*1 SERVICE, INC., UNITED PARCEL Corporation,
New York Service, Inc.,
United Parcel Corporation
Ohio
v.
UNITED STATES POSTAL
SERVICE, Appellant.
No. 78-2390.
United Appeals, States Court of
Third Circuit.
Argued March Aug. 7,
Decided
1371 Irving R. Segal (argued), Robert L. Ken- dall, Jr., McKeever, Schnader, John E. Har- rison, Lewis, Segal Pa., Philadelphia, & appellees. GARTH, HIGGINBOTHAM,
Before Cir Judges, SCHWARTZ,* cuit District Judge.
OPINION OF THE COURT GARTH, Judge. Circuit appeal This is an from a final order of the district court which permanently enjoined the defendant United States Postal Service (hereafter Service) engaging from parcel post experiment until it obtained approval Commission, from the Postal Rate compliance with 39 U.S.C. 3622-25. We affirm.
I In 1970 enacted the Postal Re- organization 1970, Act of U.S.C. §§ seq. et The Act created independent as an unit of the executive branch, 39 201. It also created the § Postal Rate separate Commission as a inde- pendent establishment, 39 U.S.C. § governed by Postal Service is Governors, 202, Board of 39 U.S.C. pursuant to 39 U.S.C. 402 established an Executive Committee. The Executive comprised Committee is of the Postmaster General, Deputy General, Postmaster General, various Assistant Postmasters Inspector, Chief Postal and the General 221.5(d)(1) Counsel. 39 C.F.R. § [1978]. September On 1977 the Executive Committee in accordance duty im- posed upon the Postal to “plan, develop, promote, provide adequate efficient services at fair and reasona- Babcock, Barbara Allen Gen., Asst. Atty. fees,” ble 403(a), rates and 39 U.S.C. § Vaira, Peter F. U. Atty., S. Ronald R. approved implementation parcel post of a Glancz, Thomas G. (argued), Wilson App. experiment called the Local Parcel Service Staff, Div., Civ. Dept, Justice, Wash- Test Plan. A description detailed ington, C.,D. appellant. Plan be found in the district court’s
* Schwartz, Murray Honorable M. United States Judge Delaware, District for the District of sit- ting by designation. F.Supp. United v. United schedule then in effect. 455 at 861 opinion, Parcel Service n.7, Appendix Exhibit at 47. F.Supp. 861- States Postal (E.D.Pa.1978). say Suffice UPS), (hereafter Parcel Service United 1977 institut- Postal Service mid-October action, plaintiff private mailing ed a twelve-month bulk parcel delivery UPS, complaining service. *3 feasibility to test the cost and service of the Postal had no Service charging per a fixed fee item for each item regulation conducting under statute or by twenty shippers, experiment, mailed selected rather an such an commenced action Pennsylvania calculating postage by than of in the Eastern District of the amount seeking enjoin test. parcel. Service weighing Twenty each individual shippers metropolitan in com- selected five however, asserting The Postal 1 entered munities into contracts with the change its test involved neither a in whereby guaranteed Postal each a Service nor in of mail change rates a classification mailing per of pieces minimum volume meaning the of 39 3622- §§ within day pieces per Delivery require week. and claimed that a Plan did such approval by, or authorization the submission geographic items was limited the Rate Commission.2 by area covered the Postal Service Bulk Facility (intra- serving shipper Mail and submitted UPS delivery). plan eligible BMC Under test stipula- a the issues to the court on district (1) parcel articles were items mailable as together with exhibits tion facts certain post single piece third class mail. Although expressing its be- and affidavits. (i. e., policy the parcels pure “Nonmachineable outsides” lief that “as a matter of by the result advocated require pro- unusual dimensions which hand F.Supp. . .” more desirable . cessing) eligible were not arti- articles. The 863, the court held the test district containerized, cles had to be addressed for change plan effected a in a rate and delivery in the BMC service area and all UPS, Agreeing a mail classification. with special parcels service had to be isolated. thereupon on July it entered an order Sample weighings randomly selected “ permanently 1978 which . . . en- items shipment in bulk were used to joined Service], United States Postal [the average weight determine the of all items. operation parcel continuing post from in mailing The cost of item on each was based as the Test Plan known average weight thus determined. The complied such it has until time as cost shipper mailing to the more 50 or provisions (which of 39 U.S.C. 3622-25 averaging items pounds five less was here).” The applicable we have held stat- per per cents item. The cost item when which held to be' utes the district court average five, weight item was but over applicable and with Ser- twenty, pounds under was per item. $1.15 obliged comply require vice This postage payment system fixed-fee decision the Rate Commis- recommended postage eliminated need to calculate approving plan. appeal test This sion individually event, on parcel. any each In followed. the cost of mailing item test an under the II plan substantially differed from the cost mailing by regular parcel the same item dissatisfaction post under the mail inefficiency peak rates and classification in 1970. It was reached Seattle, Worth, Omaha, prevailing 1: Dallas-Ft. Boston were same as classifications Washington, D. C. shippers. established for all Nor has the other argued Commis- Postal Service ever that Rate 2. At no time did the Postal Service contend sought approval required if sion would not be it charged shippers partici- that the rates to the plan any institute of its test or the feature pating being charged plan test then were same rates plan permanent nationwide ba- itself on parcel regular post mailings. tor sis. urged Nor has it that the under classifications twenty shippers the test for the selected then that the Postal Service was established ommended rate decision made pursuant Reorganization to the Act. Con- be modified the Gov- gressional postal policy declarations of re- carefully spelled ernors are out sulted in a direction that the Postal Service language of the bill. “operated be as a basic and fundamental expected It is that the Commission will ” provided service people . . . work harmony with the Board of Gov- 101(a). time,
39 U.S.C. At the same Con- ernors, acting timely responsive in a gress “[p]ostal commanded that rates shall manner to the requests Board’s for rec- apportion established to the costs of all rates, ommended decisions for postal operations to all users of the mail on fees and classifications. a fair equitable basis.” 39 U.S.C. In discharging highly important re- 101(d). In order to eliminate effect Commission, sponsibilities vested politics special lobbying interest on *4 judgment must exercise its best to insure rate-setting classification, and mail Con- rates, fees, postal that all and classifica- gress completely delegated rate-setting its tions are equitable, reasonable and and to authority. power The to set post- rates of rights insure that the of all mail users are age and to establish classes of mail was protected, throughout ratemaking vested in Presidentially the nine appointed process, by and classification careful con- Governors3 of the Postal Service. That specific public-inter- sideration of all the power, however, was limited to the extent est factors requires that the statute that Governors’ over rates account, taken into faithful adher- only classifications could be exercised ratemaking ence to all of the and classifi- comprehensive after review and recommen- statute, cation standards set forth in the dation Commission, the Postal Rate 91-912, iS.Rep. Cong., 91st 2d Sess. at 13-14. regulatory agency created establishing In “partnership” between ratemaking oversee the and mail classifi- the Board of Governors and the Rate Com- process. cation mission, expressed the Senate Committee The Postal Rate complete- Commission is fear that: ly independent of the Postal Service. It is if the Board of Governors were authoriz- comprised of five appointed Commissioners revenues, place ed to control it would by the President with the advice and con- them position in a of some businesses in sent of the Senate. 39 U.S.C. 3601. The § private economy pric- sector of the — concept of the Postal Rate Commission in ing eye with one . . . over their statutory schema was described in the shoulder to the effect of the cost of an Report Senate in these terms: upcoming agreement. labor-management The Reorganization bill [Postal Act] Id. at 13. provides that the Postal Rate Commission example As an of the need for inde shall be a body fully independent of the Commission, pendence of the Rate the Sen Board of Governors fully indepen- ate proposal Committee referred to a dent of influence whatsoever of the raise first-class mail rates: Postmaster General or of members of his staff. The independence proposal The recent for a Commission’s 10-cent first- contemplated as being complete stamp from the class in order to raise sufficient other postal service, arms of the subject revenue to balance the books of the Post pf to no subordination within the ser- single step proof Office in one is fair vice expressed either implied. quest catching up with costs. limited circumstances under which a rec- Most of money postal system 102(3). 