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04/28/87 National Newspaper v. United States Postal

April 28, 1987

NATIONAL NEWSPAPER ASSOCIATION, ET AL., PETITIONERS

v.

UNITED STATES POSTAL SERVICE, RESPONDENT MAGAZINE PUBLISHERS ASSOCIATION, INTERVENOR; NATIONAL

NEWSPAPER ASSOCIATION, ET AL., APPELLANTS

v.

UNITED STATES POSTAL SERVICE, APPELLEE 1987.CDC.176 DATE FILED: APRIL 28, 1987



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Rules of the District of Columbia Circuit Court of Appeals may limit citation of unpublished opinions. Please refer to the Rules of the United States Court of Appeals for this Circuit.

Petition for Review of an Order of the United States Postal Service.

Appeal from the United States District Court for the District of Columbia.

September Term, D.C. Civil No. 86-0613.

APPELLATE PANEL:

WALD,* Chief Judge, and BORK and BUCKLEY, Circuit Judges. I.

Petitioners in No. 86-1161 and appellants in No. 86-5160 are the same parties, namely, organizations and individuals who mail periodicals at special rates subsidized by the federal government. These organizations and individuals (together "petitioners") contend that the Governors of the Postal Service ("Governors") unlawfully raised these rates without consulting the Postal Rates Commission ("Commission"), and request that the court set aside the rate increase. Because they were uncertain where jurisdiction would lie to review the Governors' rate increase order, petitioners filed a petition for review in this court and a complaint in the district court presenting the same claim. After the district court dismissed their complaint for want of subject matter jurisdiction, petitioners appealed and we consolidated the appeal and the petition for review. Because of intervening congressional action we not dismiss both on grounds of mootness. II.

Petitioners base their claim on the Postal Reorganization Act of 1970, Pub. L. No. 91-375, ) 2, 84 Stat. 719 (codified as amended at title 39 of U.S.C. (1982 & Supp. III 1985)) (the "Act"). The Act establishes both the Governors and the Commission within the Postal Service, and divides between them the power to set postage rates. It provides that "the Governors are authorized to establish reasonable and equitable classes of mail and reasonable and equitable rates of postage and fees for postal services in accordance with the provisions of this chapter." 39 U.S.C. § 3621 (1982). Petitioners' argument turns on the meaning of the phrase "in accordance with the provisions of this chapter." Section 3622 of the Act directs the Commission to recommend any necessary changes in rates, and section 3625 provides that "the Governors may approve, allow under protest, reject, or modify [the Commission's recommendation] in accordance with the provisions of this section." 39 U.S.C. §§ 3622 and 3625 (1982).

The rate increase petitioners challenge concerns rates for mailings within the same county ("in-county rates"), and mailings by "nonprofit" organizations ("nonprofit rates"). Congress failed to appropriate all the funds requested by the Postal Service for in-county and nonprofit rates for fiscal year 1986. On March 4, 1986, after the President had ordered a further reduction in Postal Service funding, the Governors unilaterally approved Resolution 86-6, which increased nonprofit and in-county rates. Joint Brief for Petitioners and Appellants, Appendix 1.

Petitioners charge that the Governors illegally raised in-county and nonprofit rates because they did so without first receiving recommendations from the Commission. They request that the court set aside Resolution 86-6, and that it do so expeditiously. Joint Brief for Petitioners and Appellants at 34. An expeditious determination is necessary, they contend, because 39 U.S.C. § 3681 (1982) may preclude reimbursement of any rates found to have been excessive. While the case was pending, however, Congress enacted an appropriations bill pertaining to in-county and nonprofit mail rates, and the court ordered supplemental briefing on the significance of that action.

Congress appropriated $650 million "for revenue forgone on free and reduced rate mail" in fiscal year 1987. Postal SErvice Appropriations Act of 1987, Pub. L. No. 99-591, tit. II (Appendix to Supplemental Brief for Postal Service ("Appendix") at 12). That figure had been proposed by the Senate. 132 Cong. Rec. H10893 (daily ed. Oct. 15, 1986) (Appendix at 10). The House appropriations plan "ha[d] included that a mount, plus the $40,049,000 requested to fund previously unfunded liabilities of the former Post Office Department [relating to employee obligations]." S. Rep. No. 406, 99th Cong., 2d Sess. 28 (1986) (Appendix at 6). The Senate agreed to the $650 million figure, but proposed that the $40 million requested for satisfaction of pre-existing liabilities be "deferred." Id.

The Senate prevailed. With the reluctant agreement of the House, Congress specifically targeted the $650 million appropriation solely "to be applied to maintain postage rates for free and reduced rate mail at their current levels." Id. The "current levels" are those which the petitioners are challenging. The rate chart attached to the Senate Report contains exactly the same figures appearing in the Postal Service's estimate of funding necessary to maintain the rates unilaterally approved by the Governors. Id. (Appendix at 7). III.

In its supplemental brief, the Postal Service argues that setting aside the Governors' order can no longer remedy petitioners' alleged injury because Congress has approved the new rates established by the Governors. Supplemental Brief for Postal Service at 4-6. We agree that Congress' actions require us to decide against petitioners, but we do not rule on whether Congress has sanctioned the Governors' rate increase order.

If the court had set aside Resolution 86-6 last summer, by operation of law the resulting preferred rates would have been the rates in effect just before the Governors' rate increase. Thus petitioners would have received the benefit of reduced rates at a time when Congress had not placed restrictions on the ability of the Postal Service to adjust to those rates. The action since taken by Congress, however, denies the Postal Service the appropriation authority to allocate more than $650 million to preferred rates this fiscal year for the purpose of subsidizing rates lower than those approved ...


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