United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 20, 2016 Decided November 15, 2016

No. 15-1297

UNITED STATES POSTAL SERVICE,

PETITIONER

v.

POSTAL REGULATORY COMMISSION,

RESPONDENT

ALLIANCE OF NONPROFIT MAILERS, ET AL.,

INTERVENORS

On Petition for Review of an Order 

of the Postal Regulatory Commission

David C. Belt, Attorney, United States Postal Service, 

argued the cause and filed briefs for the petitioner. Stephan J. 

Boardman, Chief Counsel, United States Postal Service, 

entered an appearance.

Daniel Tenny, Attorney, United States Department of 

Justice, argued the cause for the respondent. Benjamin C. 

Mizer, Principal Deputy Assistant Attorney General, Michael 

S. Raab, Attorney, David A. Trissell, General Counsel, Postal 

Regulatory Commission, Christopher J. Laver and Anne J. 

Siarnacki, Deputy General Counsels and Elisabeth S. Shellan, 

Attorney were with him on brief.
2

David M. Levy, Matthew D. Field, Ian D. Volner, 

Jeremiah L. Morgan and William J. Olson were on brief for the 

mailer intervenors in support of the Postal Regulatory 

Commission.

Before: HENDERSON and GRIFFITH, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: The Postal 

Accountability and Enhancement Act of 2006 authorizes the 

Postal Regulatory Commission (Commission) to regulate the 

rates of the United States Postal Service’s (Postal Service)

market-dominant products. See 39 U.S.C. §§ 3621–29. 

Although annual price increases for these products are 

generally capped at the rate of inflation, the Commission is 

permitted to approve raising rates above this mark “on an 

expedited basis due to either extraordinary or exceptional 

circumstances.” Id. § 3622(d)(1)(E). In Order No. 1926,1the 

Commission—recognizing that the Great Recession of 2008

was just such an exigent circumstance—allowed for a rate 

increase but also sought to calculate the extent to which 

decreased mail volume was “due to” the economic downturn in 

order to determine how long that rate increase should remain in 

effect. As part of its inquiry, the Commission created a “new 

normal” test to determine when the “extraordinary or 

exceptional circumstances” no longer supported a rate 

increase. In an earlier case, the Postal Service had petitioned 

this Court for review of that “new normal” test and we upheld 

 

1

Postal Regulatory Commission, Order Granting Exigent Price 

Increase, Order No. 1926, Docket No. R2013–11 (December 24, 

2013) (Order No. 1926).
3

the Commission’s approach as “well reasoned and grounded in 

the evidence before the Commission . . . [and] comfortably

pass[ing] deferential APA review.” All. of Nonprofit Mailers v. 

Postal Regulatory Comm’n, 790 F.3d 186, 196 (D.C. Cir. 

2015). The Postal Service sought reconsideration, claiming 

that the Commission “altered its original decision” by 

“changing the meaning and role of the ‘ability to adjust’ 

element of its [‘new normal’] test,” Pet’r Reply Br. 7, and, in 

Order No. 2623,2the Commission denied that request. Because 

the Commission’s denial of reconsideration is unreviewable, 

we dismiss the Postal Service’s petition for lack of jurisdiction. 

Entravision Holdings, LLC v. FCC, 202 F.3d 311, 313 n.2 

(D.C. Cir. 2000).

I.

In enacting the Postal Accountability and Enhancement 

Act of 2006 (the Act), Pub. L. No. 109–435, 120 Stat. 3198, the 

Congress directed the Commission to establish a modern 

system for regulating the rates and classes of the Postal 

Service’s market-dominant products. See 39 U.S.C. §§ 3621–

29. Although the Act affords the Commission some flexibility 

in carrying out its charge, see id. § 3622 (authorizing 

Commission to create “modern system for regulating rates” but

also mandating that Commission account for certain “factors,” 

“objectives” and “requirements” in so doing), the Congress set 

forth a price cap for market-dominant products, generally 

limiting each price increase to an amount equal to the annual 

change in the Consumer Price Index for All Urban Consumers 

(CPI-U). See id. § 3622(d)(1)(A). The Act also provides

“procedures whereby rates may be adjusted on an expedited 

basis due to either extraordinary or exceptional circumstances” 

 

2

 Postal Regulatory Commission, Order Resolving Issues on 

Remand, Order No. 2623, Docket No. R2013–11R (July 29, 2015) 

(Order No. 2623).
4

without regard to the CPI-U limitation. Id. § 3622(d)(1)(E). 

