SOUTHERN CALIFORNIA EDISON CO. v. UNITED STATES POSTAL SERVICE

Filing 52

MEMORANDUM OPINION re 51 Order on Motion for Reconsideration. Signed by Judge James E. Boasberg on 01/14/2016. (lcjeb2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SOUTHERN CALIFORNIA EDISON,
Plaintiff,
v.

Civil Action No. 14-1041 (JEB)

UNITED STATES POSTAL SERVICE,
Defendant.

MEMORANDUM OPINION
When mail recipients decline to accept letters delivered by the United States Postal
Service, they can write “return to sender” on the envelope so that USPS will offer the sender an
opportunity to revise the destination address. In similar fashion, Defendant USPS here attempts
to return this Court’s Opinion for revision, seeking a more favorable delivery. More specifically,
Defendant moves under Federal Rule of Civil Procedure 59(e) to alter or amend this Court’s
Memorandum Opinion and separate Order issued September 29, 2015, granting in part and
denying in part both parties’ cross-motions for summary judgment. See ECF Nos. 46-47. As no
clear error of law or manifest injustice is present here to warrant alteration of the judgment, the
Court will deny the Motion.
I.

Background
The background of this case is set forth in substantial detail in the Court’s Opinion, see S.

California Edison v. U.S. Postal Serv., No. 14-1041, 2015 WL 5730777 (D.D.C. Sept. 29, 2015),
and so only a cursory summary is warranted here. Mailer Southern California Edison is a public
utility that, during the period in question, sent monthly bills via the United States Postal Service

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to most of its approximately 14 million customers. USPS grants “workshare” discounts for
mailers who ease its receipt and delivery of bulk mail by presorting, prebarcoding, handling, and
transporting mail before it reaches the Postal Service. To qualify for such discounts, however,
mailers must comply with USPS’s Move Update standard, which compliance reduces the amount
of return-to-sender (RTS) and undeliverable-as-addressed (UAA) mail USPS receives from bulk
mailers.
In early 2007, USPS’s Postal Inspection Service identified high rates of RTS and UAA
mailpieces sent by SCE and, in a subsequent investigation, determined that Plaintiff had failed to
comply fully with the Move Update standard. In a letter dated November 23, 2009, USPS issued
a revenue-deficiency assessment of $7,551,576.28, the difference between the discounted bulkmail price SCE paid and the undiscounted First-Class rate for 82,452,608 mailpieces SCE sent
between May 14, 2007, and November 26, 2008. See Revenue Deficiency Letter (Nov. 23,
2009) (JA0047). SCE opposed this assessment and appealed it to the Service’s Pricing &
Classification Service Center (PCSC) – the designated USPS appeals body for such an
assessment – raising several issues, two of which are relevant to USPS’s Motion for
Reconsideration. See Amended Appeal of Southern California Edison from Decision of Santa
Ana District (Nov. 21, 2011) (JA0005-JA0044).
First, SCE opposed assessment of the First Class rate for all of its mail, as USPS had
identified only a small fraction of SCE’s total mailpieces sent (at most 1.4%) that were returned
UAA. While SCE acknowledged that it had mistakenly failed to implement several Move
Update standard protocols, it strived to do so once notified of the error. Second, SCE also
challenged the assessment on the basis that USPS’s Management Instruction – USPS’s guidance
in assessing revenue deficiencies – limited revenue-deficiency assessments to no more than the

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twelve months preceding the discovery of non-compliance with the Move Update standard.
USPS, however, had in this case assessed a revenue deficiency for over 18 months, including for
months after the discovery of non-compliance.
The PCSC rejected SCE’s appeal and upheld the full revenue-deficiency assessment of
$7,551,576.28 for the 18-month period. SCE then filed its lawsuit in this Court, arguing that the
Service had acted unreasonably and ultra vires by violating the Postal statutes, see Compl.,
¶¶ 81-89, and had also violated the Due Process Clause of the Fifth Amendment. Id., ¶¶ 90-93.
In response, USPS amended its initial Answer to include a Counterclaim, seeking judgment on a
claim for debt under the Federal Debt Collection Procedure Act, 28 U.S.C. § 3001 et seq., unjust
enrichment, and declaratory relief. See Amend. Answer & Countercl., ¶¶ 34-49.
In its Opinion, the Court largely sided with SCE. It concluded that USPS had not applied
reasoned decisionmaking in issuing the revenue-deficiency assessment, particularly in reaching
beyond the maximum twelve-month retrospective period. The Court remanded the matter to the
PCSC for reasoned decisionmaking in calculating the appropriate assessment. USPS now moves
for the Court to alter or amend its judgment.
II.

