Appeal of P.S. Docket No. 6/76 -- VITAHAIR


 In the Matter of the Complaint Against

 VITAHAIR Box 1344 at
 Hallandale, Florida 33009

 P.S. Docket No. 6/76;  
 
 10/10/78
 
 Cohen, James A.  

 APPEARANCE FOR COMPLAINANT:
 H. Richard Hefner
 Law Department U.S. Postal Service
 Washington, DC 20260

 APPEARANCE FOR RESPONDENT:
 ORDER Joel Heim
 1420 Diplomat Parkway
 Hollywood, Florida 33019

ON MOTION FOR EXTENSION
AND POSTAL SERVICE DECISION

An Initial Decision in the captioned matter was issued on May 24, 1978. In accordance with 39 C.F.R. § 952.25 and a notice accompanying the Initial Decision, Respondent was advised that an appeal could be filed within 15 days from the date of receipt of the Initial Decision. A copy of the Initial Decision was served on Respondent's representative on May 30, 1978. On June 13, 1978, and July 18, 1978, Respondent requested additional time to file its appeal. Respondent was granted the additional time requested and the appeal was ultimately required to be filed by October 2, 1978.

By motion dated September 22, 1978, with Addendum dated September 26, 1978, Respondent again seeks an extension of the period for filing an appeal. Respondent's motion was received on September 28, 1978, and the addendum thereto was received on October 2, 1978. Respondent's reasons for seeking the extension are:

1. Copies of the exhibits were not furnished to Respondent with the copy of the transcript.

2. Respondent has sought information under the Freedom of Information Act which it has not yet obtained, and without the information requested Respondent has been deprived of a fair trial.

3. Respondent intends to observe a moratorium on the Postal Service cases from October 2, 1978, through October 11, 1978, because of the Jewish High Holy Days.

Respondent has not shown good cause for an extension of the appeal period.

Although Respondent was not furnished a copy of the exhibits with the transcript, Respondent did have an opportunity to examine the exhibits at the hearing and could have requested copies at that time. The exhibits, except for one, are documents or substances which it could reasonably be expected would already be in the possession of Respondent. In addition a sufficient description of the exhibits is contained in the transcript to permit the filing of an appeal. Further there is nothing in the Rules of Practice which would lead Respondent to believe that it would receive a copy of the exhibits with the transcript. Moreover, Respondent had a period of approximately 5 1/2 months since the hearing in which it could have requested copies of the exhibits instead of waiting until 10 days prior to the expiration of the appeal period. No good reason has been shown for Respondent's delay in requesting the exhibits. For these reasons Respondent's request for an extension on this ground is denied.

Extensions were previously granted on the basis that Respondent had sought, but not obtained, information under the Freedom of Information Act. It appears that Respondent was offered certain information in response to its request and was advised of hte procedure for obtaining additional information. The record does not exhibit further diligent pursuit of the Freedom of Information Act requests by Respondent. Rather it appears that the Freedom of Information Act requests have been used as a delaying tactic in this proceeding. Furthermore the Supreme Court has held that the Freedom of Information Act is designed to inform the public about agency action rather than to benefit private litigants and should not be used to delay administrative proceedings. NLRB v. Sears Roebuck & Co., 421 U.S. 132(1974); Renegotiation Board v. Bannercraft Co., 415 U.S. 1(1973). Finally, I am not persuaded that Respondent has been deprived of a fair trial because it has not obtained the information it desires under the Freedom of Information Act. The information sought has not been shown to be relevant and material to the issue in this proceeding. Accordingly the Freedom of Information Act requests are not now considered a proper basis for an extension of the appeal period.

Respondent's self-proclaimed moratorium on Postal Service cases because of the Jewish High Holy Days does not establish an appropriate basis for an extension of the October 2 date for filing the appeal. Religious observances should be a consideration in granting an extension. However in this proceeding Respondent has had more than sufficient time to file its appeal. It should have anticipated the approach of the holy day and prepared its appeal so that it would be timely filed despite the holy day falling on the last day of the appeal period.

For the foregoing reasons Respondent's request for an extension of the appeal period is hereby denied.

Respondent assumed the risk that the appeal period would expire without it taking an appeal when it failed to file an appeal but instead filed its request for extension. Accordingly the motion for extension having been denied and the appeal period having expired, the Initial Decision holding that an order under 39 U.S.C. § 3005 should issue in the captioned matter is now the Postal Service Decision as provided in § 952.24(a) of the applicable Rules of Practice (39 C.F.R. § 952.24(a)).

A remedial order is being issued herewith.