Elaine Joan Mittleman v. Postal Regulatory Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 16, 2013 Decided July 8, 2014
No. 12-1095
ELAINE J OAN M ITTLEMAN ,
PETITIONER
v.
POSTAL REGULATORY COMMISSION ,
RESPONDENT
UNITED STATES POSTAL SERVICE ,
I NTERVENOR
Consolidated with 12-1110, 12-1157
On Petitions for Review of Orders
of the Postal Regulatory Commission
Elaine J. Mittleman argued the cause and filed the briefs for
petitioners.
Abby C. Wright, Attorney, U.S. Department of Justice,
argued the cause for respondent. On the brief were Stuart F.
Delery, Principal Deputy Assistant Attorney General, Ronald C.
Machen, Jr., U.S. Attorney, Michael S. Raab and Jeffrey E.
Sandberg, Attorneys, Stephen L. Sharfman, General Counsel,

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Postal Regulatory Commission, and R. Brian Corcoran, Deputy
General Counsel.
Before: GARLAND , Chief Judge, SRINIVASAN , Circuit
Judge, and SENTELLE , Senior Circuit Judge.
Opinion for the Court filed by Chief Judge GARLAND .
GARLAND , Chief Judge: The petitioners in these
consolidated cases do not want their local post offices closed.
They unsuccessfully opposed the closures of the three post
offices at issue by the United States Postal Service,
unsuccessfully appealed the Postal Service’s determinations to
the Postal Regulatory Commission, and now seek review of the
Commission’s decisions in this court. Because one of the
petitions has become moot, and because the other two involve
Commission decisions that are not subject to judicial review,
their current effort is likewise unsuccessful.
I
The Postal Reorganization Act Amendments of 1976
created a series of procedural steps that the United States Postal
Service must follow before “closing or consolidat[ing]” a post
office. Pub. L. No. 94-421, § 9(a), 90 Stat. 1303, 1310-11
(codified as amended at 39 U.S.C. § 404(d)). Before making a
determination to close or consolidate, the Postal Service must
give adequate notice to those served by the post office to ensure
that they have an opportunity to present their views. Id.
§ 404(d)(1). The Postal Service must also consider a list of
factors set out in the statute. Id. § 404(d)(2)(A)(i)-(v). If the
Postal Service decides to close or consolidate, it must commit its
decision, including its findings regarding the listed factors, to
writing and make that decision publicly available. Id.
§ 404(d)(3). “A determination of the Postal Service to close or

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consolidate any post office may be appealed by any person
served by such office to the Postal Regulatory Commission.” Id.
§ 404(d)(5).1
These consolidated cases involve challenges to the planned
closures of three postal facilities: the Pimmit Branch in Fairfax
County, Virginia; the Venice Post Office in Venice, California;
and the Spring Dale Post Office in Spring Dale, West Virginia.
On January 7, 2010, the Postal Service notified customers
of the Pimmit Branch that services might be discontinued in
light of the recent opening of a new, larger post office less than
two miles away. After seeking and receiving comment, the
Postal Service made a final determination to close the branch
and did so on November 10, 2011. Petitioner Elaine Mittleman
appealed that determination to the Postal Regulatory
Commission, contending, inter alia, that the Postal Service failed
to follow the proper procedures for closure. The Commission
reasoned that, under its precedents, it did not have jurisdiction
to hear the appeal because the relocation of postal services from
the Pimmit Branch to another nearby facility was not a “closure”
(or a “consolidation”) 2 within the meaning of the statute.
1 The 2006 Postal Accountability and Enhancement Act
established the Postal Regulatory Commission as “an independent
establishment of the executive branch.” Pub. L. No. 109-435,
§ 601(a)(1), 120 Stat. 3198, 3238 (2006) (codified at 39 U.S.C. § 501).
It is the successor to the Postal Rate Commission, which had
substantially the same review authority under the Postal
Reorganization Act Amendments of 1976. See Pub. L. No. 94-421,
§ 9(b)(5), 90 Stat. at 1310-11 (codified at 39 U.S.C. § 404(b)(5)
(1976)).
2 The petitioners did not contend below, nor do they now, that any
of the contested determinations involved “consolidations” under 39
U.S.C. § 404(d)(5). The Commission interprets a “consolidation” to

