The matter came before the Court on the parties' cross-motions for summary judgment. On October 17, 1988, the Court granted judgment in favor of the Service. As further explained herein, the Court concluded that the Unions do not enjoy standing to challenge the Service's decision in this matter, and further, that the Service's decision did not violate the APA.
The Service contends that the Unions lack standing because they have not been able to show an actual or threatened injury to their membership, and because they are not within the "zone of interests" that the PES are designed to protect. This Court disagrees that the Unions have not shown a sufficient actual or threatened injury, but agrees with the Service that the Unions are not within the "zone of interest" that the PES are designed to protect.
An essential element of standing in an Article III court, whether suit has been brought to review agency action or otherwise, is that the plaintiff must be capable of showing actual or threatened injury. Warth v. Seldin, 422 U.S. 490, 498, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975). The Service contends that the Unions have made no such showing here, in that they have offered no proof that their respective memberships have lost jobs or been expressly threatened with the loss of jobs.
The Service is correct; the Unions have made no such showing. However, the Unions have not attempted to make such a showing. Instead, the Unions allege that the decision to permit private international remailing, with its attendant loss of revenue to the Service, inflicts harm upon its membership through the loss of "employment opportunities." Compl. at para. 16. The Unions reason that, even if no jobs are directly lost, the relinquishment of international remailing to the private sector reduces the current membership's opportunity to engage in international remailing, and thereby reduces the membership's opportunity to obtain "work time, overtime, employment opportunities, future benefits and . . . morale." Pl. Mem. at 8 (quoting National Association of Letter Carriers, AFL-CIO v. Independent Postal System of America, 470 F.2d 265, 270 (10th Cir. 1972)).
The Court agrees with the Unions that the reasonable prospect of reduced employment opportunities, even if no specific loss currently can be shown, satisfies the "threatened injury" requirement of standing. There is authority from the Tenth Circuit for this finding in a context virtually identical to that presented here. See American Postal Workers Union, AFL-CIO v. React Postal Services, 771 F.2d 1375, 1380 (10th Cir. 1985) (whenever private entity permitted to perform postal functions contrary to the PES, the "employment opportunities of the postal workers are inevitably reduced"); National Association of Letter Carriers, AFL-CIO, supra, 470 F.2d at 270 (injury in fact due to "significant" loss of employment opportunity where PES not complied with). This conclusion is further consistent with authority in this Circuit arising in slightly different contexts. See, e.g., Intern'l Union of Bricklayers v. Meese, 245 U.S. App. D.C. 395, 761 F.2d 798, 802 (D.C. Cir. 1985) (union had standing because guidelines allowing aliens to enter workforce would interfere with jobs which "would otherwise likely go to union members"); Autolog Corp. v. Regan, 235 U.S. App. D.C. 178, 731 F.2d 25, 31 (D.C. Cir. 1984) (alleged loss of "employment opportunity," though no loss of present jobs shown, sufficient to confer standing); National Treasury Employees Union v. Horner, 659 F. Supp. 8, 12 (D.D.C. 1986) (union had standing where agency action would permit outside competition with membership)
However, the Court disagrees with the Union on the question of whether the interests asserted here fall within the "zone of interest" implicated by the PES. In Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 93 L. Ed. 2d 757, 107 S. Ct. 750 (1987), the Supreme Court expanded upon its prior holdings that, in addition to the constitutional requirement of injury in fact, a plaintiff seeking review of agency action under 5 U.S.C. § 702 must show that he or she falls within the "zone of interests" protected by the statute at issue. This additional requirement, termed a "gloss on the meaning of § 702," 107 S. Ct. at 758 n. l6, serves as "a guide for deciding whether, in view of Congress' evident intent to make agency action reviewable, a particular plaintiff should be heard to complain of a particular agency decision." 107 S. Ct. at 757. In situations such as this, where the plaintiff is not the object of the agency action, but instead complains of the indirect consequences of that action, the test "denies a right of review if the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit." Id.
Here, the avowed interests of the Unions' respective memberships -- the retention of employment opportunities -- simply bear no reasonable relationship to the purposes of the PES. The PES monopoly was designed to ensure only that the Service maintains sufficient revenue to be able to provide efficient and effective mail delivery services to all aspects of the market. The Service retains the express authority to suspend that monopoly when the public interest requires such a suspension. There is simply no evidence that the PES was intended to provide, even indirectly, job security for Service employees, or that job security for Service employees furthers in any way the purposes of the PES. The interests asserted by the Unions simply bear no relation to the purposes and policies implicit in the PES -- indeed, they might well diverge in certain situations
-- and it is therefore reasonable to assume that Congress did not intend for Service employees to enjoy the right to review the Service's decisions with respect to the PES.
The Unions' position, in essence, fails to distinguish between the harm required to establish injury -- essentially a quantitative determination -- and the harm required to bring a plaintiff within the "zone of interest" test -- essentially a qualitative determination. Alternatively, the distinction can be seen as one between a "zone of interest" and a "zone of consequence." Judge Wilkey's opinion in Tax Analysts & Advocates v. Blumenthal, 184 U.S. App. D.C. 238, 566 F.2d 130, 144-45 (D.C. Cir. 1977), is helpful in this regard. There, Judge Wilkey excluded from the "zone of interest" of a provision of the Internal Revenue Code a person whose competitive position had been injured by the IRS's interpretation of the statute.
Judge Wilkey wrote, in an analysis that is quite apposite here:
Every decision by a government agency generates consequences and various forms of impact on a wide range of valid interests held by a diverse range of parties. There is no doubt that the decisions embodied in the challenged revenue rulings have had an impact on [appellant]. But the concepts of consequence and impact are not the proper guideposts to define the relevant zone of interests; reference to these concepts does not aid greatly in determining whether a protected interest exists, but rather serve as part of the vocabulary in defining the relationship between an alleged injury and an asserted interest.
Thus, consequences and forms of impact do play an important role in the law of standing; these concepts are relevant in determining whether there has been injury in fact. . . . We cannot define the zone of interests as being the equivalent in every case of the "zone of impact" or the "zone of consequences." To do so would establish a standing doctrine based solely on the existence of harm to a party.