In the Matter of the Complaint Against

PARKER PUBLISHING CO. at
West Nyack, New York 10994

P.O.D. Docket No. 3/80;

APPEARANCES:
George C. Davis, Esq.
H. Richard Hefner, Esq.
Thomas A. Ziebarth, Esq.
Law Department U.S. Postal Service
Washington, D. C. 20260 for Complainant

Joseph F. Kelly, Jr., Esq.
John R. Schoemer, Jr., Esq.
John M. Callagy, Esq.
Townley, Updike, Carter & Rodgers
220 East 42nd Street
New York, New York 10017 for Respondent

ORDER DENYING RECONSIDERATION

1. Background

This proceeding is before the Judicial Officer on Complainant's motion for reconsideration of the Postal Service Decision of December 14, 1971. In that decision the Judicial Officer refused to issue the order sought by Complainant and recommended by the Hearing Examiner. In his motion and supporting brief, Complainant challenges the appropriateness of the Judicial Officer's disposition of the proceeding in large part on the same grounds on which he opposed exceptions taken by Respondent to the Hearing Examiner's Initial Decision.

Complainant's brief supporting the motion for reconsideration is more extensive than his brief in opposition to Respondent's exceptions. Nevertheless, it is not so persuasive as to call for a modification of the conclusions reached in the Postal Service Decision of December 14, 1971. On the other hand, in view of the earnestness with which the arguments are presented, some further explanation is considered to be in order.

2. Statutory Considerations

The Postal Service Decision was issued pursuant to 39 U.S.C. 3005 which provides in pertinent part: "Upon evidence satisfactory to the Postal Service that any person is engaged in a scheme or device for obtaining money or property through the mail by means of false representations * * * the Postal Service may issue an order" of the character sought in this proceeding. The operative verb in the sentence is "may issue". Clearly, this section grants permission to issue orders; it does not require their issuance. ^1/ In the Postal Service Decision of December 14, 1971, the Judicial Officer, acting for the Postal Service, exercised its discretion to refrain from issuing an order under 39 U.S.C. 3005 for the reasons there set forth.

It is a tenet of statutory construction that a statute ought to be construed so as to avoid the necessity of deciding serious constitutional doubts. ^2/ It was with the purpose of avoiding a pronouncement on the constitutional question raised that the Decision alluded to "a possibility that an application of the statute in question to the facts of their case might infringe First Amendment rights". No nuance as to the degree of probability of such a holding was intended by the use of the word "possibility" as opposed to some stronger synonym.

3. Constitutional Considerations

It is sometimes broadly stated that administrative officials do not consider constitutional questions. What is meant, however, is that administrative officials should not declare statutes they administer to be unconstitutional. Thus, the Judicial Officer in the Departmental Decision in Camerarts, P.O.D. Docket No. 1/66, cited by Complainant, said "Exceptions 2, 5 and 6 of the publisher raise constitutional issues not for consideration of administrative tribunals." The issues the Judicial Officer refused to consider were the constitutionality of statutes administered by the Department. ^3/

Professor Davis in his highly regarded work on administrative law describes the appropriate role for administrative tribunals to play in Constitutional problems as follows:

"A fundamental distinction must be recognized between constitutional applicability of legislation to particular facts and constitutionality of the legislation. When a tribunal passes upon constitutional applicability, it is carrying out the legislative intent, either express or implied or presumed. When a tribunal passes upon constitutionality of the legislation, the question is whether it shall take action which runs counter to the legislative intent. We commit to administrative agencies the power to determine constitutional applicability, but we do not commit to administrative agencies the power to determine constitutionality of legislation. Only the courts have authority to take action which runs counter to the expressed will of the legislative body." (3 Davis, Administrative Law (1958) § 20.04)

Thus a federal administrative agency must take the applicability of constitutional grants of power and the limitations and restraints on federal powers into consideration in the normal performance of its federal functions, particularly in determining the perimeters of the area in which it will seek to apply legislation it administers. This is what was done here.

4. Misrepresentation

Basically, Complainant asks the Judicial Officer to look at the enterprise as one purveying medical treatment. However, looking at the questioned advertising and the nature of Respondent's business we must conclude that the business is one of selling books. ^4/ Therefore, the question is whether the advertising misrepresents the book.

The dilemma posed by the Complainant's argument is that although Complainant states he is not attacking the book and does not question that the advertising accurately represents the contents of the book, the order which would result from upholding the complaint would cover all mail relating to the enterprise of selling the book at the current address. The result of upholding the complaint, therefore, would be substantial interference with the sale of the book even though the advertising as far as shown in this proceeding accurately represents what the book says.

Notwithstanding Complainant's disavowal of any intention of questioning the contents of the book, his brief attacks the book in the following language:

"Where, however, a seller advertises a book which is alleged to reveal curative or alleviate formulae for identifiable physiological conditions, a lay purchaser -- absent appropriate disclaimer -- may reasonably be expected to believe that he is being offered information of currently accepted scientific validity which, if followed, would be of benefit to himself. In such case -- and the instant case is typical -- any explicit or implicit misrepresentation by the seller respecting the validity of the content could be material to the purchaser."

As stated above, the advertisement is for a book and the question presented is whether that advertising misrepresents the book whose purchase it is soliciting.

Despite Complainant's language quoted above, Complainant has conceded for the purposes of this proceeding that the advertising accurately portrays what the book says or at least that there is no evidence to the contrary. Thus, in this proceeding the advertising can be held to falsely represent the book only:

(a) if a finding is made that the principles and procedures espoused by the book are false; and

(b) from that finding it is concluded that the book will not confer the knowledge that the advertising represents the book will confer; and

(c) it is further concluded that the advertising thus misrepresents the product offered for sale.

As the Judicial Officer has refused to accept or to make finding of falsity such as is described above, he cannot reach the ultimate conclusion that the advertising misrepresents the product advertised.

Conclusion

Complainant's motion for reconsideration is denied.

03/09/72

Wenchel, Adam G.

____________________

1/ This conclusion derives from the literal language of the section. Its legislative history precludes any other reading. The section is taken almost verbatim from former 39 U.S.C. 4005 as revised by P.L. 90-590, the only changes in the quoted language being the substitution of "Postal Service" for "Postmaster General". P.L. 90-590 insofar as is here pertinent had the purpose of broadening the coverage of the law. It substituted "may order" for two verbs "may direct" and "may forbid" which were used in section 4005 as it was enacted in the original legislative codification of title 39 by P.L. 86-682. Throughout title 39 U.S.C. as enacted by P.L. 86-682 the auxiliary verb "shall" was used to denote the mandatory and "may" was reserved for the permissive. In view of the derivation of present section 3005 it is clear that "may" is used in its normal permissive sense.

2/ Federal statutes are to be so construed as to avoid doubts of their constitutionality. International Ass'n. of Machinists v. Street, 367 U.S. 740, 749.

3/ Exceptions to the Hearing Officer's Report and Recommendation referred to are:

"2. That said Report and Recommendation is predicated upon Acts of Congress delegating authority to the Postal Department, which acts are void for vagueness and want of judicial standards.

* * * * * *

"5. The provisions of Section 1461, Title 18, United States Code, violate the due process clause of the Fifth Amendment of the United States Constitution.

"6. The Acts of Congress authorizing the banning of published matter from the mails run afoul of the Ninth and Tenth Amendments of the United States Constitution."

4/ It is interesting to note that the price charged is appropriate to a sale of a book.