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Petitioner, V No. 18-___ IN THE Supreme Court of the United States ———— UNITED PARCEL SERVICE, INC., Petitioner, v. POSTAL REGULATORY COMMISSION, Respondent, VALPAK FRANCHISE ASSOCIATION, et al., Intervenors. ———— On Petition for a Writ Of Certiorari to the United States Court Of Appeals for the District of Columbia Circuit ———— PETITION FOR A WRIT OF CERTIORARI ———— KATHLEEN M. SULLIVAN Counsel of Record STEIG D. OLSON DAVID M. COOPER QUINN EMANUEL URQUHART & SULLIVAN, LLP 51 Madison Ave., 22nd Floor New York, NY 10010 (212) 849-7000 kathleensullivan@ quinnemanuel.com Counsel for Petitioner December 26, 2018 WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002 QUESTIONS PRESENTED In the Postal Accountability and Enhancement Act of 2006, Congress enacted safeguards to ensure that the U.S. Postal Service cannot extend its monopoly over letter mail so as to obtain an unfair competitive advantage in package delivery, a market in which it competes with private companies. See 39 U.S.C. § 3633. The Postal Regulatory Commission’s regula- tions governing rates thus must “(1) prohibit the subsidization of competitive products by market- dominant products; (2) ensure that each competitive product covers its costs attributable; and (3) ensure that all competitive products collectively cover what the Commission determines to be an appropriate share of the institutional costs of the Postal Service.” Id. And “costs attributable” are defined as “the direct and indirect postal costs attributable to such product through reliably identified causal relationships.” Id. § 3631(b). In this case, the D.C. Circuit, applying Chevron, deferred to the Commission’s unexplained interpreta- tion of “institutional costs” as only a residual category and of “reliably identified causal relationships” as minimum costs. The questions presented are: 1. Should this Court reconsider the doctrine of Chevron deference? 2. Should this Court hold that Chevron deference does not apply to an agency’s unexplained statutory interpretations? (i) TABLE OF CONTENTS Page QUESTIONS PRESENTED ............................... i TABLE OF AUTHORITIES ................................ ii INTRODUCTION ................................................ 1 OPINION BELOW .............................................. 2 JURISDICTION .................................................. 2 STATUTORY PROVISIONS INVOLVED .......... 2 STATEMENT OF THE CASE ............................ 3 A. The Postal Service’s Increased Focus On Package Delivery ........................................ 3 B. The Accountability Act ............................... 4 C. The Postal Regulatory Commission Pro- ceedings Below ............................................ 5 D. The Court Of Appeals Decision .................. 8 REASONS FOR GRANTING THE WRIT .......... 9 I. THIS COURT SHOULD REEXAMINE OR CLARIFY THE PROPER LIMITS ON CHEVRON DEFERENCE ................. 11 II. THIS CASE PRESENTS THE IDEAL VEHICLE FOR THIS COURT TO OVER- RULE OR CLARIFY THE PROPER LIMITS ON CHEVRON DEFERENCE ... 17 A. This Case Is The Ideal Vehicle To Overrule Chevron ................................ 17 (iii) iv TABLE OF CONTENTS—Continued Page B. In The Alternative, This Case Is The Ideal Vehicle To Limit Chevron Because The Decision Below Conflicts With Encino Motorcars ....................... 23 III. THE CHEVRON ISSUE IN THIS CASE AND THE UNDERLYING QUESTION OF POSTAL PRICING HAVE EXTRA- ORDINARILY IMPORTANT LEGAL AND PRACTICAL CONSEQUENCES .... 28 CONCLUSION .................................................... 31 APPENDIX APPENDIX A: D.C. Circuit Order Denying En Banc Review (July 27, 2018) .................... 1a APPENDIX B: D.C. Circuit Opinion (May 22, 2018) ......................................................... 3a APPENDIX C: Postal Regulatory Commis- sion Order No. 3506 (Oct. 19, 2016) .............. 35a v TABLE OF AUTHORITIES CASES Page(s) Auer v. Robbins, 519 U.S. 452 (1997) ................................... 16, 17 Berninger v. FCC, No. 17-498 (cert. denied Nov. 5, 2018) ..... 18 Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988) ................................... 11 Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) ................................... 16 Cal. Sea Urchin Comm’n v. Combs, No. 17-1636 (cert. denied Oct. 29, 2018) ... 17, 18 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) ..................................passim City of Arlington v. FCC, 569 U.S. 290 (2013) ................................... 12 Decker v. Nw. Envt’l Def. Ctr., 568 U.S. 597 (2013) ................................... 16 E.I. Du Pont De Nemours & Co. v. Smiley, 138 S. Ct. 2563 (2018) ............................... 15 Egan v. Del. River Port Auth., 851 F.3d 263 (3d Cir. 2017) ...................... 