Specifically, for this statutory “safety valve” to take effect, the 

Commission must find 

after notice and opportunity for a public hearing 

and comment, and within 90 days after any 

request by the Postal Service, that such 

adjustment is reasonable and equitable and 

necessary to enable the Postal Service, under 

best practices of honest, efficient, and 

economical management, to maintain and 

continue the development of postal services of 

the kind and quality adapted to the needs of the 

United States. 

Id.

The Postal Service first requested an above-CPI-U rate 

increase in July 2010 as it sought to make up for substantial 

losses resulting from the “dramatic, rapid and unprecedented 

decline in mail volume” caused by the Great Recession. See 

U.S. Postal Serv. v. Postal Regulatory Comm’n, 640 F.3d 

1263, 1265 (D.C. Cir. 2011) (internal quotation marks 

omitted). Although the Commission agreed that “the recent 

recession, and the decline in mail volume experienced during 

the recession” qualified as an “extraordinary or exceptional 

circumstance,” it nonetheless denied the Postal Service’s 

request for an above-CPI-U rate increase because it found that 

the Postal Service had failed to quantify properly its losses 

“due to” the recession with particularity. See Postal Regulatory 

Commission, Order Denying Request for Exigent Rate 

Adjustments, Order No. 547, Docket No. R2010–4, at 3-4 

(Sept. 30, 2010). This Court disagreed with the latter portion of 

the Commission’s analysis, finding that, although “the plain 

meaning of ‘due to’ mandates a causal relationship between the 
5

amount of a requested adjustment and the exigent 

circumstances’ impact on the Postal Service,” the Act is 

ambiguous as to “how close the relationship must be.” 640 

F.3d at 1267–68. We remanded the case to the Commission to 

fill that statutory gap, which it did in Order No. 864. See Postal 

Regulatory Commission, Order Resolving Issues on Remand,

Order No. 864, Dkt. No. R2010-4R, at 25 (Sept. 20, 2011) 

(noting that “exigent rate adjustments are permitted only if, and 

to the extent that, they compensate for the net adverse financial 

impact of the exigent circumstances”). 

In September 2013, the Postal Service renewed its request 

for an above-CPI-U rate increase, seeking a 4.3% price hike for 

an indefinite period of time. In Order No. 1926, the 

Commission granted the Postal Service’s request in part. Order

No. 1926, Docket No. R2013–11. The Commission reaffirmed 

that the Great Recession constituted an exigent circumstance 

warranting a rate increase but it still disagreed with the Postal 

Service on the extent to which mail volume losses had been

caused by the economic downturn. See id. at 44. Thus, the 

Commission allowed the 4.3% above-CPI-U rate increase to 

remain in effect for only so long as necessary for the Postal 

Service to recover $2.8 billion. Id. at 181.

The rationale underlying the Commission’s decision in 

Order No. 1926 was twofold. First, the Commission 

determined that mail volume losses could not be considered 

“due to” the economic downturn once a “new normal” in 

operational levels was achieved. See id. at 83–94. The related 

“new normal” test, in turn, examined four factors: 

(1) the disruption to a sufficient number of 

relevant macroeconomic indicators 

demonstrate[d] a return to near historic positive 

trends; (2) application of the macroeconomic 
6

variables accurately project[ed] change, and the 

rate of change on Postal Service mail volumesis 

positive; (3) the Postal Service regain[ed] its 

ability to predict or project mail volumes 

following an extraordinary or exceptional event; 

and (4) the Postal Service demonstrate[d] an 

ability to adjust operations to the lower 

volumes.

Id. at 86 (emphasis added). Second, the Commission 

implemented a “count once” rule in calculating mail volume 

losses, meaning that the Commission counted decreased mail 

volume only in the first year it occurred—in “subsequent years, 

the Postal Service [was] aware of that loss” and thus able to 

adjust to account for the same. Id. at 96.

Entering the fray once more, this Court reviewed the 

Postal Service’s challenge to Order No. 1926 in Alliance of 

Nonprofit Mailers v. Postal Regulatory Commission, 790 F.3d 

at 189. We held that the Commission’s “new normal” test was 

“well reasoned and grounded in the evidence before the 

Commission . . . comfortably pass[ing] deferential APA 

review.” Id. at 196. “In other words, the Commission 

permissibly reasoned that just because some of the effects of 

exigent circumstances may continue for the foreseeable future, 

that does not mean that those circumstances remain 

‘extraordinary’ or ‘exceptional’ for just as long.” Id. at 194. 

