In the Matter of the Petition by: ) August 13, 1993 ) JAMES D. MAMPLE and ) DORRIS C. MAMPLE ) P.O. Box 1809 ) Oakdale, CA 95361-1809 ) ) Termination of Post Office ) Box Service for P.O. Box 1809 ) Oakdale, CA 95361-1809 ) P. S. Docket No. 40/75 APPEARANCE FOR PETITIONERS: James D. Mample P.O. Box 1809 Oakdale, CA 95361-1809 APPEARANCE FOR RESPONDENT: Jeannine H. Walter, Esq. Consumer Protection Law United States Postal Service 475 L'Enfant Plaza, SW Washington, DC 20260-1147
Petitioners have filed an appeal from the Initial Decision of an Administrative Law Judge which upheld the Oakdale, CA Postmaster's decision to close P.O. Box 1809. The Postmaster's decision was based on her determination that Petitioners were using the post office box for the sole purpose of having mail forwarded to another address in violation of Domestic Mail Manual (DMM) § 951.164.1/ Respondent filed a Memorandum in Opposition to Petitioners Appeal and a Motion to Change the Petitioners' Address (hereinafter referred to as RM) in the caption of this case.2/
The Initial Decision was issued on April 29, 1993, and became the Final Agency Decision as provided in 39 C.F.R. § 958.9 on June 15, 1993, since Petitioners had not filed an appeal by that date. Petitioners now contend that they did not receive the Initial Decision until June 30, 1993, and reassert that they do not use the box solely for the purpose of having mail forwarded to another address. Respondent contends that Petitioners' appeal is untimely and that even if the delay in filing their appeal is excusable they have raised no new arguments or evidence that justifies overturning the decision of the Administrative Law Judge.
The Initial Decision was issued and sent via certified mail to Petitioners at an address in Corvallis, OR3/ on April 29, 1993, and was forwarded to Petitioners' post office box in Oakdale, CA on or before May 15, 1993 (RM Exhibit 3). No later than May 15, 1993, the Oakdale Postmaster placed a notice in Petitioners' post office box advising them a certified letter had been received.4/ As of June 4, 1993, Petitioners had not claimed the certified letter containing the Initial Decision and therefore the Postmaster returned it to the Recorder as required by DMM § 912.555/ (RM Exhibit 3).
Petitioners did not pick up any mail from P.O. Box 1809 or make any arrangements for forwarding of their mail between April 28, 1993, and June 15, 1993. On June 15, 1993, Petitioners picked up their accumulated mail in the box (RM Exhibit 4). However, there is no indication in the record that Petitioners made any inquiries concerning the notices of the certified letter which remained in their box either when collecting the accumulated mail on June 15, 1993, or at anytime thereafter. Petitioners next picked up their mail on June 30, 1993. This mail included a letter from the Postmaster informing them that their post office box would be closed on July 23, 1993 (Petitioners' Appeal, p.1, copy of letter attached). A copy of the Initial Decision and the Judicial Officer's Final Order were attached to the Postmaster's letter. By letter dated July 5, 1993, and received by the Recorder on July 9, 1993, Petitioners filed their appeal from the Initial Decision.
Under 39 C.F.R. § 958.10, a party may file an appeal from an Initial Decision by filing exceptions within five days after receipt of the Initial Decision. Petitioners contend that in this case "receipt" did not take place until June 30, 1993, when they first saw the Postmaster's letter and the attached copy of the Initial Decision. Respondent counters that "receipt" occurred when the notice of the certified letter was placed in Petitioners' post office box.
The record reflects that the Initial Decision was sent to Petitioners at their Oregon address and forwarded to P.O. Box 1809, Oakdale, CA where it was received and a notice placed in Petitioners' post office box no later than May 15, 1993. The record also reflects that Petitioners did not pick up any mail from their post office box from April 28, 1993, when their temporary forwarding order expired until June 15, 1993, several weeks after the notice of the certified mail was placed in their box. Thus, any delay in receiving the Initial Decision was attributable solely to Petitioners' failure to file a new forwarding request or to pick up the mail at their post office box.
While 39 C.F.R. § 958.10 does allow the Judicial Officer to grant additional time for filing an appeal, such extensions are not granted where parties have inexcusably neglected to pick up their mail. William Kuntz, III, P.S. Docket No. 40/55 at 3 (I.D. March 4, 1993) aff'd (P.S.D. April 26, 1993); Encore Publishing, Co., P.S. Docket No. 1/79 at 1 (P.S.D. March 1, 1973); Sol Gerschitz, P.S. Docket No. 30/59 at 3 (A.L.J. Decision on Motion to Dismiss Petition, June 27, 1988). Since Petitioners have not shown that their failure to obtain a copy of the properly served Initial Decision was excusable they have not established that they should be granted additional time for filing their appeal.
Accordingly, Petitioners' appeal is denied as untimely.6/ The Initial Decision is the Final Agency Decision as provided in 39 C.F.R. § 958.9.
James A. Cohen Judicial Officer
1/ All references are to DMM Issue 45, dated December 20, 1992, which was in effect at the time this dispute was referred to the Judicial Officer. A revised DMM Issue 46, became effective July 1, 1993, in which § D910.3.7 essentially duplicates DMM Issue 45 § 951.164.
2/ Respondent's motion is based on the assertion by Petitioners that the address involved in this proceeding is their legal address, P.O. Box 1809, Oakdale, CA 95361-1809. Respondent's motion is granted and the change in the caption is reflected in this Decision.
3/ The Corvallis, OR address being used by the Postal Service Recorder was preprinted on the check Petitioners used to pay their 1993 box rental (Petition Opposing Termination, December 15, 1992, copy of check included), but as of the date of the Initial Decision was no longer correct.
4/ The Initial Decision was not forwarded to Petitioners from the Oakdale post office box because Petitioners most recent temporary forwarding order had expired as of April 28, 1993 (RM Exhibit 2 - 4).