In the Matter of the Complaint Against

 ELECTRONIC DEVELOPMENT LAB,
 P. O. Box 1560, at
 Pinellas Park, FL 33565-0000

 P.S. Docket No. 18/157

 May 22, 1987

 James A. Cohen Judicial Officer

 APPEARANCES FOR COMPLAINANT:
 H. Richard Hefner, Esq. 
 Robert C. Lowry, Esq. 
 Consumer Protection Division
 Law Department
 United States Postal Service
 Washington, DC 20260-1112 

 APPEARANCE FOR RESPONDENT:
 John A. Field, III, Esq. 
 Field & Halfhill
 703 King Street Alexandria, VA 22314-3014

This matter is before the Judicial Officer on Complainant's "Motion to Vacate Partial Stay" and "Notice and Renewal of Motion to Vacate Partial Stay". The issue presented is whether the order staying the return portion of False Representation Order No. 85-71 should be vacated.

In the Complaint initiating this proceeding, Complainant, the Consumer Protection Division, Law Department, United States Postal Service, alleged that Respondent, Electronic Development Lab, was engaged in a scheme to obtain money through the mail by means of materially false representations in violation of 39 U.S.C. 3005. On September 6, 1985, a Postal Service Decision was issued in which it was concluded that Respondent's solicitations contained materially false representations in violation of 39 U.S.C. 3005. Accompanying the Postal Service Decision was False Representation Order No. 85-71 which forbade the payment of postal money orders to Respondent and directed the detention and return to sender of mail addressed to Respondent relating to materials and instructions for home assembly of electronic devices.

On September 12, 1985, the return portion of False Representation Order No. 85-71 was stayed pending consideration of Respondent's Motion for Reconsideration of the Postal Service Decision. On November 8, 1985, Respondent's Motion for Reconsideration was denied, but the stay of the return portion of the False Representation Order was continued in effect for thirty days to maintain the status quo while Respondent acted on its stated intention to seek judicial review. By Order of December 17, 1985, the False Representation Order was placed in full force and effect due to Respondent's failure to file an appeal within the thirty day period.

On December 19, 1985, Respondent filed a motion to reinstate the stay of the return portion of the False Representation Order, asserting that on December 6, 1985, it had filed a Petition for Review of the Postal Service Decision with the United States District Court for the Middle District of Florida. The stay of the return portion of False Representation Order No. 85-71 was reissued on December 20, 1985, and has been continuously in effect since that date.

On February 17, 1987, the United States District Court dismissed without prejudice Respondent's Petition for Review due to its failure to effect proper service of process under Federal Rule of Civil Procedure (FRCP) 4(j). Complainant filed its Motion to Vacate the Stay on February 26, 1987, and by Order dated March 2, 1987, Respondent was ordered to show why the Motion should not be granted. Respondent filed a reply to the Motion in which it alleged the stay should not be vacated principally because it had refiled its appeal in the United States District Court on March 18, 1987, and that it had diligently pursued its appeal rights. Complainant thereafter filed its "Notice and Renewal of Motion to Vacate", alleging that Respondent's service of its refiled Petition for Review contains the same procedural defect which led to the court dismissal on February 17, 1987. Respondent, in opposition to Complainant's renewed motion, however, points out it has 120 days to effect service of process pursuant to FRCP 4(j).

Complainant argues that Respondent's extreme lack of diligence in pursuing judicial review, coupled with the harm to the public and the Postal Service, serves as proper justification for reinstatement of the return portion of the False Representation Order. Respondent argues that it has exercised due diligence in prosecuting its appeal and that the stay should remain in effect until the conclusion of the refiled court proceeding. Respondent further contends that vacating the stay would constitute a punitive sanction without due process and disrupt the status quo without regard to the reasons for the initial issuance of the stay.

Over eighteen months have passed since the Postal Service Decision on Motion for Reconsideration was issued. During that period there has been no substantial progress toward conclusion of the court proceeding. While Respondent may believe its legal position regarding service of process is correct, it nonetheless is responsible for the delay leading to the dismissal of its Petition even though the Petition has been refiled. Considered in this light, the harm to Respondent resulting from delays of its own making is outweighed by the prejudice to the Postal Service and the public as outlined in Complainant's Motions. Therefore, Respondent has not shown good cause for the stay to remain in effect. Accordingly, the stay will be revoked on June 22, 1987, and the False Representation Order placed in full force and effect unless the parties advise the Judicial Officer prior to that date that they have reached agreement on an acceptable alternative plan for handling Respondent's mail. To be acceptable, such plan must provide for Respondent's mail to be handled by an independent third party, the cost of the use of a third party must be borne by Respondent, and the interests of the public must be fully protected.