Legal Standard
Federal Rule of Civil Procedure 59(e) permits the filing of a motion to alter or amend a

judgment when such motion is filed within 28 days after the judgment’s entry. The Court must
apply a “stringent standard” when evaluating Rule 59(e) motions, see Ciralsky v. CIA, 355 F.3d
661, 673 (D.C. Cir. 2004), for “‘[r]econsideration of a judgment after its entry is an extraordinary
remedy which should be used sparingly.’” Mohammadi v. Islamic Republic of Iran, 782 F.3d 9,
17 (D.C. Cir. 2015) (quoting 11 C. Wright & A. Miller, Fed. Prac. & Proc. Civ. § 2810.1 (3d ed.
2012)). “A Rule 59(e) motion is discretionary’ and need not be granted unless the district court

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finds that there is an ‘intervening change of controlling law, the availability of new evidence, or
the need to correct a clear error or prevent manifest injustice.” Firestone v. Firestone, 76 F.3d
1205, 1208 (D.C. Cir. 1996) (citation and internal quotation marks omitted); see also 11 Fed.
Prac. & Proc. Civ. § 2810.1 (“four basic grounds” for Rule 59(e) motion are “manifest errors of
law or fact,” “newly discovered or previously unavailable evidence,” “to prevent manifest
injustice,” and “intervening change in controlling law”). Rule 59(e), moreover, “is not a vehicle
to present a new legal theory that was available prior to judgment,” Patton Boggs LLP v.
Chevron Corp., 683 F.3d 397, 403 (D.C. Cir. 2012), or “to relitigate old matters, or to raise
arguments or present evidence that could have been raised prior to the entry of judgment.”
Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008) (citation and internal quotation
marks omitted).
III.

Analysis
At the outset, the Court notes that USPS has not alleged “newly discovered or previously

unavailable evidence,” or an “intervening change in controlling law.” Instead, it takes direct aim
at the Court’s reasoning in its judgment, alleging clear errors of law and manifest injustice.
Among the issues it raises are four of particular note. First, Defendant believes that the Court
incorrectly concluded that it had subject-matter jurisdiction over claims relating to postal rates
and rate-related regulations, asserting that SCE’s challenge should have been filed before the
Postal Regulatory Commission (PRC), not in federal district court. See Mot. at 2. Second, it
maintains that the Court “failed to recognize” that the PCSC has only limited authority to
determine whether a mailer paid insufficient postage and cannot “create a new rate” for a
particular mailer that differs from the full undiscounted rate. Id. at 1-2. Third, it argues that
compliance with the Opinion would “effect a manifest injustice” to the Postal Service and the

