B-169561, MAY 26, 1970

B-169561: May 26, 1970

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" INSERTED AS SUPPLEMENT TO NEWSPAPER AND MAILED AT SECOND-CLASS RATE WAS SEPARATE AND INDEPENDENT PUBLICATION REQUIRING THIRD -CLASS POSTAGE RATE WITH RESULTANT POSTAGE DEFICIENCY OF $2. CONCURRED IN RULING WHICH IS FINAL AND NOT REVIEWABLE. IF INDEBTEDNESS IS NOT SETTLED IMMEDIATELY. INC.: REFERENCE IS MADE TO YOUR LETTER OF APRIL 1. IN YOUR LETTER YOU STATE THAT YOU ARE IN RECEIPT OF A COPY OF OUR LETTER OF MARCH 23. IT IS YOUR CONTENTION THAT OUR STATEMENTS WITHIN THAT LETTER ARE ERRONEOUS IN THAT THE TABLOID INSERTION WAS AND IS A REGULAR SUPPLEMENT TO YOUR NEWSPAPERS AND NOT A SEPARATE THIRD-CLASS MAILING PUBLICATION. THE PUBLICATION WAS INSERTED IN THE NUTLEY SUN AND BELLEVILLE TIMES ISSUES OF APRIL 20 AND MAY 4.

B-169561, MAY 26, 1970

POST OFFICE DEPARTMENT--MAILS--POSTAGE--DEFICIENCY INDEBTEDNESS WHEN POSTMASTER DETERMINED 56 PAGES OF PRINTED MATERIAL ENTITLED, "ACCENT] SUBURBIA," INSERTED AS SUPPLEMENT TO NEWSPAPER AND MAILED AT SECOND-CLASS RATE WAS SEPARATE AND INDEPENDENT PUBLICATION REQUIRING THIRD -CLASS POSTAGE RATE WITH RESULTANT POSTAGE DEFICIENCY OF $2,221.34 AND CLASSIFICATION AND SPECIAL SERVICES DIVISION, BUR. OF OPERATIONS, CONCURRED IN RULING WHICH IS FINAL AND NOT REVIEWABLE, UNDER GAO'S GENERAL RULE TO ACCEPT JUDGMENT OF ADMINISTRATIVE AGENCY, IT MUST ACCEPT P. O. DEPT.'S DETERMINATION AS BEING CORRECT. IF INDEBTEDNESS IS NOT SETTLED IMMEDIATELY, CLAIM MUST BE TURNED OVER TO JUSTICE DEPT. FOR LEGAL ACTION. SEE DELL PUB. CO. V. SUMMERFIELD, 198 F. SUPP. 843 (1961).

TO NUTLEY SUN PRINTING COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 1, 1970, CONCERNING THE CLAIM OF THE UNITED STATES AGAINST YOU AS PUBLISHER OF THE NUTLEY SUN PRINTING COMPANY, INC; FOR A POSTAGE DEFICIENCY IN THE AMOUNT OF $2,221.34 ($2,421.34 LESS PAYMENTS OF $200).

IN YOUR LETTER YOU STATE THAT YOU ARE IN RECEIPT OF A COPY OF OUR LETTER OF MARCH 23, 1970, TO CONGRESSMAN PETER RODINO, JR. IT IS YOUR CONTENTION THAT OUR STATEMENTS WITHIN THAT LETTER ARE ERRONEOUS IN THAT THE TABLOID INSERTION WAS AND IS A REGULAR SUPPLEMENT TO YOUR NEWSPAPERS AND NOT A SEPARATE THIRD-CLASS MAILING PUBLICATION. IN ANY EVENT YOU REQUEST THAT THE CASE FILE BE RETURNED TO THE POSTAL AUTHORITIES IN NEWARK, NEW JERSEY, SO THAT YOU MIGHT PRESENT YOUR POSITION ONCE MORE.

IT APPEARS THAT THE INDEBTEDNESS ($2,221.34) ARISES FROM A POSTAGE DEFICIENCY IN CONNECTION WITH THE MAILING OF A PUBLICATION ENTITLED "ACCENT] SUBURBIA." THE PUBLICATION WAS INSERTED IN THE NUTLEY SUN AND BELLEVILLE TIMES ISSUES OF APRIL 20 AND MAY 4, 1967, AND THE NEWARK RECORD ISSUES OF APRIL 23 AND MAY 7, 1967, AND MAILED AS SECOND-CLASS MATERIAL.

ON THE FIRST DATE OF MAILING, APRIL 20, 1967, THE POSTMASTER, NEWARK, NEW JERSEY, WROTE TO THE NUTLEY SUN, WHEREIN HE STATED:

"THE ENCLOSURE, 'ACCENT] SUBURBIA' * * * APPEARS TO BE A SEPARATE AND INDEPENDENT PUBLICATION AND WAS NOT A TRUE SUPPLEMENT * * *." REQUESTED PAYMENT OF ADDITIONAL POSTAGE AT THE THIRD-CLASS RATE.

ON APRIL 24, 1967, YOU RESPONDED TO THE ABOVE-CITED LETTER. YOUR RESPONSE IN ESSENCE QUESTIONED THE POSTMASTER'S RULING BUT NONETHELESS YOU ACKNOWLEDGED THE POSTAGE DEFICIENCY AND REQUESTED LIQUIDATION OF THE BALANCE DUE AT THE RATE OF $50 PER MONTH.

