In the Matter of the Complaint Against BOWMAN-EGGERS COMPANY and B-E CO. Rt. 1 Box 86 at Brookings, Oregon 97415 P.S. Docket No. 2/18; APPEARANCES: H. Richard Hefner, Esq. Law Department U. S. Postal Service Washington, D.C. 20260 for Complainant Edward Bowman, pro se Owner of Respondent
In a letter to the General Counsel that was taken to be Respondent's answer to the complaint in the above-captioned matter, Respondent 1/ advised he could not come to a hearing in Washington, D.C. "because of sickness". In response the Administrative Law Judge wrote Respondent furnishing a copy of the Rules of Practice and pointing out the section dealing with change of hearing sites. Thereafter Respondent wrote the judge stating among other things "This letter, and the other two we sent, are our verbal words to be heard At the hearing the 27th. of feb. sic We do not ask for a change of place for the hearing." The hearing was held as scheduled in Washington, D.C., on February 27, 1973. Respondent did not attend and was not represented. Following the hearing the Administrative Law Judge issued an oral Initial Decision which was subsequently reduced to writing. Following receipt of a copy of the Initial Decision, Respondent wrote a letter to the Administrative Law Judge. In parts the letter castigates the Administrative Law Judge and threatens him with suit. Although it is not clear that Respondent intends the letter as an appeal to the Judicial Officer, it is clear that Respondent is unhappy with the Initial Decision. The letter, therefore, was docketed as an appeal.
Respondent's objections to the Initial Decision are, as best as I can determine, that--
1. The Administrative Law Judge did not accept a testimonial letter and the statements in his own letters as probative evidence;
2. Respondent does no direct mail advertising;
3. The Initial Decision was not based on substantial evidence; and
4. The holding of the hearing in Washington, D.C., was violative of Respondent's right to due process of law.
1. As pointed out in Complainant's reply brief, no issue is raised over whether Respondent makes the representations found in the Initial Decision to have been made. He has conceded that he does.
Judicialized hearings under Anglo-American law permit the parties opportunity to confront the witnesses against them and by cross-examination both to obtain clarification of the testimony given and to test its accuracy and credibility. Live testimony at a hearing also permits the presiding judge opportunity to draw conclusions on the basis of his observation of the witnesses who are testifying under oath and in jeopardy of prosecution for giving false testimony. None of the foregoing safeguards exists with respect to the documents on which Respondent would have the Administrative Law Judge rely. It was entirely proper for the Administrative Law Judge to refuse to consider the testimonial letter and Respondent's letters as probative evidence of the truth of the statements contained in them.
2. Complainant's Exhibits 2-A, 2-C and 3-C, part of the evidence in this proceeding, are mimeographed letters sent by Respondent representing the alleged benefits of "The Developer", the product involved here, and soliciting remittance through the mail for that product. The evidence taken at the hearing further establishes that Respondent does in fact fill mail orders received in response to his advertising. Accordingly, if as the Initial Decision found, the advertisement contains false representations, a mail stop order is authorized by 39 U.S.C. 3005.
3. I have reviewed the testimony taken and the exhibits
received in evidence and find they amply support the findings made by the Administrative Law Judge.
4. As stated above, after Respondent was advised of his right to ask for the hearing to be held closer to his place of business, he expressly stated he was not asking for a change in the place for the hearing. The Administrative Law Judge was under no compulsion to change the place for hearing this matter when Respondent specifically said he was not asking the judge to take that action. I may add that there is nothing in Respondent's various letters to indicate that he would have been able to present persuasive evidence to refute the evidence produced by Complainant, even if the hearing had been held nearer Respondent's place of business or residence.
Upon consideration of the record in this proceeding in the light of Respondent's exceptions, the Initial Decision is affirmed and a remedial order is being issued pursuant to 39 U.S.C. 3005 contemporaneously with this decision.
05/14/73
Wenchel, Adam G.
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