The Hail Mary is an incomplete: The PRC denies the APWU motion to stop the change in service standards
June 29, 2012
The Postal Regulatory Commission has denied the APWU’s motion for an emergency order directing the Postal Service not to implement its proposed changes in service standards on July 2. Next week, then, overnight delivery will end for Inter-SCF mail (that's mail that needs to travel from between processing facilities). The PRC press release is here, and the order is here.
The decision does not come as a surprise. As discussed in this blog post a few days ago, it was unlikely that the PRC would require the Postal Service to wait until the Advisory Opinion is completed, sometime around Labor Day. Today’s order does, however, contain a clear statement that the Commission believes the public interest is not well served by the Postal Service’s decision to proceed with implementation while the Advisory Opinion process is still ongoing.
Today’s order reviews the arguments made by the APWU and the Postal Service, and adds a few paragraphs of Commission Analysis. There were several issues on the table.
1. Likelihood of Success on the Merits: The APWU needed to demonstrate that it would ultimately prevail in its original Complaint about premature implementation of the plan. The Commission decided, however, that “APWU fails to provide any persuasive argument that 39 U.S.C. 3661 precludes the Postal Service from implementing any nationwide change in the nature of postal services until after the Commission issues its advisory opinion.”
That’s a reference to section 3661 of Title 39, the passage in the Postal Reorganization Act that establishes the advisory opinion process. The Act says, ‘When the Postal Service determines that there should be a change in the nature of postal services which will generally affect service on a nationwide or substantially nationwide basis, it shall submit a proposal, within a reasonable time prior to the effective date of such proposal, to the Postal Regulatory Commission requesting an advisory opinion on the change.”
The passage does not clearly state that the Postal Service must wait for the Opinion itself, and the PRC decided that the APWU had failed to demonstrate that its interpretation of the passage was conclusive.
The APWU also argued that the Postal Service had changed the plan so much since December, when the Request for made, that it should be submitting a new request. The PRC found that the initial Request could be viewed as encompassing the two-phase approach to Network Rationalization announced in May.
2. Irreparable Harm to APWU: The union argued that it would suffer harm if the service standard changes were implemented before the Advisory Opinion, but the Commission found that legal precedents indicated that the possible harms were not enough to issue a stay and that there would be an opportunity to seek “compensatory relief” at a later date.
3. Balance of the Equities: The Commission weighed the harms that would be suffered by the APWU and the Postal Service and decided that the delay in implementation would do the Postal Service greater harm.
This part of the PRC order does not address a key question: According to testimony presented to the PRC by APWU witness Pierre Kacha, the Postal Service could implement the 48 summer consolidations without changing service standards, so in what sense would the Postal Service suffer from a delay in implementation if it were to be required to wait for the Advisory Opinion? The Postal Service has not contested that testimony, so it’s not clear what aspects of implementation would be endangered by delaying the change in service standards.
4. Public Interest: This is the most interesting part of today’s ruling. The APWU argued the granting of its Emergency Motion is consistent with the public interest because 39 U.S.C. 3661 ensures due process for the public. The Postal Service argued that granting the motion would not be in the public interest because it would “keep the Postal Service from addressing its significant financial losses, which would make it difficult for it to provide the public with stable, sustainable, and comprehensive postal services.”
On this question, the Commission seemed to agree with the APWU. The Commission’s comment is worth quoting in full:
“APWU is correct in identifying the fact that there is a public interest in the public’s participation in the advisory opinion process as well as the Commission’s ultimate advisory opinion. At its core, section 3661 underscores the importance of meaningful public participation and Commission advice in the process leading up to management decisions on nationwide service changes. Section 3661 and the Commission’s implementing regulations require an initial Postal Service presentation and full opportunity for public input, and a review in a hearing on the record. The advisory opinion process envisions the Postal Service taking the advisory opinion into account in implementing its plans. The public interest is served when the full process is completed."
The Commission proceeds to note that the Postal Service may have learned a lot from the feedback it has received so far, some of it through the Advisory Opinion process, but that does not mean the public interest “has been satisfied.” The case is ongoing, and “the Commission expects that the Postal Service — as well as the public as a whole — will benefit significantly from the remainder of the case as well as the Commission’s advisory opinion.”
The Commission actually goes a step further and comes pretty close to stating that proceeding with implementation before an Advisory Opinion is issued may not comply with the spirit of the law. “While Congress did provide the Postal Service with management flexibility in 39 U.S.C. 404(a) with respect to much of its operations, Congress found that the public interest is served through the advisory opinion process of section 3661. Abrogation of the section 3661 process would be contrary to the public interest.”
5. Commission Authority: While the PRC chose not to issue an injunction that would prevent implementation on July 2, it did not buy the Postal Service’s argument that the Commission does not have the authority to issue such an injunction. The PRC decided that it didn’t have to decide that issue right now, since the APWU’s motion had failed on other grounds. In other words, the PRC held open the possibility that it might exert this authority in another context.
Overall, then, the Commission’s ruling will not prevent the change in service standards from being implemented next week. But the order does suggest that the Commissioners do not think it’s a very good idea for the Postal Service to short circuit the Advisory Opinion process by proceeding with implementation before the process is completed. In fact, the Postal Service’s actions may represent an “abrogation of the section 3661 process” and therefore not serve the public interest. That’s a fairly sharp rebuke, though it’s not likely to make much of a difference to the Postal Service.
(Photo credit: Incomplete pass)