[00:00:02] Speaker 00: Case number 15-1156, American Postal Workers Union AFL-CIO Petitioner versus Postal Regulatory Commission. [00:00:10] Speaker 00: Mr. Anderson for the petitioner, Mr. Sandberg for the respondent. [00:00:40] Speaker 05: Mr. Anderson? [00:00:42] Speaker 05: Good morning. [00:00:42] Speaker 05: May it please the Court, I'm Michael Anderson for the American Postal Workers Union, the petitioner herein. [00:00:49] Speaker 05: Congress charged the Postal Regulatory Commission with controlling the postal monopoly in two primary respects, rates and services. [00:00:59] Speaker 05: And the treatment is parallel in the 2006 amendments to the postal statute. [00:01:04] Speaker 05: Rates and services are both dictated by regulations that are promulgated for notice and comments and published in the Code of Federal Regulations. [00:01:13] Speaker 05: They are binding and enforceable. [00:01:15] Speaker 05: And Congress specifically provided that violations of both rate and service regulations would be actionable by private complaint through section 3662. [00:01:25] Speaker 05: In this case, the union brought such a service complaint. [00:01:32] Speaker 05: It alleges that the widespread degree of noncompliance with service standards experienced in the United States between 2012 and the present has been proximately caused by management initiatives to dismantle the infrastructure of the Postal Service through what's called network consolidation or plant closings. [00:01:52] Speaker 05: that because the management of the Postal Service has closed plants that are proximate to communities like Brooklyn and Colorado Springs and Jacksonville, we are seeing the failure of the Postal Service in aggregate to meet the service standards required by regulation. [00:02:12] Speaker 05: The theory of the Union is not simply that there is an aggregate national shortfall, it's that the particularly deep shortfalls in communities affected most by those plant consolidations explain the shortfalls nationwide. [00:02:27] Speaker 05: Now, the Postal Regulatory Commission refused to hear this complaint. [00:02:31] Speaker 05: They dismissed it at the outset without allowing for discovery. [00:02:35] Speaker 05: And the commission put out an order that gave two rationales. [00:02:40] Speaker 05: First, the commission said, and I'm quoting from the headline of this section of its order, published service standards represent service expectations. [00:02:50] Speaker 05: They are not requirements, nor can they be violated. [00:02:55] Speaker 05: That would come as a rude surprise to Congress. [00:02:59] Speaker 03: Yes? [00:03:00] Speaker 03: I might just as well raise this question now. [00:03:04] Speaker 03: The problem with your argument is you have your standards standing alone from all of the rest of what the statute contemplates and what the agency has been doing. [00:03:17] Speaker 03: The standards merely lead to goals. [00:03:20] Speaker 03: And what the agency said to you was not that the standards are not [00:03:24] Speaker 03: question of whether they're unenforceable or not. [00:03:27] Speaker 03: They lead to goals which are enforceable, and the goals are exactly that, goals. [00:03:33] Speaker 03: And it was Congress who said they lead to goals. [00:03:35] Speaker 03: It was not the agency that made that up. [00:03:37] Speaker 03: That's in the statute. [00:03:39] Speaker 05: That's in the uncodified part of the statute, correct. [00:03:42] Speaker 05: Does that make it less statute? [00:03:43] Speaker 05: Well, no. [00:03:45] Speaker 05: The standards inform the goals, but the goals can't be enforced through any kind of private complaint because they're not published in the Code of Federal Regulations. [00:03:54] Speaker 05: They're not put out for notice and comment, and no private party would be allowed to bring a judicial complaint that the Commission had an adequately enforced performance goal. [00:04:04] Speaker 05: Who said that? [00:04:05] Speaker 05: But this court has repeatedly said that where an agency has a performance plan that's not published in the CFR, that this is not final agency action that can give rise to judicial review under the APA. [00:04:22] Speaker 03: The agency here itself says the goals are subject to complaint, at least they can correct me if I'm wrong. [00:04:29] Speaker 03: Again, I'm not sure, I still would have the question as to what is the redress if a goal is a goal and they've reasonably responded to a failure to reach a goal. [00:04:38] Speaker 03: But in any event, I don't know how you can ride the standards horse when the statute contemplates, as far as you're riding it, when the statute contemplates the law that Congress enacted that standards merely lead to goals and goals are what we're looking at to determine whether or not the [00:04:57] Speaker 03: commission and the service, whether they're measuring what's going on in a meaningful way. [00:05:01] Speaker 03: But let me take you back to section 3691. [00:05:03] Speaker 05: 3691 does not speak of performance goals. [00:05:09] Speaker 05: 3691A says, first, service standards are subject to regulations. [00:05:15] Speaker 05: And subsection D says, the regulations promulgated and any violations thereof shall be subject to review upon complaint. [00:05:23] Speaker 03: That is direct. [00:05:24] Speaker 03: I absolutely understand. [00:05:25] Speaker 03: I know what your position is, but that doesn't get me anywhere because if I keep reading the statute, I understand that standards lead to goals. [00:05:34] Speaker 