United Seniors Association, Incorporated v. Social Security Administration, National Taxpayers Union, Amicus Supporting

potential theft, ents from identity from SHEDD, Before WILLIAMS and spending their Security Social benefits on HAMILTON, Judges, Circuit and Senior organizations camouflaging governmen- as Judge. Circuit entities, tal from and endless solicitations. Congress was concerned that the number by Petition for review published denied of mailing appeals “[m]ass to Social Secu- opinion. Judge WILLIAMS wrote the rity beneficiaries” with “inaccurate and opinion, in which Senior Judge misleading information” dramatically was joined. Judge HAMILTON SHEDD increasing. Misleading Deceptive & a separate wrote concurring opinion. Mailings Security Beneficiaries, to Social Hearing Before the Subcommittee on So- OPINION cial Security of the Ways Committee on WILLIAMS, Judge. Circuit Means, (1987). and 100th Cong. Con- gress (USA) sought preserve also Association, the line of United Seniors Inc. communication petitions for between the SSA and its review of a decision of the recipients Department recipi- because of its fear that if Health and Human Ser- (the Departmental vices’ ents were inundated Appeals deceptive Board with mail- Board) ings, upholding a there would be an ... by determination “inerease[d] (ALJ) judge administrative law likelihood that true mailings that envel- Government opes mailed destroyed USA violated will be being opened.” 1140 of the without Comm, Act, Means, Ways U.S.C.A. 1320b- House on 102d (West Supp.2005). The up- Cong., Report Deceptive Board also on Solicitations 5 $554,196 (Comm. 1992). held a penalty imposed by civil Print support from individuals money and other end, the misuse prohibits § 1140 To that designs its mailings. USA emblems, through mass or names refer- “symbols, open recipients to entice pre- Security” hopes ence to Social and it mails information envelopes, Security recipi- by Social venting confusion people. to the same repeatedly solicitations part, In relevant Id. ents. following: states the form the envelopes used Two (a) acts Prohibited Attachments. of this action. See basis (1) use, in connection may person No the words “SO- envelope first has constituting an advertise- any item in bold letters printed CIAL SECURITY” book, solicitation, circular, ment, pam- (Attach- envelope. top across communication, play, or a other phlet, or A) envelope of the is de- The front ment telecast, broadcast, or picture, motion express a or to resemble FedEx signed or with other alone production, other a “Han- mail letter. There is box labeled words, letters, symbols, or emblems— options dling Instructions” which (A) Alert”, Service”, Security”, “Express “Social “Urgent the words “Social Account”, Security Sys- Delivery” appear, and the small Security “Social “Standard Administration”, tem”, Security marked with “Urgent Alert” is “Social box beside 49.) (J.A. “Medicare”, & envelope “Centers for Medicare The also a red check. Services”, of “Department tracking number. displays package Medicaid a Services”, envelope, “Health perimeter and Human of the Health Around Services”, “Supplemental ALERT” and Human SECURITY words “SOCIAL “Medicaid”, Security Program”, Income and over. Seniors As- appear over United Update”, sociation, “Federal Ben- the sender of the “Death Benefits