Act of July 5, 1946, referred to in subsec. (d)(2)(A), is act July 5, 1946, ch. 540, 60 Stat. 427, popularly known as the Trademark Act of 1946 and also as the Lanham Act, which is classified generally to chapter 22 (§ 1051 et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note set out under section 1051 of Title 15 and Tables. Section 5 of the Federal Trade Commission Act, re- ferred to in subsecs. (d)(2)(B) and (e)(1)(B)(ii), is classi- fied to section 45 of Title 15, Commerce and Trade. The first section of the Clayton Act, referred to in subsec. (e)(1)(B), is classified to section 12 of Title 15, Commerce and Trade, and section 53 of Title 29, Labor. The date of enactment of this subsection, referred to in subsec. (e)(3), is the date of enactment of Pub. L. 109–435, which was approved Dec. 20, 2006. AMENDMENTS 2006—Subsec. (a). Pub. L. 109–435, § 404(b), substituted ‘‘Except as otherwise provided in this title,’’ for ‘‘Ex- cept as provided in section 3628 of this title,’’. Subsecs. (d) to (h). Pub. L. 109–435, § 404(a), added sub- secs. (d) to (h) and struck out former subsecs. (d) and (e), which read as follows: ‘‘(d) The Department of Justice shall furnish, under section 411 of this title, the Postal Service such legal representation as it may require, but with the prior consent of the Attorney General the Postal Service may employ attorneys by contract or otherwise to con- duct litigation brought by or against the Postal Serv- ice or its officers or employees in matters affecting the Postal Service. ‘‘(e) A judgment against the Government of the United States arising out of activities of the Postal Service shall be paid by the Postal Service out of any funds available to the Postal Service.’’ 1982—Subsec. (e). Pub. L. 97–258 added subsec. (e). Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective July 1, 1971, pursuant to Resolution No. 71–9 of the Board of Governors. See section 15(a) of Pub. L. 91–375, set out as a note preceding section 101 of this title. § 410. Application of other laws (a) Except as provided by subsection (b) of this section, and except as otherwise provided in this title or insofar as such laws remain in force as rules or regulations of the Postal Service, no Federal law dealing with public or Federal con- tracts, property, works, officers, employees, budgets, or funds, including the provisions of chapters 5 and 7 of title 5, shall apply to the ex- ercise of the powers of the Postal Service. (b) The following provisions shall apply to the Postal Service: (1) section 552 (public information), section 552a (records about individuals), section 552b (open meetings), section 3102 (employment of personal assistants for blind, deaf, or other- wise handicapped employees), section 3110 (re- strictions on employment of relatives), section 3333 and chapters 72 (antidiscrimination; right to petition Congress) and 73 (suitability, secu- rity, and conduct of employees), section 5520 (withholding city income or employment taxes), and section 5532 1 (dual pay) of title 5, except that no regulation issued under such chapters or section shall apply to the Postal Service unless expressly made applicable; (2) all provisions of title 18 dealing with the Postal Service, the mails, and officers or em- ployees of the Government of the United States; (3) section 107 of title 20 (known as the Ran- dolph-Sheppard Act, relating to vending ma- chines operated by the blind); (4) the following provisions of title 40: (A) sections 3114–3116, 3118, 3131, 3133, and 3141–3147; and (B) chapters 37 and 173; (5) chapters 65 and 67 of title 41; (6) sections 2000d, 2000d–1—2000d–4 of title 42 (title VI, the Civil Rights Act of 1964); (7) section 19 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 668); (8) the provisions of the Act of August 12, 1968 (42 U.S.C. 4151–4156); (9) chapter 39 of title 31; (10) chapter 4 of title 5; and (11) section 5520a of title 5. (c) Subsection (b)(1) of this section shall not require the disclosure of— (1) the name or address, past or present, of any postal patron; (2) information of a commercial nature, in- cluding trade secrets, whether or not obtained from a person outside the Postal Service, which under good business practice would not be publicly disclosed; (3) information prepared for use in connec- tion with the negotiation of collective-bar- gaining agreements under chapter 12 of this title or minutes of, or notes kept during, nego- tiating sessions conducted under such chapter; (4) information prepared for use in connec- tion with proceedings under chapter 36 of this title; (5) the reports and memoranda of consult- ants or independent contractors except to the extent that they would be required to be dis- closed if prepared within the Postal Service; and (6) investigatory files, whether or not con- sidered closed, compiled for law enforcement purposes except to the extent available by law to a party other than the Postal Service. (d)(1) A lease agreement by the Postal Service for rent of net interior space in excess of 6,500 square feet in any building or facility, or part of a building or facility, to be occupied for pur- poses of the Postal Service shall include a provi- sion that all laborers and mechanics employed in the construction, modification, alteration, re-