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According to the Commission’s interpretation of 39 U.S.C.
§ 404(d)(5), a closure subject to its review occurs only when the
Postal Service “eliminat[es] . . . facilities” within a community.
PRC Order No. 1159, Docket No. A2011-90, at 11 (Pimmit
Branch, Falls Church, VA) (Jan. 20, 2012). Because the Postal
Service moved the services provided by Pimmit Branch to
another close-by facility in the same area, its action was not a
closure but rather a “rearrangement[] of postal facilities within
a community.” Id. at 10, 12.
On April 26, 2011, the Postal Service advised the public
that it was considering closing and selling the Venice Post
Office building and moving its services 400 feet across the street
to what had been an annex facility. On July 18, following a
five-week comment period, the Postal Service announced that it
had decided to close the post office. Petitioners Venice
Stakeholders Association and Mark Ryavec (now joined by a
number of other concerned individuals and the Free Venice
Beachhead newspaper) appealed the determination to the Postal
Regulatory Commission, arguing that closure would severely
reduce or temporarily eliminate the availability of postal
services to the community. As in the Pimmit Branch case, the
Commission dismissed the appeal for lack of jurisdiction
because it found that the Postal Service’s “relocation” of the
facility was not a “clos[ure]” within the meaning of 39 U.S.C.
§ 404(d)(5). PRC Order No. 1166, Docket No. A2012-17, at 8-9
(Venice Post Office, Venice, CA) (Jan. 24, 2012).
On March 18, 2011, the Postal Service distributed
questionnaires to customers of the Spring Dale Post Office
involve “management, not facilities” -- that is, “replacing postmasters
with officers-in-charge who are subordinate to postmasters in larger
communities.” PRC Order No. 436, Docket No. A82-10, at 8-9
(Oceana Station, Virginia Beach, VA) (June 25, 1982).

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concerning a possible decision to close that post office. On
April 6, the Postal Service held a community meeting
concerning possible closure, followed by a two-month comment
period. On October 21, 2011, the Postal Service posted its final
determination to close the Spring Dale Post Office, citing the
office’s vacant postmaster position, financial concerns, and the
minimal effect the closure would have on the community.
Petitioner Paul McClung (later joined by other affected
individuals) filed an appeal with the Postal Regulatory
Commission, alleging faulty reasoning on the part of the Postal
Service as well as failure to comply with the proper procedures.
After considering the merits of the challenge, the Commission
divided 2-2 regarding the closure of the Spring Dale Post Office,
which under Commission practice had the effect of affirming the
Postal Service’s determination. PRC Order No. 1262, Docket
No. A2012-68, at 2 n.4 (Spring Dale Post Office, Spring Dale,
WV) (Feb. 27, 2012).
In February and March 2012, the petitioners filed the
petitions now before us, contending that they are entitled to
judicial review of the Commission’s decisions and seeking
reversal and remand of those decisions.
II
We begin by considering whether any of the petitioners’
challenges have become moot during the course of this
litigation. “In general, a case becomes moot when the issues
presented are no longer live or the parties lack a legally
cognizable interest in the outcome.” Conservation Force, Inc.
v. Jewell, 733 F.3d 1200, 1204 (D.C. Cir. 2013) (internal
quotation marks omitted). This can happen when “the court can
provide no effective remedy because a party has already
obtained all the relief that it has sought.” Id. (internal quotation

