Shane v. Buck

• Decision Date: 28 June 1985
• Docket Number: Civ. No. C-84-0780W.
• Citation: 658 F. Supp. 908
• Parties: Michael SHANE and Joseph Dillon, Plaintiffs, v. Howard L. BUCK and United States Postal Service, Defendants.
• Court: U.S. District Court — District of Utah

658 F. Supp. 908

Michael SHANE and Joseph Dillon, Plaintiffs, v. Howard L. BUCK and United States Postal Service, Defendants.

Civ. No. C-84-0780W.

United States District Court, D. Utah, C.D.

June 28, 1985.

Martin Seymour Blaustein, Salt Lake City, Utah, for plaintiffs.

Peter Stirba, Asst. U.S. Atty., Salt Lake City, Utah, for defendants.

MEMORANDUM DECISION AND ORDER

WINDER, District Judge.

Oral argument was heard on the parties' cross-motions for summary judgment on April 18, 1985. Martin Seymour Blaustein appeared on behalf of plaintiffs Shane and Dillon. Peter Stirba appeared on behalf of defendants Buck and the United States Postal Service ("Postal Service"). Both parties submitted memoranda which the court has considered carefully along with various authorities cited therein. Now being fully advised, the court renders the following decision and order.

This case raises four challenges to a Postal Service regulation contained in Section 153.212 of its Domestic Mail Manual (DMM), and to Postal Service Form 1583.

I. Background

Plaintiff Michael Shane is the operator of a private mail-forwarding service known as the Postal Shoppe. Plaintiff Joseph Dillon is a user of Shane's mail-forwarding service. Customers, such as Dillon, inform their correspondents that their mailing address is that of the Postal Shoppe. The Postal Shoppe then receives the customers' mail from the Postal Service, and for a fee, forwards it to the customer by placing it unopened in a larger envelope, adding new postage and remailing it.

In August, 1984, defendant Buck informed plaintiff Shane that he was required to have Postal Service Form 1583 completed by all of the customers of his mail receiving agency. Shane was told that he must comply with the request by September 15, 1984 or the mail addressed to others than Shane at Shane's address would be returned to the sender. The plaintiffs refused to comply with the request and instituted this action.

Form 1583 is entitled "Application for Delivery of Mail Through Agent" and solicits the following information: the names and addresses of the applicant and the agent; the home address of the applicant; the name of the firm or corporation if the applicant is a firm or corporation; and if applicable, the business address of the firm or corporation, the type of business involved, the members or officers of the firm or corporation whose mail is authorized to be delivered to the agent, and the names and addresses of two references; the county, state, and date of the registration of a business or trade name of a corporate applicant; and the signatures of the agent and the applicant, which, in the case of a corporation, must be the signature of an officer of the corporation. Form 1583 also contains a "Privacy Act" notice, in accordance with 5 U.S.C. § 552a(e)(3)(A)-(D), that provides the statutory authority for the collection of the information requested,¹ the purpose for which the information is requested,² and the routine uses of the information.³ It also states that completion of the form is voluntary but if the information is not provided the mail will be withheld from delivery to the agent and delivered to the addressee, or, if the address of the addressee is that of the agent, returned to the sender.

Form 1583 was developed pursuant to DMM § 153.212,⁴ which provides:

when mail is to be delivered to a commercial mail receiving agency, Form 1583, Application for Delivery of Mail through Agent, must be signed by both the commercial agent and the addressee. The commercial agent or a notary public must witness the signature of the addressee. The addressee is required to furnish 2 items of identification, the particulars of which must be included on Form 1583. The original of the completed Form 1583 must be filed with the postmaster and a duplicate copy of the completed Form 1583 must be kept on file by the commercial agency. The original copy of Form 1583 is filed without verifying the addresses shown thereon and without obtaining statements from the references given, unless the postmaster is specifically requested to do so by the inspector in charge, or when there is a reason to believe the mail will be, or is being, used for unlawful purposes. In consideration of delivery of the mail to the commercial agent, the addressee and the agent are considered to agree that:

a. No change of address order will be filed with the post office when the agency relationship is terminated;

b. The forwarding of mail intended for the addressee is the responsibility of the agent; and

c. When remailed by the commercial agent, the mail is subject to payment of new postage since delivery is deemed to have been made when the mail was delivered to the commercial agent.

