Amicus Curiae Brief — Postal Service v. Flamingo Industries (USA) Ltd.

Supreme Court brief2004

Ask Donna

What actually matters in this document.

Text

Nos. 02-1290 ea —

IN THE

Supreme Court of the Anited States

UNITED STATES POSTAL SERVICE, PETITIONER

FLAMINGO INDUSTRIES (U.S.A.) LTD.

AND ARTHUR WAH

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF THE CENTER FOR THE ADVANCEMENT OF

CAPITALISM AS AMICUS CURIAE

SUPPORTING NEITHER PARTY

NICHOLAS M. FOBE

Counsel of Record

VERSTEGEN & FOBE

1776 Eye Street, N.W., Ste. 900

Washington, D.C. 20006

(202) 887-4795

Counsel for Amicus Curiae

' TABLE OF CONTENTS

TABLE OF CONTENTS... sonal

TABLE OF AUTHORITIES a

INTEREST OF AMICUS CURIAE 1

SUMMARY OF ARGUMENT 2

ARGUMENT | seas

I. The Postal Service, as presently structured, does not

carry out an essential sovereign function, and is not

entitled to treatment as a sovereign entity under the

Constitution. 3

a. The Postal Service’s organizational structure is

incompatible with the Constitution’s requirements for a

_ sovereign entity within the executive branch. ......5........4

b. The Postal Service’s non-mail services and activities

are not entitled to any sovereign status. 8

II. The alleged impact of subjecting the Postal Service to

antitrust suits is insufficient to warrant reversing the

decision below. 10

CONCLUSION 14

TABLE OF AUTHORITIES

Cases:

Carlin v. McKean,

GED F.B6 GED (BBUF) vceocescecssessssesenessascsnnienisniiiaaaiiaial 5

Chisholm v. Georgia,

2 UD. 2 Dae.) G59 CRF TID ce ccosesssrssscnsssesscecvidiccisanessmeiniala 3

Humphrey’s Executor v. United States,

BIS US. GES (BGT scovccesassnsssecnscsnsenesninstinsiitemmeenitanmaiiaa 7

Morrison v. Olson,

GBT UB. GEE (RGGI cxccessseescenssessssessnenssensienscansestitiaeaiaa 3,6

United States v. Cooper Corp.,

FEZ US. GBD (3D GI) 1.ncccccocascsssrersovseceseennsssnssnensanssnaniiiiaiiin 2

Constitutional Provisions:

US. Cosst, apt. ©, BG, Gb, Feccsscsssssssevessenessimmniiaa 9

US. Comet, at. Bi, @ 1, 66. Tcsccsssconsssoesssennsnnsteanieisamninaaanee 5

U.S. Const. art. II, § 2, cl. 2........... sosassessernnmnisissinienieidemenaaanl 5

os Ge FF SF | 5

Articles of Confederation, art. [X..........cccscsscesssssssssssssecesseseesseeees .)

Statutes:

Clayton Act, 15 USC. G12, 66 600). .ccmscusssesninetinmeiiaeameaaal 2

Postal Reorganization Act of 1970, Pub. L. No. 91-375

BP USG.G. § BGG, 66 00G )rcensccessesssimmnaiiaaae passim

SO UB, & Doi cccccesessscnsssssrssesineneentstuiasammn 5

FP UBL. © Toi cccssecessomessnssssinaastenssssiam 2

FP UB, § TIED. .cccccoscccescssseressesenseniiniessanmae 7

FP USAG., § TENE -cccsccccescsssscsnsssenstmiiiemamasne 5,7

SD USAC, § AIRED .creccssscsscersessescssensteitiininmaie 7

SD UA. 6 DB cccseccorsescssnssssenessasscnisiaa 5

SD UBC, § GBR DD conccccscossseccsscensesesstsninemmenimme 2

LU ) ) 5

ET INIT icicersncssnnpensesessccomssncnesnecssovesevesssncscesteeses 5

Sherman Act, 15 U.S.C. §1, et $€q.......ccccscesererseeeensereseneneeeetees 2,12

Best eecessncsnncsnsennsczeassevsseccenceccvcececensesnsseensovesaossesesesees 2

Be EE Ot rccrecncnscsszencescscsnmsncsececensccncssnsesesesesesscesssssseces 11

Administrative Materials

In the Matter of National Academy of Arbitrators,

FTC File No. 011-0242 (2003)...........cccossseseseseresneneneees 11,12

STITT crrtsnreresenssemnssensscssntecsessnseensnssnecscscsnessstesseees 5

TTT cecenrceseecsnnsconscenencsescnsnorsssscesvecessesosssooees 5

cr crsersnansusnsntassesseszancenseenersecsscoavessseses 5

Other Authorities:

