In the Matter of the Petition by ) May 13, 1976 ) THE GEORGE WASHINGTON UNIVERSITY ) Office of Academic Publications ) Washington, D.C. 20006 ) ) Proposed Revocation of Second-Class ) Mail Privileges for "GEORGE ) WASHINGTON UNIVERSITY BULLETIN" ) P.S. Docket No. 3/142 APPEARANCES FOR PETITIONER: Kenneth C. Bass, III, Esq. Reasoner, Davis & Vinson Washington, D.C. APPEARANCES FOR RESPONDENT: Arthur S. Cahn, Esq. Law Department United States Postal Service Washington,D.C. Lussier, Edward F.
The case is before the undersigned on Petitioner's appeal from the Initial Decision of Chief Administrative Law Judge William A. Duvall upholding the proposed revocation of second-class mail privileges for the "George Washington University Bulletin." The basis for the decision was the conclusion that the publication is not a periodical publication within the meaning of 39 U.S. Code ??4351 and 4354, within the meaning of Section 132.211 of the Postal Service Manual, and within the meaning of that term as it has been defined in Houghton v. Payne, 194 U.S. 88 (1904).
Petitioner's exceptions to the Initial Decision consist of four parts, the first of which is the contention that the Chief Administrative Law Judge decided the case on a ground which was not before him. Petitioner's position is that the only question before Judge Duvall was whether the separate issues of the Bulletin were complete in themselves. He rejected this contention, and found the publication deficient under the Houghton v. Payne definition of a periodical publication, which definition was also spelled out in the notice of proposed revocation. Not only was the issue not so limited by the parties at the opening of the hearing, but the examination and cross-examination encompasses numerous instances wherein the scope of the issue obviously embraces the total issue of whether the publication is a "periodical publication" including the question of whether the publication contained a variety of original articles (e.g. Tr. 35, 46, 59, 60). I agree with Judge Duvall that the issue is not as restricted as Petitioner contends. See also Shepard's Citations, Inc., P.S. Docket No. 1/88 (Initial Decision, February 1974; final Postal Service Decision, October 1974).
In connection with this first contention on limitation of the issues, Petitioner would find further error in Judge Duvall's ruling precluding examination of Respondent's mail classifier with respect to her opinions regarding whether certain unrelated publications were "periodicals." Petitioner makes a point of emphasizing that it was not attempting by such cross-examination to show discrimination but rather to determine the meaning of "periodical" and "article" as interpreted by the Postal Service. However, such interpretations are to be found in court decisions and in the formal decisions of the Administrative Law Judges and Judicial Officer of the Postal Service and not in the opinions of individual classifiers nor by reference to the thousands of other publications enjoying a grant of second-class mailing privileges, some of which are later found to be improvidently granted. The applicable law and regulations have not changed and those cases reaching the adjudicative stage have reflected, with rare arguable exception, a uniform consistency. That judgment is involved in evaluation of the particular publication under consideration in a given case only serves to highlight the fact that decision making has not been reduced to a mathematical certainty. This by no means equates with the degree of subjectiveness in application which might be termed constitutionally vague. The type of examination precluded by the Chief Administrative Law Judge would not have served to resolve the issue in the case and his ruling with respect thereto was proper. Petitioner's exceptions contained in its first general contention are accordingly disallowed.
Petitioner's second contention attacks the conclusion that the publication fails to meet the Houghton v. Payne requirement for a variety of original articles and in effect also the further subsidiary findings that such articles as did exist were not a substantial part of the publication, contained an excess of repetition and updating and lacked connection in the series (Initial Decision, page 18). Both the standard applied by Judge Duvall and the applicability of it to Petitioner's publication find support in the record and in the precedent of previous decisions. See for example the following college bulletin cases and the cases cited therein: Board of Supervisors of Louisiana University & Agricultural and Mechanical College, P.S. Docket No. 3/191; Pacific Union College, P.S. Docket No. 3/178; University of Oregon, P.S. Docket No. 3/110; New York University, P.S. Docket No. 4/19; Northwest Missouri State University, P.S. Docket No. 3/42; American University, P.S. Docket No. 4/7. Petitioner's second exception is accordingly disallowed.
Petitioner's third exception relates to its contention, rejected by Judge Duvall, that its publication is entitled to second-class mail privileges as a publication not subject to the Houghton v. Payne rule, being a publication of a regularly incorporated institution of learning. However, no such exception exists and Petitioner's efforts to bring such publications within the "nondescript" transportation guide cases must fail as did similar efforts in the cases cited above. The statutory provisions in former title 39 of the United States Code carried over into the Postal Service Manual while giving preferential treatment in various respects to educational institutions do not provide a basis for exempting the publications here in question from the Houghton v. Payne standard.
Petitioner's last exception which relates to the failure of Respondent to produce for cross-examination Mr. Darwin Sharp, the Director of the Mail Classification Office, was adequately dealt with in the Initial Decision. For the reasons given and for the additional reasons stated herein with respect to Petitioner's contention regarding the limited scope of cross-examination of Respondent's mail classification witness, I perceive no deprivation of due process in Petitioner's inability to examine Mr. Sharp.
Petitioner's exceptions are disallowed and the Initial Decision is hereby affirmed.