Abe S. Toberoff, Individually, and Doing Business As T-r Productions, Appellant, v. Arthur E. Summerfield, Postmaster General of the United States, Appellee, 256 F.2d 91 (9th Cir. 1958)

This is an appeal from a district court order directing that mail addressed to T-R Productions, Los Angeles, be detained until final determination of mail-exclusion proceedings pending before the Post Office Department. The order under review was entered on April 14, 1958. The appeal has been expedited because of the claim that irreparable damage is being sustained.

The essential facts are not in dispute. T-R Productions, of Los Angeles, California, is a business enterprise of Abe S. Toberoff, appellant herein. An authorized postal official, after an investigation, came to the conclusion that, under this business name, Toberoff was utilizing the mails to advertise and receive remittances for obscene, lewd, lascivious, and indecent photographs and moving pictures. This resulted in the commencement of an administrative proceeding in the Department, pursuant to 39 U.S.C.A. § 259a. The relief sought was an order by the Postmaster General requiring that all such mail matter and remittances be returned to the senders.

On March 13, 1958, when the proceeding was commenced, the complaining official also filed therein a petition for an interim impounding order, as authorized by 39 U.S.C.A. § 259b. Such an order was entered by the acting general counsel of the Department, on March 17, 1958.

This order required the postmaster at Los Angeles to withhold from delivery and detain at his office all mail received there addressed to T-R Productions, or its agents and representatives. There was excepted all mail matter which could be identified on the face of the envelopes or wrappers as not being related to the T-R Productions enterprise.

The order further provided that mail should be held and detained for a period not to exceed twenty days from March 21, 1958, "unless the period of impounding is extended by order of the United States District Court upon petition therefor * * *." The specified expiration date of the order was therefore April 10, 1958.

Believing that an extension of this administrative impounding order was reasonable and necessary, the Postmaster General, on March 28, 1958, instituted this proceeding in the district court. Following the procedure prescribed in § 259b, the petitioner prayed for an order directing that mail of the kind in question be held and detained until the conclusion of the administrative proceeding, or until the further order of the court.

Toberoff, on April 4, 1958, filed an answer to this petition. He resisted, on both procedural and substantive grounds, the request for a court-sanctioned extension of the impounding order. At a hearing held on April 7, 1958, oral testimony, affidavits, and exhibits were received and considered by the court. The court then orally announced that it agreed with the position of the Postmaster General.¹ 

The court thereupon orally ordered that the administrative order to impound Toberoff's mail remain in effect, and that Toberoff's motion to dismiss the petition be denied. The court also directed the United States attorney to prepare formal findings and order thereon. The minute order entered on that date is quoted in the margin.² 

On April 11, 1958, in conformance with Rule 7, Local Rules, Southern District of California, West's Ann.Code, proposed findings of fact and conclusions of law and a proposed order were lodged with the court. These documents were then held pursuant to Rule 7, in order that opposing counsel might have an opportunity to file an objection to form within five days.

On April 14, 1958, Toberoff moved the court for an order requiring forthwith delivery of his mail. The ground for such relief, as asserted in the proposed order which he lodged with the court, was that the administrative impounding order had by its terms expired, and no valid court order continuing the impounding order in effect had been made prior to such expiration date. Toberoff, at the same time, filed objections to the Postmaster General's proposed findings of fact, conclusions of law, and order.

The motion and objections were considered and acted upon on that day. The motion for an order directing forthwith delivery of mail was denied. The objections to the proposed findings of fact, conclusions of law, and order were overruled. The findings, conclusions, and order extending the impounding order were thereupon signed and filed. On the following day, Toberoff instituted this appeal.³ 

The single question before us is whether the jurisdiction of the district court to enter such an order had expired prior to the entry of an otherwise valid order extending the administrative impounding order.

