[Federal Register Volume 68, Number 237 (Wednesday, December 10, 2003)]
[Notices]
[Pages 68959-68961]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30612]


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POSTAL RATE COMMISSION

[Order No. 1387; Docket No. A2003-1]


Dismissal of Appeal of Post Office Closing in Birmingham Green, 
AL

AGENCY: Postal Rate Commission.

ACTION: Order.

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SUMMARY: The Commission is dismissing an appeal (brought by George 
Prince et al., petitioners) of the closing of a Birmingham Green, 
Alabama 35237 postal facility. The reason for dismissal is lack of 
jurisdiction. This facility is a classified postal station, rather than 
a post office. Controlling precedent holds that the Commission does not 
have jurisdiction over a closing or consolidation of a postal station.

ADDRESSES: Submit correspondence concerning this matter via the 
Commission's Filing Online system at http://www.prc.gov.

FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, General Counsel, 
202-789-6818.

SUPPLEMENTARY INFORMATION:

Regulatory History

    68 FR 56350 (September 30, 2003).

Introduction and Summary

    On September 17, 2003, three individuals petitioned the Commission 
to review the Postal Service's actions regarding the Birmingham Green, 
Alabama Post Office.\1\ The Commission gave notice and accepted the 
appeal in order no. 1384, issued on September 23, 2003.\2\ The Postal 
Service subsequently moved to dismiss this proceeding, arguing that the 
Commission lacks jurisdiction to consider an appeal under 39 U.S.C. 
404(b).\3\ After considering the circumstances of this appeal in light 
of applicable law and precedent in earlier dockets, the Commission has 
concluded that this proceeding should be dismissed for lack of 
jurisdiction.
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    \1\ Joint Petition for Review and Application for Suspension, 
September 17, 2003.
    \2\ Notice and Order Accepting Appeal and Establishing 
Procedural Schedule Under 39 U.S.C. 404(b)(5), September 23, 2003.
    \3\ United States Postal Service Motion to Dismiss Proceeding, 
October 3, 2003.
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Petitioners' Request for Review

    Petitioners George Prince, Terry Finch, and James E. Roberts 
contest a Postal Service action--which they characterize as a ``closing 
or consolidation''--affecting the Birmingham Green post office, located 
at 317 North 20th Street in Birmingham, Alabama 35237. Joint Petition 
at 1. Petitioners document the Postal Service action in two attachments 
to their pleading.
    The first attachment is a letter dated August 27, 2003 and signed 
by Paul T. Barrett, postmaster of Birmingham. In the letter, Mr. 
Barrett advises postal customers that ``the Birmingham Green Post 
Office will be officially closed September 12, 2003.'' In light of this 
development, he states that customers will be required to change their 
post office boxes, and that mail will be forwarded in accordance with 
postal regulations. He further states that ``[r]etail services from the 
Main Post Office will ensure effective and regular services to the 
Downtown Birmingham community.''
    The second attachment is a document entitled ``Proposal to 
Consolidate the Birmingham Green Station and Establish a Contract 
Postal Unit,'' dated June 20, 2003. According to the document's cover 
page, the matter was assigned docket number 35237.
    The document states at the outset that the Postal Service ``is 
proposing to consolidate the Birmingham Green Station and provide 
retail services by establishing a contract postal unit (CPU) under the 
administrative responsibility of the Main Post Office, located 4 blocks 
away.'' Proposal to Consolidate at 1. The remainder of the document 
consists of assessments of the proposal's anticipated effects, under 
headings entitled ``Responsiveness to Community Postal Needs,'' 
``Effect on Community,'' ``Effect on Employees,'' ``Economic Savings,'' 
and ``Other Factors.'' These areas of inquiry correspond to the 
criteria the Postal Service is directed to consider in making a 
statutory determination to close or consolidate a post office, pursuant 
to 39 U.S.C. 404(b)(2).
    Petitioners assert that the Postal Service's determination to close 
the Birmingham Green facility, announced in a notice of final 
determination on August 27, 2003 violates the requirement in 39 CFR 
241.3(a)(2)(iii) that such determinations be available in writing at 
least 60 days before discontinuance takes effect. On this basis, 
petitioners argue that the process was ``without observance of 
procedure required by law,'' in contravention of 39 U.S.C. 
404(b)(5)(B). Joint Petition at 1.
    Petitioners also challenge the merits of the Service's decision. 
They allege that it will have adverse effects on the community served 
by the Birmingham Green facility and will degrade the degree of service 
provided; that the Service failed to take into account all the 
disadvantages of closing the facility; that the Service provided no 
statement of the facility's income or revenue in its proposal; and that 
it did not adequately respond to the concerns raised by community 
members in both questionnaire responses and in a public hearing. Id. at 
1-2.

