December 29, 2000

In the Matter of the Petitions by



CARL A. CURRIER



Refusal to Provide Post Office

Box or General Delivery Service

P.S. Docket No. POB 00-209





JAMES KERNS



Refusal to Provide Post Office

Box or General Delivery Service

P.S. Docket No. POB 00-271





DAVID BAR



Refusal to Provide Post Office

Box or General Delivery Service

P.S. Docket No. POB 00-272





APPEARANCE FOR PETITIONERS:

David Girard, Esq.

Casey Trupin, Esq.

Andrew Ko, Esq.

Columbia Legal Services

101 Yesler Way, Suite 300

Seattle, WA  98104-2528





APPEARANCE FOR RESPONDENT:

Catherine A. Green, Esq.

Civil Practice Section

United States Postal Service

475 L'Enfant Plaza, SW, Room 6403

Washington, DC  20260-1127

This proceeding arises from Petitions filed by Mr. Currier, Mr. Kerns, and Mr. Bar, after they were orally denied post office box service.

In each case, Respondent, the United States Postal Service, filed a Motion for Summary Judgment, arguing that there were no material facts in dispute and that Respondent was entitled to judgment as a matter of law. Petitioners replied with cross-motions for summary judgment. As they are based on similar facts, and raise the same issues, the cases have been consolidated for decision. The following findings of fact are based on all the material submitted by the parties.

1. All three Petitioners are homeless men living in Seattle, WA. In May and June 2000, each of them separately approached postal employees at various Seattle post offices to inquire about post office box service. They each asked about regular post office boxes, "no-fee" post office boxes, and general delivery service. Each made it clear to the postal employees they talked with that they were homeless. (Petitions; Currier Declaration; Bar Declaration; Kerns Declaration (all attached to Petitioners' M/SJ); Merkel Declaration (attached to Respondent's M/SJ)).

2. Each Petitioner was orally denied post office box service. None actually filled out a written application for a post office box (PS Form 1093, see Petitioners' M/SJ, Tab L).¹  Each also was given information about the availability of general delivery service at the Seattle Main Post Office. One or more may have been given incorrect information, i.e., that there was a 30-day limit on that service, but this matter is now moot. All Petitioners were informed early on in this litigation that general delivery service was available to them indefinitely. (Petitions; Answers; Zinser Declaration; Green Declaration).

3. Mr. Currier showed one of the postal employees with whom he spoke a photo identification card from the Downtown Emergency Services Center (DESC) but told her he did not wish to use the DESC address as his address in applying for a box (Currier Declaration; Merkel Declaration). Mr. Bar and Mr. Kerns also possess certain identification cards but, as no postal employee who remembers talking to them has been located, it is unclear whether they actually presented these identification cards. The identification cards possessed by all three Petitioners are attached to Petitioners' Motion for Summary Judgment (Bar Declaration; Kerns Declaration; M/SJ, Tabs G, H, I).

4. All three Petitioners were told that they could not obtain a post office box without providing a physical address on their application, or words to that effect. It is not necessary to determine precisely what they were told, or whether the postal employees with whom they spoke correctly stated the rules on eligibility for post office box service. There is no doubt that the three Petitioners were denied box service, and the Postal Service position on their lack of entitlement has been made clear in this litigation.

5. The following provisions of the Domestic Mail Manual (DMM, Issue 55) are pertinent:

6. The following Postal Bulletin provision is pertinent (PB 21877, 9-29-94):³ 

7. General delivery mail service in Seattle is provided only at the Seattle Main Post Office, Third and Union Streets. (Zinser Declaration; Nelson Declaration) Group E (no-fee) post office box service is not offered at all in Seattle, and no customers, homeless or otherwise, receive no-fee box service. (Zinser Declaration filed in Bar and Kerns cases)

8. The following excerpts from statues governing the Postal Service are pertinent:

A grant of summary judgment is proper when there are no issues of material fact in dispute and when, as a matter of law, the moving party is entitled to judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In this case, both parties have moved for summary judgment. There are no material facts in dispute and summary judgment is appropriate.

