- -.
-
BEFORE THE
POSTAL RATE COMMISSION
WASHINGTON,
D.C.
REI:E\\IE~
1
SPECIAL
SERVICES FEES
AND CLASSIFICATIONS
Docket
No..
MC96-:I
MAJOR UAILERS ASSOCIATION'S
RESPONSE TO
UNITED STATES POSTAL SERVICE'S
"SUPPLEMENTAL
COMMENTS"
TO MOTION TO STRIKE MUA WITNESS BENTLEY'S
"NEW ANALYSIS"
Major
Postal
Mailers
Association
Service's
BMA witness
request
Bentley
documents
to
(Tr.
(Exhibits
asks
strike
the
Commission
(1)
6/2008-11)
OCA's
(2)
and
OCA/MMA-XE-1
through
to
deny
the
cross-examination
three
XE-3,
of
related
Tr.
5/2039-41).
INTRODUCTION
The Postal
Service's
Bentley's
testimony,
approved
methodology
methodology
are
Mr.
first
Bentley
testimony,
Postal
to
during
about
to
conclusion
The Postal
references
examination,
data
to
the
the
(See
Mr.
Postal
United
(Tr.
in
his
and LR-2
by data
to
strike
is
groundless.
"clearly
Service
v.
Lowenbery,
1
Mr.
After
th:at
right
his
No.
R94-1.
Bentley's
By its
opened
the
Bentley'is
Docket
Mr.
6:200!3-10).
direct
data.
noted
from
attempt
data
States
apart"
Bentley
a Commission-
substitute
challenged
corroborated
R94-1
MMA witness
that
Service's
PRC-LR-1
and LR-2,
Service's
strike
conclusion
cross-examination
also
to
dollars
this
with
PRC-LR-1
is
Postal
"a billion
advanced
Service's
seeks
cross-examination,
and the
illustrated
refer
R94-1
motion
the
8!??F.2,d
own crossdoor
295,
to”
299
the
,F.
(5th
Cir.))',
and
"quickly
426
stepped
F.2d
1288,
In
any
specify
prejudice
cost
to
1120,
Lastly,
the
Commission's
1126
and
that
not
unduly
repetitious
of
Practice
531(a).
v.
If
the
evidence
two
Bentley
Perini,
Practice
as "substitutes
Service
can
disagrees
avoid
about
its
methodologies.
the
of
be used
Service
any
version
of
Of course,,
information
the
such
requested
by
1134.
motion
to
"relevant
or
Mr.
Birnr;
Rules
to
l.C).
provide
Service's
Rule
not
the
the
necessarily
No.
(See
Special
are
rebuttal
between
would
Orders
strike
(Rule
by producing
rebuttal
door."
because
Cir.))'
conclusion,
differences
complain
Commission's
evidence"
Bentley's
open
(6th
the
motions
cannot
the
1290-91
rebuttal
Mr.
Service
through
event,
that
for...
with
the
ignores
and material
cumulative
Italics
strike
the
evidence
which
be admitted."
shall
is
(Rules
supplied.)
DISCUSSION
A.
The Postal
Opened the
The crux
to
this
dispute
disclose
its
costs
methodology
for
attributing
his
direct
testimony,
consequences
of
,e-,
of
Service's
Own Cross-Examination
Door To Use of the R94-1
Data
the
of
Commission
using
is
according
the
to
city
Mr.
Bentley
the
Postal
Postal
the
delivery
concluded
Service's
"huge,"
1
Cert.
denied,
489 U.S.
1032
2
Cert.
denied,
402
950
U.S.
2
refusal
Commission-approved
carrier
methodology--are
Service's
(1988).
(1970).
that
e'xpense.
thse dollar
methodology--instead
about
a
billion
In
dollars
(Tr.
This
that
Bentley
and LR-2.
At
data
that
Docket
to
conclusion,"
at
(Id.
In
its
chose
it
more
right
to
assembled
data
from
the
use
Postal
PRC-LR-1
Docket
No.
R94-1
room.
At
attack
on Mr.
Bentley's
testimony
responses
as written
the
MMA's
door
to
This
(Id.
he cited
related
this"
hearing
the
data
his
for
the
R94-1
same
1995
data
than
Docket
the
at
from
PRC-LR-1
No.
1194-1's
challenged
And so Mr.
and brought
Postal
them
Service
from
Mr.
