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October 21, 1985


The opinion of the court was delivered by: BRIEANT


Brieant, J.

 During the Great Depression, there was a notice in common use sent out with past due invoices. This notice read: "Please pay us now, so that we can pay them, so that they can pay him, and he can pay you." This notice called to the attention of the reader the well-known effect of the velocity of money. Prompt movement of money from customer to supplier, and investor to user is an essential cornerstone of our prosperity. As the velocity of money slows down, so does the gross national product of goods and services diminish.

 The greatest single factor affecting the velocity of money is the Postal Service, because even today, notwithstanding the availability of wire services and automatic electronic transfer of funds, large quantities of payments are made by first class mail. Other activities affecting the level of economic activity, including the placement and receipt of orders for goods and services, are largely dependent on the United States mails.

 No reasonable person denies that good, prompt and reliable postal service is essential to the welfare of our nation. It would also follow that such service should be furnished at a level of performance substantially equal to all business customers, and that the quality of service should not so vary between locations and communities as to discriminate in favor of some locations and communities and those who do business therein, as against others.

 Having stated all of these self-evident truths, we must follow with another; not every wrongful omission or failure on the part of the government bureaucracy can be redressed in the United States District Court. The Executive Branch, and also the Legislative Branch in its legislative oversight activities, each bear a great responsibility for the quality and the equality of such services, and in the final analysis performance of governmental services in a fair and equal manner rests essentially on the sense of duty and moral obligation of those men and women who actually render the service.

 As will be noted below, plaintiff, Shelby Resources, states a real and substantial grievance insofar as concerns its postal service. With minor exceptions, defendants do not dispute the factual contentions of Shelby. Defendant United States Postal Service moves for summary judgment in its favor and the Postal Rate Commission moves separately to dismiss for want of subject matter jurisdiction.

 Shelby describes itself as a "full service financial organization." As such, it receives at its office by first class mail, a substantial amount of payments, and frequent requests from patrons for service. Like most such businesses, Shelby starts its office operations at 9:00 A.M. or earlier, and opening the mail ordinarily would be the first order of business. Receipts must be recorded on the books and carried to the bank in order to obtain interest from day of deposit; requests for services must be placed in the course of fulfillment; and other business matters which arrive by mail, require attention of office personnel.

 Plaintiff formerly had its office at Great Neck, New York where daily mail delivery was made to Shelby almost without exception, between 9:00 A.M. and 9:30 A.M. (Answering Affirmation, P26).

 On April 1, 1983 Shelby commenced doing business at No. 5 Waller Avenue, White Plains, New York. These premises are a brand new, substantial office building, recently constructed in what theretofore had been a largely residential or vacant area. The building is occupied by a number of unrelated tenants, besides Shelby, all of whom are dependent to one degree or another on mail service.

 The premises are on a carrier route known as Route 0110, assigned to the White Plains Post Office. This route has existed for a long time, and at least prior to 1978. As of April 1985 it contained a total of 305 possible deliveries on the route. The business deliveries account for 63% of the total deliveries (the rest being residential), and the mail person arrives at 5 Waller Avenue when approximately 60% of the route has been served. Only 12 non-business or residential deliveries are made before the carrier arrives at Shelby's building. *fn1"

 It is pointed out that although the official delivery policy and criteria for the establishment and extension of delivery service to business areas do not specify a time of day when a business must receive delivery, it is clearly Post Office department policy to facilitate delivery to businesses "as early as possible, if it is economically feasible." Essentially this means that when routes are created or adjusted, the business sections will be located insofar as possible at the portion of the route to be served first.

 Shelby found that initially its mail arrived no earlier than 11:30 A.M. and as time passed it began to arrive later and later in the business day, sometimes as late as 3:00 P.M. Shelby has made numerous complaints to the Postal Service and also filed a complaint with the Postal Rate Commission. Within reason the officials have attempted to respond to these complaints, but it is clear that Shelby is not now receiving and is unlikely to receive in the near future, mail service of the same quality which it enjoyed in Great Neck, New York. This in turn creates a discriminaton which is unwarranted, and unfair, having an adverse impact on businesses such as Shelby and its landlord, who compete in turn for customers and tenants with those other premises which enjoy the type of postal service which Shelby formerly had in Great Neck.

 We need not look too far to find the cause of this breakdown in service. The Postmaster's Affidavit, essentially the local response, made the point that the managing agents of the building could have participated in a voluntary program for centralized delivery points within this multi-tenanted office building, but refused to do so, so that the carrier is obliged to go from office to office on all three floors of the new building, delivering mail to the various tenants. Furthermore, plaintiff was invited to rent a Post Office box at its own expense, or to pay an additional charge for call privileges. This type of mail services gives the addressee immediate access whenever the Post Office is open, to all mail which has been sorted. Apart from the additional postal service fees connected with this service, personnel of the addressee must leave the place of business and go physically to the Post Office. A single trip at 9:00 A.M. will not be satisfactory, because all mail has not been placed in the post boxes or sorted by that hour. Accordingly, if ...

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