In the Matter of the Petition by ) June 20, 1985 ) DAVID A. ROSE, PUBLISHER ) 127 Ellis Street, Suite 230 ) San Francisco, CA 94102-2109 ) ) Revocation of Second-Class Mail ) Privileges for "THE SAN FRANCISCO ) AND BAY AREA GUIDE" ) P.S. Docket No. 18/76 APPEARANCE FOR PETITIONER: David A. Rose 127 Ellis Street Suite 230 San Francisco, CA 94102-2109 APPEARANCE FOR RESPONDENT: Stanley F. Mires, Esq. Law Department United States Postal Service Washington, DC 20260-1143 Cohen, James A.
Petitioner has appealed from the Initial Decision of an Administrative Law Judge which affirmed the decision of the Director, Office of Mail Classification, United States Postal Service (hereafter Respondent), proposing to revoke second-class mail privileges for the publication "San Francisco and Bay Area Guide." While Petitioner concedes the findings of fact in the Initial Decision are correct, it challenges the applicability of the section of the Domestic Mail Manual (DMM) on which Respondent relies in proposing to revoke the publication's second-class mail privileges and argues that the DMM regulation is unconstitu tional. Respondent has filed a Reply Brief opposing Petitioner's appeal.
Petitioner's appeal was contained in a letter addressed to the Administrative Law Judge subsequent to the issuance of the Initial Decision. 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 applicability and 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).
Respondent's proposal to revoke the second-class mail privileges of the publication "San Francisco and Bay Area Guide" 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 distri buted 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. 5). 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 p. 6). 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. See Jacob Steinman, P.S. Docket No. l8/84 (P.S.D. July 25, l984).
Petitioner challenges the applicability of the regulations, asserting they were written for a different type of publication. However, he does not indicate how this entitles his publication to second-class mail privileges. In order for a publication to be eligible for second-class mail privileges it must comply with Postal Service regulations. Respondent sought second-class mail privileges as a requester publication and therefore must comply with the regulations applicable thereto, even though they may have been written for a different type of publication. Accordingly, this argument is not persuasive.
Petitioner argues that a District Court decision finding second-class mail regulations 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). Respondent has appealed the Court's decision. Petitioner asks that this administrative proceeding be stayed during the pendency of the appeal. While such a stay is not required this matter has been allowed to remain on the docket for a substantial period of time with no action having been taken. Since there is no indication that a court decision is imminent, it is proper to proceed to decision at this time. If the parties wish to jointly stipulate that the Judicial Officer's decision will not take effect until after an appellate court decision is issued, they are free to do so.
Petitioner contends, citing The Enterprise, Inc., supra that DMM § 422.6d is unconstitutional. Neither the Administrative Law Judges 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); Jacob Steinman, supra; 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 "San Francisco and Bay Area Guide" 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 "San Francisco and Bay Area Guide" is denied.