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FRIEDLANDER v. USPS

March 20, 1987

Mitchell K. Friedlander, et al., Plaintiffs,
v.
United States Postal Service, Defendant



The opinion of the court was delivered by: GASCH

 I. INTRODUCTION

 Defendant's motion to dismiss is in response to a complaint alleging that two cease and desist orders entered by the United States Postal Service ("USPS") violated the principle of separation of powers, the first amendment and the exclusive jurisdiction of the Federal Trade Commission ("FTC") and the Food and Drug Administration ("FDA"). Claiming that no adequate remedy at law exists, plaintiffs' complaint requests declaratory judgment and injunctive relief. The primary issue before the Court is whether the USPS is a business enterprise wholly independent of the executive branch of government and thereby unconstitutionally functions as an enforcement and adjudicatory body.

 II. BACKGROUND

 A. Factual Setting

 Plaintiffs in this action consist of Mitchell K. Friedlander, a resident of Fort Lauderdale, Florida, and four corporations organized under Florida law and controlled by Friedlander. *fn1" Between July and November of 1984, the Consumer Protection Division of the USPS filed numerous complaints against plaintiffs charging mail fraud. These complaints alleged that plaintiffs had solicited consumers through the mail with false representations about weight loss and breast enlargement products. *fn2"

 After extensive hearings, with testimony heard from numerous medical experts, the Postal Service determined in September, 1985, that plaintiffs had used false representations to defraud consumers about the three weight loss products and three breast enlargement products. See Defendant's Attachments 1-3. A brief discussion of some of these advertisements and their featured products is warranted.

 Similarly, after another round of hearings, the Postal Service concluded that plaintiffs' breast enlargement products were fraudulently advertised to the public through the mails. These products were topically applied lotions. In the Postal Decision dated September 30, 1985, the Judicial Officer found that, contrary to plaintiffs' advertisements, no topical cream will cause a woman's breasts to become larger. Any change in breast size is due solely to complex hormonal activity, such as that during menstruation and pregnancy, or is the result of surgical implantation. The active ingredient in these lotions was niacin which, when applied topically, causes a blush by stimulating blood flow to surface capillaries. See Defendant's Attachment 3. For both the weight loss pills and breast enlargement lotions, the USPS issued cease and desist orders preventing plaintiffs from making further false representations unless substantiated by reliable and competent scientific evidence. *fn4"

 Plaintiffs did not appeal these cease and desist orders. On July 18, 1986, however, plaintiffs filed the instant action charging that the entry of the cease and desist orders by the Postal Service violated separation of powers principles, the first amendment and the exclusive jurisdiction of the FTC and the FDA. See Complaint at paras. 22, 33 and 35. As plaintiffs claim to have no adequate remedy at law, their complaint requests declaratory judgment that 39 U.S.C. § 3005 is unconstitutional. The complaint further demands that the Postal Service be enjoined from enforcing the cease and desist orders against plaintiffs or from restraining plaintiffs' ability to advertise and sell food, drugs, cosmetics or devices through the United States mail. See Complaint at 13-14.

 B. Constitutional and Statutory Scheme

 The Constitution expressly grants Congress the power to enact all laws it deems necessary and proper to establish post offices and post roads. United States Constitution, Article I, § 8, cl. 7. In 1970, Congress passed a comprehensive postal reform package known as the Postal Reorganization Act ("Act"), 39 U.S.C. § 101 et seq. The Act abolished the Post Office Department which had administered the Nation's mails since 1789. See Act of 1789, ch. 16, 1 Stat. 70. In its place, the Act created the United States Postal Service as an "independent establishment of the executive branch of the Government of the United States . . . ." 39 U.S.C. § 201 (1978).

 Under the Act, the Postal Service is directed by a Board of Governors composed of eleven members. 39 U.S.C. § 202(a). Nine of the members, known as Governors, are appointed by the President, with the advice and consent of the Senate, for staggered nine year terms. *fn5" 39 U.S.C. § 202(a) & (b). The President may remove a Governor "for cause." 39 U.S.C. § 202(a). The nine Governors, in turn, appoint and have the power to remove the Postmaster General, the tenth Board member. 39 U.S.C. § 202(c). Finally, the nine Governors and the Postmaster General appoint and have the power to remove the Deputy Postmaster General, the eleventh member. *fn6" 39 U.S.C. § 202(d). Under the Act, the Board, ...


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