Petition — Pent-R-Books, Inc. v. United States

Supreme Court brief1977

Ask Donna

What actually matters in this document.

Text

Iy THE

Supreme Court of the United States

October Term, 1976.

_ 267747 «

PENT-R-BOOKS, Ivc.,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

Petition for Writ of Certiorari to the United States

Court of Appeals for the Second Circuit.

Hersert Monte Levy

Attorney for Petitioner

9 East 40th Street

New York, N. Y. 10016

Table of Contents.

Page

Opinions Below 1

Jurisdiction 2

Questions Presented for Review 2

Constitutional, Statutory and Regulatory Provisions

Involved 5

a) Constitutional provisions 5

b) Statutory provisions 6

c) Regulatory provisions involved 10

Statement of the Case —.......... hasiasetiliatiacdnteiiaihanids 11

Proceedings in the District Court —..........-.............. 16

Proceedings in the Court of Appeals -......................... 16

Point I. The holding below that there is a case or

controversy between the parties hereto con-

flicts with Article III, Section 2 of the Constitu-

tion as previously construed in applicable de-

Re ere 17

Pornt II. Automatic issuance of an injunction

against one trying to comply with the law,

solely because of such compliance effort, when

better compliance cannot be insured and the

public interest is not served by issuance of an

injunction, is against federal law. This pre-

sents a substantial federal question not hereto-

fore determined by this Court .. 20

Page

Port III. The Court should reexamine its decision

in Rowan, in the light of the then unforeseen

negative effects of the Pandering Law upon

freedom to disseminate Constitutionally pro-

tected material to those whe wish to receive

it, and the subsequent acts of the Government

in acting as censor ... siieiibiiiiies ae |

Porst ITV. When neither the Trial Court nor the

parties there considered the Federal Rules of

Evidence applicable to cases begun in 1969 and

1972, they should not be applied in an appel-

late court for the first time so as to prevent a

party from presenting evidence. In decid-

ing otherwise, and in deciding that the Federal

Rules of Evidence permit certification of pa-

pers found in Government files by any person

who certifies them, the Court below decided im-

portant questions of federal law which have

not been, but should be, settled by this Court 26

Conciusion. Certiorari should be granted to review

the decisions of the Court below .................... 29

Aprenpix A. Opinions in the Courts Below ............ 27a-62a

Appenpix B. Opinions of the District Court in Re-

lated Companion Cases ..........-.---.---:------+-s+e0e0 63a-94a

TABLE OF CASES.

Blount v. Rizzi, 400 U. S. 410 (1971) ...........-..-...... 23, 25

Erznoznik v. City of Jacksonville, 422 U. S. 205

PE inslapuadsintaaa —

Page

Golden v. Zwickler, 394 U. S. 103 (1969) 18

Hecht v. Bowles, 321 U. S. 321 (1944) a

Lamont v. Postmaster General, 381 U. S. 301 ... 25

Louisiana v. N.A.A.C.P., 366 U. S. 293, 296 (1961) 23

O’Shea v. Littleton, 414 U. S. 488 (1974) 00. 18

Pent-R-Books, Inc. v. United States Postal Service,

328 F. Supp. 297 (E.D.N.Y. 1971) .....2.-. . 414

Rizzo v. Goode, 423 U. S. 362 (1976) , 18

Rowan v. Post Office Dept., 397 U. S. 728 (1970) 12, 21,

22, 23,

25, 26

Shelton v. Tucker, 364 U. S. 479 (1960) 000000... 23

Ex parte Steele, 162 Fed. 694, 701 (1908) 18

Time, Ine. v. Hill, 385 U. S. 374, 389 (1967) .0.02.. 25

United States v. Stewart, unreported, Crim. No.

ET chistndenuncithimtenniia - 13

United States v. Treatman, 408 F. Supp. 944, 954

Se ar ne 22

Virginia State Board of Pharmacy v. Virginia Citi-

zens Consumer Council, Inc., 44 L. W. 4686,

U. S. (1976) ... 20

Young v. American Mini Theatres, Inc., 44 L. W.

4999, U. S. I 24

No.

Pent-R-Books, Inc.,

Petitioner,

Unrrep Srates or AMERICA,

Respondent.

—

Petition for Writ of Certiorari to the United States

Court of Appeals for the Second Circuit.

To THe Cuter JUSTICE AND THE ASSOCIATE JUSTICES OF THE

Supreme Court or tHe Unirep States:

Your Petitioner, Pent-R-Books, Ine., hereby petitions

for a writ of certiorari to review the decision of the

United States Court of Appeals for the Second Circuit

in 17 of 20 consolidated actions brought by the United

States to obtain court orders requiring your Petitioner

to comply with Postal prohibitory orders issued pur-

suant to the Pandering Law, 39 U.S.C. §3008, these being

the 17 cases identified by docket numbers in footnotes 3

and 5, infra, at pp. 16, 17, all cases bearing the same title.

Opinions Below.

The opinion below, governing all the cases, is reported

at 538 F. 2d 519; a copy thereof is appended hereto as

pages la-26a of Appendix A. No opinion was rendered

on the denial of Petitioner’s Petition for rehearing. Pages

26a-62a of Appendix A are the opinions of the United

States District Court for the Eastern District of New

York in the 17 consolidated cases here; they are not re-

ported. Appendix B consists of opinions of the said

District Court in companion cases, reference to which is

necessary to ascertain some of the grounds of the judg-

ments and decrees in Appendix A; these opinions, too, are

unreported.

Jurisdiction.

The judgment and order to be reviewed was made and

entered on June 28, 1976. An order denying a timely

motion for rehearing was made and entered on August

3, 1976, while another order of even date stayed issuance

of the mandate pending application to this Court for

certiorari. On October 26, 1976, Mr. Justice Marshall of

this Court granted an order extending the time for filing

petition for writ of certiorari up to and including No-

vember 30, 1976. The statutory provision believed to

confer on this Court jurisdiction to review the judgment

in question is 28 U.S.C. See. 2101(¢).

Questions Presented for Review.

(1) Whether there are any cases or controversies be-

tween the parties hereto within the meaning of Article

III, Section 2 of the United States Constitution, (and

whether, if there ever were such cases or controversies,

they are now moot), where the United States, pursuant

to the Pandering Law, 39 U.S.C. §3008, sought Court

orders requiring petitioner to comply with certain Postal

Prohibitory Orders requiring petitioner not to mail any

advertisements to those persons who had previously found

its advertisements. to be erotically arousing or sexually

provocative, the Postal Service having previously found

alleged violations of such Orders by second mailings to

the complaining addressees, when (a) the second mailings

complained of had been made in 1968 and 1969, but im-

proved 1970 and 1971 computer programming to better com-

ply with the law thereafter resulted in the alleged viola-

tion rate of less than one-quarter of one percent (0.025% )

being reduced to less than four thousandths of one per-

cent (0, 004%), and a violation rate as found by the Courts

for all years in less than five thousandths of one per-

cent (0.0045%) of the cases; (b) neither petitioner nor

any other entity using the same mailing lists has ever

been alleged to. have made a further violative mailing

to a particular addressee after Postal adjudication of a vi-

lation re that addressee; and (c) after the Court below

denied a petition for rehearing, the Postal Service

amended its regulations to provide that prohibitory or-

ders are void five years after the application of the com-

plaining addressee for an administrative complaint from

the Postal Service, and such five year period had expired

in every case here even prior to the oral argument in the

Court below.

(2) Whether a Court compliance order, enjoining a

mailer from making a further mailing to an addressee

who has complained pursuant to the said Pandering Law,

is to be issued against an offending mailer solely because

it made good faith improvements in its computerization

to comply with the law, even abridging its own constitu-

tional rights, when the compliance order can have neither

force nor effect (since no one has been able to suggest

any improvements in computer programming to better

insure against second mailing |, would be unjust to the

defendant, and not in the pub! : interest, when such com-

puter improvements were mad long prior to the judicial

adjudications of violation of che Pandering Law?

(3) Whether the said Pandering Law, previously held

constitutional by this Court in the absence of any evi-

dence whatsoever of its operation and effect, should now

be held unconstitutional as depriving petitioner of First

and Fifth Amendments rights, when the necessary oper-

ation and effect of the Law are as follows: (a) in

order to comply, it is necessary for a mailer, as here,

to avoid the use of many rented mailing lists, and to use

a computerization programming system, all of which

deprives more than eight million people of receiving

First Amendment material through the mail, though

they had not asked to be protected from the same; (b)

such over-broad computer programming is made neces-

sary by the failure of the Law to prohibit only mailings

to name variations supplied by the complaining address-

ees; (c) the complaining addressee, in any event, has

the right under Postal regulations to refuse to accept

mail before or after delivery, and return it unopened

to the mail; (d) the Government has intervened as

censor in Pandering cases, by never seeking judicial

compliance orders to enforce Postal Prohibitory Orders

against any of the business firms whose advertisements

the Giovernment does not deem to be of a sexually pro-

vocative or erotically arousing nature; (e) the statute

has now been interpreted as interpreted below, to saddle

the press with the impossible burden of verifying to an

absolute certainty that a mailing be not made to one

who has obtained a Prohibitory Order under the Pan-

dering Law.

(4) (a) Whether the Federal Rules of Evidence, first

effective in 1973, should be applied to determine the

admissibility of evidence in Pandering Law cases in-

volving certifications of administrative records long pre-

dating the effective date of the Federal Rules of Evidence,

when neither the trial court nor the parties considered

the Federal Rules of Evidence applicable; and (b) whether,’

if applicable, Federal Rule of Evidence 902(4) permits cer-

tification of papers found in a government file, written

by complaining addressees, to be validly made by any

person who certifies them, such unsworn statements from

complaining addressees then being admitted for purposes

of proving the truth thereof, while the mailer has no

power to depose any such complaining addressee, and

hence is denied the right to cross examine and corfront

its accusers under the Sixth Amendment to the United

States Constitution.

Constitutional, Statutory and Regulatory Provisions

Involved.

a) Constitutional provisions.

Art. IL], Sec. 2, U.S. Constitution: “The judicial Power

shall extend to all Cases, in Law and Equity, arising

under this Constitution, the Laws of the United States

77, * * _to controversies to which the United States

shall be a party; * ° °.”

Amendment I, U.S. Constitution: “Congress shall make

no law * * * abridging the freedom of speech, or of the

wen °° 3” 7

Amendment V, U.S. Constitution: “No person shall

* * * be deprived of * * * liberty, or property, without

due process of law * * *.”

Amendment VI, U.S. Constitution:

“In all criminal prosecutions, the accused shall

enjoy the right * * * to be confronted with the

witnesses against him; to have compulsory process

for obtaining witnesses in his favor * * *.”

b). Statutory provisions. : ; ’ !

Pandering Law, 39 U.S.C. §3008 |

and, further, shall prohibit’ the sender and his

agents or assigns from the sale, rental, exchange,

or other transaction involving mailing lists bear-

ing the names of the dustanakell clivanntes.

Originally enacted as Title III of the Postal Revenue

Salary Act of 1967, 81 Stat. 645, 39 U.S.C. §4009 (1964

ed., Supp. TV):

“(d) Whenever the Postal Service believes that

the sender or anyone acting on his behalf has

“$3008. Prohibition of pandering advertisements

“(a) Whoever for himself, or by his agents

or assigns, mails or causes to be mailed any pander-

ing advertisement which offers for sale matter

which the addressee in his sole discretion believes

to be erotically arousing or sexually provoca-

tive shall be subject to an order of the Postal Serv-

ice to refrain from further mailings of such ma-

terials to designated addresses thereof.

“(b) Upon receipt of notice from an addressee

that he has received such mail matter, determined

by the addressee in his sole discretion to be of

the character described in subsection (a) of this

section, the Postal Service shall issue an order,

if requested by the addressee, to the sender thereof,

directing the sender and his agents or assigns to

refrain from further mailings to the named ad-

dressees.

“(e) The order of the Postal Service shall ex-

pressly prohibit the sender and his agents or as-

signs from making any further mailings to the

designated addressees, effective on the thirtieth cal-

endar day after receipt of the order. The order

shall also direct the sender and his agents or as-

signs to delete immediately the names of the desig-

nated addressees from all mailing lists owned or

controlled by the sender or his agents or assigns

oe a

violated or is violating the order given under this

section, it shall serve upon the sender, by registered

or certified mail, a complaint stating the reasons

for its belief and request that any response thereto

be filed in writing with the Postal Service within

15 days after the date of such service. If the

Postal Service, after appropriate hearing if re-

quested by the sender, and without a hearing if such a

hearing is not requested, thereafter determines

that the order given has been or is being vio-

lated, it is authorized to request the Attorney Gen-

eral to make application, and the Attorney Gen-

eral is authorized to make application to a dis-

trict court of the United States for an order di-

recting compliance with such notice.

“(e) Any district court of the United States

within the jurisdiction of which any mail matter

shall have been sent or received in violation of

the order provided for by this section shall have

jurisdiction, upon application by the Attorney Gen-

eral, to issue an order commanding compliance

with such notice. Failure to observe such order

may be punishable by the court as contempt

thereof.”

Rule 44(a) of the Federal Rules of Civil Procedure.

Rule 44. Proof of Official Record.

(a) AUTHENTICATION.

(1) Domestic. An official record kept within the United

States, * * * or an entry therein, when admissible for

any purpose, may be evidenced by an official publication

thereof or by a copy attested by the officer having the

legal custody of the record, or by his deputy, and accom-

panied by a certificate that such officer has the custody.

The certificate may be made by a judge of a court of

record of the district or political subdivision in which the

record is kept, authenticated by the seal of the court, or

may be made by any public officer having a seal of office

and having official duties in the district or political sub-

division in which the record is kept, authenticated by the

seal of his office.

RULES OF EVIDENCE

for

UNITED STATES COURTS AND

MAGISTRATES

SUPREME COURT OF THE UNITED STATES

Monday, November 20, 1972

ORDERED:

1. That the rules hereinafter set forth * * * to

be known as the Federal Rules of Evidence, be,

and they hereby are, prescribed pursuant to Sec-

tions 3402, 3771, and 3772, Title 18, United States

Code, and Sections 2072 and 2075, Title 28, United

Sonate De cai CLEOE LAD BON PE

States Code, to govern ‘im the proceed-

ings and to the extent set forth therein, in the

United States courts of appeals, the United States

district courts * °* °.

2. That the aforementioned Federal Rules of

Evidence shall take effect on July 1, 1973, and shall

be — to actions and proceedings brought

the

ter and also to further procedure in actions

and proceedings then pending, except to the ex-

tent that in the opinion of the court their appli-

cation in a ——_ action or proceeding then

pending would not be feasible or would work in-

justice in which event the former procedure ap-

plies. |

Rules 902. Self-authentication

Extrinsic evidence of authenticity as a condi-

tion precedent to admissibility is not required with

respect to the following:

(1) Domestic public documents under seal.—A

document bearing a seal purporting to be that of

the United States, or of any state, district, com-

monwealth, territory, or insular possession thereof,

or the Panama Canal Zone, or the Trust Territory

of the Pacific Islands, or of a political subdivision,

department, officer, or agency thereof, and a sig-

nature purporting to be 1n attestation or execu-

tion.

(2) Domestic public docwments not under seal.

—A document purporting to bear the signature in

his official capacity of an officer or employee of

any entity included in paragraph (1) hereof, hav-

ing no seal, if a public officer having a seal and

having official duties in the district or political sub-

division of the officer or employee certifies under

seal that the signer has the official capacity and

that the signature is genuine.

10 ji

(4) Certified copies of public records.——A copy _ Section 123.65

of an official record or report or entry therein, Vidiations

or of a document authorized by law to be re-

corded or filed and actually recorded or filed in a

public office, includitig data compilations in any

form, certified as correct by’ the custodian or

other person authorized to make the certification,

by certificate complying with paragraph (1), (2),

or (3) of this Rule or complying with any Act of

Congress or rule adopted by the Supreme Court.

Note: Public Law 93-595, 88 Stat. 1926, cited in the

opinion below [App. A, p. 17a, n. 17], enacted the above

provisions of Rule 902. The preamble of said Public Law

recited as follows, the law being enacted on Jan. 2, 1975:

Be it enacted by the Senate and House of Repre-

sentatives of the United States of America im Con-

gress assembled, That the following rules shall

take effect on the one hundred and eightieth day

beginning after the date of the enactment of this

Act. These rules apply to actions, cases, and pro-

ceedings brought after the rules take effect. These

rules also apply to further procedure in actions,

cases, and proceedings then pending, except to the

extent that application of the rules would not be

feasible, or would work injustice, in which event

former evidentiary principles apply.

AN td A la IE EL Tae Ais ONS ste as a —

2 Finis ali ee Ty

~ ae) mote: tateie names

A person protected by a prohibitory order who

receives a mail piece apparently in violation of

such order should open the envelope or other out-

side cover of such mail piece and write thereon

the identifying number of the prohibitory order

(if known) and a statement indicating his receipt

by mail and the date of receipt—e. g., “I received

this mail piece (date)”—followed by his signa-

ture. The mail piece should then be submitted

directly, or via a post office, to the postal services

center which issued the order. Such submission

will constitute an application for enforcement of

the order. * * *.

