In the Matter of the Petitions by

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA ON BEHALF OF
THE UNIVERSITY OF CALIFORNIA, BERKELEY; RIVERSIDE;
IRVINE; SAN FRANCISCO; and SANTA CRUZ

Proposed Revocation of Second-Class Mail Privileges for

"University of California, Berkeley"; "UCR"; "UCI"; "UCSF"; and
"University of California, Santa Cruz"

P.S. Docket No. 4/82, 4/90, 4/91, 4/92 and 4/103

William A. Duvall Chief Administrative Law Judge

Norman I. Lustig, Esq.
Office of the General Counsel,
590 University Hall, 2200 University Avenue,
Berkeley, California, for Petitioner

Grayson M. Poats, Esq.
Law Department United States Postal Service
Washington, D. C., for Respondent

Before: William A. Duvall, Chief Administrative Law Judge

INITIAL DECISION BACKGROUND

In an Initial Decision dated July 8, 1975, which decision is now on appeal to the Judicial Officer of the Postal Service, it was held that for the reasons stated in the decision the publication of the Regents of the University of California on behalf of the University of California, Los Angeles, "UCLA", did not meet the eligibility requirements for acceptance in the mails as second-class mail matter. It was concluded that the prior determination of the Director, Office of Mail Classification, to revoke the second-class mail permit theretofore in effect with respect to that publication was correct, and that determination by the Director was sustained. (P.S. Docket No. 3/187)

In May, 1976, the parties to this proceeding stipulated, in essential features, that: (1) the facts and issues in the cases appearing in the style hereof are substantially similar to the facts and issues tried in P.S. Docket No. 3/187, with the one exception that the Postal Service initiated the review of the second-class status of the publications involved in the instant proceeding on its own initiative and not on the basis of a review of an application for re-entry, as in the case of "UCLA", P.S. Docket No. 3/187; (2) the Initial Decision in P.S. Docket No. 3/187 shall be deemed to be the Initial Decision in each of the above-styled cases with respect to all questions of fact and law except the issue as to the validity of the manner of the initiation of the review procedures of the Postal Service in regard to above-styled cases which issue will be initially decided herein; and (3) the Postal Service Decision to be rendered by the Judicial Officer in P.S. Docket No. 3/187 will be applicable to these instant consolidated proceedings, but in addition, if this decision is appealed there will be a Postal Service Decision in the instant proceeding which will address, solely, the issue concerning the review procedures of the Postal Service in the above-styled cases.

Although the Stipulation was docketed on May 10, 1976, it provided that the parties were allowed until May 17, 1976, to file briefs limited to the issue of the Postal Service's review procedures. Respondent's brief was timely filed. On May 21, 1976, Petitioner was, by letter, allowed until June 1, 1976, to file its brief, or to indicate that it did not intend to file such a brief. No response having been received to the letter of May 21, 1976, the undersigned wrote to Petitioner's counsel on July 13, 1976, and allowed Petitioner further time, until July 30, 1976, to file its brief. No response to the last notice has been received. Accordingly, the matter will now proceed to decision on the record as it is now constituted.

There is in the record, in addition to the items mentioned above and related correspondence, the affidavit of a witness for the Postal Service setting forth the chronology and the circumstances surrounding the examination by the Postal Service, on its own initiative, of the publications of the various institutions under the aegis of the Regents of the University of California.

In summary, this affidavit reveals that applications for re-entry were filed by various institutions at the following times and with the results indicated:

Branch of University                           Date of Re-Entry            Date of Notice
of California                                         Application                     of Revocation

U. of Cal., Los Angeles                        March 19, 1974              October 21, 1974

U. of Cal., Davis*                                  November 26, 1974        May 28, 1975

U. of Cal., San Diego*                           June 3, 1974                  June 16, 1975

U. of Cal., Santa Barbara*                    April 24, 1974                September 17, 1975

*/ By a separate stipulation filed of record on May 10, 1976, the parties agreed, with respect to this case, to abide the result in the Postal Service Decision in P.S. Docket No. 3/187, relating to the Petition by the Regents of the University of California on behalf of the University of California, Los Angeles .

fter the Initial Decision was issued in the "UCLA" case, the Postal Service requested, and received from Petitioner, all publications of the University of California that are similar to the publications of the institutions listed above, namely, the catalogs of the branches of the University of California located at Berkeley, Riverside, Irvine, San Francisco and Santa Cruz. It is this action by Respondent which Petitioner asserts is improper, illegal, or both.

DISCUSSION

To resolve this matter, one must begin with recognition of the fact that the Postmaster General has by his oath of office pledged that he "will well and faithfully discharge the duties of his office ***." (39 U.S. Code 1011) One of these duties is to charge each piece of mail the rate of postage appropriate to its class. When, on examination, it was found that four of the catalogs of institutions under the cognizance of the Board of Regents of the University should be charged a higher rate than they previously had been charged, it was logical and natural that the correctness of the rate of postage being charged other similar publications of the same publisher should be the subject of some doubt.

Since there are 11 branches of the University of California, and since it was not known when, if ever, other branches of the institution would apply for re-entry, efficient and effective application of statutory second-class mail requirements obliged the Postal Service to undertake to examine, at one time, the publications of all of the branches of the institution.

There are reasons supporting such action in addition to the obligation to assess the proper rate of postage. In the case of the vast majority of educational institutions whose publications have been examined, the institutions have moved that the hearings be held at or near the cities in which they are located. This request is based upon the fact that the attorneys, the witnesses to be called, and the records to be relied upon are located at the cities of the institutions. The Postal Service, also, has the obligation to conserve its financial resources, and one way of doing this is to schedule as many hearings in one place at one time as is reasonably possible. By examining all of the known publications of University of California, it has been possible to consolidate cases, as in this instance, and travel time of personnel of the Postal Service has been kept within the minimum reasonable limits.

The preceding remarks set forth practical considerations supporting, and perhaps even dictating, the action of the Postal Service in calling for certain publications of the Regents of the University of California in order that they might be examined at or about the same time. It is now appropriate to examine further legal authority.

As pointed out by Respondent's counsel, it is provided in 39 U.S. Code 4352(b) that:

"The Postmaster General may revoke the entry of a publication as second class mail whenever he finds, after a hearing, that the publication is no longer entitled to be entered as second class mail."

his authority has been delegated to the Director, Office of Mail Classification, who is authorized by language found in 132.82, Postal Service Manual, among other things, to--

"***call on a publisher from time to time to submit information bearing on the publisher's right to retain a second-class entry for his publication. ***"

he last quotation is a necessary tool if the Postmaster General is to be able to exercise the authority granted in 39 U.S. Code 4352(b), supra . Furthermore, if the Postmaster General is charged with the duty of administering the statutes relative to the Postal Service, he must be, and he is, clothed with reasonable discretion as to the time and the manner of the performance of that duty. Nothing that has been done with respect to the institutions the publications of which are the subjects of this proceeding which serves to, or will, deprive them of any right to which they are entitled. To the contrary, these institutions are being brought into compliance with the same postal laws and regulations being applied to other similarly-situated publishers.

CONCLUSIONS

1. Based upon all of the foregoing considerations, the action by the Postal Service, on its own initiative, in asking Petitioner to furnish the publications of the institutions shown in the style hereof was legally and practically justified and correct.

2. Based upon the foregoing conclusion, and upon the Stipulation of the parties filed May 10, 1976, in this proceeding, it follows that the decision of the Respondent to revoke the second-class mail permits of the institutions shown in the style hereof for the publications which are the subject of this proceeding was correct and that decision is hereby sustained.