Stanard v. Olesen | Cases | Westlaw

Petitioner has now applied to me as Circuit Justice for relief from the interim order, until her appeal has been heard or the matter has been othewise determined. I have heard the parties and have examined the papers presented. No question has been raised as to the power of a Circuit Justice to grant the relief requested, and I will assume that such power exists. Cf. Mr. Justice Reed's opinion in Twentieth Century Airlines v. Ryan, 74 S.Ct. 8, 98 L.Ed. 1143. See also 5 U.S.C. s 1009(d), 5 U.S.C.A. s 1009(d). I am not asked to interfere in any way with the administrative proceeding which is now being conducted. That proceeding is authorized by 39 U.S.C. ss 255 and 259a, 39 U.S.C.A. ss 255, 259a. If the administrative decision is adverse to petitioner, the Post Office will have statutory authority to intercept all mail addressed to her and either send it to the ‘dead-letter’ office, or return it to the senders marked ‘Unlawful.’ Petitioner may have judicial review of any order entered under those statutes in an action brought after the administrative adjudication, if not in the case which is now pending in the Court of Appeals. In the present application petitioner complains only of the interim order under which her mail is being intercepted while the administrative proceeding is being conducted. She complains that the interim order was entered without notice, without a hearing, and without any authority in law, statutory or otherwise.

The power of the Post Office Department to exclude material from the *771 mails and to intercept mail addressed to a person or a business is a power that touches basic freedoms. It might even have the effect of a prior restraint on communication in violation of the First Amendment, or the infliction of punishment without the due process of law which the Fifth and the Sixth Amendments guarantee. See the dissents of Mr. Justice Holmes and Mr. Justice Brandeis in Leach v. Carlile, 258 U.S. 138, 140, 42 S.Ct. 227, 228, 66 L.Ed. 511, and United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 417, 436, 41 S.Ct. 352, 356, 362, 65 L.Ed. 704; cf. Hannegan v. Esquire, Inc., 327 U.S. 146, 66 S.Ct. 456, 90 L.Ed. 586. I mention the constitutional implications of the problem only to emphasize that the power to impound mail should not be lightly implied. Yet if this power exists, it is an implied one. For I find no statutory authority of the Post Office Department to impound mail without a hearing and before there has been any final determination of illegal activity.

The Department of Justice has presented strong policy arguments (both to the Congress and to the courts) that the power is necessary. Within the past year four district courts have accepted those arguments, including the District Court which passed on this case. For the reported decisions, see Williams v. Petty, 4 Pike & Fischer Admin. Law 2d 203; Barel v. Fiske, 4 Pike & Fischer Admin. Law 2d 207. There is something to be said on the side of the law enforcement officials. For if an illicit business can continue while the administrative hearings are under way, those who operate on a fly-by-night basis may be able to stay one jump ahead of the law. Yet it is for Congress, not the courts, to write the law. Under the law, as presently written, every business, until found unlawful, has the right to be let alone. The Administrative Procedure Act, 60 Stat. 237, 5 U.S.C. s 1001 et seq., 5 U.S.C.A. s 1001 et seq., gives some protection to that right. The power of the Post Office Department to restrain the illegal use of the mails is subject to that Act. Cates v. Haderlein, 342 U.S. 804, 72 S.Ct. 47, 96 L.Ed. 609; Door v. Donaldson, 90 U.S.App.D.C. 188, 195 F.2d 764. Section 9 of the Act furnishes some safeguards. It provides, ‘In the exercise of any power or authority—

Impounding one's mail is plainly a ‘sanction,’ for it may as effectively close down an establishment as the sheriff himself. The power to impound at the commencement of the administrative proceedings is not expressly delegated to the Post Office, as I have said. It carries such a grave threat, it touches so close to First, Fifth, and Sixth Amendment rights, it has such serious possibilities of abuse (unless carefully restricted) that I am reluctant to read it into the statute. I, therefore, strongly *772 incline to the view that the interim order from which petitioner seeks relief is invalid. It seems to be a final order and there is no apparent administrative remedy.

It is clear, I think, that petitioner is entitled to judicial review of the interim order. Section 10 of the Administrative Procedure At provides:

The interim order should be lifted only if it is invalid. If it is lifted, the issue of its validity will become moot, see Meyers v. Cheesman, supra. The case is now pending in the Court of Appeals and will be decided by that court in due course. The Department of Justice advises me that a final administrative order will be made very shortly, probably in two or three weeks. If that order should be favorable to petitioner, she would, of course, receive all her mail and the case would become moot. If the order is adverse to her, its validity can be reviewed by the Court of Appeals. I was assured on oral argument that any mail intercepted under the interim order would be impounded and kept separate from the other mail that is subject to the final administrative order, until judicial review is had, so that the separate issue of the validity of the interim order will be open on review. There is thus no danger that the issue presented by this application will become moot, if the decision of the Post Office goes against petitioner.