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marks omitted). When a case is moot, a federal court is without
jurisdiction to decide it. Id.
On April 11, 2013, the Postal Service informed customers
of the Spring Dale Post Office that it had decided to keep that
office open, albeit with reduced hours. See Letter from David
C. Belt, Attorney, U.S. Postal Service to Mark J. Langer, Clerk
of Court, D.C. Circuit, at attach. (Oct. 11, 2013). The Postal
Service has advised us that this action has “the practical effect
of rescinding” its 2011 decision to close the post office, and that,
“in the event that the Postal Service later initiates a
discontinuance action and decides to close” the office again, it
will “comply with the process set forth in 39 U.S.C. § 404(d).”
Id. at 1. Accordingly, because the petitioners in the Spring Dale
case have received all the relief they sought, their petition is
moot and must be dismissed. See Iron Arrow Honor Soc’y v.
Heckler, 464 U.S. 67, 70 (1983); Conservation Force, 733 F.3d
at 1204.
The Postal Regulatory Commission acknowledges that the
petitions regarding the two other post offices are not moot. Oral
Arg. Recording at 29:37-30:53. Although the Postal Service no
longer occupies the buildings that housed the Pimmit Branch
and Venice Post Office, the Commission represents that, if this
court were to set aside and remand the challenged decisions, the
Postal Service may be able to offer the petitioners some relief.
Id. Accordingly, we must proceed to address the remaining two
petitions.
III
Citing the Administrative Procedure Act (APA), the
petitioners ask us to “hold unlawful and set aside” the Postal
Regulatory Commission’s final decisions because they are
“‘arbitrary, capricious, an abuse of discretion, or otherwise not

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in accordance with law.’” Pet’rs’ Br. 25 (quoting 5 U.S.C.
§ 706(2)(A)). The problem for the petitioners is that the same
provision of the Postal Reorganization Act Amendments that
grants the Commission authority to review “[a] determination of
the Postal Service to close or consolidate any post office,” 39
U.S.C. § 404(d)(5), withdraws the authority that the APA would
otherwise grant a court to review the Commission’s review.
Section 404(d)(5) provides that “[t]he Commission shall
review” a determination to close or consolidate a post office and
“shall set aside any determination” of the Postal Service that it
finds to be “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law.” 39 U.S.C.
§ 404(d)(5). But this provision also declares that “chapter 7 of
title 5 shall not apply to any review carried out by the
Commission under this paragraph.” Id. Chapter 7 of title 5 of
the United States Code, titled “Judicial Review,” is the part of
the APA that provides a cause of action for judicial review.
Trudeau v. FTC, 456 F.3d 178, 185 (D.C. Cir. 2006); see Bond
v. United States, 131 S. Ct. 2355, 2363 (2011). The chapter
entitles a person aggrieved by agency action to “judicial review
thereof,” 5 U.S.C. § 702, and provides that “final agency action
for which there is no other adequate remedy in a court [is]
subject to judicial review,” id. § 704. It also authorizes a
reviewing court to “hold unlawful and set aside agency
actions . . . found to be . . . arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,” id. § 706,
precisely the relief that the petitioners seek here. Accordingly,
by declaring that the judicial review chapter “shall not apply” to
a review carried out by the Commission, Congress has precluded
this court from examining the Commission’s handiwork under
the APA.
The petitioners maintain that the phrase, “chapter 7 of title
5 shall not apply to any review carried out by the Commission

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under this paragraph,” merely means that chapter 7 does not
impose any requirements on the Commission’s own review of a
closure.3 But none of the provisions of chapter 7 imposes any
requirements on an agency’s own decisions. Rather, they all
refer to aspects of judicial review. See id. § 702 (right of
“judicial review”); id. § 703 (form and venue of “proceeding for
judicial review”); id. § 704 (kinds of agency actions “subject to
judicial review”); id. § 705 (relief that a “reviewing court” may
issue “pending judicial review”); id. § 706 (scope of review by
“the reviewing court”). 4
3 The petitioners do not argue that § 404(d)(5)’s preclusion of
APA review is inapplicable because the Commission found that the
Postal Service actions at issue here involved “rearrangements” or
“relocations” rather than closures. See Oral Arg. Recording at 7:45-
9:40. The Commission’s view is that the phrase “chapter 7 of title 5
shall not apply to any review carried out by the Commission under this
paragraph,” 39 U.S.C. § 404(d)(5), encompasses “any review” by the
Commission, including one that results in a determination that there
was no closure and thus that the paragraph does not apply. We need
not resolve the question, however, because the petitioners did not raise
it. Cf. Air Courier Conference of Am. v. Am. Postal Workers Union,
498 U.S. 517, 523 n.3 (1991) (noting that, because “[t]he judicial
review provisions of the APA are not jurisdictional,” issues regarding
them can “be waived by the parties”).
4 There are other provisions of the APA that do apply to an
agency’s own decisionmaking. They are contained in chapter 5 of title
5, which is titled “Administrative Procedure.” See 5 U.S.C. §§ 551-
58. Indeed, the sentence in 39 U.S.C. § 404(d)(5) upon which we
have been focusing states in full: “The provisions of section 556,
section 557, and chapter 7 of title 5 shall not apply to any review
carried out by the Commission under this paragraph.” 39 U.S.C.
§ 404(d)(5) (emphasis added). The italicized sections impose
procedural requirements on certain kinds of agency hearings. Section
404(d)(5) renders those requirements, like the chapter on judicial
review, inapplicable to the Commission’s review of Postal Service

