In the Matter of the Complaint Against VITAHAIR Box 1344 and Box 1347 at Hallandale, Florida 33009 P.S. Docket No. 6/76; 01/26/79 Cohen, James A. APPEARANCE FOR COMPLAINANT: H. Richard Hefner, Esq. Law Department U.S. Postal Service Washington, D.C. 20260 APPEARANCE FOR RESPONDENT: Mr. Joel Heim 1420 Diplomat Parkway Hollywood, Florida 33019
By Order on Motion for Extension and Postal Service Decision of October 10, 1978, Respondent's request for an additional extension of the period in which to file an appeal from the Initial Decision of Administrative Law Judge Quentin E. Grant was denied and a final decision and remedial order were issued. The return portion of the remedial order was stayed on October 20, 1978, when a telegram was received from Respondent expressing its intent to file a motion for reconsideration.
By motion dated October 20, 1978, Respondent requested reconsideration of the order and decision of October 10, 1978. On November 6, 1978, Complainant filed a reply to the Motion for Reconsideration. On November 20, 1978, Respondent filed (1) a motion to make oral argument, (2) amended motion for reconsideration, (3) a response to Complainant's reply to Respondent's motion for reconsideration, and (4) a motion to reverse the Initial Decision and grant summary judgment to Respondent and to issue permanent injunction against mail stops issued in The Doctor's Diet Plan and Vitahair cases. On December 7, 1978, Complainant filed its opposition to the motion to make oral argument and the amended motion for reconsideration. Thereafter Respondent filed its rebuttal.*/
The Order on Motion for Extension and Postal Service Decision to which Respondent's various motions are directed concludes that Respondent did not file its appeal within the appeal period as extended on two occasions, and that good cause had not been shown for a further extension. Accordingly the decision held that the Initial Decision became the final agency decision in accordance with 39 C.F.R. § 952.24(a). The only issues which should properly be considered on reconsideration are whether the appeal period had expired, and whether the decision denying Respondent's requested extension is erroneous as a matter of fact or law. Nonetheless, Respondent also raises issues which go to the merits of the controversy and which should have been the subject of a timely appeal. In view of the state of the record these issues, while not ordinarily proper for consideration at this stage of the proceeding, will be decided in this decision. However issues which relate solely to The Doctor's Diet Plan have not been considered in connection with the decision in this case. The motions filed by Respondent and the issues raised therein are considered in the order filed.
I
The grounds listed by Respondent in its brief in support of its Motion for Reconsideration are:
1. "OUR RIGHT TO THE EXHIBITS."
2. DILIGENT PURSUIT OF INFORMATION UNDER FOIA."
3. "THE DENIAL OF INFORMATION BEFORE AND AT TRIAL AND LATER GIVING INFORMATION IS PREJUDICIAL TO DEFENSE AND SOLID GROUNDS FOR REVERSAL."
4. "INTERPRETATION OF TWO LAW CASES CITED IN ORDER."
5. "OUR RIGHT TO REVIEW COMPLAINTS OF COMPLAINING PERSONS."
6. "DENIAL OF EXPERT WITNESS TO DEFENSE."
7. "FAILURE OF POSTAL SERVICE TO PROVE COMPLAINT."
These contentions are considered in the order presented.
1. "OUR RIGHT TO THE EXHIBITS."
Respondent claims it has been deprived of the exhibits and that the appeal period should have been extended until some time after it has an opportunity to review the exhibits. This contention was previously addressed in the Postal Service Decision dated October 10, 1978. In that decision it was pointed out that the exhibits were available to Respondent at all reasonable times and thus Respondent was in no way deprived of its right to examine the exhibits. Respondent not only had an opportunity to examine the exhibits at the hearing but its representative, Mr. Heim, took the stand and personally examined and testified with regard to certain of the exhibits (Tr. 103-121). Requests for copies of the exhibits could have been made at the hearing, but were not. Subsequent to the hearing the exhibits could have been examined by Respondent at any time during normal working hours at the office of the Docket Clerk (see 39 C.F.R. § 952.4, 952.32, 952.33). On request to the Docket Clerk copies of any exhibits which could be reproduced would have been furnished to Respondent. Although Respondent could have examined the exhibits and obtained copies of those which could be reproduced, it did not seek the exhibits until ten (10) days prior to the expiration of the already twice-extended appeal period. Under this set of circumstances Respondent has not shown good cause for an extension of the appeal period.