BLACK’S LAW DICTIONARY (7% ed. 1999)..........ecssessesessesseeeneeseen 4

GENERAL ACCOUNTING OFFICE, ISSUES RELATED TO

GOVERNANCE OF THE POSTAL SERVICE, GAO Rept.

Bs SMD CIO Pccccenscceszsecccssenszsncnscsnsesscssssecssscessceseeeees 7,

GERALD CULLINAN, THE POST OFFICE DEPARTMENT (Fredrick

Pan FURIE TOG rece cscscccsccscccscccscccccccccsccsccccsccsncececccarecesoees 9

U.S. POSTAL SERVICE. OFFICE OF THE INSPECTOR GENERAL.

POSTAL SERVICE'S INVOLVEMENT IN SPONSORSHIPS,

Audit Rept. No. OE-AR-03-003 (2003)....cc.--.sssossseese 9

IN THE

Supreme Court of the Gnited States

No. 02-1290

UNITED STATES POSTAL SERVICE, PETITIONER

FLAMINGO INDUSTRIES (U.S.A.) LTD.

AND ARTHUR WAH

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

INTEREST OF AMICUS CURIAE!

The Center for the Advancement of Capitalism (“CAC”)

is a District of Columbia corporation organized in 1998, and

exempt from income tax under § 501(c)(4) of the Internal

Revenue Code. CAC’s mission is to present analyses to

policymakers, the judiciary, and the public to assist in the

identification and protection of the individual rights of the

American people. CAC applies Ayn Rand's philosophy of

Objectivism to contemporary public policy issues, and

the impact of legal and regulatory institutions upon the

rights of American citizens.

1 CAC files this brief with the consent of all parties. The letters granting

consent have been filed with the Court. No counsel for a party authored

this brief in whole or in part, nor did any person or entity, other than CAC

or its counsel, make a monetary contribution to the preparation or

submission of this brief.

CAC’s primary mission is to advance philosophical and

legal principles that promote limited government, individual

rights, and capitalism. This case directly relates to CAC’s

mission, and accordingly, this Court's ultimate decision

impacts the interests of CAC and its supporters. This case

presents the question of whether a government-created

monopoly may be sued under the antitrust laws? for

commercial activities unrelated to that monopoly.

CAC files this brief in support of neither party. While

we support affirming the judgment below, we do so for

reasons unrelated to the respondents’ underlying lawsuit,

and on principle, we oppose settling commercial disputes

through the use of the antitrust laws.

SUMMARY OF ARGUMENT

The Ninth Circuit held that the Postal Service (the

“Service”) is a “person”? under the antitrust laws because of

the “sue-or-be-sued” language contained in 39 US.C. §

401(1). The Service argues this is erroneous because “ sue-or-

be-sued” constitutes only a waiver of sovereign immunity,

and since it possessed immunity in the first place, it is a

sovereign, not a person. Relying on United States v. Cooper

Corp.4, the Service claims that no entity which incorporates

the United States’ sovereign power can be sued under the

antitrust laws.

The Postal Service’s position is incorrect because the

Service itself is not a properly constituted “sovereign” entity

under the Constitution. Despite the definition of the Service

as an “independent establishment of the executive branch,”5

the Service’s organization is wholly incompatible with the

2 Throughout this brief, “antitrust laws” refer primarily to the Sherman

Act, 15 U.S.C. § 1, et seq. and the Clayton Act, 15 U.S.C. § 12, et seq.

3“Person” for antitrust purposes is defined in 15 U.S.C. § 7.

4312 US. 600 (1941).

539 US.C. § 201.

requirements of Article I] for organization of sovereign

agencies. Indeed, if the Service were sovereign, this Court

would have to strike down portions of the Postal

Reorganization Act (“PRA”) as unconstitutional under

Morrison v. Olson’ and its antecedents. Rather than take this

step, the Court should recognize the Service’s current

structure as that of a non-sovereign government-sponsored

corporation that has the same potential to be sued under the

antitrust laws as any business corporation.