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The conclusion that § 404(d)(5) precludes judicial review
under the APA is supported by precedent regarding an
analogous statutory section. That section, 39 U.S.C. § 410(a),
provides that “no Federal law dealing with public or Federal
contracts, property, works, officers, employees, budgets, or
funds, including the provisions of chapter[] . . . 7 of title 5, shall
apply to the exercise of the powers of the Postal Service.” 39
U.S.C. § 410(a) (emphasis added). As a consequence, we have
observed that “the Postal Service is exempt from review under
the Administrative Procedure Act.” N. Air Cargo v. U.S. Postal
Serv., 674 F.3d 852, 858 (D.C. Cir. (2012); see Carlin v.
McKean, 823 F.2d 620, 622-23 (D.C. Cir. 1987); Nat’l Easter
Seal Soc’y for Crippled Children & Adults v. U.S. Postal Serv.,
656 F.2d 754, 766-67 (D.C. Cir. 1981). Other circuits have
reached similar conclusions regarding the effect of § 410(a).
See Currier v. Potter, 379 F.3d 716, 725 (9th Cir. 2004); Booher
v. U.S. Postal Serv., 843 F.2d 943, 945 (6th Cir. 1988); Harrison
v. U.S. Postal Serv., 840 F.2d 1149, 1155 (4th Cir. 1988). 5
The conclusion that § 404(d)(5) precludes judicial review
of Commission decisions regarding closures and consolidations
under the APA is confirmed by the legislative history of the
section. The debates surrounding the Postal Reorganization Act
Amendments included a disagreement about the appropriate
amount of process to give to persons aggrieved by the closure of
their local post office. The Senate version included judicial
review in the United States Courts of Appeals, while the House
determinations to close or consolidate post offices.
5 In Air Courier Conference of America v. American Postal
Workers Union, the Supreme Court declined to decide whether
§ 410(a) exempts the Postal Service from judicial review under the
APA because the issue was not encompassed in the Court’s grant of
certiorari. See 498 U.S. at 522-23.

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version contained no review provision at all, leaving the
determination entirely in the hands of the Postal Service. H.R.
Rep. No. 94-1444, at 18 (1976) (Conf. Rep.). Taking a middle
ground, the Conference Committee adopted the Senate
provision, “except that the right of appeal to a United States
court of appeals is deleted and instead there shall be a right of
appeal to the Postal Rate Commission” -- the predecessor to the
Postal Regulatory Commission. Id. (emphasis added). This
result appears to have been intended to strike a balance between
providing protection for postal patrons and ensuring the
efficiency of postal operations.
The petitioners contend that, even if § 404(d)(5) precludes
APA review of Commission decisions regarding closures and
consolidations, another provision of title 39 nonetheless
authorizes it. That provision is § 3663, which states: “A person,
including the Postal Service, adversely affected or aggrieved by
a final order or decision of the Postal Regulatory Commission
may . . . institute proceedings for review thereof by filing a
petition in the United States Court of Appeals for the District of
Columbia. The court shall review the order or decision in
accordance with section 706 of title 5 . . . .” 39 U.S.C. § 3663.6
Were it not for § 404(d)(5), section 3663 would indeed
appear to authorize APA review of all final decisions of the
Commission. But given that § 404(d)(5) precludes APA review
6 Section 3663 also provides that review shall be in accordance
with “chapter 158 and section 2112 of title 28.” Id. Chapter 158 is
commonly known as the Hobbs Act. “While the Hobbs Act specifies
the form of proceeding for judicial review of ICC orders, see 5 U.S.C.
§ 703, it is the Administrative Procedure Act (APA) that codifies the
nature and attributes of judicial review.” ICC v. Bhd. of Locomotive
Eng’rs, 482 U.S. 270, 282 (1987). Section 2112 governs the record
on review and enforcement of agency orders. 28 U.S.C. § 2112.