Inc. is listed as 49.) Information”, (J.A. Expenses”, “Funeral also envelope efit The label letter. Plan”, authorizing delivery the let- with- Supplemental or “Final a block contains “DHHS”, “SSI”, “SSA”, “CMS”, or of this en- signature. ters out a On the back or of any message or other combination variation velope, “—URGENT—... ... in manner such words or letters INFORMATION SECURITY SOCIAL (J.A. 50.) or The person appears. which such knows should ENCLOSED” convey, or in a manner ALERT” is know would border “SOCIAL SECURITY reasonably interpreted envelope. could be printed which on the back of the also (J.A. 50.) conveying, the false im- envelope dispute or construed as The second approved, item is en- pression essentially design, such the same but contains dorsed, authorized the Social Se- ALERT” bor- the “SOCIAL SECURITY curity envelope Administration.... The second is present. der is not mailer, opened by pulling which snap a statute, Security By Id. the Social Admin- edge envelope. of the perforated off the (SSA) the en- charged istration snap recipient The mailer directs the “TO provision. 42 U.S.C.A. forcement of this (Attachment OPEN IMMEDIATELY.” 1320b-10(d). B) envelope con- The rear of second lobbying and advo- nonprofit, USA is message tains the “SOCIAL SECURITY cacy to educate and mobi- group organized (J.A. INFORMATION ENCLOSED.” variety citizens on a of issues lize senior 53.) them, including Security affecting Social 2002, began receiving complaints reported total rev- The SSA benefits. In USA and, after a $24,975,370 concerning mailings, USA’s profit and a net of enues of mailings, deter- $500,000. of USA’s the SSA USA solicits review approximately 1140(a)(1). recipients mined that USA had violated would believe USA’s envel- determination, in Acting Septem- opes on that “contain[ed] information about their began discussions with ber the SSA security social (Transcript benefit.” alleged regarding USA USA’s breaches ALJ, proceedings April before the 178.) and continued these discus- professor at The also testified that a penalty sions until the issuance of letter “Urgent the checkmark beside Alert” penalty in August 2001. The SSA’s letter would direct elder “to recipients the fact 554,196 had advised USA that it mailed urgent was [the and it information] envelopes that violated important open for was them envel- [the $554,196 imposed a fine dollar per 179.) —one ope] very promptly.” (Transcript at envelope. penalty Upon receipt let- professor The technique noted that such a ter, hearing requested before an was standard for mass marketers “to cre- ALJ, provided Security as the Social under urgency person ate sense of for the 498.109(b)(2004). regulations. 20 C.F.R. 180.) open the envelope.” (Transcript at evidentiary hearing professor The typi- ALJ held on further testified that a which April during pre- elderly the SSA cal would postal sented a with the inspector United be more inclined open Service, who States Postal described the dispose than to of them because of the misleading envelopes. nature of USA’s prominent display Security” of “Social on postal inspector The testified that USA’s envelope the and the typical recip- because or third mailers were standard class mail ient would envelopes believe the were offi- instructions and the on additional the en- cial documents. number,