2. "DILIGENT PURSUIT OF INFORMATION UNDER FOIA."
This assertion was also addressed in the Postal Service Decision. Respondent's argument in support of its Motion for Reconsideration does not persuade me that the decision was erroneous and that Respondent's Freedom of Information Act requests should serve as grounds for an extension of the appeal period. Respondent has not shown that it diligently pursued its Freedom of Information Act requests, that the information sought was relevant and material to the issues in controversy in this proceeding or that Respondent was in any way injured by its failure to obtain the information sought. Moreover, proceedings before the Judicial Officer are not the proper forum to redress what may be wrongs under the Freedom of Information Act. The Freedom of Information Act and implementing regulations establish remedies for violations of the Act. Those remedies do not include a stay of this proceeding. Thus on reconsideration there is no basis for reversing the prior decision.
3. "THE DENIAL OF INFORMATION BEFORE AND AT TRIAL AND LATER GIVING INFORMATION IS PREJUDICIAL TO DEFENSE AND SOLID GROUNDS FOR REVERSAL."
Respondent's argument here is principally a rehash of its position that the appeal period should have been extended until the Freedom of Information Act requests had been resolved. Respondent did not establish at the time of hearing (Tr. 124-125) nor did it establish in its previous or pending motions that it was hampered in its defense or deprived of a fair hearing because it was unable to obtain the information it sought under the Freedom of Information Act. Therefore this contention presents no basis for extending the appeal period.
4. "INTERPRETATION OF TWO LAW CASES CITED IN ORDER."
Respondent points out factual differences between the cases cited in the Postal Service Decision, NLRB v. Sears Roebuck & Co., 421 U.S. 132 (1974); Renegotiation Board v. Bannercraft Co., 415 U.S. 1 (1973), and this case. Certainly there are factual distinctions but these distinctions are not legally meaningful. The principle stated in the cited cases is equally applicable to this case, and probably more so, since in this case Respondent's interests must be balanced against the interests of the public. Accordingly I find no improper interpretation of the cited cases.
5. "OUR RIGHT TO REVIEW COMPLAINTS OF COMPLAINING PERSONS."
Respondent claims it has been deprived of a constitutional right to confront its accusers. Complainant clearly and correctly points out that this is not a criminal proceeding and there are no accusers within the meaning of the Sixth Amendment to the Constitution. The complaining party in this proceeding is the Postal Service and its evidence was presented at the hearing before Administrative Law Judge Grant. Respondent was given full opportunity to cross examine the Postal Service witnesses and to present its own evidence. If complaining persons do exist their testimony was not presented at the hearing and Respondent has not been prejudiced by the failure of the Postal Service to release their names. Further the propriety of releasing the names of complaining persons in response to a Freedom of Information Act request is not a matter for determination by the Judicial Officer. Neither does it serve as a basis for extending the time periods in this proceeding.
6. "DENIAL OF EXPERT WITNESS TO DEFENSE."
Respondent contends the Initial Decision should be reversed because it was not granted a postponement of the hearing due to the illness of an expert witness. The expert witness referred to by Respondent is identified as a Mr. Seymour Rosen.
At the beginning of the hearing before Administrative Law Judge Grant, Respondent sought a postponement on the grounds its expert, Seymour Rosen, had suffered a heart attack and was either in the hospital or had just been released and was unable to testify at the hearing (Tr. 3-4). Judge grant did not grant a postponement. This ruling was proper when considered in connection with the representations made by Respondent in its motion to change the place of hearing.
On March 29, 1978, a motion was received from Respondent to have the place of hearing changed from Washington, D.C., to either Miami or Ft. Lauderdale, Florida. Attached to the motion was a list of witnesses who it was stated would testify at the hearing. The list contained 58 names including eight (8) doctors. Mr. Rosen's name does not appear on this list. Had Respondent intended to call Mr. Rosen as a witness it seems reasonable it would have included Mr. Rosen on the list containing the other 58 potential witnesses. On these facts I cannot conclude that Respondent had any intention to call Mr. Rosen as a witness. Moreover, Respondent has made no showing that it attempted to obtain the services of any of the persons who were listed as potential witnesses. Thus Respondent was not denied the use of expert witnesses at the hearing.
