suggested his going out of business, the Department could hardly be expected to concur in a proposal that Pinkus stay in business, whether this proposal came before, during, or after the administrative hearing. Its failure to do so thus does not evidence an adamant refusal to consider any compromise of the situation, particularly in the light of the other factors above enumerated. This objection of plaintiff is insubstantial.
The renewed Department proceedings
The history of this case is lengthy and complicated. The activities of Pinkus as to his fat reducing plan from a massage machine were first the subject of attack by the Postmaster General in 1946. This was after his advertisements to the public in Fucine, a different weight reduction device, that vibrating devices would not reduce weight. But plaintiff's spot reduction project preceded his similar litigation with the Department over Kelp-i-dine, Pinkus' third weight reducing project, the subject of the above decision of our highest court in Reilly v. Pinkus, supra. Since this first departmental hearing as to Pinkus' present product, the 'spot reducer', preceded the new principle announced by the Supreme Court in Reilly v. Pinkus, supra, the Department in this prior hearing on his spot reducer had, unfortunately, restricted Pinkus' cross-examination in the very way Reilly v. Pinkus, supra, held the departmental hearing therein was rendered invalid. But before that decision was rendered as to Kelp-i-dine, Pinkus had commenced an action in this Court seeking to set aside the first departmental fraud order as to the spot reducer, and had obtained from this Court a temporary restraint forbidding its enforcement.
Thereafter, when the Department found, by virtue of the decision of our highest court in Reilly v. Pinkus, supra, that its then proceedings as to the spot reducer would doubtless be set aside as invalid, for the very cause found to invalidate its order involved in Reilly v. Pinkus, supra, the Department, in the light of its duty to protect the public, instituted a new proceeding of a similar nature against Pinkus, but based, not upon his advertisements in 1946 and theretofore, which were the basis of the first spot reducer proceedings against him, but upon his somewhat different advertisements in 1951 -- just before the institution of these second proceedings. Pinkus now claims these second proceedings are invalid for procedural reasons.
However, plaintiff here overlooks several important facts. (1) As our highest court has said, in Donaldson v. Read Magazine, supra, 333 U.S. at page 184, 68 S. Ct. at page 595, where the Postmaster General modified a fraud order while the case was on appeal before the Supreme Court,
'We have no doubt as to the Postmaster General's authority to modify the fraud order. Having concluded that the original order was broader than necessary to reach the fraud proved, the Postmaster General not only possessed the power but he had the duty to reduce its scope to what was essential for that purpose * * * No persuasive reason has been suggested why the Postmaster General should be without power to modify an order of this kind.'
Having the power to modify this order, having also the duty to protect the public, and learning of the defectiveness of his earlier proceedings from the recent decision of Reilly v. Pinkus, supra, it therefore lay within the discretion of the Postmaster General as to how to obtain, without unreasonable delay, the issuance of a fraud order which would be valid and would protect the public. To that end, the Postmaster General could have pursued alternative courses. He could have executed his admitted power by starting a new and valid proceeding -- which he did. Or he could have fought Pinkus' attack on his first proceeding through the courts. This latter could only have cost both Pinkus and him additional time and expense, with the same result, i.e., a reopening of the proceedings against Pinkus to correct the defect in the original proceeding by permitting additional hearings. His choice was thus both wise and fair, to Pinkus and to the public.
(2) Not only so, but the District Court stay simply prevented execution of the fraud order, which would have noticed all who ordered Pinkus' product that same was in fraud. It did not attempt to stay the Postmaster General, or even Reilly, the local Postmaster, from instituting new proceedings. There was no contempt of court involved. Indeed, this stay was itself dismissed by another branch of this Court after the starting of the new administrative proceedings here.
(3) Pinkus was not unduly harassed by these second proceedings. In fact, as seen above, they saved him the additional harassment of being required to take proceedings in the New Jersey District, and perhaps on appeal thereafter, to have such earlier proceedings invalidated, for the cause found to exist in Reilly v. Pinkus, supra. This cause plaintiff's counsel at the argument stated he was quite willing to assume existed in fact. Indeed, had Pinkus claimed he was being unduly harassed thereby, his appropriate remedy lay in a proceeding in the District Court for the District of Columbia against the Postmaster General himself, to see if he could prove such second proceeding to be undue harassment. But this Pinkus did not attempt.
(4) Nor do International Union of Mine, Mill and Smelter Workers etc., v. Eagle-Picher, etc., Co., 1944, 325 U.S. 335, 65 S. Ct. 1166, 89 L. Ed. 1649, and certain similar cases, aid plaintiff. They all go to the well known point that there should be a finality to litigation. Thus, since a final decree in these cases had been entered by the Court, and in fact in Eagle-Picher this decree had lain dormant for more than two years thereafter, our highest Court held that the N.L.R.B. did not have the right to reopen that case. On the contrary, here there had been no final decree by any court affirming the administrative determination. In addition, as seen above, the Post Office Department had the power and the duty to modify its action, in justice to all concerned, and this it did in a way which saved plaintiff Pinkus both time and money.
In short, this last procedural objection of plaintiff is without substance.
Since plaintiff's procedural objections lack substance, and on the merits, there is ample support in the record for the Department's finding that plaintiff had been conducting a 'scheme for obtaining money or property of any kind through the mails by means of (intentionally) false or fraudulent * * * representations', defendant's motion for summary judgment will be granted, and an order may be entered accordingly, also vacating the preliminary injunction now in effect.