03: Standards may also lead to goals, but if the standards are... It clearly does lead to goals, and that's the way it's always been done since the statute was revised. [00:05:42] Speaker 03: And then there's been performance review, and that is, you can't take this out of context. [00:05:48] Speaker 03: It's perfectly plausible for an agency to say, we have regulations that have the force of law that are merely foundational for goals that are going to be enforceable and that we're going to review. [00:06:00] Speaker 03: So merely because you have a standard [00:06:04] Speaker 03: That is a regulation, as you keep arguing, that has a force of law. [00:06:07] Speaker 03: It doesn't tell me anything. [00:06:09] Speaker 03: It all depends on what it is. [00:06:10] Speaker 03: If it merely undergirds goals, I have to keep reading. [00:06:14] Speaker 05: But, Your Honor, in 3653, Congress speaks of service standards as distinct from performance goals. [00:06:22] Speaker 05: I understand. [00:06:23] Speaker 05: In 3653B and C, it speaks of service standards and says, if the Commission finds noncompliance, [00:06:30] Speaker 05: It shall take action as if a complaint averting such noncompliance had been doing file. [00:06:35] Speaker 03: Well, you and I can hypothesize using my assumption. [00:06:38] Speaker 03: We could easily hypothesize situations where the agency promulgates a standard. [00:06:44] Speaker 03: And it's nonsensical in light of the statutory purposes. [00:06:48] Speaker 03: We're not going to do anything unless the sky is blue for 30 days. [00:06:52] Speaker 03: That's a standard. [00:06:53] Speaker 03: Well, you could bring a complaint and we'd say, yeah, you're right. [00:06:56] Speaker 03: That's inconsistent with law. [00:06:57] Speaker 03: But so what? [00:06:59] Speaker 03: But in the kind of case in which you're talking about, where they're doing it, there's no standard here that is facially, you're not saying there's any standard here that is facially impermissible. [00:07:11] Speaker 03: If that's the case, then the way I'm analyzing the case as a judge and looking at it, I have to know that standards lead to goals, and that's what the statute says, and the agency then has performance evaluations, and that's really what the process is about. [00:07:24] Speaker 05: Well, that's a policy argument against the way that Congress set up the statute. [00:07:29] Speaker 03: No, I'm relying on the statute. [00:07:30] Speaker 05: Oh, right. [00:07:31] Speaker 05: And the statute says, service standards are regulations which are subject to complaint upon violation directly. [00:07:37] Speaker 04: You're missing the point. [00:07:38] Speaker 04: Go ahead. [00:07:39] Speaker 04: Let me see if I can just understand your position. [00:07:43] Speaker 04: Is it your position that the annual determination of compliance that the postal [00:07:53] Speaker 04: that the PRC issued here was pursuant to 3653D as opposed to 3653B? [00:08:08] Speaker 05: I think that annual determination covers all of those subsections. [00:08:13] Speaker 05: It covers both the service standards and the performance goals that are derived from it. [00:08:17] Speaker 05: The point is, Congress in B and C speaks of the standards [00:08:22] Speaker 05: in contrast to the performance goals as something that can be enforced through a private complaint distinct from the annual compliance determination procedure. [00:08:30] Speaker 02: Why isn't the Commission's sense of how that enforcement is to occur meant to be triggered, entirely sensible, and consistent with the statute? [00:08:40] Speaker 05: Well, in general, because Congress said in 3653E, [00:08:46] Speaker 05: that compliance determination is only a rebuttable presumption. [00:08:50] Speaker 05: And what the commission has done here is to amend the statute to say it's irrebuttable. [00:08:55] Speaker 05: Once we issue an annual compliance determination, then there's nothing any private party can do. [00:09:00] Speaker 02: I don't understand that. [00:09:03] Speaker 04: It belongs to me. [00:09:04] Speaker 04: That's nowhere in their decision. [00:09:09] Speaker 05: Well, what the commission is saying is if we've treated an issue in the annual compliance determination, it's like it's race judicata. [00:09:16] Speaker 03: There's nothing further... They're not saying that at all. [00:09:17] Speaker 03: They're not saying that. [00:09:18] Speaker 05: They're saying it has to be something new. [00:09:21] Speaker 05: Ah, but in that case, on the facts of this case, what we would say is when the commission recites the bottom line aggregate national totals, it's not looking [00:09:29] Speaker 05: at any of the disaggregated features that show why there is substantially deeper noncompliance in communities that are affected by the plant closings. [00:09:39] Speaker 05: The Commission is simply looking at the overall aggregate saying, oh, there's 12 percent noncompliance, that's not very good, we urge the Postal Service to do better. [00:09:49] Speaker 05: But if they allowed us to look at the external first-class mail data, which is all that the union is asking for here, we could run a statistical analysis that would show that the shortfalls nationwide mask a much deeper shortfall in communities affected by the plant closeness. [00:10:06] Speaker 02: This seems to be a complaint about the commission's choice of remedy for it. [00:10:10] Speaker 02: That is not an argument you made in your opening brief. [00:10:13] Speaker 05: Well, as long as the commission is