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October 28, 1954

Robert SCHAFFER, Postmaster, New York, New York, Defendant

The opinion of the court was delivered by: DAWSON

Plaintiff brings this action to enjoin Robert Schaffer as the Postmaster of New York, N. Y. from carrying into effect a 'fraud order' of the Postmaster General.

The Postmaster General charged the plaintiff with conducting a scheme for obtaining money through the mails by means of false advertising representations and promises in violation of Sections 259 and 732 of Title 39, U.S.C.A.

 A hearing was held in Washington, D.C. at which plaintiff was represented by counsel, and after a determination by the hearing examiner on July 15, 1954 that a fraud order should issue, and an administrative appeal taken therefrom, in which the Deputy Postmaster General, on September 13, 1954, affirmed the decision of the hearing examiner, a fraud order was issued instructing Robert Schaffer, the Postmaster of New York, N. Y., to return to the senders any mail directed to the plaintiff, with the words, 'Fraudulent: Mail to this address returned by order of Postmaster General', stamped thereon.

 Plaintiff's complaint alleges that the interference of the defendant prevents plaintiff from pursuing its lawful business; and that such interference and acts of defendant constitute a deprivation of property without due process of law, in violation of the Fifth Amendment to the Constitution, and prays that a temporary and permanent injunction be granted.

 The government contends that plaintiff's complaint is deficient in that it has not attacked the sufficiency of the conclusions reached by the hearing examiner, and, therefore, not having raised any questions going to the merits of the determination by the post office, has failed to state a cause of action upon which an injunction can be predicated. See Hamilton Watch Co. v. Benrus Watch Co., Inc. *fn1" The government further contends that the failure of the complaint to attack the procedure of the hearing or the evidentiary sufficiency of any part of the fraud order, other than the mere statement that the Postmaster was wrong produces insufficient grounds for review of an executive order. Leach v. Carlile. *fn2"

 By the Administrative Procedure Act, *fn3" judicial review is granted of every final agency determination for which there is no other adequate remedy in any court. The administrative record of the proceedings below is before me with the complaint. Because the nature of the order from which relief is sought is such that delay conceivably may extinguish plaintiff's existence, which includes other phases of its business operation not concerned with the present action, and inflict upon it irreparable harm due to the return of its mail stamped 'Fraudulent', the dismissal of this complaint without prejudice because of a poorly drawn pleading, would be tantamount to a denial to plaintiff of his remedy in court. I need not adopt such a course where it appears from the administrative record that plaintiff has a cause of action and is entitled to relief.

 Plaintiff sells through the mails a product called 'Numal'. It also conducts a proprietary business with drug wholesalers. 'Numal' is sold as an appetite builder and food supplement. The major components of the product are listed on its label as Vitamin B 1 , Vitamin B 2 , Vitamin D, and Vitamin B 12 , malt diastase, tricalcium phosphate, iron pyrophosphate, sugar and cocoa with vanilla flavoring. It was advertised in magazines and periodicals. A typical advertisement (a copy of which is the basis of the administrative determination) pictured a pulchritudinous woman in the arms of a well developed male, both attired in bathing suits, with a heavy type caption underneath 'Skinny Girls Don't Have Oomph!' Underneath this follows the statement 'It takes those extra lbs of solid flesh to 'bring out' your natural curves.' Then follows the body of the advertisement which states:

'If you're otherwise healthy but skinny, scrawny, rundown and lbs. underweight, try correcting this common mistake in eating.
'There are three essential substances that many thin, scrawny and undernourished girls may fail to get in sufficient quantity from the food they eat. These substances are Vitamin B 1 , calcium phosphate and iron. If, like thousands of others, you are underweight without organic cause * * * never seem to gain a pound * * * are so thin that you look gangling and gawky from insufficient amounts of these precious elements, don't get discouraged.
'You may find that by correcting this simple mistake in eating you can easily add firm solid flesh * * * extra alluring pounds that help bring out those natural eye-catching curves. A simple and easy way is to try the amazing new product called Numal that supplies, in significant amounts, the Vitamin B 1 , calcium phosphate and iron needed in the daily diet. Plus a food that in itself is a great help in adding extra pounds.
'Take 1 heaping teaspoonful of Numal 3 times a day. It is pleasant, assimilable and easy to take. You will get the equivalent in Vitamin B 1 content of 34 cakes of average moist baker's yeast * * * the iron equivalent of 15 pounds of tomatoes or 1 2/3 pounds of spinach or 9 pounds of boiled beets and the calcium equivalent of 4/5ths pint of fresh cow's milk, the phosphorus content of 1 glass.
'Remember, if you don't get a sufficient quantity of Vitamin B 1 in your daily diet, you may suffer loss of appetite. And without sufficient iron, the element that helps build rich red blood, you may be rundown, pale, weak and listless. You need calcium phosphate for sound teeth and sturdy bones.'

 In its administrative complaint, the Post Office Department alleged that the plaintiff here, by means of false pretenses, sold 'Numal' through the mails; and that the said advertisements fraudulently represented:

'a. That when used as directed by 'Skinny Girls' and 'Skinny Men' 'Numal' will 'add firm solid flesh' and add 'extra alluring pounds that help bring ...

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