Kirby v. Shaw, No. 19822.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtCHAMBERS and BROWNING, Circuit , and MUECKE
Citation358 F.2d 446
Docket NumberNo. 19822.
Decision Date24 March 1966
PartiesKlaytan W. KIRBY, Appellant, v. Leslie N. SHAW, individually and as Post-master of the City of Los Angeles, State of California, Appellee.

358 F.2d 446 (1966)

Klaytan W. KIRBY, Appellant,
v.
Leslie N. SHAW, individually and as Post-master of the City of Los Angeles, State of California, Appellee.

No. 19822.

United States Court of Appeals Ninth Circuit.

March 24, 1966.


Edwin M. Rosendahl, Los Angeles, Cal., for appellant.

Manuel L. Real, U. S. Atty., Donald A. Fareed, Asst. U. S. Atty., Chief, Civil Sec., Milan M. Dostal, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before CHAMBERS and BROWNING, Circuit Judges, and MUECKE, District Judge.

BROWNING, Circuit Judge:

On November 23, 1962, following a full trial-type hearing, the Judicial Officer of the Post Office Department issued a fraud order under 74 Stat. 654 (1960), 39 U.S.C.A. § 4005,1 denying use of the

358 F.2d 447
mails to appellant, who was doing business under the name "Science of Life," for the sale of pills called "Stagg Bullets." The order was based upon a finding that appellant had fraudulently misrepresented that the product was capable of restoring sexual potency

On March 9, 1964, the General Counsel of the Department filed a petition with the Judicial Officer seeking the issuance of a "supplemental order" pursuant to Rule 30 of the Department's Rules of Practice applicable to fraud order proceedings, 39 C.F.R. § 201.30.2

The petition alleged that appellant was distributing through the mail an advertising circular "offering for sale essentially the same product based on essentially the same misrepresentations as previously employed." The product was now called "Formula AZ-696 Activators"; and was distributed by appellant under the name "Eroc Druid (G.A.)." The petition stated that "According to the report of our medical expert dated February 20, 1964, the formula of the current product is essentially the same as the product previously sold by appellant in the `Science of Life' enterprise and found to be just as worthless for the purposes advertised." A copy of the advertising circular was attached to the petition, but no copy of the medical report was attached.

Appellant filed an answer and application for hearing. He admitted the distribution of the circular attached to the petition, but denied "that his present product is either essentially the same product as that previously distributed or that such product is based on essentially the same misrepresentations or on any misrepresentations at all." He asserted that he lacked notice of the charges against him and was deprived of the opportunity to meet them in the absence of knowledge of the contents of the medical report upon which the general allegations in the petition were based. He requested a hearing, alleging that the difference in the chemical composition of the two products and the effect of "Activators" upon the human body would be established by the testimony of witnesses at the hearing. He stated that he would present testimony of expert witnesses to controvert any such witnesses produced by the General Counsel, and he listed three proposed witnesses by name: one a physician who "would testify to the chemical content and effect on the human body of appellant's product"; and two who "would testify as to the efficacy of appellant's product to negate fraud."

The General Counsel responded by filing a "supplemental petition." He opposed the hearing requested by appellant. He contended that the advertising circulars which were before the Judicial Officer established that the two products were sold under essentially the same representations. He asserted that the report of his medical expert (a Dr. Campbell), a copy of which was said to be attached to the "supplemental petition," established that the difference in ingredients had

358 F.2d 448
no therapeutic significance with respect to the purpose for which the products were offered. He argued that appellant's answer offered nothing but denials, and that "absent submission by appellant of a medical report or some acceptable medical affirmation tending to establish the alleged dissimilarity of products," no "triable issues exist."

Five days later, and before the "supplemental petition" had been served upon appellant, the Judicial Officer denied appellant's request for hearing and issued the order sought by the General Counsel. The Judicial Officer held that under Rule 30 a hearing was discretionary, and that no hearing was necessary in the circumstances of this case. On the merits, the Judicial Officer held that the two products, and the representations under which they were sold, were essentially the same. "Looking at the advertisements for `Stagg Bullets' and that of `Activators,'" the Judicial Officer wrote, "one can see that some changes have been made but they are not significant." As to the identity of the two products, the Judicial Officer continued, "The formula for `Stagg Bullets' and that of `Activators' is the same with the exception of the ingredient `damiana.' The directions are the same on both bottles." The Judicial Officer concluded, "The similarity of the advertisements, those of the formula, and those of the directions show that the present product is so much like the product of `Stagg Bullets' and the advertisements are so similar that the Judicial Officer hereby issues a supplemental fraud order to cover the name `Eroc Druid' at Los Angeles, California."

