In the Matter of the Complaint Against

PAUL HARVEY
515 N. Hunter and
540 N. California at
Stockton, CA 95202

P.S. Docket No. 8/10;

Cohen, James A.

APPEARANCE FOR COMPLAINANT:
NormanMenegat, Esq.
Assistant Regional Counsel
Western Regional Headquarters
United States Postal Service
San Bruno, CA 94099

Sandra McFeeley, Esq.
Consumer Protection Division
Law Department, U.S. Postal Service
Washington, DC 20260

APPEARANCE FOR RESPONDENT:
Lee H. Harter, Esq.
2256 Van Ness Avenue
San Francisco, CA 94109

POSTAL SERVICE DECISION ON APPLICATION
FOR MODIFICATION OF MAIL STOP ORDER NO. 80-129

On July 14, 1980, Respondent filed an Application For Modification of Mail Stop order No. 80-129 under 39 C.F.R. § 952.29. Mail Stop Order No. 80-129 was issued on June 19, 1980, by Acting Judicial Officer Quentin E. Grant as the result of a finding in a Postal Service Decision of the same date that Respondent, by means of the sale or promotion of work-at-home programs involving "The Cooperative Mail Program" and "Circular Mailing Program" circulars and/or a booklet entitled "Making Money In Mail Order," was engaged in a scheme or device for obtaining money through the mail in violation of 39 U.S.C. § 3005.

In its Application Respondent asks to be allowed to receive at the addresses covered by Mail Stop Order 80-129 responses to advertising which it has attached to its Application. Respondent bases its request on the fact that this advertising material no longer makes the representations complained of and found to be false by Acting Judicial Officer Grant. Respondent also suggests a procedure for handling the mail received in response to its new solicitations. In addition it asks for assurance from Complainant that it will not seek injunctive relief in conjunction with proceedings under 39 U.S.C. § 3005. Finally Respondent states that it is willing to treat its Application For Modification as an agreed statement of facts if Complainant insists there are other misrepresentations made in Respondent's new advertising program.

Complainant points out that Respondent is seeking a decision on a potential action under 39 U.S.C. § 3005 prior to undertaking the advertising campaign which is the subject of its Application. It also argues that Respondent bears a heavy burden and has not sustained this burden of showing that the representations in its new advertising are no longer false or tainted by its earlier false representations.

Respondent in effect is asking for the issuance of an advance or advisory decision inasmuch as it is seeking a decision on advertising which has not been published and for which remittances are not now being received. The issuance of such a decision would have the effect of making the Judicial Officer a clearing house for proposed new advertising. This is not the function of the Judicial Officer. The functions of the Judicial Officer and the Administrative Law Judges of the Postal Service are quasi-judicial and as such are limited to adjudicating cases in which there is a justiciable controversy which could result in actual injury to a party. (See 39 C.F.R. 224.1(c)(4)) Since Respondent's Application For Modification does not raise this type of controversy it is not appropriate for consideration by the Judicial Officer. Accordingly Respondent's Application For Modification is dismissed.