Appeal of MICHAEL T. HART - P.S. Docket No. WM 95-267

Administrative Law Judges

In the Matter of the Withholding	) September 7, 1995
of Mail Addressed to			)
					)
MICHAEL T. HART				)
WINDSOR GROUP LIMITED			)
P.O. Box 2024				)
					)
	at				)
					)
Beverly Hills, CA 90213-2024		) P.S. Docket No. WM 95-267

APPEARANCE FOR PETITIONER:  		Michael Hart, III, Pro Se
					P.O. Box 2024
					Beverly Hills, CA 90213-2024

APPEARANCE FOR RESPONDENT:		Jeannine H. Walter, Esq.
					Consumer Protection Law
					United States Postal Service
					475 L'Enfant Plaza, SW
					Washington, DC 20260-1144

INITIAL DECISION

On July 11, 1995, the Postal Inspector in Charge for Pasadena, California, Los Angeles Division, directed the Beverly Hills, California Postmaster to withhold mail addressed to Post Office Box 2024. Mr. Hart submitted a Petition dated July 31, 1995. On August 17, 1995, Respondent, United States Postal Service, filed its Answer and a Motion for Summary Judgment under 39 C.F.R. §964.3(d), arguing that there are no material issues of fact in dispute. Attached to the motion is the sworn Declaration of Postal Inspector Christine Gaines, along with several supporting documents. Respondent also argues that the Petition should be dismissed because it was not filed within fourteen days of receipt of the withholding notice, as required by 39 C.F.R. §964.3(a). Petitioner replied to the motion on August 29, 1995.

BACKGROUND

In a related case, the Postmaster in Beverly Hills, California took action to terminate two post office boxes, numbers 2024 and 16801, rented by Mr. Hart. Mr. Hart petitioned for review of that action on June 9, 1995, and the postmaster's determination to close the boxes was upheld in P.S. Docket No. POB 95-231 on August 15, 1995.⁽¹⁾ Termination of those post office boxes was based on the same activities of Mr. Hart/aka Mr. Hudak that provided the basis for the Postal Inspector's mail withholding notice.

The following Findings of Fact are based on the material submitted by both parties and, as is explained infra, on facts that were determined in P.S. Docket No. POB 95-231.

FINDINGS OF FACT

1. On February 8, 1990, Petitioner rented Post Office Box 2024 at the Beverly Hills, California Post Office. The box was rented for Windsor Group, Ltd., and the application, PS Form 1093, was signed by Michael T. Hart, III.

2. On October 14, 1994, the Postal Inspection Service received a complaint from The Upjohn Company, Kalamazoo, Michigan, alleging mail fraud activity through the use of Post Office Box 2024 in Beverly Hills. (Gaines Decl. p. 1-2.)

3. During the course of investigation by the Postal Inspection Service, Petitioner was interviewed by Inspector Gaines on three occasions in December 1994, January 1995 and February 1995. Petitioner admitted that he had used fictitious names in order to receive multiple rebate certificates and checks from Upjohn under a promotion campaign being run by Upjohn for its hair growth product, "Rogaine." The terms of that product promotion limited the rebate checks to one per person. (Michael T. Hudak, P.S. Docket No. POB 95-231, Initial Decision, August 15, 1995.)

4. On February 17, 1995, Petitioner, under the name M. T. Hudak, signed a Statement of Voluntary Discontinuance, which included the following:

I, M. T. HUDAK, have been submitting claims for the Rogaine promotional program to Upjohn Company, using fictitious names. I have been informed by a representative of the U.S. Postal Inspection Service that my use of the mails in the above-described way may constitute a violation of the mail fraud and/or false representation laws, 18 U.S.C. 1341, 1342 and 39 U.S.C. 3005.

After considering what I have been doing in relation to the elements of the above statutes, I have decided to voluntarily discontinue and abandon my use of the mails in connection with the submission thereof. I further agree to reimburse Upjohn Company in the amount of $1155.00. (P.S. Docket No. POB 95-231, I.D.at 5.)

5. On July 11, 1995, the Postal Inspection Service advised Petitioner that mail addressed to box 2024, except for mail addressed to Windsor Group Limited, would be withheld from delivery pursuant to 39 U.S.C. §3003 or §3004. This was based on reason to believe that Petitioner was (1) using false or fictitious names in violating 18 U.S.C. §§1341 or 1342; and/or (2) that mail was being sent to fictitious addresses to enable persons to escape identification.

CONCLUSIONS OF LAW

1. A grant of summary judgment is proper when there are no issues of material fact in dispute and when, as a matter of law, the moving party is entitled to judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party has the burden of establishing the absence of a genuine issue of fact and, if that burden is met, the opposing party must counter with something more than "mere denials or conclusory statements." Mingus Contractors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987); see also Adickes v. S.H. Kress Co., 398 U.S. 144, 157-59 (1970); Fed. R. Civ. P. 56(e).

