                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA


THE HUMANE SOCIETY OF THE     )
OF THE UNITED STATES,         )
                              )
                              )
          Plaintiff,          )
                              )
     v.                       )      Civil Action No. 07-1233 (JR)
                              )
UNITED STATES POSTAL SERVICE, )
                              )
          Defendant.          )
______________________________)


                       MEMORANDUM OPINION

          The Animal Welfare Act, 7 U.S.C. § 2156, makes it

unlawful to use the United States mail to advertise an animal or

certain sharp instruments for use in “animal fighting ventures.”

The Postal Reorganization Act renders mail that is punishable

under the Animal Welfare Act “nonmailable.”    39 U.S.C. § 3001.

Invoking those statutes, the Humane Society of the United States

petitioned the United States Postal Service (“USPS”) to declare

nonmailable a monthly periodical entitled The Feathered Warrior.

The Humane Society sought judicial review of    USPS’s denial of

that petition, asserting that the denial was arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with the law.    See 5 U.S.C. § 706(2)(A).

          In an order issued March 27, 2009 [dkt # 44], I denied

without prejudice both the Humane Society’s motion for summary

judgment [dkt # 26] and USPS’s cross-motion to dismiss or for
summary judgment [dkt # 27], remanded the matter to the Postal

Service for further consideration, and stayed proceedings in this

court.   The reasons for that order are set forth in this

memorandum.

                               Facts

           USPS delivers The Feathered Warrior to a few thousand

subscribers every month,1 charging a discounted periodical rate

for postage.   About two-thirds of the magazine’s content is

advertisements.   The Humane Society alleges that more than ninety

percent of the ads are criminal solicitations for the sale of

fighting animals and weapons whose purchase is illegal under

federal law and the laws of many states.   There are also ads for

the sale of cockfighting supplies, illegal steroids, and animal

fighting venues (i.e., cockfighting clubs) in states where

cockfighting is illegal; ads for illegal animal fights; and

listings of champions in recent cockfights.   Publications like

The Feathered Warrior are recovered in seventy-five percent or

more of law enforcement raids of illegal animal fights and are

offered in evidence to prove criminal culpability.

           The Humane Society is often called upon by law

enforcement to provide care and shelter for fighting animals

seized in raids of animal fighting ventures, and it expects that

     1
     The Humane Society’s complaint originally addressed both
The Feathered Warrior and The Gamecock, but settlement was
reached in another case with regard to The Gamecock [dkt # 34].

                                -2-
the calls for such service will continue.   The costs to the

Humane Society, for the equipment, transportation, veterinary

supplies, and personnel needed to respond to such calls, usually

on an emergency basis and without prior notice, run to hundreds

of thousands of dollars.

          The Humane Society alleges that USPS’s continuing

willingness to deliver The Feathered Warrior violates the Postal

Reorganization Act’s requirement that material in violation of

the Animal Welfare Act be declared nonmailable.   The Humane

Society also asserts that the circulation of The Feathered

Warrior violates USPS’s own Domestic Mail Manual (“DMM”).

          The Animal Welfare Act states in relevant part that:

          (c) . . . It shall be unlawful for any person
          to knowingly use the mail service of the
          United States Postal Service or any
          instrumentality of interstate commerce for
          commercial speech for purposes of advertising
          an animal, or an instrument described in
          subsection (e), for use in an animal fighting
          venture, promoting or in any other manner
          furthering an animal fighting venture except
          as performed outside the limits of the States
          of the United States.

          (d) . . . Notwithstanding the provisions of
          subsection (c) of this section, the
          activities prohibited by such subsection
          shall be unlawful with respect to fighting
          ventures involving live birds only if the
          fight is to take place in a State where it
          would be in violation of the laws thereof.

          (e) . . . It shall be unlawful for any person
          to knowingly sell, buy, transport, or deliver
          in interstate or foreign commerce a knife, a
          gaff, or any other sharp instrument attached,

                               -3-
           or designed or intended to be attached, to
           the leg of a bird for use in an animal
           fighting venture.

7 U.S.C. § 2156 (as amended on June 18, 2008).2   The language of

the DMM closely tracks the language of the Animal Welfare act.3

           The Postal Reorganization Act makes “[m]atter the

deposit of which in the mails is punishable under . . . section

26 of the Animal Welfare Act nonmailable.”   39 U.S.C. § 3001(a)

(emphasis added).