Appellant petitioned for revocation of the order. He alleged that he was not served with a copy of the General Counsel's "supplemental petition" until after the Judicial Officer's order was issued; and was not, even then, furnished with a copy of Dr. Campbell's report — notwithstanding the recitation in the "supplemental petition" that a copy was attached. Appellant contended that he was entitled by the Due Process Clause of the Fifth Amendment and by the provisions of the Administrative Procedure Act to notice of the contents of Dr. Campbell's report, to an opportunity to reply to the "supplemental petition," and to a hearing on the issues. Appellant's petition for revocation was denied. A copy of Dr. Campbell's report was mailed to appellant with the order of denial.3

Appellant brought suit in the district court to enjoin the enforcement of the order. Judgment was entered denying relief. We reverse.

Postal fraud proceedings under 39 U.S.C.A. § 4005 must comply with sections 5, 6, and 7 of the Administrative Procedure Act, 60 Stat. 239 (1946), 5 U.S.C.A. §§ 1004-1006 Cates v. Haderlein, 342 U.S. 804, 72 S.Ct. 47, 96 L.Ed. 609 (1951), reversing 189 F.2d 369 (7th Cir.); Olesen v. Stanard, 227 F.2d 785, 788 n.7 (9th Cir. 1955); see also Stanard...

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6 practice notes
  • Surface coal mining hearings and appeals; special rules,
    • United States
    • Federal Register March 20, 2003
    • March 20, 2003
    ...governed by the APA's Sec. 7(c), the government must bear the burden of proof when it is the proponent of a rule or order. Kirby v. Shaw, 358 F.2d 446, 449 (9th Cir. 1966) (holding that in a formal hearing under the APA, the burden rested on the Post Office Department as the proponent of th......
  • Environmental Defense Fund, Inc. v. E.P.A., Nos. 75-2259
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 6, 1977
    ...United States v. Springer, 491 F.2d 239, 242 (9th Cir.) cert. denied, 419 U.S. 834, 95 S.Ct. 60, 42 L.Ed.2d 60 (1974); Kirby v. Shaw, 358 F.2d 446 (9th Cir. 1966). 4 The one case cited by Velsicol that is explicitly concerned with the "burden of persuasion" is Kerner v. Flemming, ......
  • State of Colo. v. Veterans Administration, Civ. A. No. 76-F-1114.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • May 11, 1977
    ...and willful unlawful acts. Circuit court cases such as Door v. Donaldson, 90 U.S.App.D.C. 188, 195 F.2d 764 (1952) and Kirby v. Shaw, 358 F.2d 446 (9th Cir. 1966) buttress our conclusion that the phrase "required by statute to be determined on the record" is not to be taken as a s......
  • Washington Mint v. US Postal Service, Civil No. 92-2837 (HHG).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 21, 1994
    ...Postal Service's petition for supplemental Cease and Desist orders, has held that such hearings are not always necessary. Kirby v. Shaw, 358 F.2d 446, 450 (9th Cir. 1966). Although hearings are generally favored, they are not required "where it clearly appeared from the administrative ......
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5 cases
  • Environmental Defense Fund, Inc. v. E.P.A., Nos. 75-2259
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 6, 1977
    ...United States v. Springer, 491 F.2d 239, 242 (9th Cir.) cert. denied, 419 U.S. 834, 95 S.Ct. 60, 42 L.Ed.2d 60 (1974); Kirby v. Shaw, 358 F.2d 446 (9th Cir. 1966). 4 The one case cited by Velsicol that is explicitly concerned with the "burden of persuasion" is Kerner v. Flemming, 283 F.2d 9......
  • State of Colo. v. Veterans Administration, Civ. A. No. 76-F-1114.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • May 11, 1977
    ...and willful unlawful acts. Circuit court cases such as Door v. Donaldson, 90 U.S.App.D.C. 188, 195 F.2d 764 (1952) and Kirby v. Shaw, 358 F.2d 446 (9th Cir. 1966) buttress our conclusion that the phrase "required by statute to be determined on the record" is not to be taken as a strict and ......
  • Washington Mint v. US Postal Service, Civil No. 92-2837 (HHG).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 21, 1994
    ...Postal Service's petition for supplemental Cease and Desist orders, has held that such hearings are not always necessary. Kirby v. Shaw, 358 F.2d 446, 450 (9th Cir. 1966). Although hearings are generally favored, they are not required "where it clearly appeared from the administrative recor......
  • Unruh v. Udall, Civ. No. 1894-N.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • June 14, 1967
    ..."Except as statutes otherwise provide, the proponent of a rule or order shall have the burden of proof." See: Kirby v. Shaw (9 CCA 1966), 358 F.2d 446. 3 The regulations (43 C.F.R. 1852.1-1) provide that private contests may be initiated by "any person who claims title to or an interest in ......
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