United States Court of Appeals, District of Columbia Circuit
September 20, 2016
Petition for Review of an Order of the Postal Regulatory
C. Belt, Attorney, United States Postal Service, argued the
cause and filed briefs for the petitioner. Stephan J.
Boardman, Chief Counsel, United States Postal Service,
entered an appearance.
Tenny, Attorney, United States Department of Justice, argued
the cause for the respondent. Benjamin C. Mizer, Principal
Deputy Assistant Attorney General, Michael S. Raab, Attorney,
David A. Trissell, General Counsel, Postal Regulatory
Commission, Christopher J. Laver and Anne J. Siarnacki,
Deputy General Counsels and Elisabeth S. Shellan, Attorney
were with him on brief.
M. Levy, Matthew D. Field, Ian D. Volner, Jeremiah L. Morgan
and William J. Olson were on brief for the mailer intervenors
in support of the Postal Regulatory Commission.
Before: Henderson and Griffith, Circuit Judges, and Williams,
Senior Circuit Judge.
LeCraft Henderson, Circuit Judge.
Postal Accountability and Enhancement Act of 2006 authorizes
the Postal Regulatory Commission (Commission) to regulate the
rates of the United States Postal Service's (Postal
Service) market-dominant products. See 39 U.S.C.
§§ 3621-29. Although annual price increases for
these products are generally capped at the rate of inflation,
the Commission is permitted to approve raising rates above
this mark "on an expedited basis due to either
extraordinary or exceptional circumstances."
Id. § 3622(d)(1)(E). In Order No. 1926,
Commission-recognizing that the Great Recession of 2008 was
just such an exigent circumstance-allowed for a rate increase
but also sought to calculate the extent to which decreased
mail volume was "due to" the economic downturn in
order to determine how long that rate increase should remain
in effect. As part of its inquiry, the Commission created a
"new normal" test to determine when the
"extraordinary or exceptional circumstances" no
longer supported a rate increase. In an earlier case, the
Postal Service had petitioned this Court for review of that
"new normal" test and we upheld the
Commission's approach as "well reasoned and grounded
in the evidence before the Commission . . . [and] comfortably
pass[ing] deferential APA review." All. of Nonprofit
Mailers v. Postal Regulatory Comm'n, 790 F.3d 186,
196 (D.C. Cir. 2015). The Postal Service sought
reconsideration, claiming that the Commission "altered
its original decision" by "changing the meaning and
role of the 'ability to adjust' element of its
['new normal'] test, " Pet'r Reply Br. 7,
and, in Order No. 2623,  the Commission denied that request.
Because the Commission's denial of reconsideration is
unreviewable, we dismiss the Postal Service's petition
for lack of jurisdiction. Entravision Holdings, LLC v.
FCC, 202 F.3d 311, 313 n.2 (D.C. Cir. 2000).
enacting the Postal Accountability and Enhancement Act of
2006 (the Act), Pub. L. No. 109-435, 120 Stat. 3198, the
Congress directed the Commission to establish a modern system
for regulating the rates and classes of the Postal
Service's market-dominant products. See 39
U.S.C. §§ 3621- 29. Although the Act affords the
Commission some flexibility in carrying out its charge,
see id. § 3622 (authorizing Commission to
create "modern system for regulating rates" but
also mandating that Commission account for certain
"factors, " "objectives" and
"requirements" in so doing), the Congress set forth
a price cap for market-dominant products, generally limiting
each price increase to an amount equal to the annual change
in the Consumer Price Index for All Urban Consumers (CPI-U).
See id. § 3622(d)(1)(A). The Act also provides
"procedures whereby rates may be adjusted on an
expedited basis due to either extraordinary or exceptional
circumstances" without regard to the CPI-U limitation.
Id. § 3622(d)(1)(E). Specifically, for this
statutory "safety valve" to take effect, the
Commission must find
after notice and opportunity for a public hearing and
comment, and within 90 days after any request by the Postal
Service, that such adjustment is reasonable and equitable and
necessary to enable the Postal Service, under best practices
of honest, efficient, and economical management, to maintain
and continue the development of postal services of the kind
and quality adapted to the needs of the United States.
Postal Service first requested an above-CPI-U rate increase
in July 2010 as it sought to make up for substantial losses
resulting from the "dramatic, rapid and unprecedented
decline in mail volume" caused by the Great Recession.
See U.S. Postal Serv. v. Postal Regulatory
Comm'n, 640 F.3d 1263, 1265 (D.C. Cir. 2011)
(internal quotation marks omitted). Although the Commission
agreed that "the recent recession, and the decline in
mail volume experienced during the recession" qualified
as an "extraordinary or exceptional circumstance, "
it nonetheless denied the Postal Service's request for an
above-CPI-U rate increase because it found that the Postal
Service had failed to quantify properly its losses "due
to" the recession with particularity. See
Postal Regulatory Commission, Order Denying Request for
Exigent Rate Adjustments, Order No. 547, Docket No. R2010-4,
at 3-4 (Sept. 30, 2010). This Court disagreed with the latter
portion of the Commission's analysis, finding that,
although "the plain meaning of 'due to' mandates
a causal relationship between the amount of a requested
adjustment and the exigent circumstances' impact on the
Postal Service, " the Act is ambiguous as to "how
close the relationship must be." 640 F.3d at 1267-68. We
remanded the case to the Commission to fill that statutory
gap, which it did in Order No. 864. See Postal
Regulatory Commission, Order Resolving Issues on Remand,
Order No. 864, Dkt. No. R2010-4R, at 25 (Sept. 20, 2011)
(noting that "exigent rate adjustments are permitted
only if, and to the extent that, they compensate for the net
adverse financial impact of the exigent circumstances").
September 2013, the Postal Service renewed its request for an
above-CPI-U rate increase, seeking a 4.3% price hike for an
indefinite period of time. In Order No. 1926, the Commission
granted the Postal Service's request in part. Order No.
1926, Docket No. R2013-11. The Commission reaffirmed that the
Great Recession constituted an exigent circumstance
warranting a rate increase but it still disagreed with the
Postal Service on the extent to which mail volume losses had
been caused by the economic downturn. See id. at 44.
Thus, the Commission ...