           On April 26, 2006, the Humane Society petitioned USPS

with the request that The Feathered Warrior be declared

nonmailable and that its periodical mailing privileges be

revoked.   By letter dated June 5, 2006, USPS declined to take the

requested action, asserting that under the Animal Welfare Act and

the DMM, “bird fighting magazines are generally mailable;

however, advertisements of bird fights are nonmailable if the

fights are to take place in states that have outlawed the

practice.”


     2
      Prior to June 18, 2008, subsection (c) made it unlawful
for any person to “knowingly use the mail service of the United
States Postal Service or any instrumentality of interstate
commerce for commercial speech for purposes of promoting or in
any other manner furthering an animal fighting venture except as
performed outside the limits of the States of the United States.”
     3
      Section 601.12.5.7 of the DMM states that “[w]ritten,
printed, or graphic matter (e.g., advertisements or other
commercial speech) promoting or furthering an animal fighting
venture conducted in any state (except a venture involving live
birds permitted under the laws of the state in which the fight is
conducted) is nonmailable under 7 USC 2156.”

                                -4-
            On May 3, 2007, the Animal Welfare Act was amended to

expressly bar the mailing of “commercial speech for purposes of

promoting or in any other manner furthering an animal fighting

venture.”    7 U.S.C. § 2156.   On that same day, the Humane Society

requested that USPS reconsider its prior decision regarding the

mailability of The Feathered Warrior.     On June 26, 2007, USPS

again denied the Humane Society’s request, declaring that the

amendment to the Animal Welfare Act “did not alter its direct

application to the Postal Service.”

            USPS’s position in response to the Humane Society’s

suit is that its responses to the Humane Society’s mailings were

not final agency action or the result of judicially reviewable

“proceedings”; that indeed USPS has no “proceedings” about

mailability that can be initiated by anyone but a mailer unless

they concern lottery matter, false advertising matter, or

articles and substances, see 39 C.F.R. Parts 952-953; and that

§ 3001(m) of the Postal Reorganization Act, which provides that

“proceedings concerning the mailability of matter . . . shall be

conducted in accordance with chapters 5 and 7 of title 5” (the

Administrative Procedure Act), has no application to the Humane

Society’s petition or to USPS’s rejection of that petition.

            On June 18, 2008, after this suit was filed, § 2156 was

amended again, inserting an express ban on mailing “advertising”




                                  -5-
materials for fighting animals and cockfighting weapons.    7

U.S.C. § 2156.

                              Analysis

1. Standing

           A plaintiff bringing a claim of unlawful government

action must satisfy all three of the Article III standing

requirements:    (1) injury-in-fact; (2) causation; and

(3) redressability.    Renal Physicians Ass’n v. U.S. Dep’t of

Health and Human Servs., 489 F.3d 1267, 1272 (D.C. Cir. 2007)

(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992)).   An organizational plaintiff may assert either

organizational standing, i.e., standing in its own right, or

representational standing, i.e., standing on behalf of its

members.

           Here, alleging financial injury and a need to shift

programming and organizational resources, the Humane Society

asserts organizational standing.    See Brady Campaign to Prevent

Gun Violence United with the Million Mom March v. Ashcroft, 339

F. Supp. 2d 68, 73 (D.D.C. 2004) (citing Hunt v. Wash. State

Apple Adver. Comm’n, 432 U.S. 333, 342-43 (1977)).    USPS disputes

the claim of organizational standing, asserting that the Humane

Society has not been injured, that its expenditures cannot be

traced to the actions of USPS, and that an order forcing USPS to

declare The Feathered Warrior nonmailable would not decrease


                                 -6-
illegal animal fights or the number of law enforcement raids on

such fights.   In evaluating this dispute, I must “assume the

merits in favor of the party invoking . . . jurisdiction.”

Emergency Coal. to Defend Educ. Travel v. U.S. Dep’t of the

Treasury, 545 F.3d 4, 10 (D.C. Cir. 2008).

           A. Injury

           Injury-in-fact is “an invasion of a legally protected

interest that is (I) concrete and particularized rather than

abstract or generalized, and (ii) actual or imminent rather than

remote, speculative, conjectural or hypothetical.”   In re Navy

Chaplaincy, 534 F.3d 756, 759-60 (D.C. Cir. 2008) (internal

quotations omitted).

