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Subject: 89-1416 -- OPINION, AIR COURIER CONFERENCE v. POSTAL WORKERS

NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
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]



    Chief Justice Rehnquist delivered the opinion of the Court.
    This case requires us to decide whether postal employees are within the
"zone of interests" of the Private Express Statutes, so that they may
challenge the action of the United States Postal Service in suspending the
operation of the PES with respect to a practice of private courier services
called "international remailing."  We hold that they are not.
    Since its establishment, the United States Postal Service has exercised
a monopoly over the carriage of letters in and from the United States.  The
postal monopoly is codified in a group of statutes known as the Private
Express Statutes (PES), 18 U. S. C. 15 1693-1699 and 39 U. S. C. 15
601-606.  The monopoly was created by Congress as a revenue protection
measure for the Postal Service to enable it to fulfill its mission.  See,
Regents of University of California v. Public Employment Relations Board,
485 U. S. 589, 598 (1988).  It prevents private competitors from offering
service on lowcost routes at prices below those of the Postal Service,
while leaving the Service with high-cost routes and insufficient means to
fulfill its mandate of providing uniform rates and service to patrons in
all areas, including those that are remote or less populated.  See J.
Haldi, Postal Monopoly: An Assessment of the Private Express Statutes 9
(1974); Craig & Alvis, The Postal Monopoly: Two Hundred Years of Covering
Commercial as Well as Personal Messages, 12 U. S. F. L. Rev. 57, 60, and n.
8 (1977).
    A provision of the PES allows the Postal Service to "suspend [the PES
restrictions] upon any mail route where the public interest requires the
suspension."  39 U. S. C. MDRV 601(b).  In 1979, the Postal Service
suspended the PES restrictions for "extremely urgent letters," thereby
allowing overnight delivery of letters by private courier services.  39 CFR
MDRV 320.6 (1990); 44 Fed. Reg. 61178 (1979).  Private courier services,
including members of petitioner-intervenor Air Courier Conference of
America, relied on that suspension to engage in a practice called
"international remailing."  This entails bypassing the Postal Service, and
using private courier systems to deposit with foreign postal systems
letters destined for foreign addresses.  Believing this international
remailing was a misuse of the urgent-letter suspension, the Postal Service
issued a proposed modification and clarification of its regulation in order
to make clear that the suspension for extremely urgent letters did not
cover this practice.  50 Fed. Reg. 41462 (1985).  The comments received in
response to the proposed rule were overwhelmingly negative, and focused on
the perceived benefits of international remailing: Lower cost, faster
delivery, greater reliability, and enhanced ability of United States
companies to remain competitive in the international market.  Because of
the vigorous opposition to the proposed rule, the Postal Service agreed to
reconsider its position, and instituted a rulemaking "to remove the cloud"
over the validity of the international remailing services.  51 Fed. Reg.
9852, 9853 (1986).  After receiving additional comments and holding a
public meeting on the subject, on June 17, 1986, the Postal Service issued
a proposal to suspend operation of the PES for international remailing.
Id., at 21929-21932.  Additional comments were received, and after
consideration of the record it had compiled, the Postal Service issued a
final rule suspending the operation of the PES with respect to
international remailing.  Id., at at 29637.
    Respondents, the American Postal Workers Union, AFLCIO and the National
Association of Letter Carriers, AFL-CIO (Unions), sued in the United States
District Court for the District of Columbia, challenging the international
remailing regulation pursuant to the judicial review provisions of the
Administrative Procedure Act, 5 U. S. C. MDRV 702 (APA).  They claimed that
the rulemaking record was inadequate to support a finding that the
suspension of the PES for international remailing was in the public
interest.  Petitioner Air Courier Conference of America (ACCA) intervened.
On December 20, 1988, the District Court granted summary judgment in favor
of the Postal Service and ACCA.  American Postal Workers Union, AFL-CIO v.
United States Postal Service, 701 F. Supp. 880 (1988).  The Unions appealed
to the Court of Appeals for the District of Columbia Circuit, and that
court vacated the grant of summary judgment.  American Postal Workers
Union, AFL-CIO v. United States Postal Service, 282 U. S. App. D. C. 5, 891
F. 2d 304 (1989).  It held that the Unions satisfied the zone-ofinterests
requirement for APA review under Clarke v. Securities Industry Assn., 479
U. S. 388 (1987), and that the Postal Service's regulation was arbitrary
and capricious because it relied on too narrow an interpretation of "the
public interest."  In determining that the Unions' interest in employment
