July 19, 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 Healy, Esq.
United States Postal Service Law Department

POSTAL SERVICE DECISION

On July 4, 2018, Dane Clayton timely appealed a Decision on Motion to Dismiss (the “Decision”) issued by Administrative Judge Diane M. Mego on July 2, 2018.  The Postal Service filed a brief on July 18, 2018 opposing the appeal.
The Decision concluded that Mr. Clayton’s Petition fell outside the scope of review of 39 C.F.R. § 963, and therefore dismissed the case for lack of jurisdiction.
I affirm.
Background
In 1970, Congress enacted the Prohibition of pandering advertisements statute, 39 U.S.C. § 3008,¹ to protect postal customers against any unwanted mailed “pandering advertisement which offers for sale matter which the addressee in his sole discretion believes to be erotically arousing or sexually provocative.”  39 U.S.C. § 3008(a).  
Mr. Clayton, a postal customer in Brooklyn, New York, filed a Petition under 39 C.F.R. § 963, Rules of Practice in Proceedings Relative to Violations of The Pandering Advertisements Statute, 39 U.S.C. 3008.  In his Petition, Mr. Clayton objected to receiving “[o]ffensive, lewd and salacious unsolicited advertisements,” and stated that he “do[es] not feel insulated from erotically arousing or sexually provocative materials that comes through my mailbox.”  Petition, ¶¶ 5-6.  The senders of the mail about which Mr. Clayton complains on these grounds are:  Crunch Fitness, YMCA of Greater New York, SUNY Downstate Medical Center, BJ’s, Blink Fitness, Optimum Cable/Altice, Abigail’s Pharmacy, and B&H Photo Video.  Petition ¶¶ 29-36.
The Pandering Law process
The Pandering Law establishes a process by which a postal customer who determines that mail consists of a pandering advertisement, which offers for sale matter that is erotically arousing or sexually provocative, may obtain an Order from the Postal Service directing the sender of such material to refrain from further mailings to that postal customer.  39 U.S.C. §§ 3008(a),(b).  A resulting Prohibitory Order also directs the sender to delete the addressee from all mailing lists owned or controlled by the sender, and prohibits the sender from engaging in any transaction involving a mailing list that includes the addressee.  39 U.S.C. § 3008(c).
If the Postal Service believes that a sender violated a Prohibitory Order, the Postal Service issues the sender a complaint and requests a response to that complaint.  If the sender’s response contests its violation of a Prohibitory Order, the Postal Service will provide the sender an opportunity for a hearing to determine whether the sender in fact violated a valid Prohibitory Order.  If the Prohibitory Order is ruled to have been violated, the Postal Service is authorized to request the Attorney General to apply to a federal district court for an Order directing compliance.  39 U.S.C. § 3008(d).  The federal district court is granted jurisdiction to issue a compliance Order, the violation of which is punishable as a contempt of court.  39 U.S.C. § 3008(e).
In 1987, the Postmaster General delegated to the Postal Service’s Judicial Officer the authority to conduct the hearing, authorized by section 3008(d) of the Pandering Law, to determine whether a valid Prohibitory Order has been violated by a sender.  See 39 U.S.C. § 204; 39 C.F.R. § 963.1.²  The regulations under which this case was filed provide the procedures for that hearing and resulting decision.  39 C.F.R. § 963, Rules of Practice in Proceedings Relative to Violations of The Pandering Advertisements Statute, 39 U.S.C. 3008 (hereafter, the Pandering Law Hearing Regulations).
The Pandering Law Hearing Regulations implement 39 U.S.C. § 3008(d), and by their express terms apply only to situations where the Postal Service’s Prohibitory Order Processing Center has issued a complaint alleging violation of a Prohibitory Order, and where the alleged violator (the sender of the mail subject to the Prohibitory Order) has petitioned for a hearing.  39 C.F.R. §§ 963.2, 963.3.  The Pandering Law Hearing Regulations provide that an Administrative Law Judge or Administrative Judge in the Postal Service’s Judicial Officer Department renders an Initial Decision determining whether the sender of the mail subject to a Prohibitory Order has violated that Order.  39 C.F.R. §§ 963.4, 963.18.