Section 123.67

Void Orders

A prohibitory order will be considered void

upon expiration of five years from the date of is-

suance, except that when application for enforce-

ment of a prohibitory order has been made, it

will not be considered void until expiration of five

years from the last application for enforcement.

Postal Service files relating to such void orders

may be disposed of provided a record is maintained

ce) Regulatory provisions involved. of the disposal of each such file and the reason

therefor.

Postal Service Regulations First Announced in U.S.

Postal Bulletin of Aug. 12, 1976, effective July 28, 1976. Statement of the Case.

The cases before this Court are 17 of 20 consolidated

eases in which the Government sought enforcement of

Postal prohibitery orders in the federal district court, .

pursuant to jurisdiction conferred thereon by 39 U.S.C.

ites tics senaenbd i Wr t

§3008(e). The Government is further seeking Court: en-

forcement of Postal prohibitory orders against Pent-R-

Books in 341 other cases, with more to follow, as set

forth in the Government’s Brief below, at p. 4. This pe-

tition is being filed so that the major legal issues may be

finally resolved prior to an adjudication of the several

hundred other cases, all involving whether judicial orders

should issue enforcing Postal orders prohibiting further

mailings to complaining addressees who found an earlier

mailing from petitioner to be erotically arousing or

sexually provocative.

Long prior to the effective 1968 date of the Pandering

Law, petitioner, without any legal compulsion, always

notified an addressee of an advertisement of its nature

and contents thereof, on an envelope, so that an unwilling

recipient thereof might refuse and return it at petitioner’s

expense (57a, 60a). After enactment of the Law but

before its effective date, a computerized system was set

up to prevent second maiiings to unwilling addressees and

to those who had obtained Postal orders prohibiting such

second mailings under the Pandering Law. The computer

house used the services of the equivalent of 25 people

working full time for six months (or 24,000 man hours)

to set up and process the system (61a).

Within a few days of the effective 1968 date of the

Pandering Law, a test case was begun by several mailers

(not including your petitioner) of the constitutionality of

said law. This Court granted certiorari, and in 1970 up-

held the constitutionality of the Pandering Law, neces-

sarily without any evidence before it of the actual opera-

tion and effect of the law. Rowan v. Post Office Dept., 397

U.S. 728 (1970).

*Such references are to the consolidated Joint Appendix filed

in the Court below, a copy of which will be filed with this

Court.

PF ae Ma

Te dl A OY De, NER hehe ee tes A. Cerner

est

Meanwhile, petitioner had mailed some 10,000,000 ad-

vertising pieces for “The Photographic Manual of Sexual

Intercourse” (58a), which were later adjudicated to be

protected by the First Amendment. United States v.

Stewart, unreported, Crim. No. 69-162, Order dated Octo-

ber 13, 1971. About 450,000 copies of the book were sold,

and some 248,500 Postal prohibitory orders under the

Pandering Law were issued against petitioner (58a, 64a,

80a). The Postal Service has brought some 500 adminis-

trative complaints of violations of prohibitory orders by

second mailings, or a claimed violation of less than one

quarter of 1% (0.025%) of all the prohibitory orders is-

sued against petitioner.

The cases at bar are all the result of second mailings

allegedly made in 1968 and 1969. Drawing upon its ex-

perience in those and subsequent years, petitioner made

improvements, beginning in 1970, to fully insure against

second mailings to those protected by prohibitory orders.

Five improvements were made in 1970.

1) The use of many rented mailing lists was abandoned,

since the only practical way to insure against second mail-

ings to those on such lists was to run a magnetic tape of

the complaining addressees (a “kill tape”) against a mag-

netic tape of a rented mailing list, making mailings possi-

ble only to a mailing list already on magnetic tape, or

requiring the purchase of a list (rather than rental) to

permit petitioner to put the list on tape. This prevented

petitioner from mailing its advertisements to an estimated

8,000,000 persons between 1970 and 1973 (68a). (All the

mailings involved herein were to names on rented mail-

ing lists, see, e. g., 7T9a-80a).

2) Duplicate mailing labels were eliminated to avoid

the erroneous use of such a label after the effective dates

of prohibitory orders (70a).

3) The optical scanner which matched names of com-

plaining addressees on the so-called “kill” tape with those

on mailing lists could not exercise judgment; an R.A.

Jones would not be eliminated by the “kill” tape if the

name supplied by the Post Office was Richard A. Jones.

Accordingly, the computer was reprogrammed so that all

persons with the same last name at the same address as

the complaining addressee would not receive petitioner’s

mailings.

4) To further guard against problems of slight varia-

tions, reprogramming was instituted to automatically re-

move from the mailing list the name of any person at the

same address as the complaining addressee who had the

same first five letters in his last name—even if such other

persons had sought mailings, and if the first names were

different (72a). Thus, a prohibitory order obtained by

a Schwartz at 295 Madison Avenue in New York City

would result in all mailings being stopped to such address

to anyone the first five letters of whose last name were

Schwa (72a).

\) When the new Goldwater Amendment to the Postal

Reorganization Act of 1970 required the legend “Sexually

Oriented Ad” to appear on an envelope or an inner sealed

envelope, Pent-R abandoned its practice of notifying ad-

dressees of the nature and content of its ads, and instead

followed the new law. See Pent-R-Books, Inc. v. United

States Postal Service, 328 F. Supp. 297 (E.D.N.Y. 1971).

The Goldwater Amendment also required the cessation

of mailings to persons on a Government supplied list

of those who do not wish to receive sexually oriented ads

from any source. The Post Office form, in accordance with

that statute, advises the addressee as follows:

“The name that you insert in the space provided

should be the name by which you customarily re-

i iP

At? ted. ee ee

a “ se

ceive mail. You may, if you wish, file separate

applications for varying forms of your name.”

Though the Goldwater Amendment did not prohibit mail-

ings to name variations not supplied to the Government,

a second mailing to a name variation of the complaining

addressee under the Pandering Law, who had not sup-

plied that variation to the Government, nonetheless re-

sulted in Postal administrative complaint. Accordingly,

in the Spring of 1971, a still further improvement was

made, which eliminated, from mailing lists used by pe-

titioner, the names of all persons on prohibitory orders

and on the Goldwater list where the zip codes, the first

three digits of the street address, and first five letters of

the last name all coincide (72a-73a). This last precau-

tion eliminated mailings to an estimated 50,000 persons

who might desire them (75a), and to an A.P.O. address

for any persons whose last name merely coincided. Thus,

one Smith obtaining a prohibitory order at an A.P.O. ad-

dress eliminated mailings to all Smiths at such A.P.O.

address.

After the improvements, in i972 and 1973, there were

only some 10 administrative complaints issued against

those using the mailing lists used by petitioner. Assuming

all such complaints were valid, the maximum violation

rate was then less than four-thousandths of one per cent

(0.004% ).*

Uncontradicted evidence was set forth in defendant's

moving affidavits that the Government never sought even

one court order to enforce a violated Postal prohibitory

order against any of the dozens of business firms ad-

vertising non-sexual products, and has sought court or-

*The normal computer error rate is one half of one per cent

(0.5%) (65a) ; the Postal Service admits to an error rate of higher

than one per cent (1%) in its operations (82a-87a).

ders only when the first mailing was, in the judgment

of the Post Office, of a sexually provocative or erotically

arousing type. Thus, it was shown that, while prohibitory

orders had been obtained against mailings made by such

organizations as the American Civil Liberties Union and

Practicing Law Institute, the Post Office, and its suc-

cessor the Postal Service, completely failed to go into

Court to seek a court order enforcing a prohibitory order,

even where there had been a violation of the prohibitory

order. The defendant’s defiance of the Government to

show otherwise was unchallenged (28a-29a).

Proceedings in the District Court.

The Government began 28 actions in the District Court

seeking court orders requiring compliance with Postal

prohibitory orders. [It moved for summary judgment in

all cases, while petitioner cross-moved for summary judg-

ment. The Government successfully obtained summary

judgment in 21 cases; it lost 7, appealed to the Second

Cireuit in those 7, and then withdrew its appeals.

Proceedings in the Court of Appeals.

Pent-R’s appeals in 20 of the cases resulted in reversal

and remand in 13,° reversal in 3,‘ with 4 of the judgments

‘Second Circuit docket numbers, and corresponding District

Court index numbers, 75-6014 (69 C 1363); 75-6015 (72 C 579) ;

75-6016 (72 C 580); 75-6017 (72 C 581); 75-6018 (72 C 582);

75-6020 (72 C 586); 75-6021 (72 C 587); 75-6022 (72 C 588);

75-6023 (72 C 598); 75-6024 (72 C 599); 75-6025 (72 C 600);

75-6026 (72 C 601) ; 75-6032 (72 C 612).

‘Second Circuit docket numbers, and corresponding District

Court index numbers, 74-2281 (69 C 1362); 75-6027 (72 C 602);

and 75-6031 (72 C 611).

TNS A em ah

ee eee ee ee ee

being affirmed.’ This petition is filed to secure review of

the judgments of the Court of Appeals insofar as they

decided major legal questions unfavorably to petitioner,

the Second Circuit having denied petitioner’s timely pe-

tition for rehearing.

POINT I.

The holding below that there is a case or controversy

between the parties hereto conflicts with Article III,

Section 2 of the Constitution as previously construed in

applicable decisions of this Court.

As the Court below noted (App. A, pp. 5a-6a), the al-

leged violation rate of Pent-R (and other corporations us-

ing the same mailing lists) was less than one quarter of

1% (0.025%) of the numbers of prohibitory orders issued.

Of the 28 cases submitted to the courts by the Government,

it has been successful in only 5. Projecting that same

rate of success (5 out of 28, or 18%) against the claimed

violation rate of 0.0259, the Government is likely to ob-

tain compliance orders in only less than five-thousandths

of 1% (0.0045% ) of the cases. (The odds against any com-

plaining addressee receiving a violative mailing are ap-

proximately thus more than 222,222,222 to 1.) Since the

Post Office has adjudicated a total of some 500 viola-

tions, the percentage error rate applied to those 500

persons (multiplying 0.0045% by 500) shows that only

0.025% of a person—less than three hundredths of one per

cent of a person—would stand a statistical chance of ever

receiving a violative mailing from Pent-R.

‘Second Circuit docket numbers, and corresponding District

Court index numbers, 75-6019 (72 C 584); 75-6028 (72 C 603);

75-6029 (72 C 606); and 75-6030 (72 C 610).

Under such circumstances, we contended below, as noted

by the Second Circuit (App. A at 5a), that there was no

case or controversy. The Government nowhere rebutted

our reasoning below, and the Second Circuit was silent

on its reasons for rejecting our claim, notwithstanding our

calling its attention to this in our Petition for Rehearing.

Yet the sub silentio rejection of our argument is in con-

flict with Article ITI, Section 2 as previously construed in

applicable decisions of this Court.

Thus, in Golden v. Zwickler, 394 U.S. 103 (1969), this

Court found a lack of a substantial controversy of suf-

ficient immediacy and reality because it was unlikely

that a New York sitting Justice would again be a candidate

for Congress—but such was more likely than that Pent-R,

whose computer programming has never been criticized by

the Government (constructively or otherwise), would vio-

late a prohibitory order.

More recently, this Court has held that past exposure

to illegal conduct does not in itself show a present case

or controversy regarding injunctive relief, if unaccom-

panied by any continuing present effect. Rizzo v. Goode,

423 U.S. 362 (1976); O’Shea v. Littleton, 414 U.S. 488

(1974). Here, neither Pent-R nor any other corporation

using the same mailing list has ever been accused of a

further violative mailing after Postal adjudication of a

violation ; the Government has been unable to suggest any

improvement in Pent-R’s programming, and injunctions

“cannot have any practical legal effect upon the existing

controversy”, rendering the cases moot. Ex parte Steele,

162 Fed. 694, 701 (1908). The names and addresses of

each complaining addressee have been fed into the com-

puter’s kill tape four times—upon receipt of the prohibi-

tory order, receipt of the Postal complaint, receipt of

the complaint filed in the Distriet Court, and upon notice

of entry of. judgment. below—, and no injunction can

possibly increase the effectiveness of Pent-R’s computer

programming. —

A further reason for there being no case or controversy

arose after the time to file a petition for rehearing below

had expired. Under the August 12, 1976 Postal Bulletin,

Sections 123.65 and 123.67 of the Regulations now provide

that a prohibitory order will be considered void five years

from the date of issuance, except that where an adminis-

trative complaint of violation had been sought, it will

not be considered void until expiration of five years from

the last application for the Postal Service complaint. Ac-

cordingly, all the Postal prohibitory orders in the cases

at bar are now void, although the Government apparently

now claims that judicial orders should now stand to en-

force void administrative orders. We submit that, the

underlying administrative orders now being void, there

cannot now be any case or controversy over their judicial

enforcement, for certainly a court cannot properly enforce

a void order, nor properly continue in effect an order

enforeing an order which has become void.

If these cases ever had any viability after Pent-R’s

1970 and 1971 computer programming improvements, they

can have none now. The Government not only wishes to

beat a dead horse, but to have it run the race again.*

*We are not suggesting that the Court should merely vacate

the judgments here, for the other serious legal issues raised in

these cases persist in other later cases between the parties hereto,

and in other later cases between the Government and others

using the same mailing lists as Pent-R.

POINT I.

Automatic issuance of an injunction against one try-

ing to comply with the law, solely because of m4

compliance effort, when better compliance cannot be

insured and the public interest is not served by issuance

of an injunction, is against federal law. This presents

a substantial federal question not heretofore deter-

This Court held, in Hecht v. Bowles, 321 U. S. 321

(1944), that an injunction was not mandatory to enforce

a compliance order when it would have no effect by way

of insuring better compliance in the future, would be

unjust to the defendant and not in the public interest.

However, as the Court below noted, this Court has not

held whether it is an abuse of discretion for a trial

court to issue an injunetion under such circumstances

(App. A at pp. 6a-7a, infra).

In the case at bar, issuance of a court compliance order

cannot possibly have any effeet. Perhaps no previous

similar case has been presented to the Court because no

court previously has issued an order which is so totally

lacking in foree and effect. For there is nothing Pent-R

can do, short of cessation of all mailing—which would

violate its First Amendment rights under Virginia State

Board of Pharmacy v. Virginia Citizens Consumer Coun-

cu, Inc., 44 L. W. 4686, U. S. (1976)—to further

comply with the Pandering Law.

The Court below predicated its affirmance of the com-

pliance orders upon the trial court’s finding that

“| Pent-R’s] liability to subjeetion to individual Compli-

ance Orders of [the] court is the begetter of [its] praise-

worthy compliance effort .. .” (App. A at 7a, infra).

There was not a seintilla of evidence upon which to base

ant. ah telat

mite

ee ee

On Ce il Rl te RO at, ht he OE

such finding; per contra, Pent-R had eliminated names

and addresses of unwilling addressees long prior to the

Pandering Law (57a), and its computer improvements

had been made because of its good faith effort and dili-

gence solely in attempting to comply with the Law (6la-

63a, 65a), even abandoning its use of most rental lists

(67a-68a) and cireumseribing its own First Amendment

rights (7la-72a, 75a-76a). And even were it true that

Pent-R’s efforts were spawned by its liabilit, to subjec-

tion to court compliance orders, the ruling below would

mean that one who complies with the law to avoid the

issuance of an injunction thereby per se subjects himself

to the very injunction that compliance should avoid. To

state this proposition is to refute it.

This Court should determine whether a federal court

may properly issue a compliance order, which can have

neither foree nor effeet, when the defendant has in good

faith made efforts to comply with the law, which efforts

have been overwhelmingly successful, and when the Gov-

ernment has been unable to suggest any further efforts

that should or could be taken.

POINT Il.

The Court should reexamine its decision in Rowan,

in the light of the then unforeseen negative effects of

the Pandering Law upon freedom to disseminate Consti-

tutionally protected material to those who wish to re-

ceive it, and the subsequent acts of the Government in

acting as censor.

In Rowan, supra, this Court held for the right of a

complaining addressee to be free from unwanted instru-

sion—a right to privaey which your petitioner has always

recognized, and indeed protected’ long before the enact-:

ment of the Pandering Law. However, as we showed:

abcve at pp. 13, 15, the operation and effect of the statute

has been to necessarily prevent petitioner from making:

mailings protected by the First Amendment to an esti-

mated 8,050,000 persons who have not asked to be pro--

tected from receipt of petitioner’s mail—a practical factor

in the implementation of the statute not considered by

this Court in Rowan.

Such a result is inconsistent with the First Amend-

ment, according to the decision of a recent three-Judge

Federal Court in United States v. Treatman, 408 F. Supp.

944, 954 (C. D. Cal., 1976), which ruled as follows:

“And when the government can prohibit the -

ple from receiving material through the mail which

the government thinks should not be sent, and

which the recipients have not asked to he protected

from, the entire concept of free speech and free

communication is dealt a devastating blow.”

While this blow was not intended by Congress in its

enactment of the Pandering Law, and was certainly not

considered by this Court in its decision in Rowan, the

actual operation and effect of the statute is to prohibit

millions of people from receiving mail from petitioner

by the Government giving such authority to complaining

addressees, though the millions of others have not asked

to be proteeted from such mailings.