3. 39 ap- U.S.C. plus The Governors are has eleven members —the nine Governors pointed with the Deputy advice and consent of the the Postmaster General and Postmaster represent Senate and are to interest General both of whom are ofñcers of the Postal powers in the exercise of the appointed by of the Postal Service and are the Governors. the Board of Governors. The Board mists, 100-per- comes from first-class mail. A analysts, trained rate like.” cent increase in the rates for all second- H.Rep. 91-1104, Cong. & U.S.Code Admin. produce class mail would not as much 1970, p. supra, News a 5-percent revenue as increase recognizing The Postal while rate. temptation first-class to re- changes in rates and mail classifica- problems solve the financial of the Post pur- are practical tions committed for all by charging the Office lion’s share of all Commission, poses to the Rate nevertheless operational costs strong; to first class is argues obliged us before that it was not big money that’s where the is. The ne- submit its the Rate parcel post test cessity preventing imposition Essentially argu- Commission. it bases class of mail which the on ment the assertion that no general public uses is one of the reasons rates or were involved. mail classifications why the Postal Rate Commission should contrary Additionally argues that inter- be independent operating manage- pretation of the Act be inconsistent ment. flexi- intent increase Id. at 13. It Senate’s view of the bility and Postal control over Rate ultimately pre- Commission which operations. vailed in consequently conference and view expression now finds in 39 U.S.C. provisions 3621-28. The these stat- *5 Ill utes implement concepts the impor- deemed requires any change that § Thus, by tant the Senate Committee. after by in postage a rate of be recommended the
one the of most extensive studies in the are nine Postal Rate Commission.4 There history, Committee’s S.Rep. 91-912 at the. specified policies to factors in addition the postal legislation which was enacted trans- 101) (see of the Act 39 U.S.C. which the § ferred from a burdened to the its maicing Commission is to in consider Postal Rate Commission “highly the intri- recommendation, 3622(b)(l)-(9). 39 U.S.C. § problems cate of ratemaking.” It did so postal changes subject because the of rate structure Just as in rates are the “need[ed] the professional fulltime skills changes of econo- in mail classification are § postal 39 U.S.C. § Rates and Fees indirect costs attributable to that class type plus portion or of (a) that of all other costs From time to time the Postal Service assignable reasonably the request Postal Service shall the Postal Rate Commission to type; or such class changes submit a recommended decision on (4) postage in the effect of rate a rate or rates of in increases the or a fee or fees users, postal general public, for services if the business mail and en- Postal Service deter- changes terprises economy private mines that such would be in in the sector of engaged delivery interest and in accordance with the in the mail of matter other policies letters; of this title. The Postal Service than suggestions adjustments (5) submit such for rate available alternative means send- as it deems ing suitable. receiving and letters mail mat- and other (b) Upon receiving request, costs; the Commis- ter at reasonable sion shall make a recommended decision on (6) degree preparation mail for request changes for in rates fees or in by delivery postal system performed into type each class of mail or in of service ac- upon reducing and effect costs the mailer its policies cordance with the of this and title Service; to the Postal following factors: (7) simplicity of structure entire (1) the establishment and maintenance of a simple, and schedule identifiable relation- equitable schedule; fair and ships charged between the rates or fees (2) actually the value of the mail service services; postal various classes of mail for provided type each class or of mail service to (8) educational, cultural, scientific, and recipient, including both the sender and the recipient informational value to the of mail collection, but not limited to the mode of matter; and transportation, delivery; priority and (9) such other factors as requirement that each class mail appropriate. deems type or of mail service bear the direct and subject provisions to the 3623.5 That al of experiments, § it equal- requires any change section in mail ly clear that these statutes contain no ex- classification be recommended or initiated press exception experiments which in- by poli- the Postal Rate Commission. The changes volve in rates and classifications. specified cies of the Act and six factors are recognize We the Postal Service is to be considered Commission in rec- duty “plan, under a develop, promote, ommending any change. such classification provide adequate postal efficient 3623(c)(l)-(6). 39 U.S.C. § services at fair and reasonable rates and Service, contrary The Postal argu- 403(a). fees.” 39 U.S.C. discharging In UPS, ment of contends plan duty its develop, we can under- issue here does not “change” involve a in stand the desire of the Postal Service to any “rate” or “mail classification.” As plans experiments institute test so that such, the Postal Service asserts that its test However, efficiencies will result. it plan need not be submitted to the Rate apparent fulfilling duty its Commission, and it therefore need not ob- “plan, develop promote,” the Postal [and] tain a body. recommended decision of that just subject Service is to the rate and agree. cannot We provisions Chapter classification 36 of Act, seq. 39 U.S.C. 3601 et as it is
A fulfilling duty “provide adequate The Postal Service claims that be efficient services at fair and reasona- cause express 3622-23 do not their ble rates and fees.” Under the Act no require terms' a recommended decision for distinction experiments is made in favor of experiments, the conduct of may experi or tests which involve in rates or ment marketplace or test Rather, without mail classification. the Act is com- complying statutory requirements pletely unequivocal requiring all changes involving submissions to the any Rate Commis rates and mail classification to difficulty sion. The argument with this processed is be through the Commis- *6 that while it is clear that 3622-23 posture, do not sion. In such a the Postal Service expressly require Rate approv- argument which relies on an absence of 5. 39 (3) importance providing § 3623. Mail Classification the of classifica- extremely high degrees tions with of reliabili- (a) years Within 2 after the effective date ty speed delivery; and of subchapter, of this the Postal Service shall (4) importance providing the of classifica- request the Postal Rate Commission to make require extremely high tions which do not an establishing a recommended decision on a degree reliability speed delivery; of of mail classification schedule in accordance (5) desirability special the of classifications provisions of this section. point from the of the view of both user and of (b) Following the establishment of the mail Service; requested classification schedule under sub- (6) other (a) such factors as the Commission section, section of this the Postal Service may appropriate. deem may request from time to time that the Com- (d) submit, The Postal Service shall maintain one mission or the Commission sub- or more classes initiative, of mail for the transmission mit to the Governors on its own a letters, against inspection. of sealed The rate recommended decision on in the through- for each such class shall be uniform mail classification schedule. States, (c) pos- out the United its territories and The Commission shall make a recom- provide establishing sessions. changing mended One such class shall for decision on or expeditious handling transpor- policies the schedule most in accordance with the by following of tation this title and the afforded mail matter factors: (1) the Service. No establishment and letter of such a class of domes- maintenance of a equitable origin system opened except fair and tic classification shall be under au- for all mail; thority by of a search warrant authorized law, by people employee the relative value to the or an officer or of purpose kinds of mail matter entered into Postal Service for the sole of deter- system desirability justification mining and the an address at which letter can be special delivered, pursuant for classifications and services of to the authorization of mail; the addressee.
