U.S. Postal Serv. v. Postal Regulatory Comm'n, 15-1297
| Decision Date | 15 November 2016 |
| Docket Number | No. 15-1297,15-1297 |
| Citation | 841 F.3d 509 |
| Parties | United States Postal Service, Petitioner v. Postal Regulatory Commission, Respondent Alliance of Nonprofit Mailers, et al., Intervenors |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
David C. Belt, Attorney, United States Postal Service, argued the cause and filed briefs for the petitioner. Stephan J. Boardman, Chief Counsel, United States Postal Service, entered an appearance.
Daniel Tenny, Attorney, United States Department of Justice, argued the cause for the respondent. Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Michael S. Raab, Attorney, David A. Trissell, General Counsel, Postal Regulatory Commission, Christopher J. Laver and Anne J. Siarnacki, Deputy General Counsels and Elisabeth S. Shellan, Attorney were with him on brief.
David M. Levy, Matthew D. Field, Ian D. Volner, Washington, DC, Jeremiah L. Morgan and William J. Olson, Vienna, VA, were on brief for the mailer intervenors in support of the Postal Regulatory Commission.
Before: Henderson and Griffith, Circuit Judges, and Williams, Senior Circuit Judge.
, Circuit Judge:
The Postal Accountability and Enhancement Act of 2006 authorizes the Postal Regulatory Commission (Commission) to regulate the rates of the United States Postal Service's (Postal Service) market-dominant products. See 39 U.S.C. §§ 3621
–29. Although annual price increases for these products are generally capped at the rate of inflation, the Commission is permitted to approve raising rates above this mark “on an expedited basis due to either extraordinary or exceptional circumstances.” Id. § 3622(d)(1)(E). In Order No. 1926,1 the Commission—recognizing that the Great Recession of 2008 was just such an exigent circumstance—allowed for a rate increase but also sought to calculate the extent to which decreased mail volume was “due to” the economic downturn in order to determine how long that rate increase should remain in effect. As part of its inquiry, the Commission created a “new normal” test to determine when the “extraordinary or exceptional circumstances” no longer supported a rate increase. In an earlier case, the Postal Service had petitioned this Court for review of that “new normal” test and we upheld the Commission's approach as “well reasoned and grounded in the evidence before the Commission ... [and] comfortably pass[ing] deferential APA review.” All. of Nonprofit Mailers v. Postal Regulatory Comm'n , 790 F.3d 186, 196 (D.C. Cir. 2015)
. The Postal Service sought reconsideration, claiming that the Commission “altered its original decision” by “changing the meaning and role of the ‘ability to adjust’ element of its [‘new normal’] test,” Pet'r Reply Br. 7, and, in Order No. 2623,2 the Commission denied that request. Because the Commission's denial of reconsideration is unreviewable, we dismiss the Postal Service's petition for lack of jurisdiction. Entravision Holdings, LLC v. FCC , 202 F.3d 311, 313 n.2 (D.C. Cir. 2000).
The Postal Service first requested an above-CPI–U rate increase in July 2010 as it sought to make up for substantial losses resulting from the “dramatic, rapid and unprecedented decline in mail volume” caused by the Great Recession. See U.S. Postal Serv. v. Postal Regulatory Comm'n , 640 F.3d 1263, 1265 (D.C. Cir. 2011)
(internal quotation marks omitted). Although the Commission agreed that “the recent recession, and the decline in mail volume experienced during the recession” qualified as an “extraordinary or exceptional circumstance,” it nonetheless denied the Postal Service's request for an above-CPI–U rate increase because it found that the Postal Service had failed to quantify properly its losses “due to” the recession with particularity. See Postal Regulatory Commission, Order Denying Request for Exigent Rate Adjustments, Order No. 547, Docket No. R2010–4, at 3–4 (Sept. 30, 2010). This Court disagreed with the latter portion of the Commission's analysis, finding that, although “the plain meaning of ‘due to’ mandates a causal relationship between the amount of a requested adjustment and the exigent circumstances' impact on the Postal Service,” the Act is ambiguous as to “how close the relationship must be.” 640 F.3d at 1267–68. We remanded the case to the Commission to fill that statutory gap, which it did in Order No. 864. See Postal Regulatory Commission, Order Resolving Issues on Remand, Order No. 864, Dkt. No. R2010–4R, at 25 (Sept. 20, 2011) ().
