Case: 10-1343 Document: 1278103 Filed: 11/18/2010 Page: 1

No. 10-1343

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________________

UNITED STATES POSTAL SERVICE,

Petitioner,
v.

POSTAL REGULATORY COMMISSION,

Respondent.
____________________

On Petition for Review from the

Postal Regulatory Commission,
PRC Docket No. R2010-4
____________________

CONSOLIDATED OPPOSITION TO THE MOTIONS TO INTERVENE OF

NEWSPAPER ASSOCIATION OF AMERICA, TIME WARNER INC.,
VALASSIS DIRECT MAIL, INC., AFFORDABLE MAIL ALLIANCE,
ALLIANCE OF NONPROFIT MAILERS, ASSOCIATION FOR POSTAL
COMMERCE, DIRECT MARKETING ASSOCIATION, INC., MAGAZINE
PUBLISHERS OF AMERICA, INC., NATIONAL POSTAL POLICY
COUNCIL, AMERICAN BUSINESS MEDIA,
AND NATIONAL NEWSPAPER ASSOCIATION

Pursuant to Federal Rules of Appellate Procedure 27(a)(3)(A) and 27(a)(2),

Petitioner United States Postal Service hereby opposes the separate Motions to

Intervene filed by the Newspaper Association of America, Time Warner Inc.,

Valassis Direct Mail, Inc., the Affordable Mail Alliance, the Alliance of Nonprofit

Mailers, the Association for Postal Commerce, the Direct Marketing Association,

Inc., the Magazine Publishers of America, Inc, the National Postal Policy

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Council, American Business Media, and the National Newspaper Association.

These eleven would-be intervenors were not “parties” below; they were merely

commenters. Accordingly, they are not entitled to intervene as of right. Further,

allowing a host of mere commenters to intervene permissively in this review

proceeding would unduly burden the original parties and this Court, interfering

with the Court’s ability to resolve this petition with the expeditiousness the

Court has already recognized is needed. Therefore, the motions should be

denied.

The Postal Service sought this Court’s review under 39 U.S.C. § 3663,

challenging the Postal Regulatory Commission (“PRC”)’s decision to deny the

Postal Service’s expedited request to raise postal prices under “extraordinary or

exceptional circumstances.” See 39 U.S.C. § 3622(d)(1)(E). Section 3663

provides that this Court’s review shall be in accordance with 28 U.S.C. Chapter

158, which in turn sets the standard for intervention. See 28 U.S.C. § 2348.1

The motions here fail that standard.

First, the movants are not entitled to intervene as of right. Section 2348

provides that a “party in interest in the proceeding before the agency” may

The Newspaper Association of America and the National Postal Policy Council also
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cited 47 U.S.C. § 402(e) in their respective motions. That statute has no bearing here, as it
governs review of decisions of the Federal Communications Commission, not the Postal
Regulatory Commission. 47 U.S.C. §§ 402(b), (e); 154(a).

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intervene “as of right” in the proceeding to review the agency’s order. But none

of the eleven would-be intervenors was a party to the proceeding before the

agency. They did not seek to intervene below, even though PRC regulations

allow intervention. See 39 C.F.R. § 3001.20.2 Instead, they simply commented

on the Postal Service’s exigent rate request.3 The PRC’s regulations state flatly

that commenters are “not parties.” 39 C.F.R. § 3001.20b. Because the movants

were not “parties” below, they are not entitled to intervene as of right here. E.g.,

Alabama Power Co. v. FCC, 852 F.2d 1361, 1366-67 (D.C. Cir. 1988).

Second, permissive intervention would be inappropriate. Section 2348

provides that entities “whose interests are affected by the order of the agency”

may be granted permission to intervene in the review proceeding. When

evaluating motions to intervene under Fed. R. App. P. 15(d), appellate courts

Even if the movants had “intervened” before the PRC, that would not be enough to
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make intervention proper in this Court. PRC regulations are clear that the standard for what
the PRC refers to as intervention is less demanding than the standard for intervening in this
Court, as a party may “intervene” before the PRC without showing that it has “such an interest
in the proceeding that [it] would be aggrieved by an ultimate decision by order of the
Commission.” 39 C.F.R. § 3001.20(e); see also 39 U.S.C. § 3663. Because the movants here did
not even try to intervene below, however, there is no need to address this question.
3 See, e.g., Comments of the Newspaper Association of America (Aug. 16, 2010),
http://www.prc.gov/Docs/69/69709/naa-comments.pdf; Initial Comments of Time Warner (Aug.
17, 2010), http://www.prc.gov/Docs/69/69734/TWintCmtsR2010-4.pdf; Initial Comments of
Valassis (Aug. 17, 2010), http://www.prc.gov/Docs/69/69742/SMC%20Valassis%20cmts.pdf;
Comments of the Affordable Mail Alliance (Aug. 17, 2010), http://www.prc.gov/Docs/69/69753/
10-08-17%20AMA%20comments.pdf; Comments of the Association for Postal Commerce (Aug.
17, 2010), http://www.prc.gov/Docs/69/69749/POSTCOM.INITIAL.pdf.