express statute, terminology “change” making tion of is is less alteration or compelling. than different. F.Supp. at 863. B interpreting The wisdom of these argues, however, The Postal Service statutory “ordinary terms in an sense” and parcel post does any not involve giving ordinary them an and common “rate” or “mail let alone classification” meaning is borne out reference to other “change” in or mail any rate classification. sections of For example, the Act. the Act Service, According to the Postal a “rate” is as it employs particular terms involved only a applies “rate” when it and is availa- here, distinguishes post between a rate of ble to the large. entire at Converse- age postage: and an amount of the “rate” ly, claims the a “rate” is not a being charge particular a type for of “rate” twenty when it is restricted se- (i.mail of first class mail e. one ounce for 15 shippers. Similarly, lected con- cents) being postage” of the “amount tends that a “mail classification” is not a charge any particular the total assessed “mail classification” when it is limited to e., prescribed (i. item of mail rate at twenty participants. volunteer class three ounces of first mail at 15 cents advancing respective In their argu postage” results in an “amount of 45 ments meaning “rate”, as to the cents).7 completely It is evident that Postal Service engaged and. UPS have in a per item postage amount of mailed under definitional Each contest. has referred us accordance, plan the test was not varying ap definitions “rate” which any existing rate had been recom pear in Dictionary, Ed., Black’s Law 4th Rather, mended Commission. Rate 1427-28.6 Just as the district court declined postage prescribed the amount of under the to enter such fray, a so do we. The district only by a applying determined court challenge met this to our satisfaction new rate established the Postal Service. by stating: token, By the it is same the mail classifi- meaning
The common of a post “rate of age” post- cation which determines which rate of simply is fee age charges applicable particular item processing, transporting, and Thus, mailed. delivering mail “classification is particular type of mail. mailing Similarly, ordinary ‘grouping’ pur- matter for the understanding of pose specific a mail rate nothing assigning or meth- classification more com plex grouping handling. than a od factors mail Relevant include based on content, size, weight, *7 handling, established and shared ease of criteria. See Na tional Retired identity party recipi- Teachers Ass’n posting v. United of both Service, States 141, Postal v. F.Supp. 430 ent.” Teachers Ass’n National Retired (D.D.C.1977). 146 Service, The interpreta usual F.Supp. United Postal 430 States referring p. example, understanding Postal Service in to For 1427 of its content. to Dictionary, Edition, 4253(a) Black’s Law prescribed postage 4th claims 39 on § U.S.C. “, charge public that a rate is “a by stating [e]xcept for a first class . . as mail open service to all and post- same terms.” provided . . . rate other wise UPS, relying p. on the same age volume weighing on first thirteen ounces class mail recites the definition as follows: “As used in or less is 6 each ounce or fraction of cents for law, the interstate commerce term [the rate] (Italics added). See also an ounce.” 39 U.S.C. shipper means the net cost to of the trans- 4303, 4358-59, 4422, 4452, §§ 4554 and portation property; say, of his that is to the net [1967], sections use term 4556-57 These shipper amount the carrier receives from the and retains.” general “rate” in sense of method postage from the which an amount of due mai- calculated, ler is to be whether that amount is Although specifically “rate” term is not piece, separately for each in 39 as calculated Act, defined in the has nor it been defined in bulk, 4253(a) (1967), U.S.C. or as in 39 § any acts, of the earlier the use of that (1967). U.S.C. 4422 prior gives term to 1970 some affirmed, available, e., (D.D.C.1977), only 593 F.2d i. if it restricted deleted).8 (D.C.Cir.1979) (footnote portion public, of the then the Service Again, imposed the Postal do not con- charges it is evident that Service claims that the employed new mail created de facto a classification stitute a rate and the criteria by virtue of the criteria it constitute a mail plan participation which established do not wit, Hence, participation argues ma- plan, in the classification. Service chineable, containerized, fourth class nationwide anything mail short of such restricting per (such delivered to the BMC in lots of 50 items as availability of a service voluntary day average weight pounds availability twenty with an of 20 selected and mail delivery shippers) trigger less and destined for in the BMC the rate does not Chap- regulatory provisions service area. of these criteria Satisfaction classification entitled the mailer to the fixed fee rate for ter 36 the Act. It therefore concludes calculating postage plan the amount of outlined with its test with- proceed that it prior above. to the Rate Commission. out recourse this reject argument. this In essence We grants The Act Governors position by the Postal would taken Service nondelegable authority exclusive and to es unregulated changes in rates and permit post tablish “classes of mail” and “rates of any time and under mail classification 402, 3621, age”, 39 only but after than all any whereby less circumstances the Governors have received a recom to ben- public of the were entitled members mended decision from the Postal Rate Com stemming changes. from such We efits mission. The Postal on the other Act nothing have been shown hand, only power vested “to the Postal supports the distinction on which prescribe, title, in accordance with this Service relies and we can find no authoriza- amount postage and the manner in which the Act. To tion for such a construction of paid,” it is to be 404(aX2). U.S.C. § proscribes contrary, specifically the Act is thus evident postage amount of discriminating the Postal Service from collected any par on Service among 403(c) its users. 39 U.S.C. reads: piece parcel pre ticular of mail or must be providing in establish- In services and scribed in accordance with established rates classifications, rates, ing and fees under postage and established classes of mail. not, title, shall Service therefore, Pursuant argument to UPS’s in this except specifically as authorized appear the institution of its title, any undue or unreasonable make plan established not mails, among users of the discrimination only a new classification but also new rate or unreason- grant any shall it undue nor for that classification. doing, In so UPS such user. preferences able claims, the usurped Service has the function assigned by Congress to the Rate Commis found, earlier, have and the As recited we sion and the Governors. to, exception pointed no has a test such which would authorize contends, however, here, derogation of this the one instituted that under the Act the terms “rate” and section. “mail classification” apply to a service not,
made not, available to all members and do decide While we need *8 on the same terms. If the service instituted plan is not so could never be that a test Again, although account, against postal (5) 8. the term “class” or “classifi- closed and matter specifically [1967], cation” has inspection.” not been size defined in this The § 39 U.S.C. acts, prior usage applied or prior weight it is evident that class from its to and limitations simply girth grouping length to 1970 that the term means a inches in and were “one hundred physical seventy pounds. of mail on the basis of shared criteria. 39 U.S.C. combined” and example, prior For [1967], first class mail was U.S.C. §§ See also 39 § <1) postal cards, (2) cards, post (3) 4351, 4421, establishing “mailable 4451 and 4551 [1967] wholly partially writing type- matter or in or mail classifications. criteria for other ., writing . . bills and statements of 403(c), mally operation
