The opinion of the court was delivered by: YOUNGDAHL
Plaintiff is the publisher of 'Sunshine and Health' and 'Sun Magazine', two publications not unknown to the judicial process nor to the defendant.
On January 16, 1958, three days after the United States Supreme Court held that the magazines were not obscene (and therefore not prohibited from the mails by 18 U.S.C. § 1461), the plaintiff applied for second-class mail rates. Thereafter, plaintiff and the Post Office Department consumed some fifteen months in correspondence and negotiations until the plaintiff decided it had no choice but to bring this action.
On June 1, 1959, about five weeks after suit was filed and before defendant made any appearance in this case, the plaintiff's applications were formally denied with the following statement:
'The grounds for the denial are as follows:
'The Act of March 3, 1879, as amended (Title 39 United States Code 224 and 226) prescribes that only those newspapers and other periodical publications are embraced in mailable matter of the second class which, in addition to other conditions, are originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or some special industry and are not designed primarily for advertising purposes.
'Examination of the publication (identical letters were sent regarding each publication) reveals that:
'1. The publication is not originated and published for the dissemination of information of a public character or devoted to literature, the sciences, arts, or some special industry (39 U.S.C. 226).
'3. The publication is not a mailable publication under 14 (sic) USC 1461; 39 CFR 22.2(a)(1); Postal Manual, section 132.211).
'A copy of the Rules of Practice in Proceedings Relative to the Denial, Suspension or Annulment of Second-Class Mail Privileges is enclosed. You may appeal this action in accordance with the procedural regulations set out in Rule 7(b). The rules were published on May 5, 1959, in 24 Federal Register, page 3592.'
After the fifteen-day period for taking an appeal under the new rules had expired, the defendant moved to dismiss the complaint on the ground that the plaintiff had not exhausted his administrative remedies in that the plaintiff had not appealed from the denial of June 1, 1959. Plaintiff argued in opposition to the motion that one need exhaust administrative remedies before coming to court only when administrative remedies are available since, otherwise, there is nothing to exhaust; since the Post Office Department had persisted, prior to suit, in not taking action on its applications, plaintiff could properly request and receive judicial relief; furthermore, this right to seek relief in court could not be divested by administrative maneuvers -- such as changes in rules and regulations
-- occurring curring after the complaint had been filed.
Judge Hart of this court heard the defendant's motion and denied it without opinion.
The defendant filed an answer and both parties then moved for summary judgment, the defendant also asking, alternatively, to have the case remanded to the Post Office Department.
The principal contention now advanced by the defendant is that this court has no jurisdiction because plaintiff has not exhausted his administrative remedies and, in any event, the case should be 'remanded' to the Post Office Department. But Judge Hart's ruling is the law of the case; it rejected this exhaustion argument and, fairly construed, rejected this new request to 'remand' since any 'remand', in effect, would be a dismissal for failure to exhaust administrative remedies. 'A judge should hesitate to undo his own work. * * * Still more should he hesitate to undo the work of another judge.' Peterson v. Hopson, 1940, 306 Mass. 597, 603, 29 N.E.2d 140, 145, 132 A.L.R. 1; and see Annotation, 1941, 132 A.L.R. 14; 1 Moore's Federal Practice 4213-4217. Besides, I am in agreement with Judge Hart that under the circumstances the plaintiff could abandon its efforts with the Post Office Department and come to court.
Thirteen months after plaintiff filed its applications, Herbert B. Warburton, General Counsel for the Post Office Department with whom plaintiff conducted much of its negotations, wrote to the plaintiff and carefully set forth what the Department considered defects in the original applications. Counsel for plaintiff then supplied the Department with what he and his client thought -- and what appears to the court to have been -- the necessary information to correct the defects. When yet another six weeks elapsed without word from the Post Office Department,
plaintiff brought this action. Clearly the plaintiff did not desire delay during this fifteen months; it was seeking the second-class rates and it wanted authorization for these lower rates as soon as possible. After a full review of the record, the conclusion becomes inescapable that the Post Office Department handled plaintiff's applications with a gingerly restraint amounting to outright reluctance. It is well settled that when the administrative procedure is inadequate or unavailable, it need not be exhausted prior to the ...