velopes tracking such as han- the In response, representatives from USA instructions, dling and authorization for recipients testified that wanted USA to delivery signature legiti- without served no message focus their attention on the of the postal postal inspector mate function. The mailing, not USA as the sender. USA’s also testified that red ink used the for the representative's that also conceded the en- ALERT” “SOCIAL SECURITY border in velopes targeted were to senior citizens. ink contrast to the used for black the technique generally sender’s address is a testimony Based on and the his own to used mass detract attention mailers envelopes, review of the contested ALJ from the sender block and focus attention envelopes found that USA’s violated message. on the Security post- Social The 1140(a)(1) $554,196 § and that the fine was al testified that inspector further from appealed reasonable. USA the ALJ’s de- viewing appeared it envelope, USA adopted cision to the which Board was trying disguise mailing to mass ALJ’s decision. The Commissioner SSA envelopes nature of its and that a not to her discretion chose exercise to of such an would envelope “[a]t first modify or decision revise the Board’s and glance” believe it to from the SSA and be consequently, decision the ALJ’s became Security to contain Social information. final Board. decision of the USA has for the Board’s deci- presented testimony petitioned

The also review of SSA from jurisdiction 42 professor employed sion and we have under of elder with the law 2003).1 1320a-7a(e)(West Persons, § American Association of Retired U.S.C.A. Be- opined who that the Board the ALJ’s deci- typical adopted cause grant accepted urging petition 1. We to have an amicus curiae brief of USA the court Taxpayers support from the Union for review. National 402 1140(a)(1) here, § relevant ALJ’s As

sion, the merits of the we review of the words “Social Se the use prohibits decision. con curity” any “in item connection solicitation, advertisement, stituting an II. book, circular, or other commu pamphlet, review, argues USA petition its for In words, ... alone or with other nication 1140(a)(1) to envel- apply § does not that letters, symbols, or emblems.” alone, does that substantial evidence opes 10(a)(1). argues U.S.C.A. 1320b— finding that USA’s support not the ALJ’s included are not and that envelopes violated 1140(a)(1) because, under the “rule unconstitutionally vague antecedent,” the words “other the last argu- each We address and overbroad.2 modify merely “advertise communication” in turn. ment solicitation, circular, book, ment, pam of those by covering the contents

phlet” items, expand they cannot be read A. argu envelopes. the list to include USA’s misunderstanding indicates a ment According antecedent. rule of the last argument primary antecedent, limiting last “a the rule of the at apply does not phrase ordinarily should be read clause or questions all. review de novo law. We modifying only phrase the noun or as Hanover, County v. Crutchfield immediately it follows.” Barnhart v. (4th Cir.2003). F.3d Thomas, 540 U.S. S.Ct. (2003). statutes, Supreme interpreting we start 157 L.Ed.2d 333 “When simple example a plain language.” Dep’t provided the U.S. Court Ass’n, in v. rule of the last antecedent Barnhart Labor v. North Carolina Growers (4th Cir.2004). fact, leaving 345, “parents, “In Thomas: If who before F.3d 350 377 teenage son alone in the house for language plain, statute’s is the their ‘when the him, weekend, pun warn ‘You will be function of the courts is to enforce it the sole ” engage in you party Bank v. ished if throw a according to its terms.’ Discover (4th Cir.2005) Vaden, 366, any activity damages the 396 369 other F.3d ” house,’ limiting damages “that v. Graham the clause (quoting ex rel. Wilson U.S. Dist., only the modifies the last anteced County Conserv. 367 house” Soil & Water (4th Cir.2004)). 245, activity” party.” “a “any inter ent other and not F.3d 247 When Thus, statute, teenager punished could give a we must words their Id. the be preting throwing party regardless Id. If for a of wheth ordinary meaning.” “common and Id.; damage in a and “it is er occurred to the house. ambiguity there is an statute Immigration the v. & Customs apparent Congress expect would see also Jama — —, —, Enforcement, of law U.S. 125 agency speak ‘to with the force ..., (2005)(ap- a 160 L.Ed.2d 708 ambiguity’ when it addresses S.Ct. [the] antecedent rule to hold that reviewing accept agency’s plying court must the last 1231(b)(l)(E)(vii) in long provision as it is 8 U.S.C.A. construction of that statute so ” country stating v. that the to which alien (quoting ‘reasonable.’ Id. United States 229, 218, the does not Corp., deported accept 121 S.Ct. must alien Mead 533 U.S. 1231(b)(2)(E)(i-vi)). (2001)). In the 2164, 150 §to apply L.Ed.2d 292 also penalty. the civil USA does not contest the reasonableness

403 case, 301, Group Rogan, the rule of the last anteced- noids v. 375 306 present F.3d (4th Cir.2004)(internal “other applicable quotation not to the words marks ent is omitted). are not communication” because the words Instead, the noun or referential. limiting Because to ambiguous as a phrase “other communication” denotes whether constitute “other com- of the list. R. Ebbitt