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public. Id. at 14. Finally, if the Court adheres to its prior decision, Plaintiff seeks further
guidance upon remand. Id. at 21-22. The Court treats each point in turn.
A. Jurisdiction
The Service’s jurisdictional argument is hardly new, having been addressed in its
briefings at summary judgment; indeed, it dedicated substantial pages to the topic. See Def.
MTD/MSJ at 18-31; Def. Reply at 21-23. In an attempt to bolster its position, USPS cites to a
recent opinion in this District by Judge Rosemary Collyer, in which she found that the PRC had
exclusive jurisdiction to hear challenges over rates. See Sears, Roebuck & Co. v. U.S. Postal
Serv., No. 14-1031, 2015 WL 5729089, at *11-12 (D.D.C. Sept. 30, 2015). That decision, while
of course not binding, is nevertheless not inconsistent with this Court’s. Because Judge Collyer
held that USPS had engaged in reasoned decisionmaking – in contrast to this Court’s holding –
she then proceeded to resolve the plaintiff’s alternative argument that USPS had acted ultra vires
in the establishment of the rate in question. Only on that challenge did Judge Collyer find that
the PRC had exclusive jurisdiction. See id. at *7-9. She clearly acknowledged, moreover, that
“the Postal Service’s application of its own regulations and its deficiency assessments are
subjected to limited judicial review . . . [i.e.,] whether the Postal Service ‘engaged in reasoned
decision-making.’” Id. at *6 (citation omitted). That form of limited review is precisely what
this Court conducted in its Opinion.
While the Court already addressed the Service’s jurisdictional arguments in its prior
Opinion, it adds here that it could not find a single case before the D.C. Circuit in which a mailer
had appealed a revenue-deficiency assessment issued by the PCSC to the PRC, and then later to
the Circuit — viz., the route urged here by USPS. Indeed, a review of every relevant case in this
Circuit makes manifest that cases appealed from the PRC concern broader, policy-making

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decisions, not individual revenue-deficiency assessments against a single mailer. In fact, in the
vast majority of cases in the Circuit involving the PRC, the Commission and the Postal Service
are the litigants, and many involve USPS challenges to PRC orders concerning the Service’s
broad rate-setting and mailing practices. See, e.g., U.S. Postal Serv. v. Postal Regulatory
Comm’n, 785 F.3d 740 (D.C. Cir. 2015) (USPS challenge to PRC rejection of USPS proposal to
implement price adjustments to certain market-dominant products); U.S. Postal Serv. v. Postal
Regulatory Comm’n, 747 F.3d 906 (D.C. Cir. 2014) (USPS challenge to PRC order equalizing
cost of first-class letter and flat DVD rates); U.S. Postal Serv. v. Postal Regulatory Comm’n, 717
F.3d 209 (D.C. Cir. 2013) (USPS challenge to PRC order that USPS revise discount for
presorted “workshare discount” mail); U.S. Postal Serv. v. Postal Regulatory Comm’n, 640 F.3d
1263 (D.C. Cir. 2011) (USPS challenge to PRC denial of USPS request to exceed annual cap for
postal-rate increases).
Of the handful of cases not falling into this category, not a single one concerns a revenuedeficiency assessment, contradicting USPS’s assertion that the Court acted in “clear error.” See,
e.g., Mittleman v. Postal Regulatory Comm’n, 757 F.3d 300 (D.C. Cir. 2014) (challenge to
proposed post-office closure); GameFly, Inc. v. Postal Regulatory Comm’n, 704 F.3d 145 (D.C.
Cir. 2013) (challenge to PRC’s remedial order resolving differential treatment by USPS among
businesses distributing DVDs by mail); LePage’s 2000, Inc. v. Postal Regulatory Comm’n, 674
F.3d 862 (D.C. Cir. 2012) (challenge to PRC’s classification of commercial licensing of thirdparty mailing and shipping supplies as “nonpostal service”).
Even more tellingly, the Court could not find a single case listed on the docket of the
PRC — past or present — that involved the appeal of a revenue-deficiency assessment against a
mailer. See Docket Search, Postal Regulatory Commission, http://www.prc.gov/dockets/search