Postal Service Motion To Dismiss

    Order no. 1384 established October 3, 2003 as the date for the 
Postal Service's filing of its administrative record in this appeal. On 
that date, rather than filing an administrative record, the Service 
submitted a motion to dismiss this proceeding.\4\
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    \4\ Id.
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    In it motion, the Postal Service submits that the petition does not 
fall within the Commission's jurisdiction under Sec.  404(b)(5). The 
Service cites two bases for this conclusion. First, it asserts that the 
Birmingham Green facility is a classified postal station--one of at 
least four USPS-operated facilities in downtown Birmingham--and thus is 
not a post office. Second, the Service represents that operations at 
the Birmingham Green facility ``are currently suspended rather than

[[Page 68960]]

formally closed[,]'' \5\ and that it has been working with Birmingham 
customers on providing them services, with the expectation that a 
contract station will be established in the vicinity of the Birmingham 
Green station.
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    \5\ Id. at 1. (Footnote omitted.)
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    The Postal Service musters an extensive review of legislative 
history and case law to support its position ``that the procedures 
mandated by Sec.  404(b) apply only to the closing or consolidation of 
an independent post office, which is a facility occupied and 
immediately supervised by a postmaster, and not the closing or 
consolidation of a station, branch, contract unit, or other subordinate 
facility under the administrative supervision of a post office.'' \6\ 
The Service argues at length that Congress, in enacting Sec.  404(b), 
intended to limit the term ``post office'' to a definition predating 
the Reorganization Act that distinguishes between independent post 
offices and their subordinate retail facilities such as stations and 
branches.\7\ The Service also cites judicial authority in support of 
the restrictive interpretation of ``post office'' it urges.\8\ Most 
notably, it invokes the decision in Shepard Community Association v. 
United States Postal Service,\9\ in which a United States District 
Court found convincing indications of Congressional intent to 
distinguish post offices from branches and stations for purposes of 
applying Sec.  404(b), and accordingly ruled that Sec.  404(b) did not 
apply to the contested closing of the Shepard station in Columbus, 
Ohio.
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    \6\ Id. at 2.
    \7\ Id. at 3-9.
    \8\ Id. at 9-14.
    \9\ Shepard Community Association v. United States Postal 
Service, Civ. No. C2-82-425 (S.D. Ohio 1985).
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Analysis of Jurisdictional Applicability

