Mail Order Ass'n of America v. U.S. Postal Service

Decision Date22 September 1993
Docket Number91-1073,91-1063,91-1059,Nos. 91-1058,91-1065,s. 91-1058
Citation2 F.3d 408
PartiesMAIL ORDER ASSOCIATION OF AMERICA, Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent, McGraw-Hill, Inc.; Newspaper Association of America; Magazine Publishers of America, Inc.; TVSM; Third Class Mail Association; New York State Consumer Protection Board; Coalition of Religious Press Associations; United Parcel Service; Dow Jones & Company, Inc.; American Business Press; Alliance of NonProfit Mailers; Nashua Corporation and District Photo, Inc.; ADVO, Inc.; Time Warner, Inc.; Major Mailers Association; Shorter-Run Printers Committee; Association of Alternate Postal Systems; Parcel Shippers Association; Reader's Digest Association, Inc.; National Newspaper Association, Intervenors. DIRECT MARKETING ASSOCIATION, INC., Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent, United Parcel Service; Dow Jones & Company, Inc.; American Business Press; Alliance of NonProfit Mailers; Nashua Corporation and District Photo, Inc.; Time Warner, Inc.; ADVO, Inc., Intervenors. NIAGARA TELEPHONE COMPANY, Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent, United Parcel Service; Dow Jones & Company, Inc.; American Business Press; Alliance of NonProfit Mailers; Nashua Corporation and District Photo, Inc.; Time Warner, Inc.; ADVO, Inc., Intervenors. ALLIANCE OF NonPROFIT MAILERS, Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent, United Parcel Service; Dow Jones & Company, Inc.; American Business Press; Nashua Corporation and District Photo, Inc.; ADVO, Inc.; Time Warner, Inc., Intervenors. GOVERNORS OF the UNITED STATES POSTAL SERVICE, Petitioners, v. POSTAL RATE COMMISSION, Respondent, Dow Jones & Company, Inc.; United Parcel Service; Brooklyn Union Gas Company; American Business Press; Alliance of NonProfit Mailers; American Bankers Association; Nashua Corporation and District Photo, Inc.; Time Warner, Inc.; ADVO, Inc., Intervenors. THIRD CLASS MAIL ASSOCIATION, Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent, United Parcel Service; Dow Jones & Company, Inc
CourtU.S. Court of Appeals — District of Columbia Circuit

Daniel J. Foucheaux, Jr., Attorney, U.S. Postal Service, argued the cause for Governors of the U.S. Postal Service, petitioners in No. 91-1073. With him on brief were Eric P. Koetting and John L. DeWeerdt, Attorneys, U.S. Postal Service.

David E. McGiffert argued the cause for Mail Order Ass'n of America, Advertising Mail Marketing Ass'n, Third Class Mail Ass'n, Direct Marketing Ass'n, Inc. and ADVO, Inc., petitioners in Nos. 91-1058, 91-1059, 91-1074 and 91-1079 and intervenors in Nos. 91-1063, 91-1065, 91-1073, 91-1075 and 91-1080. With him on brief were David C. Todd, for Mail Order Ass'n of America, Ian Volner and N. Frank Wiggins, for Advertising Mail Marketing Ass'n and Third Class Mail Ass'n, Dana T. Ackerly, for Direct Marketing Ass'n, Inc. and John M. Burzio and Thomas W. McLaughlin for ADVO, Inc.

David M. Levy argued the cause for Alliance of NonProfit Mailers, petitioner in No. 91-1065 and intervenor in Nos. 91-1058, 91-1059, 91-1063, 91-1073, 91-1074, 91-1075, 91-1079 and 91-1080.

Michael F. McBride argued the cause for Dow Jones & Co., Inc. and Time Warner, Inc., petitioners in Nos. 91-1075 and 91-1080 and intervenors in Nos. 91-1058, 91-1059, 91-1063, 91-1065, 91-1073, 91-1074 and 91-1079. With him on brief were M. Reamy Ancarrow and George L. Mahoney for Dow Jones & Co. and John M. Burzio and Timothy L. Keegan for Time Warner, Inc.

