In the Matter of the Petition of ) January 14, 1965 ) THE H. W. WILSON COMPANY ) 950 University Avenue ) Bronx 52, New York ) P.O.D. Docket Nos. ) 2/123; 2/124; 2/125 in regard to the proposed revocation ) and 2/126 of second-class mail permits of the ) publications "Cumulative Book Index", ) "Index to Legal Periodicals", "Readers') Guide to Periodical Literature" and ) "Education Index." ) Bosone, Reva Beck POST OFFICE DEPARTMENT WASHINGTON, D. C. 20260
After reviewing the record of the above-named cases and weighing the arguments made by Counsel for the Government and Counsel for the Petitioner I hereby sustain the Order of September 24, 1964, issued by the Hearing Examiner in these cases.
I agree with Counsel for the Petitioner when he stated in his Findings of Fact on behalf of The H. W. Wilson Company filed May 22, 1964, that:
"18. The April 17, 1963, notices of revocation by which these proceedings were initiated, were defective under the Administrative Procedure Act in that they failed to call to the attention of the Wilson Company any facts or conduct which would warrant revocation of the second-class mail permits." and--
"19. The initiation of these proceedings against the Wilson Company was fatally defective under the provisions of the Administrative Procedure Act. The petitioner was provided with no opportunity to demonstrate compliance before initiation of the proceedings. Moreover, by the failure of the notices of revocation to articulate any basis for the proposed revocations, the Wilson Company was prevented from taking any steps that might have been necessary to achieve compliance and to continue, with the Director's concurrence, as the holder of second-class permits."
Section 1008(b) of Title 5 U. S. Code is the statute involved in the Hearing Examiner's Order and in the assertion made by the Petitioner's Counsel in the foregoing. 1/
If these cases involved procedural rules the decision might be different because it is within "the discretion of a court or an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it."--NLRB v. Monsanto Chemical Co. et al, 205 F. 2d 763 (1953).
The language of Section 1008(b) of Title 5 U. S. Code is clear--so clear that its purport must not be disregarded when it says "no ..... revocation, or annulment of any license shall be lawful unless prior to the institution of agency proceedings therefor, facts or conduct which may warrant such action shall have been called to the attention of the licensee by the agency in writing and the licensee shall have been accorded opportunity to demonstrate or achieve compliance with all lawful requirements." Therefore unless the procedure set up in this statute is followed there cannot be a lawful revocation of a license. Without this first step there is no basis on which to stand for a revocation.
These publications, the subjects of the above-named matter, have had the privilege of second class mail for years--65 years in one case. With this long period and the 28 or more separate re-entries the publishers were led to believe that their publications met the interpretation of the Post Office Department and the requirements of the postal laws in having the privilege of second-class mail rates. This long and undisturbed privilege which the publishers enjoyed would certainly require the just procedure as set out in the statute. And so, that which has followed is unlawful; there cannot be a decision upon the merits of the case therefore "the notices of proposed revocation of second-class mail permits previously issued herein by the Respondent" shall "be dismissed for failure to comply with the provisions of the Administrative Procedure Act." This dismissal is, of course, without prejudice to the right of the Respondent to institute other actions in regard to the publisher in conformity with the requirements of the Administrative Procedure Act.
1/ Sec. 1008(b). In any case in which application is made for a license required by law the agency, with due regard to the rights or privileges of all the interested parties or adversely affected persons and with reasonable dispatch, shall set and complete any proceedings required to be conducted pursuant to sections 1006 and 1007 of this title or other proceedings required by law and shall make its decision. Except in cases of willfulness or those in which public health, interest, or safety requires otherwise, no withdrawal, suspension, revocation, or annulment of any license shall be lawful unless, prior to the institution of agency proceedings therefor, facts or conduct which may warrant such action shall have been called to the attention of the licensee by the agency in writing and the licensee shall have been accorded opportunity to demonstrate or achieve compliance with all lawful requirements. In any case in which the licensee has, in accordance with agency rules, made timely and sufficient application for a renewal or a new license, no license with reference to any activity of a continuing nature shall expire until such application shall have been finally determined by the agency. (June 11, 1946, ch. 324, § 9, 60 Stat. 242.)