July 26, 2021
Dear Alliance Members and Sponsors,
On Friday evening, we and our allies renewed our request that the U.S. Court of Appeals for the D.C. Circuit stay, or put a hold on, the postal rate increases scheduled for August 29, 2021. The stay would be in effect until the court makes its decision on our appeal of the rates authority created by the Postal Regulatory Commission, sometime after oral arguments on September 13, 2021.
You probably recall that we made a stay request six months ago that was denied by the court because we did not show “the type of imminent and irreparable harm necessary for a stay.”
Why make the request again? As we assert in our new request, “The basis for the Court’s denial of a stay no longer exists,” and “There is nothing speculative or ‘hypothetical’ about these rate increases: they will be the largest price increases levied on the Postal Service’s monopoly customers since the Act’s passage.” Here’s a longer excerpt from the legal arguments we submitted:
The Commission responded that the mailers failed to show that Order 5763
would imminently and irreparably harm them, because several procedural steps
needed to effectuate the higher rates had not yet been taken. See generally Postal
Regulatory Commission’s Opposition to Stay (Feb. 8, 2021) (“PRC Stay Opp.”) at
2, 17-18 (Exhibit 3). The Commission noted that Order 5763 “does not itself
increase the price [mailers] must pay for any particular market-dominant products”
and that, at that time, the Postal Service had “not yet determined how to exercise
any of the rate authority conferred by the order.” Id. at 17. The Commission
characterized impending price increases as “hypothetical” “unless the Postal
Service first gives the public ninety days’ notice” and the Commission “then
conduct[s] a notice-and-comment proceeding to review the proposed increase.” Id.
at 17-18. “Unless and until the Postal Service proposes specific rate increases,”
reasoned the Commission, “there is no way to know whether and how those
increases might harm” Movants. Id. at 18. This Court then denied the Initial Stay
Motion because it found that the mailers had “not demonstrated the type of
imminent and irreparable harm necessary for a stay.”
The basis for the Court’s denial of a stay no longer exists. The Postal
Service has invoked its rate authority, and in fact has determined to use “virtually
all” of it. See United States Postal Service Notice of Market-Dominant Price
Change, Docket No. R2021-2 (released May 28, 2021) (“USPS Notice”) (Exhibit
5) at 1. The Commission has conducted its notice-and-comment review of the
proposed price changes. See Notice and Order on Price Adjustments and
Classification Changes for Market Dominant Products, Docket No. R2021-2,
Order No. 5905 (released June 1, 2021) (Exhibit 6). And the Commission has
approved them for implementation. See Order on Price Adjustments for First-
Class Mail, USPS Marketing Mail, Periodicals, Package Services, and Special
Services Products and Related Mail Classification Changes, Docket No. R2021-2,
Order No. 5937 (released July 19, 2021) (“Order 5937”) (Exhibit 7). There is
nothing speculative or “hypothetical” about these rate increases: they will be the
largest price increases levied on the Postal Service’s monopoly customers since the
Act’s passage. Movants know the specific price increases that will be charged to
individual postal products, they know exactly when (August 29, 2021 at 12:01a.m.)
the price increases will take effect, and they know “whether and how those
increases might harm” them. But cf. PRC Stay Opp. at 18. As shown below,
Movants have clearly demonstrated the type of imminent and irreparable harm
necessary for a stay. And as was the case when Movants filed the Initial Stay
Motion, Movants still satisfy the other Virginia Petroleum Jobbers factors.
Importantly, we included testimony by seven mailers about the specific harm they would experience without a stay. Four are Board of Directors members of the Alliance of Nonprofit Mailers: American Lung Association, Consumer Reports, Disabled American Veterans, and Wounded Warrior Project. The seven declarations are included in the attachment with the motion for stay.
We believe the court has plenty of time to issue a stay before the August 29 rate increases. No doubt the twin postal agencies, the PRC and USPS, will again object to a stay. But they will have to rely on different arguments than the last time. In the meantime, we would still advise you to prepare for the rate increases to go into effect on schedule, though we will continue to pursue the stay and any other options that would prevent harm to the essential work of nonprofit mailers.
Please reach out with any questions you have. We will keep you posted.
Alliance of Nonprofit Mailers
1211 Connecticut Ave, NW, Suite 610
Washington, DC 20036
The leading voice for nonprofits on postal issues for over 40 years.
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21-7-23 Motion for Stay with Exhibits (Declarations Only)(52872152.1)