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(last visited Jan. 13, 2016). Nor does USPS cite to a single case identifying such precedent. In
the absence of any cases in which a revenue-deficiency-assessment challenge proceeded first to
the PRC – as USPS alleges it must – and given at least one case in this District that reviewed
such a challenge on the merits, see Reese Bros., Inc. v. U.S. Postal Serv., 905 F. Supp. 2d 223
(D.D.C. 2012), USPS has not shown that this Court should revisit its jurisdictional
determination.
B. Tampering with Rates
While Defendant never defines outright what a “rate” is, it apparently implies that any
amount a mailer pays that is permitted by any organ of the USPS is a “rate,” even in the instance
of a remedial revenue-deficiency assessment. See Mot. at 2 (“At all times relevant to this matter,
the [Mail Classification Schedule] did not list a rate for a bulk mailing that was partially or even
substantially compliant with the Move Update requirements.”). The Service thus also objects to
the judgment on the ground that it construes the Court’s Order as requiring the PCSC to
“impose[] a new rate and rule on USPS,” Mot. at 13, something Defendant maintains the PCSC
may not do. The Service states that “the PCSC may not create a new rate; rather, only the PRC
can approve a new rate” because “[t]he PCSC had no authority to create a new rate or waive
compliance with Move Update regulations . . . .” Id. at 2. Defendant, however, mischaracterizes
the Court’s Order as requiring the PCSC “retroactively to apply a rate that has not been approved
by the PRC merely because of views on what might be equitable under specific circumstances
applicable to a particular mailer . . . .” Id. at 12. Revenue-deficiency assessments are not rates;
they are remedial assessments that result from mailer non-compliance, and the PCSC has wide
discretion in determining how to make such assessments.

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Although the Court has already responded to these arguments in its Memorandum
Opinion, it will briefly explain further why USPS problematically elides the distinction between
the determination of a revenue-deficiency assessment and the setting of a postal rate. At its core,
USPS’s argument hinges on the assumption that if the Postal Service were to issue a revenuedeficiency assessment for any amount other than the full undiscounted rate – for the entirety of
the mailing period in question and for all mailpieces sent at the discounted workshare rate – it
would “impose[] a new rate and rule on USPS” and would “provide[] SCE with an exemption
from the burden of complying with Move Update regulations that apply to all mailers that
qualify for lower rates,” resulting in “discriminatory pricing.” Id. at 13, 2. In other words, the
Service believes that there can be no discretion whatsoever in the assessment of a revenue
deficiency without the implementation of a “new” and “discriminatory” rate. And such
implementation the Court cannot order, for Defendant claims the PCSC lacks “authority to apply
rates to a specific mailer other than approved rates or to disregard postal regulations establishing
rate-eligibility requirements.” Id. at 15.
Despite such an assertion, both USPS and the PCSC have a well-established history of
doing just what USPS claims cannot be done – namely, exercising discretion in the assessment of
revenue deficiencies. Most straightforwardly, the Service’s Management Instruction expressly
limits revenue-deficiency assessments to “no more than 12 months before the date the deficiency
was discovered” – even if the actual period of non-compliance is far greater. See Management
Instruction Assessing and Collecting Deficiencies in Postage or Fees, DM140-2008-1
[“Management Instruction”] at 2 (JA0227). By the Service’s logic, any revenue-deficiency
assessment issued by the PCSC that is limited to 12 months when the actual non-compliance
lasts for a longer period of time would constitute the application of “rates to a specific mailer

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other than approved rates” since some portion of the mailer’s non-compliant mailing would skate
by at the improperly discounted rate. For this reason alone, USPS’s position is fatally flawed in
arguing that anything less than a full assessment for the entire period of non-compliance would
be an exercise in off-piste rate-setting. Issuing a revenue-deficiency assessment is thus not an act
of rate-setting, as its own Management Instruction makes clear.
In fact, an abbreviated period was imposed by the PCSC in this case: neither party
disputes the fact that some portion of SCE’s mailings remained non-compliant with the Move
Update standard from at least May 14, 2007, until as late as January 2010. See Def. MTD/MSJ
at 8 (“[SCE] failed to stop manually overriding address updates . . . until January 2010.”);
Compl., ¶ 80 (“SCE stopped manually overriding . . . addresses in January 2010.”). And no
evidence suggests SCE’s non-compliance only began on May 14, 2007. Yet the revenuedeficiency assessment was imposed only for the period between May 14, 2007, and November
26, 2008, see Pl. MSJ at 29, the former date apparently chosen as being twelve months prior to
the discovery of non-compliance, and the latter date selected because “SCE took approximately
seven months to respond to Inspectors [sic] requests for documents.” Investigation
Memorandum (May 26, 2009) at 5 (JA0112). This latter consideration, of course, is one that
bears no relation to the factors identified in the Management Instruction, see Management
Instruction at 2 (“Assessment Criteria”) (JA0227), and provides further evidence that revenuedeficiency assessments involve discretion, not the rote application of rates. Otherwise, the very
assessment USPS here defends would also have to be considered a “new rate” of “discriminatory
pricing,” something USPS alleges results in “manifest injustice.”
Other provisions of the Management Instruction cast further doubt on USPS’s elision of
revenue deficiencies and rate-setting. The Instruction notes that only “for an amount of $500 or