Petitioners argue that Respondent has not followed its own regulations in denying post office box service to Petitioners. Specifically, Petitioners argue that DMM §D910.5.1(a) (see Finding of Fact #5) creates an entitlement to no-fee boxes for homeless persons, and that Respondent has failed to follow this regulation.⁴  Petitioners also argue that they qualify for post office box service under the Postal Bulletin 21877 provision for homeless persons, but that Respondent continues to insist that every applicant must provide a physical address.

Petitioners also make two Constitutional arguments. First, they argue that Respondent's application of its rules on no-fee post office boxes unreasonably discriminates against homeless persons in violation of the Equal Protection clause of the Fifth Amendment. Second, they argue that providing general delivery service at only one location in the city of Seattle unlawfully infringes upon the First Amendment rights of homeless persons.

Most of Respondent's arguments in the motions for summary judgment are directed toward the general delivery rules and the rules governing no-fee post office boxes. As noted earlier (see Finding of Fact #2), part of the first issue is now moot because the Postal Service acknowledges that there is no time limit on Petitioners' entitlement to general delivery service. As to the fact that general delivery is available only at the Seattle Main Post Office, Respondent argues that this is in accordance with the governing regulation, DMM §D930.1.2 (see Finding of Fact #5). Further, Respondent argues that this regulation is a reasonable exercise of the Postal Service's authority under its statutory responsibility for providing an efficient nationwide mail delivery system, citing 39 U.S.C. §403.

On the matter of no-fee post office boxes, Respondent argues that the provision of the DMM relied on by Petitioners, DMM §D910.5.1(a), was not intended to apply to homeless persons. Respondent argues that this provision applies only to customers who would be able to receive carrier delivery at a "physical residence or business location" but for a Postal Service decision not to provide carrier delivery. Because homeless persons do not have a physical residence or business location, Respondent's position is that they are not within the scope of this regulation. Respondent argues that this is a reasonable interpretation of the DMM provision and is entitled to judicial deference under the general rule that an agency's interpretation of its own rules will not be overturned by a court unless such interpretation is arbitrary, capricious, or unreasonably discriminatory.

As to the rules stated in Postal Bulletin 21877 (Finding of Fact #6), it does not appear that any of the Petitioners actually applied for a post office box on the basis of those rules, or that any postal employee evaluated their eligibility under those rules, although some Seattle employees stated that they were aware of those rules. (Zinser Declaration and March 14, 2000 memo; Martin Declaration; Witherspoon Declaration-all attached to Respondent's M/SJ in Kerns case; Atkins Declaration; Chi Declaration; Wou Declaration-all attached to Respondent's M/SJ in Bar case).

In its motions for summary judgment, Respondent characterizes the Postal Bulletin 21877 provision as providing "alternate methods of providing proof of a physical address," and also as permitting homeless persons to obtain a box "upon a relaxed showing of physical address and identity." (Respondent's M/SJ, ¶39; Estes Declaration, ¶3). Without ever specifically stating that the various identification cards filed by Petitioners do not meet the standards found in Postal Bulletin 21877, Respondent states in its motions for summary judgment that, "[I]n order to be eligible for post office box service, an applicant must have a verifiable physical address," citing DMM §D910.2.3. (Respondent's M/SJ, ¶37).

The issue here is whether Respondent's interpretation of DMM §D910.5.1(a) is reasonable, or whether the language of that regulation creates a clear and unambiguous entitlement to no-fee box service for Petitioners. Petitioners argue that the latter is correct and, therefore, no deference should be given to Respondent's interpretation because no "interpretation" of a clear and unambiguous rule is necessary.

