| In the Matter of the Petition by | December 31, 1986 |
| WILLIAM H. LAHAN, P. O. Box 24504, San Jose, CA 95154-4504, | |
| Proposed Termination of Service for P. O. Box 24504 | P.S. Docket No. 24/156 |
| APPEARANCE FOR PETITIONER: | William H. Lahan P. O. Box 24504 San Jose, CA 95154-4504 |
| APPEARANCE FOR RESPONDENT: | Thomas A. Ziebarth, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260-1112 |
Petitioner has filed an appeal from the Initial Decision of an Administrative Law Judge dismissing his Petition opposing a determination to discontinue service to P. O. Box 24504. The determination to discontinue service was issued because Petitioner had not filed a revised application reflecting a current mailing address, as required by Sections 951.131 and 951.144 of the Domestic Mail Manual (DMM).(1)
The determination to discontinue service to P. O. Box 24504 was issued by the Director, Marketing and Communications, San Jose Division (hereafter Director) on July 10, 1986. Petitioner filed his Petition opposing the determination on July 18, 1986. Petitioner claimed he was unable to furnish a current address because he did not have a Social Security number and, consequently, he did not have the financial resources to "buy a residential address." Respondent filed an Answer and Motion to Dismiss the Petition on August 1, 1986, in which it argued that the determination of the Director was correct. During the pendency of Respondent's Motion to Dismiss, the hearing which had been scheduled on receipt and docketing of the Petition was postponed on two occasions and Petitioner was so notified.
Prior to the rescheduled hearing date, the Administrative Law Judge issued his Initial Decision granting Respondent's Motion to Dismiss. A notice accompanying the Initial Decision advised Petitioner that, pursuant to 39 C.F.R. 958.10,(2) an appeal could be taken within five days from receipt of the Initial Decision.
By Notice of Appeal dated November 3, l986, and received by the Recorder on November 7, 1986,(3) Petitioner filed an appeal demanding a 30-day extension to write "a logical and reasonable appeal", to commence upon receipt of the notice by the Recorder. By Order dated November 12, 1986, Petitioner was granted 30 days, from the date he received the Initial Decision, or until December 1, 1986, to file his brief on appeal.
On December 2, 1986, the Recorder received Petitioner's brief taking exception to various findings and conclusions of the Initial Decision. Complainant also filed a "notice of complaint and objec- tion" to the extension of time granted by the Order of November 12, 1986. Petitioner's exceptions and arguments are addressed here-after.
In his "notice of complaint and objection", Petitioner states that the 30-day period he "demanded" for filing his brief on appeal was to commence when his notice was received by the Recorder, not when he received the Initial Decision. He contends that, since part of his time after receipt of the Initial Decision was spent preparing and sending the notice and demand, he did not get a full 30 days to work on his brief. Based on this reasoning, he claims he should have had until December 14, 1986, in which to file his brief.
In discussing this same issue in his brief, Petitioner further contends that the five day time limit set forth in 39 C.F.R. 958.10 abrogates his due process rights, since the imposition of such a deadline is difficult, if not impossible, to meet. He further claims that such a time limit is "discriminatory with bias and prejudice."
While five days is a short time, the rules specifically recognize that additional time may be granted. Petitioner's "demand" for a time extension was treated as a request for an extension, and a reasonable extension was granted. Petitioner has not shown that the extension granted was insufficient or that good cause exists for a further extension. In addition, Petitioner has not shown that the appeal period prescribed by the Rules of Practice as written, or as applied in this case, is discriminatory.
Petitioner's allegation that the time limit set forth in the regulation violated his due process rights has no merit. Due process applies to constitutionally protected rights. See Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983); Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978); Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306 (1950). There is no Constitutional right to a post office box. Anthony E. Dibari, P.S. Docket No. 20/21 (P.S.D. Jan. 24, 1985). Accordingly, there has been no due process violation.
Petitioner also claims that 39 C.F.R. 958.4, 958.5 and 958.8 have been applied with "bias and prejudice." However, he has not provided any support for this general allegation and no support can be found in the record. Accordingly, there is no merit to this contention.
Petitioner has expressed his belief that the Initial Decision was based on an ex parte hearing and that he is incorrectly listed on the decision as having appeared on his own behalf. No hearing has been held in this case and no hearing was warranted inasmuch as there was no genuine issue of material fact. Only those documents contained in the official record served as a basis for the Initial Decision granting Respondent's motion to dismiss. The term "Appearance" as used in the decision refers to the particular persons representing the parties. The term has no relationship to whether or not a hearing was held.
Petitioner next contends that paragraph 3 of the Initial Decision "is vague and without a stated criteria for determination." Paragraph 3 states:
"Upon consideration of all the documents filed in this case and the applicable principles of law, I grant Respondent's Motion to Dismiss the Petition."
This paragraph states the conclusion of the Administrative Law Judge that he intends to dismiss the Petition based on his evaluation of the evidence contained in the record of the case. The "criteria for determination" are specifically listed in the succeeding paragraphs of the Initial Decision. Sections 951.131, 951.144 and 951.82 of the DMM are set forth and discussed as they apply to the facts of this case. There is, therefore, no merit to this contention.
The principal dispute in this proceeding relates to the requirement to furnish a current address. DMM 951.131 requires applicants for post office box service to "complete all spaces on the form which require customer provided information" (emphasis added). Item number 5 on the application requires that the applicant list his address. DMM 951.144 requires the box holder to file a revised application when any information on his application becomes obsolete.
Petitioner argues that he should be excused from having to comply with the address requirement because, rather than failing to furnish an address, he instead has been "unable" to do so, due to circumstances beyond his control.
The distinction, which Petitioner attempts to draw between "failure" to furnish a current address and being "unable" to do so, affords no basis for relief. The regulations do not list any exceptions under which an applicant may be excused from providing the required information. Regardless of his excuse, Petitioner did not comply with the address requirement.
Petitioner contends that terms and conditions, such as the current address requirement, that cannot be met by all individuals are unconscionable and unenforceable. In formulating the criteria for box service, the Postal Service has the right to establish reasonable informational requirements. The furnishing of a current address is certainly a reasonable requirement and not unconscionable.
Petitioner, like all postal customers is not "entitled" to post office box service. However, all individuals are entitled, as the Initial Decision correctly states, to receive mail service through general delivery or carrier service. See DMM 951.11. Post office boxes are a premium service, offered in addition to the two basic services, to those who comply with the regulations and pay the fee. Since Petitioner has access to his mail, he has not been denied the mail service to which he is entitled.
Finally, Petitioner refers to religious discrimination in violation of the first amendment to the constitution as the source of his problem. The record does not reflect any type of discrimination, let alone religious discrimination against Petitioner.
The record supports the Administrative Law Judge's conclusion that Petitioner did not comply with the application requirements for post office box service as specified in DMM 951.131 and 951.144. Accordingly, the appeal from the Initial Decision is denied.
James A. Cohen Judicial Officer
2. 39 C.F.R. 958.10 specifically states, "Either party may file exceptions in a brief on appeal to the Judicial Officer within 5 days after receipt of the initial or tentative decision unless additional time is granted. A reply brief may be filed within 5 days after the receipt of the appeal brief by the opposing party."
3. Petitioner disputes the November 7, l986, date and contends the Notice of Appeal was received by the Recorder on November 9, l986. The time/date stamp of the Recorder reflects that the notice was received on November 7, l986, and not November 9, l986, which is a Sunday.