           USPS does not dispute the Humane Society’s claim that

answering law enforcement requests for assistance to animals

seized from illegal fights costs hundreds of thousands of

dollars.   It argues instead that those expenses invade no legally

protected interest of the Humane Society because the Humane

Society is a volunteer - that the fact that the Humane Society

chooses to try and eliminate illegal animal fights makes the

related expenditures a self-inflicted wound insufficient to

establish injury-in-fact.   Additionally, USPS argues that there

is no actual or imminent harm because the Humane Society cannot

identify any future raids in which the Humane Society will be

called in to assist.


                                -7-
          The Humane Society has spent decades trying to reduce

illegal animal fighting in the United States.   Its decision to

dedicate time and resources to achieving this goal may be a

voluntary budgetary decision, but if the need to care for animals

on an emergency basis is increased by USPS’s circulation of The

Feathered Warrior, then the financial injury to the Humane

Society is neither voluntary nor self-inflicted.   See Havens

Realty Corp. v. Coleman, 455 U.S. 363, 378-79 (1982) (if

discriminatory actions taken by the defendants have “perceptibly

impaired” the plaintiff’s programs, “there can be no question

that the organization has suffered injury in fact”); see also

Abigail Alliance for Better Access to Developmental Drugs v.

Eschenbach, 469 F.3d 129, 133 (D.C. Cir. 2006) (citing cases that

have found organizational standing under Havens); Fair Employment

Council of Greater Washington, Inc. v. BMC Mktg. Corp., 28 F.3d

1268, 1276-77 (D.C. Cir. 1994) (an organization’s own budgetary

choices, independent of the defendant’s actions, is not a

recognizable injury-in-fact).

          The fact that the Humane Society cannot name the exact

date and location of the next raid of an illegal animal fight

does not affect its standing.   See Emergency Coal. to Defend

Educ. Travel, 545 F.3d 4, 9-10 (noting that “some day” intentions

do not create an actual or imminent injury, but events that occur




                                -8-
consistently are more concrete and specific and can serve as the

basis for injury-in-fact).

          B. Causation and redressability

          To establish the causation element of standing, a

plaintiff must demonstrate that its injury is “fairly traceable”

to the defendant’s actions, “as opposed to the independent action

of a third party not before the court.”    America’s Cmty. Bankers

v. F.D.I.C., 200 F.3d 822, 827 (D.C. Cir. 2000).   To establish

redressability, a plaintiff must establish that it is “likely, as

opposed to merely speculative, that a favorable decision by this

court will redress the injury suffered.”    Id.

          USPS argues that its distribution of The Feathered

Warrior is not a substantial factor in the decision of animal

fighting enthusiasts to engage in illegal animal fights, and that

the Humane Society’s injury is therefore not fairly traceable to

USPS’s decision on the mailability of The Feathered Warrior.      The

Humane Society argues, on the other hand, that causation and

redressability exist because the circulation of The Feathered

Warrior promotes animal fights and therefore likely increases the

number of animals injured in illegal animal fights.

          Standing to challenge government conduct that allegedly

causes a third party to injure the plaintiff can exist either

“where the challenged government action authorized conduct that

would otherwise have been illegal,” or “where the record


                               -9-
presented substantial evidence of a causal relationship between

the government policy and the third-party conduct, leaving little

doubt as to causation and the likelihood of redress.”   Renal

Physicians Ass’n, 489 F.3d at 1275 (internal quotations omitted).

The Humane Society arguably meets both tests.   Under the first

one, the Humane Society challenges government action that

authorizes what it alleges is the illegal acceptance of mail

matter.   Under the second, the record does present “substantial

evidence of a causal relationship” between the continued mailing

of The Feathered Warrior and illegal animal fighting, including a

declaration by Ann Chynoweth, the Senior Director of the Animal

Cruelty and Fighting campaign for the Humane Society [dkt # 26-

2].   Chynoweth states that the distribution of The Feathered

Warrior promotes and furthers illegal animal fighting ventures in

at least five ways: (1) it advertises animal fights, (2) specific

animal fighting ventures would not exist without the publication

because it would be more difficult to procure animals and

supplies for the fights, (3) it advertises birds that won at past

fights and therefore encourages attendance at particular fights,

(4) it advertises fighting animals, and (5) it publishes fight

results from particular venues [dkt #26-2 ¶¶ 31-38].    The Humane

Society also points to an academic study examining the market

forces of cockfighting [dkt #29-3].   See Donna K. Darden &

Steven K. Worden, Marketing Deviance: The Selling of


                               -10-
Cockfighting, 4 Journal of Human-Animal Studies 211, 228 (1996).

