Motion of National Association of Greeting Card Publishers for Inquiry into Alleged Violations of the Government in the Sunshine Act or, Alternatively, for a Suspension of Proceedings.
Before Friendly, Oakes and Pierce, Circuit Judges.
In these two dockets, Time, Inc. and Newsweek, Inc. petitioned this court on September 30, 1981, to review an order of the Board of Governors of the United States Postal Service (the Board) adopted on the previous day. Later on the day of September 30, National Association of Greeting Card Publishers (NAGCP or the movant) and Mail Order Association of America petitioned for review of the same order in the Court of Appeals for the District of Columbia Circuit. That court consolidated those and other petitions and transferred them to this circuit pursuant to 28 U.S.C. § 2112. We consolidated the Time and Newsweek petitions of our own motion and the Postal Service has moved for consolidation of the others with them. On December 1, 1981, we denied a motion of NAGCP to transfer all the petitions to the Court of Appeals for the District of Columbia Circuit.
This opinion is addressed to another motion of NAGCP, heard on the same day, in which it asks us to exercise our power under 5 U.S.C. § 552b(h)(2)*fn1 to inquire into an alleged violation by the Board of the requirement of 5 U.S.C. § 552b(b) that "Except as provided in subsection (c), every portion of every meeting of an agency shall be open to public observation" or, in the alternative, to suspend proceedings on these petitions for review until decision by the District Court for the District of Columbia of an action for injunctive relief filed by NAGCP in that court on October 5, 1981. The facts giving rise to NAGCP's claim are as follows:
As recounted in a recent opinion of this court, Newsweek, Inc. v. United States Postal Service, 663 F.2d 1186, 1191-1192 (1981), the proceedings culminating in the order here under review began with a request by the Postal Service dated April 21, 1980, to the Postal Rate Commission (PRC)*fn2 for a recommended decision on changes in postal rates. As there stated, this request initiated R80-1, a general rate-making proceeding, wherein, after extensive hearings, the PRC, on February 19, 1981, forwarded to the Board a recommended decision which slashed $1 billion from the Postal Service's proposed general revenue requirements and made many changes in cost distribution and rates as compared with those proposed by the Postal Service. The Board, on March 10, 1981, pursuant to 39 U.S.C. § 3625(c)(2), returned the recommendation to the PRC for reconsideration but allowed the bulk of the decision to take effect under protest. While proceedings for the review of that order were pending, the PRC upon reconsideration submitted to the Board, on June 4, 1981, a second recommended decision which, with one minor exception, recommended the same rates and fees that were contained in its first. On this occasion the Board, on June 29, 1981, reiterating the views stated in its March 10 opinion, rejected the PRC's Recommended Decision upon Reconsideration and requested a second reconsideration and a further recommended decision.
Anticipating the receipt of such a recommended decision, the Board, on September 16, 1981, announced in the Federal Register its intention to meet on September 22, 1981, 46 F.R. 46,040-46,056, to consider, inter alia, the PRC's recommended decision and also announced that it might decide to close that portion of the meeting.*fn3 The PRC submitted its recommended decision upon further reconsideration, which again reaffirmed the views expressed in its initial recommended decision of February 19, 1981. At its September 22 meeting, the Board voted to consider the PRC's recommended decision as its first agenda item and also that the portion of the meeting dealing with the PRC's recommendation be closed. As stated in a notice published on September 25, 1981, 46 F.R. 47,350,
the Governors determined, in accordance with 5 U.S.C. 552b(d)(1) and (e)(2), that the portion of the meeting to be closed was exempt from the open meeting requirement of the Government in the Sunshine Act pursuant to 5 U.S.C. 552b(c) (10) in that it was likely to specifically concern agency participation in a civil action or proceeding.*fn4
The Board, not having concluded its deliberations on September 22, 1981, also published on September 25 a notice, which we reproduce in the margin,*fn5 of a closed special meeting to be held on September 29 to consider the PRC's recommended decision. At the September 29 meeting, the Board, by unanimous vote, invoking its authority under 39 U.S.C. § 3625(d), changed many of the recommendations made by the PRC, including a change of the rate for the first ounce of first-class letter mail to 20 cents as the Postal Service had initially proposed.
By letter dated September 30, 1981, to the General Counsel of the Postal Service, counsel for NAGCP requested "a complete copy of the transcript or tapes of the Board of Governors' closed meetings of September 22, 1981 and September 29, 1981",*fn6 see 5 U.S.C. § 552b(f)(2). The Assistant General Counsel declined, stating:
The Board, however, has determined, pursuant to subsection (f)(2) of the Act, that the discussions in the meetings contained information that might properly be withheld from the public under the provisions of the Act and that the transcript of the discussion should not be made publicly available. As a result we are not at liberty to furnish the materials you have requested.
As you may be aware, the meetings were closed to public observation in reliance on subsection (c)(10) of the Act. Given the prospect of litigation which was present at the time of the meetings and the need for the candid discussion of the Postal Service's participation in the litigation, we think that the decisions to close the meetings and not to make transcripts of the meetings available were both proper and appropriate in the public interest.
In consequence, as stated above, NAGCP brought an action under § 552b(h)(1) in the District Court for the District of Columbia and later made this motion to us under § 552b(h)(2).
Section 552b(c) of 5 U.S.C. qualifies the "open meeting" provision of § 552b(b) by providing that
Except in a case where the agency finds that the public interest requires otherwise, the second sentence of subsection (b) shall not apply to any portion of an agency meeting, and the requirements of subsections (d) and (e) shall not apply to any information pertaining to such meeting otherwise required by this section to be disclosed to the public, where the agency properly ...