In the Matter of the Appeal of:

THE CITY OF KETCHIKAN, et al.,
P.O. Box 1110 at
Ketchikan, Alaska 99901

P.S. Docket No. 4/180

05/10/76

Gregory D. Hoffman, Esq.
Alaska Legal Services Corporation,
P.O. Box 652, Ketchikan, Alaska, for Appellants

Thomas A. Ziebarth, Esq.
Law Department
United States Postal Service
Washington, D.C., for Respondent

Before: William A. Duvall, Chief Administrative Law Judge

DECISION AND ORDER ON MOTION TO DISMISS ^1/

1/ Transcribed from oral decision as rendered at close of hearing held April 28, 1976. Minor language changes have been made, but the substance of the decision is unchanged.

This case involves appeals by the City of Ketchikan, Alaska, and 132 businesses, public service organizations, churches, stores, and individuals, of Ketchikan from action which has the effect of depriving these Appellants of the use of certain post office boxes which they have used in the past and which they will continue to use until the Postal Service moves into new quarters which are understood to be under construction in the City of Ketchikan, about 2 or 2 1/2 miles distant from the location of the present post office.

In the appeals, the Appellants indicate that the matters are being presented under 39 C.F.R. Part 958 which sets forth the Rules of Practice in Proceedings Relative to the Refusal to Rent or Renew Post Office Boxes and the Closing of Post Office Boxes.

Counsel for the Postal Service has moved to dismiss this proceeding, for want of jurisdiction. That motion is well-taken. In Section 958.2 of the Rules of Practice, it is provided that the rules in this part shall be applicable only to cases in which the General counsel for the United States Postal Service has issued a notice of intent to close a post office box, or in which a postmaster has refused to rent, or renew the rental, of a post office box pursuant to Section 169.1 of this chapter, and a timely appeal has been filed.

It has been pointed out that the provisions formerly set forth in Section 169.1 of 39 C.F.R. have been recodified and now appear in Section 169.8 of 39 C.F.R. This is a clerical matter which appears to me to be of no significance. The coordination of these amendments is a thing that is not always perfectly done, and sometimes the activities of one facet of the Postal Service have an impact upon the activities of another facet of the Postal Service, but the activities of the first organization sometimes take place without the knowledge of the second.

In any event, if a person finds his way to Part 169 of Title 39, and fails to find it in the first section, he sees that the subject matter of that part is lockboxes, and I think that if he is sufficiently interested, as obviously these Appellants are, he will continue to read until he gets to the portion which provides for the bases on which, and the reasons for which, a box may be closed, or the reasons for which a postmaster may refuse to renew the use of the box to a customer.

There are two grounds stated why a postmaster may refuse to rent a post office box, or extend caller service to any person, and these reasons are: (1) the belief on the part of the postmaster that the person involved has falsified the application or has, within the previous two years, physically abused a box or violated any regulation or contractual provision relating to the care and use of a box or caller service; or (2) the belief on the part of the postmaster that the person is likely to use a box or caller service in connection with a scheme or enterprise in violation of Section 169.162, which defines unlawful activity and proscribes the use of a box for any such purpose.

Unless such a belief exists on the part of the postmaster, he may not refuse to issue a notice. No such notice has been issued. In any event, the notice about the closing of a box is issued by the General Counsel of the Postal Service and the General Counsel has issued no such notice. The reason why no such notice has been issued is because there is no basis for the issuance of a notice of closure in the case of these Appellants.

As a matter of fact, in most of the appeals that have been filed, each Appellant has stated that he is in compliance with all rules, regulations, charges, and fees required by U.S.P.S. to hold a box in said post office. They assert their legal qualifications to hold these boxes. The Postal Service admits that they are qualified and, in the Motion to Dismiss, it is pointed out that certainly none of these Appellants is guilty of acts or conduct for which a box properly may be closed.

Although this case has been posed in terms of appeals from the closing of post office boxes, and that is an ingenious approach to the problem, nevertheless the crux of this matter is the fact that the post office in Ketchikan, Alaska, is presently located in a place which the present boxholders, and perhaps others, regard as being a convenient, and perhaps a logical place for the location of the Ketchikan Post Office, and they really are protesting the decision made by Postal Service management to move the Ketchikan Post Office 2 or 2 1/2 miles down the street to an area in which it will be inaccessible, or at least less accessible, to the Appellants in this proceeding. This is a challenge of the authority of the Postal Service to make decisions that involve moves of this kind.