opportunities was protected by the PES, the Court of Appeals noted that the
PES were reenacted as part of the Postal Reorganization Act (PRA), Pub. L.
91-375, 84 Stat. 719, codified at 39 U. S. C. MDRV 101 et seq.  The Court
of Appeals found that a "key impetus" and "principal purpose" of the PRA
was "to implement various labor reforms that would improve pay, working
conditions and labor-management relations for postal employees."  282 U. S.
App. D. C., at 10-11, 891 F. 2d, at 309-310.  Reasoning that "[t]he Unions'
asserted interest is embraced directly by the labor reform provisions of
the PRA," id., at 11, 891 F. 2d, at 310, and that "[t]he PES constitute the
linchpin in a statutory scheme concerned with maintaining an effective,
financially viable Postal Service," ibid., the court concluded that "[t]he
interplay between the PES and the entire PRA persuades us that there is an
`arguable' or `plausible' relationship between the purposes of the PES and
the interests of the Union[s]."  Ibid.  The Court of Appeals also held that
"the revenue protective purposes of the PES, standing alone, plausibly
relate to the Unions' interest in preventing the reduction of employment
opportunities," since "postal workers benefit from the PES's function in
ensuring a sufficient revenue base" for the Postal Service's activities.
Ibid.
    Addressing the merits of the Unions' challenge to the suspension order,
the Court of Appeals held that it was arbitrary and capricious because the
Postal Service had applied MDRV 601(b)'s public interest test too narrowly
by considering only the benefits of the international remail rule to the
small segment of the Postal Service's consumer base that engages in
international commerce.  We granted certiorari, 496 U. S. --- (1990), and
we now reverse.
    The United States Postal Service, nominally a respondent, argues along
with ACCA that the Unions do not have standing to challenge the Postal
Service's suspension of the PES for international remailing.  The Postal
Service argues now that Congress precluded judicial review of Postal
Service action under the APA by enacting 39 U. S. C. MDRV 410(a), which the
Postal Service contends provides that Chapters 5 and 7 of Title 5 do not
apply to the Postal Service. {1}  Chapters 5 and 7 of Title 5 are the
provisions of the APA dealing with "Administrative Procedure" (Chapter 5)
and "Judicial Review" (Chapter 7).
    The Postal Service raised this argument for the first time in its brief
in opposition to the petition for writ of certiorari.  It was not argued to
either of the lower courts, and was not considered by either court below in
deciding this case.  This issue was not raised by ACCA in its petition for
writ of certiorari, nor is it encompassed by the questions presented upon
which we based our grant of certiorari. {2}  Consequently, we decline to
decide whether MDRV 410(a) exempts the Postal Service from judicial review
under the APA. {3}
    To establish standing to sue under MDRV 702 of the APA, respondents
must establish that they have suffered a legal wrong because of the
challenged agency action, or are adversely affected or "aggrieved by agency
action within the meaning of a relevant statute."  5 U. S. C. MDRV 702.
Once they have shown that they are adversely affected, i. e., have suffered
an "injury in fact," see Allen v. Wright, 468 U. S. 737, 751 (1984), the
Unions must show that they are within the zone of interests sought to be
protected through the PES.  Lujan v. National Wildlife Federation, 497 U.
S. --- (1990); Clarke v. Securities Industry Assn., 479 U. S. 388 (1987);
Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.
S. 150 (1970).  Specifically, "the plaintiff must establish that the injury
he complains of (his aggrievement, or the adverse effect upon him) falls
within the `zone of interests' sought to be protected by the statutory
provision whose violation forms the legal basis of his complaint."  Lujan,
supra, at --- (citing Clarke, supra, at 396397).
    The District Court found that the Unions had satisfied the
injury-in-fact test because increased competition through international
remailing services might have an adverse effect on employment opportunities
of postal workers.  This finding of injury in fact was not appealed.  The
question before us, then, is whether the adverse effects on the employment
opportunities of postal workers resulting from the suspension is within the
zone of interests encompassed by the PES -- the statutes which the Unions
assert the Postal Service has violated in promulgating the international
remailing rule.
    The Court of Appeals found that the Unions had standing because "the
revenue protective purposes of the PES, standing alone, plausibly relate to
the Unions' interest in preventing the reduction of employment
opportunities."  282 U. S. App. D. C., at 11, 891 F. 2d, at 310.  This view
is mistaken, for it conflates the zone-of-interests test with injury in
fact.  In Lujan, this Court gave the following example illustrating how
injury in fact does not necessarily mean one is within the zone of
interests to be protected by a given statute:


