In the Matter of the Complaint Against PHASE METHOD 509 Fifth Avenue at New York, New York 10017 P.S. Docket No. 2/112July 17, 1974
William A. Duvall Chief Administrative Law Judge
H. Richard Hefner, Esq., Law Department, United States Postal Service, Washington, D. C., for Complainant Robert Ullman, Esq. , Bass and Ullman, New York, New York, for Respondent
This proceeding was initiated on August 13, 1973, when the General Counsel for the United States Postal Service, Complainant, filed a complaint against Phase Method, at New York, New York, the Respondent, in which it is charged that Respondent is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations contrary to the provisions of Section 3005, Title 39 United States Code. The business in which the Respondent is engaged is the sale through the mails of a method of weight loss which is described as "Grapho- Therapeutics" and it bears the name "Phase Method." This system or plan will be described in more detail later in this decision.
The complaint and notice of hearing were served upon the Respondent, on whose behalf an answer was duly filed in accordance with the requirements of the appropriate Rules of Practice. The matter came on for hearing on September 14, 1973, in Washington, D. C. and after the conclusion of the hearing the parties submitted their proposed findings of fact, conclusions of law and supporting arguments.
The specific charges against the Respondent are set forth in paragraphs 3 and 4 of the complaint as follows:
"(3) By means of the advertising matter referred to above, Respondent represents to the public in substance and effect:
(a) 'The Phase Method' is a means by which the purchaser may effectively overcome obesity without dieting.
(b) 'The Phase Method' is a permanent remedy for obesity.
(c) 'The Phase Method' will permit an obese person to select the amount of weight to be lost in a given period of time.
(d) 'The Phase Method' furnished to the purchaser will incorporate new and significantly different scientific principles and developments from all other programs intended for control of obesity.
(e) 'The Phase Method' will permit an obese person to increase the rate at which weight will be lost by increasing the amount of food ingested.
(f) 'Grapho-Therapeutics' constitutes a scientifically valid means of determining a personalized program for the control of obesity.
(g) 'The Phase Method' will permit an obese person to accomplish dramatic and rapid losses of body weight and size while permitting him to eat as much as he may desire.
(4) The aforesaid representations are materially false as a matter of fact."
Complainant's exhibits received at the hearing include the mailing piece used by Respondent, one of which was sent unsolicited to a test name used by the Postal Inspector who investigated the case. A copy of this circular is attached to this decision as Appendix A. The reverse side of this advertising circular is attached hereto as Appendix B. Other Complainant exhibits reveal the order for the product, its receipt in response to the order and efforts to obtain a refund after indication of dissatisfaction with it. (Ex. A-1 - A-8; B-1 - B-4; and C-1 - C-4)
On behalf of the Respondent the following exhibits were offered and received in evidence: the curriculum vitae of Marvin Siegelman, Ph.D., and copies of the four (4) different dietary programs one of which is supplied by Respondent to each purchaser. (R-1; and R-2 thru R2-4)
There are three broad issues in this proceeding, namely, (1) does the Respondent use the mails in the conduct of its business; (2) does the Respondent make the representations which the Complainant attributes to it and sets forth in paragraph 3 of the complaint; and
(3) are the representations, if made by the Respondent, materially false as matters of fact.
That the Respondent does use the mails in the conduct of its business is established in two ways: first, through certain of the exhibits received in evidence at the hearing and, secondly, by paragraph 2 of the answer filed on behalf of the Respondent wherein Respondent admits that it uses the mails in the operation of its business enterprise and that the exhibit attached to the complaint (Appendix A to this decision) is a true copy of advertising material used by Respondent in its business.
In resolving the second issue it is necessary to consider the advertising material used by the Respondent in connection with the sale of its product. Consideration of Respondent's advertising material must be in the light of the holding in the case of Donaldson v. Read Magazine , 333 U.S. 178 at pages 188, 189 where the Court said, among other things, that in cases similar to the present one questions of fraud, which clearly include questions of misrepresentation, may be determined in the light of the effect the advertisements would most probably produce on ordinary minds. The Court cites Durland v. United States , 161 U.S. 306-313, 314 and Wiser v. Lawler , 189 U.S. 260, 264. In this connection the Court also said that "Advertisements as a whole may be completely misleading although every sentence separately considered is literally true. This may be because things are omitted that should be said, or because advertisements are composed or purposefully printed in such a way as to mislead."