Had the Pandering Law provided for the supplying

of alternative name formulations, with the provision that

only those name formulations could not be mailed to, the

statute as so narrowly drawn would have permitted many

more mailings, and would not have necessitated peti-

tioner’s inability to make mailings to persons the first

five letters of whose names may coincide with those of

complaining addressees’ in the same zip code area. This

Court ‘should consider whether the statute, having such

an effect im its operation, is unconstitutional, beeause the

ends of the statute could have been achieved without de-

priving petitioner of the right to mail to many. If the

statute were construed to mean that it does not apply to

names on rented lists (and all the mailings in the cases

at bar were to names on rented lists), and that it ap-

plies only to mailings to persons on non-rented lists whose

names are identical with those name formulations listed

upon the prohibitory order, the statute might not be un-

constitutional. But the courts below have not so con-

strued it, and the decisions below are accordingly in-

consistent with this-Court’s decisions in Louisiana v.

N.A.A.C.P., 366 U. S. 293, 296 (1961); Shelton v. Tucker,

364 U. S. 479 (1960); Blount v. Rizzi, 400 U. S. 410 (1971).

Before this Court decided Rowan, it was not told that

complaining addressees have been advised by the U. S.

Postal Service that “* * * you may always exercise your

right under the provisions of Section 154.11 of the U. S.

Postal Service Manual, to control delivery of your mail

by refusing to accept it at the time it is offered for

delivery. Also, after delivery, you may mark any matter

‘Refused’ and return it unopened to the mails, except

registered, insured, certified or COD mail.” Letter from

U. S. Postal Service, Office of the Inspector in Charge,

Newark, N. J. to Mr. R. L. Wolke, dated December 23,

1974, p. 2. Thus, this Court was not advised that a per-

son could refuse to accept mail before or after delivery,

and return it unopened to the mails.

This alternative remedy being available to a complain-

ing addressee is a factor to be considered when attempt-

ing to square Rowan with this Court’s later decision of

Erenoznik v. City of Jacksonville, 422 U. S. 205 (1975),

which mvalidated an ordinance prohibiting the showing

of films containing nudity by drive-in theatres on the

screen when visible from a public street or place. As

Mr. Justice Powell recently explained Erznoznik in his

concarring opinion in Young v. American Mini Theatres,

Inc., 44 L. W. 4999, U.S. (1976) :

“* * * Moreover, potential viewers who deemed

particular nudity to be offensive were not captives;

they had only to look elsewhere. /d., at 210-12

* *

In cases under the Pandering Law, the addressee is less

of a captive than one who drives by a drive-in theatre,

and need only throw the second mailing into the waste-

basket or mark it for return. Since he need only mark it

for return, Rowan should be reconsidered in the light of

Erznoznik.

Moreover, Rowan upheld the constitutionality of the

Pandering Law, on the theory that no governmental cen-

sorship was involved, since the individual reeipient con-

trolled what mailing should be sent to him. However, in

the case at bar, we alleged—-without contradiction—that,

according to the report of a Presidential Commission,

prohibitory orders were issued against nearly 400 sepa-

rate firms mailing sexually-oriented materials, and that

orders were also issued against dozens of business firms

advertising non-sexual products (28a). We further al-

leged that the Government never sought even one Court

compliance order to enforce a Postal Prohibitory Order

against any of the dozens of business firms advertising non-

sexual products, seeking court orders only when the first

mailing was, in the Post Office’s judgment, of a sexually

provocative or erotically arousing type. We cited as

examples that no compliance orders were ever sought

against mailings by such organizations as the American

ah ‘eles bite Attala’, vith Sa rr

a ee Oe

Civil Liberties Union and the Practicing Law Institute,

even where there has been a violation of the prohibitory

order, defying the Government to show otherwise (29a).

Not only did the Government fail to show otherwise, but

it failed to deny these allegations. Hence, it is plain

that such implementation of the statute, unforeseen and

unforeseeable by this Court when it decided Rowan, has

permitted the statute to become a vehicle of censorship by

selective enforcement, constituting censorship, which of

course is inconsistent with this Court’s decisions in Blount

v. Rizzi, 400 U. S. 410 (1971), and Lamont v. Postmaster

General, 381 U.S. 301 (1965).

Additionally, the Court below put a gloss on the statute,

not present in Rowan, when it ruled that a non-willful,

non-negligent second mailing was sufficient per se to incur

absolute liability for a court compliance order, in order

to protect the complaining addressee’s right to privacy.

But sueh a ruling is contrary to this Court’s holding in

Time, Inc. v. Hill, 385 U. S. 374, 389, which refused to

protect a person’s right to privacy by saddling “the press

with the impossible burden of verifying to a certainty

the facts associated with a person’s name, picture or

portrait, particularly as related to non-defamatory mat-

ter”, going on to rule that “A negligence test would

place on the press the intolerable burden of guessing how

a jury might assess the reasonableness of steps taken by

it to verify the accuracy of every reference to a name,

picture or portrait”. Yet the Court below places, upon

one who exercises First Amendment rights, the intolerable

burden of requiring an impossible 100% error-free rate

of compliance with administrative orders, though the ef-

fects of violation upon complaining addressees, if trau-

matic at all, are not anywhere as devastating as violation

by a newsmagazine of a person’s right to privacy.

For all these reasons, we urge that this Court re-

examine its decision in Rowan.

POINT IV.

When neither the Trial Court nor the parties there

considered the Federal Rules of Evidence applicable to

eases begun in 1969 and 1972, they should not be

applied in an appellate court for the first time so as

to prevent a party from presenting evidence. In de-

ciding otherwise, and in deciding that the Federal Rules

of Evidence permit certfication of papers found in

Government files by any person who certifies them, the

Court below decided important questions of federal

law which have not been, but should be, settled by

this Court.

At no point whatsoever in the District Court did either

of the parties hereto suggest that the 1973 Federal Rules

of Evidence were applicable to these actions, all begun

in 1969 and 1972, nor was the District Court ever of the

opinion that the said Rules applied. Per contra, the

parties and the Court agreed that Rule 44 of the Federal

Rules of Civil Procedure governed the admissibility of

the “certified” Post Office records (see, e.g., App. B at

p. 72a).

The Government urged on appeal, for the first time,

that the records were admissible under Rule 902(1) of

the Federal Rules of Evidence. The Court of Appeals,

noting that we had claimed that the administrative rec-

ords submitted by the Government in the subject cases

were inadmissible because they were certified, not by a

custodian of records as required by Rule 44(a)(1), Fed.

R. Civ. P., but by a Postal official in Washington, D. C.

(App. A, p. h6a),’ did not rule on whether or not our

contentions were correct, but found that they do not re-

quire reversal in seven of the cases, because the record

would be admissible under Rule 902(4) of the Federal

Rules of Evidence, permitting authentication by a person

authorized to make the certification, authority being as-

sumed on the basis of his certification alone (App. A, at

pp. 16a-18a). At a later point (App. A, at p. 21a), the

Court below went on to note that Pent-R did not submit

evidence to the Court below nor to the District Court, to

counter the evidence contained in the administrative rec-

ords, relying on the contention that the evidence did not

meet the Government’s burden on the motion. Of course,

if the Government’s evidence was inadmissible, then there

was no need for Pent-R to counter the Government’s

evidence, for there simply would have been no evidence

to counter.

The Government had not contended for the admissi-

bility of the administrative records under Rule 902(4).

Obviously, in the opinion of the District Court and of

the parties there, Rule 44 F. R. Civ. Pro., not Rule 902,

"Though the Court below recited that our claim was solely

because of improper certification of the record by a postal official

rather than by a custodian of the records, our claim, in the

cited page of our brief, was that the certification did not comply

with any other requirements of Rule 44(a), which require ‘‘attes-

tation, a showing in the certification that the officer signing it

has the legal custody of the record, or that he is the deputy of the

person having such legal custody, and that the person signing the

certification have his own seal of office.” The Court below did

not comment upon our other objections, but, without explanation,

remanded the cases other than the seven which it found did

not require reversal or consideration for determining whether

the administrative record met the requirements of Rule 902 or

Rule 44(a)(1). (App. A, p. 18a.)

was applicable. Even on appeal, the Government had not

conten'ed that Rule 902(4), relied upon by the Court

below, was applicable. Under such circumstances, it is

inequitable to hold Pent-R to the summary judgments

rendered against it when it did not go forward with evi-

dence to counter what clearly appeared to be inadmis-

sible Government records.

Moreover, Rule 902(4) was improperly applied; even

the Government had not contended for its applicability.

For it was used, inter alia, to make admissible correspond-

ence from complaining addressees, or their notations on

envelopes, as to date of receipt of second mailings. These

certainly are not provided for in Rule 902(4), which ap-

plies to “A copy of an official record or report or entry

therein, or of a document authorized by law to be re-

corded or filed and actually recorded or filed in a public

office * * *.” 902(4) refers in its heading to “Certified

copies of publie records”, and the material admitted

hardly rises to such dignity.

Additionally, in construing Rule 902 to mean that au-

thority to certify may be assumed on the basis of cer-

tification alone, the Court below lays down a dangerous

rule permitting any bureaucrat to certify any document

found in a government file, though he have no such au-

thority. The disclosures of Watergate should militate

against any such doctrine, which indeed permits certifica-

tion by those having no authority to do so. We suggest

that neither this Court nor Congress had any such intent

in enacting the Federal Rules of Evidence.

Any rule to the contrary would result in a situation

wherein an unauthorized person could certify correspond-

ence received from complaining addressees, which is it-

self unsworn, without any opportunity to the mailer to

depose the complaining addressee prior to submission of

a summary judgment motion. The unsworn statement

certified by an unauthorized person then becomes en-

shrined as truth, subject only to whatever self-serving

declarations or records might be made or produced by

the mailer. This does violence to due process and the

Sixth Amendment right to confront and cross-examine

one’s accusers. Surely this Court never intended any

such result.

CONCLUSION.

Certiorari should be granted to review the decisions of

the Court below.

Respectfully submitted,

HERBERT MONTE LEVY

Attorney for Petitioner

APPENDIX A.

Opinions in the Courts Below.

UNITED STATES COURT OF APPEALS

For tHe Seconp Cirecurr

—-o-r-

No. 625-644—Septemher Term, 1975.

(Argued March 29, 1976 Decided June 28, 1976.)

Docket Nos. 74-2281, 75-6014—75-6032

Unrrep StTares or AMERICA,

Plawmtif[-Appellec,

——

Psyt-R-Booxs, hvc.,

Defendani-Appellant.

Before: .

Oaxes and Gurren, Circuit Judges, and

Prence, District Judge.*

Consolidated appeals from decisions of the United States

District Court for the Eastern District of New York, John

F. Dooling, Jr., Judge, in twenty cases granting plain-

tiff’s notions for summary judgment and commanding «e-

fendant to comply with postal prohibitory orders ixsued

pursuant to the Pandering Law, 39 U.8.C. §3008.

Affirmed in part; reversed and remanded in part.

Hersert Monte Levy, New York, N.Y., for Ap-

pellant.

Davip G. Tracer (United States Attorney, East-

ern District of New York, Paul B. Berg-

man, Josephine Y. King, and Constance M.

Vecellio, of counsel), for Appeller.

—

Prerce, District Judge:

This appeal, involving twenty cases consolidated for ap-

pellate purposes,’ presents a variety of questions concern-

ing the federal statute regulating the mailing of pander-

ing advertisements, 39 U.S.C. 43008 (the Pandering Law).’

The Pandering Law was enacted by Congress because

of a concern about the growing number of complaints re-

ceived by the Post Office Departinent and members of

Congress concerning the repeated receipt by individuals of

unsolicited mail which was found by the individuals to be

sexually provocative and offensive. See Senate Report No.

801, U.S. Code Cong. & Admin. News, 2258, 2294, 90th

Cong. Ist Sess. (1967). The purpose of the statute was

to provide a “procedure whereby any householder may

insulate himself from advertisements that offer for sale

‘matter which the addressee in his sole discretion believes

1 The docket numbers of these cases, all of which bear the caption

United States v. Pent-R-Books, Inc., are 74-228] and 75-6014-75-6032.

2 In pertinent part, $3008, originally enacted as Title III of the

Postal Revenue Salary Act of 1967, 81 Stat. 645, 39 U.S.C. 94009

(1964 ed., Supp. IV), provides:

“$3008. Prohibition of pandering advertisements

“(a) Whoever for himself, or by his agents or assigns, mails or

causes to be mailed any pandering advertisement which offers for

sale matter which the addressee in his sole discretion helieves to

be erotically arousing or sexually provocative shall be subject to

4462

to be erotically arousing or sexually provocative.’ (cita-

tion omitted).” Rowan v. Post Office Dept., 397 U.S. 728,

729-30 (1970).

om -

—

st A ne mee He teed eae mean

Thule

eli

i ail:

Subsection (b) of the statute requires the Postal Ser-

vice, upon notification by an addressee that he has re-

ceived such mail matter and upon his request, to issue

an order to the sender directing the sender to refrain

from further mailings to the addressees named in the

order which may include the complainant and his minor

children. Such a prohibitory order applies to all mailings

of any kind from the sender to the named persons. Rowan

v. Post Office Dept., supra at 734-35. Subsection (c) pro-

vides that the prohibitory order shall be effective on the

thirtieth day following receipt by the sender and requires

the sender to take certain steps including deleting the

names of the designated persons from its mailing lists to

insure the effectiveness of the order.

Subsection (d) requires the Postal Service, when it be-

lieves that such a prohibitory order has been violated,

that is, that a second mailing has been sent to one of the

designated addressees, to serve upon the sender a com-

plaint stating the reasons for its belief. Subsection (d)

establishes a procedure for a hearing before the Postal

Service, and provides that if the Postal Service determines

that a prohibitory order has been violated, it may re-

quest the Attorney General to seek an order from a United

States District Court directing compliance with the pro-

hibitory order. Subsection (e) grants the district courts

jurisdiction to issue such a compliance order and provides

that failure to comply with such an order may be punish-

able by contempt proceedings.

In each of the twenty cases before us, a prohibitory

order was issued by the Postal Service to appellant Pent-

R-Books, Inc. (Pent-R) with respect to a designated ad-

dressee. Thereafter, it was brought to the attention of

the Postal Service that individuals who had requested

the prohibitory orders had received second mailings from

4464

Pent-R, whereupon complaints were issued and, thereafter,

a determination was made by the Postal Service, either

with or without a hearing, that the prohibitory orders

had been violated. At the request of the Postal Service,

the Attorney General brought these actions in the United

States District Court for the Eastern District of New

York seeking the issuance of compliance orders against

Pent-R. The parties submitted the administrative record

to the district court and made cross-motions for summary

judgment without further proceedings in that court. In

each of the twenty cases before us the district court en-

tered an order granting the government’s motion. It is

from these orders that Pent-R appeals.

Pent-R’s attacks on the judgments below range from

charges that the Pandering Law is unconstitutional to

claims that the administrative record before the district

court was inadequate to support the entry of summary

jodgment in particular cases. First, Pent-R argues that

the issue is moot, that there is no case or controversy,

and that entry of compliance orders is not in the public

interest because, since 1969 when the second mailings at

issue were received by the complaining individuals, Pent-R

has undertaken extensive efforts to assure that there is

virtually no likelihood that the mailings would be repeated.

Therefore, Pent-B argues, no purpose would be served by

the issuing of compliance orders.

In support of this argument, Pent-R contends, as it did

below, that as a result of sophisticated and costly com-

puter operations instituted by the company since the

enactinent of the Pandering Law, it has effectively re-

duced the violation rate, that is, the number of valid

complaints issued with respect to second mailings, to less

than one quarter of 1% (0.025%) of the number of pro-

hibitory orders issued to Pent-R in the last five years. In

4465

addition, Pent-R contends that repeated requests to the

Postal Service and the Justice Department of the United

States for suggestions as to how Pent-R could modify its

computer operations to improve its performance have

been unavailing. Pent-R urges that it has no desire or

intention to violate any prohibitory orders it has received

or will receive. Thus, Pent-R claims it was an abuse of

discretion for the district judge to enter the compliance

orders in these cases.

The principal authority on which Pent-R relies for its

position is Hecht v. Bowles, 321 U.S. 321 (1944). In that

case the Supreme Court reviewed a ruling by the United

States Court of Appeals for the District of Columbia

which had reversed an order of the district court declining

to issue an injunction against a department store found

to have violated provisions of the Emergency Price Con-

trol Act of 1942. The district court had ruled that although

the fact of violation was clear, the mistakes made by the

store had been made in good faith and with no intent

to violate the law. Hecht v. Bowles, supra at 325. The

Court of Appeals reversed, holding that where a viola-

tion was found, issuance of an injunction was mandatory.

The Supreme Court reversed this holding of the court of

appeals.