Either party may appeal the Initial Decision, by filing exceptions in a brief on appeal, to the Judicial Officer.  The Judicial Officer then renders the Final Agency Decision determining whether a Prohibitory Order issued by the Postal Service was violated by the sender of the mail advertisement who petitioned for relief.  If the Judicial Officer determines that the sender of the mail subject to the Prohibitory Order violated that Order, a certified copy of the record is issued to the Postal Service’s General Counsel for use in seeking court enforcement of the Order.  39 C.F.R. §§ 963.19; 963.20.³
Decision dismissing Mr. Clayton’s Petition for lack of jurisdiction
The Decision on Motion to Dismiss found that Mr. Clayton filed applications seeking Prohibitory Orders against Crunch Fitness, the YMCA, Blink Fitness, and SUNY Downstate Medical Center.  Decision, Finding 2.
The Postal Service denied the applications against the YMCA and SUNY Downstate Medical Center because the mail pieces did not offer anything for sale, Decision, Finding 3, and denied the applications against Crunch Fitness and Blink Fitness because “Original mail piece was addressed to [‘ECRWSS Local Resident Customer’, Our Neighbor; Current Resident; etc.] (no addressee name/address).”  Decision, Finding 4.  “Mailer will not have addressee name and address in their mailing database to remove.”⁴   Id.  The record does not include applications for Prohibitory Orders against BJ’s, Optimum Cable/Altice, Abigail’s Pharmacy or B&H Photo Video, or any Postal Service responsive rulings.  Decision, n. 1.
The Decision also found that Mr. Clayton submitted two other applications seeking Prohibitory Orders which were granted by the Postal Service’s Prohibitory Order Processing Center.  Although the document Mr. Clayton identified as the Combined Prohibitory Order did not specify the mailers to which it applied, Mr. Clayton’s handwritten notes reference Capital One and Discover.  Mr. Clayton does not, however, allege that this Combined Prohibitory Order has been violated.  Decision, Finding 1; Dane Clayton’s Reply to Motion to Dismiss ¶ 16 (referencing “a combined Prohibitory Order for Capital One and Discover Credit Cards,” and stating that “Capital One and Discover has (sic) not violated this order.”)  All these findings are supported by the record.
In his Petition, for relief Mr. Clayton requested that Prohibitory Orders be issued against Crunch Fitness, YMCA, SUNY Downstate Medical Center, BJ’s, Blink Fitness, Optimum Cable/Altice, Abigail’s Pharmacy, and B&H Photo.  Petition ¶¶ 29-36.  The Petition also requested that Mr. Clayton’s name, address, apartment number, and zip code be removed from “USPS Every Door Direct Mail system [EDDM],” and from “USPS Extended (sic Enhanced) Carrier Route Walking Sequence Saturation system [ECRWSS]/Enhanced Carrier Walk Sequence High-Density system [ECRWSH]”.⁵  Petition ¶¶ 2-3.
The Decision found that Mr. Clayton’s Petition did not allege or show that the Postal Service’s Prohibitory Order Processing Center issued any complaints that a mailer violated a Prohibitory Order applicable to Mr. Clayton.  The Decision concluded that because Mr. Clayton is not a mailer, but rather a postal customer whose applications for Prohibitory Orders were denied, jurisdiction under 39 C.F.R. § 963 is lacking.
Mr. Clayton’s appeal to the Judicial Officer
Although filed and captioned as an appeal, Mr. Clayton’s brief does not identify exceptions to the Decision, and does not directly address the Decision at all.  Rather, the appeal consists of a screed, primarily analyzing the Petition Clause of the First Amendment of the United States Constitution, and difficulties associated with exercising that venerable Constitutional right.  The appeal also describes the doctrine of exhaustion of remedies, but not in connection with this case.  Nowhere does the appeal identify any error in the Decision, or request any particular relief.  Therefore, nothing has been presented by the appeal for me to address.  However, because the Pandering Law Hearing Regulations authorize me to decide all issues de novo, 39 C.F.R. § 963.19, I have performed my own analysis of the Decision on Motion to Dismiss.  Following that review, I affirm the Decision.