Moreover, the Postal Service is not entitled to sovereign

status because of its substantial non-postal activities;

activities that are irrelevant to the Service’s constitutional

objectives under the Post Office Clause. And despite the

Service’s argument that antitrust lawsuits would

compromise its congressional mandates with respect to the

mail, there is no valid public policy reason that warrants

reversal of the Ninth Circuit's decision, nor is there reason to

infer a broad antitrust exemption for the Service based on

existing antitrust policy.

ARGUMENT

I. The Postal Service, as presently structured, does not

carry out an essential sovereign function, and is not

entitled to be treated as a sovereign entity under the

Constitution.

Sovereignty, Chief Justice Jay once wrote, is in the

people of the nation. Unlike the feudal principles that

underscore traditional European concepts of sovereignty,

American sovereignty is rooted in the principles of

individual rights and the equality of citizens before the law.

The Constitution animates these principles by protecting the

individual rights of every citizen through institutions that

6 Publ. L. 91-375 (39 U.S.C. § 101, et seq.) (1970).

7 487 US. 654 (1988).

8 Chisholm v. Georgia, 2 US. (2 Dall.) 419, 471 (1793) (seriatim opinion of

Jay, CJ.)

exercise the legislative, executive, and judicial powers.

These powers constitute the body of sovereign rights, that is,

the “unique right possessed by a state or its agencies that

enables it to carry out its official functions for the public

benefit.” These sovereign rights are simply an extension of

individual rights, and not a set of powers vested in some

higher being or a particular individual. These rights are also

“distinguished from certain proprietary rights that [the state]

may possess like any other private person” (italics added).'°

In this case, the Court must decide whether the Postal

Service exercises sovereign or proprietary rights for antitrust

enforcement purposes. CAC argues that the Service exercises

proprietary rights only when it engages in commerce

unrelated to its constitutional duty to provide mail services.

Therefore, the Service is entitled to no sovereign

classification that would exempt it from the antitrust laws.

a. The Postal Service’s organizational structure is

incompatible with the Constitution’s requirements

for a sovereign entity within the executive branch.

The Postal Reorganization Act defines the Postal Service

as an “independent establishment of the executive branch.”

This is not a clear definition. The Service is neither an

outright agency nor a traditional corporation. The question

is, on which side does the Se vice fall when determining

personhood under the antitrust laws? The Service argues

that it is constructed to perform an “essential” sovereign

function."! But the nature of the Service’s organization and

governing case law indicate just the opposite.

By its own reading of the PRA, the Postal Service

performs an “executive” function.” It does not perform

legislative or judicial functions, although the Service

9 BLACK’s LAW DICTIONARY 1401 (7% ed. 1999)

10 Id.

Pet. 4.

2 Pet. 4, 8.

possesses limited regulatory powers related to its mail

monopoly. Thus, for purposes of this case, the question is

limited to whether the Service is an executive agency.

If the Postal Service is correct in stating that it is a

“sovereign” entity under the executive branch, then the

Service’s current legal structure must be held

unconstitutional. The problem arises under 39 U.S.C. §

202(c), which requires that the Postmaster General be

appointed by the nine governors of the Postal Service. The

governors, who are appointed by the President with the

advice and consent of the Senate, have the exclusive power

to hire and fire the Postmaster General at-will..4 Although

the Postmaster General is the chief executive officer of the

Service and enjoys final authority over administrative

matters'5, he is ultimately answerable only to the nine

appointed governors.'*

The constitutional problem is that the Postmaster

General, as the head of an organization claiming to be a

sovereign agency, should be appointed by the President

with the advice and consent of the Senate. Under the

Appointments Clause of Article II”, only “inferior” officers

of the United States may be hired outside the presidential-

nomination-and-Senate-confirmation process. “Superior”

officers—including all department heads—must be

appointed by the President, and be ultimately be

accountable to the President, who is the Nation’s chief

executive.'8

3 See, e.g., 39 US.C. § 401(9) (granting the Service eminent domain

powers), § 404(7) (authorizing the Service to investigate postal offenses).

