From this analysis it is obvious that the Board, and they alone, retain the authority to request recommended decisions from the Rate Commission. There is nothing in either the statute or the Board's rules which relieves it of this responsibility.
This being the case, the critical question is whether the Board made a proper, valid, and considered request of the Rate Commission in its submission of September 18, 1975.
Plaintiff contends that the presentation made to the Board by the postal management on September 4, 1975, was so vague that the Board could not reasonably exercise an informed judgment concerning the proposed size and allocation of the proposed rate increase. Defendant simply responds that the presentation was sufficient to satisfy the statutory requirements.
It is uncontested, as stated in defendant's statement of material facts as to which there is no genuine issue, that the specific proposed increases for the various classes of mail were not submitted to the Board at that presentation. Also, it is clear that the supporting data and documentation for the proposed increases was not before the Board; that it was not complete and that "significant adjustments" would have to be made in that portion already prepared to bring the filing into line with the guidelines announced by the Rate Commission in its opinion of August 28, 1975 (issued only seven days prior to the meeting of the Board), particularly in regard to cost attributions to the several categories of mail. What was placed before the Board was a "general outline of what postal management considered to be appropriate adjustments to the various postal rates" and the "general magnitude of increases in revenue which management deemed necessary and appropriate for each of the principal categories of mail" (Defendants' Statement of Material Facts As To Which There Is No Genuine Issue, pp. 3, 4 emphasis added). On oral argument, counsel for defendants confirmed that this is an accurate representation of the presentation made to the Board on September 4, 1975.
What the Board approved then was a "request" based upon a presentation of what the postal management considered "necessary and appropriate" without specific proposed rates and absent the supporting data which would be submitted to the Rate Commission upon completion.
It is the opinion of this Court that, in order for the Board to make a valid request under § 3622 of the Act, the Board must have before it for its consideration at the time it approves the request, the specific rates and fees to be requested, together with supporting data and documentation. To find otherwise would be to permit the Board to evade its statutory duty under the Act.
At several points in the Act, Congress reiterates the postal policy and the obligation of the Governors to assure that postal rates will be established on a "fair and equitable" basis and in the "public interest." (See §§ 101(d), 403(a) and (c), 3621, and 3622.) More specifically, Congress states in Section 3622 that ". . . the Postal Service shall request the Postal Rate Commission to submit a recommended decision on a change in a rate or rates of postage . . . if the Postal Service determines that such changes would be (1) in the public interest and (2) in accordance with the policies of this title." (39 U.S.C. § 3622, emphasis added).
Clearly, "request," as used in this statute demands that the Board make a determination, an informed decision, as to whether the proposed rate or rates are (1) in the public interest and (2) in accordance with the policies of the Act, specifically with § 101(d) of the "Postal Policy," which requires that "postal rates be established . . . on a fair and equitable basis."
It would be ludicrous to think that the Board could make an intelligent, informed determination of whether the proposed rates are fair and equitable and in the public interest without having before it information as to the specific rates to be requested for each category of mail, together with their supporting data.
To hold, as defendant suggests, that it is sufficient for the Board to review and approve the "general magnitude" of increases or the "general outline" of what postal management considers to be appropriate adjustments for a request to be valid, would be to free the Board of a decision which it is statutorily obliged to make. And it is a settled principle of Administrative Law that "those legally responsible for a decision must in fact make it, . . ." KFC National Management Corp. v. N.L.R.B., 497 F.2d 298, 304 (2d Cir. 1974).
Since, in the opinion of this Court, it is necessary for the Board to have the specific proposed rates before it together with supporting data when approving a request for a recommended decision of the Rate Commission, and since these items were not before the Board when it approved the request on September 4, 1975, the request submitted September 18, 1975, which is presently before the Rate Commission is invalid and may not properly be considered by the Rate Commission.
This having been decided, it is necessary to turn to the question of the legality of the temporary rates presently scheduled to take effect on December 28, 1975.
Section 3641 of the Act gives the Postal Service the power to place new, temporary rates into effect pending Rate Commission action on a request for new permanent rates:
§ 3641. Temporary changes in rates and classes
(a) If the Postal Rate Commission does not transmit to the Governors within 90 days after the Postal Service has submitted . . . to the Commission a request for a recommended decision on a change in rates of postage, . . . the Postal Service, upon 10 days' notice in the Federal Register, may place into effect temporary changes in rates of postage . . . it considers appropriate to carry out the provisions of this title.