7. "FAILURE OF POSTAL SERVICE TO PROVE COMPLAINT."
Respondent argues that the Complainant has not proved its case because it has not shown that Respondent "willfully misrepresented" its product or that there has been any injury as the result of the use of the product. In a proceeding under 39 U.S.C. § 3005 it is not necessary to establish an intention to deceive in order to find a violation of the statute. In order for Complainant to establish a violation of the statute it is sufficient to establish that Respondent is engaged in conducting a scheme for obtaining money or property through the mails by means of materially false representations. Based upon my independent review of the entire record Complainant has sustained its burden of proof.
Although not listed as separately numbered contentions, Respondent also argues that the Judicial Officer "has granted motions for continuances on several occasions" because the Postal Service failed to respond to its Freedom of Information Act requests, but denied further requests for the same reason; granted a brief extension in The Doctor's Diet Plan case because Respondent did not have copies of the exhibits, but refused to grant an extension on such grounds in this case; and finally, Respondent was not given a warning of a final appeal date in this case whereas such a warning was given in The Doctor's Diet Plan case.
Respondent was given extensions until it became obvious that Respondent's purpose in seeking such extensions was to delay final action, and not a bona fide need for additional time in which to prepare its appeal papers. The consideration and leniency shown to Respondent in connection with its initial requests for extensions are not precedent for allowing further extensions. Respondent was granted two extensions of time which added 90 days to the period in which an appeal could be filed. The order granting the second extension of time informed Respondent that a further extension would not be granted absent a showing of extreme good cause. When Respondent chose to seek a further extension rather than filing its appeal, it assumed the risk its request for extension would not be granted and that a final decision would be issued.
Respondent had ample opportunity to file its appeal within the extended appeal period. No valid basis for a further extension and no error in the Initial Decision has been shown in Respondent's Motion for Reconsideration.
II
In these motions Respondent adds to its argument some 37 additional points which it contends support its position. Many of these arguments relate only to The Doctor's Diet Plan and will not be considered here. Some of these arguments have already been considered, either in the Postal Service Decision of October 10, 1978, the Decision on Petition for Supplemental Order, or previously in this decision, and no useful purpose will be served by a further discussion at this time. The points raised by Respondent will be addressed in the order and by the number presented.
8. "THE GOVERNMENT EXPERT WITNESS DR. VINCENT CORDARO PROVIDED FALSE INFORMATION TO JUDGE GRANT. THIS FALSE INFORMATION LED JUDGE GRANT TO MAKE A FAULTY DECISION WHICH IS GROUNDS FOR REVERSAL. THIS WITNESS'S CREDENTIALS ARE INSUFFICIENT TO MAKE HIM AN EXPERT ON WEIGHT LOSS."
This contention relates only to The Doctor's Diet Plan, P.S. Docket No. 6/77, and provides no basis for relief in this proceeding.
9. "JUDGE GRANT'S CONDUCT OF THE CASE BEFORE AND DURING TRIAL INTIMIDATED AND CUT SHORT DEFENSE. THEREBY DEPRIVING US OF A FAIR TRIAL."
Based on a review of the entire record there is no merit to this contention. Respondent was given a full opportunity to present its case.
10. "JUDGE GRANT GAVE THE DEFENSE INSUFFICIENT TIME TO PREPARE THESE CASES FOR TRIAL."
The facts relative to this contention are summarized briefly. This proceeding was initiated by the filing of a Complaint on March 7, 1978. In accordance with the Rules of Practice in Proceedings Relative to False Representation and Lottery Orders, 39 C.F.R. Part 952, a notice of hearing dated March 8, 1978, was issued scheduling the hearing for April 10, 1978, in Washington, D.C. The notice of hearing was received by Respondent on March 13, 1978. On Respondent's motion, docketed on March 29, 1978, the place of hearing was changed from Washington, D.C., to Miami, Florida. On April 6, 1978, Respondent's motion for continuance seeking a 30-day postponement of the hearing date was docketed. The presiding officer found that good cause had been shown for a continuance of 16 days rather than the 30 days requested, and an order continuing the hearing to April 26, 1978, was issued. At the beginning of the hearing Respondent alleged it had insufficient time to prepare its defense. It contended that due to the illness of its alleged expert Seymour Rosen (Tr. 3) and the unavailability of Dr. Stanley A. Spotz (Tr. 6) it could not adequately present its case.