4 See Carlin v. McKean, 823 F.2d 620, 623 (D.C. Cir. 1987).

5 See, e.g., 39 U.S.C. § 203, 39 C.F.R. §§ 3.5, 211.3 & 221.3(b).

16 See Carlin, 823 F.2d at 624.

7 U.S. Const. art. II, sec. 2, cl. 2.

#8 U.S. Const. art. II, sec. 1, cl. 1 (“the executive Power shall be vested in a

President of the United States of America.”); See also art. II, sec. 3 (the

President “shall Commission all the Officers of the United States”).

In the past, the Court held that the line dividing the

classification of superior and inferior officers is “far from

clear” by simply reading the Appointments Clause.'? At the

same time, the Court has established some basic, non-

exclusive criteria for drawing this line. In Morrison v. Olson,

the Court looked to three factors in determining whether an

Independent Counsel appointed by a federal court and

subject to dismissal by the Attorney General only “for cause”

was a superior officer. The Court ultimately concluded that

the Independent Counsel was in fact an inferior officer for

three reasons: First, the officer was “subject to removal by a

higher Executive Branch official”; second, the law provided

only “certain limited duties” for the Independent Counsel,

or put another way, the office did not “include any authority

to formulate policy for the Government or the Executive

Branch”; and finally, the office itself was “limited in

jurisdiction.”*° The Morrison Court read these factors

together in holding that the Independent Counsel was

unmistakably an inferior officer under the Appointments

Clause.?!

In this case, the Postmaster General easily falls on the

“superior” side of the line under all three of the Morrison

tests. The Postmaster General’s authority under the PRA is

extensive, not limited in duties or jurisdiction like the

Independent Counsel’s. More importantly, the Postmaster

General is not subject to removal by any higher Executive

Branch official. Neither the President nor any officer under

his direction may fire the Postmaster General. That power is

vested solely and irreversibly in the nine governors.

It could be argued that the Postmaster General is an

inferior officer because he is ultimately accountable to the

governors. Under this interpretation, the governors are the

“superior” officers within the Postal Service, not the

19 Morrison v. Olson, 487 U.S. at 671.

2 Id. at 671-673.

21 Id. at 672.

Postmaster General. But this reasoning lacks credibility.

First, the governors are not directly accountable to the

President, since governors may be dismissed only “for

cause,” thus denying the President the ability to directly

influence the hiring or firing of a Postmaster General.

Second, the Board of Governors is composed of eleven

members—the nine appointed governors, the Postmaster

General, and the Deputy Postmaster General.” The latter

two are discretionary appointments made by the nine

governors, and although the Postmaster General cannot vote

on matters related to his own hiring and firing, he is

nonetheless a member of the body given ultimate power

over the Service, thus rendering him a superior officer.

The only other exception to the superior officer

requirements of the Appointments Clause is the rule first

enunciated by the Court in Humphrey's Executor v. United

States.4 In that case, the court held that Congress was

permitted to restrict the President’s power to remove officers

of quasi-legislative and quasi-judicial agencies, such as the

Federal Trade Commission, since such agencies are not

wholly executive in nature.> This exception is inapplicable

to the Postal Service, its Board of Governors, and the

Postmaster General, since the Service, by its own admission,

carries out a purely executive function.

Finally, the PRA itself is vague in defining the Postal

Service’s legal status. Even Congress hasn’t clearly

determined what the Service is, as a 1997 report by the

legislature’s General Accounting Office declared the Service

to be a “corporation-like organization.” This report found

2 39 U.S.C. § 202(a).

3 39 U.S.C. § 202(c)-(d).

24 295 U.S. 602 (1935).

3 Id. at 624.

26 GENERAL ACCOUNTING OFFICE, U.S. POSTAL SERVICE: ISSUES RELATED TO

GOVERNANCE OF THE POSTAL SERVICE, GAO Rept. No. 97-141, at 2 (August

1997).

that while the Service steadfastly maintains that it is not a

corporation, “it is frequently considered by others to be one

and has been previously included in major government

corporation studies done over the last several years.””” The

GAO also reported that former and current members of the

Board of Governors “believed that the current legal

definition of the Postal Service—an independent

establishment of the executive branch—is unclear and causes

uncertainties about how far the Postal Service can go in

competing with the private sector.”

These factors demonstrate that the Postal Service cannot

be treated as a sovereign entity under the Constitution. The

Court must either recognize this fact and hold that the

Service is not entitled to claim sovereign status under its

present structure, or declare the Service to be a sovereign

entity whose structure violates the Appointments Clause.

b. The Postal Service's non-mail functions and

activities are not entitled to sovereign status.