allowed to say that service standards are only expectations and they cannot be violated, then it follows, and Judge Edwards, I can respond back to your question on this, it follows that if the Postal Service continues to fail to comply with performance goals, there's no remedy for the commission in court. [00:10:34] Speaker 05: There's no way for the commission to come to a district court or to this court and ask for a course of order. [00:10:41] Speaker 05: Because all the commission would be complaining about would be the Postal Service's failure to meet an operational target. [00:10:47] Speaker 05: And I've listed the cases beginning with Center for Auto Safety decided by this court that say that there is no final agency action that's reviewable under the APA when all the complainant is pointing to is a failure to meet an agency goal. [00:11:02] Speaker 05: It has to be a regulation in the Code of Federal Regulations. [00:11:06] Speaker 04: But the commission, I think, says something a little differently. [00:11:12] Speaker 04: We're required, the Postal Service is required to promulgate service standards. [00:11:18] Speaker 04: And then our job is to see, and they're also required to set goals. [00:11:24] Speaker 04: And the Commission can have input on those goals, right? [00:11:30] Speaker 04: Then once those performance goals are set, the Commission says, well, then we will measure their service standards versus the goals. [00:11:42] Speaker 04: I mean, you can have a standard that says that first class mail is supposed to arrive wherever in the country within four or five days after it's placed in the mailbox. [00:11:59] Speaker 04: Does that mean that anyone has a complaint if they mail one letter to their grandmother and it takes 10 days? [00:12:07] Speaker 04: And they can bring a complaint based on the fact that [00:12:11] Speaker 04: that one service standard was violated in that one time? [00:12:15] Speaker 05: Yes, the commission has regulations that speak to that. [00:12:18] Speaker 05: 3031.11-12 in 39 CFR, where they say if the single grandmother wants to file a complaint, they can. [00:12:27] Speaker 05: And there's a procedure where the commission evaluates whether the volume of complaints rises to the point that they would support a complaint under 3662. [00:12:38] Speaker 04: But that's not what you've relied on, right? [00:12:41] Speaker 04: You've relied on 3662, not the CFR. [00:12:45] Speaker 05: No, the CFR gives the Commission an ability basically to operate a small claims court for those individual grandparents. [00:12:56] Speaker 05: No one suggests that this complaint is de minimis. [00:12:59] Speaker 05: This complaint is nationwide and systemic. [00:13:02] Speaker 05: And I think the answer to this conflation of goals and standards is in 3691D. [00:13:11] Speaker 05: The question is, what, if anything, could any private entity ever rely on to bring a justiciable private complaint about a violation of service? [00:13:23] Speaker 05: And the answer is found in 3691. [00:13:26] Speaker 05: D, that says the regulations promulgated to this section and any violations thereof shall be subject to review upon complaint. [00:13:34] Speaker 03: Being subject to review doesn't... Go ahead. [00:13:36] Speaker 03: I interrupted you. [00:13:36] Speaker 05: Right. [00:13:37] Speaker 05: But the performance goals that the commission is talking about and that you're talking about are not regulations. [00:13:42] Speaker 05: They're not what Congress had in mind as what's being violated. [00:13:46] Speaker 03: But Congress, you've referred to goals in the statute. [00:13:49] Speaker 05: Congress says that goals are informed by standards, but it says directly in 3691D that it's the violation of the regulations of those service standards that lead to a private complaint. [00:14:01] Speaker 03: No, they say you can file a complaint with respect to a standard, but you still have to figure out what the standard is about. [00:14:10] Speaker 03: And the statute said the standard is about creating goals. [00:14:14] Speaker 03: You can't stop by reference to D. [00:14:18] Speaker 03: Yes, there is review. [00:14:20] Speaker 03: And I'm giving you an example of regulations, of standards, that could be preposterous. [00:14:26] Speaker 03: And you could file a challenge and say, that's not what Congress had in mind. [00:14:29] Speaker 03: You can't adopt that as a standard to inform your goals, because it has absolutely nothing to do with what Congress allowed you to do. [00:14:36] Speaker 03: But if you're within the ballpark of what Congress allowed you to do, then the question is, well, what's the goal? [00:14:42] Speaker 03: That's the way Congress set it up. [00:14:43] Speaker 05: Well, at the end of the day, when the court decides this case, it will have to decide whether there is any scenario where a private complainant would be able to appeal from the commission on the violation of service standards, a violation of the regulations described in 3691D. [00:15:01] Speaker 05: And what the commission is giving you here is an explanation of what those standards are, which would make that enforcement impossible permanently. [00:15:09] Speaker 05: And that would read service regulation out of the statute entirely. [00:15:12] Speaker 04: What does 3653C mean? [00:15:15] Speaker 04: Because that says that if the Postal Regulatory Commission makes a finding of noncompliance, then it shall take appropriate action in accordance with subsection C and E of 3662 as if a complaint averring such noncompliance