Three general principles are applicable here. First, if a statute requires some interpretation, courts will grant deference to an agency's construction of the statute in the agency's implementing regulations unless the agency's interpretation is "arbitrary, capricious, or manifestly contrary to the statute." Chevron, U.S.A. v. National Resources Defense Council, 467 U.S. 837, 843 (1984). Second, an agency must abide by its own regulations. Morton v. Ruiz, 415 U.S. 199, 235 (1976); Harmon v. Brucker, 355 U.S. 579, 583 (1958); Orengo Caraballo v. Reich, 11 F.3d 186, 193 (D.C. Cir. 1993). Third, courts will defer to an agency's interpretation of its own regulation unless that interpretation is "plainly erroneous or inconsistent with the regulation." Thomas Jefferson University v. Shalala, 512 U.S. 504, 512 (1994); Martin v. Occupational Safety and Health Review Commission, 499 U.S. 144, 150-51 (1991); Lyng v. Payne, 476 U.S. 926, 939 (1986); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945).

The Postal Service has been given broad authority, under the statutes quoted above (see finding of Fact #8), to establish rules and policies for the delivery of mail. This includes providing different methods of delivery service to different mail users. Ludewig v. Wolff, 492 F. Supp. 1048 (S.D. Tex. 1980); Egger v. United States Postal Service, 436 F. Supp. 138 (W.D. Va. 1977); Grover City v. United States Postal Service, 391 F. Supp. 982 (C.D. Cal. 1975).

I find that the Postal Service's interpretation of its regulation on eligibility for no-fee post office boxes (DMM §D910.5.1) is reasonable, and that it does not unduly discriminate against homeless persons. The sentence beginning, "[A] customer whose physical residence or business location," is reasonably read to apply only to customers who actually have a "physical residence or business location" within a particular delivery area, but for whom the Postal Service has chosen not to provide carrier service. Petitioners' reading of this provision as creating an absolute entitlement to a no-fee box for any person who is ineligible for carrier delivery is overbroad and inconsistent with other rules. The special provision for homeless persons in Postal Bulletin 21877 would be meaningless if all homeless persons were entitled to no-fee boxes simply because they had no fixed address.

Petitioners' argument that the Postal Service has changed its interpretation of the rule on no-fee boxes and, therefore, is entitled to no deference as to the current interpretation, is also unpersuasive. It is true that the Postal Service has modified its rule on entitlement to no-fee boxes, see Petitioners' M/SJ, Tab F, but I find nothing in the record that shows a changed position on the particular provision that is in issue here. The change to the so-called "quarter-mile rule" still dealt with persons who had a residence or business address to which mail could be delivered, but to whom the Postal Service did not provide carrier delivery.

Petitioners are not entitled to no-fee post office box service.

The regulation on this subject, DMM §D930.1.2 (see Finding of Fact #5), is very clear. Petitioners argue, however, that requiring people to spend time and money to travel to an inconvenient location, in this case the Seattle Main Post Office, unlawfully restricts their First Amendment right to free speech.

No one can quarrel with Petitioners' assertion that use of the mail is protected by the First Amendment, or that all persons have a right to have access to the United States mail system. Most of the cases cited by Petitioners, however, involved restrictions, direct or indirect, on the right to mail certain materials based on the content of that material, not on a Postal Service rule or policy that simply made use of the mail system less convenient. For example, Petitioners cite Greenberg v. Bolger, 497 F. Supp. 756 (E.D.N.Y. 1980), for the proposition that "the preservation of scarce financial resources is not an adequate rationale for a Postal Service regulation that infringes on First Amendment rights."⁵  The full statement in that court's opinion, however, is that "the preservation of scarce financial resources has not provided a rationale for government activity that favors certain persons or groups and disfavors others on the basis of the content of the speech or the popularity of the speaker." Greenberg, at 776. The rule in question in this case has nothing at all to do within the content of the mail or the identity of customers.