Even if the Postal Service’s structure were consistent

with Article II’s requirements for a sovereign entity, many of

the Service’s current functions and programs do not fall

within the scope of Article I’s Post Office Clause.2 The

Service des not simply deliver the mail; it also competes

with private businesses in numerous markets outside of the

Service’s First-Class mail monopoly.® A _ well-known

7 Id.

8 Td. at 21.

29 U.S. Const. art. I, sec. 8, cl. 7.

30 The Post Office Clause does not require the government to maintain a

coercive mail monopoly. Compare this with the earlier Articles of

Confederation (1781), which granted Congress the “sole and exclusive”

. power to maintain an interstate postal system. Art. IX, cl. 4. It’s also

noteworthy that the British Crown's re-imposition of a postal monopoly

on the American colonies in 1711 led the Virginia House of Burgesses to

employ the Revolutionary phrase “no taxation without representation” in

response to the monopoly’s arbitrary postage rates. See GERALD CULLINAN,

THE Post OFFICE DEPARTMENT 7-10 (Fredrick A. Praeger 1968).

example is package and express document delivery, where

the Service competes with firms like Federal Express and

United Parcel Service.

Another example is the Postal Service’s recent

expansion into online payment products. The Service offers

various Internet-based products that enable customers to

pay their bills, send money to individuals, and remit

payment for online auctions. These product lines did not

originate with the Service but rather with private firms.

Indeed, these products are partially designed to bypass the

Service's First-Class mail monopoly by offering customers a

cheaper, more efficient means of making payments. At its

core, however, these products are a form of financial

services —not postal mail. While the Postal Service is legally

permitted to offer online payment products, such products

do not fall within the plain meaning of the powers assigned

to the Government under the Post Office Clause.5! The same

can be said for the other non-mail product lines maintained

by the Service.

It is also the case that the Postal Service’s non-mail

products distract the Service from providing its essential

mail services mission. Often the Service’s non-mail activities

yield no tangible public benefit while expending Service

funds. For example, earlier this year the Postal Service's

inspector general reported that nearly $48 million spent by

the Service on professional athletic sponsorships—most

notably the professional cycling team led by Lance

Armstrong—“lacked goals and objectives”32 and failed to

raise any verifiable revenue. The OIG questioned why the

%| The Postal Service provides its Internet-based services through its

website at www.usps.com. This itself is noteworthy because government

entities use Internet domains that end in “.gov”, while “.com” domains

are reserved for purely commercial usage.

32 UNITED STATES POSTAL SERVICE, OFFICE OF THE INSPECTOR GENERAL,

POSTAL SERVICE'S INVOLVEMENT IN SPONSORSHIPS, Audit Rept. No. OE-AR-

03-003, at 4 (2003).

Service would sponsor a cycling team “whose major event is

the Tour de France when the primary job of the Postal

Service is to deliver mail domestically,”* a valid concern

given the Service’s loss of nearly $1.6 billion in 2001.

While the Postal Service’s spending habits are not

before this Court, the Service’s claim of sovereign status

must be viewed in light of its full complement of activities.

Recognizing the Service as a sovereign entity would grant

the Service—and the Government generally—unlimited

authority to engage in commercial competition without

being subject to the same rules as private competitors,

namely the antitrust laws. This is wholly inconsistent with

the American concept of sovereignty, because it is

unreasonable to assume that the sovereign—the people —

would create an entity that competes against private

business interests without having to adhere to the same

basic rules as those businesses. Furthermore, it is

unreasonable to assume the people would permit such an

entity to be substantially removed from the functions (and

structure) authorized by the Constitution itself.

Consequently, the Court should not create a sovereign

refuge for the Postal Service’s commercial, non-mail

activities.

II. The alleged ‘sapact of subjecting the Postal Service to

antitrust suits is insufficient to warrant reversal of the

decision below.

The Postal Service argues that subjecting it to current

and future antitrust litigation “could impose significant

expenses and delay on Postal Service operations that would

inevitably flow from having to defend against antitrust

claims.”35 The Service pleads with the Court to consider

“economic uncertainties” and other public policy factors in

33 Td. at 15.

4 Id. ay 14.

35 Pet. 18.

Ee gee

ae ee ee

reviewing the legality of the Ninth Circuit's decision.* But

while CAC concedes the potential costs of affirming the

decision below, this alone does not warrant granting the

Service a total judicial exemption from the antitrust laws.

