January 21, 2004
In the Matter of the Petition by
NORMAN GREENE, CO-PUBLISHER
SAN DIEGO JEWISH PRESS
P.O. Box 600189
San Diego, CA 92160-0189
Denial of Application for Periodicals Mail Privileges for “HERITAGE"
P.S. Docket No. SCD 02-346
APPEARANCE FOR PETITIONER:
Robert J. Brinkmann, Esq.
Olive, Edwards & Brinkmann L.L.C.
1101 17th Street, NW, Suite 602
Washington, DC 20036-4737
APPEARANCE FOR RESPONDENT:
Harold E. Durham, Esq.
Office of the General Counsel
United States Postal Service
475 L’Enfant Plaza, SW
Washington, DC 20260-1135
POSTAL SERVICE DECISION
Petitioner, Norman Greene, has filed a Petition for Reconsideration of Initial Decision and Motion for Summary Adjudication, in which he concedes that the Administrative Law Judge correctly concluded in his Initial Decision that Petitioner’s weekly newspaper, the San Diego Jewish Press-Heritage (hereinafter Heritage), does not qualify for Periodicals mailing privileges as a general publication, but requests that his original application be deemed an application for Periodicals mailing privileges as a requester publication and summarily adjudicated as such in this proceeding. The Postal Service opposes Petitioner’s request.
As the Rules of Practice in Proceedings Relative to the Denial, Suspension, or Revocation of Periodicals Mail Privileges, 39 C.F.R. Part 954, do not provide for reconsideration of an Initial Decision,[1] Petitioner’s request for reconsideration and his Motion for Summary Adjudication have been treated as an appeal from the Initial Decision in accordance with 39 C.F.R. §954.20.
BACKGROUND
Petitioner is the co-publisher of the Heritage, a weekly newspaper published and distributed in San Diego, California, with a subscription price of $24 per year (Initial Decision (ID) Findings of Fact (FOF) 1 and 6). In November 2001, Petitioner applied for Periodicals mailing privileges for the Heritage as a general publication[2] (ID FOF 7; ID Conclusion of Law (COL) 2). Petitioner’s application was denied by the San Francisco Rates and Classification Service Center because Petitioner had not demonstrated that at least 50% of its distribution was to persons who had paid more than a nominal rate to receive the publication (ID FOF 8). The application was then reviewed by the Manager, Mail Preparation and Standards, Headquarters, United States Postal Service, who denied the application for similar reasons (ID FOF 9).
Petitioner filed a timely appeal from the denial. After a hearing at which both parties were given a full opportunity to present evidence, the assigned Administrative Law Judge concluded that the Heritage did not qualify for Periodicals mailing privileges as a general publication because it did not comply with the Domestic Mail Manual (DMM)[3] requirement that at least 50% of its distribution must be to persons who have paid above a nominal rate.[4] Petitioner thereafter filed his Petition and Motion.
DECISION
Although Petitioner has conceded that the Heritage is not entitled to Periodicals mailing privileges as a general publication, he nonetheless asks that the Heritage be granted Periodicals mailing privileges as a requester publication and that the excess funds being held in the Postal Service’s trust account be released to him.[5] According to Petitioner, it would be contrary to good public policy and possibly fatal to the organization’s existence to require Petitioner to refile its application for Periodicals mailing privileges as a requester publication.
Petitioner has conceded, and the record supports, the Administrative Law Judge’s conclusion that the Heritage does not qualify for Periodicals mailing rates as a general publication. Moreover, neither party has taken issue with the Administrative Law Judge’s additional conclusion that certain subscriptions for the Heritage were legitimate gift subscriptions[6] and nothing in the record would lead to a contrary conclusion. Therefore, there is no basis for modifying or reversing the Initial Decision.
Nor is there any basis for granting Petitioner’s request to consider his original application for Periodicals mailing privileges as a request for Periodicals mailing privileges as a requester publication and to summarily adjudicate that issue in this proceeding. While summary dispositions may be an alternative for an administrative official reviewing an application for Periodicals mailing privileges, the jurisdiction of the Judicial Officer and Administrative Law Judges is limited by the authority conferred by the DMM and the Rules of Practice.[7] Moreover, Petitioner made a business judgment to apply for Periodicals mailing privileges as a general publication and while the consequences of his decision may adversely affect the viability of his organization, the only issue for review in this proceeding is the Heritage’s eligibility for the mailing privileges initially sought by Petitioner. Furthermore, the fact that Petitioner believes that local postal officials were not as knowledgeable as he believes they should have been or that policy considerations would favor a different approach does not serve as a basis for permitting the summary adjudication of an application that has not been properly processed in accordance with Postal Service procedures.[8]
Accordingly, Petitioner’s appeal from the Initial Decision and his request for summary adjudication are denied.
James A. Cohen
Judicial Officer
[1] The rules only provide for the reconsideration of a final agency decision. See 39 C.F.R. §954.21.
[2] Petitioner originally applied for Periodicals mailing privileges as a general publication under §E213.1.1 of Domestic Mail Manual (DMM) Issue 56 (Jan. 7, 2001), which required each original entry applicant seeking these privileges to file a Form 3501.
[3] Although Petitioner originally filed his application under DMM Issue 56 (Jan. 7, 2001), the DMM was subsequently revised and all other cites to the DMM are to the current version, DMM Issue 58 (Aug. 10, 2003). No substantive changes have been made to the sections affecting this proceeding.
[4] See DMM §E212.1.2(f).
[5] Any applicant for Periodicals mailing privileges must continue to pay standard mailing rates while the application is being reviewed. Any difference between the standard rate and the applicable Periodicals rate, however, is placed in trust and if the application is approved, the difference is refunded to the applicant. See DMM §E213.2.1 and §E213.3.5. If the application is not approved, the amount in trust is not refunded. DMM §E213.3.6.
[6] During the course of the proceeding before the Administrative Law Judge, Respondent argued that certain subscriptions distributed in accordance with an arrangement with the United Jewish Federation were not gift subscriptions within the meaning of DMM §E215.1.4 and that this was an additional reason for finding that the Heritage was not entitled to Periodicals mailing rates. The Administrative Law Judge rejected this argument.
[7] DMM §E213.3.7 and 39 C.F.R. Part 954 contemplate a ruling by an administrative official from which an appeal may be taken to the Judicial Officer. No administrative ruling on Petitioner’s eligibility as a requester publication has been sought or made prior to Petitioner’s request in this proceeding.
[8] DMM §E213.1.4 requires that original entry applicants for Periodicals mailing privileges as a requester publication must first file a Form 3500 at the post office serving the applicant’s “known office of publication” and thereafter obtain the administrative review required by DMM §E213.3.