AIR COURIER CONFERENCE v. POSTAL WORKERS

No. 89-1416

[February 26, 1991]

Justice Stevens, with whom Justice Marshall and Justice Blackmun join, concurring in the judgment.

There is no ambiguity in the text of 39 U.S.C. 410(a). That section of the Postal Reorganization Act provides that the judicial review provisions of the Administrative Procedure Act (APA) do not apply to the exercise of the powers of the Postal Service. See ante, at 4, n. 1. It is therefore not only unnecessary, but also unwise, for the Court to issue an opinion on the entirely hypothetical question whether, if the APA did authorize judicial review of actions of the Postal Service, its employees would have standing to invoke such review to challenge a regulation that may curtail their job opportunities. I therefore do not join the opinion discussing this hypothetical standing question.

Nor do I consider it necessary to decide whether this objection to judicial review may be waived by the Government because it is surely a matter that we may notice on our own motion. ^[n.1] Faithful adherence to the doctrine of judicial restraint provides a fully adequate justification for deciding this case on the best and narrowest ground available. I would do so. Accordingly, relying solely on 39 U.S.C. 410(a), I concur in the Court's judgment that the Unions' challenge must be dismissed.

Notes

1 It is at least arguable that the Government did not waive this objection to judicial review. As the Court points out, the Government raised this argument in its brief in opposition to the petition for writ of certiorari. See ante, at 5. In deciding to review this case, therefore, we were cognizant that an issue antecedent to the standing issue might first have to be resolved. Moreover, although the Government's objection to judicial review was not raised in the lower courts, the Court of Appeals recognized that "the USPS is exempt from the strictures of the Administrative Procedure Act (`APA'), see 39 U.S.C. 410(a)," American Postal Workers Union, AFL-CIO v. United States Postal Service, 228 U. S. App. D. C. 5, 8, 891 F. 2d 304, 307 (1989), and nevertheless continued to review the actions of the Postal Service, thus implicitly rejecting the contention made by the Government here.