The opinion of the court was delivered by: WARD
Plaintiffs Unique Ideas, Inc. and Ernest Tucker a/k/a Ernie Tucker seek to review the administrative decision of the judicial officer of the United States Postal Service (hereinafter "judicial officer") determining plaintiffs to be in violation of 39 U.S.C. § 3005,
and to enjoin enforcement of a stop-mail order issued pursuant to that section. The stop-mail order denies mail privileges to any materials connected with plaintiffs' "proven easy money method," a "get rich quick" scheme advertised for sale by plaintiffs in publications of general circulation and by direct-mail circulars. The advertisement solicited $10.00 for a booklet describing plaintiffs' "method," which in turn solicited additional moneys for materials with which to "get rich quick."
The scheme worked as follows: Plaintiffs had at their disposal novelty mink jewelry, e.g., necklaces, bracelets and key rings, and later mink flowers also. Members of the public who sent $10.00 in response to plaintiffs' initial advertisement (hereinafter "contacts") received a booklet describing the items and expounding upon the vast amounts of money that could be made. In the booklet, plaintiffs offered the contact an opportunity to invest and profit: for fees ranging from $63.00 to $220.00, the contact would receive a list of from 500 to 5000 "guaranteed mail order buyers" to whom he or she could mail brochures and order forms for the mink jewelry or flowers. When the contact received orders, he or she was to retain one/half the payment and send plaintiffs the order and the other half of the payment. Plaintiffs would then mail the merchandise directly to the purchaser.
On February 10, 1975, the Postal Service filed an administrative complaint (hereinafter "the complaint") alleging that plaintiffs were engaged in a scheme or device to obtain money through the mails by means of false representations, a violation of 39 U.S.C. § 3005. The complaint further alleged that plaintiffs, by means of the advertisement and booklet, falsely represented to contacts that the Ernie Tucker Money Making Method was a tested and proven scheme by which they would "get rich fast" merely by following the procedure outlined above. Additionally, the complaint charged that plaintiffs falsely claimed that the "Ernie Tucker Money Making Method" earned Mr. Tucker "$35,000 in just one day at home in bed with the flu" and "thousands weekly." All of the allegations were denied.
The Postal Service filed a related complaint in this Court on February 14, 1975 seeking a preliminary injunction pursuant to 39 U.S.C. § 3007 and Rule 65(a), Fed.R.Civ.P., and ordering detention of plaintiffs' incoming mail pending the determination of the administrative proceeding. An injunction was issued on March 10, 1975.
In the meantime, extensive hearings were held before the judicial officer. On March 11, 1975, the judicial officer found violations of 39 U.S.C. § 3005 as alleged in the administrative complaint and issued the stop-mail order on review here.
Specifically, the judicial officer found that plaintiffs, in their advertisement and booklet, falsely represented to contacts that the "Ernie Tucker Money Making Method" is a "certified, notarized and documented" "proven easy money method" with "no major risks," and that contacts would "get rich quick" by purchasing from plaintiffs lists of "guaranteed mail order buyers," and "proven, big money advertising circulars" which should result in "orders averaging $10.00-$40.00 per order from at least 5-10% of such persons [on the lists]," those projections constituting "strictly honest estimates based on actual test mailings. . . ."
The judicial officer also found that plaintiffs falsely represented that the "method" had earned Mr. Tucker "$35,000 in just one day at home in bed with the flu" and "thousands weekly."
Plaintiffs challenge the judicial officer's findings and seek summary judgment, alleging that the stop-mail order is improper, because there is not substantial evidence in the record to support the administrative determination that the representations and promises attributed to plaintiffs were in fact made, or that, if made, were false. Defendants have cross-moved for summary judgment, contending that there is sufficient evidence to support the findings of the judicial officer.
Since the only issue is one of law, the parties' cross-motions for summary judgment are properly before this Court. Rule 56, Fed.R.Civ.P.
The stop-mail order was issued pursuant to 39 U.S.C. § 3005, which authorizes the Postal Service to take such action "upon evidence satisfactory to [it] . . ." While this Court has power of review over administrative decisions of the Postal Service, 5 U.S.C. §§ 704, 706 (1970), the inquiry is a limited one. In N. Van Dyne Advertising Agency, Inc. v. United States Postal Service, 371 F. Supp. 1373, 1375-76 (S.D.N.Y.1974), the court stated:
"The power so vested [by 39 U.S.C. § 3005] in the Postal Service may not be interfered with by the courts unless it has exceeded its authority or is palpably wrong", [citing Public Clearing House v. Coyne, 194 ...