because of the The Postal § we are accorded that word. Ser- change vice or class persuaded light nevertheless that in contends that a in rate 403(c) only “change” within the mean- view becomes a § Postal Service’s of “rate” ing permanent it is and and 3622-23 when §§ “mail classification” incorrect and limited or experimental, nationwide —not prevail. cannot only temporary. argues that because Not only are the Service’s definitions of postal need changes nationwide in services rate and unsupported by mail classification under submitted to the Rate Commission Act, and indeed inconsistent with 3661,9 intended U.S.C. that § 403(c) indicated, apparent- as we have but jurisdiction over that Rate Commission ly the itself recognized has rates similar- and mail would classifications that the plan test instituted here involves a ly only affecting extend to matters change in .urged rate. The definition However, Act country. entire neither the us here the Postal Service is inconsistent legislative history suggests nor its that with use of the term “rate” as it was em- “change” such qualification upon word ployed by Deputy Postmaster General Wil- 3622- was ever effected in §§ intended or Bolger liam F. he when discussed the test * plan during September a Postal in Forum that such a nation- Although it is true of 1977: respect qualification wide exist does Basically, the main features of the test services, changes postal in the nature program are ... greatly simpli- qualification appears no such fied rate structure based on average 3622-23, with which we in the statutes §§ weights . . . allows mailers [which] respect postal are serv- concerned. With forget weight and zone calculations for ices, contemplated that the Congress clearly ” most intra-BMC deliveries . . vary nature of such from services (Emphasis added.) on local depending one locale to another Fairly read, the “rate” appears term as it population, conditions such sparsity as plan test description is employed in a prohibiting delivery, curbside ordinances sense significantly different from sug- that etc., changes in such services that gested by here, the Postal Service but no relatively small would often affect different meaning given from geographic people number a limited district court approved by us. lack of national in- Recognizing area. requiring conditions purely terest local C services, changes postal in the nature Consistent with its denial that the Congress require did not Rate Commission charges imposed upon participants in the action were when such localized “rates,” were and that the test However, effected. when a nationwide plan itself constituted new “mail classifi substantially postal service nationwide cation”, the urges Postal Service also change proposed, Congress required then the term “change” it appears change 3622- proposed be submitted to 23 has a meaning different from a recom- that nor- Rate Commission—not for (c) 39 U.S.C. § 3661. Postal Services issue its Commission shall not opinion any proposal opportunity (a) on until an develop The Postal Service shall hearing promote on the record under sections 556 adequate and efficient serv- been accorded to the ices. 557 of title 5 has mail, (b) users and an When the Postal Service determines . change re- there officer of the Commission who shall be should be a in the nature of quired represent gener- generally services interests of the which will affect substantially public. opinion writing service on a nationwide or al shall be in na- basis, proposal, tionwide it shall submit a shall include a certification each Commis- prior opinion within a agreeing reasonable time to the effec- in his sioner proposal, tive date poli- of such to the judgment opinion Postal Rate conforms requesting advisory opinion *9 Commission an this title. cies established under change. on the
1379 (as required charged mended for a protecting.10 decision rate or with As the D.C. Cir- change) merely classification but for an ad- explained, cuit albeit but in a different visory (and opinion. hence not binding) context, analogous is us that obvious to the substantive differ- pur- reasonable examination of the (services) ences in 3661 as contrasted with § poses Congress’ of the Act discloses im- (rates) (classifications) 3662 and § 3623 § plicit design that the distinct functions of Congressional reflect different concerns and provision service adjustment and rate therefore Congressional require- different divided between ments. such per- Under circumstances we expertise the Rate Commission. The of ceive attempting little value in to construe supposedly Postal Service is man- §§ 3622-23 reference to § We agement, rea- authority and its therefore perceive even less attempting judi- value in per- sonably extends to basic decisions cially to impose plain on the and'compre- taining provision special, non- 3622-23, hensive special terms §§ postal and other services. The Postal provisions Congress incorporated Commission, however, Rate created was manifestly § purposes different ratemaking oversee specifically to Moreover, and reasons. quite it clear process. expertise setting of Its is in the that, if had to qualify intended equitable, rates and fees are fair and provisions §§ 3622-23 requiring reasonably ex- and its therefore Rate approval Commission only nation- decisions, aspects tends to all of such in- changes, wide accomplished have could estimates, cluding budget allo- review task in the same as manner it did in costs, postal cation of establishment of § 3661. and, rates seem postage, it would Furthermore, if we to interpret were plainly, setting spe- those of fees for 3622-23 urges, as we management cial decides services which would be permitting the Service make provided. should be substantial de facto unregulated Card Pub Greeting National Association of changes in either rates or mail classifica- Service, 186 lishers v. States Postal United tions so as long the changes made were 331, 358, U.S.App.D.C. F.2d “permanent” neither nor “nationwide”. , here, part not relevant vacated in Such a view finds support no in the Act or 434 U.S. 54 L.Ed.2d 98 S.Ct. legislative Indeed, history. such a (1977). construction of the capable Act is of com- pletely Thus undermining persuasive we do find Congressional not regula- tion via the Rate twen- Service contention that because Commission those as- pects ty in its test affairs were involved participants which are most heav- ily infused with classi- interest —an in- no in a “rate” or “mail “change” terest which the Rate Commission is fication” has effected.11 been of, 10. The placed Postal Service’s construction also at on Rate Commission consideration odds on, public hearings the thrust of changes intent is there- rate evident in the 1976 Permitting experiments amendments to the fore which in- Act. evident. time, Prior changes to that the Rate Commission volve rates and mail classifications required effectively request act would periments” Such “ex- for a overrule rate change any specified period within continued be commenced and time could throughout under Rate 39 U.S.C. 3641 10-month course of Com- Postal Service could consideration, experi- temporary long change days institute mission so as the rate after nationwide, permanent Rate lays ment was nor Commission neither submission. Substantial de- according interpretation. produced Service’s to the Postal action new re- quests for rate before final action was expressed 11. The conclusion requests. remedy this, district court taken on older To Con- gress required follows: that the Rate Commission act simultaneously within 10 nothing “plainer” months but amended There is fact than the preclude § 3641 to the Postal Service from rates have been and classifications instituting temporary change changed participants rate until that as to the in the Service period elapsed. premium 10-month had Test Plan. When the rates classifica- *10 1380
