In the Matter of the Complaint That                         )
                                                                               )
T-R PRODUCTIONS,                                                )
                                                                               )
at                                                                            )
                                                                               )
Los Angeles, California,                                         ) H.E. Docket No. 5/230
                                                                               )
is conducting an unlawful enterprise                    )
through the mails in violation of                              )
Title 39 U.S. Code § 259a                                       )

POST OFFICE DEPARTMENT WASHINGTON, D.C.

DEPARTMENTAL DECISION

The hearing in the above matter was held on April 18, 1958, in Washington, D. C. The Hearing Examiner rendered an Initial Decision dismissing the proceeding because of the decision of the Court of Appeals of the Second Circuit in Columbia Research Corp. v. Schaffer and Vibra-Brush Corp. v. Schaffer decided May 13, 1958. He also made findings that the respondent was giving information as to where, how and from whom obscene matter might be obtained and that he was furnishing obscene matter through the mails to purchasers. The Hearing Examiner found that the six films and the six sets of photographs introduced into evidence by the Government were obscene, lewd, lascivious and indecent within the meaning of Roth v. U.S., 354 U.S. 476.

The complainant excepted to the dismissal by the Hearing Examiner of this proceeding. Columbia Research, supra, held that a fraud order issued by the Post Office Department was invalid for failure to comply with Section 3(a) of the Administrative Procedure Act, 5 U.S.C. 1001 et. seq., which requires that "no person shall in any manner be required to resort to organization or procedure not so published." The Court said that section applied not only to affirmative resort but also to any "subjection to unpublished procedure," and that the proceeding was invalid for failure to publish a description of the relation between prosecutor and adjudicator. The Court went on to say,

"we hold the order at bar invalid for this reason, regardless whether the chain of subordination to the agency of both prosecutor and judge was in fact not sufficiently separated."

Since this case became ready for Departmental Decision, a reorganization in the Post Office Department established an independent Judicial Officer responsible directly to Postmaster General, who makes the final departmental decision in administrative proceedings. The General Counsel, who was the former adjudicator, has now become the prosecutor. New Rules of Practice were published effective April 26, 1958, and were served upon the respondent. Those rules were made applicable to this and other pending cases.

Until this reorganization, the respondent was not subject to any action by the Judicial Officer. The procedures and delegation of authority governing the action of the Judicial Officer were not only published but were served upon the respondent. Therefore, it appears that the reason for holding the orders in Vibra-Brush and Columbia Research invalid are not applicable to this case. Also, since this order will probably be tested in the 9th Circuit, the decision of that Court of Appeals in Foreman and Clark, Inc. v. National Labor Relations Board, 215 F.2d 396, 410 (C.A. 9th) is persuasive. The Court of Appeals there said:

"the clear purpose of Section 3(a), supra, is to provide a shield for a petitioner before the Board, or other agency, to protect him from being penalized for failing to resort to unpublished methods of procedure. It is not a sword by which a petitioner can strike down the agency's order, on the ground that the agency has not authorized itself to issue that type of order, by publishing a statement in the Federal Register]" (Emphasis not supplied)

It is as a sword that respondent would use Section 3(a).

The complainant analogizes the situation as comparable to the General Counsel being removed from office insofar as the final departmental decision and thus eliminating the "evil" of having the case decided by one who, theoretically, may have had a part in directing the prosecution of this case. The respondent has filed a reply brief in which he contends that the Hearing Examiner's dismissal was correct and questions whether the establishment of a Judicial Officer meets the requirements of the Administrative Procedure Act, supra. A Bill of Particulars has been furnished to the respondent in compliance with his "demand" upon the Judicial Officer. The Judicial Officer is an independent staff officer on the staff of the Postmaster General. He is responsible only to the Postmaster General. He does not direct the prosecution of any case nor do the prosecutors in any case confer with him prior to his making the final departmental decision. This same organization was established a number of years ago in the Department of Agriculture and has received implied judicial approval. The exception is allowed.

The complainant also challenges the authority of the Hearing Examiner to dismiss the proceeding in a second exception. While it is true that the Hearing Examiner is not authorized under the Departmental Rules of Practice to render a final decision, he may rule upon motions to dismiss during the hearing. This problem was discussed by the then Solicitor of the Department, Abe McGregor Goff, In the Matter of the Complaint Against Oglesby Chemical Co., et. al., H.E. Docket No. 3/201.