No.
the
Bentley
"independent
Docket
to
its
and by oral
Responding,
6:2009).
Bentley
its
OCA asked
by data
Mr.
continued
cross-examination
this,
data
Service
by designating
was corroborated
reference"
"yes "--and
the
Following
cross-examination.
library
the
revised
"the
and LR-2.
hearing
conclusion
conclusion
2044-45).
Bentley's
his
and LR-2
recent
PRC-LR-1
After
Bentley
the
testimony
issued
6:2042).
Mr.
use
his
his
supported
to
is
interrogatories,
interrogatory
at
(Id.
data
of
illustrated
PRC-LR-1
of
draft
Commission
and LR-2,
sets
because
the
R94-1
Bentley
the
Bentley
the
both
solely
data
No.
PRC-LR-1
Mr.
and LR-2
Mr.
substitute
Although
in
before
time,
issued
testimony
1994
was contained
prepared
from
Commission
data.
1895-96).
conclusion
Mr.
with
6:1893,
of
Mr.
R94-1
whether
tha
Bentley
said
.and proe3uced
documentation.
position
by
is
its
"open-door
that
"the
Postal
cross-examination
doctrine
'I haunts
3
Service
(Id.
all
at
has
opened
the
2011).
cross-examiners.
In
,-...
Birns
v.
Perini,
prosecutor
did
F.2d
426
not
and could
certain
improperly-acquired
But
defendant
the
question
"the
about
State
policeman
upheld
the
prior
State's
action
:F.2d
a prior
asking
during
opened
(5th
the
about
incident.
policeman
a
also
United
("The
cross:-
See
Cir.)'
to
and
by having
The Court
door
State
illegal
the
door"
illegality.
299
the
cross-examination,,
the
as proper.
295,
clearly
examination...
of
Cir.),'
a policeman
of
through
prior
(6th
question
mistake
stepped
the
853
not
incident
elaborate
Lowenberq,
1290-91
evidence
made the
quickly
the
1288,
the
the
of
Appeals
States
government's
v.
follow-
up question...").
In
their
these
lawyers'
here
to
of
administrative
(Matthew
defendants
opened
Especially
under
Bender)),
the
admission
of
the
the
avoid
rebuttal
Commission
the
need
grants
to
went
door
the
open-door
to
to
"more
(4 Stein,
jail
when
otherwise
relaxed"'
rules
Administrative
doctrina
evidence
warning,
Rebuttal
invited
is
by the
effective
Plostal
in
Testimony
Timing
of the
the Service
That
the
Prejudices
the
contest
testimony.
motion
That
would,
however,
its
Special
Rules
Cert.
denied,
402
U.S.
950
4
Cert.
denied,
489
U.S.
1032
4
-_.
.-
to
strike,
Bentley's
Mr.
3
/-
__..---..
the
agencies
The Right
To File
Negates
Any Claim
Bentley
Testimony
Commission's
-..~
criminal
cross,-examination.
B.
If
in
justify
Service's
will
evidence.
evidence
Law s28.01
cases,
cross-examination
inadmissable
of
court
(1970).
(1988).
the
testimony
of
Service
by means
circumvent
the
Practice
(§l.C),
that
"motions
to
strike...
are
not
substitutes
for...rebuttal
evidence."
Does
the
Service
testimony--in
that
the
both
dollar
$1 billion?
Bentley's
the
If
Bentley's
C.
There
Comments,
rebuttal.
it
should
l-2)
in
to
is
the
dollar
that
it
Bentley's
Docket
the
to
prejudiced
R94-1
of
is
about
answering
Mr.
evidence--evidence
file
rebuttal
of
in
negates
timing
5 U.S.C.
of
Mr.
§556(e).)5
That
Which
In Merit
complaint
is
(Tr.
test
(Cf.
time
testimony
No.
the
by the
Service's
lacks
testimony--
difference.
