In the Matter of the Appeal of: THE CITY OF KETCHIKAN, et al., P.O. Box 1110 at Ketchikan, Alaska 99901 P.S. Docket No. 4/180 05/10/76 Gregory D. Hoffman, Esq. Alaska Legal Services Corporation, P.O. Box 652, Ketchikan, Alaska, for Appellants Thomas A. Ziebarth, Esq. Law Department United States Postal Service Washington, D.C., for Respondent Before: William A. Duvall, Chief Administrative Law Judge
1/ Transcribed from oral decision as rendered at close of hearing held April 28, 1976. Minor language changes have been made, but the substance of the decision is unchanged.
This case involves appeals by the City of Ketchikan, Alaska,
and 132 businesses, public service organizations, churches,
stores, and individuals, of Ketchikan from action which has the
effect of depriving these Appellants of the use of certain post
office boxes which they have used in the past and which they will
continue to use until the Postal Service moves into new quarters
which are understood to be under construction in the City of
Ketchikan, about 2 or 2 1/2 miles distant from the location of the
present post office.
In the appeals, the Appellants indicate that the matters are
being presented under 39 C.F.R. Part 958 which sets forth the
Rules of Practice in Proceedings Relative to the Refusal to Rent
or Renew Post Office Boxes and the Closing of Post Office Boxes.
Counsel for the Postal Service has moved to dismiss this
proceeding, for want of jurisdiction. That motion is well-taken.
In Section 958.2 of the Rules of Practice, it is provided that the
rules in this part shall be applicable only to cases in which the
General counsel for the United States Postal Service has issued a
notice of intent to close a post office box, or in which a
postmaster has refused to rent, or renew the rental, of a post
office box pursuant to Section 169.1 of this chapter, and a timely
appeal has been filed.
It has been pointed out that the provisions formerly set forth
in Section 169.1 of 39 C.F.R. have been recodified and now appear
in Section 169.8 of 39 C.F.R. This is a clerical matter which
appears to me to be of no significance. The coordination of these
amendments is a thing that is not always perfectly done,
and sometimes the activities of one facet of the Postal Service
have an impact upon the activities of another facet of the Postal
Service, but the activities of the first organization sometimes
take place without the knowledge of the second.
In any event, if a person finds his way to Part 169 of Title
39, and fails to find it in the first section, he sees that the
subject matter of that part is lockboxes, and I think that if he
is sufficiently interested, as obviously these Appellants are, he
will continue to read until he gets to the portion which provides
for the bases on which, and the reasons for which, a box may be
closed, or the reasons for which a postmaster may refuse to renew
the use of the box to a customer.
There are two grounds stated why a postmaster may refuse to
rent a post office box, or extend caller service to any person,
and these reasons are: (1) the belief on the part of the
postmaster that the person involved has falsified the application
or has, within the previous two years, physically abused a box or
violated any regulation or contractual provision relating to the
care and use of a box or caller service; or (2) the belief on the
part of the postmaster that the person is likely to use a box or
caller service in connection with a scheme or enterprise in
violation of Section 169.162, which defines unlawful activity and
proscribes the use of a box for any such purpose.
Unless such a belief exists on the part of the postmaster, he
may not refuse to issue a notice. No such notice has been issued.
In any event, the notice about the closing of a box is issued by
the General Counsel of the Postal Service and the General Counsel
has issued no such notice. The reason why no such notice has been
issued is because there is no basis for the issuance of a notice
of closure in the case of these Appellants.
As a matter of fact, in most of the appeals that have been
filed, each Appellant has stated that he is in compliance with all
rules, regulations, charges, and fees required by U.S.P.S. to hold
a box in said post office. They assert their legal qualifications
to hold these boxes. The Postal Service admits that they are
qualified and, in the Motion to Dismiss, it is pointed out that
certainly none of these Appellants is guilty of acts or conduct
for which a box properly may be closed.
