[Federal Register: December 10, 2003 (Volume 68, Number 237)]
[Notices]
[Page 68959-68961]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10de03-128]
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POSTAL RATE COMMISSION
[Order No. 1387; Docket No. A2003-1]
Dismissal of Appeal of Post Office Closing in Birmingham Green,
AL
AGENCY: Postal Rate Commission.
ACTION: Order.
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SUMMARY: The Commission is dismissing an appeal (brought by George
Prince et al., petitioners) of the closing of a Birmingham Green,
Alabama 35237 postal facility. The reason for dismissal is lack of
jurisdiction. This facility is a classified postal station, rather than
a post office. Controlling precedent holds that the Commission does not
have jurisdiction over a closing or consolidation of a postal station.
ADDRESSES: Submit correspondence concerning this matter via the
Commission's Filing Online system at http://www.prc.gov.
FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, General Counsel,
202-789-6818.
SUPPLEMENTARY INFORMATION:
Regulatory History
68 FR 56350 (September 30, 2003).
Introduction and Summary
On September 17, 2003, three individuals petitioned the Commission
to review the Postal Service's actions regarding the Birmingham Green,
Alabama Post Office.\1\ The Commission gave notice and accepted the
appeal in order no. 1384, issued on September 23, 2003.\2\ The Postal
Service subsequently moved to dismiss this proceeding, arguing that the
Commission lacks jurisdiction to consider an appeal under 39 U.S.C.
404(b).\3\ After considering the circumstances of this appeal in light
of applicable law and precedent in earlier dockets, the Commission has
concluded that this proceeding should be dismissed for lack of
jurisdiction.
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\1\ Joint Petition for Review and Application for Suspension,
September 17, 2003.
\2\ Notice and Order Accepting Appeal and Establishing
Procedural Schedule Under 39 U.S.C. 404(b)(5), September 23, 2003.
\3\ United States Postal Service Motion to Dismiss Proceeding,
October 3, 2003.
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Petitioners' Request for Review
Petitioners George Prince, Terry Finch, and James E. Roberts
contest a Postal Service action--which they characterize as a ``closing
or consolidation''--affecting the Birmingham Green post office, located
at 317 North 20th Street in Birmingham, Alabama 35237. Joint Petition
at 1. Petitioners document the Postal Service action in two attachments
to their pleading.
The first attachment is a letter dated August 27, 2003 and signed
by Paul T. Barrett, postmaster of Birmingham. In the letter, Mr.
Barrett advises postal customers that ``the Birmingham Green Post
Office will be officially closed September 12, 2003.'' In light of this
development, he states that customers will be required to change their
post office boxes, and that mail will be forwarded in accordance with
postal regulations. He further states that ``[r]etail services from the
Main Post Office will ensure effective and regular services to the
Downtown Birmingham community.''
The second attachment is a document entitled ``Proposal to
Consolidate the Birmingham Green Station and Establish a Contract
Postal Unit,'' dated June 20, 2003. According to the document's cover
page, the matter was assigned docket number 35237.
The document states at the outset that the Postal Service ``is
proposing to consolidate the Birmingham Green Station and provide
retail services by establishing a contract postal unit (CPU) under the
administrative responsibility of the Main Post Office, located 4 blocks
away.'' Proposal to Consolidate at 1. The remainder of the document
consists of assessments of the proposal's anticipated effects, under
headings entitled ``Responsiveness to Community Postal Needs,''
``Effect on Community,'' ``Effect on Employees,'' ``Economic Savings,''
and ``Other Factors.'' These areas of inquiry correspond to the
criteria the Postal Service is directed to consider in making a
statutory determination to close or consolidate a post office, pursuant
to 39 U.S.C. 404(b)(2).
Petitioners assert that the Postal Service's determination to close
the Birmingham Green facility, announced in a notice of final
determination on August 27, 2003 violates the requirement in 39 CFR
241.3(a)(2)(iii) that such determinations be available in writing at
least 60 days before discontinuance takes effect. On this basis,
petitioners argue that the process was ``without observance of
procedure required by law,'' in contravention of 39 U.S.C.
