466 F.2d 1021 (9th Cir. 1972), 26478, United States v. Lange

Docket Nº26478, 26505, 26621.
Citation466 F.2d 1021
Party NameUNITED STATES of America, Plaintiff-Appellee, v. Ed LANGE, doing business as Sun West, Defendant-Appellant (two cases). UNITED STATES of America, Plaintiff-Appellee, v. COMMANDER ASSOCIATES, INC., doing business as DSI, Defendant-Appellant.
Case DateSeptember 05, 1972
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1021

466 F.2d 1021 (9th Cir. 1972)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ed LANGE, doing business as Sun West, Defendant-Appellant (two cases).

UNITED STATES of America, Plaintiff-Appellee,

v.

COMMANDER ASSOCIATES, INC., doing business as DSI, Defendant-Appellant.

Nos. 26478, 26505, 26621.

United States Court of Appeals, Ninth Circuit.

Sept. 5, 1972

Page 1022

Peter J. Marx, Stanley Fleishman, Hollywood, Cal., for defendants-appellants.

Robert L. Meyer, U.S. Atty., David H. Anderson, Frederick M. Brosio, Jr., Asst. U.S. Attyys., Los Angeles, Cal., for plaintiff-appellee.

Before CHAMBERS, HAMLEY and CHOY, Circuit Judges.

CHOY, Circuit Judge:

These three cases consolidated on appeal involve the procedures whereby dealers in erotic magazines and materials are ordered not to mail such literature to persons who deem them objectionable. Commander Associates, Inc. (Commander) and Ed Lange, doing business as Sun West, Inc. (Sun West), in one of the two cases against him (Sun West, Number One), appeal from summary judgments granted for the government, enforcing Post Office prohibitory orders. In the third case (Sun West, Number Two), Lange appeals from a judgment after trial to a district judge, which enforced similar orders. We affirm the summary judgment against Commander and the judgment against Lange in Sun West, Number Two, on all counts. In Sun West, Number One, we affirm the summary judgment on counts two, four and five and we reverse the other counts.

The statute under which appellants were sued is 39 U.S.C. § 4009, "whereby any householder may insulate himself from advertisements that offer for sale 'matter which the addressee in his sole discretion believes to be erotically arousing or sexually provocative.' 39 U.S.C. § 4009(a) . . ." Rowan v. United States Post Office Dept., 397 U.S. 728, 730, 90 S.Ct. 1484, 1487, 25 L.Ed.2d 736 (1970). An individual who has received material in the mail, which he believes to be objectionable, may initiate the process by notifying the Post Office that he wishes his name removed from the mailing lists of a specific mailer.

The Post Office then issues a prohibitory order, specifying the name and address of the complainant. The order directs the mailer and his agents or assigns to refrain from making "any further mailings to the designated addressees" and to "delete immediately the names of the designated addressees from all mailing lists owned or controlled" by them. The order also prohibits the sale, rental or exchange of mailing lists which include the complainant's name. The order takes effect thirty days after service upon the mailer. 39 U.S.C. § 4009(c).

If the Post Office learns that the mailer sent a second mailing to the designated addressee after the effective date of the order, the Department notifies the mailer and informs him that he

Page 1023

has the right to request an administrative hearing on the matter. 39 U.S.C. § 4009(d). With or without a hearing, if the Post Office determines that a violation of the prohibitory order has occurred, it may request the Attorney General to seek judicial enforcement of the order. 39 U.S.C. § 4009(d). Finally, a third mailing in violation of the judicial decree may result in the exercise of the contempt power of the court. 39 U.S.C. § 4009(e).

In late 1968 and early 1969, several householders complained 1 pursuant to § 4009, that Commander and Sun West had mailed them material which each person determined to be "sexually provocative." There were nine complaints against Sun West, five of which make up Sun West, Number One and four of which are Sun West, Number Two. One complaint is the subject of the case against Commander.

The Post Office issued a prohibitory order for every complaint and served each on Commander and Sun West. Subsequently, the Post Office received further information that second mailings had been received by the complainants. The Post Office informed appellants of the alleged violations and of their right to an administrative hearing. Neither Commander nor Sun West asked for a hearing. The Post Office found that the orders had been violated and requested the Attorney General to seek judicial enforcement of the prohibitory orders.

