July 2, 2018

In the Matter of the Pandering Petition

DANE CLAYTON v. UNITED STATES POSTAL SERVICE

P.S. Docket No. PAN 18-98

APPEARANCE FOR PETITIONER:
Dane Clayton

APPEARANCE FOR RESPONDENT:
Abigail K. Healy, Esq.
Law Department
United States Postal Service

DECISION ON MOTION TO DISMISS

Respondent, the United States Postal Service, filed a Motion to Dismiss the Petition as outside the scope of review of 39 C.F.R. Part 963, Rules of Practice in Proceedings Relative to Violations of the Pandering Advertisements Statute, 39 U.S.C. 3008.  In response, Petitioner Dane Clayton argued that regardless of the scope of Part 963, he has a right to present evidence at an administrative hearing supporting his contention that the Postal Service is violating his rights by denying the issuance of the requested Prohibitory Orders.  The following findings of fact are made for the purpose of deciding the Motion.

FINDINGS OF FACT

1.         On September 18, 2017, the Postal Service’s Prohibitory Order Processing Center (“the Center”) processed Mr. Clayton’s PS Form 1500, Application for Listing and/or Prohibitory Order (“Application”) and issued a prohibitory order.  The letter did not specify what mailer the prohibitory order was against, but Mr. Clayton’s handwritten notes on the letter reference Capital One and Discover.  (May 5, 2018 Combined Prohibitory Order).  Mr. Clayton does not allege that the September 18, 2017 Prohibitory Order has been violated.
2.         Between October 12, 2017 and February 28, 2018, Mr. Clayton submitted four more Applications requesting prohibitory orders against Crunch, the YMCA, Blink Fitness, and SUNY Downstate Medical Center/the Center for Community Health Promotion and Wellness.¹
3.         The Center denied the Applications against SUNY and the YMCA because the mail pieces did not offer anything for sale (Petition).
4.         The Center denied the Applications against Crunch and Blink Fitness because the “[o]riginal mail piece was addressed to [“ECRWSS² Local Resident Customer”, Our Neighbor; Current Resident, etc.] (no address name/address).” (Emphasis in the original).  The denial further explained that mail addressed using the ECRWSS program “will not have an addressee name and address in [the mailer’s] mailing database to remove.”  (Petition).
5.         On April 30, 2018, Mr. Clayton filed the Petition for Hearing under Prohibition of Pandering Advertisements in the Mail, which was docketed as P.S. Docket No. PAN 18-98.
6.         On May 16, 2018, the Postal Service filed the Motion to Dismiss.  Mr. Clayton filed his response to the Motion on May 18, 2018.

DECISION

As provided for in 39 U.S.C. § 3008, the Postal Service may, under the appropriate circumstances, issue a prohibitory order against a mailer in response to an application by a postal customer.  The prohibitory order prohibits the mailer from making any further mailings to the designated address and requires the mailer to delete the names of the designated addressees from all of its mailing lists.  If the Center believes the mailer has violated the prohibitory order, it may issue a complaint against the filer.  The Rules of Practice in Proceedings Relative to Violations of the Pandering Advertisements Statute, 39 U.S.C. 3008 provide the mailer with an opportunity to challenge that complaint in this forum.  39 C.F.R. § 963.2.
Here, the Postal Service issued a prohibitory order in response to an Application from Mr. Clayton on September 18, 2017, but denied several of his other Applications.  The Center has not, however, issued any complaints related the Prohibitory Order.  As Mr. Clayton is not a mailer, but rather a customer whose applications for prohibitory orders have been denied, I lack jurisdiction to hear this case.
Mr. Clayton argues, however, that under Rowan v. U.S. Post Office Dept., 397 U.S. 728 (1970) and the doctrine of primary jurisdiction, he is entitled to a hearing before the Judicial Officer to determine if the Postal Service improperly denied his Applications, and the propriety of certain Postal Service policies regarding mail preparation by mailers.
In Rowan, the Court held that a mailer that is the subject of a prohibitory order is prohibited from sending any further mailings to the addressee.  In doing so, the Court did affirm, as Mr. Clayton argues, that the addressee has “unfettered discretion in electing whether or not he desires to receive further material from a particular sender,” and the reasonableness of that assertion is not subject to review.  Id. at 734-35.  However, the Court’s affirmation of the right of an addressee to request a prohibitory order does not create any new rights under Part 963 or support Mr. Clayton’s argument that he is entitled to a hearing under Part 963 based on the denial of his Applications.
Mr. Clayton’s second argument concerning primary jurisdiction also fails.  Mr. Clayton argues that the doctrine of primary jurisdiction requires that this office make a determination on the propriety of the Postal Service’s denials before he proceeds to district court.  The doctrine of primary jurisdiction allows state and federal courts to refer matters to administrative agencies.  That doctrine does not, however, allow administrative agencies to create their own jurisdiction where it does not otherwise exist by statute or regulation.  See Reiter v. Cooper, 507 U.S. 258, 268 (1993).
Mr. Clayton’s primary jurisdiction argument is more properly argued under the doctrine of exhaustion of administrative rights.  Under this doctrine, a party is required to seek final redress from an agency before proceeding in federal court.  Until a final decision is received from the agency, a court action is premature.  Id. at 269.  As explained above, that doctrine is also inapplicable to Mr. Clayton’s claims because this office has no role in reviewing application denials.
Ultimately, Mr. Clayton appears to be arguing that the Postal Service should have the equivalent of a do-not-call list to opt out of the mailing programs which led to the denial of his Applications.  Part 963 also does not give this office the authority to rule on that policy issue, and I am not aware of any other statutory or regulatory authority which would separately create jurisdiction in this matter.
In summary, while Mr. Clayton seeks to contest the denial of his Applications and argues that this office has authority to decide his other requests, his arguments are not supported by the applicable regulations.  This office is not the forum for a mailer to appeal the denial of an application or to contest Postal Service policies and programs related to that denial.  Simply put, his administrative rights do not run through this office.  Mr. Clayton’s request for a hearing is thus denied.

ORDER

The Postal Service’s Motion is granted.  The Petition is dismissed.

Diane M. Mego
Administrative Judge