In the Matter of the Petition by

 DELL PUBLISHING CO., INC.

 for a hearing prior to the final decision upon its
 application for admission to second-class mail privilege
 of its publication "DELL SPORTS."

 P.O.D. Docket No. 1/116

 September 24, 1959

 Charles D. Ablard Judicial Officer

 APPENDIX B, POST OFFICE DEPARTMENT, WASHINGTON 25, D.C.

The publisher applied for entry of its publication, "Dell Sports" as second-class mail matter. The Director of Postal Services denied the application and the publisher appealed. A hearing was held before a Hearing Examiner and an Initial Decision was rendered adverse to the publisher. The decision was based on the first eight issues of the publication. The publisher filed exceptions to the decision and attached issue No. 9 of its magazine, which had been published subsequent to the hearing asking the undersigned to consider it in making the departmental decision. The Director of Postal Services through his counsel, representatives of the General Counsel of the Post Office Department, objected to consideration of this issue contending that it was outside the scope of the record.

At my request the parties appeared before me on September 4, 1959, to consider this problem. The conference adjourned with the understanding that the counsel for the Director would confer with him and ask his opinion as to whether he would at that time reconsider the application in the light of issue No. 9 and also issues No. 10 and 11 which were printed subsequent to the filing of the exceptions. I was informally advised by counsel that the Director would not do so. The publisher then formally petitioned to reopen the hearing before the Hearing Examiner to receive in evidence issues Nos. 9, 10 and 11 of the publication and any subsequent issues published at the time of such re-opening and render a supplemental initial decision based on those issues. The publisher agreed that no further motions to re-open would be made. The Director filed a reply in opposition to the petition.

The publisher states that these last three issues of the publication are different from the first eight issues which were introduced into evidence at the hearing. The publisher admits that upon the advice of the Director it began making changes in the format of "Dell Sports" to comply with the standards of the Department for entry. The testimony in the record shows that at the time of the hearing further changes were contemplated by the publisher. (Tr. 33-36, 77) Having admitted these facts it seems relevant and proper to re-open for the purpose of considering the publication in the light of these changes.

The Director objects to this contending that since there is no express provision in the rules for re-opening the hearing the motion must be regarded as a request for "an exceptionable remedy". The Director draws an analogy to a judicial proceeding contending that there must be finality and an end point for all litigation. With this contention I concur, as apparently also does the publisher since he agrees that he will stand on the number of issues which have been published at the time of the re-opened hearing should his motion be granted.

The Director says that for any hearing to be re-opened there must be "newly discovered evidence". He admits that this evidence was not available at the time of the hearing but asserts that both parties could have contemplated that additional issues of the publication would have been available. This would also appear to be a reason for granting the motion to re-open the hearing since the Director could reasonably foresee that other issues would be published by the publisher. This, however, does not warrant the contention that this hearing can be re-opened ad infinitum or that all future second-class proceedings will be subject to being reopened upon request. There are unusual circumstances prevailing in this case, principally, the fact that the publisher has throughout admitted the possibility that his publication did not comply and that he was making and contemplating changes, all in an effort to bring the publication into compliance with the statute. What more cooperation could any Federal administrator ask than to have an applicant with such an attitude?

The alternative to denying the motion to re-open would be to have a departmental decision on the first eight issues. If the decision is adverse to him he must begin again by submitting a new application to the Director and pay a new application fee. If there is a denial by the Director a complete new hearing would then be held. All of this procedure would take infinitely more time than would the procedure requested by the publisher in the motion.

The only issue involved in this proceeding is whether the publication is a periodical. The Director relies on an evaluation of the contents and the format to prove his case. The publisher contends that an application for second class entry is a continuing application until the final departmental decision.

The Director cites the Postal Manual which gives him authority to rule initially "on all applications." A question was raised at the conference previously mentioned as to whether re-opening the hearing before the Hearing Examiner would pre-empt the Director of his authority and prohibit him from passing on the application. The Director has an anomalous role in these proceedings. He is not only the initial deciding officer whose decision may be appealed to the Hearing Examiner but is also the real party in interest in the hearing where he is represented by the General Counsel. The Director recently withdrew objection to the Hearing Examiner considering issues of a publication which were published after the Director's ruling but before the close of the hearing. (In the matter of Gilberton World Wide Publications Inc.) Thus, the Director, if he is consistent in his theory would be deprived of his authority to pass on those issues.

I do not believe the Director is ever deprived of such authority. Since he is the real party in interest at the hearing and will be so at the re-opened hearing there is no reason why he cannot consider and pass on the application at the time of the hearing. He will have ample time to consider the new issues. It is my belief that these matters are never completely out of the hands of the Director for, as he points out in his reply brief, he is the officer who has been given the authority to initially pass upon all such applications. If he believes that the matter is out of his hands and solely in the hands of the General Counsel, I fear it is a misapprehension. Such is not my feeling. The General Counsel indicates in his reply that the Director is his client. The client should never be in a position where he has relinquished control of the substantive question in litigation. An attorney may not force his client to litigate. If he decides that the publisher is qualified he may elect not to litigate as to any or all of the subsequent three issues in which event the entry would be granted beginning with one of them and the record on appeal is preserved as to the first eight. A decision would then be rendered by the undersigned on those issues of the publication.

The situation is analogous to a judicial proceeding where a party decides that his case should not be litigated. He notifies his attorney and the attorney in turn notifies the judge, who removes the case from the docket.

I believe that the Director can follow the same procedure and has the authority to grant an application at any time even though a proceeding may be pending before the Hearing Examiner or before me. The petition is granted and the hearing will be re-opened by the Hearing Examiner at a date to be set by him.