It has been over five months since the Appeals Court heard arguments in the dispute between the US Postal Service and the Postal Regulatory Commission over the exigent rate increase. The USPS says that in the absence of a favorable ruling, it faces a mid-June deadline to notify customers of a rate change. So it has had its counsel, former Bush Solicitor General Paul D. Clement, fire off a letter to the Court “very respectfully” asking the court to rule in its favor, and make it snappy:
Mr. Mark Langer, Clerk of Court
U.S. Court of Appeals for the D.C. Circuit
Re: U.S. Postal Service v. Postal Regulatory Commission, No. 14-1010
Dear Mr. Langer,
Petitioner United States Postal Service (“USPS”) submits this letter under Rule 28(j) to apprise the Court of recent developments in the above-captioned case. The Court granted a motion to expedite this case on March 19, 2014, and held argument on September 9, 2014.
USPS seeks review of Postal Regulatory Commission Order No. 1926, which authorized USPS to recoup only a fraction of its requested rate adjustment for losses suffered “due to” the Great Recession. That order is arbitrary and capricious and contrary to law because it misconstrues the governing statute and grossly underestimates USPS’s actual recession-related losses.
Since January 2014, USPS has been collecting the artificially low amount authorized by the Commission through a 4.3% rate surcharge. As of March 31, 2015, USPS had collected approximately 78% of the authorized amount. See May 15, 2015 Notice of Revenue Collection (Ex. A). USPS expects that it will recoup the entirety of the artificially low amount by early August, at which point it must lift the surcharge. USPS must also provide 45 days’ notice before lifting the surcharge. See PRC Order No. 2319 at 5-6 (Ex. B). Thus, absent a decision or other action by this Court, USPS would need to notify its customers of a prospective rescission as early as mid-June.
USPS very respectfully notes that these timing considerations could have significant practical implications for the parties. Changing postal rates on a nationwide basis is an expensive and complicated process. If USPS is correct that the Commission’s calculation of recession-related losses was too low, it would be far more efficient for the current 4.3% rate surcharge to remain in force for the period necessary to recoup the legally correct amount of the adjustment, rather than be removed in early August only to be re-imposed shortly thereafter.
In light of these timing concerns, the Court may wish to consider issuing the mandate along with its opinion rather than withholding the mandate until 7 days after the expiration of the time for filing a rehearing petition. See D.C. Cir. R. 41(a)(1) (authorizing “immediate issuance” of mandate in “appropriate case[s]”).
Paul D. Clement
Counsel for Petitioner U.S. Postal Service