Bernard L. Silver, Cartwright-Mitchell, Inc., a Delaware Corporation v. United States Postal Service

951 F.2d 1033 Bernard L. SILVER, Cartwright-Mitchell, Inc., a Delaware corporation, Plaintiffs-Appellants, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee. No. 89-16447. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 13, 1991. Decided Dec. 11, 1991. Dale B. Hinson, Washington, D.C. and W. Leslie Sully, Jr., Sully, Lenhardt & Raizin, Las Vegas, Nev., for plaintiffs-appellants. Irene M. Solet, U.S. Dept. of Justice, Washington, D.C., for defendant-appellee. Appeal from the United States District Court for the District of Nevada. Before GOODWIN, THOMPSON and O'SCANNLAIN, Circuit Judges. PER CURIAM: 1 This appeal squarely raises the constitutionality of the statute creating the Board of Governors of the United States Postal Service. 2 * In September 1986, the Postal Service's General Counsel filed a complaint against Bernard L. Silver alleging that Silver was engaged in a scheme to obtain money or property through the mails by means of false representations, in violation of 39 U.S.C. § 3005 . The General Counsel alleged that Silver, operating through his business Cartwright-Mitchell, Inc., made representations in advertisements that his product,…

dissenting:

In my view, the Postmaster General and Deputy Postmaster General are not appointed in a manner consistent with the Appointments Clause, art. 2, § 2, cl. 2. Thus, I respectfully dissent from part IIB of the opinion of the court.

I

The Appointments Clause describes two processes for appointments of officers of the United States, and those appointed by the respective processes have come to be known as “principal” or “inferior” officers. Principal, 1 i.e., non-“inferior,” officers must be appointed by the President with the advice and consent of the Senate. For inferior officers, “the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” Id.

In our scheme of separation of powers the duty to enforce the laws of the United States falls upon the President. The President may delegate his enforcement duties to members of the executive branch, but the Appointments Clause serves as a check on such delegation. See Myers v. United States, 272 U.S. 52, 117-18 , 47 S.Ct. 21, 25-26 , 71 L.Ed. 160 (1926). Executive branch enforcement powers may only be exercised by…

This appeal squarely raises the constitutionality of the statute creating the Board of Governors of the United States Postal Service.

I

In September 1986, the Postal Service’s General Counsel filed a complaint against Bernard L. Silver alleging that Silver was engaged in a scheme to obtain money or property through the mails by means of false representations, in violation of 39 U.S.C. § 3005 . The General Counsel alleged that Silver, operating through his business Cartwright-Mitchell, Inc., made representations in advertisements that his product, Mammrae-9000, would cause a female user’s breasts to grow larger, and that such representations were materially false.

A hearing was held before an Administrative Law Judge (“AU”). The Postal Service presented testimony from an expert in medicine and an expert in consumer psychology and marketing. Silver presented the testimony of his business manager, the president of the firm that manufactures Mammrae-9000, and an expert in ad *1035 vertising and consumer behavior. The ALJ entered an Initial Decision in favor of the Postal Service.

Silver appealed to the Postal Service Judicial Officer. The Judicial Officer found that the AU’s…