Associated Third Class Mail Users, Appellant, v. United States Postal Service et al, 600 F.2d 824 (D.C. Cir. 1979)

This appeal is from the District Court's grant of summary judgment in favor of the United States Postal Service in a suit challenging the Service's construction of the century-old legislation which establishes and defines the current Government monopoly over the delivery of mail. Appellant, the Associated Third Class Mail Users (ATCMU),¹  asserts that the prohibition against private conveyance or delivery of "letters and packets" in what are known as the Private Express Statutes²  may not lawfully be applied to delivery of advertising circulars addressed to particular persons or locations.³  The Postal Service takes a contrary position.⁴  It has determined by regulation that the term "letter" in the statutory proscription encompasses any "message Directed to a specific person or address and recorded in or on a tangible object"⁵  a definition which clearly includes addressed advertising materials. This litigation turns on the validity of that definition.

The District Court concluded that since the mid-19th century "the Congress, the courts and the Postal Service have all understood the Private Express Statutes to prohibit the private carriage of messages such as (those at suit)." Associated Third Class Mail Users v. United States Postal Service, 440 F. Supp. 1211, 1216 (D.D.C. 1977). Finding no constitutional infirmity in that interpretation, Judge Parker went on to award summary judgment in favor of the Postal Service and dismiss the complaint. We affirm, relying heavily upon the District Court's thoughtful opinion.

Our task, and that which faced the District Court before us, is to determine whether the Postal Service's construction of the term "letter" is consistent with the text and history of the Private Express Statutes. For a number of reasons, it is a less than satisfying task. First, our usual tools for statutory construction turn out not to be terribly helpful. Nothing in the phrase "letters and packets" answers the question before us, and the intent of the Congress which enacted that formulation in the course of the 1872 codification of the postal laws is shrouded in obscurity.⁶  Moreover, even were the legislative intent less opaque, it might be robbed of currency by the not insubstantial developments of the intervening century. Second, few courts have considered the scope of the postal monopoly or the meaning of "letter."⁷  Third, the Postal Service's interpretations and comments regarding the content of the term have often seemed ambiguous and inconsistent.⁸  And fourth, the only policy concern clearly implicated in the quest for the proper scope of the monopoly the need to shield postal operations from competition so the Postal Service can adopt nonmarket solutions in its effort to further various national goals⁹  is so open-ended and indeterminate that it provides scant guidance. These difficulties do not, of course, obviate the need for decision. But they necessarily color our inquiry and belie any notion that a single definition of "letter" flows ineluctably from the materials at hand.¹⁰ 

ATCMU and the National Mass Retailing Institute (which appeared as Amicus curiae on behalf of appellant) assert that the Postal Service's definition of "letter" must fall because it (1) runs counter to the legislative history, (2) contradicts the weight of administrative authority, (3) is contrary to common sense, and (4) would if sustained lead to constitutional difficulties. We deal with each contention in turn.

* The statute creating the postal monopoly was first couched in its modern form as a prohibition against establishment of "any private express for the conveyance of letters or packets" in Section 228 of the Postal Act of 1872. Act of June 8, 1872, ch. 335, § 228, 17 Stat. 311. The previous statute had referred to conveyance of "any letters, packets, or packages of letters, or other matter properly transmittable in the United States mail, except newspapers, pamphlets, magazines and periodicals * * * ." Act of March 3, 1845, ch. 43, § 9, 5 Stat. 735. ATCMU argues that the deletion of the "other matter" language reflected a deliberate congressional choice to narrow the postal monopoly, and that by so narrowing it the Congress eliminated any suggestion that it might include addressed advertising materials. As Judge Parker pointed out, however, the legislative history indicates that the 1872 Act was intended to reword and clarify the nation's postal laws Without substantive alteration. 440 F. Supp. at 1214.¹¹  ATCMU has been unable to demonstrate that this general intent did not apply with full force to the monopoly provision. And absent some indication that Congress focused on the issue, we are reluctant to find in what purported to be a recodification a deliberate contraction of the postal monopoly.¹²  Accordingly, we are of the opinion that the legislative text and history while not dispositive of either party's contentions tends to favor the Postal Service.¹³ 

II

While the legislative history of the Private Express Statutes is quietly obscure, the administrative history is noisily so. Each side is able to point to pronouncements by Postal Solicitors and statements in Service publications which support its view. And each side is able to characterize the pronouncements and statements relied upon by the other as poorly reasoned, ambiguous, or casual.¹⁴  In our judgment, the most that can be said about the administrative history is that it is something of a muddle: no single definition emerges as the obvious choice of past administrators, but neither does there appear any clear ground for setting aside the determination of present ones. The following rough and far from exhaustive sketch illustrates our point.