We found the logic of the Commission’s “count once” rule, 

however, difficult to reconcile with its explanation of the “new 

normal” test. See id. at 195–96. We therefore vacated the 

portion of Order No. 1926 setting out the “count once” rule. Id. 

Finally, the Court in a footnote mentioned an additional 

argument, reciting that “[a]t oral argument, counsel for the 

Postal Service argued that the ‘new normal’ analysis in the 

Order is also inconsistent with the Commission’s analysis of 
7

whether the rate increase was ‘necessary’” within the meaning 

of 39 U.S.C. § 3622(d)(1)(E).3Id. at 196 n.3. Because the 

argument had not been briefed, we concluded that it was not 

properly before the Court, at the same time noting that the 

Commission was “free to consider that argument on remand.” 

Id.

On remand from Order No. 1926, the Commission 

removed the vacated “count once” rule, replacing it with a 

cumulative counting system for determining lost mail volume. 

Order No. 2623, Docket No. R2013–11R, at 28–46. Although 

the Postal Service had encouraged the Commission to “accept 

the court’s invitation” to reconsider the “new normal” test and 

reconcile a perceived inconsistency between Parts IV and V of 

Order No. 1926, 4the Commission rejected the invitation, 

declaring that it “decline[d] to revise the ‘new normal’ analysis 

of Order No. 1926 . . . .” Order No. 2623, Docket No. R2013–

11R, at 23. The Commission elaborated that, notwithstanding 

its “discretion to reopen its decisions, an exercise of that 

 

3 Whether a rate increase is “necessary” is the final inquiry the 

Commission undertakes before approving an above-CPI-U rate 

increase. See 39 U.S.C. § 3622(d)(1)(E); All. of Nonprofit Mailers, 

790 F.3d at 194 (“The ‘reasonable and equitable and necessary’ test 

. . . applies only after exigent causation for a loss has been 

established and turns on the Postal Service’s current need to get back 

on its feet in the wake of the now-defined exigency.”). Focusing on 

recovery rather than causation, the “necessary” inquiry asks whether

the Postal Service requires increased rates in order “to maintain and 

continue the development of postal services of the kind and quality 

adapted to the needs of the United States,” 39 U.S.C. 

§ 3662(d)(1)(E), in light of the exigent circumstance’s effect on the 

marketplace. All. of Nonprofit Mailers, 790 F.3d at 194.

4

See United States Postal Service, Initial Comments of the 

United States Postal Service in Response to Commission Order No. 

2540, Docket No. R2013-11R, at 7 (June 26, 2015).
8

discretion is not warranted here given the interest in finality 

and the lack of any newly available evidence that would justify 

raising the issue at this late stage.” Id. at 24. 

The Postal Service again petitioned this Court for review.

II.

Under ICC v. Brotherhood of Locomotive Engineers, 482 

U.S. 270, 280 (1987), an agency’s decision to deny 

reconsideration of an earlier order is unreviewable, except 

insofar as the request for reconsideration is based upon new 

evidence or changed circumstances. Entravision Holdings, 

LLC, 202 F.3d at 313; accord Sendra Corp. v. Magaw, 111 

F.3d 162, 167 (D.C. Cir. 1997) (“[A]n agency order stating 

only that it is denying reconsideration is conclusive, so long as 

the agency has not altered its original decision.”). The new 

evidence or changed circumstances exceptions exist because 

otherwise “the petitioner will have been deprived of all 

opportunity for judicial consideration . . . of facts which, 

through no fault of his own, the original proceeding did not 

contain.” Bhd. of Locomotive Engineers, 482 U.S. at 279. 

Nevertheless, even if new evidence or changed circumstances

exist, “overturning the refusal to reopen requires a showing of 

the clearest abuse of discretion.” Id. at 278 (internal quotation 

marks omitted). 

The Postal Service distinguishes Brotherhood of 

Locomotive Engineers, arguing that the Commission changed 

both the meaning and the role of the “ability to adjust” 

inquiry—the fourth element of Order No. 1926’s “new 

normal” test5—in Order No. 2623. We disagree. Order No.