IV which necessarily precluded by other are (§§ 3622-23) specifically sections of the Act earlier, As we indicated the Postal Ser- mandating the rates major vice’s manner which and other contention is that- Con- gress recognize intended to mail the need for classifications must be established. increased flexibility and Postal Service con- general powers provision like section “[A] postal trol operations over so that the Ser- [401(10) may ordinarily here at issue] readily vice respond postal could more to specific override provision such as section argues The needs. district 403(a) 404(a)(2) Chapter as and 36 [s here].” interpretation court’s of the Act is there- Greeting National Association of Card Pub fore inconsistent with inten- lishers v. United Postal su States tion. pra, U.S.App.D.C. 569 F.2d at revealed, As our has we do not discussion Thus, any 597. power the Postal Service that, despite Congressional believe pub- and may to engage have marketplace experi lic desire for efficiency increased in the ments not be permit exercised so toas postal service, specific plain provi- impose the Postal Service or to rates estab sions rate and classification sections compliance lish mail classifications absent ignored. Accordingly, can be we are not Chapter Act, with 36 of the 39 U.S.C. impressed argu- with Postal Service’s seq.14 3601 et given “plan, it ment that mandate to to Supplementing “flexibility” its and “con- promote, provide develop, adequate argument, trol” the Postal Service addition- services,” 403(a), efficient 39 U.S.C. § ally argues requiring submission supersedes specific and overrides the re- plans unduly to the Rate Commission sponsibilities imposed in the first instance burdensome. We do not here hold that all upon the Rate Commission and thereafter plans” “test must the Governors determine the be submitted to Rate rates components (see B, classifications which are g. supra, p. Commission e. Part III “postal services” the Postal 1377). Ser- hold, however, We do any pro- provide. vice is to posal change which would effect a in mail rate, including or a a test or classification general powers provision of 39 features, those must embodying 401(10)12may well vest the Postal Commission, Rate submitted to the no Service with to conduct market experimental, temporary, matter how or place experiments.13 Assuming arguendo scope change. limited in As to the authority, existence of such we are submissions, we ob- nevertheless burdensomeness of such reject constrained to the Post al interpretation general Service’s serve that the Rate in C.F.R. grant power authorizing activities 3001.54(s) [1978] has provided that: applicable appeal. tions certain users or on Under circum- briefed these changed, have in fact been we appropriate find it do to dis- stances we not deem conceptually linguistically both bizarre cuss or resolve that issue. say although certain rates and changed, classifications have been there has court, recognizing le- The district while change not been a or rates classifica- argument, gitimacy of Service’s postage. tion of expressed disagreement with nevertheless F.Supp. at 865. by stating: Service’s conclusion 12. The Postal Service shall “have all other very function of existence and powers incidental, necessary, appropriate bespeaks a limitation on Rate Commission postal management’s carrying on of its functions or the exercise freedom. specific powers.” of its Thus, although requiring Ser- that the Postal go vice to the Postal Rate Commission Contrary suggestion of the dissent might impede marketplace experiments one n.9, (see p. 1378), the issue whether promote congressional purpose, it an- statutory power engage Postal Service has other. marketplace experiments with Rate Commis- F.Supp. at 869. approval sion not before us. was not court, raised in district nor itwas addressed *11 may, upon filing accept placed upon The' the construction Act the. Service, proper by Service, of a motion the Postal by including the Postal the various together showing good with a cause pre- arguments definitional which we have therefor, filing of the re- waive certain rejected. viously (b)-(r) quirements paragraphs of this in Na- This same contention was made judgment section if in the Commission’s Greeting tional Association of Card Publish- it has pro- been demonstrated that Service, supra, ers v. United Postal States posed change postage in a rate or rates of n.110, U.S.App.D.C. at 357 569 F.2d and a fee or fees for services does to de- 596 n.110. The court there .declined significantly change the then effec- interpretation on fer to the Postal Service’s tive rates and fees or alter the cost-reve- the D.C. grounds. two In the first instance relationships nue of the various classes “con- Circuit found the Postal Service’s types services. pre- and ‘narrow’ to struction too ‘curious’ provid- Thus the Rate Commission itself has reading of the vail over a commonsense ed a measure of relief from the burdens statute,” equally appropriate an observation hypothesized by the Postal and of Service here, with which we are in accord. and one Moreover, complains.15 which it if indeed Second, there, recognized as we do it was truly Service conceives that it is here, to deference agency entitled Act, by burdened our construction of the interpretation of 39 3622- in the U.S.C. §§ should address that concern to the Con- 24 is the Rate Commission —not the Postal gress, present for in the do no context we Service —as it is the Rate Commission which Congressional more than enforce the com- charged making recommended deci- mand.16 changes sions on in rates and mail classifi-
V cation. Although the Postal ad Service Both of these reasons are sufficient arguments vances other additional all of grounds rejecting the Postal Service’s predicated interpretation which are on its judicial regarding contentions deference to Act, argu of the we do not find that those interpretations. administrative ments merit discussion. One final conten tion, though, response. does warrant our VI The Postal contends that we should Service Thus, great by giving ordinary the common and interpretation accord deference to its of the Reorganization meaning Postal to the relevant terms of 3622- doing Act. In §§ so, we of thereby course would obliged apparent parcel post it is regulation challenged pressed by appropriate 15. This has never been the dissent are more express opinion legislative judicial and hence we validity. no as to its rather than consideration jurists and action. re- Our function compliance quire with those statutes enacted point 16. The dissent is unable to authori- by Congress. In this case it is not for us to ty, legislative history supporting statute or postal policy substitute our view of for the Congress bypass contention that intended to legislation passed by Congress. which has been override the rate and classification mandates of Certainly Congress modify is free to its enact- they impact upon §§ 3622-23 when the mana- ments so as to accommodate the considera- gerial assigned functions to the Postal Service. by fact, suggested tions the dissent and in we acknowledges Indeed the dissent that the Act adjustments might applaud legislative if such legislative history and its spect. are silent in this re- Failing by Congress, their enactment made. however, premises argu- its entire dissent recognizing has ment on efficiency efforts to increase the explicitly required rate and classification all Service, evidenced Con- changes exception without to be submitted to gress giving manage- the Postal Service full Commission, it is our we do not think authority (Dissent, pp. 1383-1384) ment —an Act, minimum, function to rewrite the or at a argument which not even the Postal Service legislative exception to create where none is emphasized any great extent. intimated. dissent, Our more basic difference with the however, is our belief that the concerns ex- plan at issue here involved tomarily fashion, thorough noted that “as a postage rates of pure matter of policy classification of mail. the result advocated so, This being is more it was incumbent on desirable.” United Parcel v. Service to resort United States to the Rate Com- (E.D. 455 F.Supp. mission as mandated 3622-23. did Pa.1976). However, majority he and the not do result, so. As a the district court have concluded precludes the statute under date *12 July enjoined 1978 experiment proposed by even the modest Postal continuing Service from operation agree I Postal Service in this case. the Service Test Plan until such time as it is result advocated the Postal Service complied has provisions with the of 39 But, far disagree more desirable. I with U.S.C. 3622-25. §§ majority, below, and the court because Having concluded that the district court decision, view, my their from makes no err, did 19,1978 we will affirm the July against sense when considered the relevant order. legislative Thus, history. I dissent. A. HIGGINBOTHAM, Jr., LEON Circuit II. Judge, dissenting. observes, As the majority’s opinion Postal Service and the Postal Rate Commis- I. (Commission) sion