In the Matter of the Complaint Against TERMPAPERS, TERMPAPER LIBRARY, INC. 3160 "O" Street, N.W. and 2605 "P" Street, N.W. at Washington, D.C. 20007 P.S. Docket No. 2/188; APPEARANCES: Thomas A. Ziebarth, Esq. Consumer Protection Office Law Department U.S. Postal Service Washington, D.C. 20260 for Complainant Martin Fogel, Esq. 461 H Street, N.W. Washington, D.C. 20001 for Respondent
This case is before the undersigned on appeal from a decision by Administrative Law Judge Sobernheim which found a violation of 39 U.S.C. § 3005 and recommended the issuance of a remedial order thereunder. Respondent's notice of appeal and exceptions to Judge Sobernheim's decision take issue with the decision in toto.
Central to the controversy is the issue of whether 39 U.S.C. § 3005 applies to a situation where the scheme perpetrated by means of false representations is not directed, in the final analysis, against the student who purchases Respondent's "term paper" product, but against the college or university which is at the end of the line in receiving the term paper costensibly as the student's own work product.
Respondent phrases its exceptions to the findings of fact in general terms 1/ characterizing them as a "piecing together of random remarks of witnesses, conclusions not based upon evidence and surmise". It goes on to allege a bias on the part of the Administrative Law Judge and gives as the only reason for this serious allegation the explanation that he "had heard other cases of this nature in recent weeks". There is no basis either to allow the exceptions to the findings of fact or to give the slightest credence to the charge of bias.
Respondent takes exception to the conclusions of law in their entirety. It would distinguish the case of United States v. International Term Papers, Inc., 477 F.2d 1277 (1st Cir. 1973), on the basis that the factual considerations differ greatly "since there was no evidence elicited in this case as to one innocent third party (if educational institutions who rely upon an outmoded and thoroughly discredited make work teching method called 'term papers' can be said to be innocent third parties. The value of term papers in deriving a grade is readily determinable from the transcript P. 46-48)."
Taking the points raised by this argument in reverse order, the last sentence of the parenthetical phrase will be considered first. That sentence implies that the testimony would tend to establish very little value to term papers in the grading process. The record shows that Complainant's witness, Reverend D. Bernard Theall, is eminently qualified in the field of library science and Respondent stipulated to his qualifications (Tr. 36). His testimony clearly establishes that term papers can play an important role in grading.
The first sentence in the parenthetical phrase quoted above seems to suggest that any educational institution which relies upon a student's term paper deserves what it gets if the term paper is not the student's own work. That such institutions properly may be considered innocent third parties is evidence not only from a reading of United States v. International Term Papers, Inc., supra, 2/ but also from the Respondent's own sales pitch assuring the student purchaser "the strictest of confidence" in the purchase and promising "not to send the same paper to your college again". The issue is not whether educational institutions should use term papers in their grading system but, given the fact that they do, whether Respondent may use the United States mails to obtain money in the sale of a product whose chief value is in the deception of institutions of higher education.
This brings us to the third point of the argument, the decision of the United States Court of Appeals in the case of United States v. International Term Papers, Inc., supra. Respondent argues that the reasoning in that case, held persuasive by Judge Sobernheim in the resolution of the instant case, should not be applied because there was no showing here that any of Respondent's term papers had ever been placed in the hands of an educational institution. A review of the cited case as well as the decision of the District Court from which the appeal was taken, 351 F.Supp. 76 (1972), does not reveal that such an element of proof was present, much less essential to the result. On the contrary, the decision identifies the "scheme" as the important element in a three-party situation.
"*** The critical requirement here is that the scheme contemplate the receipt of money through the mail generated by means of false representations. That the student first pays for that which will enable him to make a subsequent false representation to his college does not affect the means-end relationship. That it is not the seller but the buyer who makes the false representation seems equally irrelevant. The reality is that the appellees receive money through the mail by means of assisting students to make false representations to universities.
"*** In a two-party, sender-receiver situation, the requirement of a 'scheme or device' offers no problem of proof; it is simply the intentional mailing-for-money transaction in which a false statement was sent. The Congressional purpose of imposing strict liability for even innocent falsehoods is thus not impeded by the reference to 'scheme'. In a three-party situation--not, so far as we can discern, considered during the Congressional deliberations--the phrase 'scheme or device' becomes important. Encyclopedia Brittanica could not be enjoined from distributing its sets simply because a student purchaser submits its essay on Jefferson as his own term paper. For the statute to apply to a sender, where a third party is
deceived by a recipient, the sender must contemplate a 'scheme' which involves a misrepresentation based on the materials which he sends. In such a case, therefore, the intent of the seller, in the sense of his knowing cooperation in a scheme, is, by the words of the statute, a necessary prerequisite for injunctive remedy--a prerequisite obviously present in this case." (pp. 1279-80).
The conclusion reached by the court in the last sentence above quoted may be applied with equal force to the factual situation in the present case.
Lastly, Respondent argues that Judge Sobernheim's decision, if permitted to stand, would establish a rule under which the seller of such products as hair pieces, elevator shoes and bosom enhancers would also be barred from using the mails because these products are intended to create a false impression upon third parties. In our modern society there is very little lacking in the way of commercial response to human vanity. From the cradle to the grave the people of this country are exposed to a philosophy which emphasizes the desirability of physical attractiveness. The list of products commercially available to enhance physical appearance is endless. The old adage that all is fair in matters of the heart can hardly be said to be extendable, however, to matters directly related to the higher educational grading systems of our nation. Respondent's concern about the impact of the decision stretches the holding of United States v. International Term Papers, Inc., supra, out of all proportion.
The exceptions to the Initial Decision of Judge Sobernheim are disallowed. That decision is affirmed and a remedial order under 39 U.S.C. § 3005 is being issued contemporaneously herewith.
11/11/74
Lussier, Edward F.
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