had been duly filed [00:15:40] Speaker 04: found under such section to be justified. [00:15:44] Speaker 04: So it seems to say that the remedy with respect to under 3653 [00:15:52] Speaker 04: C is really the same, or the same types of remedies would be if a private complaint was made, right? [00:16:02] Speaker 05: Right. [00:16:03] Speaker 05: But, as Descending Commissioner Goldway points out, if you go down to 3653E, it says that any one of those determinations only creates a rebuttable presumption. [00:16:14] Speaker 05: And Commissioner Goldway cites a prior commission order when it disseminated its complaint procedure. [00:16:22] Speaker 05: that explained that the annual complaint determination was not meant to foreclose the more in-depth kind of contested evidentiary litigation and discovery that might occur during a complaint. [00:16:33] Speaker 05: So the fact that there is an annual complaint determination doesn't foreclose a complaint that's alleging a much more precise theory. [00:16:40] Speaker 04: Well, I wasn't talking about foreclosing the complaint. [00:16:43] Speaker 04: It just says that the action that the commission [00:16:49] Speaker 04: could take was basically the same type of action, remedial action, as if a complaint was made, right? [00:16:55] Speaker 04: Correct. [00:16:56] Speaker 04: So Congress intended basically for the same types of remedies to be ordered by the Commission, whether it's a private complaint made or whether they make their annual [00:17:09] Speaker 04: determination of not compliance, right? [00:17:11] Speaker 05: But that is why the complaint or the quasi-complaint of the annual compliance determination would have to do with the violation of the service standards of the regulations themselves and not of derivative performance goals. [00:17:24] Speaker 04: But I guess my point, sir, is that the statute Congress says that the remedy that the post will serve, that the regulatory commission, I'm sorry, [00:17:38] Speaker 04: will issue if there's an annual determination of non-compliance is basically the same remedy that would come about if a private party made a complaint. [00:17:51] Speaker 04: Correct. [00:17:52] Speaker 04: And the grounds for which they dismissed your complaint is saying that, look, even if we were to sustain your complaint, the same remedy that [00:18:07] Speaker 04: you would want, we've already issued, so there's no point to it. [00:18:11] Speaker 05: Isn't that what they ruled? [00:18:15] Speaker 05: Is that what they ruled? [00:18:17] Speaker 04: Is that consistent with 3653C? [00:18:22] Speaker 05: Is it consistent with 3653C? [00:18:29] Speaker 05: in dismissing the complaint under 3653e because they didn't allow the union to... Was their ruling consistent with 3653c? [00:18:37] Speaker 05: Yeah, that is what they issued though. [00:18:40] Speaker 03: That is what the issue of complaint determination... There's no choice of remedy comported. [00:18:43] Speaker 03: It's not part of your complaint. [00:18:45] Speaker 03: Choice of remedy. [00:18:47] Speaker 05: We don't reach that at this point. [00:18:48] Speaker 05: The complaint was dismissed on its face. [00:18:50] Speaker 05: So this court doesn't sit to review what remedies could have been given if the union proved its case. [00:18:58] Speaker 02: Controlling on your claim that the error of the commission relates to failing to choose the remedy that you want as opposed to [00:19:08] Speaker 02: remedy that seemed suitable on the basis of the... They refused to allow the union to prove its case at all. [00:19:13] Speaker 05: They refused to allow the union access... No, no, no. [00:19:16] Speaker 03: On the second response, you really do have to hear us if you want to respond to us, because it really does leap out. [00:19:23] Speaker 03: On their second response, they said, and this is what Judge Wilkins just followed up on, Judge Williams started with it, they said, okay, let's assume you're right. [00:19:33] Speaker 03: We've addressed it. [00:19:34] Speaker 03: We've already addressed it. [00:19:35] Speaker 03: It's essentially saying it's moot. [00:19:37] Speaker 03: You did not respond, nor say to us, there's a choice of remedy here, and we have that they failed in their selection of remedy, and that's not, you haven't raised that issue. [00:19:49] Speaker 05: It's not a question of remedy, it's a question of the theory of causation. [00:19:52] Speaker 03: It is, because you want them to get into many more things you claim than they did. [00:19:57] Speaker 03: You want them to look at local situations, et cetera, and you're saying the remedy they chose [00:20:02] Speaker 03: was not responsive to the concerns that you are trying to raise. [00:20:06] Speaker 03: That's not raised before us. [00:20:08] Speaker 03: It's true. [00:20:08] Speaker 05: Well, but as long as they take the position that service standards aren't really enforceable, then their expressions of concern to the Postal Service wouldn't be enforceable in court. [00:20:17] Speaker 03: They say they're enforceable through the goals. [00:20:19] Speaker 03: They've put themselves on record as taking that position. [00:20:22] Speaker 03: They're enforceable through the goals. [00:20:24] Speaker 03: You're essentially arguing. [00:20:25] Speaker 03: Your argument would be, if you had played it all the way out, is that you have these goals. [00:20:30] Speaker 03: You recognize they haven't been met. [00:20:32] Speaker 03: And the remedy that you provide is not an adequate remedy. [00:20:36] Speaker 