In all three cases, the government moved for summary judgment based upon supporting documents contained in the administrative files of the Post Office. In Sun West, Number One and the case against Commander, the district judge granted summary judgment for the government. In Sun West, Number Two, the district judge denied summary judgment and at trial, the government's case was based entirely on the administrative files. Over objection by Sun West's counsel that the file contained inadmissible hearsay, the district judge admitted the file as a record prepared in the regular course of a business and rendered judgment for the government.

In all three...

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12 practice notes
  • 574 P.2d 751 (Wyo. 1978), 4773, Fegler v. Brodie
    • United States
    • Wyoming Supreme Court of Wyoming
    • February 6, 1978
    ...give rise to contradictory inferences, one of which supports the party opposing the motion." United States v. Lange, 9 Cir. 1972, 466 F.2d 1021. A question of law arises in a negligence case on summary judgment consideration when only one conclusion can be drawn from uncontested facts;......
  • 479 F.2d 998 (9th Cir. 1973), 71-1221, Colvin v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • June 8, 1973
    ...10 A.L.R.Fed. 858 (1972). (2) Admissibility of third-party hearsay reports to postal authorities, United States v. Lange (9 Cir. 1972), 466 F.2d 1021, 1024-1025; or to investigating bodies of government, Vaccaro v. Alcoa S. S. Co. (2 Cir. 1968), 405 F.2d 1133, 1135-1137. (3) Matters contain......
  • 644 S.W.2d 313 (Ark.App. 1982), 82-134, Wilkinson v. Amos Enderlin Contracting Co., Inc.
    • United States
    • Arkansas Court of Appeals of Arkansas
    • December 22, 1982
    ...judgment because a fact issue was involved since "the contract here is somewhat ambiguous." And in United States v. Lange, 466 F.2d 1021 (9th Cir.1972), a summary judgment was reversed because of an ambiguity in the material presented and the court said, "this is precisely th......
  • Walters v. Cowpet Bay W. Condo. Ass'n, 111914 VIDC, 2012-24
    • United States
    • Federal Cases United States District Courts 3th Circuit District of the Virgin Islands
    • November 19, 2014
    ...records may be a sufficient basis for the granting of a motion for summary judgment. See, e.g . [sic] United States v. Lange, 466 F.2d 1021, 1025 n.5 (9th Cir. 1972); Dredge Corp. v. Penny, 338 F.2d 456, 460 (9th Cir. 1964)." United States v. Pent-R-Books, Inc., 538 F.2d 519, 527 (2d C......
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12 cases
  • 574 P.2d 751 (Wyo. 1978), 4773, Fegler v. Brodie
    • United States
    • Wyoming Supreme Court of Wyoming
    • February 6, 1978
    ...give rise to contradictory inferences, one of which supports the party opposing the motion." United States v. Lange, 9 Cir. 1972, 466 F.2d 1021. A question of law arises in a negligence case on summary judgment consideration when only one conclusion can be drawn from uncontested facts;......
  • 479 F.2d 998 (9th Cir. 1973), 71-1221, Colvin v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • June 8, 1973
    ...10 A.L.R.Fed. 858 (1972). (2) Admissibility of third-party hearsay reports to postal authorities, United States v. Lange (9 Cir. 1972), 466 F.2d 1021, 1024-1025; or to investigating bodies of government, Vaccaro v. Alcoa S. S. Co. (2 Cir. 1968), 405 F.2d 1133, 1135-1137. (3) Matters contain......
  • 644 S.W.2d 313 (Ark.App. 1982), 82-134, Wilkinson v. Amos Enderlin Contracting Co., Inc.
    • United States
    • Arkansas Court of Appeals of Arkansas
    • December 22, 1982
    ...judgment because a fact issue was involved since "the contract here is somewhat ambiguous." And in United States v. Lange, 466 F.2d 1021 (9th Cir.1972), a summary judgment was reversed because of an ambiguity in the material presented and the court said, "this is precisely th......
  • Walters v. Cowpet Bay W. Condo. Ass'n, 111914 VIDC, 2012-24
    • United States
    • Federal Cases United States District Courts 3th Circuit District of the Virgin Islands
    • November 19, 2014
    ...records may be a sufficient basis for the granting of a motion for summary judgment. See, e.g . [sic] United States v. Lange, 466 F.2d 1021, 1025 n.5 (9th Cir. 1972); Dredge Corp. v. Penny, 338 F.2d 456, 460 (9th Cir. 1964)." United States v. Pent-R-Books, Inc., 538 F.2d 519, 527 (2d C......
  • Request a trial to view additional results