Cuneo Press of New England Inc. v. Watson

• Decision Date: 25 November 1968
• Docket Number: Civ. A. No. 68-914-J,68-915-J.
• Citation: 293 F. Supp. 112
• Parties: CUNEO PRESS OF NEW ENGLAND, INC., Plaintiff, v. W. Marvin WATSON, Postmaster General of the United States, and Ephraim Martin, Postmaster, Boston, Massachusetts, Defendants. The COLONIAL PRESS, INC., Plaintiff, v. W. Marvin WATSON, Postmaster General of the United States, and Thomas Joseph Mason, Postmaster, Clinton, Massachusetts, Defendants.
• Court: U.S. District Court — District of Massachusetts

293 F. Supp. 112

CUNEO PRESS OF NEW ENGLAND, INC., Plaintiff, v. W. Marvin WATSON, Postmaster General of the United States, and Ephraim Martin, Postmaster, Boston, Massachusetts, Defendants.

The COLONIAL PRESS, INC., Plaintiff, v. W. Marvin WATSON, Postmaster General of the United States, and Thomas Joseph Mason, Postmaster, Clinton, Massachusetts, Defendants.

Civ. A. Nos. 68-914-J, 68-915-J.

United States District Court D. Massachusetts.

November 25, 1968.

Warren F. Farr, Ropes & Gray, Boston, Mass., for Cuneo Press of New England, Inc.

Charles Donelan, Bowditch, Gowetz & Lane, Worcester, Mass., for the Colonial Press, Inc. Paul F. Markham, U. S. Atty., Stanislaw R. J. Suchecki, Asst. U. S. Atty., for defendants.

COURT'S ACTION ON REQUESTS FOR A PRELIMINARY INJUNCTION

JULIAN, District Judge.

These are two essentially identical civil actions brought by two separate book manufacturers contesting the legality of a postal regulation which imposes certain preconditions of mailability on fourth-class mail matter presented in bulk to the Post Office Department. The effect of the regulation is to require mailers of fourth-class mail in quantities of 1,000 or more pieces in a single day to sort the items in terms of destination according to stated standards.

On October 16, 1968, this Court denied plaintiffs' requests that a three-judge district court be convened to consider their contentions that the postal regulation in question¹ and the enabling statute under which it was enacted² were unconstitutional and should therefore be enjoined. At that time the Court ruled that the constitutional arguments concerning the statute were insubstantial. With regard to the issues raised concerning the postal regulation itself, however, the Court held only that the three-judge court requirement of 28 U.S.C. § 2282 was inapplicable. Thus plaintiffs were not foreclosed from pressing their challenges to the postal regulation before the single judge.

Following a four-day delay requested by defendants, the Court on October 18, 1968, received evidence and heard arguments by all parties on plaintiffs' motions for temporary restraining orders. Thereafter, at defendants' request, the Court granted a further extension of time to and including October 25, 1968, to enable defendants to submit additional material in support of their opposition to the motions. In view of these ample extensions of time and in view of the full opportunity accorded to all parties to present evidence, argue and submit briefs, the Court herein deals not only with plaintiffs' requests for temporary restraining orders but also with their requests for preliminary injunctions. Rule 65(a) (1), Federal Rules of Civil Procedure.

Both plaintiffs are Massachusetts corporations engaged in the business of printing, binding and shipping books and other printed matter to publishers and the general public. A major portion of the business of both plaintiffs involves the manufacture and mailing of books to individual member-subscribers of various book clubs. Book club business is a highly competitive branch of the book manufacturing industry in which small cost differentials and prompt adherence to mailing timetables are major competitive factors.

Both plaintiffs mail large numbers of books to individual addressees at special fourth-class rates. In the year ending June 30, 1968, plaintiff Colonial Press, Inc. (Colonial) made 2,413,276 such mailings,³ and it expects to complete an additional 959,400 orders between this time and the end of 1968.⁴ The fourth-class individual mailings by plaintiff Cuneo Press of New England, Inc. (Cuneo), while not so large as Colonial's, are likewise substantial.