03: This is a better choice of remedy. [00:20:37] Speaker 03: It's not the way you played this case out. [00:20:41] Speaker 03: And they're conceding that. [00:20:42] Speaker 03: They're not saying you're barred from raising anything. [00:20:45] Speaker 03: That's not their position. [00:20:48] Speaker 05: Okay. [00:20:49] Speaker 05: Thank you, Your Honor. [00:20:50] Speaker 05: I would just close by saying that the union would not be able to enforce any justiciable complaint over performance goals if the commission's theory, as presently presented, is left in place. [00:21:02] Speaker 05: That's our fundamental position. [00:21:04] Speaker 05: Thank you. [00:21:04] Speaker 05: All right. [00:21:08] Speaker 04: Thank you. [00:21:08] Speaker 04: Mr. Sandberg? [00:21:10] Speaker 01: Good morning. [00:21:11] Speaker 01: May it please the Court, Jeff Sandberg for the Postal Regulatory Commission. [00:21:14] Speaker 01: I think Your Honor's colleague, we with my opposing colleague, has most of the pieces of the puzzle. [00:21:19] Speaker 01: There's just one piece of the puzzle that I want to add in, which is the marching orders that Congress has or hasn't given to the Commission as to how the service standards are to be enforced. [00:21:29] Speaker 01: Under 3653B, Congress has instructed the Commission to conduct an annual compliance determination in which the Commission must find, quote, whether any service standards in effect during such year were not met. [00:21:42] Speaker 01: Congress didn't specify, however, how to determine whether the service standards have been met or not. [00:21:48] Speaker 01: Congress didn't say, if a single piece of mail is late, then the service standards are automatically violated. [00:21:53] Speaker 01: But Congress also didn't set a threshold. [00:21:55] Speaker 01: So the Commission, through the process of an adjudication that is annually compelled, has had to fill that gap. [00:22:01] Speaker 01: in the statute. [00:22:02] Speaker 01: And what the Commission has chosen to do, quite reasonably, is to borrow from the performance goals that Congress elsewhere in the statute has required the Postal Service to promulgate. [00:22:11] Speaker 01: And it's not the case that the Commission is automatically stuck with these goals, but the Commission has found the goals set by the Postal Service, which are 95-96% on-time delivery for the product at issue here, the Commission has found those goals to be reasonable and has borrowed them as the standard in the adjudication that it conducts annually. [00:22:27] Speaker 01: and the Commission undertakes the same legal analysis for private complaints under 3662 as it does under 3653 because, as Judge Wilkins' question pointed out, the remedies are the same under both statutes. [00:22:39] Speaker 03: Can a private party participate in that proceeding or contest the results of those proceedings? [00:22:44] Speaker 01: Yes, private parties may participate in the annual compliance determination. [00:22:48] Speaker 01: The Union, the Commission's adversary in this proceeding, has participated in some but not all of those ACDs. [00:22:55] Speaker 01: And as indicated in our brief, we believe that a party who feels themselves to be aggrieved by the annual compliance determination and the choice of remedies therein may attempt to seek review of that in this Court under 30 minutes. [00:23:05] Speaker 01: What authority? [00:23:06] Speaker 01: Under 39 U.S.C. [00:23:07] Speaker 01: 3663, which provides that a person adversely affected or aggrieved by a final order or decision of the commission may seek review in this court. [00:23:17] Speaker 03: Is 39 U.S.C. [00:23:18] Speaker 01: 3663? [00:23:22] Speaker 01: which is a provision that provides judicial review in this court. [00:23:24] Speaker 01: That's the provision that we are here under right now. [00:23:27] Speaker 01: A party could seek review of an ACD, as I believe the Postal Service has in the past, and the union did not do so here. [00:23:34] Speaker 01: It did not contest, although it participated in the annual compliance determination for fiscal year 2014, which was the most recent [00:23:41] Speaker 01: determination that was on the books at the time that the decision was issued here. [00:23:45] Speaker 03: So let me just play it all the way around, make sure I understand. [00:23:48] Speaker 03: You're saying that the results of the compliance review, a final agency action subject to judicial review, you're not objecting to that? [00:23:57] Speaker 01: We're not contesting that, Your Honor. [00:23:58] Speaker 01: It's the time limit in 3663 which is within 30 days after such order a decision becomes final. [00:24:08] Speaker 01: So the ACD is usually issued in March of each year. [00:24:13] Speaker 03: Is it pursuant to an order? [00:24:15] Speaker 03: What is issued? [00:24:16] Speaker 01: The annual compliance determination report is a report, but we understand that to be a final order or decision. [00:24:21] Speaker 03: And so to just think about what they're contending and what you're saying, at the conclusion of that, they could have said, no, no, no, you're not taking into account the local situations that we're really concerned about when you've closed operations. [00:24:37] Speaker 03: And your assessment of the performance goals here makes no sense, et cetera, et cetera. [00:24:42] Speaker 03: They could do that. [00:24:43] Speaker 01: That's true. [00:24:44] Speaker 01: They could also bring a private complaint if they have something new to bring to the attention of