I start with a counter-intuitive conclusion.  Viewed objectively, the mailers about whom Mr. Clayton complains would seem to have nothing to do with “material involving pandering advertisements offering for sale matter that is erotically arousing or sexually provocative.”  However, review on that basis is not proper.  In Ritchie Hallanan Real Estate, Ltd., P.S. Docket No. P 03-393, 2004 WL 7329849 (I.D. May 18, 2004), a petitioner (the sender of mail subject to a Prohibitory Order) argued that it was “a real estate company, that there is nothing whatever about its mailings that is ‘erotically arousing or sexually provocative,’ and that this particular postal customer is abusing postal regulations.”  Relying on Rowan v. U.S. Post Office Dept., 397 U.S. 728, (1970), the Postal Service’s Chief Administrative Law Judge concluded that “[w]hile Petitioner’s position is not unreasonable, the statute gives a postal customer unfettered discretion, and the reasonableness of his assertion as to the nature of Petitioner’s advertising is not subject to review.”  Hallanan, 2004 WL 7329849 at *2.
As examined in the Decision, Mr. Clayton’s Petition seeks an administrative hearing to determine whether the Postal Service improperly denied his applications for Prohibitory Orders.  As the Decision correctly concluded, the Pandering Law Hearing Regulations do not provide for such review.
The Postal Service’s Judicial Officer Department is not an Article III court with a general grant of jurisdiction over cases involving federal or postal questions, and I am not an Article III judge.  My authority is limited to the jurisdiction provided to me by applicable statutes and regulations, or as expressly designated or delegated by the Postmaster General.⁶  Concerning the Pandering Law, I am authorized to adjudicate Petitions filed by senders of mail to decide whether those senders have violated a validly issued Prohibitory Order.  The Supreme Court’s analysis of the Pandering Law confirms this conclusion.  Rowan, 397 U.S. at 738-39 (“Only if the sender violates the terms of the [Prohibitory O]rder is the Postmaster General authorized to serve a complaint on the sender, who is then allowed 15 days to respond.  The sender can then secure an administrative hearing.”) (footnote omitted).⁷
My authority does not extend to a review of the Postal Service’s denial of Prohibitory Orders, nor am I empowered to adjudicate other aspects of the Pandering Law or the Postal Service’s application of it.  Neither I, as the Postal Service’s Judicial Officer, nor the Administrative Law Judges or Administrative Judges in the Judicial Officer Department, possess general authority to resolve non-delegated disputes involving the Postal Service.
More specifically, we have not been provided authority to direct the Postal Service to alter its Every Day Direct Mail service program, or its marketing mail regulations, or their application to Mr. Clayton, as he seeks.  See, e.g., Mallard v. United States Postal Service, WB 15-280, 2016 WL 10572259 (May 18, 2016) (“I am unaware of any precedent, nor has Complainant presented any case law, to support the notion that general adjudicatory powers of an administrative law judge under the APA [Administrative Procedure Act] permit review of agency action on the judge's own motion.”); Sunday School Board of the Southern Baptist Convention Baptist Sunday School Board, P.S. Docket No. SCD 97-192, 1998 WL 36014591 (P.S.D. July 19, 1998) (Judicial Officer lacks authority to consider additional areas beyond those authorized in the various rules of practice regulations); Zion’s Hope, Inc., P.S. Docket No. 38/163, 1993 WL 13957034 (P.S.D. August 23, 1993) (“although . . . certain authority has been delegated to the Judicial Officer in connection with the performance of his ‘quasi-judicial duties’ that authority does not extend to amending the Domestic Mail Manual.”); Columbia Flier, P.S. Docket No. 26/17, 1988 WL 1724075 (P.S.D. May 11, 1988) (“there has been no additional delegation of authority to the Administrative Law Judges or the Judicial Officer to consider constitutional issues”).
While the Postmaster General may be empowered to delegate additional authority to the Judicial Officer to adjudicate denials of applications for Prohibitory Orders, or resolve customer complaints about the Postal Service’s mail delivery programs, she has not done so.  See 39 C.F.R. §§ 951-966.  As I explained in another context in Hough v. United States Postal Service, AO 17-30, 17-32, 17-33, 2017 WL 5516565 at *2 (P.S.D. June 29, 2017), “[i]n the absence of such a delegation, it is not the Judicial Officer’s role to address such claims nor to advise [a Petitioner] as to an appropriate forum that may adjudicate his [claims].”

Conclusion

The Decision on Motion to Dismiss is affirmed.  This case remains dismissed due to lack of jurisdiction.

Gary E. Shapiro
Judicial Officer