member See Wilma munication[s],” we in- examine the SSA’s Ebbitt, English R. Index to 193 & David terpretation of the statute. “When a court (8th ed.1990). agency’s reviews an construction stat- of a administers, ute that it employs [the court] gen ejusdem the doctrine of Under the deferential standard of articu- review eris, however, § a latent 1140 does contain lated Chevron U.S.A. Inc. v. Natural According generis, ambiguity. ejusdem to Council, Inc., 837, Res. 467 U.S. general specific Def. term follows a “when (1984).” 2778, S.Ct. 81 L.Ed.2d 694 one, general term should under be Union, E.E.O.C. v. Int’l Seafarers subjects a reference to to the stood as akin (4th Cir.2005). F.3d Under Chev- specific Nor one with enumeration.” ron, agency’s we “ask whether the is a rule Train Ry. Western Co. v. Am. & folk permissible interpretation organic of its 117, 129, 111 Dispatchers, 499 U.S. S.Ct. ALJ, at statute.” Id. 205. The for- (1991). Applying L.Ed.2d 95 mal after ruling and the benefit of a hear- here, “other communication” doctrine ing, determined that position, SSA’s only read to refer to a communi should be that “other include en- communication[s]” “advertisement, solicita cation similar velopes, interpretation was reasonable tion, circular, book, pamphlet.” One [and] Congress empowered statute that reasonably envelopes, could conceive that difficulty SSA to enforce.3 We have no messages, as folded containers for determination, concluding that the ALJ’s usually convey only cursory infor which are a form of communica- to a recipient, mation are dissimilar may prohibited tion that be under advertisements, books, solicitations, pam is a interpretation reasonable circulars, phlets, and which used to are of the statute. educate, persuade, or inform a on in-depth just more than the name that we no argues matters USA owe deference of address and address the addressor and the ALJ’s decision because this is a matter hand, instances, statutory the other in construction pure ee. On some of and Chevron envelope may convey applicable. an infor therefore is not We additional deference recipient. example, reject argument. Congress to a a en- mation For USA’s has may state on of an to the SSA and to the Department business the outside trusted having protec- that it is a which of Health Human Services the envelope sale and envelope like an tion of of communi- government’s case the could function the lines Thus, com advertisement. because “other cation with its citizens on matters related compels Security, § nor 42 plainly munication” “neither to Social U.S.C.A. 1320b- 10(d), determination com- clearly precludes interpretation, and the of what [USA’s] import ... and threaten these “falls precise ambiguous its munications lines de- squarely agency’s” not free Huma- the and the certainly from doubt.” within cases. Although interpretation e.g., Aguirre-Aguirre, 526 3. the this case INS v. See 423-25, 1439, adjudication, 415, a not a arises from formal no- 143 U.S. 119 S.Ct. rule, Supreme comment Court (1999). tice and the L.Ed.2d 590 applying has had no trouble in such Chevron 404 simply Seafarers, reading of the statute expertise. 394 F.3d USA’s

partment’s plain language because the (finding applicable comport at 201 Chevron does not 1140(a)(1). in- statutory at issue interpretation § the no in the find error We a of issues that fall volved “multitude may envelopes conclusion that alone ALJ’s agency’s special com- squarely 1140(a)(1). within the § violate defer to the petence”). Accordingly, we 1140(a)(1) § interpretation of

SSA’s B. “other commu- envelopes conclude that are under that statute. nieation[s]” (1) Next, argues that the ALJ USA by envelopes that violated finding erred its § because the ALJ did not re- if argues next that even en recipients of quire evidence that USA’s 1140(a)(1), § under velopes are covered (2) actually that envelopes were misled envelope an must be exam the contents qf envelopes could not envelope itself to de along ined with the reasonably thinking be misled into the envelope termine if the creates false by or endorsed the mailings were from approved that it or endorsed impression claim SSA. We address each below. government. agree with the We findings the ALJ’s factual We review plain language ALJ they supported by if are sub determine contrary interpre supports evidence. 42 1320a- stantial U.S.C.A. tation. Because themselves are 7a(e). evidence is ‘such rele “Substantial and because an communication[s]” “other might vant evidence as a reasonable mind words, letters, envelope itself can include adequate support a conclu accept as symbols, or emblems create a “false ” Chater, Craig sion.’ v. 76 F.3d 589 impression approved, that such item is en (4th Cir.1996)(quoting Richardson v. Pe dorsed, or authorized the Social Securi rales, 28 402 U.S. S.Ct. Administration,” ty prohibit use of the (1971)). “It of more L.Ed.2d 842 consists words, phrases, ed and abbreviations on may than a of evidence but mere scintilla 1140(a)(1). violate alone can preponderance.” than a be somewhat less if example, 1320b-10. For U.S.C.A. Celebrezze, F.2d (quoting Id. Laws v. organization posters used advertise (4th Cir.1966)). 640, posters for a and the television broadcast conveyed impression the false To violate the words posters, organiza

