Direct Marketing Ass'n, Inc. v. U.S. Postal Service, 9

• Decision Date: 28 October 1983
• Docket Number: No. 9,D,9
• Citation: 721 F.2d 55
• Parties: DIRECT MARKETING ASSOCIATION, INC., Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee. ocket 83-6054.
• Court: U.S. Court of Appeals — Second Circuit

Page 55

721 F.2d 55

DIRECT MARKETING ASSOCIATION, INC., Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee.

No. 9, Docket 83-6054.

United States Court of Appeals Second Circuit.

Argued Sept. 12, 1983.

Decided Oct. 28, 1983.

Dana T. Ackerly, Washington, D.C. (David L. Harfst, Covington & Burling, Washington, D.C., Robert L. Sherman, New York City, of counsel), for plaintiff-appellant Direct Marketing Ass'n.

Frances G. Beck, Associate Gen. Counsel, United States Postal Service, Washington, D.C. (Louis A. Cox, Gen. Counsel, Eric P. Koetting, Scott L. Reiter, United States Postal Service, Washington, D.C., of counsel), for defendant-appellee United States Postal Service.

Before KAUFMAN, MESKILL and PIERCE, Circuit Judges.

MESKILL, Circuit Judge:

This is the latest in a series of cases generated by the fifth general ratemaking proceeding under the Postal Reorganization Act of 1970, 39 U.S.C. Secs. 101 et seq. (1976) (Act). See Time, Inc. v. United States Postal Service, 685 F.2d 760 (2d Cir.1982), after remand, 710 F.2d 34 (2d Cir.1983); Newsweek, Inc. v. United States Postal Service, 663 F.2d 1186 (2d Cir.1981), aff'd sub nom. National Association of Greeting Card Publishers v. United States Postal Service, --- U.S. ----, 103 S.Ct. 2717, 77 L.Ed.2d 195 (1983); Newsweek, Inc. v. United States Postal Service, 652 F.2d 239 (2d Cir.1981). Appellant Direct Marketing Association, Inc. ¹ brought this action to challenge the validity of third class bulk mail rates implemented by the Board of Governors of the United States Postal Service (Postal Service) under 39 U.S.C. Sec. 3641 (1976). The United States District Court for the Southern District of New York, Leval, J., granted summary judgment in favor of the Postal Service. Direct Mail/Marketing Association, Inc. v. United States Postal Service, 555 F.Supp. 816 (S.D.N.Y.1983). After the appeal was taken, the challenged temporary rates expired when they were replaced by permanent rates promulgated pursuant to 39 U.S.C. Secs. 3622(a)-3625 (1976). Because the temporary third class bulk mail rates are no longer in effect, the issue raised below is moot. Because it is unlikely that postal litigation history will repeat itself, the issue does not fall within the "capable of repetition, but evading review" exception to the mootness doctrine. See Southern Pacific Terminal Co. v. I.C.C., 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911).

A brief review of previous postal rate cases will help to explain our decision. In April 1980 the Postal Service requested a "recommended decision" on postal rate changes from the Postal Rate Commission (PRC) under 39 U.S.C. Sec. 3622(a); ² it did not request a "recommended decision" on changes in the mail classification schedule. ³ The PRC's recommended decision of February 19, 1981 proposed third class bulk mail rates that were inconsistent with the then existing bulk mail rate classification schedule. The Postal Service disregarded the suggested third class bulk mail rates because it considered the classification changes to be unauthorized. Finding that the PRC had failed in effect to recommend third class bulk mail rates, it enacted temporary rates pursuant to 39 U.S.C. Sec. 3641(a). ⁴ We upheld the Postal Service's enactment of the temporary third class bulk mail rates. Newsweek, Inc. v. United States Postal Service, 663 F.2d 1186 (2d Cir.1981), aff'd on other grounds sub nom. National Association of Greeting Card Publishers v. United States Postal Service, --- U.S. ----, 103 S.Ct. 2717, 77 L.Ed.2d 195 (1983).