The charges now will be considered separately in order to determine whether it is fair to conclude that the Respondent makes, or makes in substance, the representation which is embodied in each of the charges. The charges will be referred to by their number in order to avoid repetition.
With regard to charge 3(a) in the complaint, there is the following language in paragraph 2 of Appendix A to this decision:
"Now you can stop dieting and starving yourself to lose only a few pounds... In fact with this method you not only will lose weight more quickly than you ever dreamed, but it will stay off."
On Appendix B at the top of the second column there is the following language in large print:
"YES, NOW YOU CAN EAT AS OFTEN AS YOU WANT & LOSE WEIGHT]"
Relating to charge 3(b) in the complaint, there is the following language in Appendix A in addition to the language quoted above under charge 3(a):
"But now, thanks to this miraculous new discovery that started in Europe...you can, for the first time, lose the amount of weight you desire when you want to and then when you slim and trim down the way you would like to be...you can stay that way." (Appendix A, paragraph 3)
In the third column of Appendix B there is the following statement by Respondent:
"I will show you how to lose 7 lbs. in 48 hours up to 71 lbs. in 3 months and keep losing as much as you want and never to gain it back."
Relating to the charge set forth as paragraph 3(c) of the complaint, there is the order blank mailed by Respondent (Ex. A-3) in which the remitter is asked to supply information showing how quickly he desires to lose a certain number of pounds. Also in connection with this charge there is language at the top of the third column of Appendix B wherein the remitter is told how to lose a certain amount of weight in a given period of time and "keep losing as much as you want and never gain it back."
In connection with the charge in 3(d) of the complaint, the Respondent starts in the very first line of his letter to the prospective remitter by talking about a "startling new discovery." (Appendix A, paragraph 1) In paragraph 3 of this letter Respondent talks about a "miraculous new discovery that started in Europe..."
In addition, in the second column of Appendix B there is the following language:
"The scientific technique of Graphotherapy for solving weight reduction problems, successfully used in Europe for the past thirty years by Psychologists and Psychiatrists and medical doctors, is virtually unknown to their counterparts in the U.S. This new breakthrough on weight reducing raises the curtain here in America on a practical and valid method so simple and sensible, anyone can understand and use it]"
In connection with the charge stated in paragraph 3(e) of the complaint, the following statements by the Respondent are pertinent:
"Now you can stop dieting and starving yourself to lose only a few pounds..." (Appendix A, paragraph 2) "Again, I say eat as often as you want but follow the simple directions and your own neighbors wouldn't even recognize you." (Appendix A, paragraph 4) "The more often I ate to satisfy my body the more weight I would lose." (Appendix B, column 1)
In regard to the charge stated in paragraph 3(f) of the complaint, examination of the Respondent's literature reveals the following statements:
"Medical doctors and Psychographologists working together with the aid of the new MICROSCANOR computer to analyze your handwriting can determine the type of formula best suited for you for losing weight."
* * * * * *
"MY DOCTOR RECOMMENDED. . . that I send for the personalized reducing system determined for my case through handwriting analysis.***"
Finally, in regard to the charge set forth in paragraph 3(g) of the complaint there are the following statements by the Respondent:
"You can actually eat as often as you want and at the same time watch those ugly extra pounds drain right out of your body.***" (Appendix A, paragraph 2)
"NOW] .EAT UNTIL YOU ARE FULL AND LOSE POUND AFTER POUND]" (appendix B, column 1)
"I TRIED THE NEW BREAKTHROUGH IN REDUCING . . . determined by the analysis of my handwriting. I couldn't believe that I lost 29 lbs. in 30 days eating as often as I wanted and I felt fine. My friends say I look younger than my daughter. I presently wear a dress four sizes smaller than I used to wear." (This statement appears at the bottom of Appendix B in the form of a testimonial purported to be submitted by Miss Natalie Isaacs, Miami, Florida.)
The statements quoted above from Respondent's advertising literature are for illustrative purposes only, and do not purport to include all of the statements Respondent makes in relation (1) to the various charges of the complaint or (2) to the efficacy of that which the Respondent is selling. These statements do, however, form a part of the total solicitation effort by Respondent as revealed by exhibits received in evidence herein, all of which effort is considered in this decision. Upon the basis of the consideration of the totality of Respondent's advertising matter, in conformity with the rule stated in Donaldson v. Read Magazine , supra , it is found that Respondent does, indeed, make the representations embodied in paragraphs 3(a) through 3(g) of the complaint.