Service's
Contention
Lacks
Ample Time In
Rebuttal
Is Lacking
to
Bentley's
methodologies
rebuttal
testimony.
no merit
Mr.
two
opportunity
Service
The Postal
the Agency
To Prepare
pp.
be put
of
cross-examination
is
the
by presenting
the
with
and cross-examination
between
Service's
that
disagree
direct
own estimate
Mr.
testimony
so,
testimony
Service's
claim
his
difference
The Postal
any
really
which
an updated
13A:6082-84)
(Suppl.
to
prepare
version
of
his
that:
which
is Exhibit
MMA-lF,...indicates
My comparison,
that
compared
to the Service's
new carrier-cost
attribution
technique,
the Commission's
methodology
will
c:ause a
significant
increase
in total
attributable
costs
(almost
$1
billion)
and that
this
increase
(on a relative
basis)
is
greater
for third-class
mail
(57%) than for First-Class
Mail
(45%).
The Service
twenty-seven
has
months.
been
In
familiar
both
with
Docket
5
No.
Mr.
Bentley's
R94-1
thesis
for
and this
5 U.S.C.
§556(e)
is the provision
of the
Administrative
Procedure
Act that
allows
an agency to rest
its
decision
on "official
notice
of a material
fact
not appearing
in
so long as the agency provides
the
the evidence
in the record"
parties
with
"an opportunity
to show the contrary."
,-
5
/-.
proceeding,
the
Service
Commission-issued
During
this
library
period,
familiarize
itself
rebuttal
testimony
is
not
Bentley---and
two
methodologies'
present
the
would
the
Service
about
this
opportunity
on this
has
and to
to
study
same s:ubject.
had more
issue
have
been
based
his
to
is
1134).
In
Service
wants
than
enough
be able
to
time
to
produce
of
its
the
order
information
to
to
the
that
provide
rebut
in
have
the
to
dixlose.
It
Commission’s
the
(Orders
disclosing
that
Bentley's
Mr.
erase
would
refusing
to
to
own.
the
avoid
been
clrder
difference
Service
according
as its
to
to
has
rebuttal
In
time.
a $1 billion
Postal
costs
Service
of
filing
Commission
Nos.
1120,
information,
testimony
has
1126,
the
instead
of
The Alleged
Inability
To Understand
Documentation
Is the
Mr. Bentley's
Result
of the Service's
Own Actions
rebuttal
because
requiring
the
also
asserts
Mr.
Bentley's
explanation
Even
2-4).
if
the
consequence
During
Service
it
precisely
The Service
is
lack
to
it.
D.
issues
any
results--the
show
ordering
rebutting
upon
objection
estimate
as well
That
real
information
methodology,
,e-.
had the
references
Service's
Mr.
it
also
testimony.
The Postal
PP.
has
first
Mr.
of
or
the
it
lacks
analysis
alleged
Service's
the
testimony
6
to
prepare
"a number
(Suppl.
puzzlement
of
Comments,
is
genuine,
own actions.
cross-examination,
to
time
presents
clarification"
Service's
Bentley's
objected
that
when the
about
the
1194-l
Postal
data,
MMA
,/-
counsel
offered
Bentley's
for
to
2011-13,
as well
to
have
Service,
which
cannot
now complain
make Mr.
all
Mr.
Bentley
available
these
that
it
offers
lacks
his
at
(Id.
(Id.
the
6:
exambation,
explain
XE-3
(Tr.
cross-examination
2042-43;).
The Postal
2029-211,
at
MMA
information
2043),
that
could
have
provided.
In
any
event,
Service
a letter
provide
all
on November
(Attachment
available
for
promised
that
to
he will
respond
a first
the
installment,
documents
stand.
This
offer
The Postal
analysis
Mr.
Mr.
is
The Postal
Objections
E.
formal
relied
upon
Comments,
Mr.
Bentley
about
OCA.
had done
record
so,
materials
Mr.
offer
questions,
Postal
copies
any
on the
genuine
have
conferences.
written
Service
to
and to
In
dispel
expresses
(Suppl.
following
the
by facsimile.
him
Postal
addition,
as
of
all
witness
puzzlement.
Service's
Remaining
Are Without
Merit
R94-1
asked
data
accept
had with
to
the
renews
informal
will
the
Bentley
ample
Service
may have
or
promptly
sent
and workpapers
Bentley
MMA sent
which
that
calculations
MMA also
which
MMA counsel
22,
A hereto)
Mr.. Bentley's
Bentley
NO.
with
redirect
Bentley
through
declined
as to
during
Mr.
OCA/MMA-XE-1
Service
and cross-examination
addition,
In
offered
exhibits,
Postal
interrogatories
2037).
counsel
Mr.
the
documentation,
additional
been
provide
(Tr.