In that study, the authors state that “[t]he major third party

intermediary or facilitator in the marketing of fighting chickens

is the magazine.”    Id.   Although the article also states that

“[w]ord-of-mouth is still the most effective means of advertising

and promoting in all forms of marketing,” the article notes that

in the world of cockfighting, magazines such as The Feathered

Warrior are the only intermediary or facilitator of product

sales.   Id.

           C. Prudential standing

           In addition to the constitutional standing

requirements, a plaintiff must also satisfy prudential standing

requirements.    Bennett v. Spear, 520 U.S. 154, 162 (1997);

Emergency Coal. to Defend Educ. Travel, 545 F.3d at *11.     The

Humane Society can establish prudential standing if its injury is

within the zone-of-interests protected or regulated by the Animal

Welfare Act.    See Emergency Coal. to Defend Educ. Travel, 545

F.3d at *11 (discussing prudential standing under the APA).     The

Humane Society does not need to show that the congressional

purpose of the Animal Welfare Act was to benefit the Humane

Society, see Animal Legal Defense Fund, 154 F.3d at 444, but must

show only that its injury is arguably within the protected zone-

of-interests.    See Muir v. Navy Fed. Credit Union, 529 F.3d 1100,

1106-07 (D.C. Cir. 2008).


                                 -11-
          Congress enacted § 2156 of the Animal Welfare Act, and

has repeatedly amended it over the years, to assure the humane

treatment of animals and to protect animals from being abused in

illegal animal fights.    See 7 U.S.C. § 2131.   The Humane

Society’s reason for existence is to protect animals, and, as

indicated in its declarations to this court and at oral argument,

it has dedicated time and resources for over fifty years to

eliminate or reduce the number of illegal animal fights.      See

Chynoweth Declaration [dkt #26-2 ¶ 2].    Its grievance is well

within the zone-of-interests protected or regulated by the Animal

Welfare Act.    See Animal Welfare Inst. v. Kreps, 561 F.2d 1002,

1007 (D.C. Cir. 1977) (“Where an act is expressly motivated by

considerations of humaneness toward animals, who are uniquely

incapable of defending their own interests in court, it strikes

us as eminently logical to allow groups specifically concerned

with animal welfare to invoke the aid of the courts in enforcing

the statute.”).

2. APA Review

          Agency action is generally subject to judicial review

under the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701-

706, if it is final, Bennett v. Spear, 520 U.S. 154, 177-78

(1997), and if the party seeking judicial review is aggrieved by

the action.    5 U.S.C. § 702 (“A person suffering legal wrong

because of agency action, or adversely affected or aggrieved by


                                -12-
agency action within the meaning of a relevant statute, is

entitled to judicial review thereof.”); Air Courier Conference of

America v. American Postal Workers Union, AFL-CIO, 498 U.S. 517,

524 (1991).   If a statute specifically precludes judicial review,

however, or the agency action is committed to agency discretion

by law, then there can be no judicial review.   5 U.S.C. § 701(a).

          USPS argues that its letters responding to the Humane

Society’s petition and request for reconsideration were not final

agency action, and that, even if they were, they are not subject

to judicial review because the Humane Society is not a proper

plaintiff and because, with exceptions not applicable here, USPS

is exempt from the judicial review provisions of the APA.

          A. Final agency action

          For an agency action to be “final,” it must “mark the

consummation of the agency’s decisionmaking process,” and be an

action “by which rights or obligations have been determined, or

from which legal consequences will flow.”   Bennett v. Spear, 520

U.S. 154, 177-78 (1997) (internal quotations omitted).

          USPS’s suggestion that its letters to the Humane

Society did not unequivocally state the agency’s position

regarding the mailability of The Feathered Warrior does not

withstand even casual scrutiny.    Its June 5, 2006 response to the

Humane Society’s petition states:




                               -13-
          We appreciate your concern and thank you for

          bringing these matters to our attention.