Prior to October 1, 1968, the effective date of the challenged regulation, the Post Office maintained three detached mail units at Colonial's plant in Clinton, Massachusetts. The Post Office undertook to furnish as many postal employees, sometimes amounting to as many as fifteen people, as Colonial's continually changing volume required. These postal employees customarily received cartons of mailing labels supplied by the book club, sorted the labels by hand in numerical order according to ZIP codes, and delivered them to Colonial's employees. Colonial's labeling crew would then affix the labels to the individually packaged books moving along a conveyor belt which delivered them to the detached mailing unit, whereupon the postal employees placed the packages in mail sacks.

Cuneo's mailing operation, prior to the October first effective date of the regulation, consisted of deliveries by truck to the South Postal Annex in Boston of unsorted bulk quantities of individually addressed books which were sorted and separated by postal employees. At least one and sometimes as many as three or four daily truckloads were delivered in this manner.

In December 1967 Congress enacted the Postal Revenue and Federal Salary Act of 1967, Pub.L. 90,206, 81 Stat. 620, effective January 7, 1968. Section 108(a) (6) of that Act, 39 U.S.C. § 4554(e), authorized the Postmaster General to prescribe the manner of preparation for mailing of items which were to be mailed at preferred fourth-class book rates in quantities of 1,000 pieces or more in a single mailing. The statute provided:

"(e) Articles may be mailed under this section in quantities of one thousand or more in a single mailing, as defined by the Postmaster General, only in the manner directed by him."

Pursuant to that authority, the Postmaster General enacted the regulation here challenged, Postal Regulation 135.2(a) (6), 33 Fed.Reg. 11359.⁵ The effect of the regulation has been to require plaintiffs to perform through their own employees the sorting and packing previously done by postal employees.⁶

Both plaintiffs contend that the regulation exceeds the scope of the power conferred upon the Postmaster General in 39 U.S.C. § 4554(e) in that the regulation defines a "single mailing" as encompassing all identical⁷ items presented for mailing "in a single day." This results, they argue, in their having to pre-sort all pieces in all shipments, including shipments of less than 1,000 identical pieces, whenever the combined daily total of all such shipments exceeds 1,000 pieces. Despite the authority given to the Postmaster General to define a "single mailing," plaintiffs contend that language does not permit a definition which includes "multiple mailings."

Plaintiffs also argue that the regulation, by imposing the costs of pre-sorting upon mailers, produces a disguised increase in special fourth-class postal rates when only Congress can alter rates.

Finally, plaintiffs argue that the regulation is unconstitutional in that it applies arbitrarily and discriminatorily to large book mailers like themselves who mail thousands of copies of a single title at a time but does not apply to book mailers whose mailings, while similar in overall volume, consist of many titles, few or none of which are shipped in quantities exceeding 1,000 in any single day.

Plaintiffs' complaints also raised three additional grounds for challenging the regulation: (1) that it was adopted without observance of the necessary procedural requirements; (2) that it results in a taking of plaintiffs' property without due process of law; and (3) that it constitutes an unconstitutional transfer of official and quasi-official postal functions to unauthorized persons (plaintiffs). These three grounds were not pressed either in oral argument or elsewhere in the record. The Court considers them to be totally without substance on the present state of the record.

As a prerequisite to the issuance of a preliminary injunction the plaintiffs must show that they will suffer "certain and irreparable" injury if relief is not granted, and that there is a reasonable probability that they will ultimately prevail in the litigation. Ohio Oil Co. v. Conway, 1929, 279 U.S. 813, 815, 49 S.Ct. 256, 73 L.Ed. 972; Celebrity, Inc. v. Trina, Inc., 1959, 1 Cir., 264 F.2d 956, 958; Love v. Atchison, T. & S. F. Ry. Co., 1911, 8 Cir., 185 F. 321, 331-332, cert. denied, 1911, 220 U.S. 618, 31 S.Ct. 721, 55 L.Ed. 612; Ikirt v. Lee National Corporation, 1966, 3 Cir., 358 F.2d 726, 727.

The evidence shows that the plaintiffs have three available courses of action:

(1) The plaintiffs may at their own expense employ and train their own personnel to perform the tasks⁸ of pre-sorting and sacking required by the regulation. The Department, however, does not undertake to reimburse the plaintiffs for the money thus expended, should they finally succeed in this litigation.

(2) The Post Office Department is authorized to enter into an agreement to perform the required pre-sorting and sacking services at the plant of either plaintiff provided such plaintif...