United States Postal Service(TM) 


 In the Matter of the Complaint Against:

 UNITED SAVERS OF AMERICA, INC.,
 4175 East Bay Drive, Suite 240,
 Largo, FL 34624-6961;

 CHARLES ROBERT DARST,
 643 U.S. 19 North,
 Clearwater, FL 34625-2344;

 GENE NEBRASKY,
 643 U.S. 19 North,
 Clearwater, FL 34625-2344

 P.S. Docket No. 33/98

 04/25/89

 Cohen, James A., Judicial Officer

 APPEARANCE FOR COMPLAINANT:
 Geoffrey A. Drucker, Esq.,
 Kenneth F. Innes, Esq.,
 Consumer Protection Division,
 Law Department,
 United States Postal Service,
 Washington, DC 20260-1144 

 APPEARANCE FOR RESPONDENT:
 Thomas R. Cushman, Esq., Dickson,
 Lefter & Cushman, P.A., Suite 201,
 696 First Avenue North,
 St. Petersburg, FL 33701-3649

POSTAL SERVICE DECISION ON REQUEST TO SET ASIDE DEFAULT REFERRAL

Respondents have requested that the Order issued by an Administrative Law Judge finding Respondents in default and referring this matter to the Judicial Officer for appropriate action be vacated and that they be permitted to file an Answer to the Complaint.

Background and Findings of Fact

The General Counsel of the United States Postal Service (Complainant) initiated this proceeding by filing a Complaint alleging that Respondents are conducting a lottery in violation of 39 U.S.C. § 3005. The Notice of Answer and Hearing and Complaint were served on Respondents on February 17, 21 and 22, 1989. The Notice advised Respondents that they were to file an Answer within fifteen days from the date they received the Notice. Thus, the Answer was to be filed on or before March 9, 1989.

As of March 21, 1989, an Answer had not been filed. On that date, Complainant filed a Motion for Default Judgment. On March 24, 1989, pursuant to 39 C.F.R. § 952.11(a), the presiding Administrative Law Judge issued an Order finding Respondents in default and referring the matter to the Judicial Officer for appropriate action.

Thereafter, at Complainant's request, the proceedings were suspended until April 6, 1989, in order to provide the parties an opportunity to discuss settlement. The parties were unable to settle this matter, and on April 3, 1989, Respondents filed a Response to Complainant's Motion for Default Judgment and a Motion for Leave to File an Answer. While Respondents' request to set aside the default referral was pending, Complainant filed a Motion to Amend the Complaint on April 19, 1989.

Discussion and Conclusion

By filing its Motion to Amend the Complaint prior to issuance of a final decision on the default, Complainant has revived the period for filing the Answer and waived its right to have Respondents held in default. Accordingly, Respondents are not deemed to be in default. This proceeding is remanded to the assigned Administrative Law Judge for decision on the Motion to Amend Complaint and further processing.