Associated Third Class Mail Users v. U.S. Postal Service, 78-1065

• Citation: 600 F.2d 824
• Decision Date: 03 April 1979
• Docket Number: No. 78-1065,78-1065
• Parties: ASSOCIATED THIRD CLASS MAIL USERS, Appellant, v. UNITED STATES POSTAL SERVICE et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 824

600 F.2d 824

195 U.S.App.D.C. 10

ASSOCIATED THIRD CLASS MAIL USERS, Appellant, v. UNITED STATES POSTAL SERVICE et al.

No. 78-1065.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 20, 1978.

Decided March 9, 1979.

Rehearing Denied April 3, 1979.

J. Edward Day, Washington, D.C., for appellant.

Roger P. Craig, Deputy Gen. Counsel, U.S. Postal Service, Washington, D.C., with whom Barbara Allen Babcock, Asst. Atty. Gen., Louis A. Cox, Gen. Counsel, U.S. Postal Service, Earl J. Silbert, U.S. Atty., and Ronald R. Glancz, Atty., Dept. of Justice, Washington, D.C., were on brief, for appellee United States Postal Service.

Peter J. Carre, Washington, D.C., with whom Mozart G. Ratner, Washington, D.C., was on the brief, for intervenor-appellee National Association of Letter Carriers.

Charles R. Work, Washington, D.C., with whom Lewis A. Rivlin, Washington, D.C., was on the brief, for amicus curiae National Mass Retailing Institute urging reversal.

Before WRIGHT, Chief Judge, WILKEY, Circuit Judge, and FLANNERY, ^* District Judge.

Opinion for the court filed by Chief Judge J. SKELLY WRIGHT.

Dissenting opinion filed by Circuit Judge WILKEY.

J. SKELLY WRIGHT, Chief Judge:

This appeal is from the District Court's grant of summary judgment in favor of the United States Postal Service in a suit challenging the Service's construction of the century-old legislation which establishes and defines the current Government monopoly over the delivery of mail. Appellant, the Associated Third Class Mail Users (ATCMU), ¹ asserts that the prohibition against private conveyance or delivery of "letters and packets" in what are known as the Private Express Statutes ² may not lawfully be applied to delivery of advertising circulars addressed to particular persons or locations. ³ The Postal Service takes a contrary position. ⁴ It has determined by regulation that the term "letter" in the statutory proscription encompasses any "message Directed to a specific person or address and recorded in or on a tangible object" ⁵ a definition which clearly includes addressed advertising materials. This litigation turns on the validity of that definition.

The District Court concluded that since the mid-19th century "the Congress, the courts and the Postal Service have all understood the Private Express Statutes to prohibit the private carriage of messages such as (those at suit)." Associated Third Class Mail Users v. United States Postal Service, 440 F.Supp. 1211, 1216 (D.D.C.1977). Finding no constitutional infirmity in that interpretation, Judge Parker went on to award summary judgment in favor of the Postal Service and dismiss the complaint. We affirm, relying heavily upon the District Court's thoughtful opinion.

Our task, and that which faced the District Court before us, is to determine whether the Postal Service's construction of the term "letter" is consistent with the text and history of the Private Express Statutes. For a number of reasons, it is a less than satisfying task. First, our usual tools for statutory construction turn out not to be terribly helpful. Nothing in the phrase "letters and packets" answers the question before us, and the intent of the Congress which enacted that formulation in the course of the 1872 codification of the postal laws is shrouded in obscurity. ⁶ Moreover, even were the legislative intent less opaque, it might be robbed of currency by the not insubstantial developments of the intervening century. Second, few courts have considered the scope of the postal monopoly or the meaning of "letter." ⁷ Third, the Postal Service's interpretations and comments regarding the content of the term have often seemed ambiguous and inconsistent. ⁸ And fourth, the only policy concern clearly implicated in the quest for the proper scope of the monopoly the need to shield postal operations from competition so the Postal Service can adopt nonmarket solutions in its effort to further various national goals ⁹ is so open-ended and indeterminate that it provides scant guidance. These difficulties do not, of course, obviate the need for decision. But they necessarily color our inquiry and belie any notion that a single definition of "letter" flows ineluctably from the materials at hand. ¹⁰

ATCMU and the National Mass Retailing Institute (which appeared as Amicus curiae on behalf of appellant) assert that the Postal Service's definition of "letter" must fall because it (1) runs counter to the legislative history, (2) contradicts the weight of administrative authority, (3) is contrary to common sense, and (4) would if sustained lead to constitutional difficulties. We deal with each contention in turn.