SSA endorsed the “in Security” must be used a man “Social posters tion could on the not defend ner which knows or should know [the user] ground that no broadcast viewer could rea in a convey, would manner which rea sonably believe the endorsed the SSA sonably or interpreted could be construed broadcast. Once the viewer tunes into the conveying, impression the that as false broadcast, misleading poster already the endorsed, au approved, such item or Thus, accomplished purpose. will have its Security by thorized the Social Adminis poster the advertisements would constitute § tration.” U.S.C.A. 1320b-10. The separate a “communication” under (1) 1140(a)(1). to mis ALJ found: that USA intended Similarly, a recipient once recipients thinking into that the lead SSA misleading envelope opens envelope a the authorized, endorsed, contents, or their approved begins reading decep its the (2) envelopes; recipient that a could pur tive “communication” has served its reasonably envelopes USA’s pose. construe convey impression approval, an endorse- of transmission is used to expedite and ment, by delivery or authorization the assure of important SSA. information of (J.A. 32.) urgent an quality.” The ALJ contention, Addressing first that USA’s further noted that a person easily “could by finding the ALJ erred liable with- conclude, based on the use of the words recipients actually out evidence that were Security’ ‘Social phrases and similar in misled, being we conclude substantial evi- conjunction with the envelope’s apparent supported dence the ALJ’s conclusion. express overnight or delivery, mode of that 1140(a)(1) inquiry The baseline under the envelope contained something official could, envelopes reasonably whether the be relating recipient’s to that Security construed, interpreted conveyed or to have (J.A. 33.) benefits.” Although the ALJ impression ap- the false that the SSA that, recognized upon scrutiny close endorsed, proved, or authorized USA’s en- postage stamp, sophisticated a recipient velopes, not whether a recipient fact could discern that envelopes the were sent interpreted way. or construed them that via mail bulk from a non-profit organiza- Admittedly, relatively this test a creates tion and that the envelopes did not resem- support finding low threshold to of liabil- by SSA, ble those used gave the the ALJ Nonetheless, ity. provided the little weight findings to these in reaching authority ALJ with the to find USA liable his conclusion a recipient, because in de- sample under based on the ciding open whether to the envelope would court, envelopes provided to the even with- immediately not recall what envelopes SSA out evidence of actual recipi- confusion like, looked nor a recipient closely would ents. examine envelope’s postage the stamp. USA’s second contention'—-that recip- no that, Additionally, the ALJ although found reasonably ient could have construed the recipient could closely conclude exam- endorsed, envelopes to have been author- ining that USA sent ized, approved by mailers, SSA-—also fails. may still not be able to The ALJ found that the words “Social approved, determine whether the SSA en- dorsed, (J.A. Security” envelope on the an “part envelopes. were or authorized the 36.) design clearly conveys overall the im-

pression that the envelope impor- contains In reaching the conclusion that USA’s tant Social information sent from envelopes violated the ALJ (J.A. 32.) an official source.” The ALJ compared also to an en- found that the envelopes’ address labels velope that the permis- SSA found to have gave recipients impression sibly used the words Security.” “Social mailer is from an official source because (J.A. 36.) approved envelope The SSA express the labels resembled mail or over- message which contained the “IMPOR- (J.A. 32.) night delivery labels. For ex- TANT NEW INFORMATION EN- ample, the labels contain per- address fake CLOSED ON: PENDING SENATE AC- perforated forations similar to the labels THE TION ON SOCIAL SECURITY found on FedEx labels. (J.A. 36.) The ALJ rea- LOCK BOX BILL.” The ALJ soned that the envelopes’ resemblance to distinguished envelope by finding this mail, overnight, express or FedEx labels approved envelope did not include “impart[ed] an quality official .... [be- “ambiguous Security references to Social overnight delivery express cause] [a]n or might person believing that mislead a into mail envelope expensive is to send and the envelope] that is from [this or authorized by would understand that this mode the SSA or that it contains information