2. 39 U.S.C §3003 provides, in part:

(a) Upon evidence satisfactory to the Postal Service that any person is using a fictitious, false, or assumed name, title, or address in conducting, promoting, or carrying on or assisting therein, by means of the postal services of the United States, an activity in violation of sections 1302, 1341, and 1342 of title 18, it may --

(1) withhold mail so addressed from delivery; and

(2) require the party claiming the mail to furnish proof to it of the claimant's identity and right to receive the mail.

3. The facts found in P.S. Docket No. POB 95-231 are binding on the parties in this case. The doctrines of res judicata and collateral estoppel, or issue preclusion, bar Petitioner from contesting those facts. Montana v. United States, 440 U.S. 147, 153-54 (1979); United States v. Gurley, 43 F.3d 1188, 1195 (8th Cir. 1994); West Coast Truck Lines, Inc. v. American Industries, Inc., 893 F.2d 229 (9th Cir. 1990); Rucker v. Shalala, _ F.Supp. _ (S.D. Ind. July 1995); Keith Edward Maydak, P.S. Docket No. 31/88 (P.S.D. on Rev. App., July 27, 1995).

4. By the sworn declaration of Postal Inspector Gaines and the several other documents supporting its motion, and by the facts established in the post office box closing case, POB 95-231, Respondent has carried its burden to establish the absence of any genuine issue of material fact concerning the allegation that Petitioner is using fictitious names in conducting a scheme that violates 18 U.S.C. §§1341 and 1342.⁽²⁾

5. In response to the motion, Petitioner has submitted no contradictory evidence. His response complains of failure by postal officials to comply with his earlier "discovery" requests. In POB 95-231 it was ruled that the many documents attached to Respondent's Motion for Summary Judgment in that case were sufficient to supply all the information that Petitioner had earlier requested. The same is true in this case. The documents attached to Respondent's motion, together with the documents he already received in POB 95-231, provided all the information Petitioner needed to respond to the motion.

6. Once the Postal Service has established that the withheld mail is covered by 39 U.S.C. §3003, the burden of going forward with evidence to show a claimant's identity and right to receive the mail is on the Petitioner. (see para. 2 above.) Petitioner presented no such evidence of his right to receive the mail, either in response to the Postal Inspector's Notice of Withholding Mail, or in response to Respondent's motion.

7. In view of the conclusion that the mail being withheld is covered by subsection (a) of §3003, it is not necessary to decide whether 39 U.S.C. §3004 also provides a proper basis for withholding. In light of the ruling on the Motion for Summary Judgment, it is also unnecessary to rule on Respondent's argument that the Petition was untimely.

8. The determination to withhold mail addressed to Post Office Box 2024 in Beverly Hills, California is upheld. Accordingly, Respondent's Motion for Summary Judgment is granted, and the attached Order directing disposition of the mail under 39 U.S.C. §3003(b) should be issued.

					Bruce R. Houston 
					Acting Chief Administrative Law Judge

1. POB 95-231 was filed under the name Michael T. Hudak, but it was established, without dispute, that Michael Hudak and Michael Hart are the same person, the latter purportedly being a professional stage name. The Initial Decision in POB 95-231 has been appealed to The Judicial Officer, U.S. Postal Service.

2. These two sections of Title 18, United States Code, provide:

§1341. Frauds and swindles

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, . . . , for the purpose of executing such scheme . . ., places in any post office or authorized depository for mail matter, any matter . . . to be sent or delivered by the Postal Service, . . ., shall be fined . . . or imprisoned for not more than five years, . . ..

§1342. Fictitious name or address

Whoever, for the purpose of conducting, promoting, or carrying on by means of the Postal Service, any scheme or device mentioned in section 1341, . . ., uses or assumes, . . ., any fictitious, . . ., name, . . . or receives from any post office or authorized depository of mail matter, any letter, . . ., or other mail matter addressed to any such fictitious, . . ., name, . . ., shall be fined . . . or imprisoned not more than five years . . ..

WITHHOLDING OF MAIL ORDER NO.

TO THE POSTMASTER AT: BEVERLY HILLS, CA 90213-9998

Satisfactory evidence has been presented to the Postal Service in P.S. Docket No. WM 95-267 that mail addressed to Post Office Box 2024, Beverly Hills, CA 90213-2024, except for mail addressed to Windsor Group, Ltd., is covered by 39 U.S.C. §3003(a) and is being properly detained. Although afforded an opportunity to do so, the party claiming the mail has failed to furnish proof of the claimant's right to receive the mail addressed to the above address.

Now, therefore, pursuant to authority vested in the United States Postal Service, and by it delegated to me, I hereby order that all mail addressed to the above address, except for mail addressed to Windsor Group Ltd., be returned to sender marked "RETURNED TO SENDER DUE TO ADDRESSEE'S VIOLATION OF POSTAL FICTITIOUS NAME OR ADDRESS LAW." If the outside of the mail fails to contain information necessary to permit return of the mail to sender, the mail shall be disposed of under the postal regulations applicable to undeliverable mail.

					Judicial Officer