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August 29, 1986

HAROLD JOHNSON O'BRIEN, doing business as, House and Senate Delivery Service, Defendant

The opinion of the court was delivered by: PENN

 Plaintiff brings this suit to permanently enjoin the defendant from delivering letters in violation of the Private Express Statutes and the United States Postal Service Regulations. 39 U.S.C. §§ 601-606, 18 U.S.C. §§ 1693-1699. 39 C.F.R. §§ 310, 320. Both parties have filed motions for summary judgment and plaintiff also moves to dismiss defendant's counterclaim. The gist of defendant's counterclaim alleges that plaintiff, without authority, is unlawfully and unconstitutionally utilizing the postal statutes to abrogate the defendant's rights and livelihood. After consideration of the motions, the oppositions thereto, and the record in this case, the Court concludes that the defendant's motion should be denied and the plaintiff's motion should be granted. Therefore, the Court will enjoin the defendant from continuing his delivery service in such a manner that violates the postal laws. This holding, however, does not interfere with the defendant's delivery service insofar as such enterprise conforms to the requisite restrictions.


 The Private Express Statutes essentially prohibit the delivery of letters by private entities across postal service routes without United States postage, and for compensation, unless the action falls within a limited range of exceptions. Most courier services operate under the suspension of the Private Express laws for extremely urgent letters. 39 C.F.R. § 320.6. Generally speaking, this suspension allows carriers to deliver letters if (1) the material arrives at the destination within a short period of time and would lose its value if not so delivered, or (2) there is a specified minimum charge for delivery. Clauson's Declaration para. 8. Although defendant's principal dispute appears to be that the Private Express Statutes are unconstitutional, he argues in the alternative that his activities comport with the suspension requirements. Defendant's Memorandum in Support of Cross-Motion for Summary Judgment (DSJ) at 4-5. Based on the record, and a reading of the regulations, the Court cannot agree.


 Defendant operates a courier service for profit, called House and Senate Delivery Service, whereby he delivers printed matter to Congressional offices in Washington, D.C. The letters delivered do not bear United States postage. Instead, defendant charges five cents per ounce for letters not individually addressed and twelve cents per ounce for those that are individually addressed. Defendant's Statement of Facts Not in Dispute (DSFND) para. 4. Defendant maintains that his service provides ready access for the public to the lawmakers through a low cost, efficient mail delivery service which, in his opinion, is superior to plaintiff's, costs less, and thereby provides a "benefit to the people". Answer, 3rd Defense, Exhibits A, B. Defendant sorts the materials to be delivered at 1026 6th Street, N.W., Washington, D.C., and transfers them to Capitol Hill the following day. Downs' Declaration (April 11th) para. 8, O'Brien's Declaration para. 2. As a result of his location, plaintiff concludes that defendant must, by necessity, cross United States postal routes when delivering letters to Capitol Hill.

 It is uncontroverted that the defendant carries his delivery material in envelopes marked "extremely urgent". Additionally, by his own words, he does his best to have letters delivered by 10:00 a.m. of the addressee's next business day. O'Brien's Declaration para. 4. A thorough reading of the regulations, however, reveals that more than these two requirements is necessary for compliance. *fn2"


 The facts of this case do not suggest that the parties are arguing the applicability of the suspension portion which conclusively presumes that a letter is extremely urgent, if the amount paid for private carriage is at least three dollars or twice the applicable United States postage for First-Class Mail, whichever is greater. 39 C.F.R. § 320.6(c). Instead, the regulation relevant to delivery within a short time frame is applicable. "The suspension is available only if the value or usefulness of the letter would be lost or greatly diminished if it is not delivered within these time limits. For any part of a shipment of letters to qualify under this paragraph (b), each of the letters must be urgent." 39 C.F.R. § 320.6(b)(1) (emphasis added by the Court). Therefore, defendant in this case is violating the terms of the suspension if any portion of his delivery materials is not extremely urgent, as that term is defined by the Postal Service.

 Defendant contends that plaintiff has utterly failed to demonstrate that he does not deliver extremely urgent items even though it is arguable that, at times, he may have delivered non-urgent material. Defendant's Reply at 4. Further, he admits that the material he delivers varies widely, although the majority is material that his clients need to have delivered quickly. O'Brien's Declaration para. 3. Defendant's averments miss the point. That the defendant sometimes delivers extremely urgent material is not a material fact in dispute. The dispositive issue is whether defendant has ever delivered non-urgent materials and thereby does not comply with the suspension guidelines. Stamping the envelope "extremely urgent" does not conclusively prove that the letters inside are urgent under the Postal Service standards. Nor does the fact that some clients consider their letters urgent, ipso facto exculpate defendant. Such sophistical reasoning does not sufficiently controvert plaintiff's evidence which on its face affirms that non-urgent material is delivered.

 Since the defendant has delivered letters which do not comport with the Postal Service's definition of extremely urgent, plaintiff's motion, seeking to enjoin defendant from such activity is justified. *fn3" After resolving this issue, the Court must address defendant's allegation of selective prosecution and unconstitutionality.


 Defendant advances three additional rationales to set aside this action: (1) The Private Express Statutes are unconstitutional in general; (2) they are unconstitutional as applied to defendant because they unlawfully burden the right of clients to petition the Congress for redress of grievances; (3) this suit was instigated in an attempt to punish defendant for ...

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