the Commission. [00:24:49] Speaker 01: But the claim that was advanced here, and I think this is the, if you actually read the amended complaint, look at page 93 of the appendix, it's inconsistent with what my opposing colleague is now saying. [00:24:59] Speaker 01: The claim that they presented the Commission was that the Postal Service was violating its service standards on, quote, [00:25:04] Speaker 01: a nationwide or substantially nationwide basis. [00:25:07] Speaker 01: There's no assertion of disproportionate harm to particular communities. [00:25:12] Speaker 01: There's no suggestion in the complaint of particularly deep shortfalls. [00:25:14] Speaker 01: Those assertions have only been made for the first time in this court. [00:25:17] Speaker 01: The commission's decision, in fact, says we don't need to look at district level data in order to resolve this complaint, because the allegation in this complaint is of a nationwide problem. [00:25:25] Speaker 01: And that's precisely the same inquiry that we just undertook in the ACD. [00:25:29] Speaker 01: So had the union presented a complaint that advanced [00:25:33] Speaker 01: a different type of violation than the Commission had already considered, then the Commission would have had to consider that. [00:25:38] Speaker 04: I'm not sure I understand your position. [00:25:41] Speaker 04: So if the Commission finds that there's been noncompliance, and the Union or anyone else files a petition under 36, or a complaint under 3662, and says, yes, we agree that there's noncompliance, [00:26:03] Speaker 04: But it needs remedy that's more than a tongue-lashing by the commission. [00:26:15] Speaker 04: It would appear that from the commission's order that they would take the position that that complaint should be dismissed because it doesn't really add anything new. [00:26:32] Speaker 01: The Commission takes these complaints on a complaint-by-complaint basis. [00:26:35] Speaker 01: It's a process of adjudication. [00:26:36] Speaker 01: And what the Commission said here was the allegations that this complainant has advanced in this complaint would not lead it to revisit any of its existing remedial determinations. [00:26:45] Speaker 01: That's not to say that another complaint might not encourage the Commission. [00:26:48] Speaker 01: This is basically enough. [00:26:49] Speaker 04: Well, let me just make sure I understand your position. [00:26:52] Speaker 04: Let's suppose the Postal Service had only met 50% of its [00:27:02] Speaker 04: of its service standards, well, well below the 95, 96% goals. [00:27:08] Speaker 04: And all the commission said was, you know, try harder. [00:27:14] Speaker 04: And the private party says, you got to do more than say, try harder. [00:27:18] Speaker 04: You need to give them some specific direction. [00:27:21] Speaker 04: And here, you know, are 10 different things that we think that you could tell them to do rather than just say, try harder. [00:27:31] Speaker 04: Could the commission just say, you know, we're dismissing that because you're not alleging anything new. [00:27:38] Speaker 04: You're agreeing with us that they're out of compliance. [00:27:42] Speaker 04: We've set the remedy and that's that. [00:27:47] Speaker 01: I'm not prepared to say what the commission would do under that circumstance because... I'm asking you what they could do. [00:27:52] Speaker 04: Could they say that? [00:27:54] Speaker 01: I think that if they looked at the allegations in the complaint as to the nature of the service standards being violated and the commission said, okay, we know about this problem already and we've imposed the remedy that we want to impose for it, the commission could dismiss that complaint and then the complainant could seek review in this court and then the question would be whether the fashioning of remedies and sanctions by the commission was so unreasonable as to be subject to vacater in this court. [00:28:19] Speaker 01: a commission's choice, any agency's choice of what remedy to fashion is subject to the most deferential possible review in this court, as made clear in the NTEU decision, and indeed in one of the most recent post-regulatory commission decisions. [00:28:36] Speaker 03: What I'm trying to understand is, what are your response here because, in this case, go away because we already had compliance review, [00:28:48] Speaker 03: You didn't challenge the results of it. [00:28:51] Speaker 03: And we don't have to do it again now. [00:28:53] Speaker 03: Is that your answer here? [00:28:56] Speaker 03: That's one question. [00:28:57] Speaker 03: Is that what you're saying? [00:28:58] Speaker 01: Yeah, I think our position here is that the annual compliance determination is not irrelevant. [00:29:02] Speaker 01: The union's position is the commission has to blind itself to the findings it's already made and dedicate more of its scarce resources. [00:29:09] Speaker 03: But wait, is that a timeliness disposition? [00:29:12] Speaker 03: A moodeness disposition? [00:29:13] Speaker 03: We've already done it. [00:29:15] Speaker 03: And you didn't challenge it disposition? [00:29:18] Speaker 01: It's a Marist determination. [00:29:21] Speaker 01: I think it's a prudential matter of the agency choosing where it's going to dedicate its regulatory resources. [00:29:25] Speaker 01: A complaint of this type is an invocation of the regulatory oversight of the Commission to do a better job of regulating the Postal Service. [00:29:32] Speaker 01: And the Commission invites complaints that bring new matters