The jurisdiction of the district court to enter such an order is derived from 39 U.S.C.A. § 259b, the applicable portion of which is quoted in the margin.⁴ 

It is made plain in this statute that such an order is to be entered only in conjunction with, and as an extension of, an administrative impounding order entered prior thereto, in proceedings pending before the Post Office Department. It follows that, if the administrative impounding order has expired prior to the entry of a court order extending the impounding period, jurisdiction to enter such court order lapses, and a purported order entered thereafter is without force or effect.

The administrative impounding order here in question expired, by its own terms, on April 10, 1958, "unless the period of impounding is extended by order of the United States District Court upon petition therefor * * *." The necessary inference from this language is that the court order must be entered on or before April 10, 1958. If entered thereafter, it could not be an extension of the administrative impounding order, since the latter order would have already expired.

But, apart from the language of the administrative order, we think the statute itself required that the court order be entered within the twenty-day maximum period that an administrative impounding order may, under § 259b, remain in effect. Indeed, it is very probable that the language of the administrative order was dictated by the requirements of the statute.

Due to the somewhat artless phraseology of portions of § 259b, there is room to argue that a court order must be petitioned for, but need not be obtained, prior to the expiration of the twenty-day period.

The section as a whole, however, indicates the awareness of Congress that the Postmaster General was being therein given great and unusual power,⁵  and that strict limitations upon the exercise of such power were required.⁶  The provision that an administrative impounding order shall expire in twenty days unless a court order is obtained is the most important of these built-in limitations. Yet, it could prove largely ineffective for this purpose if the mere filing of a court petition would serve to continue the administrative order in effect.⁷ 

The legislative history of § 259b also persuasively argues against the construction which the Postmaster General would put on the act.⁸ 

It is for these reasons that we have concluded that the Postmaster General's order of March 17, 1958, expired on April 10, 1958, unless a valid court order directing continued retention of such mail was entered on or prior to that date.

The only order entered on or prior to that date was the minute entry of April 7, 1958, based upon the court's oral pronouncement from the bench at the conclusion of the hearing on April 7, 1958.⁹ 

Under § 259b, a court order continuing in effect an administrative impounding order is to be entered only upon a determination that the continued withholding and detention of the mail is reasonable and necessary to the effective enforcement of § 259a. Toberoff v. Summerfield, 9 Cir., 245 F.2d 360.

Under § 259b, the determination so made is reviewable on appeal. A determination of this kind was reviewed and set aside in Toberoff, supra. Where, however, the determination is not made of record, it cannot be reviewed, and the aggrieved person is deprived of the kind of an appeal contemplated by the statute. It follows that, if a purported order is not in such form that the affected person is able to obtain full appellate review thereof, it is not the kind of an order authorized by the statute, and is without effect.

The Postmaster General calls attention to the fact that the preparation and entry of findings of fact to carry out the oral pronouncement of the court on April 7, 1958, proceeded as expeditiously as Local Rule 7 of that court would permit. This is doubtless true, and the practical difficulty of obtaining entry of formal findings of fact within the twenty-day period is also recognized.

It may be that, in cases of this kind, the only practical course is to incorporate findings and conclusions in an opinion or memorandum of decision filed by the court immediately upon the conclusion of the hearing. This is permissible under Rule 52, Federal Rules of Civil Procedure, 28 U.S.C.A. It would also appear to be permissible under Local Rule 7, since the applicable paragraph of that rule begins with the words, "unless the court otherwise directs. * * *"

For the reasons stated above, we hold that the minute entry of April 7, 1958, was not a valid and effective order of the kind authorized by § 259b. In view of the time limit specified in that section, we also hold that the findings of fact entered on April 14, 1958, did not operate, retrospectively, to transform that ineffective minute entry into a valid order as of the earlier date.¹⁰ 

No valid court order having been entered on or prior to April 10, 1958, the jurisdiction of the trial court to act in such matter expired on that date. The order of April 14, 1958, is therefore without legal effect.

Reversed, with directions to dismiss the petition and order all mail addressed to appellant held or detained in any post office pursuant to the administrative order of March 17, 1958, released forthwith for delivery.