March 21, 1989
In the Matter of the Complaint Against
PROFESSIONAL OPPORTUNITY MAGAZINE, INC.
7330 Bock Avenue
Stanton, CA 90680-2117
and
MARSHA MACINTOSH
7330 Bock Avenue
Stanton, CA 90680-2117
P. S. Docket No. 33/55
APPEARANCE FOR COMPLAINANT:
Geoffrey Drucker, Esq.
Consumer Protection Division
U.S. Postal Service
Law Department
Washington, DC 20260-6114
APPEARANCE FOR RESPONDENT:
Stanley Fleishman, Esq.
Fleishman, Fisher & Moest
2049 Century Park East
Suite 3160
Los Angeles, Ca 90067-3275
DECISION ON MOTION FOR SUMMARY JUDGMENT
Respondent moves for summary judgment dismissing the complaint on the ground that Complainant improperly and unconstitutionally seeks remedial order relief against Respondent because it is not, and was not at the time the complaint was filed, violating 39 U.S.C. §3005 having stopped use of the solicitation on which the complaint is based more than 3 months prior to the filing of the complaint and not having received money in response thereto since prior to the filing of the complaint.
The motion is based on facts asserted in the declaration of Respondent Marsha MacIntosh, executed March 3, 1989.
Complainant opposes the motion on the grounds (1) that discontinuance of the use of the solicitation on which the complaint is based is not a proper basis for summary judgment, citing CM/NA, P. S. Docket No. 20/33 (P.S.D. Aug. 29, 1986), and (2) that this administrative proceeding is not the proper forum for consideration of constitutional attack on the Postal Service’s construction of 39 U.S.C. §3005(a), citing Athena Products, Ltd., P. S. Docket No. 11/107, (P.S.D. Aug. 31, 1982).
For the purpose of the motion, Complainant has adopted the relevant facts set forth in Respondent MacIntosh’s declaration and the accompanying memorandum of law. With some necessary editorial changes and elimination of some statements of opinion, the following findings comport with the facts asserted by Respondent and adopted by Complainant.
FINDINGS OF FACT
1. Respondent Marsha MacIntosh is the president of Professional Opportunity Magazines, Inc., (POM) which publishes a magazine containing an extensive list of available engineering, scientific, medical, computer, research, academic and executive positions. The magazine also contains articles of interest to persons seeking employment.
2. POM solicits companies to advertise in the magazine. Since on or about the first week of November 1988, POM has been soliciting advertisements for the magazine using solely the solicitation attached as Appendix A to the answer to the complaint herein.
3. In the past, POM solicited advertisements using the solicitation attached as Exhibit 1 to the complaint herein. That form has not been used in any solicitation since some time in October 1988. POM receives no money as a result of the use of that form and has not received any money from the use of that form for a substantial period of time. POM has no intention of again using that form.
4. At the time the complaint herein was filed, POM was receiving money only form the utilization of the form attached as Appendix A to the answer herein.
5. On January 23, 1989, several days prior to the filing of the complaint, Respondent’s counsel advised the Postal Service that POM was using only the form attached as Appendix A to the answer.
6. The solicitation being used by Respondent at the time the complaint was filed (Appendix A to Ans.) reads in relevant part:
THIS IS NOT A BILL. THIS IS A SOLICITATION. YOU ARE UNDER NO OBLIGATION TO PAY THE AMOUNT STATED ABOVE UNLESS YOU ACCEPT THIS OFFER.
The document also states:
This is an order form for classified advertising with regard to copy, size and dollar amount. If the terms are acceptable, please sign and return with your check.
The solicitation appears to be in compliance with both 39 U.S.C. §3001(d)(2)(A) and the alternative notice set forth in Domestic Mail Manual 123.41(a).
DISCUSSION
In CM/NA, supra, the Judicial Officer restated the general rule frequently applied to 3005 proceedings that modification or discontinuance of promotional materials does not render such a proceeding moot or preclude the issuance of a cease and desist order authorized by the statute to discourage resumption of the use of false representations. The rule has been applied in cases where, as in CM/NA, the respondent has failed to introduce in evidence the claimed revised advertising (I.D. 9/24/85, p. 23), where, as in Sharon Woodman Associates, P. S. Docket No. 2/122 (P.S.D. 2/12/74), cited in CM/NA in support of application of the rule, the Judicial Officer has found that the revised advertising continues some or all of the misrepresentations, and where, as in PROFIT and CHURCHES OF THE NEW DECADE, p. s. Docket No. 6/5 (P.S.D. 10/14/77), the Judicial Officer found insufficient assurance that discontinued advertising will not continue to draw mail. However, I find no Postal Service precedent requiring application of the rule in a case involving the agreed-on facts present here.
