August 16, 1996
In the Matter of the Petition by
PREFERRED
P. O. Box 4349
at
Los Angeles, CA 90078-4349
P.S. Docket No. P 96-212
APPEARANCE FOR PETITIONER:
Daniel H. Coleman, Esq.
6233 Variel Avenue
Woodland Hills, CA 91367-2512
APPEARANCE FOR RESPONDENT:
Harold J. Hughes, Esq.
United States Postal Service
Salt Lake City Office
448 East 6400 South
Salt Lake City, UT 84107-7591
INITIAL DECISION
The Petition in this case, in the form of a May 29, 1996 letter from Petitioner's attorney, was docketed on June 26, 1996. An answer from Respondent, the United States Postal Service, was received on July 16, 1996. By Order dated July 17, 1996, the parties were directed to confer and advise, by July 31, 1996, whether this matter would be settled. In the alternative, the Order stated that Respondent's Answer would be treated as a Motion for Summary Judgment, and that Petitioner could respond, not later than August 12, 1996. Respondent replied on July 26, 1996, stating that Respondent declined to settle, and also that neither party believed a hearing was necessary. No response having been received from Petitioner to the Motion for Summary Judgment, the case is deemed ready for decision.
FINDINGS OF FACT
1. On December 6, 1995, in response to complaints from the Hepworth family of Layton, Utah, the Postal Service issued Prohibitory Order No. 8885, under the authority of 39 U.S.C. §3008, directing Petitioner to refrain from mailing any further material to the Hepworths at 2295 East 2150 North, Layton, UT 84040-8076.
2. By its terms, the Prohibitory Order was effective on the 30th calendar day after receipt of the Order. The Order was received by Petitioner on December 22, 1995.
3. The Hepworths continue to receive mailing from Petitioner after January 22, 1996, one as late as March 27, 1996. The statute, 39 U.S.C. §3008(f), creates a presumption that mail received more than thirty days after the effective date was mailed after the effective date. Petitioner's letter (the Petition) cites difficulty in removing names from its mailing database on a timely basis, but states that this delay has since been corrected.
CONCLUSIONS OF LAW
1. A grant of summary judgment is proper when there are no issues of material fact in dispute and when, as a matter of law, the moving party is entitled to judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party has the burden of establishing the absence of a genuine issue of fact and, if that burden is met, the opposing party must counter with something more than "mere denials or conclusory statements." Mingus Contractors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987); see also Adickes v. S.H. Kress Co., 398 U.S. 144, 157-59; Fed. R. Civ. P. 56(e).
2. 39 U.S.C. §3008, titled Prohibition of Pandering Advertisements, enables any addressee of mail to determine "in his sole discretion" that material received is "erotically arousing or sexually provocative," and to direct the United States Postal Service to issue a Prohibitory Order directing the sender to refrain from further mailings to the named addressee.
3. Petitioner does not deny that it received the Prohibitory Order, or that it continued to mail materials to the complaining addressee after the proscribed thirty day period. It simply states that it did not intentionally violate the order. There are no material facts in dispute.
4. There is no requirement that the Postal Service prove a mailer intentionally violated a Prohibitory Order. The facts in this case establish that Petitioner did violate Prohibitory Order No. 8885 by mailing material to the Hepworth family after January 22, 1996, the effective date of the Order.
Bruce R. Houston
Acting Chief Administrative Law Judge