After the 1872 legislation was adopted there were indications that the Postal Service conceived of the monopoly in somewhat limited terms. In the course of an 1873 opinion which concluded that a package of first class letters was subject to the monopoly whether sent by a private person or a government agency, the Solicitor stated that the Private Express Statutes were intended to prevent "the transmission of mailable matter of the first class (all correspondence wholly or partly in writing) by express or other unlawful means."¹⁵  And notes appended to late 19th century editions of the Postal Laws and Regulations stated that "Congress has not yet, by statute, extended the monopoly of transportation to second, third, or fourth class matter, although admitted to the mails."¹⁶  But these indications are not unambiguous. The language in the Solicitor's opinion was neither directly related to the question presented nor by its terms exclusive it did not say that the monopoly covered Only what was then included under the rubric of mailable matter of the first class. And the import of the notations in the regulations may be undermined by the fact that the regulations themselves seem at times to have included some third class mailable matter within the term "letter" and to have used the terms "mail-matter" and "letter" interchangeably.¹⁷ 

Following these early and concededly somewhat restrictive pronouncements came a number of administrative interpretations that appear difficult to reconcile. On the one hand, three opinions written by the Solicitor in 1916 concluded that the monopoly did extend to addressed circulars of various sorts,¹⁸  a 1933 opinion observed that classification of mail matter into first, second, third, and fourth classes "in no way affects its status under the * * * private express statutes,"¹⁹  and the 1934 edition of a Postal Service pamphlet explaining the monopoly stated that "under the private express statutes the term 'letters' has a broader significance and may embrace circulars."²⁰  On the other hand, a 1935 opinion concluded that "circulars advertising the goods of a concern for sale" were not letters for purposes of the Private Express Statutes,²¹  another in the same year stated that the monopoly did not extend to "(o)rdinary advertising matter, such as handbills or circulars,"²²  and language added to the 1937 edition of the pamphlet referred to previously stated that "advertising handbills or circulars" were not within the letter or spirit of the monopoly.²³ 

Some of the apparent inconsistencies noted above seem to have been resolved in 1940 when the Postal Service stated in a new edition of its pamphlet explaining the Private Express Statutes that "unaddressed advertising handbills or circulars" were Not letters, thus setting forth at least by implication the current rule.²⁴  Nonetheless, appellant and Amicus curiae argue that the inconsistencies prior to 1940 strip that rule of any foundation and render the Postal Service undeserving of deference in the definition process. The Service counters that the inconsistencies are more imagined than real. It reads those statements which suggest that advertising materials or circulars are not within the ambit of the term "letter" to refer only to Unaddressed matter and argues that throughout the relevant period the rule was simply that addressed circulars were within the monopoly while unaddressed ones were without it. While this was apparently the rule written into the 1940 pamphlet,²⁵  neither the language of the earlier statements nor the subsequent editorial change renders the Service's reading of pronouncements made in the preceding decades anything more than a plausible conjecture. For present purposes, however, we do not find this conjectural quality to be fatal. Even if the Service's reading is not completely accurate, we do not believe that whatever ambiguity or inconsistency existed is grounds to set aside the rule that is argued for today.

III

We turn now to the ATCMU contention that the Postal Service definition of "letter" as "a message directed to a specific person or address and recorded in or on a tangible object" is arbitrary and contrary to common sense. As we understand it, the primary argument is simply that the inclusion of addressed advertising circulars is so counter-intuitive as to contradict the maxim that one should give effect to the plain and common meaning of the words Congress chose. We find this contention unpersuasive. We have no doubt that the specificity of the addressee is one indicia of the common understanding of "letterness." The dictionary definition which ATCMU would have us adopt²⁶  is not to the contrary. Webster states that a letter is "a written or printed message intended for the perusal only of the person or organization to whom it is addressed."²⁷  In our judgment, the materials at suit fit within this formula. Advertising circulars are Intended for the perusal of the addressees. While ATCMU is doubtless correct that the senders would not object if others saw the circulars, the key fact is that the sender's goal is to reach the particular persons who have been identified as most likely to be interested in the advertised products. It is for this that the sender pays. His attitude toward the possibility that others might happen across his circulars is beside the point.