Assuming that there might be facts that could create a First Amendment violation based on inconvenience (see discussion in Shane v. Buck, 658 F. Supp. 908, 915-18 (D. Utah 1985, aff'd per curiam 817 F.2d 87 (10^th Cir. 1987)), I do not find that such facts exist here. Respondent's rationale for the one-location rule for general delivery mail, as stated in the Declarations of Mr. Zinser, Ms. Estes, and Mr. Nelson, is based on the need to accommodate automated mail processing and the overall goal of meeting the statutory obligation to provide efficient mail delivery service nationwide at a reasonable cost. The rule in DMM §D930.1.2 is consistent with that obligation. Ludewig v. Wolff, supra; Egger v. United States Postal Service, supra; Grover City v. United States Postal Service, supra.

Further, neither an Administrative Law Judge nor the Judicial Officer has authority to declare a Postal Service regulation unconstitutional. Fred Cherry, Postal Service Docket No. POB 99-71 at 3 n.6 (P.S.D. July 16, 1999); Sunday School Board of the Southern Baptist Convention, Postal Service Docket No. SCD 97-192 at 4 n.9 (P.S.D. July 16, 1998); David Sellers, Postal Service Docket No. 37/153 at 4-5 (P.S.D. August 17, 1993). In this case, an Administrative Law Judge is bound to follow DMM §D930.1.2 as written.

Respondent is not required to provide general delivery service at locations other than the Seattle Main Post Office.

The issue here is whether the identification cards possessed by Petitioners, and which are attached to Petitioners' motion for summary judgment at Tabs G, H, and I, satisfy "any one" of the three criteria listed in Postal Bulletin 21877 (see Finding of Fact #6). I find Respondent's characterization of this Postal Bulletin provision as only providing "alternate methods of providing proof of a physical address," to be inaccurate. The Postal Bulletin rule requires no proof of a physical address at all if an applicant meets either of the first two criteria. The first criterion does not apply here, as there is no evidence that any of the Petitioners are personally known to the postmaster or to any of the clerks with whom they spoke.

Qualification under the second criterion depends on what constitutes "proper identification." The Postal Bulletin provision refers to a driver's license "or other credential," and there is no reference to more than one form of identification, so it must be assumed that one form of identification is sufficient. The provision then states that the credential must show "the applicant's signature and a serial number, or other indicia that can be traced to the bearer." This is the same language found in the DMM rule for regular post office box applications.⁶ 

Mr. Currier's identification card (Tab G) includes a photograph, a date of birth, an ID number, and the address of the Downtown Emergency Service Center. As the postal clerk with whom he spoke implied, Mr. Currier could have qualified for a post office box under the third criterion of Postal Bulletin 21877 if he had used that address as a point of contact. He declined to do so. The identification card does not meet the requirements of Postal Bulletin 21877, paragraph 2, however, because it contains no signature. Perhaps this is something that is correctable, but Respondent's decision to deny Mr. Currier a post office box is sustained and his Petition is denied.

Mr. Kerns' identification card (Tab I) includes a photograph, a signature, the address of Seattle Central Community College, and a bar code that I assume equates to a personal identification number. This identification card meets the requirements of Postal Bulletin 21877, paragraph 2. On that basis, Mr. Kerns' Petition is sustained.

Mr. Bar's two identification cards (Tab H) both include a photograph, a birth date, and a signature. One also includes a social security number, and the other includes an identification number. These identification cards meet the requirements of Postal Bulletin 21877, paragraph 2. On that basis, Mr. Bar's Petition is sustained.

					Bruce R. Houston

					Chief Administrative Law Judge

²  Group E is the no-fee service. (Respondent's M/SJ, 18; Estes Declaration).

³  This Postal Bulletin item constitutes an announcement of official Postal Service policy. (39 C.F.R. §111.3(c); Respondent's M/SJ 12; Estes Declaration). It is found in the case file as an attachment to Green Declaration (Respondent's M/SJ), and with Petitioners' M/SJ at Tab J.

⁴  Petitioners do not contend that the Postal Service must construct enough new boxes so that all homeless persons can have one, only that homeless persons have the same entitlement to no-fee boxes as any other person when boxes are available.

⁵  Petitioners' Brief, p. 32.

⁶  DMM §D910.2.2.