          However, we cannot take the requested actions

          at this time. . . .We interpret our mailing

          standards to mean that bird fighting

          magazines are generally mailable; however,

          advertisements of bird fights are nonmailable

          if the fights are to take place in states

          that have outlawed the practice.    Based on

          this interpretation, we cannot identify

          nonmailable advertising in the []

          publications that you sent to us. . . . If

          you can point to another authority that would

          suggest alternative interpretations of the

          AWA statute that gave rise to our mailing

          standards, we will reconsider our

          conclusions.

And its June 26, 2007 response to the Humane Society’s request

for reconsideration in light of recent amendments to the Animal

Welfare Act states:

          Although the Act did clarify the scope of 7

          U.S.C. § 2156(c) as including all

          instrumentalities “of interstate commerce for

          commercial speech”, because the Act did not


                              -14-
          alter its direct application to the Postal

          Service, I do not believe this change affects

          my previous interpretation.   The absence of

          any change to the plain language of the

          statute which addresses the Postal Service

          prevents me from adopting contrary intentions

          expressed within the Act’s legislative

          history.



          Likewise, the Act’s addition of a provision

          criminalizing the sale, purchase, transport,

          or delivery in interstate or foreign commerce

          of bird-fighting accessories did not include

          among its prohibitions any ban on advertising

          of such items.   7 U.S.C. § 2156(e).

          Therefore, the mailability of these

          magazines, which appear to contain such

          advertisements, remains unchanged.

Both letters unequivocally recite USPS’s determination that The

Feathered Warrior was mailable.   Neither suggests that USPS would

engage in further consideration of the issue without a change of

circumstances.   See Ciba-Geigy Corp. v. U.S. Environmental

Protection Agency, 801 F.2d 430, 435-36 (D.C. Cir. 1986) (letter

from the EPA was final agency action because it “unequivocally


                               -15-
stated EPA’s position” and did not indicate that the decision was

subject to further agency consideration or could be modified).

           USPS also argues that its response to the Humane

Society’s petition was not a final agency action because it did

not impose an obligation on the Humane Society, nor did it deny

the Humane Society any rights or fix any legal relationships.

Although the agency action did not require the Humane Society to

take any particular subsequent action, the mailability

determination was a denial of the Humane Society’s petition and

it affected the legal status of The Feathered Warrior as mailable

material, it was therefore a final agency action.   See John Doe,

Inc. v. Drug Enforcement Admin., 484 F.3d 561, 566 (D.C. Cir.

2007) (the DEA’s affirmative denial of Doe’s permit application

was final agency action).

           B. Aggrieved party

           Whether a plaintiff challenging agency action is

aggrieved by that action is closely related to, and in this case

indistinguishable from, the issue of standing.   A plaintiff must

show that it has suffered injury-in-fact and that it falls within

the zone-of-interests intended to be protected by the governing

statute.   Air Courier Conference of America v. American Postal

Workers Union, AFL-CIO, 498 U.S. 517, 524 (1991).   As discussed

above, the Humane Society has met the constitutional requirements




                                -16-
for standing and is therefore an aggrieved party entitled to

challenge USPS’s mailability determination in this case.

          C. Reviewability

          USPS has been broadly exempted from judicial review

under the APA.   39 U.S.C. § 410(a).   There are exceptions,

however, and one of them is “proceedings concerning the

mailability of matter.”   Such “proceedings . . . shall be

conducted in accordance with chapters 5 and 7 of title 5,” 39

U.S.C. § 3001(m) - that is, in accordance with the Administrative

Procedures Act, which, of course, does provide for judicial

review.

          In the submission of USPS, its mailability

determination as to The Feathered Warrior is not judicially

reviewable in a suit brought by the Humane Society.    Its

litigation position is that the Humane Society’s petition and

request for reconsideration, and its own two letter responses,

were not “proceedings” within the meaning of the § 3001(m)

exception; that no such “proceedings” have been established for

third-party challenges to mailability; and indeed that there is

no way for a nonmailer to initiate proceedings to challenge a

mailability determination, even if the determination is a final

agency action and even if the nonmailer is aggrieved.    To reach

this position, USPS contends that the word “proceedings” in

§ 3001(m) is limited to formal proceedings, and contends further


                               -17-
that such proceedings can be initiated only by a mailer, and only

to challenge a USPS determination of nonmailability.