There is next to be disposed of the question of whether the representations found to have been made by the Respondent about its product are true or whether such representations are materially false as a matter of fact.
A good way in which to begin is with an examination of the plan or program being offered for sale by the Respondent. This examination begins with the assumption that a person sees and is attracted by Respondent's advertisement. Being so attracted he fills out the order blank and sends in a check accompanied by the statement in the purchaser's own handwriting which is required or recommended by the Respondent. Upon the receipt by the Respondent of the order, the handwritten statement is turned over to a graphologist. The function of the graphologist is to analyze the personality of the writer of the statement and place the writer in one of four personality categories, to wit, extremely dependent, moderately dependent, moderately independent and extremely independent (Tr. 109).
When the writer's personality has been characterized as indicated, one of four diets which the Respondent prefers to call "eating programs" is prescribed for the individual. On the scale of personality characterization as the diagnosis moves from extremely dependent to extremely independent, the diet prescribed for the individual ranges from highly structured to loosely structured. The theory is that the more independent an individual is the better able he is to select for himself the kinds and amounts of food that he will eat so that he may be given a more loosely structured diet. Whereas, the more dependent the individual is the more he must be presumed to require more specific instructions. A brief description of Respondent's program was the statement that it involves an association between certain personality traits and certain food schedules intended for persons who desire to lose weight (Tr. 101).
Respondent's first witness was Dr. Marvin Siegelman, Ph.D., whose impressive curriculum vitae, describing his education, occupational history, academic and professional honors, membership in learned societies, and publications, is detailed in Exhibit R-1. It was Dr. Siegelman who selected each of the four diets, one of which REspondent sends to a remitter based upon the graphologist's analysis of the remitter's personality which, in turn, was based on the sample of the remitter's handwriting examined by the graphologist.
Dr. Siegelman defined graphology as a projective technique and said that it is akin to figure drawing, Rorscharch tests and others. This technique is claimed by many individuals in the field as being capable of permitting measurement of the individual's totality or the total personality of the individual (Tr. 120). To permit the achievement of such remarkable results with accuracy assumes, of course, the competence of the graphologists, among a number of other factors. Dr. Siegelman does not use graphology in connection with his work as a psychologist.
Other statements by Dr. Siegelman demonstrate that his confidence in graphology -- particularly as it is employed in Respondent's "Phase Method" -- is far less than complete. About the strongest endorsement given by Dr. Siegelman of the practice of graphology is that while it does not produce results that are absolutely successful or accurate in terms of personality evaluation, there is a certain range of error which must be accepted. The only way to determine the extent of this range of error would be to engage in a very intensive, long-range type of research study (Tr. 133). Although it has a certain stability, reflecting certain stability in personality characteristics, one's handwriting is not always the same from time to time depending upon, among other things, the physical well-being and the mental outlook of the individual at the time of writing. Dr. Siegelman's testimony strongly suggests that one sample of handwriting may be entirely insufficient to provide a basis for an accurate analysis of the personality of the writer because of the variations produced due to the way the writer or the graphologist feels at the time he is writing or analyzing the writing as the case may be. There are many other factors that should be considered, and it is preferable that samples of handwriting be taken over a long period of time (Tr. 135).
There are persons whose handwriting indicates that they fit partially in one personality category and partially in another. Respondent has no diet that is designed for such a person, but Respondent's expert conceded that there probably should be such a diet or diets (Tr. 136).
Dr. Siegelman has made no test or conducted no study to determine the results of prescribing diets in accordance with personality analysis (Tr. 129). When one's personality is to be analyzed by means of projective tests, the ideal situation would be one in which more than one type of such test is given so that results of different types of tests can be compared, resulting in, presumably, a broader insight into the type of personality of the individual under study (Tr. 126).
Testifying next on behalf of the Respondent was Dr. Leo Wollman, M.D. who obtained his Bachelor's degree at Columbia University in 1934, Master's degree from New York University in 1938 and his M.D. at Edinboro University in 1942. Dr. Wollman was in the general practice of medicine from 1943 to 1951 with emphasis on obstetrics and gynecology and from 1951 to the present, with emphasis on psychiatry. Dr. Wollman is on the staff of several hospitals in New York City and he is a member of a number of professional societies concerned mostly with his specialties. He belongs, also, to the general medical societies such as the American Medical Association, the New York State and Kings County Medical Societies. He was at one time president of the Royal Medical Society.