In September 2013, the Postal Service renewed its request for an above-CPI–U rate increase, seeking a 4.3% price hike for an indefinite period of time. In Order No. 1926, the Commission granted the Postal Service's request in part. Order No. 1926, Docket No. R2013–11. The Commission reaffirmed that the Great Recession constituted an exigent circumstance warranting a rate increase but it still disagreed with the Postal Service on the extent to which mail volume losses had been caused by the economic downturn. See id. at 44. Thus, the Commission allowed the 4.3% above-CPI–U rate increase to remain in effect for only so long as necessary for the Postal Service to recover $2.8 billion. Id. at 181.
The rationale underlying the Commission's decision in Order No. 1926 was twofold. First, the Commission determined that mail volume losses could not be considered “due to” the economic downturn once a “new normal” in operational levels was achieved. See id. at 83–94. The related “new normal” test, in turn, examined four factors:
(1) the disruption to a sufficient number of relevant macroeconomic indicators demonstrate[d] a return to near historic positive trends; (2) application of the macroeconomic variables accurately project[ed] change, and the rate of change on Postal Service mail volumes is positive; (3) the Postal Service regain[ed] its ability to predict or project mail volumes following an extraordinary or exceptional event; and (4) the Postal Service demonstrate[d] an ability to adjust operations to the lower volumes.
Id. at 86 (emphasis added). Second, the Commission implemented a “count once” rule in calculating mail volume losses, meaning that the Commission counted decreased mail volume only in the first year it occurred—in “subsequent years, the Postal Service [was] aware of that loss” and thus able to adjust to account for the same. Id. at 96.
Entering the fray once more, this Court reviewed the Postal Service's challenge to Order No. 1926 in Alliance of Nonprofit Mailers v. Postal Regulatory Commission , 790 F.3d at 189
. We held that the Commission's “new normal” test was “well reasoned and grounded in the evidence before the Commission ... comfortably pass[ing] deferential APA review.” Id. at 196
. “In other words, the Commission permissibly reasoned that just because some of the effects of exigent circumstances may continue for the foreseeable future, that does not mean that those circumstances remain ‘extraordinary’ or ‘exceptional’ for just as long.” Id. at 194. We found the logic of the Commission's “count once” rule, however, difficult to reconcile with its explanation of the “new normal” test. See
id. at 195–96. We therefore vacated the portion of Order No. 1926 setting out the “count once” rule. Id. Finally, the Court in a footnote mentioned an additional argument, reciting that “[a]t oral argument, counsel for the Postal Service argued that the ‘new normal’ analysis in the Order is also inconsistent with the Commission's analysis of whether the rate increase was ‘necessary’ ” within the meaning of 39 U.S.C. § 3622(d)(1)(E).3
Id. at 196 n.3. Because the argument had not been briefed, we concluded that it was not properly before the Court, at the same time noting that the Commission was “free to consider that argument on remand.” Id.
On remand from Order No. 1926, the Commission removed the vacated “count once” rule, replacing it with a cumulative counting system for determining lost mail volume. Order No. 2623, Docket No. R2013–11R, at 28–46. Although the Postal Service had encouraged the Commission to “accept the court's invitation” to reconsider the “new normal” test and reconcile a perceived inconsistency between Parts IV and V of Order No. 1926,4 the Commission rejected the invitation, declaring that it “decline[...
To continue reading
Request your trial
-
Vill. of Barrington v. Surface Transp. Bd.
...II , 758 F.3d at 328 (alterations added) (quoting BLE , 482 U.S. at 280, 107 S.Ct. 2360 ); see also U.S. Postal Serv. v. Postal Regulatory Comm'n , 841 F.3d 509, 513 (D.C. Cir. 2016) ("Simply discussing the merits of an earlier agency decision does not open a reconsideration denial to revie......
- Smalls v. Spencer