that the Postal Service's decision is reviewable. Not only was no written opinion issued in this case, but it arose long before passage of the Postal Reorganization Act, and the Postmaster General was dismissed as a party. In short, it is of no relevance to the issues raised in this case.
Accordingly, this Court holds that the Postal Service's decision to sell a limited number of Pickett Error Sheets is not judicially reviewable, and, for that reason, Plaintiffs' Complaint must be dismissed for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
B. Plaintiffs Have No Private Right of Action Against Defendants To Challenge the Distribution of the Error Sheets
In their Opposition to Defendants' Motion to Dismiss, or, in the Alternative, for Summary Judgment, Plaintiffs fail to even address, let alone challenge, Defendants' argument that Plaintiffs have no private right of action to challenge the Postal Service decision to release 150,000 additional Pickett Error Sheets. Instead, without any legal basis whatsoever, Plaintiffs argue that they have a cause of action based on "modern business management and business practice." Plaintiffs' Opposition at 21. Plaintiffs fail to demonstrate that Congress intended to create any private right of action in the Postal Reorganization Act, Pub. L. No. 91-375, 84 Stat. 719 (1970), and fail to cite any statutes or legislative history in support of their argument.
In enacting the Postal Reorganization Act, Congress sought to create a business-like entity free from the "serious handicaps that are now imposed on the postal service by certain legislative, budgetary, financial, and personnel policies that are outmoded, unnecessary, and inconsistent with the modern management and business practices that must be available if the American public is to enjoy efficient and economical postal service." H.R. Rep. No. 91-1104, 91st Cong. 2d Sess. at 2. As the Supreme Court has stated, Congress "wished the Postal Service to be run more like a business than had its predecessor, the Post Office Department." Franchise Tax Board of California v. United States Postal Service, 467 U.S. 512, 519-20, 81 L. Ed. 2d 446, 104 S. Ct. 2549 (1984). Congress anticipated that the reorganized postal system would function "with a greater degree of efficiency if it is removed from the ordinary channels, administrative controls, and legislative restrictions of other agencies in the executive branch." National Easter Seal Society for Crippled Children and Adults v. United States Postal Service, supra, 656 F.2d at 767 (quoting 116 Cong. Rec. 21, 709 (remarks of Sen. McGee)). Accordingly, to foster the efficiency of the redesigned Postal Service, Congress explicitly exempted it from, inter alia, the Administrative Procedure Act. National Easter Seal, 656 F.2d at 766.
In Cort v. Ash, 422 U.S. 66, 78, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975), the Supreme Court held that in order to determine whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. These factors are: (1) whether the statute was enacted to benefit the Plaintiff; (2) whether there is evidence of legislative intent to create or deny such a right, explicitly or implicitly; (3) whether implying such a right is consistent with the overall purpose of the legislation; and (4) whether the alleged cause of action is in an area traditionally relegated to state law, so that it would be inappropriate to infer a cause of action based solely on federal law.
Only the first three Cort v. Ash factors are relevant in the instant case since Plaintiffs do not deny that postal matters have always been a federal concern. See, e.g., Tedesco v. U.S. Postal Service, supra, 553 F. Supp. at 1389. Analysis of these three factors compels the conclusion that Congress did not intend to create a private cause of action to challenge the Postal Service's handling of the Pickett Error Sheets.
Looking at the first factor under Cort v. Ash, there is absolutely no hint in the legislative history that either the Postal Reorganization Act or the regulations promulgated under it were intended to benefit individuals such as Plaintiffs, that is, the category of stamp investors. Rather, Congress intended to benefit the users of the U.S. mail by providing improved postal service. Tedesco, supra, 553 F. Supp. at 1389. Thus, Cort's first criteria for determining whether Congress intended to create a private right of action is not satisfied.