"[T]he failure of an agency to comply with a statutory provision requiring
`on the record' hearings would assuredly have an adverse effect upon the
company that has the contract to record and transcribe the agency's
proceedings; but since the provision was obviously enacted to protect the
interests of the parties to the proceedings and not those of the reporters,
that company would not be `adversely affected within the meaning' of the
statute."  497 U. S., at ---, ---.


    We must inquire then, as to Congress' intent in enacting the PES in
order to determine whether postal workers were meant to be within the zone
of interests protected by those statutes.  The particular language of the
statutes provides no support for respondents' assertion that Congress
intended to protect jobs with the Postal Service. {4}  In fact, the
provisions of 18 U. S. C. MDRV 1696(c), allowing private conveyance of
letters if done on a one-time basis or without compensation, and 39 U. S.
C. MDRV 601(a), allowing letters to be carried out of the mails if certain
procedures are followed, indicate that the congressional concern was not
with opportunities for postal workers but with the receipt of necessary
revenues for the Postal Service.
    Nor does the history of this legislation -- such as it is -- indicate
that the PES were intended for the benefit of postal workers.  When the
first statutes limiting private carriage of letters on post roads were
enacted in 1792, the Post Office offered no pick-up or delivery services.
See C. Scheele, A Short History of the Mail Service 66, 91 (1970).
Statutory authority to employ letter carriers was not enacted until two
years later, and was largely ignored until the late 1820's.  Id., at 66.
The 1792 restrictions on private carriage protected the Government's
capital investment in the post roads, not the jobs of as yet virtually
nonexistent postal employees.  In 1825 and 1827, Acts were passed
prohibiting the private carriage of letters through the use of stages or
other vehicles, packet boats or other vessels, MDRV 19, Ch. 64 of Act of
March 3, 1825, 4 Stat. at 107, and foot and horse posts.  Section 3, Ch. 61
of Act of March 2, 1827, 4 Stat. 238.  Postal employees cannot have been
within the zone of interests of either the 1824 or 1827 Acts; those Acts
targeted transportation of mail which even then was contracted out to
private carriers.  See W. Fuller, The American Mail: Enlarger of the Common
Life 150 (1972).
    Congress' consideration of the 1845 Act was the only occasion on which
the postal monopoly was the subject of substantial debate.  The 1845
statute, entitled "An Act to reduce the rates of postage, to limit the use
and correct the abuse of the franking privilege, and for the prevention of
frauds on the revenues of the Post Office Department," 5 Stat. 732, was the
result of three circumstances, none of which involved the interests of
postal employees.  First, the Post Office Department continued to run
substantial deficits in spite of high postage rates.  H. R. Rep. No. 477,
28th Cong., 1st Sess., 2-3, 5 (1844).  Second, high postal rates enabled
private expresses to make substantial inroads into the domestic market for
delivery of letters and the 1825 and 1827 Acts proved unsuccessful in
prosecuting them.  Priest, The History of the Postal Monopoly in the United
States, 18 J. Law & Econ., 33, 60 (1975) (citing United States v. Gray, 26
F. Cas. 18 (No. 15, 253) (Mass. 1840) and United States v. Adams, 24 F.
Cas. 761 (No. 14, 421) (SDNY 1843)).  Third, inauguration of the "penny
post" in England quadrupled use of the mails, and it was thought that a
substantial reduction in American postal rates would have the dual virtues
of driving private expresses out of business and increasing mail volume of
the Post Office.  This, in turn, would help reduce the Post Office's
deficit.  14 Cong. Globe, 28th Cong., 2d Sess., 213 (1845) (remarks of
Sens. Simmons & Breese).  See also H. R. Rep. No. 477, supra, at 5.
    The legislative history of the sections of the Act limiting private
carriage of letters shows a two-fold purpose.  First, the Postmaster
General and the States most distant from the commercial centers of the
Northeast believed that the postal monopoly was necessary to prevent users
of faster private expresses from taking advantage of early market
intelligence and news of international affairs that had not yet reached the
general populace through the slower mails.  S. Doc. No. 66, 28th Cong., 2d
Sess., 3-4 (1845).  Second, it was thought to be the duty of the Government
to serve outlying, frontier areas, even if it meant doing so below cost.
H. R. Rep. No. 477, supra, at 2-3.  Thus, the revenue protection provisions
were not seen as an end in themselves, nor in any sense as a means of
insuring certain levels of public employment, but rather were seen as the
means to achieve national integration and to ensure that all areas of the
Nation were equally served by the Postal Service.
    The PES enable the Postal Service to fulfill its responsibility to
provide service to all communities at a uniform rate by preventing private
courier services from competing selectively with the Postal Service on its
most profitable routes.  If competitors could serve the lower cost segment
of the market, leaving the Postal Service to handle the high-cost services,
the Service would lose lucrative portions of its business, thereby
increasing its average unit cost and requiring higher prices to all users.
{5}  See Report of the President's Commission on Postal Organization,
