Seaboard World Airlines, Inc. v. Gronouski, Civ. A. No. 1203-64.

• Decision Date: 05 June 1964
• Docket Number: Civ. A. No. 1203-64.
• Citation: 230 F. Supp. 44
• Parties: SEABOARD WORLD AIRLINES, INC., Plaintiff, v. John A. GRONOUSKI, Postmaster General, Defendant.
• Court: U.S. District Court — District of Columbia

230 F. Supp. 44

SEABOARD WORLD AIRLINES, INC., Plaintiff, v. John A. GRONOUSKI, Postmaster General, Defendant.

Civ. A. No. 1203-64.

United States District Court District of Columbia.

June 5, 1964.

Joel H. Fisher, Washington, D. C., for plaintiff.

John W. Douglas, Asst. Atty. Gen., Harlan F. Leathers and Irwin Goldbloom, Dept. of Justice, Washington, D. C., for defendant.

LEONARD P. WALSH, District Judge.

This matter comes before the court on a motion for a preliminary injunction on the part of plaintiff, Seaboard World Airlines, against the defendant, Postmaster General, in his official capacity. Plaintiff is certified by the Civil Aeronautics Board as a scheduled all-cargo and mail air carrier and operates no regularly scheduled passenger flights.

Plaintiff was granted authority in 1959 to carry various categories of United States Mail on its regularly scheduled overseas flights. The plaintiff alleges that this service has developed into a $4 million business during the preceding five years.

Seaboard seeks to enjoin the enforcement of a new policy, implemented by the Postmaster General on May 20, 1964, pertaining to the transportation of overseas air mail.

The Rules of the Post Office Department, prior to May 20, 1964, permitted the division of mail among certified air carriers to take into account various factors, such as departure and arrival times, regularity of performance, flexibility of schedules, and advantages of overseas connections. The policy permitted certain categories of mail to accumulate during periods in which combined passenger and cargo flights were departing until an all-cargo flight was departing.

On May 7, 1964, the Post Office promulgated rules, effective on May 20, 1964, which changed this policy. The new rules provide that all categories of mail will be routed abroad by the most expeditious air service, without regard to type of aircraft used.

Essentially, the effect of the new policy is to deprive the plaintiff of substantially all of its mail revenue, in that certain competing airlines fly at greater frequency using jet aircraft, whereas the plaintiff uses only turbine-powered cargo aircraft.

The plaintiff airline seeks to enjoin the Postmaster General from operating under the new policy on the assertion that the plaintiff was not accorded any of the procedural rights guaranteed by the Administrative Procedure Act under the so-called "rule-making" procedures of Section 4 (5 U.S.C. § 1003).

The defendant asserts that the court lacks jurisdiction over the subject matter; that there is no invasion of a legally protected right resulting in an irreparable injury; and, an injunction would be injurious to the public interest by delaying delivery of the mail.

Jurisdiction of this matter is granted by Section 10(a) of the Administrative Procedure Act, 5 U.S.C. § 1009 (a). The clear and unequivocal language of the statute states:

"(a) Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof."

Section 1009(e) (B) (4) of the Act further states that "(the Court shall) hold unlawful and set aside agency action * * * found to be * * * (4) without observance of procedure required by law; * * *".

Additional statutory authority is found in 28 U.S.C.A. § 1339:

"The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to the postal service."

It would therefore appear clear that if the defendant's action in setting forth a new policy violated the rule-making provisions of the Administrative Procedure Act, this court does have jurisdiction to grant relief.

Section 4 of the Administrative Procedure Act, 5 U.S.C. § 1003, prescribes certain procedures for rule making. Included therein is the requirement of publication in the Federal Register, or notice to interested parties; an opportunity to submit written data; and, certain other procedural safeguards. In addition, the statute makes provision for two exceptions for which these procedures are not required. The first is to "any military, naval, or foreign affairs"; and the second for "any matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts * * *".

The Government contends that the second exception is applicable in the instant case, that this new rule concerns the duties of the Post Office personnel. It is true that the Administrative Procedure Act does except any matter relating solely to the internal management of an agency. However, the policy involved here, although it is directed to the Post Office personnel, substantially affects outside parties and is therefore NOT subject to the exception.

The legislative history of the Act states that:

"The specification of activities that are involved in rule making is included in order to comprehend them beyond any possible question. They are defined as rules to the extent that, whether of general or particular applicability, they formally prescribe a course of conduct for the future rather than merely pronounced existing

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