While Newsweek was pending, the PRC submitted two more "recommended decisions" identical to the first (June 4 and September 17, 1981). The Postal Service rejected both "recommended decisions" and promulgated permanent rates by modifying the recommended rates for all classes of mail, including third class bulk mail, under 39 U.S.C. Sec. 3625(d). ⁵

In Time, Inc. v. United States Postal Service, 685 F.2d 760 (2d Cir.1982), we concluded that the Postal Service could not enact permanent rates for bulk mail under section 3625 because the PRC had never recommended bulk mail rates capable of being rejected or modified. ⁶ We reiterated that the Postal Service could enact temporary rates under section 3641 because the PRC had effectively failed to transmit a "recommended decision." We also noted that the permanent third class bulk mail rates adopted by the Postal Service "would clearly be permissible as temporary rates." Id. at 769. We did not consider whether the rates were properly enacted under section 3641 or whether they were supported by substantial evidence on the record. Id. at 768 n. 7.

On August 3, 1982, the Postal Service implemented temporary third class bulk mail rates identical to the permanent rates that it had proposed in September 1981. Appellant brought suit on August 6, 1982 to enjoin the implementation of the rates. The district court granted appellee's motion for summary judgment on January 21, 1983. It found that (1) the Postal Service need not follow PRC costing methods in enacting section 3641 temporary rates; (2) the incorporation of all prior Postal Service statements in the resolution adopting the temporary rates provided sufficient justification for the rates' enactment; and (3) the Postal Service's actions were not arbitrary, capricious or an abuse of discretion. Appellant challenges these findings in this appeal.

On December 23, 1982, before summary judgment was granted in this case, the PRC recommended third class bulk mail rates that conformed to the existing classification schedule. The Postal Service returned these rates to the PRC for reconsideration under section 3625(c). ⁷ On April 18, 1983 the PRC again transmitted a "recommended decision" on third class bulk mail rates, which the Postal Service approved on May 2, 1983. The challenged temporary rates were void as of May 22, 1983, the date the newly approved permanent rates became effective.

Both parties correctly contend that the present case raises important issues as to the respective roles of the PRC and the Postal Service in the enactment of temporary rates under section 3641. This, however, is not the case in which to attempt such a clarification. We have no live controversy before us at this time. Article III, section 2, of the United States Constitution limits federal court jurisdiction to actual cases and controversies. Nebraska Press Association v. Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 2796, 49 L.Ed.2d 683 (1976); Sosna v. Iowa, 419 U.S. 393, 402, 95 S.Ct. 553, 558, 42 L.Ed.2d 532 (1975). A case is moot "when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 1182-1183, 71 L.Ed.2d 353 (1982) (per curiam), quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1950-1951, 23 L.Ed.2d 491 (1969). Therefore, the fact that the temporary rates are no longer in effect renders the issue of their validity moot.

Both parties argue, however, that the case falls within the "capable of repetition, but evading review" exception to the mootness doctrine. See Southern Pacific Terminal Co. v. I.C.C., 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). For this exception to apply in a non-class action, two elements must be present: "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Murphy v. Hunt, 455 U.S. at 482, 102 S.Ct. at 1183, quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348-349, 46 L.Ed.2d 350 (1975) (per curiam).

In deciding whether the present controversy is "capable of repetition, but evading review," we will consider only the present application of section 3641 as a response to the PRC's submission of inapplicable rates, and not the section's customary and intended application as a response to the PRC's failure to submit a timely "recommended decision." This restriction is necessary because the two applications present entirely different fact situations. When the PRC submits inapplicable rates, as it did in the present case, the Postal Service has received not only the PRC's "recommended decision," but also the mandatory accompanying statement that explains the PRC's costing methodology and policy considerations. 39 U.S.C. Sec. 3624(d) (1976). However, when section 3641 is applied as Congress intended, namely, to allow the Postal Service to enact temporary rates when the PRC fails to submit a timely "recommended decision," H.R.Rep. No. 94-391, 94th Cong., 1st Sess. 9 (1975), the Postal Service will not have before it a "recommended decision," or the required accompanying statement. The availability of an accompanying statement that explains the PRC's costing methodology would control our analysis of the primary question raised by appellant, whether the Postal Service must rely on the PRC's costing methodology in enacting section 3641 temporary rates. Because the two section 3641 applications present such different fact situations and because the normal application of section 3641 is not presently in issue, our analysis of the question is limited to the unique fact situation in which the PRC submits inapplicable rates and the Postal Service has an accompanying statement before it. Therefore, our analysis of the applicability of the mootness exception must be limited to the use of section 3641 as a response to the PRC's submission of inapplicable rates. ⁸

We believe that the unusual circumstances of this case, namely, the establishment of temporary rates after the PRC issued a timely but inapplicable "recommended decision," is not likely to recur. Congress intended the PRC to be primarily responsible for ratemaking and the Postal Service to be primarily responsible for ensuring...