Towards Postal Excellence, 94th Cong., 2d Sess., 129 (Comm. Print 1968).
The postal monopoly, therefore, exists to ensure that postal services will
be provided to the citizenry at-large, and not to secure employment for
postal workers.
    The Unions' claim on the merits is that the Postal Service has failed
to comply with the mandate of 39 U. S. C. MDRV 601(b) that the PES be
suspended only if the public interest requires.  The foregoing discussion
has demonstrated that the PES were not designed to protect postal
employment or further postal job opportunities, but the Unions argue that
the courts should look beyond the PES to the entire 1970 Postal
Reorganization Act in applying the zone-of-interests test.  The Unions
argue that because one of the purposes of the labor-management provisions
of the PRA was to stablize labor-management relations within the Postal
Service, and because the PES is the "linchpin" of the Postal Service,
employment opportunities of postal workers are arguably within the zone of
interests covered by the PES.  The Unions rely upon our opinion in Clarke
v. Securities Industry Assn., 479 U. S. 388 (1987), to support this
contention.
    Clarke is the most recent in a series of cases in which we have held
that competitors of regulated entities have standing to challenge
regulations.  Clarke, supra; Investment Co. Institute v. Camp, 401 U. S.
617 (1971); Association of Data Processing Service Organizations, Inc. v.
Camp, 397 U. S. 150 (1970).  In Clarke, we said that "we are not limited to
considering the statute under which respondents sued, but may consider any
provision that helps us to understand Congress' overall purposes in the
National Bank Act."  479 U. S., at 401.  This statement, like all others in
our opinions, must be taken in the context in which it was made.  In the
next paragraph of the opinion, the Court pointed out that 12 U. S. C. MDRV
36, which the plaintiffs in that case claimed had been misinterpreted by
the Comptroller, was itself "a limited exception to the otherwise
applicable requirement of [12 U. S. C.] MDRV 81," limiting the places at
which a national bank could transact business to its headquarters and any
"branches" permitted by MDRV 36.  Thus the zone-of-interests test was to be
applied not merely in the light of MDRV 36, which was the basis of the
plaintiffs' claim on the merits, but also in the light of MDRV 81, to which
MDRV 36 was an exception.
    The situation in the present case is quite different.  The only
relationship between the PES, upon which the Unions rely for their claim on
the merits, and the labor-management provisions of the PRA, upon which the
Unions rely for their standing, is that both were included in the general
codification of postal statutes embraced in the PRA.  The statutory
provisions enacted and re-enacted in the PRA are spread over some 65 pages
in the United States Code, and take up an entire title of that volume.  We
said in Lujan, that "the relevant statute [under the APA] of course, is the
statute whose violation is the gravamen of the complaint."  497 U. S., at
3187.  To adopt petitioners' contention would require us to hold that the
"relevant statute" in this case is the PRA, with all of its various
provisions united only by the fact that they deal with the Postal Service.
But to accept this level of generality in defining the "relevant statute"
could deprive the zone-of-interests test of virtually all meaning.
    Unlike the two sections of the National Bank Act discussed in Clarke,
supra, none of the provisions of the PES has any integral relationship with
the labor-management provisions of the PRA.  When it enacted the PRA,
Congress made no substantive changes to those portions of the PES codified
in the Criminal Code, 18 U. S. C. 15 1693-1699; Congress readopted without
change those portions of the PES codified in the Postal Service Code, 39 U.
S. C. 15 601-606; and Congress required the Postal Service to conduct a
2-year study and reevaluation of the PES before deciding whether those laws
should be modified or repealed.  PRA, Pub. L. 91-375, MDRV 7, 84 Stat. 783;
S. Rep. No. 91-912, p. 22 (1970); H. R. Rep. No. 01-1104, p. 48 (1970).
    None of the documents constituting the PRA legislative history suggests
that those concerned with postal reforms saw any connection between the PES
and the provisions of the PRA dealing with labor-management relations.  The
Senate and House Reports simply note that the proposed bills continue
existing law without change and require the Postal Service to conduct a
study of the PES.  The Court of Appeals referred to the PES as the
"linchpin" of the Postal Service, which it may well be; but it stretches
the zone-ofinterests test too far to say that because of that fact those
whom a different part of the PRA was designed to benefit may challenge a
violation of the PES.
    It would be a substantial extension of our holdings in Clarke, supra,
Data Processing, supra, and Investment Co. Institute, supra, to allow the
Unions in this case to leapfrog from their asserted protection under the
labor-management provisions of the PRA to their claim on the merits under
the PES.  We decline to make that extension, and hold that the Unions do
not have standing to challenge the Postal Service's suspension of the PES
to permit private couriers to engage in international remailing.  We
therefore do not reach the merits of the Unions' claim that the suspension
was not in the public interest.  The judgment of the Court of Appeals is