           The necessary question that arises, when confronted by

that USPS submission in this litigation, is whether the court

owes Chevron deference to it.   That question has two sub-parts:

First, is the meaning of the word “proceedings” clear, within the

plain language of § 3001(m)?    See Verizon Cal., Inc. v. F.C.C.,

555 F.3d 270, 273 (D.C. Cir. 2009) (“Under the familiar Chevron

framework, we defer to the FCC’s reasonable interpretation so

long as it doesn’t contradict the Act’s unambiguous text.       Of

course, as with all agency actions subject to the Administrative

Procedure Act, the interpretation also must not be arbitrary and

capricious.” (internal citation omitted)).      Second, if the word

is ambiguous, has USPS interpreted it; and, if so, is the

interpretation reasonable?   See City of Anaheim, Cal. v.

F.E.R.C., No. 08-1021, 2009 WL 483172, at *1 (D.C. Cir. 2009)

(agencies must comply with applicable statutes; Chevron deference

is owed “to an agency’s authoritative and reasonable

interpretation of an ambiguous statutory provision” (emphasis

added)).

           One thing about § 3001(m) is clear:     Under the plain

language of that section, if USPS conducts a proceeding

concerning the mailability of material, the proceeding is subject

to judicial review under the APA.      39 U.S.C. § 3001(m).   The


                                -18-
section does not define the term “proceedings,” however, and

there is nothing in the statute that provides guidance as to the

meaning of the word.   See 39 U.S.C. § 102 (providing definitions

for words used in this title, but none for the word

“proceedings”).   Thus, whether the section was intended to

trigger judicial review only if a mailer challenged a mailability

determination made by USPS after a formal adjudication, or

whether instead, a nonmailer can seek judicial review of USPS’s

unfavorable response to a petition asking USPS to declare

material nonmailable, is unclear.     Accordingly, the meaning of

the word “proceedings” in § 3001(m) is ambiguous.

          The next issue is whether USPS made an authoritative

interpretation of the word “proceedings” before this case was

initiated, or whether, instead, the interpretation advanced here

is merely a post hoc litigation strategy.     USPS has not pointed

to any agency decisions made prior to this litigation with regard

to the meaning or application of § 3001(m).     The only information

available for consideration, therefore, is USPS’s conduct prior

to this lawsuit and the position asserted by USPS counsel in the

course of this litigation.

          Before this lawsuit was filed, USPS received the Humane

Society’s petition, apparently considered it on its merits,

reached a conclusion on the merits explaining its reasons, and

gave no indication that there were no available “proceedings” for


                               -19-
dealing with the mailability question the Humane Society

presented.   The position USPS takes today was not articulated, or

even hinted at, until USPS filed its response to the Humane

Society’s suit for judicial review.   See Bowen v. Georgetown

Univ. Hosp., 488 U.S. 204, 212 (1988) (declining to provide

deference to “agency litigation positions that are wholly

unsupported by regulations, rulings, or administrative

practice”); Black’s Law Dictionary (8th ed. 2004) (defining

“proceedings” as “[a]ny procedural means for seeking redress from

a tribunal or agency”).   Because USPS’s only articulated

interpretation of the word “proceedings” is a post hoc

rationalization offered by USPS’s counsel after this litigation

began, it is not owed Chevron deference.   See Bowen, 488 U.S. at

212 (“[W]e have declined to give deference to an agency counsel’s

interpretation of a statute where the agency itself has

articulated no position on the question, on the ground that

‘Congress has delegated to the administrative official and not to

appellate counsel the responsibility for elaborating and

enforcing statutory commands.’”).

          USPS resists this conclusion, arguing that the

requisite authoritative agency interpretation that underlies its

litigation position can be found in regulations, issued under the

Postal Reorganization Act, that provide for formal proceedings -

by mailers - to challenge a USPS determinations of


                               -20-
nonmailability.   See 39 C.F.R. Parts 952-953. The argument is

unpersuasive.   Those regulations do lay out a process for mailers

to challenge mailability decisions that are adverse to them, but

they do not by their terms exclude petitions by third parties to

challenge mailability decisions, nor do they cover all the types

of material that Congress has declared nonmailable, such as

material that violates the Animal Welfare Act.   The fact that

courts in this Circuit have had occasion to review only

nonmailability decisions, see Aid Ass’n for Lutherans v. USPS,

321 F.3d 1166 (D.C. Cir. 2003) (USPS’s mailing rate determination

was ultra vires); Aimes Publ’ns, Inc. v. USPS, No. 86-1434, 1988

WL 19618, at *7 n.10 (D.D.C. 1988) (reviewing USPS’s mailability

determination under the APA), proves only that, on this issue,

the present case is one of first impression.   District courts in

New York and Georgia have indeed considered cases by nonmailers

challenging mailability determinations, see Howe v. The Reader's

Digest Ass’n, Inc., 686 F. Supp. 461, 466 (S.D.N.Y. 1988)