Appellant would have us read Hecht as standing for the

proposition that where the issuance of an injunction would

have no effect in bringing about better compliance with a

particular statutory scheme it is an abuse of discretion

to issue an injunction. Even assuming that the factual

premise for such a proposition is present here, i.e., that

issuance of an injunction would serve no purpose in pro-

moting compliance with the Pandering Law, tle Court’s

decision in Hecht simply does not support appellant’s posi-

tion. While the Supreme Court reversed the holding in

4466

Hecht that an injunction was mandatory whenever a vio-

lation was shown to have occurred, it specifically did not

reach the question of whether the district court’s refusal

to enter an injunction was an abuse of discretion. It did

not decide, or even imply, that it might be an abuse of

discretion to issue an injunction in the factual circum-

stances of the Hecht case.

“In shaping equity decrees, the trial court is vested with

hroad discretionary power... .” Lemon v. Kurtzmau, 411

U.S. 192, 200 (1973). See Hecht v. Bowles, supra at 329-30.

The statute under consideration here expressly empowers

the district court to issue a compliance order upon ap-

plication of the Attorney General, once a finding has been

made that a prohibitory order has been violated. $3008 ( d)

and (e). There is no suggestion in the statute that either

the Postal Service or the district court must determine

that there is danger of yct a further violation of a pro-

hibitory order before a compliance order may be issued.

Moreover, the compliance order is in the nature of a civil,

not a criminal order and carries no penalty with it. As

Judge Dooling stated, “compliance orders are not punitive,

but directory .. .”* Most importantly, however, we note

that the court below herein did not issue compliance orders

after having made a finding that an injunctive order would

serve no purpose in furthering the goals of the statutory

scheme. Rather, the court found that “[Pent-R’s] liability

to subjection to individual Compliance Orders of [the]

court is the begetter of [it’s] praiseworthy compliance

effort... .”* We cannot say that Judge Dooling erred

in this assessment. Nor do we find that under all the cir-

3 ee unpublished opinion in 74-2281, cited in the Consolidinted Join!

Appendix (Appendix) at 92a 15a.

4 Id. at 93a.

4467

cumstances presented by these cases the district judge

abused his discretion in entering compliance orders.’

Appellant’s constitutional attacks on the Pandering Law

takes the form of claims that the statutory scheme de-

prives Pent-R of rights under the First Amendment. This

issue was decided by the Supreme Court in Rowan v. Post

Office Dept., supra, adversely to the position now urged

by Pent-R.

Pent-R’s First Amendment argument rests squarely on

its contentions that both the material which it mails and

its right to communicate with willing recipients of its

literature are protected by the First Amendment. In

Rowan, the Court explicitly and categorically rejected “the

argument that 2 vendor has a right under the Constitution

or otherwise to send unwanted material into the home of

another. If this prohibition operates to impede the flow

of even valid ideas, the answer is that no one has a right

to press even good ideas on an unwilling recipient.” Id.

at 738. And it makes no difference what the particular

merits of appellant’s literature might be or whether it has

been held not to be obscene, as Pent-R contends occurred

in a prior judicial proceeding.®

Pent-R claims that to comply with the present statutory

scheme it must screen out many names from its mailing

lists in addition to the names of those who have requested

prohibitory orders. It suggests that if certain modifica-

tions of the statute were made, such as requiring complain-

ing recipients of literature to list alternative formulations

of their names to which no mailings should be sent, Pent-R

5 The circumstances of theee cases do not require us to decide whether,

upon a showing of a violation of a prohibitory order, the district court

is required to issue an order of compliance. It is sufficient for these

purposes to determine that here the court did not abune its disrretion

hy doing so.

fi See Appendix at 58a.

4468

could comply with the statute without also eliminating the

names of persons who have not requested prohibitory

orders.

It appears that Pent-R’s practice of eliminating these

names has played no smal! part in bringing about its pres-

ent excellent compliance record. Whatever the probable

effect of the purposed statutory modifications, we must

apply the statute as it exists, and we do not agree with

the contention that the statute impermissibly infringes tle

constitutional rights Pent-R asserts it has with respect

to its mailings."

Appellant also contends that there is no justification for

issuance of an injunction for a non-willful violation of a

prohibitory order, particularly where such a violation oc-

curred in connection with Pent-R’s good faith efforts to

exercise a First Amendment right to communicate with

persons willing to receive its literature. Specifically, in

several of the cases herein compliance orders were issued

where the second mailings were to individuals whose names

or addresses varied slightly from those listed on the pro-

hibitorv orders received by Vent-It, but who were in fact

the same individuals.’ Appellant claims that, as a prac-

—_—_ ?

7 We find the appellant’s further argument that the Postal Service

uses the statutory scheme to accomplish censorship of sexually oriented

materials to be without merit. Since it is the addressee who determines

be does not want the mail delivered, there is no public censorship of

the kind with which the Supreme Court was concerned in cases such as

Blownt v. Rissi, 400 U8. 410 (1971).

8 #For example: in 75-6031, the order prohibited mailing to B.WS8.

Dodge at 122 Plantation Drive, Houston, Texas 77024; the second

mailing was to B. Dodge at 122 Plantation R4., Houston, Texas 77024.

In 75-6028, the order prohibited mailing to Bradley W. Day at 16

Hemlock. Trail, Trombull, CT 06611; the second mailing was to B. W.

Day at 16 Hemlock Tri., Trombull, CT 06611. With respect to this

particular instance, we note that the formulation of the addrenasec’s

name and address to which the second mailing was sent did appear on

the prohibitory order although it appeared on that portion of the form

4469

BEST COPY AVAILABLE

10a

tical matter, compliance with the Pandering Law is pos-

sible only through use of computer technology, and since

a computer will necessarily read slight variations in names

or addresses as being different persons, even though a

reasonable person viewing them would conclude that they

referred to the same individuals, the second mailings could

not be found to be willful and should not result in an in-

junction. Appellant contends further that its present com-

puter operations and techniques are designed to prevent

any such second mailings even to slightly different name

and address variations and therefore the cases as to

these complainants are moot. Such mailings according to

Pent-R, could now occur only by computer error and thus

should not form the basis for an injunction. We are

therefore presented with the question of whether the dis-

trict judge erred in issuing a compliance order under the

circumstances presented here where a mailing reached a

previous cor plainant although it was directed to a name

or address varying slightly from that contained in a pro-

hibitory order. We hold that this was not error.

There is no contention by the appellant that the per-

sons who received the second mailings in these cases were

not the persons to whom appellant intended to direct the

mailings, i.e., there is no contention that the mailings were

misdirected by the Postal Service. Appellant’s contention

is rather that in intentionally sending matter to the per-

sons to whom the second mailings were addressed, ap-

pellant did not intend to direct it to persons who had

previously requested prohibitory orders. Therefore, con-

te-ds Pent-R, no compliance order should have issued.

Addressing this issue, the district judge stated:

which indicated who had previously received a mailing rather than on

on that portion of the form which purported to list those persons to

whom future mailings were prohibited.

4470

lla

“It is no doubt true that defendant’s methods of doing

business made it difficult to avoid violation in this

respect. Its computerized lists betray it on such oc-

casions. But unfortunately defendant must be treated

as though it had only a few short lists and a personal

consciousness of all of its acts. Orders are directed

to persons not to electronic devices. The complexity

of defendant’s business is not a defense against the

claim of an individual addressee who has obtained an

order directing defendant to make no faurtlicr mailings

to him; the statute is addressed not to facilitating de-

fendant’s business or imposing the least coxtly con-

straints upon it but to protecting the rights of

individuals to be free of what they regard as an un-

welcome intrusion.” °

Judge Dooling states it well. If the fundamental pur-

pose of the Pandering Act, which is, as the Supreme Court

stated in Rowan, supra, to permit “a citizen to erect a

wall” against unwanted advertising, is to be served, then

the occurrence of a violation of a prohibitory order must

be considered sufficient to warrant issuance of a com-

pliance order.

In discussing the role of the district court with respect

to compliance order proceedings the Supreme Court has

described its role as “similar to that of the Postmaster

General (now the Postal Service]. It is to determine

whether the initial mailing included advertising material

and whether there was a mailing by the sender to the

addressee more than 30 days after receipt of the order.”

Rowan v. Post Office Dept., supra at 739 n.6. Nothing in

the Rowan decision, the statute itself, or the legislative

history supports appellant’s view that a violation of a

9 Seo Apjendix 980a-06ia.

4471

12a

prohibitory order must be found to have been willful be-

fore a compliance order may issue. We decline to sw

hold here.

In so ruling, we note that the compliance order sought

and issued pursuant to §3008(d) and (e) is not in the

nature of a general injunction against the appellant.

Rather, it requires only specific compliance with a previ-

ously issued prohibitory order. Further, appellant docs

not contend that there is no possibility that it might en-

gage in a further violation of the statute, but rather ar-

gues that no such violation could be willful since it could

result only from a computer error and this would occur

only in rare instances. The case is therefore clearly dis-

tinguishable from those cases where a district court has

declined to issue an injunction because it has found that

there is no likelihood that a future statutory violation

will occur. See, eg., Rondeau v. Mosinee Paper Corp.,

422 U.S. 49, 60-61 (1975); Hecht Co. v. Bowles, supra.

The argument with respect to willfulness is not properly

raised at this stage of the statutory scheme. As Judge

Dooling observed, willfullness and the good faith of ap-

pellant are considerations which would properly be con-

sidered by the court should a contempt proceeding be

instituted following yet a third mailing. See, e.g., United

States v. Consolidated Productions, Inc., 326 F.Supp. 603

(C.D. Cal. 1971).

Appellant also raises a number of objections to the

district court’s entry of summary judgment in particular

cases. With respect to seven of these cases,*® the objec-

tion requires an interpretation of the provisions of $3008

which, nnder certain circumstances, create a rebuttable

presumption that a second mailing was sent after the

effective date of a prohibitory order and in violation

10 The seven cases bear docket numbers 74-2281, 75-6014, 75-6021.

75-6022, 75-6023, 75-6026 and 75-6027.

4472

13a

thereof. Pent-R contends that the presumption applies

only to second mailings received by the complainant more

than sixty days after the receipt by the sender of a pro-

hibitory order. The district judge ruled that it applied to

second mailings received more than thirty days after the

receipt of the prohibitory order.

Subsection 3008(f) provides that receipt of a second

mailing thirty days or more after the effective date-of a

prohibitory order creates a rebuttable presumption that

the mail was sent after the effective date and is therefore

in violation of the order. Section 3008(c) provides that

a prohibitory order shall be effective on the thirtieth cal-

endar date after its receipt by the advertiser. Since Pent-R

does not date its mailings and the government introduced

no direct evidence as to the actual date on which the sec-

ond mailings were sent, the applicability of the presump-

tion was an issue in each of these cases.

Read literally, the statutory presumption becomes effec-

tive only if the second mailing is received more than thirty

days after the effective date of the prohibitory order, that

is, more than sixty days after the receipt of the prohibi-

tory order by the sender. The distritt court reasoned

however that:

“The statute cannot be supposed to have intended to

double the grace period except in the «use where the

Post Office has evidence of the date of mailing. The

use of the thirty day presumption period in exact

correspondence with the thirty day period that pre-

cedes the effective date of the Prohibitory Order is

the key to the meaning [of the statute]. Tf the offend-

ing mailing is shown to have been received after the

effective date of the Prohibitory Order, it is pre-

sumptively a violation.” ™

11 See, ¢.g., unpublished opinion in 74-2281 cited at Appendix 106a-107a.

4473

l4a

The court below concluded therefore that there must have

heen a “semantic slip” in the phrasing of subsection (f),

a slip which the court proposed to correct by striking the

word “effective” in the first use of that word in subsec-

tion (f).

We believe the district judge erred in this construction

of the statute. The literal meaning of the statute is clear.

There is nothing in the legislative history to support tlie

conclusion that this literal meaning was not what Congress

meant. Further, contrary to the view urged by the govern-

ment here, we believe Congress might well have had good

reason for allowing an additional time period following

the effective date of a prohibitory order before the pre-

sumption that the mailing was sent in violation of such

an order became effective.

It does not strain the doctrine of judicial notice to ob-

serve that it is not uncommon for mailings, even within

the same city, to take more than one day to travel from

sender to recipient. In fact, there was evidence in the

record below of advertisements placed by the Postal Ser-

vice itself seeking to explain why it might take as long

as four days for such mailings to be completed.” Accord-

ing to the interpretation given to the statute by the court

below and advanced by the government here, any mailings

received by an addressee on the thirty-first, thirty-second

or any subsequent day after receipt by the sender of a

prohibitory order would be presumed to have been sent

no earlier than the thirtieth day after receipt of the order

and therefore in violation of the order. In many cases

such a presumption would not be correct. For example, if,

as is likely, an undated mailing which had been sent on

the twenty-ninth day after receipt by the sender of a pro-

hibitory order were to be received on the thirty-first day,

12 See, e.g., Appendix at 86a-87a.

4474

15a

the mailing would be presumed to have been made in vio-

lation of the prohibitory order, although clearly this would

not be the case. In contrast, under the interpretation of

the statute urged by appellant, even allowing for extraor-

dinary delay between the sending and receipt of a second

mailing, the presumption created by subsection (f) that

a mailing had been sent after the effective date of a pro-

hibitory order would almost invariably be correct if the

mailing was received by the addressee more than thirty

days after that effective date. In the absence of any evi-

dence of a contrary Congressional intent regarding the

presumption, we opt for the reading of the statute which

is more likely to conform with the present day realities

regarding delivery of mail.

In the seven cases with respect to which appellant has

raised the issue of the construction of the statutory pre-

sumption the evidence contained in the administrative

record purported to show that the second mailings were

received on dates which were more than thirty, but less

than sixty days after the effective dates of respective pro-

hibitory orders. Since we disagree with the district court’s

interpretation of the presumption, we find that summary

judgment was improperly granted in favor of the gov-

ernment in each of these cases."

As previously stated, the cross-motions for summary

judgment below were made and determined on the basis

of the administrative records alone. Pent-R challenges the

admissibility of much of this evidence on the dual grounds

that the administrative records were inadequately certified

18 The fact that the government bas not shown that it in entitled to

summary judgment based on the subsection (f) presumption does not

mean, as appellant contends, that Pent-R should have heen granted

summary judgment below. It would appear, however, that judgment

for appellant would be appropriate with respect to these cases unless

the government produces direct evidence of the actual dates of mailings.

4475

l6a

and that certain of the evidence within those records was

inadmissible hearsay. Pent-R claims, therefore, that this

evidence was insufficient to support the granting of sum-

mary judgment for the government.

As a general proposition, administrative records may

be a sufficient basis for the granting of a motion for sum-

mary judgment. See, e.g., United States v. Lange, 466 F.2d

1021, 1025 n. 5 (9th Cir. 1972); Dredge Corp. v. Penny,

338 F.2d 456, 460 (9th Cir. 1964). Pent-R claims, however,

that the administrative records in the subject cases were

inadmissible because they were certified, not by a custodian

of records as required by Rule 44(a)(1), Fed.R.Civ.P.,"

but by a postal official in Washington, D.C."* The district

judge rejected this contention, principally because Pent-R

had not argued that the administrative record produced

was not in fact a true copy of the record. He also noted

that Pent-R had been furnished copies of these documents

in connection with the administrative proceedings, a state-

ment disputed by Pent-R.

Whether or not Pent-R’s contentions with respect to the

requirements of Rule 44 are correct, we do not find that

14 Rule 44(a)(1) Fed R.Civ.P., provides:

“(a) Authenttoation.

“(1) Domestic. An official record kept within the United States,

or any state, district, commonwealth, territory, or insular posses-

sion thereof, or within the Panama Canal Zone, the Trust Territory

of the Pacific Islands, or the Ryukyu Islands, or any entry thercin,

when admissible for any purpose, may be evidenced by an official

publication thereof or by a copy attested by the officer having

the legal custody of the record, or by his deputy, and accompanied

by a certificate that such officer has the custody. The certificate

may be made by a judge of a court of record of the district or

political subdivision in which the record is kept, authenticated by

the seal of the court, or may be made by any public officer having

a seal of office and having official duties in the district or political

subdivision in which the record is kept, authenticated by the seal

of his office.”

15 See Brief for Appellant at 20.

4476

17a

they require reversal in seven of these cases.’* Rule 902

of the Federal Rules of Evidence, which would be ap-

plicable to these proceedings should we remand them," has

expanded the means by which official documents and copies

thereof may be authenticated."* Rule 902(4) provides that

copies of official records may be authenticated by certifica-

tion of the custodian or other person authorized to make

them, if the certification itself complies with other require-

ments set forth in the Rule. It is sufficient under subdivi-

sion (1), if the document bears a sea! purporting to be

that of a department or agency of the United States and

a signature purporting to be an attestation or execution.

The record reveals that these requirements were met with

respect to the seven subject cases. As for the authority to

16 These seven cases bear docket numbers 74-2281, 75-6019, 75-6087—

75-6081.

17 See Public Law 93-505; 88 Stat. 1926.

18 Rule 902, Fed. Rules of Evidence, provides in pertinent part:

“RuLE 902. Self-authentication

“Extrinsic evidence of authority as a condition precedent to ad-

missibility is not required with respect to the fcliowing:

“(1) Domestic public doowments wader seal. A document bear-

ing a seal purporting to be that of the United States, or of

any State, district, Commonwealth, territory, or insular posses-

sion thereof, or the Panama Cana! Zone, or the Trust Territory

of the Pacific Islands, or of a political subdivision, depart-

ment, officer, or agency thereof, and a siguature purporting

to be an attestation or execution.

