In the Matter of the Complaint Against BEATRICE BAYLEY, INC. P. O. Box 55 at Sterling, PA 18463-0055 and KURT SCHNEIDER P.S. Docket No. 22/113; 08/01/86 Cohen, James A. APPEARANCES FOR COMPLAINANT: SandraC. McFeeley, Esq. Richard T. Cooper, Esq. Timothy J. Mahoney, Esq. Consumer Protection Division Law Department United States Postal Service Washington, D.C. 20260-1100 APPEARANCE FOR RESPONDENTS: Edward L. Norwind, Esq. Paulson, Nace & Norwind 1814 N Street, N. W. Washington, DC 20036-2404
Complainant has filed a Petition to Reopen Hearing in which it requests that the Judicial Officer take additional evidence prior to issuance of the final agency decision. According to Complainant, information has been discovered which demonstrates the existence of a substantial threat of evasion of any final order that may be issued in this proceeding. Complainant contends it would present evidence at a reopened hearing that would establish that two individuals who formerly participated in Respondents' promotion are now operating a similar promotion. Complainant maintains that if its proffered evidence is made a part of the record, these individuals will be bound by the Cease and Desist Order issued in this proceeding. Respondents have filed their opposition to the Petition. Respondents argue that Complainant raises a new issue against new promoters of a new scheme which must be pursued in a new case by filing a new Complaint. For the reasons stated hereafter, Complainant's Petition is denied.
This matter is presently before the Judicial Officer on appeal by both parties from an Initial Decision of an Administrative Law Judge. While the Judicial Officer may order a hearing reopened for the presentation of additional evidence (see 39 C.F.R. § 952.26), such action will not ordinarily be taken when, as here, a hearing has already been held and the matter is on appeal. Midwest Health Research, P.S. Docket No. 6/80 (P.S.D. Nov. 21, 1978); see, Oriental Nurseries, P.S. Docket No. 8/24 (P.S.D. Oct. 7, 1980); Jay Norris Corp., P.S. Docket No. 4/152 (P.S.D. June 21, 1976); cf. Original Cosmetic Products, Inc., P.S. Docket No. 4/120 (P.S.D. Aug. 23, 1976), aff'd Original Cosmetic Products, Inc. v. Strachan, 459 F. Supp. 496 (S.D.N.Y. 1978), aff'd 603 F.2d 214 (2d. Cir. 1979). The consideration of new issues on appeal is generally disruptive to the litigation process and may be prejudicial to the opposing party. Further, there are reasonable alternative courses of action available to Complainant which will assure that the public interest is protected.
In this proceeding Complainant has not shown that a compelling reason exists to reopen the hearing at this stage of the proceeding. Complainant has not established that the evidence it now seeks to introduce could not have been presented at the hearing before the Administrative Law Judge, or that the public interest will be substantially prejudiced if the issues it raises are litigated in a new proceeding. Thus, the desire to try the new issues in this proceeding does not outweigh the disruption to the process and the prejudice to the present Respondents.
Complainant's reference to the legislative history of the statutory amendment granting the Postal Service Cease and Desist authority */ does not support a contrary result. Although Congress intended to deter evasion of 39 U.S.C. § 3005 orders, there is no indication it expected multiple hearings or the piecemeal presentation of evidence before the issuance of the final agency decision. Accordingly, Complainant's Petition to Reopen Hearing is denied.
*/ Mail Order Consumer Protection Amendments of 1983, P.L. 98-186, 97 Stat. 1315.