The opinion of the court was delivered by: BRIEANT
Both parties in this action have moved for summary judgment pursuant to Rule 56, F.R.Civ.P. The legal issue presented is whether certain of plaintiff's publications, including the well known Index to Legal Periodicals are "periodical publications" and thus entitled to second class mail privileges within 39 U.S.C. §§ 4351 and 4354.
Plaintiff H. W. Wilson Company (hereinafter "Wilson") is a New York corporation, with its principal offices and a printing plant in Bronx County, New York, in this District. Wilson is the publisher of Cumulative Book Index, Readers' Guide to the Periodical Literature ("Readers' Guide"), Education Index, Abridged Readers' Guide to Periodical Literature ("Abridged Readers' Guide"), Biological & Agricultural Index, Social Sciences & Humanities Index and Applied Science & Technology Index, in addition to Index to Legal Periodicals.
The Court has subject matter jurisdiction of this action pursuant to 28 U.S.C. § 1339.
Defendant United States Postal Service (hereinafter "Postal Service") through its Mail Classification Division director, Mr. Darwin Sharp, notified Wilson by letters dated February 12 and April 30, 1973 of the Postal Service's intention to revoke the second class mailing privileges of the publications named above. A hearing was had before an Administrative Law Judge (hereinafter "ALJ") of the Postal Service, and the ALJ (Initial Decision, P.S. Docket No. 2/66, Sept. 25, 1975) and later the Postal Service's judicial officer (Postal Service Decision, P.S. Docket No. 2/66, June 28, 1976) upheld the revocations.
Wilson sought review of the final agency action by filing this action on July 20, 1976.
The parties agree, and the Court finds, that there is no genuine issue of material fact, and the sole issue is one of law: whether the second class mailing status of Wilson's publications should be revoked because they are not "periodical publications."
The controlling statutes, set forth below,
do not define the term "periodical." The Postal Service maintains that the decision of the United States Supreme Court in Houghton v. Payne, 194 U.S. 88, 24 S. Ct. 590, 48 L. Ed. 888 (1904) controls the definition of a periodical, and that the Wilson publications are not periodicals as defined by Houghton. Accordingly, it is contended, they are not entitled to retain second class mail privileges. Wilson urges that the Houghton rule with respect to the definition of "periodicals" should not be read with the same rigidity now sought to be applied by the Postal Service, and deny that the definition is all-inclusive.
Issues of Index to Legal Periodicals2 are published monthly in the Bronx, New York in softcover form for annual subscribers. The monthly issues are cumulated, the contents rearranged in order of entries, and republished quarterly in softcover form. Thereafter, the cumulative quarterly volumes are again rearranged on an annual basis, and reissued in a hardcover volume. Upon receipt of a quarterly volume, subscribers discard the monthly issues, and when an annual hardcover volume is received, the quarterly softcover volumes are discarded. The annual hardcover volume is regarded as a permanent library reference.
The status of the hardcover annual editions as periodicals is not in issue here, since Wilson has never applied for second class mail privileges with respect to those publications. We are thus concerned only with the character and status of the softcover publications.
Index to Legal Periodicals serves two purposes. An examination of the monthly issue alerts judges, lawyers, law professors and law students to recently published articles. In addition, a lawyer researching a particular subject, topic or legal issue may, by a single examination of this publication, gain entry into some 360 current periodicals. These periodicals are a diverse group and include the Harvard, Buffalo, Brooklyn and Columbia Law Reviews, Les Cahiers de Droit, Revista del Colegio de Abogados de Puerto Rico, Tasmania University Law Review, Oil & Gas Tax Quarterly and The Irish Jurist, as well as the Queen's Law Journal.
A skilled editorial staff employed by Wilson creates the index by reading and analyzing the contents of articles, and applying their judgment, often after consultation, to a selection of the headings and cross references under which an article should be placed. The titles of the articles, the authors, and the journal in which the article can be found are arranged under appropriate abbreviated listings by subject.
The editorial staff members are not mere listers or indexers. All of the members have library backgrounds, and most of the members have master's degrees in library science. In addition, each staff member is highly trained and knowledgeable in the specific subject matters for which he or she is responsible.
The journals which are to be indexed by a publication such as Index to Legal Periodicals are determined on the basis of subscriber input
and after consultation with ...