In the Matter of the Petition by                               )
                                                                              )
SUNDAY SCHOOL BOARD OF THE                      )
SOUTHERN BAPTIST CONVENTION                      )
BAPTIST SUNDAY SCHOOL BOARD                    )
(BSSB)                                                                  )
                                                                              )
                                                                              )
Denial of Nonprofit Standard Mail                          )
    Rates                                                                 )    P.S. Docket No. SCD 97-192

APPEARANCE FOR PETITIONER:                           Peter F. Rathbun, Esq.
                                                                               George R. Grange II, Esq.
                                                                               Gammon & Grange, P.C.
                                                                               8280 Greensboro Dr., 7th Floor
                                                                               McLean, VA 22102-3807

APPEARANCE FOR RESPONDENT:                        Christine M. Taylor, Esq.
                                                                               Civil Practice Section
                                                                               United States Postal Service
                                                                               475 L'Enfant Plaza, SW
                                                                               Washington, DC 20260-1127

POSTAL SERVICE DECISION

Petitioner, the Sunday School Board of the Southern Baptist Convention (BSSB), has filed an appeal from a Decision on Motion to Dismiss in which the Chief Administrative Law Judge dismissed for lack of jurisdiction Petitioner's appeal of the determination that certain categories of items⁽¹⁾ sold by BSSB did not qualify for Nonprofit Standard Mail rates. Respondent, United States Postal Service, opposes the appeal.

Background

Petitioner is a nonprofit religious organization authorized to mail at Nonprofit Standard Mail rates. In 1995, the United States Postal Service's Nashville office questioned whether numerous items mailed by BSSB qualified for those rates. In a letter dated May 13, 1997 that stated it was the final agency decision, the Manager, Business Mail Acceptance, United States Postal Service, affirmed earlier rulings that certain categories of items sold by BSSB through the mail did not qualify for Nonprofit Standard Mail rates because their primary purpose was production of income.⁽²⁾ BSSB appealed the decision by filing a petition under 39 C.F.R. Part 954, the Rules of Practice in Proceedings Relative to the Denial, Suspension, or Revocation of Second-Class Mail Privileges.⁽³⁾ Respondent filed a Motion to Dismiss, arguing that the Chief Administrative Law Judge and the Judicial Officer have no jurisdiction over decisions concerning eligibility for nonprofit rates. In his Decision, the Chief Administrative Law Judge concluded that he lacked jurisdiction to hear the appeal and granted the Motion to Dismiss. This appeal followed.

Decision

Petitioner contends that revisions to the Code of Federal Regulations in 1987 expanded the Judicial Officer's authority and gave him jurisdiction over all final agency decisions, including the authority to decide appeals relating to the applicability of nonprofit rates.⁽⁴⁾ Therefore, Petitioner argues, this matter should be remanded to the Administrative Law Judge for a hearing as Petitioner has not been provided an opportunity to fully develop the evidence in support of its position.

Petitioner's argument that the Judicial Officer has authority under 39 C.F.R. §226.2 to consider its appeal is without merit. Although the Judicial Officer's functional statement was revised in 1987 and the language specifically listing the areas of jurisdiction replaced with a more general statement of the Judicial Officer's responsibilities,⁽⁵⁾ the revision did not enlarge the jurisdiction of the Administrative Law Judges or the Judicial Officer. The purpose of the revised rule was to streamline the functional statements of several offices to reflect a reorganization and realignment of functions within other areas of the Postal Service, not to expand the authority of the Judicial Officer to consider additional areas beyond those reflected in the Rules of Practice.⁽⁶⁾ Moreover, Postal Service regulations clearly place the responsibility for issuing final agency decisions relating to nonprofit rates on the Business Mail Acceptance Manager.⁽⁷⁾ Accordingly, the Administrative Law Judge correctly ruled that he did not have jurisdiction to consider Petitioner's appeal.⁽⁸⁾

Petitioner contends that the dismissal of its case will deprive it of its due process rights and that in the interest of judicial economy, the Judicial Officer should accept jurisdiction over its appeal.⁽⁹⁾ However, regardless of the rights to which Petitioner is entitled or the policies they believe would be furthered, neither the Judicial Officer nor the Chief Administrative Law Judge has jurisdiction over nonprofit issues or authority to address the merits of Petitioner's arguments.⁽¹⁰⁾

Conclusion

Accordingly, the Chief Administrative Law Judge correctly concluded that the Motion to Dismiss should be granted. Therefore, Petitioner's appeal is denied.

James A. Cohen
Judicial Officer

1. The disputed categories are t-shirts and other clothing items, coffee mugs, and jewelry.

2. The Manager's decision did not revoke or otherwise affect Petitioner's authorization to mail at Nonprofit Standard Mail rates, but only concerned Petitioner's authorization to mail promotional materials containing advertisements for the disputed items at those rates.

3. Effective July 1, 1996, second-class mail was renamed Periodicals and second-class mailing privileges are now referred to as Periodicals mailing privileges. DMM §E211.1.1; 62 Fed. Reg. 66997 (Dec. 23, 1997). The eligibility standards remain the same.

4. Petitioner also argues that the Rules of Practice at 39 C.F.R. §954 should not be limited to appeals from denials of second-class mail privileges. The language in Part 954 makes clear that it only applies to "Postal Service proceedings concerning applications, denials, suspensions and revocations of second-class mailing privileges. . ." (emphasis added).

5. See 39 C.F.R. §226.2(e)(1)(i).

6. 52 Fed. Reg. 46998 (Dec. 11, 1987).

7. DMM §E670.10.3.

8. Petitioner’s argument that the holding in Dun & Bradstreet Corp. Foundation v. United States Postal Service, 946 F.2d 189 (2d Cir. 1991) requires the Judicial Officer to assume jurisdiction in this matter is misplaced. Postal Service regulations allow the Business Mail Acceptance Manager, who has jurisdiction over the eligibility for nonprofit rates, to reconsider her final decision as she did in her letter of May 13, 1997. The Dun & Bradstreet case encourages such reconsideration, but does not hold that a department within an agency has the authority to assume jurisdiction over a matter specifically delegated to another department.

9. Petitioner also raised First Amendment concerns. The Judicial Officer has never had jurisdiction to consider the constitutionality of Postal statutes or regulations. Columbia Flier, P.S. Docket No. 26/17 at 3 (P.S.D. May 11, 1988); see, e.g., Canadian Express Club, P.S. Docket No. 28/52 at 15 n.3 (P.S.D. Dec. 23, 1991). Further, the existence of constitutional issues cannot confer jurisdiction on a forum that lacks subject matter jurisdiction over the underlying issues.

10. DMM §§E670.10 and G020.3.