Dr. Wollman defined obesity as an overweight condition in which more fat cells than ordinary are in the individual (Tr. 148). According to the witness about 70 percent of the American people both male and female are obese. The majority of that 70 percent are in good health but they just happen to be overeaters. Despite the fact that most obese people are in good health it would nevertheless be advisable for them to get rid of their excess weight. It would be impractical for every obese person to consult his doctor before embarking on any kind of a program to lose weight because there simply are not enough physicians to handle the number of patients. It would not be ill-advised for obese but otherwise healthy people to embark on a program of losing weight without consulting a doctor.
A large proportion of the practice of Dr. Wollman has consisted of the treatment of obese patients. The following are some of the techniques employed by Dr. Wollman in his treatment of obese patients: (1) he tells the obese patients to limit their caloric intake by themselves; (2) he tells his patients what foods to eat and what foods to avoid; (3) he employs hypnotherapy to increase the willpower of the patients and to motivate them to lose weight; (4) he uses suggestive therapy on a waking level; and (5) he utilizes aversion therapy and other methods including anorexic agents and diuretics, but he does not now recommend the use of the latter two methodologies. The best way to treat an obese patient who wishes to lose weight is to motivate the individual to eat less.
Dr. Wollman defines graphology as the study of handwriting and drawing from this study conclusions primarily about the personality and, sometimes, about the health of the individual. He regards this method of evaluating personality on the basis of a dependent-independent continuum as valid. Dr. Wollman stated that each of the diets prescribed by Respondent is a balanced diet in terms of the amount of proteins, carbohydrates and fats in each diet. In addition, if an obese person follows any one of those diets the diet would be effective in producing a weight loss in an obese person. The witness pointed out that in each of the four diets the dieter is told to eat certain foods but he is not given specific portions of the foods to be eaten in most instances. Therefore, there is no calorie counting in connection with the following of Respondent's diets.
Dr. Wollman stated that it is possible - and he stressed the word "possible" - for a person to lose 7 pounds in 48 hours; 12 hours in one week; and 34 pounds in the first month of following one of Respondent's diets (Tr. 158). In addition, the witness agreed that a patient with an independent personality should have a more liberal diet in order to avoid frustration and in order to have a possibility for more gratification of his eating habits. Conversely, a more dependent person needs a more specific diet with more definite instructions. A person wh has lost weight will not necessarily regain that weight unless some external factor such as an emotional situation causes him to resume his former gluttonous eating habits or otherwise causes him to eat more than is included in the diet on which he achieved the weight loss.
On cross-examination Dr. Wollman stated that he does not employ graphology in his treatment of obese patients. He does not always give a physical examination to such patients but he does always take the history of the patient. In taking such a history, matters that are of particular interest are the eating habits of the individual; the family history or the background and the emotional components of the daily existence of the patient. In prescribing diets for his patients Dr. Wollman gives stricter diets during the early course of treatment and, later, he prescribes diets which allow more leeway in the choice of food.
Concerning weight losses of 7 pounds in 48 hours; 12 pounds in one week; 34 pounds in one month and 71 pounds in 90 days which Dr. Wollman earlier had said were possible, he stated that such weight losses are not normal rates of weight loss. These are dramatic weight losses and would be achieved only by an extremely obese individual who restricted his caloric intake to a minimum (Tr. 164). He later described such weight losses as being improbable in the extreme but said that they could happen in rare cases (Tr. 167).
The desire for food rises from two sources or causes, namely, appetite or hunger. Hunger is the physical need for food and it is manifested by a contraction of the lining of the stomach which evidences the fact that there is a basic need for food. Appetite, on the other hand, is a manifestation of the psychic or psychological need (Tr. 156-7). Dr. Siegelman's testimony strongly suggests that one sample of handwriting may not be sufficient to provide a basis for an accurate analysis of one's personality because of the variations produced due to the way the writer or the graphologist feels at the time he is writing or analyzing the writing. There are many other factors that should be considered so that samples of handwriting should be taken over a long period of time.
