UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
October 3, 1980
SOCIETY FOR CRIPPLED CHILDREN AND ADULTS
UNITED STATES POSTAL SERVICE, APPELLANT POSTAL RATE COMMISSION, ET AL .; ASSOCIATED THIRD CLASS MAIL
CRIPPLED CHILDREN AND ADULTS
UNITED STATES POSTAL SERVICE POSTAL RATE
Before BAZELON, Senior Circuit Judge, and ROBINSON and MacKINNON, Circuit Judges. Opinion PER CURIAM.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
ASSOCIATED THIRD CLASS MAIL USERS, NATIONAL EASTER SEAL
USERS, NATIONAL EASTER SEAL SOCIETY FOR
COMMISSION, et al., APPELLANTS
Nos. 75-2227, 75-2228
October 3, 1980 1980.CDC.238
PER CURIAM DECISION
This litigation returns to us on remand by the Supreme Court *fn1 for reconsideration of our prior decision. *fn2 The occasion for the remand was the adoption of new procedures by the Board of Governors of the United States Postal Service relating to changes in postal rates. *fn3 Perceiving no basis upon which relief may now be appropriately granted, we remand the case to the District Court for disposition accordingly. I
The relevant events may be briefly summarized. *fn4 In 1975, by direction by the Board, the Postal Service requested a recommended decision by the Postal Rate Commission on proposals for new postage rates. *fn5 Thereafter, the Postal Service gave notice that it would effectuate temporary rate increases on a designated future date if the Commission's decision did not come forth by then. *fn6 Associated Third Class Mail Users then brought an action in the District Court to block the temporary increases. ATCMU argued centrally that the Postal Service's request was procedurally defective because, at the time of the Board's approval it did not have the specific rates before it, as allegedly was required by the Board's bylaws, and that temporary charges based upon that request could not legally be implemented. *fn7
The District Court agreed with ATCMU and enjoined operation of the temporary rates until such time as a valid request might be sent to the Commission. *fn8 However, we stayed the injunction, *fn9 and the temporary charges thus went into effect. Later, utilizing procedures unquestionably lawful, the Board authorized resubmission of the request and, that being done, the injunction expired by its own terms. Some months thereafter, the Commission announced its recommended decision, whereupon the Postal Service made the changes permanent.
Subsequently, we issued our decision affirming the District Court's injunction, essentially on the theory advanced by ATCMU. *fn10 The Postal Service petitioned for rehearing and suggested rehearing en banc; those efforts failing, *fn11 it sought a writ of certiorari from the Supreme Court. Meanwhile, and after rendition of our decision, the Board commenced rulemaking proceedings which culminated in revision of the operating procedures found violated. As amended, the Board's bylaws now provide:
The following matters are reserved for decision by the Board of Governors: ...
(h) Authorization of the Postal Service to request the Postal Rate Commission to submit a recommended decision on changes in postal rates, including specific authorization of the amount of revenue estimated to be required so that total estimated income and appropriations will equal total estimated costs as nearly as practicable. *fn12
With that, the Supreme Court granted certiorari, vacated our judgment and remanded the case for our "further consideration in light of the ... amended provisions of the Board of Governors' internal operating procedures." *fn13 II
The question initially confronting us is whether the litigation became moot when the Board of Governors adopted this provision. As a federal court we may decide only an actual case or controversy; *fn14 in every instance, we must be presented with a "definite and concrete" problem that "touch(es) the legal relations of parties having adverse legal interests." *fn15 So, when the subject of previous dispute has disappeared, we normally lose jurisdiction to act. *fn16 That, we find, is largely the situation here.
When this case was first before us, we examined it to determine whether even then it was moot. As we have indicated, after the District Court held the temporary increases invalid the Board concluded a detailed review of the sought-after rates and submitted a new request therefor to the Commission. *fn17 Additionally, the District Court's injunction-the object of the Postal Service's appeal-automatically expired upon that resubmission. *fn18 There are, however, exceptions to the mootness doctrine, and we refused to dismiss the appeal as moot for two well established reasons. In the first place, although the Postal Service had conformed its ratemaking effort to the District Court's directives, *fn19 we saw its corrective action as merely a response thereto under protest and in expectation of appeal. *fn20 For that reason, we adhered to the principle that " "voluntary cessation of alleged illegal conduct does not deprive the tribunal of power to hear and determine the case, i. e., does not make the case moot.' " *fn21 We realized, too, that with ATCMU's continuing interest in lawful charges, and the Postal Service's insistence that the District Court's order was erroneous, there was " "a reasonable expectation that the same complaining party (will) be subjected to the same action again.' " *fn22 That, coupled with the short-lived nature of the District Court's injunction, we held, brought the case within the mootness exception for conduct " "capable of repetition, yet evading review.' " *fn23
These conditions no longer obtain. By amendment of its bylaws, the Board has now modified its operating procedures to legitimatize the rate-requesting methodology found improper under the prior bylaws. The current bylaws make it ever so plain that the particular rates to be requested need not be brought before the Board. *fn24 Thus repetition of the challenged conduct could not afford ground for relief, and the mootness exceptions previously applicable are now unavailing. *fn25
ATCMU urges, however, that a controversy continues over restitution of postal charges to the extent that for a while they were excessive. It will be recalled that the District Court's injunction, which would have restrained implementation of the temporary rates and fees, was stayed pending appeal. *fn26 Resultantly, for a short period *fn27 mail users incurred postage expense higher than they would have encountered had the injunction-which we ultimately affirmed-remained in effect. On the original appeal, ATCMU asserted a claim for restitution on this ground, but neither in our opinion nor our judgment did we honor it.
We are unable to reconsider the question now. ATCMU did not seek rehearing by this court or review by the Supreme Court on the restitution issue, and of course no question concerning it was raised in the Postal Service's petition for certiorari. *fn28 It is well-settled that on an adversary's appeal a party may not challenge or seek to enlarge a judgment to which he did not himself object. *fn29 It follows that ATCMU cannot resurrect the restitution issue on the remand precipitated by the Postal Service. III
There is, however, a final point remaining alive. When this case was last before us, we expressly reserved the question whether-aside from the Board's bylaws-the Postal Act itself "mandate(d) the Board's thorough involvement in the process of submitting rate requests";30 there was no need to reach the issue, we found, because the Board had in any event violated its internal operating procedures.31 Since those procedures have now dropped out of the case, we must determine whether by statutory command a request for particular rates need be brought before the Board.
It is true that we noted, during our first exposure to this litigation, that "it is the Board "which exercises the power of the Postal Service to set temporary rates.' "32 That does not mean, however, that a repetition of the challenged conduct would run afoul of the statute. Congress UNAMBIGUOUSLY DECLARED THAT "THE POSTAL service shall request the postal rate Commission to submit a recommended decision in a rate or rates of postage or in a fee or fees for postal service ...."33 That, of course, was precisely the action taken by the Postal Service and attacked by ATCMU in round one of this litigation.34 And while the Act also requires that "exercise of the power of the Postal Service shall be directed by (the) Board of Governors,"35 this legislative mandate was, again, met in the instant case: the Board authorized the Service to submit what proved to be its controversial request for rate increases.36 Equally telling, the Act, unlike the Board's old bylaws, does not suggest that the Board must approve in advance the particular rates or fees to be requested. There is, then, no potential statutory violation to justify injunctive relief, and no statutory reed to which ATCMU may cling in its attempt to keep this Methuselahan litigation alive any longer.
For the reasons stated, we remand this case to the District Court for vacatur of its judgment37 and dismissal of ATCMU's action as moot.