In the Matter of the Petition by ) July 24, 1997 ) SUNDAY SCHOOL BOARD OF THE ) SOUTHERN BAPTIST CONVENTION ) BAPTIST SUNDAY SCHOOL BOARD ) (BSSB) ) ) ) Denial of Nonprofit Standard Mail Rates ) P.S. Docket No. SCD 97-192 APPEARANCE FOR PETITIONER: Peter F. Rathbun, Esq. George R. Grange II, Esq. Gammon & Grange, P.C. 6280 Greensboro Drive McLean, VA 22102-3807 APPEARANCE FOR RESPONDENT: Christine M. Taylor, Esq. Civil Practice Section United States Postal Service 475 L'Enfant Plaza, SW Washington, DC 20260-2117
Petitioner, (BSSB), is authorized to mail at Nonprofit Standard Mail rates as a nonprofit religious organization. In 1995 questions were raised by the United States Postal Service's Nashville office about whether numerous items mailed by BSSB qualified for those rates. In a letter dated May 13, 1997, the Manager, Business Mail Acceptance, United States Postal Service, affirmed earlier rulings that several categories of items qualified,(1) but that several others, whose primary purpose was production of income, did not.(2) In this letter, the manager discussed the pertinent Postal Service statute, 39 U.S.C. §3626(j)(1)(D), and implementing provisions of the Domestic Mail Manual (DMM), §E370.5.4d, as well as rulings by the Internal Revenue Service.
In response to the manager's May 13, 1997 letter, BSSB appealed by filing a petition under 39 C.F.R. Part 954. Respondent, United States Postal Service, filed a Motion to Dismiss, arguing that the Judicial Officer Department has no jurisdiction over this matter. Respondent argues that Part 954 is "strictly limited" to cases involving denial, suspension or revocation of second-class mail privileges, which this case clearly is not, and that this forum has no jurisdiction to hear claims related to eligibility for Nonprofit Standard Mail rates.
Petitioner responded by arguing that the current language in 39 C.F.R. §226.2(e) that defines the authority of the Judicial Officer, and Administrative Law Judges, is broader than in the past and provides sufficient latitude for the Judicial Officer Department to consider this petition. Petitioner also argues that even though Part 954 is titled, "Rules of Practice in Proceedings Relative to the Denial, Suspension, or Revocation of Second-Class Mail Privileges," this does not prohibit the Judicial Officer Department from applying those same rules to disputes over other mail classifications. Finally, Petitioner argues that, in terms of judicial economy, it makes sense for this case to be heard by an Administrative Law Judge rather than for Petitioner to bring suit in a United States District Court.
In the Motion to Dismiss, Respondent cited Regional Young Adult Project, P.S. Docket No. 22/70 (1985), in which the Administrative Law Judge dismissed a petition dealing with a special bulk rate third-class mail authorization. The judge stated that 39 C.F.R. Part 954 applied only to second-class mail cases, and that "no other provision of the regulations confers jurisdiction upon the undersigned of third-class mail proceedings." Petitioner argues that this case is not relevant because of subsequent changes to the general provisions of 39 C.F.R., Subchapter D, which describes the organization of the United States Postal Service and the responsibilities of its many groups and subgroups, including the Judicial Officer and Administrative Law Judges.
The language in Part 954 has not changed since 1985, and seems to be clearly limited to second-class mail cases.
§954.2 Scope of rules. The rules of practice shall apply to all Postal Service proceedings concerning applications, denials, suspensions and revocations of second-class mailing privileges . . ..Although some of the language in other parts of 39 C.F.R has been changed, as noted by Petitioner, I find nothing in those changes that suggests an intent to expand the scope of an Administrative Law Judge's jurisdiction to hear any category of case that is not specifically covered by the rules in Parts 952 through 966.(3)
Petitioner's argument as to judicial economy is not illogical, but it takes me
beyond any authority that I possess. The Postal Service, if it chose to do so, could
provide for a further administrative appeal from mail classification decisions of the
Manager, Business Mail Acceptance, in addition to those described in 39 C.F.R.
§954.2. The law does not require this, however. See National Rifle Association v.
U. S. Postal Service, 407 F. Supp. 88, 95 (D.D.C. 1976). That the Postal Service
has not chosen to expand the coverage of Part 954 is demonstrated not only by the
language of Part 954 itself, but by comparison of pertinent sections of the DMM.
Section G020.3, which covers the classification decision that Petitioner is
challenging, states that the Business Mail Acceptance manager, or an appropriate
Rates and Classification Service Center (RCSC), issues "the final agency decision."
Compare this to §§E213.3.7 and E213.4.3, which state that decisions of the
Business Mail Acceptance manager dealing with second-class [now called
"periodicals"] mail privileges may be appealed under 39 C.F.R. Part 954.
For the reasons stated above, I find that I lack jurisdiction to hear the issues
raised by Petitioner. Respondent's Motion to Dismiss is granted.
Bruce R. Houston Chief Administrative Law Judge
2. These included coffee mugs, jewelry, and articles of clothing, even though all these items carried some sort of religious theme or message.
3. The Rules of Procedure before the Judicial Officer begin at 39 C.F.R. Part 951, and the rules for each of several specific categories of cases are found in Parts 952 through 966. As noted above, Part 954 deals with second-class mail [now called periodicals], and is the only one that has anything to do with entitlement to mail at any particular classification or rate.