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look to Fed. R. Civ. P. 24 for guidance. See, e.g., Bldg. & Constr. Trades Dep’t v.

Reich, 40 F.3d 1275, 1282–83 (D.C. Cir. 1994). Fed. R. Civ. P. 24(b)(3) requires

courts to consider whether intervention would “unduly delay or prejudice the

adjudication of the original parties’ rights.” See also Montship Lines, Ltd. v. Fed.

Maritime Bd., 295 F.2d 147, 152 (D.C. Cir. 1961) (considering whether

intervention under the predecessor to § 2348 would unduly complicate the

litigation or cause prejudice to the original parties).

Allowing mere commenters like the movants to intervene as parties could

cause practical problems and needlessly delay and complicate adjudication of

this petition for review. The would-be intervenors have made no showing that

their interest in having lower postage prices is any different from that of dozens

of others who filed comments with the PRC — or hundreds of millions of others

who use the U.S. Mail. Allowing entities with such a generalized interest to

participate as parties would likely result in undue delay and distraction. In the

federal appellate courts there is a phrase that aptly captures the interest and

status of entities that were interested enough to file comments below, but did not

attempt to intervene. That phrase is amici curiae. Accordingly, commenters in

the proceedings before the agency below should participate as amici rather than

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parties in this Court, and only to the extent that their participation does not

unduly delay or complicate this petition.4

The delay and distraction threatened by these entities’ participation as

parties is particularly problematic given the number of commenters below and

the highly expedited briefing schedule that this Court adopted in its November

4, 2010 scheduling order. As this Court recognized in granting expedition, the

need here for swift appellate review is pressing. The underlying proceedings

involve the Postal Service’s expedited request to increase prices based on

“extraordinary or exceptional circumstances”; the proceedings below were

themselves swiftly expedited; and the Postal Service projects that, as a result of

recession-related volume losses and other factors, it will have exhausted its cash

on hand and its borrowing authority on September 30, 2011.

It is thus imperative to the Postal Service that this petition for review be

decided well in advance of that deadline. Proliferating the number of parties by

allowing mere commenters to intervene will hardly facilitate this Court’s ability

to decide this petition with the expedition that this Court has already recognized

it requires.

For example, Senator Susan Collins, who filed comments before the PRC but did not
4

seek to intervene, has sought the Postal Service’s consent to participate as an amicus, and the
Postal Service has consented.

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For the foregoing reasons, this Court should deny the Motions to

Intervene.

Respectfully submitted,

/s/ Paul D. Clement

Mary Anne Gibbons, General Counsel Paul D. Clement
R. Andrew German Jeffrey S. Bucholtz
David C. Belt Zachary D. Tripp
Michael J. Elston KING & SPALDING LLP
UNITED STATES POSTAL SERVICE 1700 Pennsylvania Ave. NW
475 L’Enfant Plaza SW Washington, DC 20006
Washington, DC 20260-1127 202-737-0500
(202) 268-7432
Counsel for Petitioner

November 18, 2010

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CERTIFICATE OF SERVICE

I certify that on November 18, 2010, I electronically filed the foregoing

with the Clerk of the Court for the U.S. Court of Appeals for the District of

Columbia Circuit by using the appellate CM/ECF system. All participants are

registered CM/ECF users, and will be served by the appellate CM/ECF system,

except for the following, who were served a copy of the foregoing by U.S. Priority

Mail, proper postage prepaid:

John Martin Burzio

Burzio & McGlaughin
1054 31st Street, NW
Washington, DC 20007
Counsel for Movant-Intervenor Time Warner, Inc.

Thomas W. McLaughlin
Burzio McLaughlin & Keegan
Canal Square, Suite 540
1054 31st Street, NW
Washington, DC 20007-4403
Counsel for Valassis Direct Mail, Inc.

Tonda F. Rush
King & Ballow
P.O. Box 50301
Arlington, VA 22205
Counsel for Movant-Intervenor National Newspaper Association, Inc.

David R. Straus
Thompson Coburn LLP
1909 K Street, NW, Suite 600
Washington, DC 20006-1167
Counsel for Movant-Intervenor American Business Media

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Ian D. Volner
David M. Levy
Matthew D. Field
Venable LLP
575 7th Street NW
Washington, DC 20004
Counsel for Movant-Intervenor the Affordable Mail Alliance

/s/ Zachary D. Tripp

Zachary D. Tripp
Counsel for Petitioner
November 18, 2010

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