“(4) Certified copies of public records. A copy of an official

record or report or entry therein, or of a document authorized

by law to be recorded or filed and actually recorded or filed

in a public office, including data compilations in any form,

certified as correct by the custodian or other person authorized

to make the certification, by certificate complying with para.

graph (1), (2), or (3) of this rule or complying with any

Aet of Congress or rule preseribed by the Supreme Court

pursuant to statutory authority.

4477

18a

make the certification, it has been suggested that the an-

thority of the signatory “should be assumed on the basis

of his certification alone.” See 5 Weinstein’s Evidence

7902(4)(01) at 902-21. In the interest of expediting the

disposition of these cases, we note the admissibility of the

administrative records under the new Rules of Evidence

and decline to reverse on the basis asserted by appellant.

The record on appeal in the other cases does not show

compliance with the requirements of Rule 902. Nor can

we agree with the district judge that the fact that Pent-R

received copies of the documents in question or failed to

contest their legitimacy—even if true—makes the docu-

ments admissible in evidence. We remand these cases for

consideration, inter alia, of whether the administrative

record meets the requirements of Rule 902, Fed. Rules of

Evidence, or Rule 44(a)(1), Fed.R.Civ.P.

However, Pent-R’s claim that the certification in many

cases fails to adequately describe the documents to which

it applies need not be reexamined. We note that in each

ease the certification refers to the “annexed documents”.

In no case has Pent-R claimed, either here or below, that

the documents admitted as part of the administrative rec-

ord were not annexed to the certification. While it would

be better practice in cases such as these to list the individ-

ual documents to which the certification is applicable, we

cannot say that the failure to have done so rendered the

documents submitted in these cases inadmissible in the

district court or constitutes a basis for reversing the

court’s grant of summary judgment to the government in

these cases.

Pent-R has also challenged the admissibility in the dis-

trict court of envelopes which were in the administrative

record and purported to contain entries made by the ad-

dressees indicating both the fact that a second mailing

4478

19a

had been received and the date of its receipt by the

addressee. Pent-R argues that since these entries were

made by third parties and not by Postal Service employees,

the district court erred in finding them admissible as busi-

ness records pursuant to 28 U.S.C. §1732(a).’*

Appellant’s point is not without merit. However, hav-

ing considered it, we find that we are persuaded by the

reasoning of the Ninth Circuit in United States v. Lange,

supra, at 1024-25 and elect to follow that reasoning with

respect to this issue in the context of this statute.

The manner by which these records came into the ad-

ministrative files is an inherently reliable standard operat-

ing procedure. The letters are forwarded to the Postal

Service by persons acting on their own initiative who have

previously requested and obtained prohibitory orders. They

are forwarded for the purpose of implementing the next

step in a statutory scheme designed to provide a benefit

to the addressee. Their submission to the Postal Service

19 28 U.S.C. §17382(a), since superceded by Rule 803(6) FRE, provided

at the time of the district court decisions as follows:

“1782. Becord made in regular course of business; photographic

copies

“(a) In any court of the United States and in any court established

by Act of Congress, any writing or record, whethe: in the form of

an entry in a book or otherwise, made as a memorandum or record

of any act, transaction, occurrence, or event, shall be admissible as

evidence of such act, transaction, occurrence, or event, if made in

regular course of any business, and if it was the regular course of

such business to make such memorandum or record at the time of

such act, transaction, occurrence, or event or within a reasonable

time thereafter.

“All other circumstances of the making of such writing or record,

ineluding lack of personal knowledge by the entrant or maker, may

be shown to affect its weight, but such circumstan:vs shal! not

affect its admissibility.

“Tho term ‘business.’ us used in this section, includes business, pro-

feasion, oeenpation, and calling of every kind.”

4479

20a

by the addressee amounts to a demand upon the government

that certain action be taken as required by law. And they

contain notations which purport to be from the addressees

and which are designed to furnish to the Postal Service

the information needed for that body to determine whether

or not a violation has occurred. Under all these circum-

stances, we find that in these cases the second mailing en-

velopes taken from the administrative files were properly

found to be business records kept by the Postal) Service

and were admissible as such.

Having ruled on the admissibility of the evidence before

the district judge, we turn now to Pent-R’s altcrnative

contention that, even if admissible, this evidence was in-

sufficient in most cases to establish the government’s right

to summary judgment. In assessing a motion for sum-

mary judgment, one must distinguish between the moving

party’s initial burden, the type of showing which will

meet that burden and shift it to the party opposing the

motion, and the type of showing required of the party

opposing the motion in order to defeat it.

Rule 56, Fed.R.Civ.P., requires that the moving party

show, on the basis of admissible evidence adduced from

persons with personal knowledge of the facts, that “there

is no genuine issue as to any material fact.” See Adickes

v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Cali v.

Eastern Airlines, Inc., 442 F.2d 65, 71 (2d Cir. 1971).

Where this initial showing is not made, summary judg-

ment will be denied, even though the party opposing the

motion has submitted no probative evidence to support

its nosition or to establish that there isa genuine issue

for trial. See Adickes v. S.H. Kress & Co., supra at

159-60; Advisory Committee Note on 1963 Amendment to

sudivision (e) of Rule 56. In other words, the party

opposing the motion has the right to put the moving party

4480

2la

to its proof. If, however, the moving party docs carry

its preliminary burden, then, the opposing parity may not

defeat the motion by relying on the contentions of its

pleading. Rather, it must produce “significant probative

evidence tencine to support [it position].” First National

Bank v. Cities Service Co., 391 U.S. 253, 289-90 (1968). See

Modern Home Institute, Inc. v. Hartford Accident & In-

demnity Co., 513 F.2d 102 (2d Cir. 1975).

In these cases, Pent-R did not submit evidence to the

court below to counter the evidence contained in the ad-

ministrative records. Rather, it relied on the contention

that the evidence did not meet the government’s burden

on the motion. For a variety of reasons, the district court

sustained the government’s position with respect to each

of these cases, We will examine each of the claims of error.

Pent-R claims that the administrative records were in-

sufficient to establish that Pent-R received prohibitory

orders on particular days because the return receipts sub-

mitted with the orders were inadequately identified with

the particular orders to which they ostensibly referred.

In this regard, we agree with the reasoning of the court

below, set forth in a case which is not on appeal! here, but

which applies none-th2-less. The court wrote:

“In the absence of any suggestion that the Prohibitory

Order was not in fact received, the absence from the

administrative record of an explicit and self-evident

cross-reference between receipt and Prohibitory Order

is not of moment. The receipt is produced from offi-

cial custody as the relevant receipt in association with

the Prohibitory Order. Its date is appropriate the

signature is not challenged, the presence of the Pro-

hihitory Order in defendant’s files is not denied. That

there might be confusion in the Post Office files does

4481

‘BEST COPY AVAILABLE

22a

not support an inference that any particular receipt

is in a false association.” *°

The records submitted were sufficient to require appellant

to produce “probative evidence” that a particular pro-

hibitory order was not received on the date shown by the

record. It failed to do 80.

Pent-R also contends that for a variety of reasons,

several of which apply to a number of the cases on ap-

peal, the administrative record failed to show that there

was no genuine issue of material fact as to the receipt of

the second mailing by the addressee at a time which would

bring the §3008(f) presumption of a violative mailing into

play. These contentions are addressed to the sufficiency

of the notations on the second mailing envelopes to estab-

lish the point at issue and, with respect to several of

these contentions, we agree with appellant that the grant

of summary judgment was inappropriate.

In four of the cases,"* the envelopes did not sufficiently

establish the dates on which the mailings were received by

the addressees, either because they contained no dates at

all, or because the dates of receipt set forth on the enve-

lopes were stated to be approximate, or because, although

there was a date and what purported to be the signature

of the addressee on the envelope, there was nothing on

the envelope which indicated that the date shown was the

date on which the addressee received the second mailing.

See United States v. Lange, supra at 1026. However, where

the envelope in question set forth the word “received” or

some variant thereof followed by a date and what pur-

ports to be the signature or the initials of the addressee,

20 See Brief for Appellant at 43.

21 The four cases bear docket numbers 75-6016, 75-6018, 75-6020, 75-

6025.

4482

23a

we find that the evidence was sufficient to carry the gov-

ernment’s burden on the question of when the second mail-

ing was received.** Since Pent-R submitted no evidence to

contradict this showing, we affirm the district court’s find-

ing with respect to these cases that there was no genuine

issue of fact as to the date of receipt by the addressees

of the second mailing from Pent-R.

As to three of the cases,”* we agree with Pent-R that

the envelopes submitted do not establish who received the

envelopes on the dates which appear thereon. For exam-

ple, where the writing on the envelope simply states that

it was received on a particular date, it is possible that

this was the date on which it was received by the post

office after having been returned by the addressee rather

than the date on which the addressee received it from the

sender. Thus, in these three cases, the government failed

to show the absence of material fact regarding the date

of receipt of the second mailing. |

Finally, Pent-R claims that summary judgment was im-

properly granted with respect to a number of cases either

because there were two different handwritings on the en-

velope, one of which indicated when it was received and

one of which indicated who received it, or because the

handwriting on the envelope failed to match what pur-

23 8 8=The cases in which the notations mest these requirements bear docket

numbers 75-6014, 75-6015, 75-6021, 75-6024, 75-6027, 75-6031, 75-6082.

We also affirm the district covrt’s finding on this point with respect to

75-6028. Pent-R has presented nothing from which we can conclude

second mailing received was unsupported by the evidence.

Likewise, we affirm the finding on this point with respect to 75-6030

where Pent-B’s only complaint is that the date was supplicd by a

Mra. E. R. Oothen, while the addressce was listed a« FE. R. Ortkon. In

fact, the administrative record indieates that it was Mrs. F. R. Ocetken

who requested the prohibitory order. See Appendix at 1629a.

23 The threo cases bear docket numbers 74-2881, 75-6017 and 75-6081.

4483

24a

ported to be the handwriting of the addressee appearing

elsewhere in the administrative record. In either case,

Pent-R asserts that the discrepancy leaves an issue of fact

as to whether or not the addressee received the second

mailing on the date indicated or whether the date was

entered later by some other person and had some other

significance.

Where it is apparent that two handwriting specimens

are from the same hand, the mere assertion they differ is

not sufficient to raise a question of fact for trial. In most

of the cases in which Pent-R has raised this claim, we

have examined the record and we find that the district

judge did not err in concluding that there was no genuine

issue of fact with respect to this matter. In two cases, we

sustain appellant’s contention that the government failed

to carry its initial burden of proof by failing to offer any

explanation for what are apparently markedly different

handwritings appearing in the record.”

The final objections which appellant raises to the

judgments entered below deal with the adequacy of the

administrative procedures used by the Postal Service in

handling these cases before they were referred to the

Attorney General and brought before the district court.

In particular, appellant attacks the adequacy of the notice

it received of the charges, the alleged denial of an appeal

within the Postal Service as provided for by the applicable

regulations,” and the ruling by the Postal Service that

appellant had forfeited its right to an administrative

hearing by failing to mail its request for a hearing in

such a way that it was actually received by the appropri-

24 These cases bear docket numbers 75-6015 and 75-603).

25 See 39 C.F.R. $916.12.

4484

25a

ate posta! official within the fifteen days allowed for filing

such a request.”

We have some doubt about the adequacy of the manner

in which the administrative proceedings were handled in

many of these cases. In particular, we agree with appellant

that the Postal Service’s interpretation of its regulations

as requiring that requests for hearings be received within

fifteen days allows for self-serving delay by the Service

in delivering such requests through the mail. However,

we find that the fact that the Postal Service required that

requests for a hearing be received, as opposed to mailed,

within fifteen days was harmless error in these particular

cases

Subsection (d) of the statutory scheme calls for a second

hearing before the district court before a compliance order

may be issue. As previously indicated, the Supreme Court

has stated that the determinations to be made by the trial

judge at this hearing are the same determinations which

are to be made by the Postal Service official at the ad-

ministrative hearing. See Rowan v. Post Office Dept.,

supra at 739 n. 6. We interpret this requirement to mean

that the district court hearing is to be de novo and appel-

lant is to be permitted to raise any issues which might

have been raised at the administrative level. See United

States v. Lange, supra at 1024, 1026; Rowan v. Post Office,

300 F.Supp. 1036, 1046 (Hufstedler, J., concurring),

affirmed, 397 U.S. 728. Accordingly, we find no ground

for reversal in Pent-R’s claims of administrative error

in these cases.

We have examined appellant’s other assignments of

error and find them to be without merit. In accordance

with the reasons set forth in this opinion, we affirm the

2 8=—6. Seo TA. at $16.3.

a 26a

judgment of the district court with respect to four-of the

eases before us*’ and reverse and remand with respect to

the other cases** for further proceedings not inconsistent

with this opinion.

27 The judgments are affirmed in the cases bearing docket numbers

75-6019, 75-6028—75-6030.

28 The judgments are reversed in the cases bearing docket numbers

74-2281, 75-6014—75-6018, 75-6020—75-6027, 76-603 1—75-6033.

4486

27a

Memorandum and Order by Dooling, D. J.

UNITED STATES DISTRICT COURT,

Eastern Distrricr or New York.

Unrrep States or AMERICA,

against

Pent-R-Books, Inc.,

Defendant.

72 C 579

(Mark)

Appearances:

Lloyd H. Baker, Esq. (David G. Trager, Esq., United

States Attorney, of Counsel) for Plaintiff.

Herbert Monte Levy, Esq., for defendant.

Dootine, D. J.:

In this action to obtain an order commanding compli-

ance with a Post Office Prohibitory Order issued under

39 U.S.C. §3008 (formerly §4009), the plaintiff has moved

for summary judgment on the administrative record, and

defendant has cross-moved on affidavits. The principal

objections of defendant are those raised and disposed of

in 69 C 1362, 69 C 1290, 72 C 580, 72 C 582, 72 C 606 and

72 C 609, and what has been said in those dockets need not

be repeated here.

The only point made in this case by defendant apart

from those passed on in the above dockets is that de-

28a

Memorandum and Order by Dooling, D. J.

fendant’s allegedly timely mailed Request for Hearing

was ignored. It was mailed to the Postmaster at De-

troit, Michigan, from New York City, fourteen days after

the receipt of the complaint. In this case, however, re-

mand to consider the timeliness of the mailing is not ap-

propriate. The form of objections allegedly sent to the

Postmaster raised no points not resolved against the de-

fendant in the dockets referred to above.

Accordingly, it is

OrvereD that plaintiff’s motion for summary judgment

is granted and defendant’s cross-motion is denied. A form

of judgment has been approved for entry by the Clerk.

Brooklyn, New York

July 29, 1974.

JOHN F. DVOOLING, Jr.

U.S.D.J.

29a

Memorandum and Order by Dooling, J.

UNITED STATES DISTRICT COURT,

Eastern District or New York.

Untrep States or AMERICA,

against

Pent-R-Booxs, Inc.,

Defendant.

69 C 1363

(Gladden)

—<—

Appearances:

Lloyd H. Baker, Esq. (David G. Trager, Esq., United

States Attorney, of Counsel) for Plaintiff.

Herbert Monte Levy, Esq., for defendant.

Doouine, D. J.:

In this action to obtain an order commanding compli-

ance with a Post Office Prohibitory Order issued under

39 U.S.C. §3008 (formerly §4009), the plaintiff has moved

for summary judgment on the administrative record, and

defendant has cross-moved on affidavits. The principal

objections of defendant are those raised and disposed

of in 69 C 1362, 69 C 1290, 72 C 606, and 72 C 609, and

what has been said in those dockets need not be repeated

here.

The only point made in this case by defendant apart

from those passed on in the above dockets is that de-

fendant’s allegedly timely mailed Request for Hearing

was ignored. It was mailed to the Postmaster at Kansas

30a

Memorandum and Order by Dooling, J.

City, Missouri, from New York City, fourteen days after

the receipt of the complaint. In this case, however, re-

mand to consider the timeliness of the mailing is not ap-

propriate. The form of objections allegedly sent to the

Postmaster raised no points not resolved against the

defendant in the dockets referred to above.

Accordingly, it is

Orperep that plaintiff’s motion for summary judgment

is granted and defendant’s cross-motion is denied. A

form of judgment has been approved for entry by the

Clerk.

Brooklyn, New York

July 29, 1974

JOHN F. DOOLING, Jr.

U.S.D.J.

3la

Memorandum and Order by Dooling, D. J.

UNITED STATES DISTRICT COURT,

Eastern District or New York.

—<ie—

Unirep Sratres oF AMERICA,

against

Pent-R-Books, Inc.,

Defendant.

72 C 580

(Harter)

Appearances:

Lloyd H. Baker, Esq. (David G. Trager, Esq., United

States Attorney, of Counsel) for Plaintiff.

Herbert Monte Levy, Esq., for defendant.