Respondent requested a 30-day continuance and received a 16-day continuance. Based on the representations in Respondent's motion the denial of the additional 14 days was not improper. Respondent had a total of 43 days in which to prepare the for hearing. Since the representations being questioned in this proceeding were those made by Respondent, Respondent should have had no difficulty in obtaining supporting evidence for its product. Respondent listed 58 persons as potential witnesses but did not attempt to show that any of those persons had been contacted and were unavailable to testify at the hearing. Rather Respondent relies on the unavailability of Mr. Rosen and Dr. Spotz, neither of whom was listed as a potential witness. Their lack of availability raised at the beginning of the hearing did not justify a further continuance without a showing that with reasonable effort other witnesses who had been listed as potential witnesses were not available to testify at the hearing. No such showing was made.
Under the circumstances of this case I cannot conclude that a continuance of the hearing should have been granted and that Respondent did not have sufficient time to prepare for hearing. The ruling of the presiding officer was reasonable and consistent with the requirements of 39 C.F.R. Part 952.
11. "THESE CASES CONTAIN THE WRONG HEADING."
This issue was decided in the Postal Service Decision on Supplemental Order.
12. "INSPECTOR BROADWATER'S TESTIMONY CONTAINS MANY ERRORS. HIS TESTIMONY FAILS TO SHOW A TEST PURCHASE HAS BEEN COMPLETED WHICH IS REQUIRED TO MAKE CHARGES STICK."
It may be that the Inspector incorrectly testified that the advertisement serving as the basis for the test purchase was clipped from the magazine "Bronze Thrills." However the testimony of Respondent's witness establishes that Respondent's advertisement was placed in other magazines, has been placed in the magazine "Bronze Thrills," and at the time of hearing was currently running in various magazines (Tr. 103-121). This testimony also establishes that the product received in evidence was transmitted through the mail in the mailing container received in evidence (Tr. 118-119). The testimony of the Inspector taken with the other evidence of record establishes that he initiated the test purchase from an advertisement in a magazine and in response thereto received the product Vitahair (Tr. 7-45) from Respondent (Tr. 103-121). This unrebutted evidence establishes the existence of a proper test purchase and supports a finding that Respondent is engaged in the conduct of a scheme for obtaining money through the mails by means of false representations. On these facts there is no basis for questioning the Initial Decision.
13. "THE POSTAL SERVICE HAS FAILED TO PROVE THESE CASES BY SUBSTANTIAL EVIDENCE - THE TRUE TEST SINCE THE BURDEN OF PROOF IS ON THE POSTAL SERVICE SINCE A GENERAL DENIAL WAS MADE."
A review of the entire record reveals that the Complainant has fulfilled its burden of proving the existence of the charges alleged in paragraph III(a), (c) and (d) of the Complaint. The conclusions of the Initial Decision are supported by substantial evidence.
14. "THE POSTAL SERVICE HAS MADE THE DEFENSE 'RESORT TO ORGANIZATION' WHICH IS GROUNDS FOR A SUMMARY JUDGMENT."
The record reveals no grounds for a judgment in Respondent's favor.
15. "BOTH ADJUDICATING POWER AND PROSECUTING POWER LIE IN THE HANDS OF THE GENERAL COUNSEL. THE LACK OF SEPARATION HAS BEEN HELD AS GROUNDS FOR SUMMARY JUDGMENT."
In connection with cases alleging violations of 39 U.S.C. § 3005, the prosecuting power lies with the General Counsel and the adjudicating power lies with the Administrative Law Judges and the Judicial Officer. There is a distinct separation of functions which is detailed in 39 C.F.R. Part 952.
16. "OUR 4th, 5th, 6th, 7th, 8th, & 9th AMENDMENT RIGHTS HAVE BEEN VIOLATED."
The record does not reveal a violation of Respondent's constitutional rights.
17. "THE POSTAL SERVICE IS ATTEMPTING TO BREAK A CONTRACT BETWEEN TWO PARTIES WITHOUT DUE PROCESS."