Because of this fact, some of the background on this question will be stated. The United States Postal Service was created by the Act known as the Postal Reorganization Act which was approved by the President on August 12, 1970. In enacting this statute, Congress declared in 39 U.S. Code 101 that its policy was that "In planning and building new postal facilities, the Postal Service shall emphasize the need for facilities and equipment designed to create desirable working conditions for its officers and employees, a maximum degree of convenience for efficient postal services, proper access to existing and future air and surface transportation facilities, and control of costs to the Postal Service."

One of the specific powers conferred upon the Postal Service is found in subsection 3 of 39 U.S. Code 404, where the service is authorized "to determine the need for post offices, postal and training facilities and equipment, and to provide such offices, facilities and equipment as it determines are needed: ***."

In 39 U.S. Code 202, it is provided that "The exercise of the power of the Postal Service shall be directed by a Board of Governors ***."

Under 39 U.S. Code 402, the Board of Governors is authorized to "delegate the authority vested in it to the Postmaster General under such terms, conditions, and limitations, including the power of redelegation, as it deems desirable ***."

In 39 C.F.R. Section 5.3, it is provided that the Postmaster General is the chief executive officer of the Postal Service, and "he is authorized to exercise the powers vested in the Postal Service under the general supervision and direction of the Board ***."

In Section 3.9 of Title 39 C.F.R., the Board of Governors did delegate to the Postmaster General the authority to exercise the powers of the Postal Service, including the power to redelegate, to the extent that such delegation does not conflict with the powers reserved to the Board of Governors.

In 39 C.F.R. 5.5, provision is made for the appointment of various Assistant Postmasters General, and other officers, by the Postmaster General, and it is further provided that "they" -- that is, the officers thus appointed -- "shall have such powers and duties, consistent with these bylaws as may be delegated to them by the Postmaster General."

The organization of the Postal Service into various groups and departments is described in Part 224 of Title 39 of the Code of Federal Regulations. In subsection (a) of Section 224.4 it is provided that the "Operations Group is headed by the Senior Assistant Postmaster General, Operations, who reports to the Postmaster General. It has overall responsibility for all aspects of mail processing operations within the Postal Service. This responsibility includes the collection, distribution, processing and delivery functions and the transportation of mail throughout the Postal Service."

Thus, the Operations Group has primary responsibility for establishing policies and procedure for determining the need for the location of facilities for the handling and distribution of mail. This responsibility has been redelegated to various levels of postal management, depending upon the size of the facility needed, the cost of construction of such facilities, the volume of mail to be handled, and other factors.

The purpose of going through this tedious recitation is to trace, step by step, the grant of authority for the establishment, discontinuance, and location of post offices directly from the Congress, on whom such powers are conferred in Article I, Section 8 of the Constitution of the United States, to the Postal Service, thence to the Board of Governors, thence to the Postmaster General, and finally to the Operations Group within the Postal Service. It has been noted that the authority to make the determination to establish or discontinue, locate and relocate, a particular post office has been committed to the judgment and discretion of the Postmaster General and to those members of his staff to whom he has redelegated his power in this respect.

There is no place in the Postal Reorganization Act, the Code of Federal Regulations, or anywhere else, at which there is provided any right to a formal administrative appeal within the United States Postal Service from the exercise of that judgment and discretion to open, close or relocate a post office. ^2/

2/ See 39 U.S. Code 3661 for provisions relating to proceedings before the Postal Rate Commission when a change meeting certain prescribed criteria are proposed. Buchanan v. U.S.P.S., 375 F. Supp. 1014 (1974), aff'd. in part Buchanan v. U.S.P.S., 508 F.2d 259 (5th Cir. 1975); the matter of Retail Analysis Program for Facilities Deployment, Postal Rate Commission Docket No. N75-1, Init. Dec. Jan. 14, 1976, Advisory Opinion by the Postal Rate Commission April 22, 1976. See also 39 U.S. Code 3662. No view is expressed as to whether either section 3661 or 3662 of 39 U.S. Code is or is not applicable to the situation which is the subject of this Decision and Order.

Accordingly, there is no forum within the Postal Service, including the present one, in which formal administrative appeals may be lodged with respect to the relocation of a post office within a particular city.

It follows that for all of the reasons herein stated, these appeals must be dismissed for want of jurisdiction. In the light of this ruling, other points urged by the parties are moot.