The Service's effort to use unrelated policy arguments that

do not address the question presented in its petition is a red

herring, and should not be given any weight by the Court.

However, an interesting question arises from the Postal

Service’s public policy argument, i.e. whether the Service’s

legislative mandate under the PRA should be read as

outweighing the concurrent legislative mandate contained in

the antitrust laws. CAC takes no position on this issue, as we

question the constitutionality of both the existing Postal

Service and the antitrust laws, but we note that recent

precedent supports the use of antitrust to thwart the

congressional objectives of a government agency. Last year

the Federal Trade Commission concluded a consent order

with the National Academy of Arbitrators (“NAA”)*”, an

honorary society of labor-management neutrals that

maintains a professional ethics code in direct consultation

and coordination with the Federal Mediation and

Conciliation Service (“FMCS”), an independent agency of

the Executive Branch. Despite FMCS’ participation in, and

active supervision of, NAA’s ethics code pursuant to the

agency’s legislative mandate, the FTC nevertheless asserted

jurisdiction to challenge portions of the ethics code under

the antitrust laws. NAA settled the case without challenging

the FTC’s claims, but FTC officials never consulted FMCS

about the NAA matter, despite FMCS’ longstanding

jurisdiction over NAA’s affairs.%9

% Pet. 19.

37 In the Matter of National Academy of Arbitrators, FTC File No. 011-0242

(Final Consent Order Dated Jan. 17, 2003).

3% 29 U.S.C. § 172, et seq.

3 See Comments of Citizens for Voluntary Trade at 3-7, FTC File No. 011-

0242 (Dec. 20, 2002) (comments on file with FTC).

While not precedental or conclusive, the NAA case

suggests that government antitrust officials see no ordinary

conflict between a broad legislative mandate and the broad

objectives of antitrust enforcement. CAC does not endorse

this expansive view of antitrust policy, but acknowledges

contemporary antitrust policy for what it is, especially in

light of the Postal Service’s argument that subjecting it to

antitrust liability would compromise congressional intent:

In addition, respondents’ position [favoring

the Ninth Circuit's judgment] would permit

courts, rather than Congress, to determine

when and whether the Postal Service's

operations are anti-competitive, and if so,

whether its operations were not sufficiently

authorized by Congress such that the Postal

Service should be liable for the severe

sanctions imposed by the antitrust laws.”

This is a reversal of traditional antitrust theory. While it

would be nice if every American business could know under

what circumstances their actions are “anticompetitive,” the

reality is that antitrust laws are enforced according to a set of

judicially- and executive-created doctrines that define the

precise scope of the antitrust laws, which themselves are

nothing more than a set of vague policy pronouncements.

Antitrust law has never been well-defined by Congress, and

the Postal Service is entitled to no greater degree of certainty

than the average American business in this respect.

Finally, the Postal Service’s central thesis in this case —

that the antitrust laws were never meant to be applied to

entities like the Service—cannot be accepted as a defirutive

view of congressional intent, because the Service, as

currently structured, did not come into existence until some

80 years following the passage of the first antitrust law, the

Sherman Act. Indeed, the antitrust laws precede the concept

Pet. Reply Brief at 9.

of a hybrid government-corporate entity with the Service's

broad commercial scope. Furthermore, there is no evidence

in the legislative history of the PRA which demonstrates that

Congress considered potential policy conflicts between the

PRA and the antitrust laws. It would be reasonable to afford

the lower courts an opportunity to develop more substantive

case law on this issue before this Court forecloses any future

antitrust actions against the Service. And in any case,

Congress remains free to grant the Postal Service an express

antitrust exemption along the lines the Service seeks in this

case. But in the absence of clear statutory language, this

Court should not infer an antitrust exemption of any kind

for the Service with respect to non-mail services.

CONCLUSION

The Postal Service pres<::"s no compelling or persuasive

argument for reversing the .olding of the Ninth Circuit.

Even if the “sue-or-be-sued” language of 39 U.S.C. § 1001 is

insufficient to subject the Service to the antitrust laws, the

numerous independent grounds discussed above provide an

adequate basis to find the Service is a “person” for purposes

of the antitrust laws. Therefore the judgment should be

affirmed.

Respectfully Submitted,