to its attention. [00:29:36] Speaker 01: But if the Commission says you're not bringing new matters to our attention, it's perfectly reasonable for the Commission to say... Because we just did it in the compliance review. [00:29:42] Speaker 01: Because we just did it in the compliance determination. [00:29:44] Speaker 03: Now, the second question I have, and I want to make sure I understand what you're saying, [00:29:47] Speaker 03: You're not doubting that, even though a compliance review has been had and you've issued your order or disposition and nothing follows it, that a party, including the union, can come in at any time with a complaint and say, you know, we've looked around and there are local problems here and we know you did a compliance review, but you really need to deal with this in order to make some sense of your goals. [00:30:12] Speaker 03: You're not doing what [00:30:14] Speaker 03: what Congress had in mind when we talked about regulating standards and goals. [00:30:19] Speaker 03: They can bring that complaint at any time. [00:30:21] Speaker 01: Yeah, a party can bring a complaint at any time. [00:30:23] Speaker 01: It's not as if, as the dissenting commissioner said, that complaints become moot after an annual compliance determination. [00:30:29] Speaker 01: The question really is, do you bring something new to the table that warrants the commission to dedicate its scarce resources? [00:30:34] Speaker 01: to a proceeding on your complaint. [00:30:36] Speaker 01: And here, the complaint was not of that type. [00:30:38] Speaker 01: The complaint was, we think that there's a nationwide violation of the service standards. [00:30:42] Speaker 01: And the commission said, yeah, we know about that. [00:30:46] Speaker 01: We know that network rationalization is happening. [00:30:48] Speaker 01: We know that there have been some shortfalls for certain products. [00:30:51] Speaker 01: And we think the Postal Service needs to do better. [00:30:53] Speaker 03: And I suppose you would concede that they had raised the point that you say they had not raised. [00:31:00] Speaker 03: That is, there are local problems, not just the nationwide problems. [00:31:04] Speaker 03: Suppose that was here. [00:31:07] Speaker 03: Would they have stated a viable claim that the commission would be required to address? [00:31:13] Speaker 01: It would be a different inquiry. [00:31:14] Speaker 01: I don't want to prejudge what the commission's determination would be. [00:31:16] Speaker 03: No, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, [00:31:28] Speaker 03: If they had raised it, then you'd have to consider it. [00:31:30] Speaker 03: Is that right or wrong? [00:31:31] Speaker 01: I don't know if the commission would have to consider it, but I don't think this court needs to decide what the scope of the commission's discretion is here. [00:31:37] Speaker 02: Let's assume that the actual predicate for the claims about local failures is compelling. [00:31:44] Speaker 02: You don't have trouble answering that, do you? [00:31:47] Speaker 03: Yeah, I'm wondering why you're hesitant. [00:31:48] Speaker 01: Well, I don't think the Commission would be foreclosed from that. [00:31:50] Speaker 01: And perhaps the Commission would have chosen to do that. [00:31:52] Speaker 01: I'm just not prepared to, you know, bind the Commission to any particular outcome. [00:31:56] Speaker 01: Nobody thinks you can. [00:31:57] Speaker 02: Nobody thinks you can bind the Commission. [00:32:01] Speaker 02: You're being asked about how the system works. [00:32:05] Speaker 02: Judge Edwards and I are very puzzled at your resistance to what seems to be an obvious hypothetical. [00:32:12] Speaker 01: I think it's responsive to say that if there's something new that's brought to the Commission's attention that the Commission finds compelling... Wait, wait, wait. [00:32:19] Speaker 03: Wait, indulge us, please. [00:32:21] Speaker 03: Our minds are not as facile when cooking Jewish. [00:32:25] Speaker 03: Hang with us. [00:32:28] Speaker 03: It is brand new from anything that went on in the compliance proceeding. [00:32:33] Speaker 03: You said they can bring a complaint any time. [00:32:35] Speaker 03: They are saying there are local problems here. [00:32:38] Speaker 03: They document them. [00:32:39] Speaker 03: They're real. [00:32:40] Speaker 03: No one could doubt they're real. [00:32:42] Speaker 03: What you do with them is a different way. [00:32:43] Speaker 03: There's no doubt they're a real problem. [00:32:46] Speaker 03: So the sort you say they didn't raise here. [00:32:51] Speaker 03: The commission says, we're not going to look at it because we don't feel like it. [00:32:54] Speaker 03: They file a suit for review, which you say they could do. [00:32:58] Speaker 03: We would overturn it, I assume, for lack of reason decision making, right? [00:33:03] Speaker 03: I know you can't bind the Commission. [00:33:06] Speaker 01: One reason why I'm hesitant, Your Honor, is because the question of what geographic levels the service standards apply at is an unresolved question for the Commission. [00:33:14] Speaker 01: And that's a question of law that I don't want to opine on yet. [00:33:17] Speaker 01: But I will grant you, if the Commission were to find that it's a violation of the service standards for service to be disproportionately acute in particular communities, [00:33:25] Speaker 01: it may well then commence proceedings on that complaint and entertain it. [00:33:29] Speaker 03: Well, it might be an abuse of