were established under Competition, experimentation and cre- Reorganization 1970, the Postal Act of 39 policies ative business designed to better (the Act), 101-5605 which created serve the highly consumer are valued in comprehensive a new and scheme for the society. American The traditional folklore management postal system,1 of the nation’s has been that one competition beats his by so that handled nation’s mail could be “building or, mousetrap,” better efficiently in the more and with expense. less case, context of this by providing better Acting Congressional in accord with this delivery services. The majority rejects design, attempted has Service these traditional values —so they say, be- undertake very temporary small and ex- cause statutory Thus, of a mandate. we periment develop in order to a new tech- paradox of the United Parcel have Ser- nique parcel post deliver more efficient- (UPS) vice one of the United States Postal ly. experiment The was to involve (Postal Service) major Service’s competitors, areas, twenty shippers metropolitan in five preventing the Postal from Service under- 907,000 who were to handle about items of taking on its own a modest Ct., and limited mail. Defendant’s Brief Before Dist. experiment 1(A)-1(R). which is a relatively small Exhibits compared When threat, any, if plaintiffs, involving approximately 92.2 billion no items of mail parcel more and 387 million items twenty post than that the shippers selected in no 1977, processed more than the limited five metropolitan areas. As I nature of this applicable statutes, view the self-evident. Ser- Commerce, Department of Ab- Statistical vice need not prevented be shackled and 585, stract of the (1978); United States 587 from pursuing such experimenta- modest Appendix, Joint at 29. tion. It has experiment, some latitude to without indulging in further bureaucratic appeal In this presented we are processes, and to determine whether a questions Congress of how intended for can be provide devised to the American postal management new to modernize public with better major service and its system Congress placed and where competitor with more competition. robust responsibility supervising rate below, judge learned trial in his cus- experiments. classification 1. The Act also established a fourteen member tions.” 39 U.S.C. 206. The role of the Advis- Advisory ory appeal. Council to advise the Council is not raised in this aspects postal opera- Postal Service on “all
1383 object purpose have some to accom- decipher In order to question, imaginative the Act plish, sympathetic scheme and resolve this whose legislative must guide and its extensive materials to their discovery is the surest a review be reviewed. I am convinced that meaning. legislative totality materials their Markham, (2d Cabell v. 148 F.2d important legis- where the especially here Cir.), aff’d, U.S. S.Ct. comprehen- designed lation was to effect a in, v. quoted L.Ed. 165 United States reorganization. sive Cerilli, 415, 429(3d 1979)(Aldi F.2d Cir. majority language on the focuses sert, J., dissenting). Arguably urges sections 3622 36232 and might have intended for sections 3622 and provisions place responsibility these experiments, although they 3623 to cover supervising experi- rate classification experiments. make no reference The ma ments in the hands of the Rate Commission. jority argues that the absence of such a sure, challenged experiment To be in- reference supports their view of the Act. *13 way “change” volves a in the the limited equally plausible It seems to me that it program participants number of send their possible scope indicates a limitation on the parcel post. It is also evident authority. Commission’s The ease “rates” and “classifications” used in this arguments with which contrary can be experiment are different from those nor- made about the importance of the absence
mally applied to the Postal Service’s cus- single of a word in the strengthens statute However, tomers. it is not self-evident my conviction that legislative resort to the temporary whether and small-scale history is essential. “changes” which occur as a result of an case, Congression- inquiry In this our into “changes” Congress are the al intent is made difficult the fact
referring to when it drafted these sections legislative are also silent materials of the Act. The decision to make a national experiments. about rate and classification permanent change or rate or classification However, obliged an answer we are to find management is a decision of a different materials from and therefore must resort to quality from a decision to undertake an can be Congressional which the intent experiment. least, very At the different inferred. may criteria of evaluation be used and dif-
ferent results flow from the decision. Therefore, before these sections are read to III. experiments cover necessary it is to unravel management Congress scheme envi- A. sioned. entirety reviewing the Act in its After history, I am convinced majority by analysing legislative does so and its wheth- ordinary, plain, Congress permit er the dictionary, regula- or intended “rates,” tory definitions words “clas- to undertake rate and classification Service “change” sifications” and experiments are to be used. that it did not intend for so, doing majority In ap- misses the essen- to seek Commission Service question: tial experi- Whether these sections were proval such an before undertook give intended to the Commission the re- because ment. I reach this conclusion sponsibility supervising rate and classifi- overwhelming contained in the evidence experiments. cation As Congress Learned Hand legislative history that shows that said: give went effort to considerable
[Ijt management authority. is one of full the surest indexes of a strip away and not cre- developed jurisprudence mature and not wished to managerial to make a control so dictionary; layers fortress out of the ate operation but to remember modes of always that statutes new and more efficient Majority opinion, supra, 2. See 5 for text of statutes. at nn. & developed primarily managerial part could be and could from lack flexi- become postal system. bility and from a lack of cen- our nation’s Commission freedom example, the Senate review of tralized control. For experiments would be inconsist- Report accompanied ver- Congressional ent Senate purpose. with that Moreover, sion of the Act stated: nothing I have legis- found lative materials that shows that is Commis- Postmaster General blocked [T]he labyrinth sion every review was turn nevertheless intended. In- undercut deed, echoing every postal statutes con- references to the con- cern, interest, expressed by or whim Con- tained both the Act the legislative gress year period over a . history show that the Commission was es- leaving the Postmaster General bound might tablished and structured so it address he his own house. Twist turn as concerns that are implicated in the ex- may, he cannot function perimentation process. responsible manager. interest as a B. Sen.Rep., supra, at case, others, many legis- In this as in Report House stated: ambiguous many lative history is re- apparent has that all the now become gards. arising But ambiguity above all shortcomings Depart- Office of The Post conviction that the Postal up in fact that re- ment are bound efficient, utilizing should more system managing the sponsibility for managerial techniques modern rather than agencies aby shared of executive number sinking further into its maelstrom and that congressional several committees. *14 have, the Postal Service should in most H.Rep., supra, at also President’s 3653. See instances, authority full to undertake that Commission, supra, at 33-43. effort. designed to The Act was correct debates, reports, and systems problem. New more efficient and legislative other replete materials are developed. managers were to be new with references to the inefficiencies the would
pre-1970 postal system. example, For modern, lasting create a foundation for a Report House stated: institution dynamic, postal and viable equipped empowered at all that is and years grow-
For several there has been a satisfy postal requirements times to ing awareness . . . that our vast future. complex sprawling postal heavily is over- deep burdened Delays, and trouble. H.Rep., supra, at 3650.