The Postal Service is not attempting to break a contract between two parties without due process of law. The Postal Service is attempting to enforce the requirements of 39 U.S.C. § 3005.
18. "WHAT ABOUT THE RIGHT OF A LADY WHO SAYS SHE LOST 57 LBS. AND WANTS TO ORDER PRODUCT FOR A RELATIVE AND REORDER FOR HERSELF? IS THE POSTAL SERVICE GOING TO TELL HER THE PRODUCT IS INEFFECTIVE?"
The Postal Service is directed by 39 U.S.C. § 3005 to issue appropriate orders when there is satisfactory evidence of a violation of the statute. Such evidence has been presented and the issuance of a mail stop order is appropriate.
19. "DENIAL OF INFORMATION REQUESTED UNDER THE FREEDOM OF INFORMATION ACT BEFORE TRIAL."
This matter has been previously addressed. The Judicial Officer has no authority under the Freedom of Information Act.
20. "DENIAL OF INFORMATION REQUESTED UNDER THE FREEDOM OF INFORMATION ACT AFTER TRIAL BUT BEFORE DECISION."
This matter has been previously addressed.
21. "THE BEST EVIDENCE RULE WAS NOT FOLLOWED."
It is not clear what is meant by this assertion. The overwhelming weight of the evidence supports the conclusions reached in the Initial Decision.
22. "HAD THE POSTAL SERVICE PROVIDED US ALL INFORMATION REQUESTED UNDER FREEDOM OF INFORMATION ACT, WE WOULD HAVE BEEN ABLE TO IMPEACH THE TESTIMONY OF DR. CORDARO AND INSPECTOR BROADWATER AT TRIAL. THIS OPPORTUNITY WAS DENIED."
Contentions relating to the Freedom of Information Act have already been discussed. Respondent has made no showing that the information it seeks under the Freedom of Information Act would in any way tend to impeach the testimony of Inspector Broadwater. Dr. Cordaro did not testify in this case.
23. "THERE HAS BEEN NO TYING IN BETWEEN DR. SCHWEITZER PILLS AND THE DR. DIET PLAN."
This contention relates only to The Doctor's Diet Plan, P.S. Docket No. 6/77, and provides no basis for relief in this case.
24. "POSTAL SERVICE DENIED INDEXES TO CASES - CONTRARY TO PROVISIONS IN FOIA ACT WHICH SAY THEY MUST BE MADE AVAILABLE."
Contentions relating to the Freedom of Information Act have already been discussed.
25. "MAIL STOP CAUSES SEVERE MONETARY DAMAGE."
A mail stop order can certainly cause severe monetary losses. However it is the remedy provided by statute. As stated by the Court in Lynch v. Blount, 330 F.Supp. 689 at 693 (S.D. N.Y. 1971):
"If, in a given case such as the one now before us, the selling of some particular nostrum is the sole business in which plaintiff is engaged and the stop order will put him out of business, so much the better, if the proofs substantially support the finding that the false statements were made as a part of a scheme to defraud."
The findings and conclusions on which the order has been issued are supported by the evidence in the record.
26. "BENEFICIAL LAW CASES."
This contention is unclear.
27. "ALLEGED AD NEVER MENTIONS OBESITY, YET WORD OBESITY IS CONTAINED IN FIVE CHARGES. DR. HAIMES SITES DIFFERENCE BETWEEN OBESITY AND OVERWEIGHT."
This contention relates only to The Doctor's Diet Plan, P.S. Docket No. 6/77, and provides no basis for relief in this case.
28. "FDA APPROVED OF P.P.A. FOR WEIGHT LOSS."
This contention relates only to The Doctor's Diet Plan, P.S. Docket No. 6/77, and provides no basis for relief in this case.
29. "EXHIBITS RX5, 6 & 7 DO REFER TO P.P.A. JUDGE GRANT ERRORED."
This contention relates only to The Doctor's Diet Plan, P.S. Docket No. 6/77, and provides no basis for relief in this case.
30. "DR. EVANS, A GOVERNMENT WITNESS IN THE EVERYWOMANS WATER PILL CASE P.S. DOCKET NO. 6/113, SAID DIET PLAN VERY GOOD LOW CALORIE DIET THEREBY DIRECTLY CONTRADICTING DR. CORDARO GOVERNMENT WITNESS IN THIS CASE."