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more” should a revenue deficiency be calculated according to these rules. Id. For lesser
amounts, in contrast, each deficiency is to be reported to a manager or postmaster for follow-up.
See id. The result is that any mailer whose noncompliance amounts to less than $500 in the
difference between the discounted rate and the First Class rate might not have a revenuedeficiency assessment applied, since their deficiencies appear not always to be calculated in
accordance with the Management Instruction. This would constitute “discriminatory pricing” if
such assessments are, as USPS insists, rate-setting exercises. The Instruction also provides
exceptions in the case of “[f]raud or misrepresentation” or where “[m]ailing history discloses
evidence of repeated noncompliance with mailing standards.” Id. If fraud or misrepresentation
can alter the amount of an assessment, then such assessments are not, contra USPS’s assertion,
mere mechanical rate-setting exercises, but rather case-specific, fact-specific, ex post judgments.
In sum, these stated factors are evidence that the revenue-deficiency assessments are imposed
with thought and discretion, suggesting that the act of calculating and imposing a revenuedeficiency assessment is not “impos[ing] a new rate or rule,” as USPS contends. See Mot. at 13.
Given the Management Instruction’s general mailer-specific limits on revenue-deficiency
assessments and permissive view towards the exercise of discretion on the part of the PCSC and
the Postal Service’s fact-specific actual practices with regard to SCE, USPS’s argument that
issuing a revenue-deficiency assessment is an act of rate-setting carries no water. The Court,
consequently, will not reconsider its Opinion as to this issue.
C. Manifest Injustice
USPS’s own practices, moreover, directly contradict the Service’s contentions that “[t]he
PCSC had no authority to . . . waive compliance with Move Update regulations . . . ,” id. at 2,
and that “such a mailer-specific” assessment would “effect a manifest injustice.” Id. at 14. The

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Management Instruction specifically grants the Manager of the PCSC the ability to waive a
revenue-deficiency assessment altogether. See Management Instruction at 9 (JA0234) (“A
revenue deficiency may be waived only by the DFM, Manager of Pricing and Classification
Service Center, or Manger of Mailing Standards, Headquarters.”). Such a waiver would, under
USPS’s own understanding, be a “new rate or rule,” since it would allow one mailer to pay a
different rate from another, resulting in “discriminatory pricing” – if such a waiver were
considered rate-setting. Yet the Management Instruction envisions the precise “manifest
injustice” USPS so strongly condemns, and it expressly allows what USPS here claims is
prohibited: the ability of the PCSC to tailor remedies specifically to the deficiency without
“setting a new rate” in the process. Such discretion flies in the face of claims that mailer-specific
assessments ipso facto constitute manifest injustice.
The Management Instruction, moreover, authorizes settlements between mailers and
USPS for only “a partial payment.” Id. Here, it is helpful to look at how such settlements take
place, for they are the precisely the sort of “retroactive exemptions” and “payment of a
discounted rate” that USPS claims is inherently not “just and reasonable.” Mot. at 14. Because
USPS alleges a real-world-effects parade of horribles should Plaintiff prevail, on this limited
issue, the Court takes note of the Report issued by the Office of Inspector General for USPS,
which states that numerous revenue deficiencies assessed by USPS have in fact “resulted in
settlement agreements,” presumably leading to only partial payments of assessments. See USPS
OIG Audit Report SA-AR-10-001, Move Update Program and Investigations (“OIG Report”) at
2 (May 12, 2010), available at https://www.uspsoig.gov/sites/default/files/document-libraryfiles/2013/SA-AR-10-001.pdf. More remarkably, USPS management’s own position in response
to that report was that “good faith effort,” “specific facts and circumstances unique to the