In helping a person to lose weight, the most important aspect is to aid that person in the control of his appetite. In achieving this objective, willpower or the lack of willpower was characterized by Dr. Wollman as "a very vital point" (Tr. 167).
Respondent's so-called "Phase Method" does involve dieting. In no method of controlling obesity, though, are the results necessarily permanent. Some persons, although on restricted caloric diet, can not lose or continue to lose weight because of intervening emotional factors. Such a person's emotional problems have to be resolved before the weight loss will occur or continue (Tr. 169-171). It is elementary that no obese person can increase the rate of weight loss by increasing food intake (Tr. 175).
The information in regard to age, weight, height and the like which the purchaser must set forth on the order blanks (Exs. C-1 or A-8) is not enough to permit the Respondent's medical expert to diagnose the cause of an obese person's obesity. Certain persons could follow the Respondent's diets, lose weight, not count calories, not go hungry and eat as often as they wished, but this phenomenon would be restricted to a limited number of people and it would not be experienced by the obese population in general. (Tr. 179)
Dr. Wollman estimated that only about half of the people among the general population would be able to adhere to Respondent's "Phase Method" of weight loss because this method does not provide the supportive influence necessary to support and sustain the willpower of the individual (Tr. 181). The personality analysis which forms a part of this "Phase Method" is not so important as are the diets. The receipt through the mails of the Respondent's material will, for some people, increase their motivation to adhere to the prescribed diet, but for most people it will not have that effect (Tr. 185). On the basis of the testimony of Respondent's own witnesses it must be concluded that the claims which Respondent makes for "Phase Method" are material misrepresentations. There is broad support for this conclusion in this record.
To begin with, if one starts with the assumption that graphology has a place in personality analysis, graphology as it is employed by Respondent is inadequate to accomplish the results attributed to it by Respondent. An unidentified, but an acknowledged, range of error is known to exist in the performance of personality analysis by means of graphology. To obtain the best results from analysis by graphology, multiple specimens of handwriting of the individual are required to be taken over a period of time. The results of graphoanalysis are affected by, and vary with, the physical and mental condition and outlook of the person being analyzed as well as of the person performing the analysis. A more accurate method of personality analysis would be one which employs a battery of projective tests, rather than, as here, employing only one short instance of one type of test, which test is admittedly not an exact science and into which there admittedly is a built-in range of error in the results produced. The foregoing statements summarize the testimony of the first of Respondent's witnesses.
The forthright testimony of Respondent's medical expert established that there is no semblance of validity to Respondent's representations in regard to its "Phase Method" of weight reduction. Without the reduction of caloric intake, there is no hope of weight loss for the average obese individual. Neither the "Phase Method" nor any other method is necessarily capable of producing permanent weight loss. The adherence to an eating program calling for a reduced caloric intake requires the steady, consistent exercise of willpower. The development and exercise of such a degree of willpower requires supportive measures which Respondent's program fails to provided for most, or for at least half, of the general population, of whom about 70 percent are obese.
It is false to represent that a person will be able to accomplish the amount of weight loss he wishes to achieve in a given period of time. To so represent is false because of the possible intervention of a number of factors which may prevent such weight loss, such as, for example, an emotional influence that could prevent the weight loss even though one adheres to a reduced caloric intake. To represent that such spectacular weight losses as are stated in Respondent's claims can be accomplished when such losses can be accomplished only in rare cases and under special circumstances is so palpably false as to reflect a reckless disregard for the truth. Representations that obese persons may, by following the "Phase Method," Lose weight while at the same time eating as often or as much as they wish were effectively refuted by Respondent's medical expert. Finally, while there is a certain novelty to the method by which Respondent prescribes a diet for a particular purchaser, there is nothing basically new either in Respondent's use of graphology or in the diets sent to purchasers responding to Respondent's advertising matter.
It will have been noted that prior to this time no mention has been made of the testimony by a witness for Complainant. There is a two-fold reason for this fact. First, looking at this case in the light most favorable to Respondent, that is, as Respondent's case is discussed by its own witnesses, the evidence is abundantly sufficient to establish that Respondent materially misrepresents its product. Secondly, the major portion of the brief submitted by Respondent's Counsel is devoted to (1) an attack upon the qualifications of Complainant's medical witness and (2) the attempted belittling of the weight to be accorded to the testimony of Complainant's witness. These efforts are unwarranted, unsupported and unsuccessful.