Second, there is no evidence of Congressional intent to confer a right or remedy on third parties such as Plaintiffs. As the Unicover, court pointed out, the provisions in the Domestic Mail Manual Transition Book ("DMMT") -- which include the regulations at issue in this case -- are internal instructions and are not intended to confer any substantive rights upon Plaintiffs. Unicover, supra, 859 F. Supp. at 1444. The Court explained that the DMMT:
generally consists of matters committed to the discretion of the Postal Service . . . There is no indication from the language of the regulations, or from the Postal Reorganization Act that the regulations were created or intended to especially benefit any persons.
Therefore, the Court concluded that the regulations upon which Plaintiffs premised their cause of action did not create a private cause of action in third parties. Id.
Third, implying a private cause of action under the Postal Service Regulations and statutory provisions relevant to this case would undermine, rather than be consistent with, the overall purpose of the Postal Reorganization Act. As explained above, the purpose of the statutory reorganization of the Postal Service was "to permit the Postal Service to operate like a business and to respond with flexibility and imagination to the task of moving the mail." Tedesco, supra, 553 F. Supp. at 1391. "If this goal is to be effectuated, the courts must permit the Postal Service to Act like a business, without subjecting routine decisions to the cost and delay of judicial interference." Id. Accordingly, to read a private cause of action into these regulations promulgated as internal operating procedures would be directly contrary to what Congress was trying to accomplish by enacting the Postal Reorganization Act. Id.
In sum, none of the criteria set forth in Cort v. Ash are met in this case and, therefore, the Court concludes that Plaintiffs have no private cause of action to challenge the Postal Service's decision to release additional Pickett Error Sheets.
C. Plaintiffs Have Failed to State a Claim for Deprivation of Property
Plaintiffs contend that the Defendants have violated their Constitutional rights because the Postal Service's sale of 150,000 additional Pickett Error Sheets will diminish the value of those sheets they now own, resulting in a violation of the Fifth Amendment Takings Clause. Assuming, as the Court must for purposes of a Motion to Dismiss, that the value of Plaintiffs' stamps will decrease, Plaintiffs' argument fails in light of the "long established" principle that "mere diminution in the value of property, however serious, is insufficient to demonstrate a taking" under the Fifth Amendment. Concrete Pipe & Products of California v. Construction Laborers Pension Trust, 124 L. Ed. 2d 539, 113 S. Ct. 2264, 2291 (1993) (citing Euclid v. Ambler Realty Co., 272 U.S. 365, 384, 71 L. Ed. 303, 47 S. Ct. 114 (1926) (approximately 75% diminution in value); Hadacheck v. Sebastian, 239 U.S. 394, 405, 60 L. Ed. 348, 36 S. Ct. 143 (1915) (92.5% diminution)).
While conceding that a mere diminution in value is insufficient to establish an unconstitutional taking, Plaintiffs claim, with no citation of authority, that diminution in value is merely one of "several factors" that must be considered. Plaintiffs' Opposition at 31. Unfortunately, Plaintiffs fail to set forth any "other factors" relevant to this case. Indeed, they cannot. None of Plaintiffs' rights of ownership or possession have been affected or curtailed. Plaintiffs are still able to do as they please with their stamp sheets -- they may keep them, give them away, frame them, burn them, recycle them, trade them in for other stamps -- or use them.
Thus, the only impact of Defendants' actions which Plaintiffs can identify is a diminution in the value of their stamps, which the Supreme Court has held is insufficient to constitute a taking cognizable under the Fifth Amendment. Concrete Pipe & Products, supra, 113 S. Ct. at 2291.