This contention relates only to The Doctor's Diet Plan, P.S. Docket No. 6/77, and provides no basis for relief in this case.
31. "THE SCARSDALE DIET WHICH IS EXTREMELY POPULAR AND EFFECTIVE, DOES NOT GIVE SPECIFIC AMOUNTS OF FOOD. THIS DIET WAS DEVISED BY A QUALIFIED DOCTOR."
This contention relates only to The Doctor's Diet Plan, P.S. Docket No. 6/77, and provides no basis for relief in this case.
32. "JUDGE GRANT'S FINDINGS OF FACT ARE ERRONEOUS."
The entire record has been reviewed and no errors in the Findings of Fact have been found.
33. "JUDGE GRANT'S CONCLUSIONS OF LAW ARE INCORRECT."
The entire record has been reviewed and no errors in the Conclusions of Law have been found.
34. "WEIGHT OF EVIDENCE IS CLOSE."
The evidence is not close in this case. The overwhelming weight of evidence supports the Findings of Fact and Conclusions of Law reached in the Initial Decision.
35. "IN THE HANOVER HOUSE - ROMAR SALES CASE EVIDENCE A STANDOFF - ISSUE CLOUDY OPPOSITE VIEW POINTS."
The evidence is not close in this case. The overwhelming weight of evidence supports the Findings of Fact and Conclusions of Law reached in the Initial Decision.
36. "REQUEST TO SUPPLEMENT RECORD DENIED."
The requests to hold the record open in this case were properly denied.
37. "QUALIFICATION OF DR. HAIMES
HIS VIEWS SUPPORTED BY 12 ARTICLES PUBLISHED IN LEADING MEDICAL JOURNALS PLUS 6 REFERENCES DR. HAIMES INTRODUCED WITH CHEMICAL STRUCTURE OF P.P.A. 2 CLINICAL LABORATORY TESTS SHOW P.P.A. EFFECTIVE IN WEIGHT LOSS."
This contention relates only to The Doctor's Diet Plan, P.S. Docket No. 6/77, and provides no basis for relief in this case.
38. "DR. HAIMES USES P.P.A. ON 40% OF PATIENTS OR A TOTAL OF OVER 40,000 PATIENTS. HE CAN USE ANYTHING - PRESCRIPTION OR NON-PRESCRIPTION DRUG BUT USES P.P.A. - 40% OF TIME."
This contention relates only to The Doctor's Diet Plan, P.S. Docket No. 6/77, and provides no basis for relief in this case.
39. "DR. HAIMES STATES QUANTITY OF 25MG P.P.A. EFFECTIVE ON DAILY BASIS. HE IS EMINENTLY QUALIFIED TO KNOW."
This contention relates only to The Doctor's Diet Plan, P.S. Docket No. 6/77, and provides no basis for relief in this case.
40. "DIFFERENCE BETWEEN OVERWEIGHT & OBESITY."
This contention relates only to The Doctor's Diet Plan, P.S. Docket No. 6/77, and provides no basis for relief in this case.
41. "ARTICLES AND LABORATORY TESTS INTRODUCED BY DR. HAIMES."
This contention relates only to The Doctor's Diet Plan, P.S. Docket No. 6/77, and provides no basis for relief in this case.
42. "MOTION TO SUPPLEMENT RECORD TO OBTAIN MATERIAL REQUESTED FROM F.D.A. DENIED. SHOWS BIAS TO DEFENSE."
This contention relates only to The Doctor's Diet Plan, P.S. Docket No. 6/77, and provides no basis for relief in this case.
43. "ADMINISTRATIVE PROCEDURES ACT SECTION 7(D) STATES 'THE TRANSCRIPT OF TESTIMONY AND EXHIBITS.... SHALL BE MADE AVAILABLE TO THE PARTIES'."
This contention has been previously discussed.
44. "IT IS LOGICAL TO ASSUME ANYONE SENDING FOR A DIET PROGRAM IS MOTIVATED TO LOSE WEIGHT."
This contention relates only to The Doctor's Diet Plan, P.S. Docket No. 6/77, and provides no basis for relief in this case.
