In the Matter of the Petition by ) November 12, 1971 ) ANTHONY E. WHYTE, Publisher ) AMR International, Inc. ) 280 Park Avenue ) New York, New York 10017 ) ) P.O.D. Docket No. 3/66 from the Proposed Revocation of Second- ) Class Mail Privileges of "AMR NEWS" ) Wenchel, Adam G.
1. Background
The Postal Service Decision was issued on October 7, 1971, and received by Petitioner on October 8, 1971.
On October 12, 1971, the Manager, Mail Classification Division, instructed the appropriate postmasters not to accept further mailings of AMR News at the second-class rates. On the following day the Petitioner filed a motion for order directing Postal Service to accept AMR News for mailing and request for expedited action.
By October 13, the parties had arranged for the mailing of AMR News 1/ pending disposition of Petitioner's Motion for Reconsideration. Under this arrangement Petitioner makes deposits sufficient to cover postage charges at the bulk third class rates, while reserving its right to recover the difference between second and third class rates (1) if the revocation of the license should be set aside or (2) if the revocation was not set aside but it should be determined that the revocation did not become final until either time for a motion for reconsideration had been disposed of adversely to Petitioner.
On October 13, Petitioner filed a motion for order directing Postal Service to accept AMR News for mailing and a request for expedited action, and on October 18 filed a motion for
In the meantime the parties had an informal meeting with the Acting Judicial Officer 2/ who, however, did not undertake to consider the merits of either of the above mentioned motions.
2. Petitioner's Contention
Petitioner's argument may be summarized as follows:
1. The law precludes the Postal Service from revoking the permit until after final administrative action by the Postal Service;
2. The Rule expressly sanctioning motion for reconsideration makes disposition of a motion for reconsideration the final administrative action;
3. Revocation of the permit prior to opportunity to file for reconsideration or prior to disposition of a motion for reconsideration is a material violation of the agency's rules;
4. Alternately to 3 above, or supplementing it, the Postal Service practice has been to withhold revocation until time for a motion for reconsideration has passed or such a motion has been disposed of and change of such practice without notice is in effect a material violation of this agency's regulations;
5. Since this agency is bound by its regulations, revocation of the Petitioner's permit in substantial violation of its regulations was erroneous; and
6. The Judicial Officer is authorized to direct the Manager to withhold revocation until after the motion for reconsideration is finally disposed of.
3. Discussion
It is, of course, true that a revocation of a second class permit under conditions materially violating the applicable regulations prejudicial to the Petitioner would be required to be set aside. Respondent does not challenge the authority of the Judicial Officer to set the action aside, and the Judicial Officer likewise does not doubt his authority in this respect. The question, however, is whether such a violation has occurred.
The Postal Statute (former 39 U.S.C. 4352(b)) requires the Postal Service to withhold a revocation of a second class mail permit until a hearing is afforded. 3/ A hearing was held before the Initial Decision of the Chief Hearing Examiner was rendered. The requirements of the postal statute, therefore, have been met long since. The former Administrative Procedure Act, now 5 U.S.C. ??551-559; 701-706, (APA) recognizes but does not impose a requirement for reconsideration of final agency decision. 4/
Petitioner attaches far too much significance to the provision in the Rule recognizing motions for reconsideration. 5/ The Postal Service Decision could for good cause be reconsidered even in the absence of a specific rule providing therefor. Such was the holding in National Association of Trailer Owners v. Day, 299 F.2d 137, C.A.D.C. 1962. It is evident that the rule recognizing motions to reconsider, although first adopted between the argument and decision in that case, 6/ was promulgated in the spirit of the Court's suggestion in footnote 2 7/ (299 F.2d at p. 140) to its opinion in that case.
In the absence of section 954.21, therefore, the Postal Service Decision would have been subject to reconsideration, but that fact would not have precluded the Manager from directing postmasters to implement it promptly. Since the regulation only placed a time limit on a previously available procedure, it would be incongruous to conclude that it made the final decision only an interim decision.