discretion if they wouldn't even entertain that question, that is, to think about it and say something to the complaining party, right? [00:33:38] Speaker 03: Perhaps. [00:33:40] Speaker 03: We're just trying to understand what you're saying. [00:33:42] Speaker 03: You speak with great assertion and verb until you get to the question you knew was coming and then you say, well, I can't speak about that. [00:33:51] Speaker 01: Well, I think all the court needs to resolve here is whether this decision was reasonable and reasonably explained. [00:33:56] Speaker 03: No, no, we have to understand how you think the process works and how they think it works and that will inform anything that we write. [00:34:04] Speaker 01: Trust me. [00:34:07] Speaker 01: The statutory language is material issue of factor law, which the Commission understands to mean, are you bringing something new to our attention that's going to affect our regulatory decision making? [00:34:16] Speaker 01: And it's committed by Congress to the Commission's expertise as an initial matter to decide what do we want to [00:34:24] Speaker 01: What regulatory choices should we make vis-a-vis the Postal Service? [00:34:28] Speaker 01: And that's a case-by-case determination. [00:34:30] Speaker 01: And I agree with you that it would make much more sense for the Commission to commence proceedings on a complaint in which something new is brought to the Commission's attention versus here, where nothing new is brought to the Commission's attention. [00:34:40] Speaker 01: And I think that that should suffice for purposes of this case. [00:34:47] Speaker 01: I would be very happy to answer any further questions the Court may have. [00:34:52] Speaker 01: And if not, we ask that the petition for review be denied. [00:34:55] Speaker 04: Thank you. [00:34:57] Speaker 04: Mr. Anderson, you are out of time, but I'll give you two minutes for revoke. [00:35:02] Speaker 05: Thank you for the time, Your Honor. [00:35:05] Speaker 05: The union's complaint does pick out nine communities that are specifically documented, Jacksonville, Colorado Springs, Altoona, Brooklyn, and so forth. [00:35:13] Speaker 05: It identifies them in particular and says that they've been affected by the service failures that attended to the plant relocation. [00:35:22] Speaker 05: That is what's before the Postal Regulatory Commission. [00:35:25] Speaker 05: We say that this is illustrative of an endemic national problem, but it certainly is made out with proof as to the local communities. [00:35:36] Speaker 05: Finally, there's this issue about whether the Postal Regulatory Commission can base its judgments in the annual compliance determination and in rejecting this complaint on a nationwide database that it refuses to share with the public. [00:35:53] Speaker 05: that it would be one thing if all parties, including the union, had access to this database and could run statistical tests on that performance data in order to make a case to the commission. [00:36:05] Speaker 05: But here you have a situation where the agency is ruling in an annual compliance determination [00:36:12] Speaker 05: on a matter that Congress intends to be subject to public notice and comment as well as complaint, where only the agency is privy to the data. [00:36:22] Speaker 05: And if the union and the public had access to the data, then there would be more transparency in the process. [00:36:28] Speaker 05: But this court has said many times, including in American Radio League cited in our case, [00:36:33] Speaker 05: that an agency shall not be allowed to base decision making on a matter that is meant to be open to public notice and comments as well as complaints. [00:36:43] Speaker 05: based on information that is known only to the agency. [00:36:46] Speaker 05: There's no such thing as a secret database that justifies the agency's determinations that the union can't find out about. [00:36:53] Speaker 05: And the answer to the question about whether the union could have brought a petition for review of the annual compliance determination, it could have under 3662C, that's true, but absent access to that database to prove the union's case, [00:37:09] Speaker 03: the union would have been powerless to refute the self-serving, you know... See, the one problem, just so you understand what we can and cannot do, that may or may not be an accurate assertion, and there's plenty of administrative law in which you could ground a complaint, but you didn't raise that. [00:37:29] Speaker 03: the challenge to the compliance review and say, we want to be able to challenge it. [00:37:34] Speaker 03: There's plenty of administrative law that says or suggests that if an agency acts on data, they will not share with those who were affected. [00:37:43] Speaker 03: That's not the case before us. [00:37:44] Speaker 05: But that's why we asked for the data in this complaint. [00:37:47] Speaker 03: There is a provision... You were talking about the compliance review, but they've agreed you can challenge the compliance review, and if you think absence of data is a question, that's the way to deal with it. [00:37:56] Speaker 05: Right, but the annual compliance review, Congress says, does not create an irreparable presumption against our complaint. [00:38:02] Speaker 05: On a petition for review of an annual compliance proceeding, we do not have access to the procedure for discovery of that data that we do in a complaint procedure, and that's why we pursued this avenue. [00:38:15] Speaker 05: Thank you for your time, Your Honor.