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of Commission decisions regarding closures and consolidations,
we must attempt “to harmonize and give meaningful effect to”
these seemingly contradictory provisions. New Process Steel,
L.P. v. NLRB, 560 U.S. 674, 680 (2010); see Nat’l Ass’n of
Home Builders v. Defenders of Wildlife, 551 U.S. 644, 678-79
(2007). This can readily be accomplished by employing the
“well established canon of statutory interpretation . . . that the
specific governs the general.” RadLAX Gateway Hotel, LLC v.
Amalgamated Bank, 132 S. Ct. 2065, 2070-71 (2012). As the
Court explained in RadLAX, “[t]he general/specific canon is
perhaps most frequently applied to statutes in which a general
permission or prohibition is contradicted by a specific
prohibition or permission. To eliminate the contradiction, the
specific provision is construed as an exception to the general
one.” Id. at 2071. Here, the general permission of judicial
review under the APA granted by § 3663 is contradicted by the
specific prohibition of § 404(d)(5). Harmonization is achieved
by reading § 3663 as authorizing judicial review for the broad
run of Commission decisions, with the specific exception that
§ 404(d)(5) establishes for decisions regarding closures and
consolidations.
The fact that § 3663 was enacted in 2006 as part of the
Postal Accountability and Enhancement Act (PAEA), while the
section that is now § 404(d)(5) was part of the earlier Postal
Reorganization Act Amendments of 1976, does not change our
conclusion. As the Supreme Court said in National Association
of Home Builders v. Defenders of Wildlife:
While a later enacted statute . . . can sometimes operate
to amend or even repeal an earlier statutory
provision . . . , repeals by implication are not favored
and will not be presumed unless the intention of the
legislature to repeal [is] clear and manifest. We will
not infer a statutory repeal unless the later statute

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expressly contradict[s] the original act or unless such
a construction is absolutely necessary . . . in order that
[the] words [of the later statute] shall have any
meaning at all. Outside these limited circumstances, a
statute dealing with a narrow, precise, and specific
subject is not submerged by a later enacted statute
covering a more generalized spectrum.
551 U.S. at 662-63 (internal quotation marks omitted). There is
nothing in the text of the general review provision of § 3663 that
communicates a “clear and manifest” intention to repeal the
limitation that § 404(d)(5) imposed on review of Commission
decisions regarding post office closures and consolidations. The
text does not even mention § 404(d)(5), let alone “expressly”
contradict it. And such a construction is not necessary to give
the words of § 3663 “any meaning at all,” as those words
provide a right of review for the broad run of Commission
decisions that do not cover the “narrow, precise, and specific
subject” of post office closures and consolidations.
Nor is there anything in the history of PAEA to indicate that
Congress intended § 3663 to repeal the judicial review limitation
of § 404(d)(5). To the contrary, PAEA made numerous changes
to other provisions of § 404, 7 including striking and revising a
7 For example, PAEA inserted new subsections 404(b) and (c),
which contained provisions regarding classes of mail and rates of
postage. See PAEA § 1010(e), Pub. L. No. 109-435, 120 Stat. 3198,
3261-62 (2006). (At the same time, it redesignated subsections 404(b)
and (c) as (d) and (e), respectively. Id.) PAEA also inserted new rules
for determining the date upon which an appeal from a Postal Service
closure decision is considered “received by” the Commission. See id.
§ 1006(a), 120 Stat. at 3258 (codified at 39 U.S.C. § 404(d)(6)). In
addition, PAEA substituted the Postal Regulatory Commission for the
Postal Rate Commission throughout the statute, including in § 404(d)
as the entity authorized to review Postal Service determinations to

