In the Matter of the Petition by WALLACE S. NOLEN P. O. Box 647 White Plains, NY 10602 Termination of Post Office Box P.S. Docket No. 14/22 November 16, 1982 Duvall, William A.
On May 25, 1982, the Postmaster at White Plains, NY, issued a Notice of Intent to terminate service to Mr. Wallace Nolen through Post Office Box 647, White Plains, within 20 days of Mr. Nolen's receipt of the notice. (Att. A to Supplement to Motion to Dismiss (hereinafter sometimes "Supp.")) It appears from the file that this notice was sent to Mr. Nolen at 575 White Plains Rd., Eastchester, NY 10709, as Certified Article Number P326615302, and that it was receipted for by Mr. Nolen on June 11, 1982.
The last paragraph of the Notice advises Mr. Nolen of his right to file an appeal therefrom within 20 days after his receipt of the Notice. (last par., Att. A. Supp.) Mr. Nolen was told, also, that failure to file a timely appeal would cause the Determination to "become the final decision of the U.S. Postal Service in this matter."
By letter dated July 21, 1982, Mr. Nolen appealed the Determination to terminate the box service.
By notice dated July 29, 1982, the matter was set down for hearing on September 14, 1982, in Washington, D.C.
In a letter dated July 31, 1982, Mr. Nolen requested that the hearing be held earlier, but that it be held in Westchester County, New York.
On August 6, 1982, Respondent filed a Motion to Dismiss this proceeding for Appellant's failure to file a timely appeal from the Determination to terminate service.
On August 10, 1982, Respondent was allowed additional time in which to supply further documentation of some of the assertions made in the Motion, and such documentation was furnished on August 20, 1982, in the Supplement to the Motion to Dismiss.
In a telephone call that took place on August 24, Mr. Nolen advised Respondent's Counsel, Mr. Ziebarth, and the undersigned that he was a patient in St. Agnes Hospital in White Plains. He said, in effect, that he was in a nervous, run-down condition which was due, in some measure, to his concern over the present dispute. In view of the foregoing statements, further proceedings in this matter were indefinitely suspended, to be resumed upon Mr. Nolen's discharge from the hospital. It was agreed that when this event occurred, Mr. Nolen would be allowed 30 days from that date in which to comment with respect to the information and statements in the Motion to Dismiss and the Supplement thereto.
On October 13, 1982, in another telephone call, it was learned that Mr. Nolen had been discharged from the hospital in White Plains, and on that date an Order was issued allowing him until November 12, to respond or comment on the matters raised in Respondent's Supplement to the Motion to Dismiss.
A communication signed by Mr. Nolen and mailed in Middlebury, VT, on November 10 was received by the Recorder on November 15, 1982. This communication, presumably, is Mr. Nolen's response to the Motion to Dismiss and the Supplement thereto. In it Mr. Nolen states that he wishes to refute any statements indicating that he knew or should have known of the proposed termination of service to him through Post Office Box 647, White Plains. He states that he has received large amounts of mail daily at his office that was located at 575 White Plains Road, Eastchester, NY, and that at least 5 persons were employed there primarily to answer and to respond to mail inquiries. Sometimes he would sign for incoming mail and sometimes his employees would "forge" his name for such mail. He reiterated that his health problems have resulted in his hospitalization, his inability to perform his normal duties, and personal problems, presumably arising from this dispute, which have required much of his time. Mr. Nolen asserts that the questions in reference to his address which are printed on the box application form and which have been asked him in correspondence, are ambiguous. He states that the above assertions present fact questions which should be resolved through the hearing process.
The parties have availed themselves of the opportunity that has been provided for them fully to express their views in connection with this matter. Upon full consideration, it is concluded that for a number of reasons, some of which now will be stated, the Petition in this case should be, and must be, dismissed.
The entities within the Postal Establishment that are directly involved in the events leading to this proceeding are within the Delivery Services Department of the Operations Group. This Group has, among others, general responsibility for, and authority to, issue policies, procedures, and rules governing eligibility for, use of, and termination of service through lock boxes. (39 CFR 224.4(b)(2)) In carrying out these responsibilities, the Assistant Postmaster General has caused to be published in the Domestic Mail Manual (DMM) the policies and rules here pertinent (DMM 951).
For example, the bases for terminating service through a lock box, the steps which a postmaster must follow in terminating such service, and steps which a boxholder must take if he wishes to oppose such termination are specified with particularity in the following subsections of DMM 951:
".82 Termination of Service. A postmaster may close a post office box when the boxholder has:
a. Falsified the application for the box;
b. Physically abused the box; or
c. Violated any regulation or contractual term or condition relating to the care or use of the box."
".83 Postmaster's Determination
".831 Basis for Issuance. When a postmaster is satisfied that an application for commencement of service should be denied pursuant to 951.81, or that service to a boxholder should be terminated pursuant to 951.82, he will issue a written Determination.
".832 Content. The Determination must state the reasons for its issuance, and also must contain the following statement: 'You may file a Petition opposing this Determination within twenty days (Sundays and holidays included) after the date you receive it. Your Petition must be in writing and include a statement of your reasons for opposing the Determination. Your Petition, signed by you or your attorney, must be filed in triplicate at the Post Office address given above. This filing may be accomplished by certified mail, or by delivering the Petition to the above address. Obtain and keep a written receipt to show that your Petition was timely filed. Your Petition will be forwarded to the Recorder, Judicial Officer Department, U.S. Postal Service, Washington, D.C. 20260 for appropriate action as set forth in 39 C.F.R. 958. If you do not file a timely Petition, this Determination will become the final decision of the U.S. Postal Service in this matter." (Emphasis in the original)
Although in the Postmaster's Determination, which Mr. Nolen received on June 11, 1982 (Supp., Att.'s C and D), he was told that he must file a Petition with the White Plains' Postmaster in 20 days, Mr. Nolen did not do so. Instead, Mr. Nolen's Petition on appeal is dated July 21, 1982, or after the lapse of nearly twice the length of time allowed therefor.
The regulation quoted above from DMM 951.832, issued by the Assistant Postmaster General, Delivery Services Department, Operations Group, establishes requirements which are well within the scope of his authority to prescribe, and they pertain to a matter as to which he has been delegated responsibility. These requirements, therefore, have the force and effect of law and are binding upon all persons within and outside the Postal Service.
Insofar as this proceeding is concerned, the pertinent regulations which have been quoted above go to the jurisdiction, and they preclude the further processing of this matter in the United States Postal Service.
In light of all the facts and circumstances in this matter and the regulations applicable thereto, it is concluded that the petition herein must be, and the same hereby is, dismissed.
The disposition of this case, while it undoubtedly will be disturbing to Mr. Nolen, may in a pragmatic way, prove to be beneficial and useful both to him and to the Postal Service.
In the file there is the strong suggestion, not formally established of course, that there exists in the records of the Postal Service some misinformation in regard to Mr. Nolen's address. There may be other items concerning which there is uncertainty or a lack of clarity. There is nothing connected with the present disposition of this proceeding, at least insofar as I am aware, which precludes Mr. Nolen from applying for and being found eligible to rent and use another lockbox. If this course is pursued, it would mean that both parties are starting "from square 1", and any areas of doubt and uncertainty could be explored and resolved at the outset. Mr. Nolen obviously needs Post Office lockbox service in his businesses, and the Postal Service is in the business of providing such service on reasonable terms. These facts would appear to provide room in which to negotiate a satisfactory business relationship.