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Contemporary Mission Inc. v. United States Postal Service

decided: May 4, 1981.

CONTEMPORARY MISSION, INC., PLAINTIFF-APPELLANT,
v.
UNITED STATES POSTAL SERVICE, ANGELO J. GAETANO, RICHARD P. EVANS, JOHN DOES I, II, AND III, DEFENDANTS-APPELLEES



Plaintiff appeals from a summary judgment entered in favor of the defendants in the United States District Court for the Southern District of New York, Pierce, J ., dismissing its claim based upon, among other things, alleged interference with its rights under the First and Fifth Amendments, and from an order denying a post-judgment motion made pursuant to Fed. R. Civ. P. 60(b). Affirmed.

Before Oakes and Meskill, Circuit Judges, and Sand, District Judge.*fn*

Author: Meskill

This is a consolidated appeal from an order and judgment of the United States District Court for the Southern District of New York, Pierce, J., granting the defendants summary judgment and an order denying the plaintiff's post-judgment motion under Fed.R.Civ.P. 60(b). Plaintiff instituted this action against the United States Postal Service and several postal officials claiming, among other things, that the individual defendants and others had conspired to interfere with the plaintiff's rights under the First and Fifth Amendments. Plaintiff sought both monetary damages and an injunction to restrain the defendants from performing any further unlawful acts. For the reasons set forth below, we affirm. Because this appeal concerns the propriety of granting a summary judgment, we set forth the facts in some detail.

BACKGROUND

Contemporary Mission purports to be a not-for-profit corporation engaged in religious and charitable pursuits, and maintains its principal place of business in the State of Connecticut. Appellant consists of a small group of Roman Catholic and Eastern-rite priests who support their organization, "virtually in full," with the revenue generated from a mail-order business. A. 40. Contemporary Mission's line of products has included a weight-reducing bath treatment called "Young & Firm"; golf lessons guaranteed to improve one's golf game by five strokes in five rounds; and tax-saving tips guaranteed to save taxpayers a minimum of $500. Appellant used pseudonyms in connection with its various enterprises; thus, for example, when selling tax tips it employed the name "CM, Inc. Tax Research Center," and when peddling golf lessons, appellant used the name "Golf Research Institute."

In April 1970 the Internal Revenue Service (IRS) granted Contemporary Mission an exemption from federal income tax pursuant to § 501(c)(3) of the Internal Revenue Code, 26 U.S.C. § 501(c)(3) (1976). In a letter dated April 23, 1970 the IRS stated the basis of its decision to grant the exemption:

Inasmuch as you are an integral part of the operations of the Missionary Society of the Holy Apostles, which is listed in the Official Catholic Directory, you come within the scope of the above-mentioned ruling. Your exempt status will continue as long as the Society's name appears in the Directory submitted annually to our National Office.

A. 177. The reference to the Missionary Society of the Holy Apostles (Holy Apostles) in the IRS' letter came as a result of a correspondence dated April 10, 1970 in which Father Issac N. Raney of the Holy Apostles had represented that Contemporary Mission was affiliated with his apostolate. A. 243, 366. No formal association between the two organizations, however, ever materialized. A. 314.*fn1

In 1975 Contemporary Mission applied as a nonprofit organization to the Postal Service for a "Special Bulk Third-Class Rates" permit which would allow appellant to send mail for 3.1 cents per item, rather than 8.3 cents per item, the normal bulk third-class mail rate. Contemporary Mission submitted the April 23, 1970 letter from the IRS and its Missouri "General Not For Profit Corporation" charter as proof of its nonprofit status. Shortly thereafter a special bulk rate permit was issued to appellant. The events which followed in the ensuing years formed the basis of this suit against the Postal Service and the individual defendants, in which Contemporary Mission alleged that the defendants and certain unnamed persons conspired to deprive plaintiff of due process of law and to revoke its postal permit because of its members' religious beliefs.

Defendant Evans' Actions

In 1976, after receiving a series of consumer complaints, the Postal Service commenced an investigation*fn2 of Contemporary Mission's mail order business. Richard P. Evans, a Postal Inspector and one of the named defendants, began the inquiry into appellant's activities in September 1976. Most of the complaints received by the Postal Service concerned appellant's failure to deliver ordered merchandise or to fulfill "guarantees" that had been made in promotional literature.

Contemporary Mission claims that Evans conducted a campaign of harassment against it by turning over consumer complaints to the Connecticut Economic Crime Unit, the Westport Police, and the United States Attorney for the District of Connecticut; extracting a substantially false affidavit, dated January 19, 1977, from Father Leo Ovian, the Assistant Supervisor of the Holy Apostles, in which Father Ovian denied that any affiliation between appellant and his apostolate had ever existed and stated that Contemporary Mission had "manipulated" the Holy Apostles into preparing the April 10, 1970 letter to the IRS;*fn3 making derogatory comments to a local newspaper about Contemporary Mission; turning over a copy of Father Ovian's affidavit to the IRS in 1977; and finally, contacting a couple of commercial mail firms with whom appellant contracted and inquiring of them whether the priests of appellant wore clerical collars in the course of their business transactions.

Evans attested that he never turned over any of the complaints received by the Postal Service to the Connecticut Economic Crime Unit, but did receive complaints from the Westport Police. Evans further attested that he did conduct discussions with the United States Attorney's office throughout his investigation. With respect to the alleged "extraction" of Father Ovian's affidavit, Evans attested that he interviewed Father Ovian in the presence of Father Raney on January 14, 1977 about the latter's relationship with Contemporary Mission and that Father Ovian "freely and without any promise or threats of any kind" agreed to summarize the interview in a sworn affidavit. Additionally, Evans denied that he ever gave any information to the author of the 1977 newspaper article concerning the appellant. In connection with the IRS, Evans concedes that he contacted the IRS in late 1976 and 1977 about appellant's tax exemption, but states that he did so because the tax exemption had been the basis for granting appellant its nonprofit permit. However, Evans "(did) not recall giving a copy of Father Ovian's affidavit to anyone at IRS." A. 101. Additionally, Evans attested that in early 1979 he contacted two of appellant's contract mailers to determine the volume of mail being sent by them on behalf of appellant, ...


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