I

The statute creating the postal monopoly was first couched in its modern form as a prohibition against establishment of "any private express for the conveyance of letters or packets" in Section 228 of the Postal Act of 1872. Act of June 8, 1872, ch. 335, § 228, 17 Stat. 311. The previous statute had referred to conveyance of "any letters, packets, or packages of letters, or other matter properly transmittable in the United States mail, except newspapers, pamphlets, magazines and periodicals * * * ." Act of March 3, 1845, ch. 43, § 9, 5 Stat. 735. ATCMU argues that the deletion of the "other matter" language reflected a deliberate congressional choice to narrow the postal monopoly, and that by so narrowing it the Congress eliminated any suggestion that it might include addressed advertising materials. As Judge Parker pointed out, however, the legislative history indicates that the 1872 Act was intended to reword and clarify the nation's postal laws Without substantive alteration. 440 F.Supp. at 1214. ¹¹ ATCMU has been unable to demonstrate that this general intent did not apply with full force to the monopoly provision. And absent some indication that Congress focused on the issue, we are reluctant to find in what purported to be a recodification a deliberate contraction of the postal monopoly. ¹² Accordingly, we are of the opinion that the legislative text and history while not dispositive of either party's contentions tends to favor the Postal Service. ¹³

II

While the legislative history of the Private Express Statutes is quietly obscure, the administrative history is noisily so. Each side is able to point to pronouncements by Postal Solicitors and statements in Service publications which support its view. And each side is able to characterize the pronouncements and statements relied upon by the other as poorly reasoned, ambiguous, or casual. ¹⁴ In our judgment, the most that can be said about the administrative history is that it is something of a muddle: no single definition emerges as the obvious choice of past administrators, but neither does there appear any clear ground for setting aside the determination of present ones. The following rough and far from exhaustive sketch illustrates our point.

After the 1872 legislation was adopted there were indications that the Postal Service conceived of the monopoly in somewhat limited terms. In the course of an 1873 opinion which concluded that a package of first class letters was subject to the monopoly whether sent by a private person or a government agency, the Solicitor stated that the Private Express Statutes were intended to prevent "the transmission of mailable matter of the first class (all correspondence wholly or partly in writing) by express or other unlawful means." ¹⁵ And notes appended to late 19th century editions of the Postal Laws and Regulations stated that "Congress has not yet, by statute, extended the monopoly of transportation to second, third, or fourth class matter, although admitted to the mails." ¹⁶ But these indications are not unambiguous. The language in the Solicitor's opinion was neither directly related to the question presented nor by its terms exclusive it did not say that the monopoly covered Only what was then included under the rubric of mailable matter of the first class. And the import of the notations in the regulations may be undermined by the fact that the regulations themselves seem at times to have included some third class mailable matter within the term "letter" and to have used the terms "mail-matter" and "letter" interchangeably. ¹⁷

Following these early and concededly somewhat restrictive pronouncements came a number of administrative interpretations that appear difficult to reconcile. On the one hand, three opinions written by the Solicitor in 1916 concluded that the monopoly did extend to addressed circulars of various sorts, ¹⁸ a 1933 opinion observed that classification of mail matter into first, second, third, and fourth classes "in no way affects its status under the * * * private express statutes," ¹⁹ and the 1934 edition of a Postal Service pamphlet explaining the monopoly stated that "under the private express statutes the term 'letters' has a broader significance and may embrace circulars." ²⁰ On the other hand, a 1935 opinion concluded that "circulars advertising the goods of a concern for sale" were not letters for purposes of the Private Express Statutes, ²¹ another in the same year stated that the monopoly did not extend to "(o)rdinary advertising matter, such as handbills or circulars," ²² and language added to the 1937 edition of the pamphlet referred to previously stated that "advertising handbills or circulars" were not within the letter or spirit of the monopoly. ²³

Some of the apparent inconsistencies noted above seem to have been resolved in 1940 when the Postal Service stated in a new edition of its pamphlet explaining the Private Express Statutes that "unaddressed advertising handbills or circulars" were Not letters, thus setting forth at least by implication the current rule. ²⁴ Nonetheless, appellant and Amicus curiae argue that the inconsistencies prior to 1940 strip that rule of any foundation and render the Postal Service undeserving of deference in the definition...