Timothy E. Welch argued the cause for Niagara Telephone Co., petitioner in No. 91-1063. Dean George Hill entered an appearance for Niagara Telephone Co.

William B. Baker argued the cause for Newspaper Ass'n of America and Ass'n of Alternate Postal Systems, intervenors in No. 91-1058. With him on brief were John R Sturm for Newspaper Ass'n of America and David R. Straus for Ass'n of Alternate Postal Systems.

Richard Littell argued the cause for Major Mailers Ass'n, intervenor in No. 91-1058.

Stephen L. Sharfman argued the cause for Postal Rate Com'n, respondent in 91-1073.

Daniel J. Foucheaux, Jr., Attorney, U.S. Postal Service, argued the cause for U.S. Postal Service, respondent in Nos. 91-1058, 91-1059, 91-1063, 91-1065, 91-1074, 91-1075, 91-1079 and 91-1080. With him on brief were Eric P. Koetting and Scott L. Reiter, Attorneys, U.S. Postal Service.

Jacob M. Lewis, Attorney, U.S. Dept. of Justice, argued the cause for U.S. Postal Service, respondent in Nos. 91-1058, 91-1059, 91-1063, 91-1065, 91-1073, 91-1074, 91-1075, 91-1079 and 91-1080. With him on brief were Stuart M. Gerson, Asst. Atty. Gen., Patricia M. Bryan, Deputy Asst. Atty. Gen., and Anthony J. Steinmeyer and Jonathan R. Siegel, Attorneys, U.S. Dept. of Justice.

On brief for American Business Press, Shorter-Run Printers Committee, McGraw-Hill, Inc. and Coalition of Religious Press Associations, intervenors in Nos. 91-1058, 91-1059, 91-1063, 91-1065, 91-1075 and 91-1080, were David R. Straus, Stephen M. Feldman, Robert A. Saltzstein and Matthew F. Lintner for American Business Press and Shorter-Run Printers Committee and Ann J. LaFrance and David Alan Nall for McGraw-Hill, Inc. and Coalition of Religious Press Associations. Robert J. Brinkman entered an appearance for Nat. Newspaper Ass'n. Dr. John Stapert entered an appearance for Coalition of Religious Press Associations.

On brief for Brooklyn Union Gas Co. and American Bankers Ass'n, intervenors in No. 91-1073, were Michael W. Hall, Roderick D. Strickland and Kenneth T. Maloney for Brooklyn Union Gas Co. and John J. Gill and Irving D. Warden for American Bankers Ass'n.

On brief for New York State Consumer Protection Bd., intervenor in No. 91-1073, were Richard M. Kessell, Joel Blau and Philip S. Shapiro.

Robert L. Kendall, Jr. entered an appearance for United Parcel Service, intervenor in Nos. 91-1058, 91-1059, 91-1063, 91-1065, 91-1073, 91-1074, 91-1075, 91-1079 and 91-1080.

William J. Olson and John S. Miles entered appearances for Nashua Corp. and Dist. Photo, Inc., intervenors in Nos. 91-1058, 91-1059, 91-1063, 91-1065, 91-1073, 91-1074, 91-1075, 91-1079 and 91-1080.

Timothy J. May entered an appearance for Parcel Shippers Ass'n and Reader's Digest Ass'n, Inc., intervenors in No. 91-1058.

James R. Cregan entered an appearance for Magazine Publishers of America, Inc., intervenor in No. 91-1058.

Steven A. Levy entered an appearance for TVSM, intervenor in No. 91-1058.

Before WALD, WILLIAMS and HENDERSON, Circuit Judges.

Opinion for the Court filed Per Curiam. *

PER CURIAM.