The entire record has been carefully reviewed and Respondent's numbered arguments as well as its unnumbered arguments have been carefully considered. The evidence supports the findings and conclusions of the Initial Decision. Accordingly Respondent's motion to allow oral argument and its amended motion for reconsideration are denied.
III
Respondent has divided its argument into 13 sections and then "added several other points at the end." According to Respondent "each point in itself is sufficient to overturn the Initial Decision but when taken together their sheer weight and preponderance demolishes any possible opposing position." The 13 sections are:
1. "DID NOT RECEIVE EXHIBITS."
2. "POSTAL SERVICE REPLY TO INFORMATION REQUESTED UNDER F.O.I.A. WAS TOO LATE TO BE OF ANY USE IN FILING APPEAL."
3. "FAILURE TO MAINTAIN PROPER INDEXES ARE REQUIRED BY LAW UNDER F.O.I.A."
4. "CONDITION EXIST THAT ARE HIGHLY PREJUDICIAL TO DEFENSE."
5. "NAMES OF COMPLAINING PERSONS."
6. "THE DEFENSES' INHERENT RIGHT TO ALL CONSTITUTIONAL SAFEGUARDS."
7. "RESTRICTION OF DEFENSE AND INTIMIDATION OF DEFENSE BY JUDGE GRANT."
8. "DENIAL OF EXPERT WITNESS SEYMOUR ROSEN."
9. "VIOLATIONS UNDER F.O.I.A.
(A) ADJUDICATING AND PROSECUTING POWER REST IN SAME
PERSON
(B) THE DEFENSE HAS BEEN FORCED TO RESORT TO
ORGANIZATION."
10. "POSTAL SERVICE FAILED TO PROVE COMPLAINT FALSE MIS-REPRESENTATION AS A GENERAL DENIAL WAS MADE & BURDEN OF PROOF IS ON POSTAL SERVICE."
11. "DENIAL OF INFORMATION AT TRIAL."
12. "DR. CORDARO GAVE FALSE INFORMATION TO JUDGE GRANT. BASED ON FALSE INFORMATION JUDGE GRANT MADE FAULTY DECISION."
13. "INSPECTOR BROADWATER'S TESTIMONY CONTAINS MANY ERRORS. HIS TESTIMONY FAILS TO SHOW ELEMENTS NECESSARY TO PROVE TEST PURCHASE MADE."
Each of these arguments will be separately addressed.
1. "DID NOT RECEIVE EXHIBITS."
This matter has been previously addressed.
2. "POSTAL SERVICE REPLY TO INFORMATION REQUESTED UNDER F.O.I.A. WAS TOO LATE TO BE OF ANY USE IN FILING APPEAL."
This matter has been previously addressed.
3. "FAILURE TO MAINTAIN PROPER INDEXES ARE REQUIRED BY LAW UNDER F.O.I.A."
This matter has been previously addressed.
4. "CONDITION EXIST THAT ARE HIGHLY PREJUDICIAL TO DEFENSE."
Respondent alleges that Complainant has an unfair advantage over Respondent because Complainant's offices are on the 9th Floor of the Postal Service Building and the Office of the Administrative Law Judges is on the 10th Floor. Respondent also alleges that in the four cases brought against it, there appeared the "same Judge, the same prosecutor, Inspector Broadwater and pretty much the same witnesses" and these "men travel over the country together, eat together, sleep together and pretty much get to know one another," and "they know what they are going to say, how they are going to say it and pretty much the outcome of the case."
The proximity of the offices of the Administrative Law Judges and the Complainant is not improper nor does it establish the existence of any unfair advantage by Complainant. Neither does it establish any improper conduct on the part of the Administrative Law Judges or counsel. While the same counsel, Judge and Inspector may have appeared in the four cases brought against Respondent, there is no evidence to support Respondent's assertion that they had any improper contacts at any time.
In connection with this contention Respondent also challenges the testimony of Inspector Broadwater relating to the test purchase procedures used, and repeats its argument relating to the Freedom of Information Act. An examination of the evidence reveals that the elements of a statutory violation have been established partially through the testimony of Inspector Broadwater (Tr. 7-45) and partially through the testimony of Respondent's witness Mr. Heim (Tr. 104-122). The Freedom of Information Act issues have already been considered and will not be considered again.
5. "NAMES OF COMPLAINING PERSONS."
