Appeal from a judgment of the United States District Court for the Southern District of New York declaring that the revocation of second class mailing status by the United States Postal Service for certain publications was unlawful, and enjoining the Postal Service from refusing second class mailing privileges in the future. Affirmed in part; reversed and remanded in part.
Hays, Ingraham*fn* and Mansfield, Circuit Judges.
This case presents us with an important issue of first impression in this circuit -- whether several publications, including the Readers' Guide to Periodical Literature and Index of Legal Periodicals, are periodicals as that term is used in 39 U.S.C. §§ 4351 and 4354 (1962), and are therefore entitled to second class mailing privileges. These publications are published by plaintiff-appellee, The H. W. Wilson Company (Wilson), and up until the initiation of these proceedings some had been accorded second class mailing privileges for almost eighty years.
By letters dated February 12, 1973, and April 4, 1973, the Postal Service notified Wilson of its intention to revoke the second class mailing status of these publications. A hearing was held before an administrative law judge who upheld the revocations on the ground that the publications were not periodicals under the test employed by the Postal Service. On June 28, 1976, his decision was affirmed by a Judicial Officer of the United States Postal Service.
The case below was submitted on cross-motions for summary judgment. The district court reversed the Postal Service on summary judgment, holding that the publications were periodicals and that therefore revocation of second class mailing status was unlawful. The district court permanently enjoined the Postal Service from refusing second class mailing privileges to any of these publications until the governing statute is changed. We affirm the district court insofar as it held the revocation of second class status was unlawful, but reverse the enjoining of the future revocation of second class mailing privileges. We remand the case for further proceedings.
The Wilson publications for which second class mailing status was revoked are the following: Cumulative Book Index, Readers' Guide to Periodical Literature, Education Index, Abridged Readers' Guide to Periodical Literature, Biological & Agricultural Index, Social Sciences & Humanities Index, Applied Science & Technology Index and Index to Legal Periodicals. Each is composed of alphabetical listings of citations to other written material, primarily articles in periodicals. The listings in each issue are arranged for easy reference, usually being grouped by subject and author. Except for Social Sciences & Humanities Index, the Wilson publications are cumulative in character. Every third issue contains all references published in the preceding issues, plus such new matter as was indexed in the interval between the publication of the second and third issues. Annually and triennially, the issues are further cumulated. Therefore, a continuity exists between issues for it is necessary that the same general format and specific subject headings be retained from issue to issue.
According to the controlling statutes, "second class mail embraces newspapers and other periodical publications when entered and mailed in accordance with sections 4352-4357 of this title." 39 U.S.C. § 4351 (1962). The purpose of this statutory scheme establishing second class mailing rates is to "[encourage] by low postal rates the dissemination of current intelligence." Lewis Publishing Co. v. Morgan, 229 U.S. 288, 303-304, 57 L. Ed. 1190, 33 S. Ct. 867 (1913). Both parties agree that each of the Wilson publications satisfies §§ 4352-4357, thus meeting the technical requirements for second class mailing privileges.*fn1 The only question then is whether each publication is a periodical.
The controlling statutes do not define "periodical." Nor has the Postal Service ever felt a need to promulgate regulations which would aid in this determination. The Postal Service claims instead that it has defined and continues to define the term by reference to the standard formulated by the Supreme Court in Houghton v. Payne, 194 U.S. 88, 48 L. Ed. 888, 24 S. Ct. 590 (1904). As applied by the Postal Service, that standard requires that a periodical contain "a variety of original articles by different authors." Id. at 97. It was because the Wilson publications do not contain "original articles" that the Postal Service chose to revoke this second class status.
We agree with the district court that the Postal Service erred in concluding that Houghton mandates that a publication satisfy the "original articles" test in order to be classified as a periodical. The fallacy of the Postal Service's reasoning is illuminated by a closer examination of both the textual and factual context within which the phrase was utilized.
To put the phrase in its textual context, we quote from the paragraph within which it appears:
A periodical, as ordinarily understood, is a publication appearing at stated intervals, each number of which contains a variety of original articles by different authors, devoted either to general literature of some special branch of learning or to a special class of subjects. Ordinarily each number is incomplete in itself, and indicates a relation with prior or subsequent numbers of the same series. It implies a continuity of literary character, a connection between the different numbers of the series in the nature of the articles appearing in them, whether they be successive chapters of the same story or novel or essays upon subjects pertaining to general literature. Id. (Emphasis added).
It can readily be seen that by using the qualifying phrase, "as ordinarily understood," the Court was not pronouncing an iron-clad rule of law. This conclusion accords with a statement made by the Court earlier in its opinion to the effect that a periodical "shall not only have the feature of periodicity, but that it shall be a periodical in the ordinary meaning of the term." Id. at 96. If the Court did articulate a definitive standard for a "periodical" in Houghton, we believe this "ordinary meaning" test is closer to that standard. When the Court spoke of "variety of original articles," therefore, it was merely searching for that "ordinary meaning" by delineating some of the characteristics which one normally associates with periodicals.
An examination of the factual context within which the case was decided buttresses our conclusion that the "variety of original articles test" was not intended as an immutable rule of law. Houghton began with a proceeding much like the one in the present case to revoke a permit allowing second class mailing status. The publications at issue were soft cover reprints of standard works by such authors as Thackeray, Whittier, Lowell, Emerson and Irving, reissued under the title, Riverside Literature Series. The volumes were issued monthly or quarterly and numbered consecutively. Each number contained a single novel or story, or a ...