Doo.ina, D. J.:

In this action to obtain an order commanding compli-

ance with a Post Office Prohibitory Order issued under

39 U.S.C. §3008 (formerly §4009), the plaintiff has moved

for summary judgment on the administrative record, and

defendant has cross moved on affidavits. The principal

objections of defendant are those raised and disposed of

in 69 C 1362, 72 C 609, 60 C 1290 and 72 C 588, and

what has been said in those dockets need not be repeated

here.

Particular to the present case is the narrow point that

the certification of the administrative record is inade-

quate. There are two “certificates.” One certifies that

a sheaf of papers attached to it consists of true copies:

the copies attached are the familiar round of first-mailing,

32a

Memorandum and Order by Dooling, D. J.

request for order, order, receipt for order, second mail-

ing, Complaint, and receipt for complaint. A second,

later-made certificate, certifies that the attached docu-

ment is a true copy of a document in Post Office custody,

and identifies it as a Postmaster’s Order finding mailer

in violation of the Prohibitory Order in “P. O. Docket

R8-DM-57 (G. Harter).” Attached is a copy of such

Order in the familiar printed form.

It is not suggested that the papers furnished under

the “certificates” are not true copies, or that they do

not correspond with defendant’s own records, or that any

paper relevant to the case is missing from the sheaf of

papers as presented. The Post Office could indeed profit

by using a form that adopted the scheme and the clear,

complete and succinct language of Rule 44(a) (1). But

its failure to have done so is not an answer to a motion

for summary judgment. See 28 U.S.C. §$1733(b); ef.

Wynne v. United States, 1910, 217 U. S. 234, 246-247;

United States v. Merrick, 10th Cir. 1972, 464 F. 2d 1087,

1092-1093.

It is, accordingly,

OrpereD that the plaintiff’s motion for summary judg-

ment is granted and defendant’s motion for summary

judgment is denied. A separate judgment form has been

approved for the Clerk’s entry.

Brooklyn, New York

July 24, 1974.

JOHN F. DOOLING, Jr.

U.S.D.J.

33a .

Memorandum and Order by Dooling, D. J.

UNITED STATES DISTRICT COURT,

Eastern District or New York.

~<—

Unrrep States or AMERICA,

against

Pent-R-Booxs, Inc.,

Defendant.

72 C 581

(Walsh)

—_—

Appearances:

Lloyd H. Baker, Esq. (David G. Trager, Esq., United

States Attorney, of Counsel) for Plaintiff.

Herbert Monte Levy, Esq., for defendant.

Doouine, D. J.:

In this action to obtain an order commanding compli-

ance with a Post Office Prohibitory Order issued under

39 U.S.C. §3008 (formerly $4009), the plaintiff has moved

for summary judgment on the administrative record, and

defendant has cross-moved on affidavits. The principal

objections of defendant are those raised and disposed of

in 69 C 1362, 69 C 1290, 72 C 606 and 72 C 609, and

what has been said in those dockets need not be repeated

here.

The only point made in this case by defendant apart

from those passed on in the above dockets is that de-

fendant’s allegedly timely mailed Request for Hearing was

34a

Memorandum and Order by Dooling, D. J.

ignored. It was mailed to the Postmaster at Newark,

New Jersey, from New York City, fourteen days after

the receipt of the complaint. In this case, however, re-

mand to consider the timeliness of the mailing is not

appropriate. The form of objections allegedly sent to the

Postmaster raised no points not resolved against the

defendant in the dockets referred to above.

Accordingly, it is

Orverep that plaintiff’s motion for summary judgment

is granted and defendant’s cross-motion is denied. A

form of judgment has been approved for entry by the

Clerk.

Broucklyn, New York

July 29, 1974.

JOHN F. DOOLING, Jr.

US.D.J.

35a

Memorandum and Order by Dooling, D. J.

UNITED STATES DISTRICT COURT,

Eastern District or New York.

—<

Untrep States or AMERICA,

against

Pent-R-Booxs, Inc.,

Defendant.

72 C 582

(Sellers)

Appearances:

Lloyd H. Baker, Esq. (David G. Trager, Esq., United

States Attorney, of Counsel) for Plaintiff.

Herbert Monte Levy, Esq., for defendant.

Doone, D. J.:

In this action to obtain an order commanding compli-

ance with a Post Office Prohibitory Order issued under

39 U.S.C. $3008 (formerly §4009), the plaintiff has moved

for summary judgment on the administrative record, and

defendant has cross-moved on affidavits. The principal

objections of defendant are those raised and disposed of

in 69 C 1362, 69 C 1290, and 72 C 609, and what has been

said in those dockets need not be repeated here.

The only point made in this case by defendant apart

from those passed on in the above dockets is that de-

fendant’s allegedly timely mailed Request for Hearing

was ignored. It was mailed to the Postmaster at Phila-

delphia, Pennsylvania, from New York City, a very few

36a

Memorandum and Order by Dooling, D. J.

(if any) days after the receipt of the complaint. In

this case, however, remand to consider the timeliness of

the mailing is not appropriate. The form of objections

allegedly sent to the Postmaster raised no points not re-

solved against the defendant in the dockets referred to

above except the objection that the second mailing was

apparently “refused” and, therefore, could not have been

found “pandering.” Apart from the facts that “refused”

does not mean “refused without opening and examining”

and that the envelope signalled the content of the mailing

the Prohibitory Order and the statute requires that there

be no second mailing of any kind, whether “pandering”

or not.

Accordingly, it is

OrvereD that plaintiff’s motion for summary judgment is

granted and defendant’s cross-motion is denied. A form

of judgment has been approved for entry by the Clerk.

Brooklyn, New York

July 29, 1974.

JOHN J. DOOLING, Jr.

US.D.S.

et i te A

37a

Memorandum and Order by Dooling, D. J.

UNITED STATES DISTRICT COURT,

Eastern District or New York.

—_——

Unirep States or AMERICA,

against

Pent-R-Booxs, Inc.,

Defendant.

72 C 584

(Carson)

—~<=—

Appearances:

Lloyd H. Baker, Esq. (David G. Trager, Esq., United

States Attorney, of Counsel) for Plaintiff.

Herbert Monte Levy, Esq., for defendant.

Dootine, D. J.:

In this action to obtain an order commanding compli-

ance with a Post Office Prohibitory Order issued under

39 U.S.C. §3008 (formerly §4009), the plaintiff has moved

for summary judgment on the administrative record, and

defendant has cross-moved on affidavits. The principal

objections of defendant are those raised and disposed of

in 69 C 1362, 69 C 1290, 72 C 606, and 72 C 609, and what

has been said in those dockets need not be repeated here.

The only point made in this case by defendant apart

from those passed on in the above dockets is that de-

fendant’s allegedly timely mailed Request for Hearing

was ignored. It was not mailed to the Postmaster at

38a

Memorandum and Order by Dooling, D. J.

Houston, Texas, from New York City until fifteen days

after the receipt of the complaint. In this case, more-

over, remand to consider the timeliness of the mailing

is not appropriate. The form of objections allegedly

sent to the Postmaster raised no points not resolved

against the defendant in the dockets referred to above.

Accordingly, it is

Orperep that plaintiff’s motion for summary judgment

is granted and defendant’s cross-motion is denied. A

form of judgment has been approved for entry by the

Clerk.

Brooklyn, New York

July 29, 1974.

JOHN J. DOOLING, Jr.

U.S.D.J.

39a

Memorandum and Order by Dooling, D. J.

UNITED STATES DISTRICT COURT,

Eastern District or New York.

—

Unrrep States or AMERICA,

against

Pent-R-Books, Inc.,

Defendant.

72 C 586

(Griffis)

Appearances :

Lloyd H. Baker, Esq. (David G. Trager, Esq., United

States Attorney, of Counsel) for Plaintiff.

Herbert Monte Levy, Esq., for defendant.

Dootina, D. J.:

In this action to obtain an order commanding com-

pliance with a Post Office Prohibitory Order issued under

39 U.S.C. §3008 (formerly §4009), the plaintiff has

moved for summary judgment on the administrative rec-

ord, and defendant has cross-moved on affidavits. The

principal objections of defendant are those raised and

disposed of in 69 C 1362, 69 C 1290, 72 C 606, and 72

C 609, and what has been said in those dockets need not

be repeated here.

The only point made in this case by defendant apart

from those passed on in the above dockets is that de-

fendant’s allegedly timely mailed Request for Hearing

was ignored. It was mailed to the Postmaster at Co-

lumbia, South Carolina, from New York City fourteen

40a

Memorandum and Order by Dooling, D. J.

days after the receipt of the complaint. In this case,

however, remand to consider the timeliness of the mail-

ing is not appropriate. The form of objections allegedly

sent to the Postmaster raised no points not resolved

against the defendant in the dockets referred to above.

‘Accordingly, it is

Orverep that plaintiff’s motion for summary judgment

is granted and defendant’s cross-motion is denied. A

form of judgment has been approved for entry by the

Clerk.

Brooklyn, New York

July 29, 1974.

JOHN F. DOOLING, Jr.

U.S.D.J.

4la

Memorandum and Order by Dooling, D. J.

UNITED STATES DISTRICT COURT,

Eastern District or New York.

~~ ——

Unirep States or AMERICA,

against

Pent-R-Books, Inc.,

Defendant.

72 C 587

(Messer)

—»—

Appearances:

Lloyd H. Baker, Esq. (David G. Trager, Esq., United

States Attorney, of Counsel) for Plaintiff.

Herbert Monte Levy, Esq., for defendant.

Dootine, D. J.:

In this action to obtain an order commanding com-

pliance with a Post Office Prohibitory Order issued under

39 U.S.C. §3008 (formerly §4009), the plaintiff has

moved for summary judgment on the administrative rec-

ord, and defendant has cross-moved on affidavits. The

principal objections of defendant are those raised and

disposed of in 69 C 1362, 69 C 1290, 72 C 606 and 72 C

609, and what has been said in those dockets need not be

repeated here.

The only point made in this case by defendant apart

from those passed on in the above dockets is that de-

fendant’s allegedly timely mailed Request for Hearing

was ignored. It was not, however, mailed to the Post-

master at Washington, D. C. from New York City until

42a

Memorandum and Order by Dooling, D. J.

fifteen days after the receipt of the complaint. In this

case, moreover, remand would not be appropriate. The

form of objections allegedly sent to the Postmaster raised

no points not resolved against the defendant in the

dockets referred to above except that the first and second

mailings were both to the same address, whereas the

Prohibitory Order forbade only mailings to the addres-

see’s new address, advising defendant that the first mail-

ing had been to the addressee’s “former address.” Since

the second mailing was to the same addressee at a former

address from which, it could be inferred, his mail would

be forwarded, it was a violative mailing. Defendant

was on notice of both addresses.

Accordingly, it is

Orpverep that plaintiff’s motion for summary judgment

is granted and defendant’s cross-motion is denied. A

form of judgment has been approved for entry by the

Clerk.

Brooklyn, New York

July 26, 1974.

JOHN F. DOOLING, Jr.

U.S.D.J.

LO. At le et

43a

Memorandum and Order by Dooling, D. J.

UNITED STATES DISTRICT COURT,

Eastern District or New York.

— >

Unirep States or AMERICA,

against

Pent-R-Books, Inc.,

Defendant.

72 C 588

(Metheny)

Appearances:

Lloyd H. Baker, Esq. (David G. Trager, Fsq., United

States Attorney, of Counsel) for Plaintiff.

Herbert Monte Levy, Esq., for defendant.

Dootrne, D. J.:

As in 69 C 1362, 72 C 609 and 69 C 1290, the plaintiff

has moved for summary judgment on the administrative

record and the defendant has cross-moved on affidavits for

summary judgment in its favor. The administrative ree-

ord taken with defendant’s affidavits authorizes the fol-

lowing uncontroverted findings of fact:

Some time on or before May 26, 1969, James T’. Metheny

received from defendant its illustrated brochure advertis-

ing its photographic manual of sexual intercourse ad-

dressed to “James Methenie, Box 3057 Parkersburg, WV

26101.” The addressee then executed a Notice for Pro-

hibitory Order signing his name “James T. Metheny” and

giving his street address as 2203 Beverly Street, Box

3057, Parkersburg, W. Va. 26101. Under date of May

Memorandum and Order by Dooling, D. J.

29, 1969, the Post Office issued its Prohibitory Order re-

ferring to a mailing piece addressed to “James Methenie

(Metheny) 2203 Beverly Street, Box 3057, Parkersburg,

WV 26101” and ordered defendant to refrain from any

further mailings to the undernamed party at the indicated

address “or intended for the indicated address by any

variation of addressee designation, such as . . . house-

holder, resident, boxholder, postal patron, rural route

boxholder, and local”; the name then given is James

Methenie (Metheny), the address is given as “2203

Beverly Street, Box 3057” and the rest of the address is

given as “Parkersburg, West Virginia 26101.”

Defendant made a second mailing of the illustrated

brochure addressed to J.T Metheny, BX 3057, Parkers-

burg, WV 26103. It was received by J.T. Metheny on

July 14, 1969, as set forth on the cover of the envelope.

Under date of August 6, 1969, a complaint was issued

reciting the Prohibitory Order as one received by defend-

ant on June 2, 1969; it charged that defendant had vio-

lated the Prohibitory Order by a further mailing adding,

“See Exhibit attached hereto.” Attached, apparently, to

the complaint are reproductions of the cover of the en-

velope, of the enclosed address ecard (visible through the

window of the cover envelope), and the advertising bro-

chure. The administrative file includes a receipt signed

by defendant which is stamped, under the space headed

“DATE DELIVERED,” “Aug. 8, 1969.” Defendant has

produced an envelope stamped with the same registry

number that appears on the signed receipt. On the back of

the envelope appears the Charleston, West Virginia post

office stamp dated August 6, 1969, and two Brooklyn

post office stamps, one for the Gravesend Station of

August 7, 1969, and the second, somewhat obscured, but

also dated August 7, 1969. On the envelope also appears

an isolated rubber-stamp date in different colored in

“Aug. 26, 1969.” .

NG Eee RS

45a

Memorandum and Order by Dooling, D. J.

Under date of August 25, 1969, the post office mailed

defendant an Order reciting that satisfactory evidence

had been presented that defendant acted in violation of

the Prohibitory Order and that the Attorney General

was being requested to consider applying to a District Court

for an order requiring compliance with the Prohibitory

Order.. Not, however, until September 3, 1969, did de-

fendant mail a request for a hearing, through counsel,

to the Postmaster. Under date of September 8, 1969, de-

fendant appealed to the Assistant General Counsel, Mail-

ability Division, Post Office Department, on the grounds

that defendant had been denied a hearing notwithstand-

ing that it had filed its application for a hearing within

eight days after receiving the complaint.

1. The point that defendant makes with most force in

connection with the Metheny case is the alleged failure of

the post office to effect a timely delivery to defendant of

the complaint. Plaintiff contends that the complaint was

not received until August 26th and challenges the appli-

eability to the mailing of that complaint of the receipt

relied on by the government and incorporated in the ad-

ministrative record. The only basis for the contention is

the Goldman affidavit of November 2, 1973, which, as a

reading of it demonstrates, is entirely speculative and

wholly insufficient to overcome the self-evidence of the

receipt over defendant’s own signature and the date on

it. This, coupled with the Post Office action in issuing the

order of August 25, 1969, is indicative of the belief of

the Post Office that it had a receipt upon which it could

properly act, and more than overcomes the appearance

of the date August 26, 1969, on the reverse of the en-

velope in which the complaint was delivered. The ex-

planation of this stamped date is barren assertion. The

defendant’s affidavits show that the possibility of the

existence of an individuated recollection by the respon-

sible employees in defendant’s service is nil in view of the

very large number of mail transactions relating to Post

46a

Memorandum and Order by Dooling, D. J.

Office Prohibitory Orders and Complaints to which de-

fendant was a party at the time in question. In the end

it would be necessary to fall back on the administrative

record, including the receipts for “the mailings, and the

inference to be drawn from these facts plus the presump-

tion of regularity in transactions of an ordered sort in

established organizations.

Turning to the Request for Hearing, the grounds as-

signed for objection to the issuance of a final Order de-

termining violation are insufficient. The loss of the hear-

ing and of the appellate rights are in this case wholly

immaterial. The points raised in the Request for Hear-

ing have all been passed on in the determinations made

in this Court in 69 C 1362, 72 C 609 and 69 C 1290. The

one factual point made, that only a copy of the Prohib-

itory Order was annexed to the Complaint, appears to be

a plain mistake in the preparation of the request, and is,

in any case, immaterial in the absence of a showing of

resultant confusion, uncertainty or prejudice (see decision

in 72 C 583).

2. It is objected that it was not proper to treat the

second mailing as a violation because it was made to

James Methenie. The objection is without merit. The

Prohibitory Order gave both versions of the name, as

noted above, and the second mailing was to the same

person, using the second spelling. The mailing reached

the same person, and it was not addressed to a name

which should or could not have been anticipated as a

form of the name which defendant might find in its

mailing lists. The evidence of the administrative record

is that in fact the second mailing was to the person to

whom the defendant was directed to refrain from making

further mailings. The objection on the ground of dif-

ference in names must be rejected.

3. It is, finally, objected that the second mailing was to

a different zip code than the first and that the zip code

used in the second mailing was not that contained in the

47a

Memorandum and Order by Dooling, D. J.