Furthermore, Plaintiffs' potential loss from the distribution of the Error Sheets pales in comparison to that experienced by the plaintiffs in Andrus v. Allard, 444 U.S. 51, 100 S. Ct. 318, 62 L. Ed. 2d 210 (1979), who also failed to state a constitutional claim under the Fifth Amendment. In Andrus, the plaintiffs were traders and appraisers of Native American artifacts. They challenged the constitutionality under the Fifth Amendment Takings Clause of federal regulations criminalizing the trade in eagle feathers. Even though the regulations, promulgated under the Eagle Protection Act, totally eliminated plaintiffs' ability to sell feathers they owned and had obtained from eagles which had been legally killed prior to the passage of the Act, the Supreme Court upheld the prohibition. Id. at 67 - 68. The Court concluded that, because Plaintiffs were left with the rights to possess, transport, donate, and devise the birds and bird parts, there was no surrender or physical invasion of their property, and thus there was no "taking," even though Plaintiffs arguably lost their entire ability to trade in these artifacts. Id. at 66. The plaintiffs in Andrus lost significant commercial use of their property -- and no Fifth Amendment violation was found. Here, Plaintiffs will suffer far less -- at most a loss in the value of their stamps when Defendants distribute the additional Pickett Error Sheets.
Similarly, in Concrete Pipe, supra, the Supreme Court held that no "taking" occurred when plaintiff companies alleged that application of the withdrawal liability provisions of the Multiemployer Pension Plan Amendments Act of 1980 would require the payment of 46% of their shareholder equity. The Court recognized that, even if 46% of plaintiffs' net worth had to be paid out in pension benefits, the government action imposing the penalty did not constitute a regulatory taking because it did not involve physical invasion or occupancy, but rather merely adjusted the benefits and burdens of economic life.
Accordingly, for the reasons stated above, the Court concludes that Plaintiffs have failed to state a claim under the Takings Clause of the Fifth Amendment.
D. Plaintiffs' Promissory Estoppel Claim Must Be Dismissed For Failure to State a Claim
Finally, Plaintiffs claim that Defendants are liable to them under a theory of promissory estoppel. The facts alleged by Plaintiffs, however, fail to state such a claim, and, accordingly, such claim must be dismissed under Federal Rule of Civil Procedure 12(b)(6)
Initially, it most be noted that promissory estoppel does not apply against the federal government to the same extent that it may be applied to the private sector. See McCauley v. Thygerson, 235 U.S. App. D.C. 376, 732 F.2d 978, 980-81 (D.C. Cir. 1984) (citing Kizas v. Webster, 227 U.S. App. D.C. 327, 707 F.2d 524, 535 (D.C. Cir. 1983) ("Courts have consistently refused to give effect to government-fostered expectations that, had they arisen in the private sector, might well have formed the basis for a contract or an estoppel"); Jablon v. United States, 657 F.2d 1064, 1068 (9th Cir. 1981) (declining to find a cause of action in promissory estoppel against the government).
In any event, even if the general presumption against applying promissory estoppel against the government is overcome, Plaintiffs have, nonetheless, failed to state a claim under the doctrine.
In order to state a claim for promissory estoppel, Plaintiffs must allege: (1) the existence of a promise; (2) that the government expected the Plaintiffs to rely on the promise by taking definite and substantial action or by forbearing from such action; (3) actual detrimental reliance by Plaintiffs; and (4) that the promise must be enforced to avoid injustice. Robbins v. Reagan, supra, 780 F.2d 37, 53 (citing Granfield v. Catholic University, 174 U.S. App. D.C. 183, 530 F.2d 1035, 1039 (D.C. Cir.), cert. denied, 429 U.S. 821, 50 L. Ed. 2d 81, 97 S. Ct. 68 (1976); Restatement (Second) of Contracts § 90 (1981)).
Accepting as true all material allegations in the Complaint, affording Plaintiffs all reasonable inferences that can be drawn therefrom, and construing those facts and inferences in a light most favorable to the Plaintiffs -- as the Court must for the purpose of a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) -- it is apparent that the facts alleged by Plaintiffs have failed to state any one of these elements.
1. The facts alleged by Plaintiffs do not constitute the making of a promise by Defendants
Plaintiffs contend that the January 18, 1994 press release issued by the Postal Service contained the promise that is the basis of their promissory estoppel claim. Specifically, the portion of the release said to constitute this promise is contained in the following sentence:
All of the Legends of the West stamps, he said,
will be destroyed and reprinted with an accurate image of Bill Pickett, a legendary Black cowboy who died in 1931.