This contention has been previously discussed. It is pertinent to add here, however, that Respondent's argument makes it very clear that its Freedom of Information Act request for the names of complaining persons is not relevant or material to this proceeding.
6. "THE DEFENSES' INHERENT RIGHT TO ALL CONSTITUTIONAL SAFEGUARDS."
The record does not reveal any violation of Respondent's constitutional rights.
7. "RESTRICTION OF DEFENSE AND INTIMIDATION OF DEFENSE BY JUDGE GRANT."
There was no restriction on Respondent's right of cross examination in this case. To the extent this contention relates to The Doctor's Diet Plan, P.S. Docket No. 6/77, it will be considered in connection with the decision in that case.
8. "DENIAL OF EXPERT WITNESS SEYMOUR ROSEN."
This contention has been previously discussed in this decision. Neither Mr. Rosen nor his company, Monarch Pharmaceuticals, was listed as a potential witness in this case. Since Respondent's motion for change of place of hearing listed some 58 persons it intended to call as witnesses, and Mr. Rosen's name was not included in this list, Respondent's contention on appeal regarding Mr. Rosen's expected testimony is highly suspect. Further Respondent has not shown that with reasonable efforts it could not have obtained the services of any of the 58 persons listed.
9. "VIOLATIONS UNDER F.O.I.A.
(A) ADJUDICATING AND PROSECUTING POWER REST IN SAME PERSON
(B) THE DEFENSE HAS BEEN FORCED TO RESORT TO
ORGANIZATION"
There is a separation of the prosecuting and adjudicating functions in the false representation cases. The General Counsel's office, through the Consumer Protection Office, files the complaint and represents the Complainant in these proceedings. The Administrative Law Judges and the Judicial Officer, who are completely separate from the General Counsel's Office, hear and decide these cases in accordance with the Rules of Practice in Proceedings Relative to False Representation and Lottery Orders, 39 C.F.R. Part 952.
The propriety of the procedures established for Freedom of Information Act requests is not a matter for consideration by the Judicial Officer. Respondent's remedies under the Freedom of Information Act are prescribed by that statute and implementing regulations.
10. "POSTAL SERVICE FAILED TO PROVE COMPLAINT FALSE MIS-REPRESENTATION AS A GENERAL DENIAL WAS MADE & BURDEN OF PROOF IS ON POSTAL SERVICE."
Respondent's reliance on an internal procedure manual used by the Inspector does not establish that intent to deceive is an element necessary to prove a violation of 39 U.S.C. § 3005. Under the statute proof of intent to deceive is unnecessary. See Lynch v. Blount, 330 F.Supp. 689 at 693 (S.D. N.Y. 1971) which was decided under the current statutory requirements.
The elements necessary to prove a statutory violation in this case have been proved by uncontroverted evidence.
11. "DENIAL OF INFORMATION AT TRIAL."
This contention has been previously considered.
12. "DR. CORDARO GAVE FALSE INFORMATION TO JUDGE GRANT. BASED ON FALSE INFORMATION JUDGE GRANT MADE FAULTY DECISION."
This contention relates solely to The Doctor's Diet Plan, P.S. Docket No. 6/77, and provides no basis for relief in this proceeding.
13. "INSPECTOR BROADWATER'S TESTIMONY CONTAINS MANY ERRORS. HIS TESTIMONY FAILS TO SHOW ELEMENTS NECESSARY TO PROVE TEST PURCHASE MADE."
This contention has been previously considered.
At the conclusion of Respondent's numbered arguments it makes additional arguments which it says relate to this case. These arguments have already been considered under various other points. Respondent makes additional assertions in its rebuttal to Complainant's response to its motions. These assertions have been considered, but have not been found to provide a basis for relief.
On the basis of a review of the entire record the evidence establishes that Respondent is engaged in a scheme for obtaining money or property through the mails by making the representations alleged in Paragraph III (a), (c) and (d) of the Complaint which representations are materially false in fact in violation of 39 U.S.C. § 3005.
Accordingly Respondent's various motions are denied and Supplement A to Mail Stop Order No. 78-46 dated October 20, 1978, and Supplement A to Mail Stop Order No. 79-2 dated January 16, 1979, are vacated and Mail Stop Order Nos. 78-46 and 79-2 are placed in full force and effect.
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