In the Matter of the Petition by ) July 25, 1984 ) MR. JACOB STEINMAN ) Publisher and Editor ) P. O. Box 3693 ) San Francisco, CA 94119-3693 ) ) Revocation of Second-Class Mail ) Privileges for "CITY SPORTS MAGAZINE" ) P.S. Docket No. 18/84 APPEARANCE FOR PETITIONER: Jacob Steinma Publisher & Editor P. O. Box 3693 San Francisco, CA 94119-3693 APPEARANCE FOR RESPONDENT: Stanley F. Mires, Esq. Law Department United States Postal Service Washington, DC 20260-1143 Cohen, James A.
By Initial Decision dated June 22, 1984, served on Respondent on June 27, 1984, an Administrative Law Judge affirmed the decision of the Director, Office of Mail Classification, United States Postal Service, which proposed to revoke second-class mail privileges for the publication "City Sports Magazine." In a letter addressed to the Administrative Law Judge dated June 29, 1984, Petitioner stated he planned to file an appeal and expressed his belief that the section of the Domestic Mail Manual (DMM) on which Respondent relies in proposing to revoke the second-class mail privileges for Petitioner's publication is unconstitutional. Petitioner has filed no additional appeal documents.
While Petitioner's letter does not comply with the format expected of an appeal to the Judicial Officer (see 39 C.F.R. § 954.20), it was filed within the appeal period and contests the constitutionality of the provision of the DMM on which the Initial Decision is based. Petitioner's letter will therefore be considered to be a timely filed appeal requiring review of the entire record by the Judicial Officer (see 39 C.F.R. § 954.15). Having conducted such review and having found no error of fact or law requiring a modification or reversal of the Administrative Law Judge's decision in favor of Respondent, no reply brief from Respondent has been requested.
Respondent's proposal to revoke the second-class mail privileges of the publication "City Sports Magazine" was based on the requirement of § 422.6d of the DMM, which states: " e ffective October 1, 1982, the publication must have a legitimate list of persons who request the publication, and 50 percent or more of the copies of the publication must be distributed to persons making such requests." The Administrative Law Judge interpreted the words "copies of the publication" to mean total copies printed (I.D. at p. 6). He also interpreted the language of the section to mean that a request for multiple copies of a publication is a single request (I.D. at pp. 6, 7). In accordance with these interpretations the Administrative Law Judge concluded that Petitioner was not in compliance with the 50% requirement of § 422.6d. The Administrative Law Judge's interpretation of § 422.6d is correct and his conclusion that Petitioner is not in compliance with that provision is supported by the record.
The record reflects that a District Court decision finding § 422.6d unconstitutional has been issued in The Enterprise, Inc. v. Bolger, Civil No. 4-83-108 (E.D. Tenn. Dec. 22, 1983, Recon. denied May 24, 1984), and that Respondent has begun the necessary steps to file an appeal from the Court's decision. Petitioner states he did not expect the Initial Decision to be issued while The Enterprise, Inc. case was pending. Although an administrative proceeding may be stayed during the pendency of a court proceeding involving some of the same issues, such a stay is not required. Thus, the issuance of the Initial Decision in this case was not improper.
Petitioner contends, as the Court in The Enterprise, Inc. found, that DMM § 422.6d is unconstitutional. Neither the Administrative Law Judge nor the Judicial Officer is authorized to determine the constitutionality of statutes or the validity of Postal Service regulations. See 39 C.F.R. § 224.1(c)(4)(iii) and (iv); Frank Martineau, P.S. Docket No. 17/37 (P.S.D. July 18, 1984). Thus, in the absence of more definitive court authority, the appeal from the proposal to revoke the second-class mail privileges for "City Sports Magazine" cannot be sustained.
Accordingly, Petitioner's appeal from the Initial Decision of the Administrative Law Judge proposing to revoke the second-class mail privileges of "City Sports Magazine" is denied.