404(b)(5)(B). Joint Petition at 1.
Petitioners also challenge the merits of the Service's decision.
They allege that it will have adverse effects on the community served
by the Birmingham Green facility and will degrade the degree of service
provided; that the Service failed to take into account all the
disadvantages of closing the facility; that the Service provided no
statement of the facility's income or revenue in its proposal; and that
it did not adequately respond to the concerns raised by community
members in both questionnaire responses and in a public hearing. Id. at
1-2.
Postal Service Motion To Dismiss
Order no. 1384 established October 3, 2003 as the date for the
Postal Service's filing of its administrative record in this appeal. On
that date, rather than filing an administrative record, the Service
submitted a motion to dismiss this proceeding.\4\
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\4\ Id.
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In it motion, the Postal Service submits that the petition does not
fall within the Commission's jurisdiction under Sec. 404(b)(5). The
Service cites two bases for this conclusion. First, it asserts that the
Birmingham Green facility is a classified postal station--one of at
least four USPS-operated facilities in downtown Birmingham--and thus is
not a post office. Second, the Service represents that operations at
the Birmingham Green facility ``are currently suspended rather than
[[Page 68960]]
formally closed[,]'' \5\ and that it has been working with Birmingham
customers on providing them services, with the expectation that a
contract station will be established in the vicinity of the Birmingham
Green station.
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\5\ Id. at 1. (Footnote omitted.)
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The Postal Service musters an extensive review of legislative
history and case law to support its position ``that the procedures
mandated by Sec. 404(b) apply only to the closing or consolidation of
an independent post office, which is a facility occupied and
immediately supervised by a postmaster, and not the closing or
consolidation of a station, branch, contract unit, or other subordinate
facility under the administrative supervision of a post office.'' \6\
The Service argues at length that Congress, in enacting Sec. 404(b),
intended to limit the term ``post office'' to a definition predating
the Reorganization Act that distinguishes between independent post
offices and their subordinate retail facilities such as stations and
branches.\7\ The Service also cites judicial authority in support of
the restrictive interpretation of ``post office'' it urges.\8\ Most
notably, it invokes the decision in Shepard Community Association v.
United States Postal Service,\9\ in which a United States District
Court found convincing indications of Congressional intent to
distinguish post offices from branches and stations for purposes of
applying Sec. 404(b), and accordingly ruled that Sec. 404(b) did not
apply to the contested closing of the Shepard station in Columbus,
Ohio.
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\6\ Id. at 2.
\7\ Id. at 3-9.
\8\ Id. at 9-14.
\9\ Shepard Community Association v. United States Postal
Service, Civ. No. C2-82-425 (S.D. Ohio 1985).
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Analysis of Jurisdictional Applicability
The available documentary evidence concerning the Birmingham Green
facility, and the nature of the Postal Service's actions affecting it,
are somewhat opaque. The Service asks the Commission to infer that
operations at the facility have been ``suspended,'' based on the
absence of a formal announcement of its closure in the Postal
Bulletin.\10\ However, Postmaster Barrett's letter of August 27, 2003,
publicly discloses an official intention to close the facility, with
post office boxes and other services to be provided at the Main Post
Office.
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\10\ Postal Service Motion to Dismiss, supra, at 1, n. 4.
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At the same time, his apparently contemporaneous administrative
responsibility for the Birmingham Green facility implies that its
closure would not constitute a statutory ``consolidation,'' which has
been found to have ``the characteristic of subordinating the day to day
overall management of one office having a postmaster to the
administrative personnel of another office.'' \11\ If Postmaster
Barrett already had administrative responsibility for the Birmingham
Green facility, closing it would not appear to constitute a
``consolidation'' subject to review under Sec. 404(b). Yet, apparently
two months earlier, the Postal Service at some administrative level had
prepared an analysis on the ``Proposal to Consolidate the Birmingham
Green Station and Establish a Contract Postal Unit,'' which petitioners
have provided as an attachment to their appeal.