(plaintiffs did not want to receive certain material in the

mail); Atlanta Coop. News Project v. USPS, 350 F. Supp. 234 (N.D.

Ga. 1972) (plaintiffs specifically wanted the opportunity to

receive a particular type of material in the mail that had been

deemed nonmailable), failing to reach the merits in those cases

only because the plaintiffs failed to establish sufficient

injury-in-fact to support standing.


                               -21-
          Not only is the USPS position unsupported by

regulations and by case law, but it is undermined by the pre-

litigation actions of USPS, which speak louder than its post-

litigation words.   The Humane Society’s petition was a formal

request containing the factual background and legal analysis

necessary to support its request that USPS declare The Feathered

Warrior nonmailable material.   The petition - formatted as a

legal pleading and prominently labeled a “petition” - was sent to

the Postmaster General and CEO of USPS.   USPS’s Manager of

Mailing Standards responded to it within six weeks.   That

response indicated that USPS had considered the petition, that it

had performed legal analysis of the relevant statutory

provisions, and that it had concluded that the Humane Society’s

requested action was not legally required.   The response did not

state that USPS had no duty to respond to the petition, or that

the Humane Society had contacted the wrong individual within

USPS, or that there were no procedures for the submission of a

third party petition seeking a mailability determination.     Nor

did the response state that, as a nonmailer, the Humane Society

was an improper entity to initiate a mailability determination.

Instead, USPS responded to the petition on its merits, and flatly

denied the relief the Humane Society sought.

          The USPS response did notify the Humane Society that

the Secretary of Agriculture has broader enforcement authority


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under the Animal Welfare Act and that the Humane Society should

contact the Department of Agriculture if it wished to seek a

criminal investigation of suspected animal fighting activity.

That buck-passing maneuver, however, neither stated nor implied

that the Department of Agriculture had anything to do with

mailability determinations (and, of course, it does not).

           Again, when the Humane Society sought reconsideration

of USPS decision after the Animal Welfare Act was amended in

2007, USPS made a merits determination that the amendment did not

affect the mailability of The Feathered Warrior and delivered

that   determination without stating or hinting that no

“proceeding” had occurred or that the Humane Society had acted

improperly or outside of official channels in petitioning for

reconsideration.   The USPS letter thanked the Humane Society for

bringing the new information to USPS’s attention and invited the

Society to “bring other authority to my attention,” if “any

further developments in this law should occur.”

           The USPS litigating position that its responses to the

Humane Society’s positions are not judicially reviewable because

they were not the result of “proceedings” cannot be squared with

its pre-litigation behavior.   “Deference to what appears to be

nothing more than an agency’s convenient litigating position

would be entirely inappropriate.”     Bowen, 488 U.S. at 212; see




                               -23-
American Bar Ass’n v. F.T.C., 430 F.3d 457, 471 (D.C. Cir. 2005)

(refusing to affirm agency action based on post hoc rationale).

3. Remand

            After the Humane Society initiated this lawsuit,

Congress amended § 2156 of the Animal Welfare Act yet again,

adding even more clarity to the type of animal fighting material

that must be treated as nonmailable.    USPS has not officially

considered this amendment with regard to its mailability

determination for The Feathered Warrior.    Thus, although the

Humane Society has standing to complain of the Postal Service’s

rejection of its petition and its denial of its request for

reconsideration, and although those actions of the Postal Service

appear to have been final agency actions, judicially reviewable

under the Administrative Procedure Act, the changes in the

governing law counseled remand of the question of The Feathered

Warrior’s mailability to USPS for further consideration.    See

Panhandle Eastern Pipe Line Co. v. F.E.R.C., 890 F.2d 435, 438-39

(D.C. Cir. 1989).




                                      James Robertson
                                United States District Judge




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