breakdowns, errors, damage, other major And the Postal was to have inconvenience to the have become development responsibility for the of those frequent. more and more systems. Report new The House stated: H.Rep.No.91-1104, Cong., 91st 2d Sess. empowered to The Postal Service is en- (1970) reprinted [1970] U.S.Code Cong. & gage in research and development pro- Admin.News 3652 H.Rep.] grams expansion See directed toward the [hereinafter S.Rep.No.91-912, Cong., develop- also present postal 91st 2d Sess. 2 service and (1970) Sen.Rep.]; responsive ment of new services Remarks of [hereinafter Dulski, evolving Rep. (June 16, needs of United Cong.Rec.19844 States. 1970); Towards Postal Excellence the Re- supra, pro- itself H.Rep., 3657. The Act port of The President’s on Commission plan, vides that “shall Organization 1-14 develop, promote, provide [herein- adequate after President’s postal Commission]. § efficient services.” U.S.C.
These replete materials are also with ref- Further, Congress felt it is evident that Congress erences that accomplished show that believed could be that modernization these provided deficiencies were caused ineffec- only if the Postal Service was management, tive authority which in turn resulted to undertake its duties. broad Report supporting The House that a real- stated Act becomes ity. designed was 3665; H.Rep., supra, at handicaps serious that are
[eliminate now imposed postal on the service Ample evidence is available to show that financial, legislative, budgetary, certain Congress intended for the Postal Service to personnel policies outmoded, are that be involved with rate and classification unnecessary, changes. and inconsistent with the management prac-
modern and business Most is the dramatic fact the Act tices that must be if the available Ameri- very explicitly states that the Postal Ser- can public enjoy is to efficient eco- vice and not the Commission has the final nomical service. rates to set and classifications. provides: The Act H.Rep., supra, at 3650. It also stated: Upon receiving a recommended decision problems to these solution is [T]he Commission, from the Postal Rate puts complete fundamental reform that Governors Postal Service] [of responsibility single in a place, ap- with approve, protest, reject, under allow propriate safeguards against abuse of modify that decision. 39 3625.3 U.S.C. responsibility. Moreover, there evidence that shows Id. at 3653. intended for the Postal Ser- agreed. report The Senate Its stated: provide vice to Commission infor- is not a halfway measure. Its mation so could [The make Act] objective rate establish a structure decisions about and classification changes. and a operating method of that will en- management
trust the
of the U.S. Postal
For
one of
example,
Congress’s concerns
guidelines
within
policy
broad
pre-1970
process
about the
rate-making
designed
protect
mailer,
ordinary
that costs
to a
class
particular
attributable
responsible public
officials.
charged
mail were often not
to that class
Act,
of mail. Under the
each class of mail
Sen.Rep., supra, at 3.
was to bear
own costs. 39
*15
managerial
Thus modernization and
free-
simple
was
perhaps
theory,
While
a
antic-
dom
prime Congressional objectives.
were
ipated
implementation
that
of this mandate
because,
would be
under
the
difficult
accounting system
used
the Post Office
C.
Department,
readily
costs could not
be at-
It is
Congress
also evident
anticipa-
that
tributed
mail.
particular
to a
class of
Pres-
ted that rates and classifications would be
Commission, supra,
ident’s
at 132-35.
changed
development
as a result of the
of
Postal
was
empowered
thus
more
systems
efficient
and that
given Congressional
develop
to
mandate
Service would be
process.
involved in that
an accounting system
permitted
that
cost
The interrelationship between rates and
accurately
attribution
could
so rates
be
set.
changes
classifications
and the moderniza-
2008, 2009,
39 U.S.C.
Associa-
See
tion of
services was discussed in the
tion of
Publishers v.
of
American
Governors
House Report which
397,
stated:
Service,
U.S.App.D.C.
U.S. Postal
157
(1973).
Since the Postal required Service will be provide postal to services “at reasonable disagree I therefore with the Court of fees,” and equitable rates and Columbia, massive Appeals for the District of far-reaching improvement implied quotes, language majority the efficiency must be achieved before a self- that rates were Commis- and classifications provides request may modify The full text the that event that and if still dissatisfied it or reject modify reject the Postal Service wishes to the decision if it is inconsistent with the decision, produce the Service must resubmit Act or if it will insufficient revenues. 1386
sion
F.C.C.,
and that
Telegraph
business
United
v.
Workers
190, 194,
920,
was
nothing
U.S.App.D.C.
to have
F.2d
to do with those
mat-
congressional
(1972) (“This expression
ters.4
of
de
National Association of Greeting
encourage techno
sire that the Commission
Card Publishers v. United States Postal
logical
requires
to demand a
innovation
us
381,
U.S.App.D.C.
