to promptly notify its thousands of facilities and customers. If a preliminary injunction were to issue now and the rates now in place were later held to be lawful and were reinstated, further confusion would be created. In addition, it is doubtful whether the excessive rates paid in the interim could be recovered by the mailers. 39 U.S.C. § 3681.
25. Intervenors Advo, Donnelley, and the members of MOAA would be required to pay higher bulk third-class mail rates for carrier route presorted mail if an injunction were to issue now. As a result, customers would cancel their mailing orders, reducing revenues for these intervenors and for the Postal Service. Affidavit of Vincent Giuliano.
26. Sudden repeated changes in rates for third-class bulk mail would shake the confidence of mailers in the Postal Service and would undermine their willingness to use it.
CONCLUSION OF LAW
1. Plaintiffs have failed to meet the requirements for granting injunctive relief under Virginia Petroleum Jobbers Association v. Federal Power Commission, 104 U.S.App.D.C. 106, 259 F.2d 921 (1958), and Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 182 U.S.App.D.C. 220, 559 F.2d 841 (1977).
2. Plaintiffs have made no showing of likelihood of success on the merits:
(a) Section 3628 of title 39, United States Code, creates exclusive jurisdiction in any United States Court of Appeals to review decisions of the Governors of the United States Postal Service acting on recommended decisions of the Postal Rate Commission pursuant to the provisions of Chapter 36, title 39, United States Code. Plaintiffs' second and fifth claims for relief are grounded in allegations that the Governors' decision of March 10, 1981, was unlawful. Pursuant to section 3628, this court lacks jurisdiction with regard to these aspects of plaintiffs' action. Other grounds of plaintiffs' complaint appear to be intertwined with issues involving allegations of illegality of the Governors' decision, creating uncertainty whether this court has jurisdiction over the matter. See Reader's Digest Association, Inc. v. United States Postal Service, 501 F. Supp. 126 (D.D.C.1980), appeal docketed, No. 80-2300 (D.C.Cir., filed Oct. 22, 1980).
(b) Section 3641(a) of title 39, United States Code, empowers the Postal Service to implement rates of postage on a temporary basis in any case in which the Postal Rate Commission fails to transmit to the Governors, within ten months of a request by the Postal Service pursuant to 39 U.S.C. § 3622, a recommended decision on a change in rates of postage. Section 202(a) of title 39 provides that the Board of Governors directs the exercise of the power of the Postal Service. Since the Recommended Decision of the Postal Rate Commission in Docket No. R80-1 did not include a recommendation of rates for bulk third-class mail under its existing classification, the Board of Governors acted within its authority on March 10, 1981, in deciding to implement temporary rates for bulk third-class mail on March 22, 1981. The Board of Governors' action complied with the notice provision set forth in 39 U.S.C. § 3641(a).
(c) Plaintiffs have failed to demonstrate that the temporary rates implemented by the Board of Governors are not in accordance with the specific provisions of section 3641 or with the policies of title 39, United States Code.
3. Plaintiffs have made no showing of irreparable injury.
(a) Plaintiffs' allegations of harm do not take into account the costs of mailer preparation that would have to be incurred by advertisers who might choose to use the Postal Service rather than plaintiffs' delivery services. In light of this omission, there can be little confidence in plaintiffs' speculation that business will be diverted from them to the Postal Service as a result of lower postage rates alone.
(b) Plaintiffs' allegations of harm focus on only a limited segment of the temporary bulk third-class mail rates. Other segments of those rates are higher than plaintiffs' rates.
(c) Plaintiffs' allegations of harm are based on the assumption that any gain in business to the Postal Service as a result of the temporary rates will be a loss of business to plaintiffs. In light of alternative types of advertising media, that assumption has not been proven.
(d) Plaintiffs have not demonstrated that any loss of business they might experience as a result of the Postal Service's temporary rates would be irreparable.
4. The balance of equities favors the defendants and intervenors in this proceeding. The possible benefit to plaintiffs from the relief requested is substantially outweighed by the burden that would be imposed on the defendants and the intervenors. In particular, restraining application of the temporary rates would result in substantial loss of business and substantial increases in postage costs to third-class mailer intervenors. Section 3681, title 39, United States Code, prevents mailers from being reimbursed for amounts paid under any permanent rate subsequently found to be unlawful in a review pursuant to 39 U.S.C. § 3628. The Postal Service would also be caused substantial harm in the form of administrative expense, operational disruption, and lost revenues if the requested relief were to be granted. Much of this harm would be irreparable. Finally, in light of plaintiffs' failure to participate in proceedings before the Postal Rate Commission in Docket No. R80-1 and the timing of the filing of this action, the balance of equities favors defendants and intervenors.
5. With reference to the public interest, the public has a definite interest in orderly, consistent postal rates. Changing the status quo now would result in chaos and confusion. The public also has an interest in the integrity of the Congressionally-designed mechanism for making postal rate and classification changes, as embodied in Chapter 36 of title 39, United States Code.
An order consistent with the foregoing has been entered this day.
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