16 Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) ....... 12, 23, 24, 25, 26, 27 ESI Energy, LLC v. Fed. Energy Regulatory Comm’n, 892 F.3d 321 (D.C. Cir. 2018) ................... 28 vi TABLE OF AUTHORITIES—Continued Page(s) FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) ................................... 11 Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016) ..... 13, 14, 15, 22 Hall v. McLaughlin, 864 F.2d 868 (D.C. Cir. 1989) ................... 26, 28 Judulang v. Holder, 565 U.S. 42 (2011) ..................................... 21 King v. Burwell, 135 S. Ct. 2480 (2015) ............................... 12, 23 Kisor v. Wilkie, No. 18-15 (cert. granted Dec. 10, 2018) .... 16 Michigan v. EPA, 135 S. Ct. 2699 (2015) ............................... 13 Montgomery Cty. v. FCC, 863 F.3d 485 (6th Cir. 2017) ..................... 25 Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ..................................... 27 National Ass’n of Greeting Card Publishers v. U.S. Postal Service, 462 U.S. 810 (1983) ................................... 19, 21 Pereira v. Sessions, 138 S. Ct. 2105 (2018) ............................... 12, 15 SEC v. Chenery Corp., 332 U.S. 194 (1947) ................................... 27 vii TABLE OF AUTHORITIES—Continued Page(s) U.S. Postal Service v. Postal Regulatory Comm’n, 785 F.3d 740 (D.C. Cir. 2015) ................... 21 United States v. Mead Corp., 533 U.S. 218 (2001) ................................... 11, 14 STATUTORY AUTHORITIES 5 U.S.C. § 706 ............................................... 14 5 U.S.C. § 706(2)(A) ...................................... 27 18 U.S.C. §§ 1693-1696 ................................ 3 28 U.S.C. § 1254(1) ....................................... 2 39 U.S.C. § 3621(a) ....................................... 4 39 U.S.C. § 3642(b) ....................................... 4 39 U.S.C. § 3642(b)(1)................................... 4 39 U.S.C. § 3631(a) ....................................... 4 39 U.S.C. § 3631(b) ................................. 3, 5, 9, 20 39 U.S.C. § 3633 ........................................... 1 39 U.S.C. § 3633(a) ....................................... 3, 18 39 U.S.C. § 3633(a)(1)................................... 5, 22 39 U.S.C. § 3633(a)(2)............................... 5, 22, 27 39 U.S.C. § 3633(a)(3)................................... 5, 7 RULES AND REGULATIONS Exec. Order No. 13,829, 83 Fed. Reg. 17,281 (Apr. 18, 2018) ............................... 29 viii TABLE OF AUTHORITIES—Continued Page(s) Opinion and Recommended Decision, No. R74-1 (Postal Rate Comm’n Aug. 28, 1975) .................................................... 25 Opinion and Recommended Decision, No. R97-1 (Postal Rate Comm’n May 11, 1998) .................................................... 26 LEGISLATIVE MATERIALS H.R. Rep. No. 109-66 (2005) ......................... 4 S. Rep. No. 108-318 (2004) ........................... 4, 22 ADDITIONAL AUTHORITIES Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 HARV. L. REV. 2118 (2016) ................................................... 13, 14, 23 Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187 (2006) .......................... 13 Christopher J. Walker, Attacking Auer and Chevron Deference: A Literature Review, 16 GEO. J.L. & PUB. POL’Y 103 (2018) ....... 13 Linda Jellum, Chevron’s Demise: A Survey of Chevron from Infancy to Senescence, 59 ADMIN. L. REV. 725 (2007) ................... 13 J. Gregory Sidak, Maximizing the U.S. Postal Service’s Profits from Competitive Products, 11 J. COMPETITION L. & ECON. 617 (2015) .................................................. 30 ix TABLE OF AUTHORITIES—Continued Page(s) Letter from Jason Chaffetz, Chairman of the U.S. House of Representatives Comm. on Oversight & Gov’t Reform, & Mark Meadows, Chairman of the U.S. House of Representatives Subcomm. on Gov’t Oper- ations, to Megan J. Brennan, Postmaster Gen. (May 13, 2015), http://oversight. house.gov/wp-content/uploads/2015/05/ 2015-05-12-JEC-MM-to-Brennan-USPS- competitive-products-due-5-26.pdf ........... 30 Matthew C. Stephenson & Miri Pogoriler, Seminole Rock’s Domain, 79 GEO. WASH. L. REV. 1449 (2011) ................................... 16 Order Reviewing Competitive Products’ Appropriate Share Contribution to Institutional Costs, No. RM2012-3 (Postal Regulatory Comm’n Aug. 23, 2012) .......................................................... 26 TASK FORCE ON THE U.S. POSTAL SYS., UNITED STATES POSTAL SERVICE: A SUS- TAINABLE PATH FORWARD (2018), https:// home.treasury.gov/system/files/136/USP S_A_Sustainable_Path_Forward_report_ 12-04-2018.pdf ................................... 1, 2, 29, 30 U.S. Postal Service Reports Fiscal Year 2016
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