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DIRECTORY PUBL. SERVS. v. RUNYON

April 18, 1994

DIRECTORY PUBLISHING SERVICES, INC., et al., Plaintiffs,
v.
MARVIN RUNYON, et al., Defendants.



The opinion of the court was delivered by: HAROLD H. GREENE

 In this action, plaintiffs seek an order from the Court enjoining defendants from enforcing a Cease and Desist Order and several False Representation Orders issued by a postal service judicial officer pursuant to 39 U.S.C. § 3005. *fn1" After a hearing held on March 28, 1994, the Court issued a Temporary Restraining Order requiring the postal service merely to detain the mail covered by the False Representation Orders, as opposed to returning the mail to its senders, pending the Court's decision on plaintiffs' motion for a preliminary injunction. The parties subsequently agreed to extend the effect of the Court's Order through April 14, 1994, in order to allow the Court to consider the entire administrative record and the parties' written submissions, as well as to allow for a further hearing.

 The case again came before the Court for a hearing on plaintiffs' motion for a preliminary injunction and defendants' motion for summary judgment on April 14, 1994. With the benefit of the parties' written submissions and oral arguments, and based upon the entire record in this case, the Court previously denied plaintiffs' motion for a preliminary injunction. Moreover, the Court concluded that there were no genuine issues of material fact and that defendant was entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). This Opinion sets forth the bases for the Court's decision. *fn2"

 I

 This proceeding has its genesis in a postal service complaint filed October 29, 1991, alleging that plaintiffs had violated 39 U.S.C. § 3005 by engaging in a scheme for obtaining money or property through the mail by means of false representations. The complaint alleged that plaintiffs' mailings, which consisted of unsolicited promotions for business telephone listings in plaintiffs' upcoming "statewide" yellow pages, contained seven false representations.

 On July 24, 1992, an administrative law judge ("ALJ") issued an opinion upholding the postal service as to five of the alleged false representations. On February 28, 1994, a postal service judicial officer issued the agencies' final decision upholding the decision of the ALJ with respect to four of the allegedly false representations as follows:

 
1. the addressee had previously authorized a business listing in plaintiffs' telephone directory;
 
2. plaintiffs are the publishers of the business phone directory or "yellow pages" customarily supplied to telephone subscribers in the recipient's area;
 
3. the area of distribution of plaintiffs' directories is the same as the one in which the recipient already has a listing; and

 4. plaintiffs have previously published a directory. *fn3" Accordingly, the judicial officer issued the Cease and Desist Order and False Representation Orders at issue.

 Plaintiffs then commenced the instant action seeking this Court's review of the agency decision pursuant to the Administrative Procedures Act, 5 U.S.C. § 706(2), and a permanent injunction prohibiting the postal service from enforcing its orders. At bottom, plaintiffs claim (1) that they have been denied due process based upon procedural errors at the administrative level, and (2) that the agency decision is not supported by substantial evidence and is contrary to law.

 II

 The Court rejects plaintiffs' argument that procedural errors have infected the administrative decision in such a way as to deny them due process of law. "The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.'" Mathews v. Eldridge, 424 U.S. 319, 333, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976) (citing Armstrong v. Manzo, 380 U.S. 545, 552, 14 L. Ed. 2d 62, 85 S. Ct. 1187 (1965)). A review of the administrative record satisfies the Court that this standard has been amply met in this case.

 Plaintiffs' contention that lay testimonials were improperly admitted as evidence of the efficacy or quality of plaintiffs' product is incorrect. See 39 C.F.R. § 952.18(f) (lay testimonials inadmissible as evidence of efficacy or quality of items sold through mails). The testimony of which plaintiffs complain dealt not with the efficacy of plaintiffs' product, but with the potential deception stemming from plaintiffs' solicitation of the product. In other words, the efficacy of the actual product is irrelevant if the reader ...


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