In this case the only solicitation relied on by Complainant was discontinued about three months prior to the filing of the Complaint. It has been supplanted by a solicitation that appears, without serious challenge by Complainant, to conform with the pertinent statute and regulation. No money in response to the discontinued solicitation was being received at the time the complaint was filed or has been received since. Respondent is not said to have any past history of violation of the statute and has expressed the intent not to resume use of the discontinued form which gave rise to the complaint.
On these agreed facts, I do not find that Respondent is now or was at the time the complaint was filed and for nearly three months prior thereto engaged in conducting a scheme or device prohibited by 39 U.S.C. §3005.
I am not persuaded that the case must be kept alive and proceed to hearing by Complainant’s assertion that Respondent modified its original solicitation only because it had been visited by postal inspectors and wanted to avoid trouble and its consequent argument that remedial orders are necessary to ensure that Respondent does not resume the use of the offending solicitation, the resources of the Postal Inspection Service being inadequate for continued surveillance of Respondent’s operations. This argument would be cogent had Complainant presented a history of previous violations of 3005 by Respondent or other reason for believing that Respondent will resume the violation alleged in the complaint. absent such indications, the fact that Respondent may have wished to avoid trouble is understandable and, at most, neutral as a predictor of future violations.
The decision of the United States Supreme Court in United States v. W. T. Grant Co., 345 U.S. 629 (1953) is frequently cited in postal administrative decisions in support of the general rule that modification or discontinuation of promotional materials does not render moot a proceeding under 39 U.S.C. §3005. See CM/NA, supra. The decision, however, stands for more than that. In W. T. Grant Co., the United States sued in federal district court to enjoin an individual and six corporations from violating §8 of the Clayton Act through the holding by the individual defendant of interlocking directorates in three pairs of competing corporations. After the suit was commenced, the individual defendant resigned his directorship in one of each pair of corporations and filed affidavits disclaiming any intention of resuming such directorates. The Supreme Court, against the government’s contention that the case was not rendered moot by the individual defendant’s resignations and that it was an abuse of discretion for the trial court to refuse any injunctive relief, affirmed the lower court’s dismissal of the suit by summary judgment wherein the District Judge concluded that there is not “the slightest threat that defendants will attempt any future activity in violation of Section 8 [if they have violated it already] …” In the Supreme Court the parties agreed to the abstract proposition that voluntary cessation of allegedly illegal conduct does not render the case moot and dismissable as a matter of right because, among other reasons, the defendant is free to return to his old ways. However, the Court said, at page 633, that a case may nevertheless be moot if the defendant can demonstrate that there is no reasonable expectation that the wrong will be repeated. The Court held that the elimination of the interlocks and the disclaimer of the intention to revive them did not suffice to make the case moot but was a factor to be considered in determining the appropriateness of an injunction. The Supreme Court went on to say that although the court’s power to grant injunctive relief survives discontinuance of the illegal conduct, the purpose of an injunction is to prevent future violations and the moving party must satisfy the court that the relief is needed, that there exists some “cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive.” The Court found that the District Judge, on the basis of the facts before him, could decide that there was no significant threat of future violation, that there was no factual dispute about the existence of such a threat, and that the government had shown no abuse of the Court’s discretion in its refusal to award injunctive relief.
I think the remedial orders sought by Complainant here may reasonably be equated with the injunctive relief sought in W. T. Grant Co., and that I may properly adopt the rational of the Supreme Court in affirming the lower court’s summary judgment denying injunctive relief. The case for dismissal here is even stronger because the offending solicitation was discontinued before the complaint was filed while in W. T. Grant Co. the violation of the statute was discontinued only after the complaint was filed. Also, in W. T. Grant Co. there were three violations of the statute continuing for five years before the suit was initiated while the FTC as attempting to persuade the defendants of the illegality of the interlocks. There is no suggestion whatsoever in the agreed facts in the instant case of a cognizable danger, more than a mere possibility, of recurrent violation.
DECISION
On the facts submitted by Respondent and adopted by Complainant, Respondent was not at the time the Complaint was filed and is not presently violating 39 U.S.C. §3005 in connection with the solicitation it employees for placement of ads in Professional Opportunity Magazine. Although this conclusion alone does not render moot the instant proceeding, applying the rationale of the Supreme Court in W. T. Grant Co., as to the requirement for the government (Postal Service) to show a cognizable danger of recurrent violation, something more than a mere possibility, I conclude that Complainant has not made such a showing. Therefore, the motion for summary judgment is granted. The complaint is dismissed.
Quentin E. Grant
Chief Administrative Law Judge