In this connection the APA makes an agency decision final for the purpose of judicial review even though a motion for reconsideration is expressly provided for. 8/ Moreover, where a time limit is fixed for instituting judicial review the time commences to run from the date of the decision, except when reconsideration has actually been requested. See Franklin v. S.E.C., 290 F.2d 719, CA-9 1961 and Outland v. C.A.B., 284 F.2d 224, C.A.D.C. 1960. Thus, the mere possibility of reconsideration does not preclude the agency decision from being a final one. And even when a motion for reconsideration is pending, an agency decision may be acted upon. See C.A.B. v. Delta Airlines, 367 U.S. 316 (1961).
While it would be inequitable to preclude a publisher from mailing at third class rates, immediately after revocation, a publication prepared in good faith before revocation of its second class mail permit, that situation is not now present here.
Of course it is obviously more onerous for a publisher to deposit funds to cover third class mail rates than to mail at second class rates pending a motion for reconsideration. That conclusion, however, does not mean that this condition is inequitable nor that to impose such a requirement is improper.
The burden is no greater here than it is in the case of the publisher seeking a permit for second class mailing privilege, who must deposit postage at the higher rate pending action on his application. 9/ In the instant matter the publisher likewise was required to deposit postage at the higher rate, subject to recovery if the revocation is set aside. But unlike the new applicant, the Publisher here has had the issues decided against him in a Postal Service Decision. It is common experience that motions for reconsideration are denied much more frequently than they are granted. In view of the limited prospect of securing a reversal in the tribunal that has ruled adversely on his contentions and in view of the right to recover the excess deposit if this occurs, no undue hardship is seen in requiring the deposit at the higher rate during the pendency of a motion to reconsider.
It must be concluded therefore that neither legal requirements nor equitable considerations require suspending the effect of a Postal Service Decision during the pendency of a reconsideration motion.
As noted above Petitioner has asserted that the Manager's action in this case departs from prior practice. But, just what practice Petitioner believes was followed is not set out. Moreover, the contention is denied by Respondent and no proof has been offered to support it. Accordingly, the contention is not credited.
4. Conclusion
In view of the foregoing considerations the motions by which Petitioner seeks to postpone the effectiveness of the Postal Service Decision in this matter are denied.
Pursuant to 39 C.F.R. 954.21 the Publisher-Petitioner has moved for reconsideration of the Postal Service Decision of October 7, 1971, in the above captioned matter.
The motion does not present any new matter overlooked by the Judicial Officer in formulating the Postal Service Decision. Nor does it present arguments not substantially covered in the original record. Accordingly, the Motion for Reconsideration is denied.
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1/ It appears that initially the postmasters refused to accept AMR News not only at the second class rates but also at the bulk third class rate presumably because the publication lacked the appropriate bulk third class mail indicium.
reconsideration of Postal Service Decision and renewal of his motion for order directing Postal Service to accept entry of AMR News into the mails at second class mail rates.
2/ Mr. John Lewis was authorized to act in this matter during the absence of the Judicial Officer as the Chief Hearing Examiner had rendered the Initial Decision. See 26 F.R. 11527.
3/ "The Postmaster General may revoke the entry of a publication as second class mail whenever he finds, after a hearing, that the publication is no longer entitled to be entered as second class mail." (39 U.S.C. 4352(b))
4/ 5 U.S.C. 704 is in pertinent part as follows: "Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application *** for any form of reconsiderations ***." Petitioner relies substantially on APA requirements. Respondent does not discuss their applicability in the light of 39 U.S.C. 410(a) and a determination of the effect of that provision of law is not necessary to resolution of the pending motion.
5/ "Within 10 days from the date thereof, or such longer period as may be fixed by the Judicial Officer, either party may file a motion for reconsideration of a final Agency decision." (39 C.F.R. 954.21)
6/ The case was argued October 27, 1961, and decided February 8, 1962. The rule was included in a Notice of Proposed Rule Making published December 2, 1961, (26 F.R. 11435) and was adopted December 30, 1961 (26 F.R. 12780). Cf. 26 F.R. 116
7/ It is suggested that the Post Office Department's rules be amended to provide either (a) that no motions for reconsideration be permitted or (b) that, if permitted, such motions shall be filed within a specified time.