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Subject: 89-1416 -- CONCUR, AIR COURIER CONFERENCE v. POSTAL WORKERS
SUPREME COURT OF THE UNITED STATES
No. 89-1416
AIR COURIER CONFERENCE OF AMERICA, PETI- TIONER v. AMERICAN POSTAL
WORKERS UNION, AFL-CIO, et al.
on writ of certiorari to the united states court of appeals for the
district of columbia circuit
[February 26, 1991]
Justice Stevens, with whom Justice Marshall and Justice Blackmun join,
concurring in the judgment.
There is no ambiguity in the text of 39 U. S. C. MDRV 410(a). That
section of the Postal Reorganization Act provides that the judicial review
provisions of the Administrative Procedure Act (APA) do not apply to the
exercise of the powers of the Postal Service. See ante, at 4, n. 1. It is
therefore not only unnecessary, but also unwise, for the Court to issue an
opinion on the entirely hypothetical question whether, if the APA did
authorize judicial review of actions of the Postal Service, its employees
would have standing to invoke such review to challenge a regulation that
may curtail their job opportunities. I therefore do not join the opinion
discussing this hypothetical standing question.
Nor do I consider it necessary to decide whether this objection to
judicial review may be waived by the Government because it is surely a
matter that we may notice on our own motion. {1} Faithful adherence to the
doctrine of judicial restraint provides a fully adequate justification for
deciding this case on the best and narrowest ground available. I would do
so. Accordingly, relying solely on 39 U. S. C. MDRV 410(a), I concur in
the Court's judgment that the Unions' challenge must be dismissed.
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1
It is at least arguable that the Government did not waive this
objection to judicial review. As the Court points out, the Government
raised this argument in its brief in opposition to the petition for writ of
certiorari. See ante, at 5. In deciding to review this case, therefore,
we were cognizant that an issue antecedent to the standing issue might
first have to be resolved. Moreover, although the Government's objection
to judicial review was not raised in the lower courts, the Court of Appeals
recognized that "the USPS is exempt from the strictures of the
Administrative Procedure Act (`APA'), see 39 U. S. C. MDRV 410(a),"
American Postal Workers Union, AFL-CIO v. United States Postal Service, 228
U. S. App. D. C. 5, 8, 891 F. 2d 304, 307 (1989), and nevertheless
continued to review the actions of the Postal Service, thus implicitly
rejecting the contention made by the Government here.