406 addressing In chal recipient’s Security bene- USA’s overbreadth

about (J.A. 36.) lenge, note that “the over-breadth doc we fits.” ‘strong applied trine is medicine’ to be conclude that substantial evidence We ” only ‘sparingly and as last resort.’ Am. findings. repeated the supports ALJ’s Reno, 642, League Inc. v. 47 F.3d 653 Life Security”, to the “Social references “Social (4th Cir.1995)(quoting Broadrick v. Okla border, handling Security phony Alert” the homa, 2908, 413 U.S. 93 S.Ct. 37 instructions, envelopes’ and resem- the (1973)). prevail, L.Ed.2d 830 “[T]o special shipping blance to methods could [challenge] ... must demon overbreadth reasonably to that recipients lead believe a regulation’s strate that overbreadth is official envelopes the contain information real, well, only not as but substantial relating to their Social benefits judged regu in relation to challenged the that must with at the earliest be dealt legitimate sweep plainly lation’s and also Testimony from moment. the elder law limiting partial or in no construction professor envelopes, confirms that such as seeming validation could remove the threat USA, by to those used tend mislead constitutionally protected deterrence elderly recipients believing confuse into 513(inter- Bason, expression.” at 303 F.3d the bear official Given business. omitted). nal citations review, our deferential of we af- standard first construing USA contends firm finding the ALJ’s that USA’s envel- 1140(a)(1) alone, § apply 1140(a)(1). opes violated sup- the statute is overbroad because it presses protected speech the within the C. envelopes. argument This is without mer- Assuming it. the contents of USA’s envel- Finally, argues USA materials, contained opes non-deceptive 1140(a)(1) unconstitutionally vague §in nothing nor in the ALJ’s and overbroad under the First Amend decision, prohibits mailing from ment. We review such claims de novo. in non-deceptive same information envel- Carandola, Bason, Giovani Ltd. v. ope. (4th Cir.2002).4 507, F.3d 1140(a)(1) USA next contends that In a facial challenge to the overbreadth prohibition overbroad because its on the law, vagueness of a a court’s first “in use of the words a manner which rea- task is to determine whether the enact- sonably could be interpreted or construed” ment reaches a substantial amount of conveying impression” as gov- “false constitutionally If protected conduct. it ernmental endorsement amounts to the not, challenge does then the overbreadth liability of strict imposition upon users of must fail. The court should then exam- the words. begin examining We ine vagueness challenge.... the facial type speech § proscribes. Village Flipside, prohibition Estates v. The statute’s reaches both of Hoffman Estates, Inc., 489, 455 U.S. 494- commercial and speech; non-commercial Hoffman however, prohibition S.Ct. L.Ed.2d 362 in both contexts the (1982)(footnotes omitted). merely restricts the manner which the USA, manner, Although challenged authority in some to address constitutional chal- as violative First Amend- lenges to federal statutes. 20 C.F.R. ALJ, ment before the the ALJ did not address 498.204(c)(2004). challenge because the ALJ does not have