In that case a question was raised as to the authority of the Hearing Examiner to rule upon a motion to dismiss made prior to the hearing. The examiner had denied respondent's motion to dismiss on the assumption that he had the authority to do so and the respondent made an interlocutory appeal. The question of the right of respondent to take such an appeal was certified to the Solicitor who decided that the Hearing Examiner had authority to rule on the motion.

Thus, it follows that the Hearing Examiner in this case could dismiss the proceeding. This is not a final decision and the Hearing Examiner's dismissal may be appealed to the Judicial Officer as was done in this proceeding. Similarly, if a Hearing Examiner should determine during the course of a hearing, either after the presentation of the government's case or at the conclusion of the respondent's, that the proceeding should be dismissed, he may then do so. If his ruling is to dismiss, then the Government may appeal that ruling to the Judicial Officer. If the Judicial Officer finds that the examiner erred in dismissing, then the case would be remanded for further proceedings.

If the ruling is that the proceeding should not be dismissed, then, as the Solicitor pointed out in Oglesby, an interlocutory appeal would not be entertained since to do so would mean piecemeal appeals. The proceeding would then go through the usual procedure and the Judicial Officer could give consideration to whether the Hearing Examiner erred in failing to dismiss the complaint.

Thus, the Hearing Examiner did not err in assuming that he had authority to dismiss this proceeding. Since all evidence had been presented, he properly made a conclusion as to the merits of this proceeding so that it would not be necessary to remand the case for further consideration should the dismissal be reversed. This having been done, the respondent excepted to the finding of the examiner on the merits and a final Departmental Decision can be rendered. The exception is disallowed.

The respondent excepts to the failure of the Department to transfer the hearing to Los Angeles. He contends that the error in refusing to transfer is "sharpened" because of the fact that the respondent's regular attorney was unable to appear in Washington since he had a case pending in San Francisco. The respondent was ably represented at the hearing and after reading the record of this proceeding I am convinced that the respondent was in no way prejudiced by the absence of his regular counsel, Mr. Fleishman. The Hearing Examiner found that the application of the respondent neither complied nor attempted to comply with the provisions of Rules of Practice governing transfers. This finding was correct and the exception is disallowed.

Respondent next excepts to the finding that the films and pictures are obscene. Having viewed all six of the films and the six packages of black and white pictures, I concur in the finding of the Hearing Examiner. The respondent in this case was, in the language of Chief Justice Warren in his concurring opinion in Roth v. U.S., supra, "plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with prurient affect." The film featured naked young women with close-up shots of breasts, buttocks and pubic areas. There is an appeal to pruriency when judged by the contemporary community standards of the nation. The exception is disallowed.

The next exception of the respondent is to the finding that he is giving information as to where, how and from whom obscene matter can be obtained. The circulars introduced into evidence by the respondent and attached to the complaint feature nude females in provocative poses with emphasis upon the breasts, nipples and pubic areas. They consist chiefly of sketches with a few photographs. The sketches feature abnormally large bosoms with detailed pencil drawings of the nipples, (Exhibits B and B(1)). These circulars were mailed as direct mail advertising and I take official notice of the fact that the Post Office Department has received hundreds of letters of complaint from postal patrons who have received these unsolicited circulars addressed to themselves or their children. This is a matter of official record within the Department. It is plain from viewing these circulars that the intent of the respondent is to offer obscenity. The advertising of the respondent standing alone is sufficient to constitute a violation of the statute. U.S. v. Hornick, 229 F.2nd 120 (C.A. 3d); Klaw v. Schaffer, 151 F. Supp. 534, 540; Affirmed 251, F.2d 615 (C.A. 2d) and Glanzman v. Schaffer, 143 F. Supp. 243, 247; Affirmed 252 F.2d 333 (C.A. 2d). The exception is disallowed.

The next exceptions are based on constitutional questions which are not for the decision of administrative agencies. Engineers Public Service Corp. v. S.E.C., 138 F.2nd 936; Pike and Fisher Administrative Law Section 45(a) 22. The Supreme Court held in U.S. v. Roth, supra, that obscenity is not "utterance within the area of protected speech and press," and that "implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance." The exception is disallowed.

The last exception of the respondent is to the failure to provide oral argument on appeal. There is no requirement either by statute or decision that an agency do so. Even under the new proposed Administrative Procedure Code of the American Bar Association, there is no such absolute requirement. Morgan v. U.S., 298 U.S. 468, 481 and Ex parte Bridges, 49 F. Supp. 293, 304 (Reversed on other grounds 326 U.S. B5). The exception is disallowed.

The decision of the Hearing Examiner on the merits is affirmed. An appropriate order will be issued.

Charles D. Ablard
Judicial Officer