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provision of that section. 8 It also struck many other provisions
of the Postal Reorganization Act as that Act stood in 2006.9
Nonetheless, Congress left completely intact the provision of
§ 404(d)(5) that precludes APA review of Commission decisions
regarding post office closures and consolidations. Accordingly,
we find no indication of a congressional intention to repeal
§ 404(d)(5)’s elimination of APA review, let alone a “clear and
manifest” intention.
Finally, we acknowledge that the absence of a cause of
action for judicial review under the APA does not necessarily
foreclose all judicial review. See Trudeau, 456 F.3d at 184 &
n.5, 188-90 (noting that, where review is precluded under the
APA, other causes of action may still be available).10 As we
said in Trudeau v. FTC, even when “‘a plaintiff is unable to
close post offices. See id. § 604(a), 120 Stat. at 3241. It made many
other additions to § 404 as well. See id. § 102, 120 Stat. at 3200; id.
§ 403(b)(2), 120 Stat. at 3227.
8 PAEA § 102, 120 Stat. at 3200 (striking a subsection that
authorized the Postal Service to provide nonpostal services and
replacing it with a subsection that significantly limits its ability to do
so).
9See, e.g., PAEA § 201, 120 Stat. at 3200-05 (striking what were
then 39 U.S.C. §§ 3621-22 and replacing them with new language); id.
§ 205, 120 Stat. at 3216-17 (striking what was then 39 U.S.C. § 3662
and replacing it with new language); id. § 404, 120 Stat. at 3227-29
(striking some subsections of 39 U.S.C. § 409 and replacing them with
new language).
10See also Air Courier Conference of Am., 498 U.S. at 523 n.3
(“The judicial review provisions of the APA are not jurisdictional . . . .
Whether § 410(a) exempts the Postal Service from APA review is in
essence a question whether Congress intended to allow a certain cause
of action against the Postal Service.”).

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bring his case predicated on either a specific or general statutory
review provision, he may still be able to institute a non-statutory
review action.’” Id. at 189 (quoting Chamber of Commerce v.
Reich, 74 F.3d 1322,1327 (D.C. Cir. 1996)). Indeed, we have
found such “non-statutory” review available for certain Postal
Service decisions, notwithstanding the preclusion of APA
review under 39 U.S.C. § 410(a). See N. Air Cargo, 674 F.3d at
858; Aid Ass’n for Lutherans, 321 F.3d at 1172-73.
But while such review may be available, it is quite narrow.
It is available only to determine whether the agency has acted
“ultra vires” -- that is, whether it has “exceeded its statutory
authority.” Aid Ass’n for Lutherans, 321 F.3d at 1173; see N.
Air Cargo, 674 F.3d at 858; Trudeau, 456 F.3d at 190; cf.
Leedom v. Kyne, 358 U.S. 184, 188 (1958) (concluding that
judicial review of an NLRB order was available,
notwithstanding that the challenged order did not come within
the judicial review provision of the National Labor Relations
Act, because the NLRB’s order was “made in excess of its
delegated powers and contrary to a specific prohibition in the
Act [that] is clear and mandatory”). Here, however, the
petitioners do not contend that the Commission exceeded the
scope of its statutory authority in dismissing their appeals
regarding the Pimmit Branch and the Venice Post Office. If
anything, they contend that the Commission did precisely the
opposite: that it improperly constrained its own authority by
finding that it did not have jurisdiction to hear the cases.
Accordingly, neither APA review nor non-statutory review of
the Commission’s decisions is available.
IV
For the foregoing reasons, the petition regarding the Spring
Dale Post Office is dismissed as moot, and the petitions

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regarding the Pimmit Branch and the Venice Post Office are
denied.
So ordered.

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