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\11\ Knapp v. United States Postal Service, 449 F. Supp. 158,
162 (C.D. Cal. 1978).
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Notwithstanding these unclear circumstances, the Commission finds
that the available facts support a conclusion that the Postal Service's
actions regarding the Birmingham Green facility--whether considered as
a ``closing'' or a ``suspension''--affect a ``station or branch''
within the service area administered by the Birmingham post office, and
thus do not fall within the ambit of the review process provided in 39
U.S.C. 404(b).
The Commission's action in an earlier proceeding, docket no. A82-
10, provides useful guidance in this controversy. In that docket,
petitioners contested the Postal Service's plan to close the Oceana
Station in Virginia Beach, Virginia. In its dispositive order,\12\ the
Commission considered legal arguments on what it regarded as a
threshold issue: whether Sec. 404(b) procedures for closing or
consolidating post offices were applicable to the Service's plan to
close the Oceana Station.
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\12\ Order No. 436, Order Dismissing Docket No. A82-10, June 25,
1982.
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In deliberating on this issue, the Commission held that the Postal
Service decision to close the facility ``must be considered within the
context of the Postal Service's other actions in the area.''\13\ After
examining the facts presented, the Commission found the proposed
closing of the Oceana Station to be one component of a plan to
reconfigure the network of postal facilities providing services to
various communities in the Virginia Beach area. Employing a ``rule of
reason,'' the Commission held that ``the requirements of section 404(b)
do not pertain to the specific building housing the post office; but
rather are concerned with the provision of a facility within the
community.'' \14\ In light of the Service's description of its actions
in the Virginia Beach area, the Commission concluded ``that the Postal
Service is merely rearranging the retail facilities in the
community[,]'' \15\ and that the formal requirements of Sec. 404(b)
were not intended to apply to such changes. More broadly, the
Commission stated that ``the Postal Service is not required to follow
the formal Sec. 404(b) procedure when it is merely rearranging its
retail facilities in a community, as it is doing in Virginia Beach.''
\16\
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\13\ Id. at 7.
\14\ Id. at 6-7.
\15\ Id. at 8.
\16\ Id. at 1.
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Here, as in docket no. A82-10, the Postal Service's action affects
one classified station of several in a metropolitan area: in this
instance, Birmingham, Alabama.\17\ The Postal Service represents that
equal or superior service is available at the Birmingham Main post
office, less than one-half mile away, but that it is also working to
establish a contract station in the vicinity of the Birmingham Green
station.\18\ These activities indicate that the Service's action with
regard to the Birmingham Green station is part of a rearrangement of
the retail network serving the Birmingham community, as with the
Virginia Beach area in docket no. A82-10. For this reason, the
Commission concludes that the procedural requirements of Sec. 404(b)
do not apply, and that the appeal of the Postal Service's action
regarding the Birmingham Green station does not fall within the
Commission's jurisdiction under that section.\19\ Therefore, the Postal
Service's motion to dismiss this proceeding shall be granted.
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\17\ Id., Attachment No.1, p. 3-7.
\18\ Postal Service Motion to Dismiss, supra, at 1-2.
\19\ The Commission views this outcome as compatible with, if
not in every respect identical to, the court's analysis in the
Shepard decision, supra.
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The joint petition for review was accompanied by an application for
suspension of the Postal Service's action regarding the Birmingham
Green station. Inasmuch as the Commission has found Sec. 404(b)
inapplicable to the Service's action, the motion for suspension must
also be denied.
Ordering Paragraphs The Commission orders:
(a) The United States Postal Service Motion to Dismiss Proceeding,
filed October 3, 2003, is granted.
(b) Petitioners' Application for Suspension, filed September 17,
2003, is denied.
[[Page 68961]]
(c) The Secretary of the Postal Rate Commission shall publish this
order in the Federal Register.
By the Commission.
Issued December 3, 2003.
Dated: December 4, 2003.
Steven W. Williams,
Secretary.
[FR Doc. 03-30612 Filed 12-9-03; 8:45 am]