    The available documentary evidence concerning the Birmingham Green 
facility, and the nature of the Postal Service's actions affecting it, 
are somewhat opaque. The Service asks the Commission to infer that 
operations at the facility have been ``suspended,'' based on the 
absence of a formal announcement of its closure in the Postal 
Bulletin.\10\ However, Postmaster Barrett's letter of August 27, 2003, 
publicly discloses an official intention to close the facility, with 
post office boxes and other services to be provided at the Main Post 
Office.
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    \10\ Postal Service Motion to Dismiss, supra, at 1, n. 4.
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    At the same time, his apparently contemporaneous administrative 
responsibility for the Birmingham Green facility implies that its 
closure would not constitute a statutory ``consolidation,'' which has 
been found to have ``the characteristic of subordinating the day to day 
overall management of one office having a postmaster to the 
administrative personnel of another office.'' \11\ If Postmaster 
Barrett already had administrative responsibility for the Birmingham 
Green facility, closing it would not appear to constitute a 
``consolidation'' subject to review under Sec.  404(b). Yet, apparently 
two months earlier, the Postal Service at some administrative level had 
prepared an analysis on the ``Proposal to Consolidate the Birmingham 
Green Station and Establish a Contract Postal Unit,'' which petitioners 
have provided as an attachment to their appeal.
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    \11\ Knapp v. United States Postal Service, 449 F. Supp. 158, 
162 (C.D. Cal. 1978).
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    Notwithstanding these unclear circumstances, the Commission finds 
that the available facts support a conclusion that the Postal Service's 
actions regarding the Birmingham Green facility--whether considered as 
a ``closing'' or a ``suspension''--affect a ``station or branch'' 
within the service area administered by the Birmingham post office, and 
thus do not fall within the ambit of the review process provided in 39 
U.S.C. 404(b).
    The Commission's action in an earlier proceeding, docket no. A82-
10, provides useful guidance in this controversy. In that docket, 
petitioners contested the Postal Service's plan to close the Oceana 
Station in Virginia Beach, Virginia. In its dispositive order,\12\ the 
Commission considered legal arguments on what it regarded as a 
threshold issue: whether Sec.  404(b) procedures for closing or 
consolidating post offices were applicable to the Service's plan to 
close the Oceana Station.
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    \12\ Order No. 436, Order Dismissing Docket No. A82-10, June 25, 
1982.
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    In deliberating on this issue, the Commission held that the Postal 
Service decision to close the facility ``must be considered within the 
context of the Postal Service's other actions in the area.''\13\ After 
examining the facts presented, the Commission found the proposed 
closing of the Oceana Station to be one component of a plan to 
reconfigure the network of postal facilities providing services to 
various communities in the Virginia Beach area. Employing a ``rule of 
reason,'' the Commission held that ``the requirements of section 404(b) 
do not pertain to the specific building housing the post office; but 
rather are concerned with the provision of a facility within the 
community.'' \14\ In light of the Service's description of its actions 
in the Virginia Beach area, the Commission concluded ``that the Postal 
Service is merely rearranging the retail facilities in the 
community[,]'' \15\ and that the formal requirements of Sec.  404(b) 
were not intended to apply to such changes. More broadly, the 
Commission stated that ``the Postal Service is not required to follow 
the formal Sec.  404(b) procedure when it is merely rearranging its 
retail facilities in a community, as it is doing in Virginia Beach.'' 
\16\
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    \13\ Id. at 7.
    \14\ Id. at 6-7.
    \15\ Id. at 8.
    \16\ Id. at 1.
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    Here, as in docket no. A82-10, the Postal Service's action affects 
one classified station of several in a metropolitan area: in this 
instance, Birmingham, Alabama.\17\ The Postal Service represents that 
equal or superior service is available at the Birmingham Main post 
office, less than one-half mile away, but that it is also working to 
establish a contract station in the vicinity of the Birmingham Green 
station.\18\ These activities indicate that the Service's action with 
regard to the Birmingham Green station is part of a rearrangement of 
the retail network serving the Birmingham community, as with the 
Virginia Beach area in docket no. A82-10. For this reason, the 
Commission concludes that the procedural requirements of Sec.  404(b) 
do not apply, and that the appeal of the Postal Service's action 
regarding the Birmingham Green station does not fall within the 
Commission's jurisdiction under that section.\19\ Therefore, the Postal 
Service's motion to dismiss this proceeding shall be granted.
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    \17\ Id., Attachment No.1, p. 3-7.
    \18\ Postal Service Motion to Dismiss, supra, at 1-2.
    \19\ The Commission views this outcome as compatible with, if 
not in every respect identical to, the court's analysis in the 
Shepard decision, supra.
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    The joint petition for review was accompanied by an application for 
suspension of the Postal Service's action regarding the Birmingham 
Green station. Inasmuch as the Commission has found Sec.  404(b) 
inapplicable to the Service's action, the motion for suspension must 
also be denied.
    Ordering Paragraphs The Commission orders:
    (a) The United States Postal Service Motion to Dismiss Proceeding, 
filed October 3, 2003, is granted.
    (b) Petitioners' Application for Suspension, filed September 17, 
2003, is denied.

[[Page 68961]]

    (c) The Secretary of the Postal Rate Commission shall publish this 
order in the Federal Register.

By the Commission.

    Issued December 3, 2003.
    Dated: December 4, 2003.
Steven W. Williams,
Secretary.
[FR Doc. 03-30612 Filed 12-9-03; 8:45 am]
BILLING CODE 7710-FW-P