Prohibitory Order. The difficulty with the objection is

again that the letter did not miscarry when it was de-

livered to “J.T. Metheny BX 3057, Parkersburg, WV.”

The mailing went to the same person, and the correspond-

ences between the two addresses are such as altogether to

eliminate the possibility that the person who received the

second mailing was not the one to whom the defendant

intended to send it.

It is no doubt true that defendant’s methods of doing

business made it difficult to avoid violation in this re-

spect. Its computerized lists betray it on such occasions.

But unfortunately defendant must be treated as though

it had only a few short lists and a personal consciousness

of all of its acts. Orders are directed to persons not to

electronic devices. The complexity of defendant’s busi-

ness is not a defense against the claim of an individual

addressee who has obtained an order directing defendant

to make no further mailings to him; the statute is ad-

dressed not to facilitating defendant’s business or impos-

ing the least costly constraints upon it but to protecting

the rights of individuals to be free of what they regard

as an unwelcome intrusion.

It is, accordingly

Orperep that the motion of the plaintiff for summary

judgment is granted and the motion of the defendant for

summary judgment is denied. A separate compliance

order has been approved and will be entered by the Clerk.

Brooklyn, New York

July 24, 1974.

JOHN F. DOOLING, Jr.

U.S.D.J.

48a

Memorandum and Order by Dooling, D. J.

UNITED STATES DISTRICT COURT,

Eastern District or New York.

——=>—

Unitep States or AMERICA,

against

Pent-R-Booxs, Ince.,

Defendant.

72 C 598 (Featherston)

a oe

Appearances :

Lloyd H. Baker, Esq. (David G. Trager, United States

Attorney, of Counsel) for plaintiff.

Herbert Monte Levy, Esq., for defendant

Dooutne, D. J.:

In this action to obtain an order commanding com-

pliance with a Post Office Prohibitory Order issued under

39 U.S.C. §3008 (formerly §4009), the plaintiff has moved

for summary judgment on the administrative record, and

defendant has cross-moved on affidavits. The principal

objections of defendant are those raised and disposed of

in 69 C 1362, 69 C 1290, 72 C 606 and 72 C 609, and

what has been said in those dockets need not be repeated

here.

The only point made in this case by defendant apart

from those passed on in the above dockets is that de-

fendant’s allegedly timely mailed Request for Hearing

was ignored. It was mailed to the Postmaster at New

49a

Memorandum and Order by Dooling, D. J.

Orleans, Louisiana from New York City until fifteen

days after the receipt of the complaint. In this case,

moreover, remand to consider the timeliness of the mail-

ing is not appropriate. The form of objections allegedly

sent to the Postmaster raised no points not resolved

against the defendant in the dockets referred to above.

Accordingly, it is

Orperep that plaintiff’s motion for summary judgment

is granted and defendant’s cross-motion is denied. A

form of judgment has been approved for entry by the

Clerk.

Brooklyn, New York

July 26, 1974.

JOHN F. DOOLING, Jr.

US.D.J.

50a

Memorandum and Order by Dooling, D. J.

UNITED STATES DISTRICT COURT,

Eastern District or New York.

$< @—

Unrrep States or America,

against

Pent-R-Bookxs, Inc.,

Defendant.

72 C 599 (Costa)

Appearances :

Lloyd H. Baker, Esq. (David G. Trager, Esq., United

States Attorney, of Counsel) for Plaintiff.

Herbert Monte Levy, Esq., for Defendant

Dootrne, D. J.:

In this action to obtain an order commanding com-

pliance with a Post Office Prohibitory Order issued under

39 U.S.C. §3008 (formerly §4009), the plaintiff has moved

for summary judgment on the administrative record, and

defendant has cross-moved on affidavits. Al! objections

of defendant in this action were raised and disposed of in

69 C 1362, 72 C 606, and 72 C 609, and what has been

said in those dockets need not be repeated here. Ac-

cordingly, it is

; OrperepD that plaintiff’s motion for summary judgment

is granted and defendant’s cross-motion is denied. A

Rag judgment has been approved for entry by the

Brooklyn, New York

July 29, 1974.

JOHN F. DOOLING, Jr.

U.S.D.J.

5la

Memorandum and Order by Dooling, D. J.

UNITED STATES DISTRICT COURT,

Eastern District or New York.

——=>—

Unrrep States or AMERICA,

against

: Pent-R-Boogs, Inc.,

Defendant.

72 C 600 (Kiyak)

Appearances:

Lloyd H. Baker, Esq. (David G. Trager, Esq., United

States Attorney, of Counsel) for Plaintiff.

Herbert Monte Levy, Esq., for defendant

Dootrnea, D. J.:

In this action to obtain an order commanding compli-

ance with a Post Office Prohibitory Order issued under

39 U.S.C. §3008 (formerly §4009), the plaintiff has moved

for summary judgment on the administrative record, and

defendant has cross-moved on affidavits. The principal

objections of defendant are those raised and disposed of

in 69 C 1362, 69 C 1290, 72 C 606 and 72 C 609, and

what has been said in those dockets need not be re-

peated here.

The only point made in this case by defendant apart

from those passed on in the above dockets is that de-

fendant’s allegedly timely mailed Request for Hearing

was ignored. It was mailed to the Postmaster at New-

ark, New Jersey, from New York City, fourteen days

52a

Memorandum and Order by Dooling, D. J.

after the receipt of the complaint. In this case, however,

remand to consider the timeliness of the mailing is not

appropriate. The form of objections allegedly sent to

the Postmaster raised no points not resolved against the

defendant in the dockets referred to above.

Accordingly, it is

OrpereED that plaintiff’s motion for summary judgment

is granted and defendant’s cross-motion is denied. A

form of judgment has been approved for entry by the

Clerk.

Brooklyn, New York

July 26, 1974.

JOHN F. DOOLING, Jr.

U.S.D.J.

53a

Memorandum and Order by Dooling, D. J.

UNITED STATES DISTRICT COURT,

Eastern District or New York.

—_

Unrrep States or America,

against

Pent-R-Booxs, Inc.,

Defendant.

72 C 601 (Coffin)

Appearances :

Lloyd H. Baker, Esq. (David G. Trager, Esq., United

States Attorney, of Counsel) for Plaintiff.

Herbert Monte Levy, Esq., for defendant

Doone, D. J.:

In this action to obtain an order commanding compli-

ance with a Post Office Prohibitory Order issued under

39 U.S.C. §3008 (formerly §4009), the plaintiff has moved

for summary judgment on the administrative record, and

defendant has cross-moved on affidavits. The principal

objections of defendant are those raised and disposed of

in 69 C 1362, 69 C 1290 and 72 C 609, and what has been

said in those dockets need not be repeated here.

The only point made in this case by defendant apart

from those passed on in the above dockets is that de-

fendant’s allegedly timely mai'ed Request for Hearing

was ignored. It was mailed to the Postmaster at Newark,

New Jersey, from New York City, thirteen days after the

Memorandum and Order by Dooling, D. J.

receipt of the complaint. In this case, however, remand

to consider the timeliness of the mailing is not appropri-

ate. The form of objections allegedly sent to the Post-

master raised no points not resolved against the defend-

ant in the dockets referred to above.

Accordingly, it is ~

Orperep that plaintiff’s motion for summary judgment

is granted and defendant’s cross-motion is denied. A

form of judgment has been approved for entry by the

Clerk.

Brooklyn, New York

July 26, 1974.

JOHN F. DOOLING, Jr.

U.S.D.J.

bbe

Memorandum and Order by Dooling, D. J.

UNITED STATES DISTRICT COURT,

Eastern Disraict or New York.

—_>

Unrtzp States or AMERICA,

against

Pent-R-Booxs, Inc.,

Defendant.

72 C 603

(Day)

eee

Appearances :

Lloyd H. Baker, Esq. (David G. Trager, Esq., United

States Attorney, of Counsel) for Plaintiff.

Herbert Monte Levy, Esq., for Defendant.

Dootrne, D. J.:

In this action to obtain an order commanding com-

pliance with a Post Office Prohibitory Order issued under

39 U.S.C. §3008 (formerly §4009), the plaintiff has moved

for summary judgment on the administrative record, and

defendant has cross-moved on affidavits. All objections

of defendant in this action were raised and disposed of

in 69 C 1362, 72 C 588, and 69 C 1290, and what has been

said in those dockets need not be repeated here. Ac-

cordingly, it is

56a

Memorandum and Order by Dooling, D. J.

Orperep that plaintiff's motion for summary judgment

is granted and defendant’s cross-motion is denied. A

form of judgment has been approved for entry by the

Clerk.

Brooklyn, New York

July 29, 1974.

JOHN F. DOOLING, Jnr.

U.S.D.J.

57a

Memorandum and Order by Dooling, D. J.

UNITED STATES DISTRICT COURT,

Eastern District or New York.

Unrrep States or AMERICA,

against

Pent-R-Booxs, Inc.,

Defendant.

72 C 606

(Molaison)

Appearances :

Lloyd H. Baker, Esq. (David G. Trager, Esq., United

States Attorney, of Counsel) for Plaintiff.

Herbert Monte Levy, Esq., for Defendant.

Dootina, D. J.:

In this action to obtain an order commanding compliance

with a Post Office Prohibitory Order issued under 39

U.S.C. §3008 (formerly §4009), the plaintiff has moved for

summary judgment on the administrative record, and de-

fendant has cross moved on affidavits. The principal ob-

jections of defendant are those raised and disposed of in

69 C 1362, 72 C 609, 69 C 1290, and 72 C 588, and what

has been said in those dockets need not be repeated here.

Particular to this case are two contentions:

The first is that a request for hearing was air mailed to

New Orleans on October 3, 1969, the day before the dead-

line date computed by defendant, and was ignored as late.

But defendant’s computation requires rejection of the date

58a

Memorandum and Order by Dooling, D. J.

on the registered mail receipt (on the basis of the nuga-

tory Goldman affidavit) and acceptance of the date that

defendant says that it was its practice to stamp on regis-

tered mail envelopes when received. There is no basis for

electing such a rejection in a case that does not (because

of the multitude of featureless transactions involved) admit

of helpful oral testimony from actual participants in the

transactions. The receipt date is congruent with the Post

Office date stamps on the envelope, and defendant’s asserted

date is not.

The second point is that the Prohibitory Order of April

14, 1969, had no name inserted in the name-space following

the decretal language (“refrain from * * * further mail-

ings to the following parties at the indicated address,”

underscoring supplied), but the order had inserted in

that space only the address. If it were possible to say

that the blunder could have misled the mailer, there would

be much to the point, of course. But “H. J. Malaison,” at

the same address, is given above on the form as the person

to whom defendant had mailed the first letter, and, hence,

omission to insert the name below could not leave defend-

ant in any doubt about the command of the Prohibitory

Order with respect to further mailings.

It is, accordingly,

Orperep that plaintiff’s motion for summary judgment

is granted and defendant’s cross motion is denied. A

separate form of judgment is approved for entry.

Brooklyn, New York

July 23, 1974.

JOHN F. DOOLING, Jn.

USD.J.

59a

Memorandum and Order by Dooling, D. J.

UNITED STATES DISTRICT COURT,

Eastern District or New York.

——

Untrep States or AMERICA,

against

Pent-R-Books, Inc.,

Defendant.

72 C 610

(Oetken)

Appearances :

Lloyd H. Baker, Esq. (David G. Trager, Esq., United

States Attorney, of Counsel) for Plaintiff.

Herbert Monte Levy, Esq., for Defendant.

Doone, D. J.:

In this action to obtain an order commanding com-

pliance with a Post Office Prohibitory Order issued under

39 U.S.C. §3008 (formerly §4009), the plaintiff has moved

for summary judgment on the administrative record, and

defendant has cross-moved on affidavits. The principal

cbjections of defendant are those raised and disposed of

in 69 C 1362, 72 C 606 and 72 C 609, and what has been

said in those dockets need not be repeated here.

The only point made in this case by defendant apart

from those passed on in the above dockets is that defend-

ant’s allegedly timely mailed Request for Hearing was

ignored. It was mailed to the Postmaster at Portland,

Oregon, from New York City not more than ten days

after the receipt of the complaint. In this case, however,

60a

Memorandum and Order by Dooling, D. J.

remand to consider the timeliness of the mailing is not ap-

propriate. The form of objections allegedly sent to the

Postmaster raised no points not resolved against the de-

fendant in the dockets referred to above except the claim

that the first mailing was “Refused” and, therefore, the

addressee could not have formed the opinion that it was a

pandering advertisement. Apart from the fact that the

warning envelope itself may have been signal enough to

the addressee, the word “Refused” does not imply that

the envelope was not opened: on the contrary the more

natural inference is that it was refused because it had

been opened and had been examined.

Accordingly, it is

Orpverep that plaintiff’s motion for summary judgment

is granted and defendant’s cross-motion is denied. A form

of judgment has been approved for entry by the Clerk.

Brooklyn, New York

July 26, 1974.

JOHN F. DOOLING, Jn.

US.D.J.

6la

Memorandum and Order by Dooling, D. J.

UNITED STATES DISTRICT COURT,

Eastern District or New York.

Unrrep Srates or AMERICA,

against

Pent-R-Books, Inc.,

Defendant.

72 C 612

(Sample)

Appearances :

Lloyd H. Baker, Esq. (David G. Trager, Esq., United

States Attorney, of Counsel) for Plaintiff.

Herbert Monte Levy, Esq., for Defendant.

Doone, D. J.:

In this action to obtain an order commanding com-

pliance with a Post Office Prohibitory Order issued under

39 U.S.C. §3008 (formerly $4009), the plaintiff has moved

for summary judgment on the administrative record, and

defendant has cross-moved on affidavits. The principal

objections of defendant are those raised and disposed of

in 69 C 1362, 72 C 583 and 69 C 1290, and what has been

said in those dockets need not be repeated here.

The only point made in this case by defendant apart

from those passed on in the above dockets is that de-

fendant’s allegedly timely mailed Request for Hearing

62a

Memorandum and Order by Dooling, D. J.

was ignored. It was mailed to the Postmaster at Houston,

Texas, from New York City, fourteen days after the re-

ceipt of the complaint. In this case, however, remand to

consider the timeliness of the mailing is not appropriate.

The form of objections allegedly sent to the Postmaster

raised no points not resolved against the defendant in

the dockets referred to above.

Accordingly, it is

Orperep that plaintiff’s motion for summary judgment

is granted and defendant’s cross-motion is denied. A

form of judgment has been approved for entry by the

Clerk.

Brooklyn, New York

July 26, 1974.

JOHN F. DOOLING, Jr.

U.S.D.J.

APPENDIX B.

Opinions of the District Court in Related Companion

| Cases.

63a

Memorandum and Order by Dooling, D. J.

UNITED STATES DISTRICT COURT,

Eastern District or New York.

Unrrep Srares or AMEniIcA,

against

Pent-R-Booxs, Inc.,

Defendant.

69 C 1362

(Ireland)

Appearances:

Lloyd H. Baker, Esq., (David G. Trager, Esq. United

States Attorney, of Counsel) for Plaintiff.

Herbert Monte Levy, Esq., for Defendant.

Doone, D. J.:

The Government moves for summary judgment requiring

defendant to comply with Post Office Department Pro-

hibitory Order No. 5776 issued pursuant to 39 U.S.C. §4009

on July 14, 1969. Plaintiff moved on the certified copy of

the Post Office Department record without more.

The Government’s case, based on the administrative

record, is the following:

Defendant mailed from Brooklyn to one L. Ireland an

advertisement for “The Photographic Manual of Sexual

Intercourse.” There was prominently printed on the en-

_velope a statement as follows:

a b4a

Memorandum and Order by Dooling, D. J.

“NoTIcE TO ADDRESSEE

This envelope contains an UNSOLICITED IL-

LUSTRATED BROCHURE offering for sale to

Adults Only, a new marriage manual. If you do

not wish this mail or if you are not over the age

of 21 years, DO NOT OPEN THIS ENVELOPE!

Simply mark this envelope “REFUSED,” sign

your initials and return it to your mailman. Upon

the return of this envelope, we will endeavor to

remove your name from our mailing list. Thank

you.”

The recipient, L. Ireland, on a printed form supplied by

the Post Office Department signed under date of March

8, 1969, a statement that the recipient considered the mail-

ing “to be a pandering advertisement which offers for saie

erotically arousing or sexually provocative matter” and

requested that the mailer, Pent-R-Books, Inc., be directed

“to refrain from making any further mailings to me.” Hav-

ing received notice that an addressee had received the kind

of mail matter described in Section 4009(a) and a request

for an order, the Newark, New Jersey Post Office sent to

defendant at its address as given on the envelope addressed

to L. Ireland a Prohibitory Order: the Order recited that

the addressee had determined that the advertisement was

a pandering advertisement etc. and had requested the is-

suance of an order under Section 4009; the Order, as

provided in Section 4009(c), directed defendant (a) to re-

frain from any further mailings to L. Ireland at 3 Mill

Street, Bloomfield, N. J. 07003, (b) immediately to delete

L. Ireland from all the mailing lists that defendant owned

or controlled, and (c) to abstain from selling, renting, ex-

changing or otherwise making transactions involving mail-

ing lists bearing the name of L. Ireland. The adminis-

trative record shows that defendant admitted receiving

the prohibitory order.