2623 plainly states that the “Commission declines to revisit the 

‘new normal’ analysis in Order No. 1926 that was affirmed by 

 

5

Supra at 5–6.
9

the [Alliance of Nonprofit Mailers] Court.” Order No. 2623, 

Docket No. R2013–11R, at 23. Order No. 2623 contains no 

departure from Order No. 1926; rather, it explainsits reasoning 

in denying reconsideration. In fact, Order No. 2623 adopts 

wholesale the earlier order’s findings and conclusion under the 

“new normal” test. JA 579–84. Simply discussing the merits of 

an earlier agency decision does not open a reconsideration 

denial to review. Bhd. of Locomotive Engineers, 482 U.S. at 

280–81 (“It would hardly be sensible to say that the [agency]

can genuinely deny reconsideration only when it gives the 

matter no thought.”). As our Court has recognized: 

That the agency discusses the merits at length 

when it denies a request for reconsideration 

does not necessarily mean the agency has 

reopened the proceedings . . . . It would make 

no sense whatsoever to hold that when an 

agency offers an explanation for “affirming a 

prior denial,” it has in effect reopened the 

proceedings and rendered a new, 

judicially-reviewable decision.

Fort Sumter Tours, Inc. v. Babbitt, 202 F.3d 349, 356 (D.C. 

Cir. 2000) (internal quotation marks omitted). According to the 

Postal Service, however, we should read between the lines of 

the Commission’s analysis, inferring substantive change

behind the façade of a denial of reconsideration. Pet’r Br. 29–

34. Although we note Order No. 2623’s less than 

seamless language, the Commission’s ultimate disposition is 

nonetheless clear: it declined to reconsider the “new normal” 

test as set forth in Order No. 1926.6See Bhd. of Locomotive 

 

6

 Because we do not agree with the Postal Service’s claim that 

Order No. 2623 dilutes the “ability to adjust” prong of the “new 

normal” test to such an extent that it reads that prong out, see Pet’r 
10

Engineers, 482 U.S. at 280–81 (“[I]t is the Commission’s 

formal action, rather than its discussion, that is dispositive.”).

7

The closest the Postal Service came to mounting a “new 

evidence” challenge appears on page 45 of its opening brief, 

where it cited the Commission’s Financial Analysis Report for 

2013 to explain why it would not be too late for the 

Commission to “revisit the inconsistencies in [its] ‘ability to 

adjust’ findings.” Pet’r Br. 45. The Postal Service did not, 

however, finish that thought by asking us to find that the 

Commission’s refusal to reopen Order No. 1926 was an abuse 

of discretion—whether on the new evidence ground or 

otherwise. In fact, on pages 3–5 of its reply brief, the Postal 

Service rejected the notion that it was challenging the 

Commission’s “deni[al]” of its “request for reconsideration of” 

Order No. 1926—or “the four-part test” introduced in that 

Order—or even the Order’s “findings” based on that test. Pet’r 

Reply Br. 3–5. It assured us that it did not rely on Sendra Corp. 

and Locomotive Engineers, precisely because both cases dealt

with refusals to reconsider. Id. And it distinguished the 

challenges in those cases from its claim that Order No. 2623 

“altered” the Commission’s earlier decision. Id. The alteration, 

the brief drove home, “is what the Postal Service now 

challenges.” Id. at 5. We conclude, then, that the Postal Service 

did not rely on the “new evidence” exception and that 

 

Reply Br. 16–19, we offer no opinion on the validity of that reading

of the “new normal” test.

7 Counsel for the Postal Service conceded at oral argument that 

Alliance of Nonprofit Mailers’s footnote discussed earlier, supra at 

6–7, did not order the Commission to reconsider its “new normal” 

test. Oral Arg. Tr. at 4–5. 
11

challenge is therefore forfeited. Nat’l Oilseed Processors Ass’n 

v. OSHA, 769 F.3d 1173, 1182 (D.C. Cir. 2014).8

For the foregoing reasons, the Postal Service’s petition for 

review is dismissed for lack of jurisdiction.

So ordered.

 

8 Had the Postal Service’s brief expressly articulated that

reconsideration of the “new normal” test was mandated by new 

evidence in the form of the Commission’s Financial Analysis Report 

for 2013 (Financial Report), we nonetheless would have denied (but 

not dismissed) the petition. As noted earlier, Brotherhood of 

Locomotive Engineers instructs that “overturning the refusal to 

reopen requires a showing of the clearest abuse of discretion,” Bhd.

of Locomotive Engineers, 482 U.S. at 278–79 (internal quotation 

marks omitted), and the Postal Service’s claim would fall far short of 

that standard. Although the Financial Report appeared three months 

after Order No. 1926 issued, it contained no new evidence that 

materially differed from the evidence used by the Commission in 

issuing its then-recent Order No. 1926.