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mailer’s operations,” and “confidential information” may properly be considered by USPS in
reaching settlements with mailers assessed revenue deficiencies. See id., Appendix F:
Management’s Comments at 32-33. These practices suggest that USPS already encourages and
permits the very practices it alleges would wreak havoc and result in manifest injustice were the
Court’s Order to stand.
Finally, although not germane to the legal outcome of this case, USPS recently proposed
a rule in the Federal Register that casts further doubt on its manifest-injustice claims. See
Address Quality Measurement Alternative, 79 Fed. Reg. 76,930 (Dec. 23, 2014). That proposed
rule seeks to remedy the problem of mailpieces returned UAA due to outdated addresses by
assessing fees against noncompliant mailers only for that portion of mail that is returned as
UAA, not for all mailpieces sent at the discounted rate. The proposed assessment process,
moreover, envisions assessing such fees only on the percentage of mailpieces that exceed a
published “error” threshold for incorrect addressing; in other words, USPS now envisions a
certain low level of noncompliance to be presumptively permissible. “Once the assessment fee
is in place, qualifying mailings will no longer be required to demonstrate or document other
USPS-approved Move Update methods that are being used to update their address list.” Id. at
76,930. It thus appears that the Service itself seeks to assess fees for UAA mailpieces on a
going-forward basis in precisely the manner it states here would lead to manifest injustice –
namely, on an individualized basis for only the small portion of actual noncompliant mailpieces.
While this proffered approach has no legal bearing on whether the PCSC engaged in reasoned
decisionmaking in upholding the revenue-deficiency assessment issued against SCE in 2009, it
further undermines Defendant’s argument that issuing revenue-deficiency assessments that are

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reasonably tailored to the particular circumstances of the mailer in question would necessarily
effect a manifest injustice.
D. Remand
Finally, “should the Court decline to reverse its remand ruling, USPS respectfully
requests that the Court clarify the specific issues in the FAD that the PCSC’s revised decision
should further consider . . . .” Mot. at 22. Although the Court’s Opinion endeavored to be clear
in instructing the PCSC to consider “the source, extent, and significance of [SCE’s]
noncompliance with Move Update standards . . . [to] correctly determine a reasoned and reduced
sum for the proper revenue-deficiency assessment,” S. California Edison, 2015 WL 5730777, at
*12, the Court hopes that identifying a few factors worthy of consideration will be helpful. On
remand, the Court would expect the PCSC to examine the costs incurred by USPS for the RTS
and UAA mailpieces sent by SCE during the relevant time period (estimated at $.506 per
mailpiece. See Investigation Memorandum at 6 (JA0113)). The PCSC might also consider the
differential between the First Class rate appropriate for mailpieces that did not comply with the
Move Update standard (estimated at $0.41 per mailpiece, see id. at 5 (JA0112)) and the lower
bulk-discount rate SCE actually paid for those mailpieces (a price the Court could not discern
from the record). These should provide a reasonable starting point for a proper assessment.
In addition, the Management Instruction permits the Postal Service to “look back no more
than 12 months before the date the deficiency was discovered” in assessing a revenue deficiency.
See Management Instruction at 2. While USPS has elsewhere claimed that where “[m]ailing
history discloses evidence of repeated noncompliance with mailing standards,” id., it can bypass
the 12-month limit, SCE’s taking “approximately seven months to respond to Inspectors[’]
requests for documents,” see Investigative Memorandum at 5 (JA0112), falls far short of

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“evidence of repeated noncompliance.” At most, the PCSC should consider a revised revenue
deficiency for only the period looking back up to twelve months from May 2008, when “the
deficiency was discovered.” Id. at 4 (JA0111).
IV.

Conclusion
As Defendant has fallen short of the high Rule 59(e) standard for altering the judgment,

the Court will deny its Motion. An Order to that effect will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: January 14, 2016

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