IN VIEW OF YOUR RESPONSE A RULING WAS REQUESTED OF THE DIRECTOR, CLASSIFICATION AND SPECIAL SERVICES DIVISION (CSSD), BUREAU OF OPERATIONS. IN FORWARDING THE REQUEST THE POSTMASTER REPORTED:

"THE PUBLISHER OF THE ENCLOSED PUBLICATIONS INCLUDED A SUPPLEMENT TITLED 'ACCENT] SUBURBIA' IN ISSUES DISTRIBUTED APRIL 20, 1967. THE TOTAL SUBSCRIBERS LIST FOR THE THREE PUBLICATIONS IS APPROXIMATELY 11,000.

"THE PUBLISHER THEN REMOVED THE MAGAZINE SUPPLEMENT WORDING AND PRINTED 20,000 COPIES BEARING THE PATRON'S PERMIT IMPRINT INDICIA AND MAILED THEM TO ADJOINING TOWNS AT THE BULK RATE. * * *

"BASED ON THE FREE DISTRIBUTION OF A LARGE NUMBER OF SAID SUPPLEMENTS, WE RULED THAT IT WAS NOT A TRUE SUPPLEMENT AND WE BILLED THE PUBLISHER AT THE THIRD-CLASS RATE."

THE DIRECTOR, CSSD, REPORTED ON JUNE 9, 1967:

"THE 56 PAGES OF PRINTED MATERIAL PRODUCED UNDER THE NAME OF 'ACCENT] SUBURBIA' AND DESIGNATED VOL. 1, NO. 1 APPEAR TO BE A SEPARATE AND INDEPENDENT PUBLICATION FROM THE ISSUES OF THE THREE SECOND-CLASS NEWSPAPERS YOU SUBMITTED. THIS IS FURTHER INDICATED BY THE FACT THAT COPIES OF THIS MATERIAL WERE MAILED INDEPENDENTLY AT THE BULK THIRD-CLASS POSTAGE RATES UNDER PERMIT NO. 4599, NEWARK, NEW JERSEY. THEREFORE, WE CONCUR IN YOUR RULING THAT 'ACCENT] SUBURBIA' WAS NOT PROPERLY INCLUDIBLE AS A SUPPLEMENT IN THE ISSUES OF THE SECOND CLASS NEWSPAPERS UNDER THE PROVISION OF SECTION 132.44C, POSTAL MANUAL." NOTICE OF THE DETERMINATION BY THE DIRECTOR, CSSD, WAS SENT TO YOU ON JUNE 16, 1967. THE POSTMASTER, NEWARK, NEW JERSEY, WROTE TO YOU ON JUNE 30, 1967, AND JULY 12, 1967. THESE FOLLOW-UP LETTERS INDICATE THAT YOU HAD NOT RESPONDED TO THE NOTICE THAT A DETERMINATION HAD BEEN MADE BY THE DIRECTOR, CSSD.

IN CONSIDERING YOUR ALLEGATION THAT THE RULING MADE BY THE POST OFFICE DEPARTMENT THAT THE INSERT "ACCENT] SUBURBIA" WAS NOT A "SUPPLEMENT" IS ERRONEOUS, THE GENERAL RULE OF THIS OFFICE IS TO ACCEPT THE JUDGMENT OF THE ADMINISTRATIVE AGENCY. THIS RULE IS IN LINE WITH THE POSITION TAKEN BY THE COURTS IN THE REVIEW OF ADMINISTRATIVE DECISIONS. IN A CASE SIMILAR TO YOURS THE COURT STATED:

"THE COURT IS UNABLE TO FIND THAT THE ACTION OF THE POSTMASTER GENERAL IS LACKING IN A RATIONAL BASIS AND, THEREFORE, CONCLUDES THAT IT WAS NOT ARBITRARY OR CAPRICIOUS BUT THAT THE POSTMASTER GENERAL ACTED WITHIN THE BOUNDS OF PROPER DISCRETION IN DETERMINING THE QUESTION WHETHER THE PUBLICATION WAS A PERIODICAL. THAT DETERMINATION MUST BE MADE BY THE POSTMASTER GENERAL. THE COURT MAY NOT SUBSTITUTE ITS OWN JUDGMENT FOR THAT OF THE POSTMASTER GENERAL, AND IF THE POSTMASTER GENERAL ACTS WITHIN THE LEGAL DEFINITIONS LAID DOWN BY THE SUPREME COURT AND WITHIN THE BOUNDS OF REASON, HIS ACTION MAY NOT BE SET ASIDE." DELL PUBLISHING CO. V. SUMMERFIELD, 198 F. SUPP. 843, 845 (1961).

FOR SIMILAR REASONS WE NECESSARILY MUST ACCEPT THE DETERMINATION MADE BY THE POST OFFICE DEPARTMENT THAT THE INSERT "ACCENT] SUBURBIA" WAS NOT A "TRUE SUPPLEMENT" AS BEING CORRECT.

YOUR CASE HAS BEEN FULLY CONSIDERED BY THE POSTAL AUTHORITIES INCLUDING THOSE IN NEWARK, NEW JERSEY, AS WELL AS THE DIRECTOR, CSSD. THE LATTER'S UNAPPEALED DETERMINATION IS FINAL AND NOT REVIEWABLE BY THE LOCAL AUTHORITIES. CONSEQUENTLY, NO USEFUL PURPOSE WOULD BE SERVED BY AGAIN SUBMITTING THE FILE TO THEM.

ACCORDINGLY, YOUR INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $2,221.34 SHOULD BE SETTLED IMMEDIATELY OR WE WILL HAVE NO ALTERNATIVE BUT TO TURN THE MATTER OVER TO THE DEPARTMENT OF JUSTICE OFR LEGAL ACTION.

BECAUSE CONGRESSMAN PETER RODINO, JR. HAS INQUIRED ABOUT YOUR CASE, A COPY OF THIS LETTER IS BEING FORWARDED TO HIM.