In the Matter of the Petition by March 4, 1993 WILLIAM KUNTZ, III P. O. Box 937 Elizabethtown, NY 12932-0937 Termination of Post Office Box Service for P. O. Box 1722, Albany, NY P. S. Docket No. 40/55 APPEARANCE FOR PETITIONER: William Kuntz, III P. O. Box 937 Elizabethtown, NY 12932-0937 APPEARANCE FOR RESPONDENT: Rodney Gould, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260-1144
This proceeding was initiated by the filing of a letter dated July 9, 1992, appealing the closing of Post Office Box 1722, Albany, NY, for nonpayment of box rent. The letter was not considered to be a proper Petition by the Postmaster, and was not filed with the Recorder until November 23, 1992. In the appeal letter, Petitioner contended that the Postmaster should have issued a Determination letter under Domestic Mail Manual ("DMM") § 951.83, which would have enabled him to file a Petition under DMM § 951.84.
Respondent filed a Motion for Dismissal of the appeal, contending that the Postmaster properly followed all applicable regulations and procedures, and that the latter was not required to issue a Determination letter in this case. In response, Petitioner submitted a copy of a letter dated May 26, 1992 which he sent to the Postmaster entitled "Petition Opposing the Postmaster's Determination." In the latter document, Petitioner argues that a routing slip dated May 18, 1992, constituted the "Determination" under DMM § 951.83 and that the Postmaster failed to comply with certain regulations.
The following findings of fact and conclusions of law are based upon the pleadings, submissions, and documents attached thereto:
1. Petitioner William Kuntz neglected to pick up mail or notices addressed to P. O. Box 1722, Albany, NY, from mid-March through May 9, 1992. During that time an overflow condition developed and Petitioner was asked by the box supervisor to rent a larger box. The Inspection Service held an audit during April of 1992, and recommended closing the box based on an overflow count performed in February of 1992. The box was not closed on this basis because it appeared that Petitioner would resolve the situation by renting a larger box.
2. The box rent for P. O. Box 1722 was due on April 30, 1992. Prior to that time, the Postmaster had put two notices in the box indicating that the rent was due, but Petitioner failed to pick up the notices. In this regard, Notice 32, Box Rent or Caller Service Fee Due, was placed in the box 20 days before the fee was due. DMM § 951.281.
3. Petitioner went to the Post Office in Albany on Saturday, May 9, 1992. At that time, the mail had been bundled by the Postmaster and Petitioner did not have access to the rent due notices on that date. However, Petitioner had been properly notified by formal notices that his box rent was due prior to the April 30 due date. Also, Petitioner admitted that the box section supervisor had, at some time prior to closing the box, requested that he pay his box rent (Petitioner's May 26, 1992 letter). In view of these notifications, it was Petitioner's responsibility to ensure that he or his agent obtain the Postmaster's notices from the box in a timely manner before the due date.
4. After 10 days the box was officially closed pursuant to DMM § 951.29(d) and considered surrendered due to non-payment of the box rent as provided by DMM § 951.32(b). The next day the box was issued to another customer in accordance with DMM § 951.35.
5. Notwithstanding proper notification that the rent would be due on April 30, Petitioner failed to mail his rent payment until May 15, 1992, and it was not received by the Postmaster until May 18, 1992.
6. On May 18, 1992, Superintendent Michelle Stanek informed Petitioner by handwritten note on a routing slip that his box had been closed and that it was no longer available for rent. She returned his rent payment, but also offered him the opportunity to rent a larger box. She also gave him a change of address card so that mail addressed to Box 1722 could be forwarded rather than returned to sender.
7. Subsequently, by letters dated May 26 and July 9, 1992, Petitioner opposed the closing of P. O. Box 1722.
8. By letter dated July 2, 1992, the Postmaster informed Petitioner that the box had been closed due to non-payment of rent.
1. The "Petition" in this case must be dismissed for lack of jurisdiction since the Postmaster did not issue a Determination to the Petitioner. In this regard, the Administrative Law Judges are given jurisdiction over cases arising under 39 CFR Part 958, where a postmaster has issued a Determination terminating box service and a Petition in opposition to that Determination has been filed. Postmasters issue a Determination when they are satisfied that box service should be terminated pursuant to DMM § 951.82 under the following circumstances: (1) the customer has falsified his box application, (2) physically abused his box, or (3) violated any regulation or condition relating to the care or use of the box. Determination letters are not issued when a box is "surrendered" by a box customer. DMM § § 951.831 and 951.82. Since no Determination was issued in the instant case,1/ and Petitioner's box service was not terminated by the Postmaster under § 951.82, Petitioner had no right to file a Petition herein. DMM § 951.841; 39 CFR § 958.3(a); Max Koenig, P. S. Docket No. 20/115 (ID, October 21, 1985).
2. In view of the Inspector's finding that an overflow condition existed, which constitutes a violation of a regulation relating to the use of a box, the Postmaster might have decided to issue a Determination in this case. However, he did not find it necessary to do so. Instead, the Postmaster simply considered the box to have been surrendered by Petitioner due to nonpayment of rent. Petitioner was properly notified that his box rent was due, but failed to pay the rent by the due date, April 30, 1992. On that date, Petitioner was deemed to have surrendered his box under DMM § 951.85(b). Thereafter, the Postmaster was entitled to plug the lock while awaiting payment, continue to distribute mail to the box for 10 days, and if at the end of that time the customer had not paid the fee or given other instructions, the Postmaster was authorized to remove the mail from the box and treat it as undeliverable. DMM § 951.29(a) and (c).
3. Petitioner also argues that the Postmaster failed to comply with the following regulations: DMM § 951.842 (failing to wait 27 days before implementing the alleged "Determination"); § 951.86 (failing to issue a notice about forwarding after the box was allegedly closed by final decision of the Postal Service); and § 951.832 (failing to include certain language in the alleged "Determination" regarding appeal rights). Again, the Administrative Law Judge lacks jurisdiction over such complaints against the Postmaster and cannot compel him to issue a Determination under the circumstances herein. Further, assuming arguendo that the Administrative Law Judge has jurisdiction over such matters, it is noted that the Postmaster was not required to issue a Determination or follow the procedures relating to the issuance of Determinations in this case. Accordingly, these arguments are rejected.
4. Finally, Petitioner contends that the Postmaster violated DMM § 115.31 by improperly detaining sealed mail. Again, the Administrative Law Judge lacks jurisdiction over this complaint. In any event, it is noted that the Postmaster's actions with regard to the mail addressed to the surrendered box appear to have been in accordance with the regulations. DMM § § 951.85, 951.29, 951.35, and 951.32(b).
5. Accordingly, the Petition is dismissed.
Randolph D. Mason Acting Chief Administrative Law Judge