Although this case has been posed in terms of appeals from the
closing of post office boxes, and that is an ingenious approach to
the problem, nevertheless the crux of this matter is the fact that
the post office in Ketchikan, Alaska, is presently located in a
place which the present boxholders, and perhaps others, regard as
being a convenient, and perhaps a logical place for the location
of the Ketchikan Post Office, and they really are protesting the
decision made by Postal Service management to move the Ketchikan
Post Office 2 or 2 1/2 miles down the street
to an area in which it will be inaccessible, or at least less
accessible, to the Appellants in this proceeding. This is a
challenge of the authority of the Postal Service to make decisions
that involve moves of this kind.
Because of this fact, some of the background on this question
will be stated. The United States Postal Service was created by
the Act known as the Postal Reorganization Act which was approved
by the President on August 12, 1970. In enacting this statute,
Congress declared in 39 U.S. Code 101 that its policy was that "In
planning and building new postal facilities, the Postal Service
shall emphasize the need for facilities and equipment designed to
create desirable working conditions for its officers and
employees, a maximum degree of convenience for efficient postal
services, proper access to existing and future air and surface
transportation facilities, and control of costs to the Postal
Service."
One of the specific powers conferred upon the Postal Service
is found in subsection 3 of 39 U.S. Code 404, where the service is
authorized "to determine the need for post offices, postal and
training facilities and equipment, and to provide such offices,
facilities and equipment as it determines are needed: ***."
In 39 U.S. Code 202, it is provided that "The exercise of the
power of the Postal Service shall be directed by a Board of
Governors ***."
Under 39 U.S. Code 402, the Board of Governors is authorized
to "delegate the authority vested in it to the Postmaster General
under such terms, conditions, and limitations, including the power
of redelegation, as it deems desirable ***."
In 39 C.F.R. Section 5.3, it is provided that the Postmaster
General is the chief executive officer of the Postal Service, and
"he is authorized to exercise the powers vested in the Postal
Service under the general supervision and direction of the Board
***."
In Section 3.9 of Title 39 C.F.R., the Board of Governors did
delegate to the Postmaster General the authority to exercise the
powers of the Postal Service, including the power to redelegate,
to the extent that such delegation does not conflict with the
powers reserved to the Board of Governors.
In 39 C.F.R. 5.5, provision is made for the appointment of
various Assistant Postmasters General, and other officers, by the
Postmaster General, and it is further provided that "they" -- that
is, the officers thus appointed -- "shall have such powers and
duties, consistent with these bylaws as may be delegated to them
by the Postmaster General."
The organization of the Postal Service into various groups and
departments is described in Part 224 of Title 39 of the Code of
Federal Regulations. In subsection (a) of Section 224.4 it is
provided that the "Operations Group is headed by the Senior
Assistant Postmaster General, Operations, who reports to the
Postmaster General. It has overall responsibility for all aspects
of mail processing operations within the Postal Service. This
responsibility includes the collection, distribution, processing
and delivery functions and the transportation of mail throughout
the Postal Service."
Thus, the Operations Group has primary responsibility for
establishing policies and procedure for determining the need for
the location of facilities for the handling and distribution of
mail. This responsibility has been redelegated to various levels
of postal management, depending upon the size of the facility
needed, the cost of construction of such facilities, the volume of
mail to be handled, and other factors.
The purpose of going through this tedious recitation is to
trace, step by step, the grant of authority for the establishment,
discontinuance, and location of post offices directly from the
Congress, on whom such powers are conferred in Article I, Section
8 of the Constitution of the United States, to the Postal Service,
thence to the Board of Governors, thence to the Postmaster
General, and finally to the Operations Group within the Postal
Service. It has been noted that the authority to make the
determination to establish or discontinue, locate and relocate, a
particular post office has been committed to the judgment and
discretion of the Postmaster General and to those members of his
staff to whom he has redelegated his power in this respect.
There is no place in the Postal Reorganization Act, the Code
of Federal Regulations, or anywhere else, at which there is
provided any right to a formal administrative appeal within the
United States Postal Service from the exercise of that judgment
and discretion to open, close or relocate a post office. 2/