Bentley
from
have
proceeding.
7
affirmed
Bentley's
from
Service
If
the
that
Docket
could
him
cross-examined
2044-46).
would
that
it
Mr.
materials
The Postal
4).
when
6:2034-36,
that
extra-record
p.
this
a concern
Postal
again
Service
he used
only
have
,,*-
The Service
analysis..
also
.directly
thereby
raises
earlier
testimony"
testified
examination)
testimony
his
at
the
billion
The Service's
is
in
Comments,
right
about
Mr.
from
1994.
the
did
[OCA/MMA-XE,-1
(Tr.
consider
to
6:2013).
OCA/MBA-XE-1
Mr.
is
It
the
the
Service
lay
an adequate
XE-31
is
of
Bentley's
responses
XE-3
that
it
offered
examination,
as the
for
to
documents
8
contests
Mr.
for
complain
recent
MMA most
admission
of
Comments,
record
as
cross-examination
Bentley
to
data,
for
(Supp:L.
OCA's
Mr.
from
"counsel
the
used
data
most
record"
data
3.995 data
cannot
that
"is
analysis
1994
1994
next
of
the
Bentley's
the
the
sets
;!009-11).
the
foundation
the
at
uses
data,
both
methodology
Service
argues
into
for
between
Mr.
than
1995
were
through
true
direct
same conclusion"
(Id.
that
cross-
his
Service's
Postal
documents
On redirect
in
the
as it
current
Postal
through
have
Bentley
in
so,
range"
insofar
since
Mr.
difference
dollar
more
that
But
plainly
to
consideration
not
These
6-7).
ancillary
to
Bentley's
Lastly,
certainly
But
R94-1.
is
contention
is
recanting
is
4).
and the
5-6).
and LR-2
No.
Bentley's
pp.
and
expressed
dollar
and outdated"
PRC-LR-1
Docket
PP.
next
"problematic
(SUPPl.
the
testimony,
(discussed
Bentley]
methodology
in
Bentley
p.
And that
that
Commission-approved
Mr.
conclusions
[Mr.
"new
original
computations
6:2011).
2044)--namely
Bentley's
.his
Comments,
the
"allowed
consistently
Mr.
whether
R94-1
confirm
calculations
(Id
issue
(Supp.
(Tr.
that
contradicts..
the
that
argues
which
identified
he referred
in
the
at
to
replying
statements
OCA counsel,
that
F.
than
those
used
Law 928.01
Administrative
Procedure
Commission's
material
evidence
In
laymans
is
ordinarily
supported
Inc.,
to
kind
(Id.
rely
94 F.2d
862
strike
testimony
unless
of
"the
that
persons
in
kind
the
Cert.
in
of
Practice
531(a).
Commission
conduct
denied,
would
304
supplied.)
even
evidence
"the
NLRB I'.
concludes
affect
reasonable
Thus
that
and
(1938).
finding
persons
Remington
the
denies
Bluestone
affairs."
9
Italics
responsible
regularly
576
cumulative
which
J.).
the
and
if:
affairs."
U.S.
or
wrote,
agency
their
"relevant
be admitted
on
(FERC)
the
of
judge
with
this
that
repetitious
Cir.)6(Hand,
line
5556(d)),
unduly
serious
(2d
In
not
evidence
considerably
(4 Stei.n,
direct
should
of
evidence
Bender)).
(5 U.S.C.
excludable
Regulatory
6
for
that
courts"
as a famous
terms,
Energy
not
is
of
the
Practice
(Rules
by the
accustomed
Rand,
basis
cross-examination
ignores
rules
(Matthew
of
which
also
in
Act
own Rules
be admitted."
are
,-
apply
Administrative
is
the
was required.
motion
agencies
relaxed
that
formed
OCA's
foundation
Service's
"administrative
shall
they
Motions
To Strike
Should
Not Be Granted
When
the Evidence
Is Relevant
And Material
And Is
Of the Sort
On Which Responsible
Persons
Are Accustomed
To Rely
In Serious
Affairs
The Postal
more
he made during
No additional
2037).
and that
the
Federal
motions
evidence
fair-minded
Enerqy
to
is
r.-.
Design,
75 FERC 1[ 63,022
Inc.
(1996)
(ALJ.
Birchman).'