More broadly, we note that any definition is likely to appear arbitrary from some perspective for the simple reason that definitions draw lines they exclude some matters and include others despite similarities between the two classes. We simply conclude today that the Postal Service has settled upon a reasonable criterion the presence or absence of an address and that its definition suffers from no more than the level of arbitrariness which is inevitable.

IV

Appellant's final contention is that the Postal Service's definition runs afoul of the First Amendment and the due process and equal protection clauses of the Constitution. We find these assertions without merit for substantially the reasons relied upon by Judge Parker²⁸  and see no reason to go beyond his careful analysis.

In sum, we find that the arguments raised by appellant and Amicus curiae do not warrant invalidation of the definition of "letter" propounded by the Postal Service. For the foregoing reasons, the District Court's judgment is

Affirmed.

WILKEY, Circuit Judge, dissenting:

I am in agreement with Judge Wright's recital of the conflicting and shifting ambiguities which have beset both the statutory definition and the Postal Service's interpretation of the word "letter" for the purpose of defining the Postal Service's monopoly. I am in thorough agreement with the statements that "the Postal Service's interpretations and comments regarding the content of the term have often seemed ambiguous and inconsistent," (pp. --- - --- of 195 U.S.App.D.C., p. 826 of 600 F.2d) and "the most that can be said about the administrative history is that it is something of a muddle." (P. --- of 195 U.S.App.D.C., p. 828 of 600 F.2d.)

I dissent from the court's affirmance of the Postal Service's Current interpretation of the word "letter" because, in my reading of the lengthy details back of the majority opinion's terse summary of 150 years of statute and statutory interpretation, there emerges only one consistent theme from the Postal Service it has always latched onto whatever interpretation of the word "letter" which would give it the most extensive monopoly power which Congress at that time seemed disposed to allow.

Not only do I find this total lack of any intellectual consistency offensive, especially when coming from a supposed-to-be responsible government agency, but there is a very practical reason why I think this court should refuse to approve the Postal Service's current interpretation. If we decline to include the advertising flyers which the Postal Service is intent upon embracing within the word "letter" so as to give its monopoly the most expansive scope, we may then force the Postal Service to go to Congress to define accurately the desired postal monopoly scope. That definition, the desired scope of the Postal Service's monopoly, is entirely a question of public policy, properly to be determined solely by Congress, and this court should not countenance the Postal Service's power and revenue grabbing simply because the statute, the statutory history, and the agency's own administrative interpretations are conflicting and obscure.

On the most important substantive point I do differ with my two colleagues. At the outset the majority opinion points out that the Postal Service "has determined by regulation that the term 'letter' in the statutory proscription encompasses any 'message Directed to a specific person or address and recorded in or on a tangible object' a definition which clearly includes addressed advertising materials. This litigation turns on the validity of that definition." (Pp. --- - --- of 195 U.S.App.D.C., pp. 825-826 of 600 F.2d) And, my colleagues conclude "that the Postal Service has settled upon a reasonable criterion the presence or absence of an address and that its definition suffers from no more than the level of arbitrariness which is inevitable." (P. --- of 195 U.S.App.D.C., p. 830 of 600 F.2d)

The appellants have strenuously argued that the very advertising circulars or flyers which are the subject matter of the dispute are frequently included as flyers inserted in newspapers which are delivered to specific named addressees at specific residential or business addresses. These flyers or circulars not only have the same text, they are physically the same product of ink and paper, the only difference being that the address in one instance is imprinted on the outside of the newspaper and in the other instance on the envelope containing only the circular or the circular itself. There are numerous examples of this in the record, and we were shown samples at oral argument.

I can see no legal difference in these three instances name and address printed on the circular itself, on the envelope containing the circular, or on the newspaper containing the circular. Apparently reluctant to take on the powerful press establishment, the Postal Service says it has a monopoly on the first two but not the third. There is no valid distinction, and so the criterion on which my colleagues say this litigation turns, the presence or absence of an address, has no validity whatsoever.

I respectfully dissent.