United Seniors Association, Incorporated v. Social Security Administration, National Taxpayers Union, Amicus Supporting

SHEDD, Circuit Judge,

concurring.

I agree with my colleagues that substantial evidence supports the ALJ’s conclusion that the envelopes distributed by United Seniors Association, Inc. (“USA”) bore references to “Social Security” that violate § 1140 of the Social Security Act. I also agree that § 1140 is constitutional on its face and that it properly applies to envelopes such as those at issue in this case. I disagree, however, with the notion that there is an ambiguity in the statute that calls for deference to the ALJ’s interpretation. To the contrary, I believe that the *409 statute applies to USA’s envelopes by its plain terms and contains no ambiguity.

Section 1140 applies to uses of the phrase “Social Security” (and other words, phrases, and symbols) “in connection with any item constituting an advertisement, solicitation, circular, book, pamphlet, or other communication.” Thus, the statute applies to USA’s envelopes if either (1) the envelopes are themselves “other communication[s]” or (2) the envelopes are “in connection with” an advertisement, solicitation, circular, book, pamphlet, or other communication.

The phrase “other communication” refers to a communication similar in nature to advertisements, solicitations, circulars, books, and pamphlets. Unlike my colleagues, I do not believe that this phrase is ambiguous simply because some envelopes may satisfy this condition while others may not. That fact does not suggest that the statutory term is susceptible to multiple reasonable interpretations. It seems clear to me that an “other communication” must be similar to the specified items in the nature of the information it conveys, not the nature of the medium. The statute does not exclude from coverage any particular medium of communication; it certainly does not exclude envelopes. Common experience confirms that envelopes may do more than merely carry contents. For example, direct-mail pieces often bear external messages urging recipients to pay attention to the mailing. Such direct-mail pieces are similar to postcards, which bear not just ordinary postal information but also the sender’s own messages.

Any “item” that constitutes a communication similar to the listed items is covered by § 1140. An envelope is an “item,” so the pertinent question is whether the particular envelope at issue in a given case constitutes a communication similar to an advertisement, solicitation, circular, book, or pamphlet in the nature of the information it conveys. These items share a single characteristic: They express messages from the sender to the recipient concerning the sender’s business or interest. Thus, an envelope bearing on its surface messages from the sender to the recipient concerning the sender’s business or interest is a communication that is covered by § 1140. Because USA’s envelopes express USA’s own message related to time-sensitive Social Security information, they are “other communicationfs]” subject to regulation under § 1140.

Even if it were not so clear that USA’s message-bearing envelopes were themselves “other communication[s],” there can be no doubt that USA used those envelopes “in connection with” their contents. Since USA acknowledges that the contents of USA’s envelopes were, in fact, advertisements or solicitations, Brief of Pet’r at 4, § 1140 plainly applies to the messages printed on those envelopes.

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