407 prohibi- can be used. The statute’s can be sustained if “it a sufficiently words serves not speech strong, tion on commercial need detain subordinating interest.” Village of the overbreadth doctrine long Env’t, us because Schaumburg v. Citizens a Better for apply speech. to commercial 620, 636, does not 444 826, U.S. 100 S.Ct. Estates, 497, (1980), 455 U.S. at 102 L.Ed.2d 73 government The a has Hoffman prohibition S.Ct. 1186. The statute’s on substantial in protecting interest Social Se- however, speech, gives non-commercial us curity, as the financial lifeline of most sen- pause. Americans, ior and it has a strong interest in protecting recipients prongs. Section has two deceptive mailings. Thus, from to the ex- prong The first of the plainly statute tent that regulates man- only deceptive speech by reaches prohibit solicit, ner in charity may which a it is ing person uses of the words that a “knows constitutional because of the overriding convey” or should know would the false governmental interest. endorsement, impression governmental of approval, Although authorization. The prong second of how- protects right “[t]he First Amendment ever, bars use of the words “which reason- solicitation, to ... engage charitable [it] ably interpreted could be or construed as deceptive speech. does not shield fraud” or conveying, impression” the false govern- of Assoc., Inc., Telemarketing Illinois v. endorsement, approval, mental or authori- 600, 611-612, 1829, U.S. 123 S.Ct. 155 zation prong and is the to which USA (2003). Instead, L.Ed.2d 793 “like other objects. prong Because this does not re- public deception, forms of fraudulent chari quire speaker to have an intent unprotected speech.” table solicitation is deceive, prong the second possibly could Id. (citing Magazine, Donaldson v. Read protected speech. reach some recog- We Inc., 333 U.S. 68 S.Ct. 92 nize, however, any that such non-commer- (the (1948) L.Ed. power “protect cial, non-deceptive speech protected by the people against “always fraud” has been constitutes, most, First Amendment at recognized country firmly in this and is portion speech minuscule of the reached established”)). who One intends to mis fact, by the In statute. USA has not thinking gov lead individuals into that the suggested single instance in which a use ernment has his message endorsed is not of one of pro-scribed the nineteen words protection, entitled to First Amendment “reasonably could” be construed as con- message deceptive nor is one whose is so veying impression governmen- the false of misleading that he should have known constituting tal endorsement without also message conveyed the false im “person use that a knows or should know” pression governmental endorsement. convey a impression govern- would false Dist., L.A. Downs v. School Cf. Unified instance, mental endorsement. For in this (9th Cir.2000)(observ 228 F.3d case, the found that ALJ USA knew or ing private citizens have “no First should have known its were right speak Amendment govern for the misleading and that the reason- ment”). ably conveying could be construed as government governmental

USA contends that the can impression false endorse- only regulate pre- overlaps charitable solicitation to ment. thus prong The second disagree. significantly vent actual fraud. prong. We first Without acknowledged Court has that a “direct and evidence of the statute’s substantial bur- protected activity” protected light substantial limitation on and in speech den on 408