65a

Memorandum and Order by Dooling, D. J.

More than thirty but less than sixty day: after the date

of the Prohibitory Order, defendant sent a further com-

munication addressed to L. R. Ireland, 3 Mill Street, Bloom-

field, N. J. 07003; the envelope bore a notice to the ad-

dressee like that of defendant’s earlier mailing, asserting

that the envelope contained,an illustrated brochure offer-

ing a new marriage manual for sale. Under date of June

6, 1969, the Newark Post Office sent to defendant at its

address as shown on the previous envelopes a complaint

reciting the earlier Prohibitory Order and stating that evi-

dence had been produced that the order had been violated

(a) by further mailings to the addressee listed, (b) by

failing immediately to delete the addressee’s name from de-

fendant’s mailing lists, and (c) by selling, lending, exchang-

ing or otherwise making transactions involving mailing

lists bearing the addressee’s name. The complaint stated

that any response to the complaint or request for a hearing

would have to be filed within 15 days after receipt of the

complaint; the complaint recited that it enclosed a copy

of the Department’s Rules of Practice relative to answering

the complaint and requesting a hearing. Defendant signed

a receipt for the mailing.

Finally, under date of July 14, 1969, the Postmaster

at Newark sent defendant a form entitled Order stating

that satisfactory evidence had been presented that de-

fendant had acted in violation of the Prohibitory Order

and that the Attorney General was being requested to

consider applying to a District Court for an order di-

- recting compliance with the Prohibitory Order. The

present suit was filed on October 31, 1969.

The administrative record exhibits literal compliance

with the mandate of the statute, the scheme of which

has been unqualifiedly approved in Rowan v. United States

Post Office Department, 1970, 397 U. S. 728.

Defendant’s affidavits do not challenge any of the con-

trolling facts reflected in the administrative record.

66a

Memorandum and Order by Dooling, D. J.

1. Defendant argues first that this case and all similar

cases pending in this Court*® are moot because defendant

never genuinely voluntarily committed a witting viola-

tion of the Prohibitory Order, but, at worst, was “guilty”

of an unavoidable error due to the limitations of computer

technology, and that in aggregate its erroneous mailings

have been confined to a trifling number of incidents of

seeming disobedience (when the number of such mailings

is expressed as a percentage of its total mailings and

total Prohibitory Orders) occurring despite systematic,

expensive and well planned efforts to assure over-all com-

pliance. In a word, the defendant argues that there

should be no compliance order because there has been

no willed disobedience and there is no threat of any fu-

ture willed disobedience. Defendant asserts that its ex-

isting computer technology all but excludes the risk of

future violation of the Prohibitory Orders of the De-

partment.

Defendant misconceives the scheme of the law. Com-

pliance Orders of court are not punitive but directory;

they simply lay the groundwork for future contempt

proceedings. Defendant’s liability to subjection to in-

dividual Compliance Orders of court is the begetter of

defendant’s praiseworthy compliance effort, but that ef-

fort is not an answer to its liability to the entry of any

*Of the approximately 70 related cases involving Pent-R-

Books pending before this Court, motions for summary judgment

have been filed in the following 28 cases:

69 C 1290 72C 583 72C 598 72 C 606

69 C 1362 72 C 584 =72C 599 #£«%72 C 607

69 C 1363 72 C585 $72 C600 #£=72 C 608

72 C 579 72C 586 72C 601 £72 C 609

72 C 580 72C 587 =72C 602 £72 C 610

72 C 581 72C 588 720603 £72 C 611

72 C 582 72C 597 72C 604 #£=72C 612

They involve many of the issues passed on in the present

docket, and the decisions in those dockets will incorporate by

reference the applicable parts of this decision.

67a

Memorandum and Order by Dooling, D. J.

individual Compliance Order. Proof of that effort is

relevant to any future contempt case.

Plaintiff argues that Hecht Company v. Bowles, 1944,

321 U. 8. 321, is authority for denying a Compliance

Order here. In Hecht an injunction against the defend-

ant’s future violations of war time price ceilings was

denied upon its demonstration that all earlier violations

were promptly corrected when discovered and that vig-

orous steps were taken to prevent recurrence of viola-

tions; there was evidence of the difficulty of assuring

compliance with price ceilings in the countless transac-

tions of a very large department store. The denial of

the injunction in Hecht did not mean that Hecht was not

liable to refund the overcharge of each customer. The

denial afforded Hecht at best temporary immunity from

being held in contempt for future violations. So, in the

present case, the specific relief to which each offended

addressee is entitled at the Government’s request is an

order of court imposing on the mailer the specific duty,

culpable disobedience of which will be punishable by

contempt, to avoid future mailings. The Government

does not seek to subject defendant. as a systematic viola-

tor of Prohibitory Orders, to a general injunction that

will make it punishable for contempt if it violates any

Post Office Prohibitory Order whether or not a specific

Compliance Order of court has been awarded to the par-

ticular addressee receiving the offending mailing that is

the basis of the con 2mpt application.

The very long d lay in bringing the 1969 cases to

judgment is not, as lefendant argues, a ground for dis-

missal for want of »>rosecution. The delay is in some

considerable part the result of the protraction of negotia-

tions between defendant and the Department which were

not abandoned until just before the Government filed its

first motion for summary judgment in these cases. The

large number of cases continuingly filed against defend-

68a

Memorandum and Order by Dooling, D. J.

ant in this district, and the appropriately global ap-

proach that the parties have taken toward determining

the measure of defendant’s statutory responsibility, pre-

elude any finding that there has been a want of pros-

ecution.

In connection with the mootness argument, framed also

as a “case or controversy” argument, defendant argues

that the extravagant cost of its compliance efforts, and

the radical abridgement in the volume of mailings which -

have resulted from the measures that it has had to take

in order to comply with the statute, have so gravely con-

strained its right to communicate that the First Amend-

ment argument, disposed of in Rowan, must be regarded

as re-presented by the circumstances of the present case.

The argument, however, was unanswerably disposed of in

Rowan (397 U. S. at 740). The Court emphasized

throughout its opinion that it was not dealing with the

right to communicate but with the right of citizens to re-

ject the intrusion of communication upon them. The

Court said in Rowan (397 U. S. at 738):

“We therefore categorically reject the argument

that a vendor has a right under the Constitution

or otherwise to send unwanted material into the

home of another. If this prohibition operates to

impede the flow of even valid ideas, the answer is

that no one has the right to press even ‘good’

ideas on an unwilling recipient.”

It is further argued that, because the Government has

allegedly sought compliance orders only in cases where

the mailings were sexually oriented, it necessarily cen-

sored the mailings in violation of the First Amendment.

Cf. Lamont v. Postmaster General, 1965, 381 U. S. 301, —

306. The argument seems to be that the working prac-

tice of the Post Office has forfeited the protection of the

Rowan case because censorship is implicit in the Post

Office’s confining its requests for judicial Compliance

69a

Memorandum and Order by Dooling, D. J.

Orders to cases in which sexually oriented advertise-

ments had been mailed, and by its omitting to see such

orders when the Post Office did not consider the material

mailed either sexually provocative or erotically arous-

ing (even though it had received notice from addressees

that they considered, (e. g.), material mailed by American

Civil Liberties Union and the Practicing Law Institute

sexually provocative and arousing and even though Pro-

hibitory Orders had been issued. It should be borne in

mind that the Post Office must have a continuing con-

cern to see that addressees do not use their statutory

rights as a subterfuge for relieving their mail boxes of

all “junk mail” however insusceptible it may be of

defensible characterization as sexually provocative or

arousing. But if there have been instances of individous

selectivity in requesting the Attorney General to seek

judicial Compliance Orders, it does not appear on de-

fendant’s showing that such episodes have occurred in

circumstances or to an extent sufficient to support a claim

that the administration of the statute has converted it

into an instrument for Post Office censorship of mailings

of sexually oriented advertisements.

2. The point defendant most strenuously argues is that

the systematic and carefully planned manner in which

it revised its entire mailing system in order to comply

with the law and the consequent extremely low incidence

of violative mailings amount to substantial compliance

with the law and furnish a defense to individual com-

plaints seeking individual court Compliance Orders.

After pointing out that the publication circulated by

defendant has been held not to be obscene but protected

by the First Amendment, defendant shows that it has

rejected the use of all mailing lists except those which

have been computerized so that it can effectively elimi-

nate violative mailings after the issuance of Prohibitory

Orders. It asserts that the running cost of the computer-

ized operation in 1969 was $62,068. It shows that it

7Ua

Memorandum and Order by Dooling, D. J.

made about ten million mailings in 1969, that it received

200,000 Prohibitory Orders, and that the Post Office

sustained complaints of violation in only about 500 in-

stances, or one-quarter of one percent of the Prohibitory

Orders issued. Defendant says, without contradiction,

that whenever a statutory Complaint is received from

the Post Office the name of the complaining addressee is

put through computer processing to eliminate from all

lists; if a complaint is thereafter received, the name is

once again put through computer processing so as to

establish a second path for eliminating any further mail-

ings to that addressee; if the case is later filed in Court,

then the addressee’s name is put through the computer

processing system for a third time so as to increase the

probability of total compliance.

The progressive refinement of procedures, defendant

says, has resulted in a steady decrease in the number of

administrative complaints of violation; there were only

seven complaints in the first-half of 1972, none in the

second-half, none in the first six months of 1973 and

thereafter only three. Not all the complaints thus spe-

cified dealt with mailings for defendants; the complaints

included mailings made by the defendant’s mailing service

for cther enterprises. Taking the whole number of

Prohibitory Orders at 248,500 the incidents of viola-

tions between January 1, 1972, and November 8, 1973,

would not exceed four thousandths of one percent.

Defendant estimates—and this is necessarily an esti-

mate—that in its efforts to assure compliance it has fore-

gone the use of rented lists with a loss of access to per-

haps as many as eight million persons. A rented list,

defendant explains, may not be copied; but effective

scanning to select and eliminate addressee names must be

by optical scanner, and the computers in use on de-

fendant’s work can scan only material translated into

symbol-form and stored on magnetic tapes; effective scan-

ning of rented lists would réquire forbidden re-copying

of the lists into symbols for storage on magnetic tape.

-—~

7la

Memorandum and Order by Dooling, D. J.

Finally, defendant points out, to avoid mailing in

violation of the Post Office Prohibitory Orders by mail-

ings made where there were slight variances (from list to

list) in the complaining addressee’s name (as in the

present case where the second mailing was to a person

with a middle initial not present in the first mailing),

the defendant set up the scanning operation to eliminate

from its mailings any one the first five letters of whose

last name and whose address corresponded with that of

the person who had obtained the Post Office Department

Prohibitory Order. That technique was later carried

even farther by eliminating mailing to all addressees

having in common the first five letters of their last names,

the first three digits of their street address and their

zip codes. Defendant estimates that over all it has spent

$300,000 to comply and has achieved 99 3/4% compliance.

The showing is impressive, but it furnishes no answer

to the present proceeding. The sophistication and high

cost of defendant’s compliance effort index the magni-

tude of defendant’s operation and the extent of its

means. They do not nullify the lapses; no matter how

unintended, although they certainly reduce both the

rate of lapse and the number and probability of later-

stage court compliants for Compliance Orders. When

violations occur, they entitle the individual addressee to

the issuance of a Post Office Complaint, and, in proper

circumstances, to a Post Office request that the Attor-

ney General apply for a judicial Compliance Order. The

statute is concerned with the interest of the individual

addressee and does not seek to regulate the business of

the publisher of the advertisements.

Moreover, what defendant has shown, if relevant, has

relevancy to any contempt proceedings that might be

initiated if, following the entry of judicial Compliance

Order, a further seemingly violative mailing occurs. At

that point the material now presented could well be of-

72a

Memorandum and Order by Dooling, D. J.

fered in mitigation of the charged violation of the Com-

pliance Order, or, conceivably, to avoid altogether a con-

tempt adjudication.

3. In the present and in a number of other cases ob-

jection has been made to the administrative record on

the ground that the certified record was not actually

served with the United States Attorney’s motion for

summary judgment, or that the certifying officer used a

short form of certification which failed, as Rule 44(a) (1)

requires, to state that he has custody of the record, or

that, probably having no seal of office, the certifying

officer has not attested his certification by his seal of

office. In three cases it is pointed out that the certifying

officer certifies “the annexed documents” but then fails

to fill out a list of the documents as part of the certifica-

tion form as the form used indicates was intended.

Defendant does not say that the administrative record

is not a true copy of the record; since every instrument in

it was communicated by copy to the defendant during the

administrative proceeding defendant would not have any

difficulty in pointing out any defect in the administrative

record presented by plaintiff. If it be true that the certified

record recited in the Government’s motion paper was not

attached to the motion papers when served, that, as a mat-

ter of the normal courtesies between counsel, should

simply have occasioned the defendant’s drawing the slip

to the attention of the United States Attorney. To raise

it months later in a brief as an objection of substance

to a motion for summary judgment is not possible. Cf.

United States (Austin) v. Western Electric Co., 9th Cir.

1964, 337 F. 2d 568, 574-575. Again, there is no sugges-

tion that there was no adminisrative record or that the

administrative record, belatedly produced, is not a true

copy of the communications that constitute the record.

4. It is argued that the administrative record does not

adequately show that the allegedly violative mailing was

73a

-Memorandum and Order by Dooling, D. J.

received by the addressee and mailed by the defendant

more than thirty days after the defendant’s receipt of the

Prohibitory Order.

The objection turns on sub-division (f) of the statute,

which provides that receipt of mail matter thirty days or

more after the “effective date of the” Prohibitory Order

creates a rebuttable presumption that the mail was sent

after the effective date. Defendant argues that there was

no competent evidence that any violating letter was

mailed or received on any particular date, and that, in

such administrative hearings as were held, the defendant

was given no opportunity to confront, examine or cross-

examine the alleged addressee as to the date of receipt,

since, as the Post Office pointed out and the regulation

(39 C.P.R. $916.7) notes, there is no authority in such

an administrative proceeding to issue subpoenas to coerce

the attendance of the addressee or other witnesses. It

is argued further that for the Post Office to move forward

on a hearsay statement to it that the letter had been re-

ceived after the effective date of the Order, and then

to fail to afford the mailer any opportunity to controvert

the addressee’s reported assertion is to deny the defend-

ant due process.

The most obvious defect in the set of arguments is

that the defendant does not say that the second mailings

were not made and does not deny that they were made

after the effective date of the Prohibitory Order. Limita-

tions of administrative procedure do make it impossible

for the mailer to coerce the attendance of the addressee,

but the Post Office and the mailer are in the same posi-

tion; the mailer and addressee, like the Government, are

free to solicit the evidence of the other parties. Moreover,

and this is the dispositive fact, the defendant itself is

the best source of responsible evidence about the date of

mailing. If there were doubt about the date of the second

mailing, the cefendant could at once resolve it by the

barest and simplest of date comparisons.

74a

Memorandum and Order by Dooling, D. J.

It may be that defendant’s envelopes are not post-

marked and so do not disclose mailing dates. It is evident

from examination, however, that the defendant’s mailed

envelopes are metered or prepaid envelopes, that they

originate with defendant, that they do not require cancel-

lation by Post Office stamping, and that it would not be

difficult for defendant, as one step in its scheme of com-

pliance, to protect itself against imposition by dating

its envelopes. That defendant’s operation is so great in

extent that it cannot prepare and maintain records of

the dates of its various mailings is hardly a circum-

stance to be used at this time to dilute the efficacy of

this very simple statute with its very simple procedures.

In extension of the same argument defendant urges

that in a number of cases, including the present one, the

administrative file fails to show in even the most in-

formal manner that the second letter was received by

the addressee more than sixty days after the entry of

the Prohibitory Order. Thus in the present case the

Prohibitory Order was dated March 21, 1969; the al-

legedly violative letter bears a notation that it was re-

ceived by the addressee on May 6, 1969. Defendant

argues that no inference of a violative mailing can be

drawn since, where the only administrative-record evi-

dence of the mailing date is the statutory presumption

created by proof of the date of receipt, that receipt must

be more than sixty days after the date of the Prohibitory

Order.

The contention is based squarely on the literal lan-

guage of sub-division (f).

Two sets of considerations dispose of the contention.

First. Defendant’s literal reading of sub-division (f)

produces an effect that defeats the obvious meaning and

purpose of the sub-division. Sub-division (f) becomes

clear and harmonizes with the statutory scheme only if

it is read with the word “effective” struck out in the

first occurrence of the expression “effective date” so that

75a

‘Memorandum and Order by Dooling, D. J.

the provision reads “Receipt of mail matter thirty days

or more after the date of the order * * * shall create a

rebuttable presumption that such mail was sent after

[the] effective date” of the Prohibitory Order provided

for by sub-division (b). The scheme of the statute is this:

A mailing is complained of by notice from an addressee

that it is of a kind that he does not wish to receive, and

requests an order. The Post Office is obligated to issue

a Prohibitory Order (sub-division [b]). In this case it

was issued on March 20, 1969. The statute made the

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.