Mail Order Ass'n of America v. U.S. Postal Service, 91-1058
| Decision Date | 10 March 1993 |
| Docket Number | No. 91-1058,91-1058 |
| Citation | 986 F.2d 509 |
| Parties | MAIL ORDER ASSOCIATION OF AMERICA, Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent. , et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On the Motion of the United States Postal Service for Leave to Appear on Its Own Behalf.
Daniel J. Foucheaux, Jr., Washington, DC, for U.S. Postal Service.
Douglas N. Letter, Attorney, Dept. of Justice, with whom Anthony J. Steinmeyer, Jacob M. Lewis and Jonathan R. Siegel, Attorneys, Dept. of Justice, Washington, DC, joined in the response to the motion, for the Dept. of Justice.
Before WALD, WILLIAMS and HENDERSON, Circuit Judges.
Opinion for the court filed by Circuit Judge WALD.
This appeal presents two narrow but complex statutory questions: First, when a private party seeks judicial review of a Postal Service order, may the Postal Service represent itself when its position is at odds with that of the Department of Justice? Second, does the Postal Reorganization Act ("PRA") permit the United States Postal Service ("USPS" or "Postal Service"), to seek judicial review of a rate that it permitted to take effect under protest, when the Department of Justice ("Department" or "DOJ") has refused categorically either to represent the Postal Service's views or to consent to the Postal Service's use of its own or outside attorneys? After a careful review of the PRA, the Hobbs Act, and statutory provisions governing the Attorney General's conduct and supervision of executive branch litigation, we conclude that, in each case, the Postal Service enjoys at least limited independent litigating authority. We base our conclusions on the language of and the clear congressional purposes animating the postal reform statute.
We recount the facts here with only brief reference to statutory authority, which is discussed more fully below. As a preliminary matter, however, it is important to note that the Postal Service appears in two distinct capacities in this consolidated case. In one docket, No. 91-1073, the Governors of the Postal Service are petitioners seeking review of one aspect of a recommended decision of the Postal Rate Commission ("PRC"). 1 In the others, 2 the Postal Service is the respondent in suits initiated by private mailers challenging the Governors' decision to allow other aspects of the recommended decision to take effect under protest and to send the matter back to the Rate Commission for reconsideration. The Postal Service's authority differs slightly in each posture.
On January 22, 1991, the Board of Governors of the Postal Service issued three decisions. In one, it allowed certain provisions of the PRC's recommended decision to take effect under protest and sent those matters back to the Rate Commission for reconsideration. In the second, it rejected certain classification provisions. In the third, it allowed another aspect of the PRC's recommended decision to take effect and sought judicial review of that matter. The Board's authority for these actions is 39 U.S.C. § 3625(c), which provides that the "Governors may, under protest, allow a recommended decision to take effect and (1) seek judicial review thereof under section 3628 of this title, or (2) return the recommended decision to the Commission for reconsideration...." Section 3628, in turn, provides in part:
§ 3628. Appellate review
A decision of the Governors to approve, allow under protest, or modify the recommended decision of the Postal Rate Commission may be appealed to any court of appeals of the United States, within 15 days after its publication by the public Printer, by any aggrieved party who appeared in the proceedings under section 3624(a) of this title. The court shall review the decision, in accordance with section 706 of title 5, and chapter 158 and section 2112 of title 28, except as otherwise provided in this section, on the basis of the record before the Commission and the Governors.
Thus, when the Governors of the Postal Service themselves are seeking judicial review under § 3625(c), the Postal Service itself is the petitioner. When the Governors allow a rate to take effect but return it to the PRC, private parties may challenge the Governors' decision, making the Postal Service the respondent.
The following day, January 23, 1991, the Postal Service sought the Department's consent to appear on its own behalf in its own action for judicial review, as well as in the anticipated private party challenges to its decisions with regard to other aspects of the PRC's recommended decision. The Postal Service sought this consent pursuant to 39 U.S.C. § 409(d), which provides:
§ 409. Suits by and against the Postal Service
(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 conduct litigation brought by or against the Postal Service or its officers or employees in matters affecting the Postal Service.
When the consent was not forthcoming and the jurisdictional deadline for filing approached, the Postal Service filed the petition in No. 91-1073 to perfect the Governors' decision to allow under protest and to seek judicial review. A Department of Justice representative at this time stated orally to a Postal Service representative that the Department had not granted consent for this filing.
On September 28, 1992, the Postal Service filed its petitioner's brief with this court in Docket 91-1073. The following day, it received a letter, dated September 25, 1992, in which the Department of Justice denied the Postal Service's request for self-representation in the cases in which it was a respondent. Making no mention of the Governors' own petition for review, the letter said that the Department would attempt to prepare a joint brief representing the views of the Commission and the Postal Service in the private party appeals (even though the Commission was not and is not a party to those actions). The Department sought, and the Postal Service provided, a draft brief outlining its positions on the issues raised in those appeals.
On October 27, 1992, however, the Assistant Attorney General of the Department's Civil Division wrote to the General Counsel of the Postal Service:
Because the United States Postal Service and its Governors lack independent litigation authority, see 28 U.S.C. § 516, 39 U.S.C. § 409(d), the Attorney General's authorization is a necessary precondition to the filing of such a petition for review by Postal Service attorneys. In this case, authorization was not provided because a lawsuit between the Postal Service and the Postal Rate Commission raises serious justiciability problems under Article III of the United States Constitution. As we discussed with your predecessor, ... we have grave doubts that the Attorney General could authorize the filing of a lawsuit that he believes is not within the judicial power of the United States courts.
The Assistant Attorney General asked the Postal Service to withdraw its petition for review and suggested that, should it not, the Department of Justice would move to strike the petition on the ground that it was filed by attorneys lacking the requisite authority.
On November 3, 1992, the DOJ provided the Postal Service with a draft brief that the Department proposed to file on the Postal Service's behalf. On November 6, 1992, the Postal Service, maintaining that the DOJ's draft and subsequent revisions departed from the Postal Service's key positions in critical respects, filed a motion in this court for leave to appear as a party and to represent itself in all of the consolidated dockets. In response, on December 8, 1992, we ordered the Department of Justice either to "resolve the controversy between the DOJ and the Postal Service or to file a response to the November 6 motion to enable the Court to resolve it itself."
Subsequently, on December 11, 1992, the President of the United States wrote to the Postmaster General directing him and the Board of Governors to "cooperate fully with the Attorney General in arranging for the withdrawal of [the Service's] filings." On January 4, 1993, the Chair of the Board of Governors responded to the President that a majority--although not all--of the Governors believed the Board was authorized to maintain its position in the Court of Appeals and asked the President to elaborate on his December 11 directive. The same day, the President responded that "in order to obtain compliance with the statutes and my directive enforcing them, I will if necessary remove Governors of the Postal Service."
On January 7, 1993, on the motion of the Governors who maintained the Board's right of self-representation, the United States District Court for the District of Columbia issued a preliminary injunction prohibiting the President from removing those Governors. On January 8, the Department of Justice filed in this court an emergency motion for a stay or reversal of that order. At the same time, the Department filed, purportedly on behalf of both the PRC and the Postal Service, a motion for voluntary dismissal of the Postal Service's petition for review.
On January 15, 1993, after oral argument, we issued an order granting in part the Postal Service's motion for self-representation. In Docket 91-1073, the Postal Service's own petition for review, we agreed to accept the brief filed by the Postal Service. In the remaining dockets, the private mailer suits in which the Postal Service was respondent, we returned the Postal Service's brief and ordered it to file a supplemental brief setting forth its position only to the extent that it was "fundamentally different" from that taken by...
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