I. Introduction

Under the Postal Reorganization Act of 1970, 39 U.S.C. Sec. 101 et seq. ("PRA" or "Act"), the Governors of the United States Postal Service ("USPS" or "Postal Service"), and the Postal Rate Commission ("PRC" or "Commission") each play a distinct and complementary role in the process of changing postal rates and classifications. This complex case involves challenges to several aspects of a postal ratemaking proceeding that began in March 1990. Before discussing each of these challenges, we briefly recount the Act's provisions for the determination and the review of postal rates, as well as the progression of the ratemaking proceeding that brought these issues to this court. A. Respective Roles of the Postal Service, the PRC and the Court

1. Role of the Postal Service

The PRA provides that, "[e]xcept as otherwise provided, the Governors [of the Postal Service] are authorized to establish reasonable and equitable classes of mail and reasonable and equitable rates of postage and fees for postal services in accordance with the provisions of this chapter." 39 U.S.C. Sec. 3621. The Postal Service has the exclusive authority to initiate the ratemaking proceeding by requesting a recommended decision from the Commission. Dow Jones v. USPS, 656 F.2d 786 (D.C.Cir.1981). Section 3622(a) of the Act provides:

From time to time, the Postal Service shall request the Postal Rate Commission to submit a recommended decision on changes in a rate or rates of postage or in a fee or fees for postal services if the Postal Service determines that such changes would be in the public interest and in accordance with the policies of this title. The Postal Service may submit such suggestions for rate adjustments as it deems suitable.

39 U.S.C. Sec. 3622(a). The Postal Service has generally followed a pattern of filing omnibus rate cases every three years. U.S. Postal Rate Commission Postal Rate and Fee Changes 1990, Opinion and Recommended Decision at V-48 [hereinafter "PRC Op."]. The Postal Service may also "from time to time request that the Commission submit ... a recommended decision on changes in the mail classification schedule." 39 U.S.C. Sec. 3623(b).

Once the Commission has issued its recommended decision, the Governors may respond to it in one of the following ways: they may approve the recommended...

To continue reading

Request your trial
28 cases
  • Hawaii Longline Association v. National Marine Fisheries Service, Civ. No. 01-0765 (CKK) (D. D.C. 2003)
    • United States
    • U.S. District Court — District of Columbia
    • August 1, 2003
    ... ... § 1852(a)(2)(A). In order to ensure a balanced cross-section of interested ... mail from Judson Feder, NMFS Southwest Regional ... United States Postal Service, 2 F.3d 408, 434 (D.C. Cir. 1993), the ... ...
  • UPS Worldwide Forwarding, Inc. v. U.S. Postal Service
    • United States
    • U.S. Court of Appeals — Third Circuit
    • September 15, 1995
    ... ... Air Courier Conference of America/International Committee ... (Intervenor in District ... that ship significant quantities of international mail. In response, the Postal Service attacks UPS's standing to ... This review takes us back more than two hundred years ...         In ... "a dramatic break with the past." See Mail Order Ass'n of America v. United States Postal Serv., 986 F.2d ... ...
  • Bismullah v. Gates, 06-1197.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • February 1, 2008
    ... ... shall consist of the order sought to be reviewed or enforced, the findings ...         This reasoning tells us nothing about a CSRT, however, unless a CSRT is a ... of the record by either side."); Mail Order Ass'n of Am. v. U.S. Postal Serv., 2 F.3d ... ...
  • Hawaii Longline v. National Marine Fisheries Serv.
    • United States
    • U.S. District Court — District of Columbia
    • August 31, 2003
    ... ... NATIONAL MARINE FISHERIES SERVICE, and Donald L. EVANS, In his official capacity as ... § 1852(a)(2)(A). In order to ensure a balanced cross-section of interested ... mail from Judson Feder, NMFS Southwest Regional ... United States Postal Service, 2 F.3d 408, 434 (D.C.Cir.1993), the ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT