III. DISCUSSION At the outset, we note that the scope of review is wider than the "clearly wrong . . . `arbitrary,' `capricious,' [or] `an abuse of discretion'" test advanced by appellee from Dell Publishing Co. v. Day, 113 U.S.App.D.C. 1, 303 F.2d 766 (1962) (per curiam). Appellee fails to distinguish between a situation in which we are called upon to review a Postal Service determination that a particular publication does not meet an established set of criteria and one, as is presented by the case at bar, in which we are called upon to review a determination that certain criteria must be met to qualify for second-class mailing privileges.
It is well established that where Congress has committed to the head of a department certain duties requiring the exercise of judgment and discretion a Court will overturn his determination only in a case of abuse of discretion or where his determination is clearly wrong. See Dismuke v. United States, 297 U.S. 167, 56 S.Ct. 400, 80 L.Ed. 561 (1936); United States v. Shimer, 367 U.S. 374, 81 S.Ct. 1554, 6 L.Ed.2d 908 (1961); Dell Publishing Company v. Day, 113 U.S.App.D.C. 1, 303 F.2d 766 (1962). The facts alleged by the appellant, in its complaint, show that the appellant, through its own carelessness, erroneously computed the sheet weight of its mailed publications by approximately 17 to 31 thousandths of an ounce.
Bates and Guild Co. v. Payne, 194 U.S. 106, 24 S.Ct. 595, 48 L.Ed. 894; Esquire, Inc. v. Walker, 55 F. Supp. 1015 (D.D.C. 1944), reversed on other grounds 80 U.S.App.D.C. 145, 151 F.2d 49, affirmed Hannegan v. Esquire, Inc., 327 U.S. 146, 66 S.Ct. 456, 90 L.Ed. 586; Dell Publishing Co. v. Summerfield, 198 F. Supp. 843 (D.D.C. 1961), affirmed sub nom. Dell Publishing Co. v. Day, 113 U.S.App.D.C. 1, 303 F.2d 766 (1965). Nevertheless, in American Bible Society, supra, 446 F.2d at page 597, Judge Van Dusen said that "within that narrow zone of reviewability over the Postmaster General's actions which this court does possess, a federal court can reverse actions which are so arbitrary and capricious as to amount to an abuse of discretion, or which are contrary to the Constitution."
This perhaps is surplusage because the right to a writ of habeas corpus is a constitutional right, but it has a place in the statute for the purposes of emphasis. Dell Publishing Co. v. Summerfield, D.C., 198 F. Supp. 843, aff. Dell Publishing Co. v. Day, 113 U.S.App.D.C. 1, 303 F.2d 766; O'Boyle v. Coe, D.C., 155 F. Supp. 581, 584. The burden of proof is, however, on the petitioner.
The mere fact that the parties to an action made cross-motions for summary judgment does not in itself establish that there is no genuine issue of material fact unless, in narrow circumstances not present here, the motions are based on the same material facts and address the same legal issues. See Schlytter v. Baker, 580 F.2d 848, 849-50 (5th Cir. 1978); Begnaud v. White, 170 F.2d 323, 327 (6th Cir. 1948); cf. Dell Publishing Co. v. Summerfield, 198 F. Supp. 843, 844 (D.D.C. 1961), aff'd sub nom. Dell Publishing Co. v. Day, 113 U.S.App. D.C. 1, 303 F.2d 766 (1962) (per curiam). In contract cases, like the instant contest over the application of provisions of a lease, summary judgment will not generally be appropriate where interpretation or construction of an integrated agreement depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence.
The Appellees contend that Appellant, by filing his Motion for Summary Judgment has conceded that no genuine issue of material fact exists. Appellees cite Olenick v. Brucker, 173 F. Supp. 493 (D.C.D.C. 1959); Walsh Company v. Summerfield, 198 F. Supp. 843 (D.C.D.C. 1961), affirmed 303 F.2d 766, 113 U.S. App. D.C. 1; Garrett Freight Lines Inc. v. U.S., 236 F. Supp. 594 (D.C. Idaho 1964) and Geiser v. Permacrete, Inc., 90 So.2d 610 (Fla. 1956). These cases cited by the Appellees do not represent the weight of authority and are not the better reasoned cases on the subject.