important governmental protect- interests a facial attack on a when it is statute statute, by ed we conclude that in surely majority valid the vast of its 1140(a)(1) Hill, unconstitutionally § not over- applications.” intended 530 at U.S. broad. 733, 120 S.Ct. 2480.5 Having determined that reject We therefore constitutional USA’s 1140(a)(1) § unconstitutionally is not over- 1140(a)(1) § challenges to because “[a]ll broad, that it might pro but burden some that is at issue is a statute that forbids the speech, vagueness tected we turn to USA’s impersonation agency by of a federal “A challenge. impermissi statute can be private organization sowing bent on confu- bly vague independent for either of two among program sion beneficiaries of a and First, reasons. if it provide people fails to thereby thwarting it in- purposes was ordinary intelligence op reasonable Taxpayers tended to serve.” National portunity to understand what conduct it Admin., Security Union v. U.S.Social 376 Second, if prohibits. it authorizes or even (4th Cir.2004) (Wilkinson, F.3d 244 encourages arbitrary discriminatory concurring). Colorado, enforcement.” Hill v. 530 U.S. S.Ct. L.Ed.2d 597 III. (2000). USA contends that a direct-mail itself, organization, such as cannot discern summary, In we affirm the ALJ’s con- when uses of the words listed in 1140(a)(1) § clusion that applies to envel- 1140(a)(1) § reasonably “could be inter opes and that USA’s violated preted conveying, or construed as the false § and we find no merit in impression approved, that such item is en 1140(a)(1) argument USA’s that is un- dorsed, or authorized the Social Securi constitutionally vague or overbroad. ty Administration.” PETITION FOR DENIED. REVIEW As analysis discussed our of USA’s challenge, overbreadth majority the vast SHEDD, Judge, concurring. Circuit adjudged violators of will be in violation prong agree my under first because I colleagues that substan- they knew or should supports have known their tial evidence the ALJ’s conclusion convey communication would im- false that the distributed United (“USA”) pression governmental Association, endorsement. Seniors Inc. bore ref- USA contends that Security” statute’s second erences to “Social violate prong unconstitutionally vague, but does 1140 of the Act. I also not mount a serious vagueness challenge agree 1140 is constitutional on its to the prong. Having statute’s first properly applies deter- face and that it to envel- mined that prong, opes the first will subsume such as those at issue in this I case. reject however, most of the prong, second we disagree, with the notion that vagueness challenge. “[Sjpeculation about ambiguity there is an in the statute that possible vagueness in hypothetical situa- interpreta- calls for deference to the ALJ’s tions not before the support contrary, Court will not tion. To I believe that the event, any ably In is not unconstitu- confuse deceive the intended audi- “clear, tionally vague. proscribes, It com- League, ence. As we noted in American Life language, League, mon” American objective standard of reasonableness is Life 653, using specific F.3d at nineteen words unconstitutionally vague. not Id. phrases ain manner that could reason- postcards, envelopes by pieces its are similar which bear applies to USA’s statute ambiguity. no and contains plain just terms ordinary postal not information but messages. also the sender’s own to uses of the applies Section (and words, Security” other phrase “Social Any “item” that constitutes a communi- “in connection with symbols) phrases, cation to the similar listed items is covered advertisement, constituting an any item “item,” An envelope 1140. is an so circular, book, solicitation, or pamphlet, question the pertinent par- is whether the Thus, the statute other communication.” envelope given ticular at issue in a case (1) if envelopes to either applies USA’s constitutes communication similar to an are themselves “other communi- envelopes advertisement, solicitation, circular, book, (2) “in con- envelopes are or cation[s]” in pamphlet or the nature of the informa- advertisement, an solicita- nection with” conveys. tion it These items share sin- tion, circular, book, or other pamphlet, They gle express messages characteristic: communication. recipient from the sender to the concern- re- phrase “other communication” ing sender’s business or interest. in nature to a communication similar fers Thus, envelope bearing on its surface advertisements, solicitations, circulars, to messages from the sender books, my col- pamphlets. Unlike concerning the sender’s or business inter- phrase I do not believe that this leagues, is a communication that est is covered simply because some ambiguous § 1140. envelopes express Because USA’s may satisfy this condition while others message USA’s own related to time-sensi- may suggest not. That fact does not information, they tive Social are to multi- statutory susceptible term is subject regu- “other communicationfs]” It ple interpretations. reasonable seems lation under me that an “other communication” clear to specified must be similar to the items if it Even were not so clear conveys, the nature of the information it message-bearing envelopes were them- of medium. The statute not the nature communication[s],” selves “other there can coverage any partic- does not exclude from be no doubt that used those envel- communication; it ular medium of certain- “in connection with” their contents. opes ly envelopes. does not exclude Common acknowledges that the contents Since USA experience envelopes may confirms that do were, fact, adver- of USA’s merely carry more than contents. For solicitations, Brief of Pet’r at tisements example, pieces direct-mail often ex- bear 4, § plainly applies messages to the urging recipients pay messages ternal mailing. printed envelopes. attention to the Such direct-mail on those

PROVIDENT LIFE & ACCIDENT COMPANY, INSURANCE Plaintiff-Appellee, v.

Melvyn COHEN, Defendant-Appellant.

Case Details

Case Name: United Seniors Association, Incorporated v. Social Security Administration, National Taxpayers Union, Amicus Supporting

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Aug 25, 2005

Citation: 423 F.3d 397

Docket Number: 04-1804

Court Abbreviation: 4th Cir.