FOR THE FOREGOING REASONS, MMA asks
deny
the
Postal
examination
three
of
related
Service's
MMA witness
documents
motion
to
Bentley
strike
(Tr.
(Exhibits
(1)
that
OCA's
6/2008-11)
OCA/MMA-XE-1
the
Commission
cross-
and
(2)
through
XE-3,
the
Tr.
6/2039-41).
Respectfully
submitted,
Nineteenth
St. N.W.
Suite
400
Washington,
DC 20036
Phone:
(202)
466-8260
November
25,
1996
Counsel
CERTIFICATE
25,
MMA
OF SERVICE
I hereby
certify
that
I have
document
(1) upon the U.S. Postal
the Office
of Consumer
parties
by First-Class
Mail.
November
for
this
day served
the
Service
by facsimile,
foregoing
(2) upon
the other
1996
'See also
Utah Power and Light
Co., FERC Dkt.
No. ER83-427000 (May 7, 1984)(ALJ
Zimmet)(denying
motion
to strike
testimony
because
hearsay
arguments
have no place
in an administrative
FERC Dkt. ER 96-6-000
(Feb. 8,
proceeding);
Paiute
Pipeline
Co.,
1994)(ALJ
Grossman)(denying
motion
to strike
witness'
references
to statements
made by FERC Chairman
on the grounds
that
the
motion
"goes to the weight
to be accorded
to [the Chair's]
both unreported
decisions
comments not their
admissability"),
that
are summarized
in I Herman,
FERC Practice
& Procedure
Manual,
n 509.122 (Washington
Thompson Publishing).
10
LAW OFFICES
RICHARD
LlTJxLL
1220 Nineteenth Street, N.W.
Suite 400
Washington, DC 20036
,-
Direct Dial: (202) 4664260
Telecopier.
November
22,
(202) 1934377
1996
BY FACSIMILE
Susan M. Duchek.
Attornev
Law Department
.
United
states
Postal
Service
475 L'Enfant
Plaza
West,
S.W.
Washington,
D.C.
20260-1137
FAX:
(202)
268-5402
Dear
Susan:
I want
to renew my offer,
made at last
Tuesday's
hearing
(Tr.
6:2011,
2013),
to provide
the Postal
service
with
any additional
information
it desires
regarding
(1) EEA witness
Bentley's
statements
made during
OCA's cross-examination
and (2) Mr. Bentley's
computations
underlying
those
statements
and Exhibits
OCA/EMA-XE-1
through
OCA/EEAXE-3
(Tr.
6:2OOS-11,
2039-41).
In addition
to being
available
for
recall
at the hearings,
Mr.
Bentley
will,
upon request,
provide
the Service
with
all
his
Hr Bentley
is also
available
at any
calculations
and workpapers.
for
formal
or informal
data
time,
in person
or by telephone,
conferences
to answer
any questions
the service
has about
his
answers
cross-examination
exhibits
and his
methodology,
to OCA, the three
sources,
computations
and workpapers.
Mr. Bentley
will
accept
formal
or formal
written
questions
or interrogatories
regarding
these
matters;
he will
respond
promptly
by facsimile.
This
Commission's
offer
is effective
resolution
of
the
immediately
Service's
and does not await
Motions
to Strike.
the
at the hearing
I offered
to provide
you with
As you will
recall,
you thought
would
be sufficient
certain
documents
which,
for
a time,
Even though
you later
reconsidered
(Id.
at 2029(Tr.
6: 2011-13).
I
am
enclosing
copies
of
the
documents
that
Mr.
Bentley
had with
311,
with
additional
footnotes
to sources
added.
him on the witness
stand,
I'm also
enclosing
pages
from Docket
No. R94-1 materials
from which
I am sending
these
materials
to you as a
Mr. Bentley
derived
numbers.
first
installment.
Please
advise
me if the Service
wants
to schedule
any meetings
or
The Service
may send Written
data
conferences
with
Hr. Bentley.
questions
or interrogatories
directly
to Mr. Bentley,
with
a copy to
me.
(Mr.
Bentley's
facsimile
number
during
the week
is 703/281-0677,
except
that
this
coming
weekend
please
send Mr. Bentley
a duplicate
facsimile
at 7571220-3215.)
Cordially,
.-.
IC96-1.PRC,D”Ch&.ltT
Littell