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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 430 U.S. 906

## Text

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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,
v.
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

2

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

~

3

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?

4

(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

5

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 * * *.”

ml

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.”

8

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

on

~ ae) mote: tateie names

t

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

12

§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

ee

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).

14

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

15

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).

16

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

17

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).

18

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.

20
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

21

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

2"

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),

24

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.

26

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.

27

(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.)

28

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.

la
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

o>

Unrrep StTares or AMERICA,
Plawmtif[-Appellec,
——
Psyt-R-Booxs, hvc.,
Defendani-Appellant.

2
Before: .

Oaxes and Gurren, Circuit Judges, and
Prence, District Judge.*
2
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.

2a

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

se

3a

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
ct
eli
HU
i ail:

4a

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

5a

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

6a

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

7a

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

Sa

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

9a

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.

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)

—~
Unirep States or AMERICA,

against

Pent-R-Books, Inc.,
Defendant.

72 C 588
(Metheny)

—
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-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)
a

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

oa
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.

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

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---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0948%3A1. Public record. Not legal advice.