Complainant called as a medical expert Vincent F. Cordaro, M.D. Dr. Cordaro received a Bachelor of Science degree from Long Island University and Surgeons of Boston by which institution, then unaccredited and since then closed, he was granted the degree of Doctor of Medicine in 1942 after a year of internship. After three years of internship and residence in Toledo, Ohio, there followed a period of about five (5) years, until 1951, in the private practice of medicine. During these five years Dr. Cordaro engaged in a general medical practice. From 1951 to 1953 he was a general duty medical officer in the United States Air Force, which, in certain respects, is comparable to engaging in a general medical practice. There followed two years of training in anesthesiology at the University Hospital of Boston University Medical School, after which he entered private practice with emphasis on anesthesiology.1/ This phase continued until 1968 when he entered the service of the Food and Drug Administration of the department of Health, Education and Welfare, where he presently is employed as a Collaborative Medical Officer to advise with the office of the General Counsel for the United States Postal Service. During the periods of his private practice and his service with the Air Force, Dr. Cordaro had occasion to and did diagnose and treat patients with obesity. In his present position, Dr. Cordaro frequently consults with experts in the field of obesity and its treatment, and he researchers the literature related to the causes and treatment for obesity in order to keep informed of new developments in this area.
The testimony of Dr. Cordaro was, for the most part, in agreement with the testimony, summarized herein, of Dr. Wollman who was the Respondent's medical expert. Such differences as there were between the testimony of the medical witnesses for the two parties related to minor matters which would not affect the outcome of this proceeding. Dr. Cordaro's testimony did reflect a detailed knowledge
The matter of Respondent's objections to Dr. Cordaro's qualifications and to his testimony is disposed of by the following quotation from 3 Wigmore, Evidence 687 (Chadbourn rev., 1970):
"1. MEDICAL MATTERS .
687. Physician's general knowledge based on the study of books. The general principle has already been considered ( 657 supra ) that a witness' knowledge must be based upon personal observations of his own senses. It has also been noted that exceptions to this rule are conceded--in particular, for professional men testifying to a matter of general scientific truth ( 665 supra ). It remains to consider the application of the principle to the testimony of physicians concerning principles of medical science.
Here it is necessary to distinguish two considerations. Are we objecting to the bookish source of their knowledge (1) because it implies a lack of skill and experience as affecting their expert capacity for judgment, or (2) because it involves accepting, as a knower of a given fact, one who has not really observed for himself but is trusting to others? In other words, is the objection directed against the quality of the witness' experience or the quality of his knowledge?
(1) From the former point of view, it, as is usual, the objection is directed against a professional man because he has merely graduated from an acceptable medical school and has not practiced extensively, the objection is unpractical. According to the old methods by which a medical training was gained mainly from actual service in an apprenticeship, an active and prolonged experience in practice for a considerable period might be essential. But the modern training of a medical school does not involve merely the perusal of books; it embraces a personal observation of disease and its remedies. The cultivation of judgment which may be attained in such a school ought to qualify without any requirement of a term of subsequent practice.
There is little definite authority on the subject, but the matter should rest in the trial judge's discretion.
(2) The objection from the second point of view is equally vain. To deny the competency of a physician who does not know his facts from personal observation alone is to reject medical testimony almost in its entirety. to allow any physician to testify who claims to know solely by personal experience is to appropriate the witness stand to impostors. Medical science is a mass of transmitted and collated data from numerous quarters; the generalizations which are the result of one man's personal observation exclusively are the least acceptable of all. The law must recognize the methods of medical science. It cannot stultify itself by establishing, for judicial inquiries, a rule never considered necessary by the medical profession itself. It is enough for a physician, testifying to a medical fact, that he is by training and occupation a physician; whether his source of information for that particular fact is in part or entirety the hearsay of his fellow-practitioners and investigators is immaterial." (footnotes omitted)
Proposed findings of fact and conclusions of law, together with the supporting arguments, submitted by both parties have been carefully considered. To the extent indicated herein, such proposed findings of fact and conclusions of law have been adopted. Otherwise, such proposed findings and conclusions are rejected as being contrary to or unsupported by the evidence of record or they are immaterial.
Upon consideration of the entire record in this case, an order as provided in 39 U. S. Code 3005 should be issued against this Respondent.
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