1387 Congress Another did not Sections 3622 and 3623 also make no ref indication review ex- to have the Commission intend erence experi to rate and classification in sections 3622 and periments is also found Again, totality they ments. read in their 3622(b) and provisions, section 3623. These give example, us some assistance. For 3623(c), section state that the Commission’s specific process statutes outline a which the decisions are to be made accordance Commission must follow when it rate makes a number policies of the Act and with and classification decisions. Section 3624fur factors, These of itemized factors.7 - provides ap ther Commission can the relative value include factors such as prove request by only the Postal Service af effect of mail transmitted and the kind hearing opportunity ter an for a conducted general public of rate increases pursuant to the Administrative Procedure applicable experiments. generally are not granted.6 Act process has been This is simply 3622(b)(4) 3623 and § E.g., 39 U.S.C. § productive not a managerial one when a Moreover, the factors some (c)(2). necessity decision as to the develop for the that cannot be involve cost evaluations system ment of data on change being complete. experiment made before an Moreover, made. the information that 3622(b)(5) (6). 39 & U.S.C. § necessary meaningful would be to have a Finally, an examination of the reasons hearing on the desirability change of the given support were the Commis- would not be available experiment until the that the sion’s creation leads me to conclude CAB, is conducted. Cf. Delta Airlines v. designed supervise was not are, 272, 276, 1340, 147 U.S.App.D.C. 455 F.2d These reasons experiments. major policy when part, most relevant (“The CAB in reality is not able made, integrity decisions are when investigate testing without how this ex threatened, or could be perimental works.”) tariff actually underlying purposes when one of the Act’s CAB, American Airlines v. U.S.App. concerns could be frustrated. These are not 310, 319, D.C. denied, 359 F.2d 633 cert. during experiment. which arise an S.Ct. L.Ed.2d 75 U.S. First, many Congress members of were (1966) (“A experience month of will be they wanted the Post- concerned that while year worth a hearings.”). operate as an efficient busi- al Service to addition, In during I envision that enterprise, they were concerned ness process experiment of an the Postal Service might wish modify portion some of the oper- be in fact and shall experimental design on rates or classifica- people, ated as a service to the American tions. Under majority’s reading designed to enterprise, not as a business statute, hearings necessary. would be I provide postal service. excellent cannot believe intended so absurd Sen.Rep., supra, at example, result. For during the course of It was felt that the Commission would challenged here the Postal balance, and necessary able to strike the might packages decide that were would ensure that rates reflected falling in weight different groups than objectives only management but also served originally anticipated wish to non- public purposes, g., broader e. certain change weight classifications in the ex- given special profit organizations might be periment. *17 simply would make no sense purposes are public rates. These broader to hearing have a to make the implicated by experiment. modification. not an Service, provides: 6. 39 U.S.C. § 3624 has been accorded to the Postal mails, users of the and an officer of the (a) The Postal Rate Commission shall rep- required Commission who shall be promptly request consider a sec- made under public. general resent the interests of the title, except tion 3622 or 3623 of this that the Commission shall not recommend a decision Majority opinion, supra, 7. See at 1374-1375 opportunity hearing until for a on the n.4, & n.5 for the text of the statute. record under sections 556 and 557 of title 5 Seryice A impetus second “Local Parcel Test Plan” for establishment was creat- of the Commission sentiment that managerial authority ed purposes.8 for some distance day-to-day opera- from the experi- temporary undertake limited and might tions of the Postal be neces- ments does permit not return to sary to make sound business decisions on days every group imaginable when interest Opinion, Majority’s supra, rates. See special permanent had rates established experiment Again 1373-1374. not an Moreover, political them. influence on the tamper concern, would, with this if experiment decision to an or to undertake anything, permit give the Postal Service to simply choose a is participant as dan- per- the Commission information it needs to gerous policy where national on decisions form this function. is made. Congress was also concerned about the protect public In our zeal we must impact political pressure had had on rate public always remember is not and classification determinations. Under protected by regulation and more su- more reorganization, Congress wished to de- pervision. overwhelming mes- That is the sign system that would be as free from sage Reorganization Act. In- political possible, influence as where ex- deed, case, impose regu- this the effort perts could decisions make based on the to re- lation Service and problems technical running quire spear- it to seek review is system and not the particu- effectiveness of gen- by representative headed not of the lobbyists. See, Remarks, g., lar e. Sen. McGee, public eral but one of the Postal Ser- Cong.Rec. (1970). major vice’s (cid:127) competitors, the United Parcel The Commission was seen as a solution to Service. problem. this report The House stated: provides The Commission rejects an invaluable majority present plan be- management buffer between the of the hypothesizes cause it possible Service and the influence approve shippers experiment twenty an (cid:127) partisan politics. Insulation par- from areas metropolitan permit five “would politics tisan is one of the principal pur- unregulated rates and mail clas- poses to be served. any any sification at and under cir- time H.Rep., supra, at 3660. less whereby cumstance than all members of the were entitled to benefits stem- It is politics conceivable partisan could changes.” Majority ming Opin- from such influence the Postal Service’s decision to ion, “logic” supra, This is the at 1377. particular select participants in experi- an parade of example worst of the horribles. ment which cheaper used rates. But there no under the showing is rubric of partisan politics If in the pleadings attempted up per- to set stipulated experimentation, facts in this case. To the contrary, it is clear specialized manent or rates for individ- objective analyze 8. The Postal Service outline of the D. The fourth is to following: continuing indicates the context of our service within the review of traditional serv- of the structure Objectives Test explored ices. Issues to be are: objective A. The first is to determine the 1. Whether nearer Parcel Post zones are feasibility operations configura- of the new adjustment? need of an affecting: tion requirements 2. Whether for Bulk Acceptance volume procedures. 1. adjustment? Parcel 2. Post are in need processing. Local Holdout and BMC (not load) pick-up plant operations. Whether offered 3. MVS option (no op- objective B. The as an tion) as a second or offered feature is to determine the handlings costs associated with service needed? reduced operations config- which result from the new refinements are Whether further needed zone-rated, single piece uration. class third objective C. The third design? to determine the fourth class classifications and rate impact service and cost on the mailer and to acceptance impact. measure mailer of this *18 administrative group legitimacy ual or The the presumably court would then, turn, cannot its non- process “experiment.” be marked by misled a label version . conformity simplistic to a Moreover, the if the Postal Service abused Rather, pragmatically, it must be tested limited I authority that believe by responsiveness of administrative have, intended has for it to Commission fundamental institutions to the most power review under 39 U.S.C. 3662 to society principles of a democratic prohibit cir- Postal Service actions that degree to which insti- administrative cumvent policies of the Act. highest aspira- meet tutions the nations One point majority. final raised Í justice govern- tions for and effective believe 39 proscribes ment. “prefer- “unreasonable discrimination” case, despite the Unfortunately in this Con- ences,” provides resolving no assistance in bring flexi- gressional design dream and the question appeal. Majority’s in this managerial efficiency bility, creativity and Opinion, supra, First, 1377. any experi- Service, public’s aspira- to the Postal ment against will discriminate users other The again tions once dashed. have been of the postal system whether or not the having from precluded has been second, Commission approves it. And “justice and effec- within the Postal Service section only prevents dis- “unreasonable government.” tive crimination.” properly A mar- conducted I therefore dissent.9 ketplace experiment is an certainly not “un- reasonable” type “discrimination”
“preference.”
IV. I experiments believe the permissi- are a COMPANY, HARDINGER TRANSFER ble exercise of authority. I INC., Appellant, believe, do not concludes, as the majority v. Congress, in its attempt free INSURANCE COMPANY FIREMAN’S postal system of might constraints so that it NEWARK, NEW JERSEY. OF operate as a modern and efficient enter- prise, require intended to the Postal Service No. 78-2538.
to undertake the time-consuming process of Appeals, United States Court hearings and Commission review in order Third Circuit. develop provide data for the Commis- Third Circuit Under Submitted judgments. sion’s rate-making 13, 1979. 12(6)July Rule One of the leading nation’s on scholars 22, 1979. Aug. Decided law, administrative Dean James Freed- 0. Sept. As Amended man, treatise, in his Legit- classic Crisis and imacy: The Administrative Process and the Government,
American (1978), 261-62 has
stressed: majority challenge, appeal has decided this without determined after a second second determining appeal whether the Postal has a second decision a district court and experiment court, to undertake the if even it Service cannot this approval. argument seeks marketplace experiments At oral even with undertake the Postal Service indicated approval. (I that it had an still of course disa- Commission gree conducting specific experiment. interest in conclusion). I believe this majority’s decision, As a result of the the Post- a waste of the of the Postal would be resources al proposed judiciary. will have to submit Commission and participate to the Commission and majority issue. should reach this hearings possibility will that it