Plaintiffs challenge the legality of DMM § 153.212 and Form 1583 on four bases: (1) the regulation was not promulgated in accordance with the Administrative Procedure Act; (2) Form 1583 does not have a control number in violation of the Paperwork Reduction Act; (3) the regulation and form violate plaintiffs' first amendment rights of free speech, association, and privacy and (4) the regulation and form violate plaintiffs' fifth amendment due process rights.

II. Discussion

A. The Applicability of the Administrative Procedure Act to DMM 153.212

Section 553 of the Administrative Procedure Act ("APA"), 5 U.S.C. § 553, outlines the procedures that an agency must follow when promulgating rules or regulations. That section provides for notice to be published in the Federal Register and for public participation in the process before the rule is finally adopted. Sections 556 and 557 detail the requirements for hearings and the appeal process. Plaintiffs contend that the Postal Service was subject to the requirements of Section 553 of the APA when it adopted DMM 153.212 but failed to follow them. Because the regulation was not promulgated according to the statutory requirements, the plaintiffs argue that DMM 153.212 is invalid.

Under 39 U.S.C. § 410(a), the Postal Service is generally exempted from chapters 5 and 7 of Title 5.⁵ Nat. Easter Seal Soc. v. U.S. Postal Service, 656 F.2d 754, 766 (D.C.Cir.1981). The plaintiffs concede that this section would seem to relieve the Postal Service from the rule making procedural requirements of the APA. But the plaintiffs note that various proceedings involving the Postal Service are made subject to the provisions of chapters 5 and 7 of the APA by specific statutory language.⁶

Plaintiffs rely on one such section, 39 U.S.C. § 3661, for their contention that the regulation at issue is invalid. Section 3661 provides that "when the Postal Service determines that there should be a change in the nature of postal services which will generally affect service on a nationwide or substantially nationwide basis," the Service shall submit a proposal to the Postal Rate Commission requesting an advisory opinion on the change. The Commission, in turn, is required under 39 U.S.C. § 3661(c) to hold a hearing on the record in accord with the requirements of sections 556 and 557 of Title 5 of the APA.

In order for those requirements of the APA to be applicable to DMM 153.212 under the provisions of 39 U.S.C. § 3661, there must be a showing that the proposed regulation represents: (1) a change (2) in the nature of postal services (3) which affects the service on a nationwide or substantially nationwide basis. In other words, there must be "some meaningful impact on service" which affects a broad geographical area and which represents more than a minor alteration in procedures or service having only a minimal effect on the general class of postal users. See Buchanan v. United States Postal Service, 508 F.2d 259, 262-263 (5th Cir.1975).

This interpretation of section 3661 is informed not only by the language of the statute itself but also by an examination of the relevant legislative history. The United States Post Office was reorganized and renamed in 1971 when the Postal Reorganization Act, P.L. 91-375 (1970) came into effect. Congress believed that fundamental changes in the organization of the Postal Service were needed in order for it to become self-sustaining, to be managed more professionally, and to attain improved employee morale. H.R. No. 91-1104 reprinted in 1970 U.S. Cong. & Ad. News 3649, 3653. The Post Office Department was accordingly taken out of the Cabinet to free it from political influence and was recast in the form of an independent establishment within the executive branch of government. Id. at 3654. The new Postal Service was to be run in a businesslike way so as to provide an efficient and economical postal service and at the same time, serve as nearly as practicable the entire population of the United States. As others have pointed out, these two basic policies underlying the Postal Reorganization Act pull in different directions. The Postal Service is to be freed from external constraints on its day to day decision making and yet is also to be responsible and sensitive to the public whom it is to serve. Buchanan, 508 F.2d at 262.

The language of section 3661 is susceptible to these same tensions. If every decision the Postal Service makes is considered a "change" requiring public input, the Postal Service would find it impossible to function in much the same way as did Gulliver, immobilized by the multitude of Lilliputian "threads." On the other hand, major changes in postal services should not be contemplated without public participation in the decision-making process. Obviously, a balance must be struck which allows the Postal Service to manage its affairs freely and yet which keeps it responsible and accountable to the American public. In order for the requirements of Title 5 to come into play under section 3661, therefore, there must be a change of sufficient magnitude to impact the general public's postal services. See Buchanan 508 F.2d 259; NAACP v. U.S. Postal Service, 398 F.Supp. 562 (N.D....