Reversed.








------------------------------------------------------------------------------
1
    Title 39 U. S. C. MDRV 410 provides in pertinent part:
    "[N]o Federal law dealing with public or Federal contracts, property,
works, officers, employees, budgets, or funds, including the provisions of
chapters 5 and 7 of title 5, shall apply to the exercise of the powers of
the Postal Service."

2
    The questions presented in this case are as follows:
    1. Are postal employees within the "zone of interest" of the Private
Express Statutes that establish and allow the United States Postal Service
to suspend restrictions on the private carriage of letters when "the public
interest requires?"
    2. Did the Postal Service act unreasonably, arbitrarily, or
capriciously in promulgating its international remail regulation under the
"public interest" standard for suspending the Private Express Statutes
where it found no adverse effects on revenues and found general benefits to
the public, competition, and users of remail services?

3
    The Postal Service argues that since "congressional preclusion of
judicial review is in effect jurisdictional," Block v. Community Nutrition
Institute, 467 U. S. 340, 353, n. 4 (1984), the issue cannot be waived by
the parties.  We do not agree.  Section 410, at most, exempts the Postal
Service from the APA.  The judicial review provisions of the APA are not
jurisdictional, Califano v. Sanders, 430 U. S. 99 (1977), so a defense
based on exemption from the APA can be waived by the Government.  Whether
MDRV 410(a) exempts the Postal Service from APA review is in essence a
question of whether Congress intended to allow a certain cause of action
against the Postal Service.  Whether a cause of action exists is not a
question of jurisdiction, and may be assumed without being decided.  Burks
v. Lasker, 441 U. S. 471, 476, n. 5 (1979).

4
    Title 18 U. S. C. MDRV 1696 provides:
    "Private express for letters and packets
    "(a) Whoever establishes any private express for the conveyance of
letters or packets, or in any manner causes or provides for the conveyance
of the same by regular trips or at stated periods over any post route which
is or may be established by law, or from any city, town, or place to any
other city, town or place, between which mail is regularly carried, shall
be fined not more than $500 or imprisoned not more than six months, or
both.

    . . . . .


    "(b) Whoever transmits by private express or other unlawful means, or
delivers to any agent thereof, or deposits at any appointed place, for the
purpose of being so transmitted any letter or packet, shall be fined not
more than $50.
    "(c) This chapter shall not prohibit the conveyance or transmission of
letters or packets by private hands without compensation, or by special
messenger employed for the particular occasion only.  Whenever more than
twenty-five such letters or packets are conveyed or transmitted by such
special messenger, the requirements of section 601 of title 39, shall be
observed as to each piece."
    Title 39 U. S. C. MDRV 601 provides:
    "Letters carried out of the mail
    "(a) A letter may be carried out of the mails when --
    "(1) it is enclosed in an envelope;
    "(2) the amount of postage which would have been charged on the letter
if it had been sent by mail is paid by stamps, or postage meter stamps, on
the envelope;
    "(3) the envelope is properly addressed;
    "(4) the envelope is so sealed that the letter cannot be taken from it
without defacing the envelope;
    "(5) any stamps on the envelope are canceled in ink by the sender; and
    "(6) the date of the letter, of its transmission or receipt by the
carrier is endorsed on the envelope in ink.
    "(b) The Postal Service may suspend the operation of any part of this
section upon any mail route where the public interest requires the
suspension."

5
    The PES is a competition statute that regulates the conduct of
competitors of the Postal Service.  The postal employees for whose benefit
the unions have brought suit here are not competitors of either the Postal
Service or remailers.  Employees have generally been denied standing to
enforce competition laws because they lack competitive and direct injury.
See, e. g., Adams v. Pan American World Airways, Inc., 264 U. S. App. D. C.
174, 828 F. 2d 24 (1987), cert. denied, sub nom. Union de Transports
Aeriens v. Beckman, 485 U. S. 934 (1988) (former airline employees denied
standing to assert antitrust claim against airline that allegedly drove
their former employer out of business); Curtis v. Campbell-Taggart, Inc.,
687 F. 2d 336 (CA10), cert. denied, 459 U. S. 1090 (1982) (employees of
corporation injured by anticompetitive conduct denied standing under
antitrust laws).