In the Matter of the Withholding 	)  December 27, 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 T. Hart III
					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

POSTAL SERVICE DECISION

Petitioner, Michael T. Hart⁽¹⁾, has filed an appeal from an Initial Decision in which an Administrative Law Judge granted Respondent’s Motion for Summary Judgment and upheld a decision of the United States Postal Service (Respondent), acting through its Postal Inspection Service, to withhold mail addressed to any and all of various names except Windsor Group Limited, at the captioned address. Respondent opposes the appeal.

Background

This Proceeding was docketed by the Recorder on receipt of Petitioner’s letter contesting Respondent’s Notice of Withholding of Mail to any and all of various names except Windsor Group Limited, P. O. Box 2024, Beverly Hills, CA 90213-2024.⁽²⁾ The Notice of Withholding of Mail was issued after Respondent concluded there was reason to believe that Petitioner was using fictitious names to fraudulently solicit rebate checks to that post office box in violation of 18 U.S.C. §§1341 and 1342.

Following docketing, Respondent filed a Motion for Summary Judgment in which it contended that Petitioner’s letter of appeal from the Notice of Withholding of Mail was not timely filed⁽³⁾ and that the undisputed facts establish that Petitioner uses false or fictitious names to fraudulently receive rebate checks at Post Office Box 2024. On September 7, 1995, the Administrative Law Judge issued an Initial Decision in which he concluded that: [1] there were no genuine issues of material fact in dispute; [2] Petitioner uses fictitious names in conducting a scheme in violation of 18 U.S.C. §§1341 and 1342; [3] Petitioner has not shown that he is entitled to receive mail using the fictitious names and; [4] mail to the various fictitious names should be withheld from delivery and returned to sender. Accordingly, the Administrative Law Judge granted Respondent’s Motion for Summary Judgment and recommended the issuance of an order under 39 U.S.C. §3003(b). Petitioner filed a timely appeal from the Administrative Law Judge’s decision.

Discussion

On appeal Petitioner denies that he uses fictitious names or that he is engaged in a fraudulent rebate scheme in violation of any Federal statute. Petitioner, in addition, contends that the evidence relied on by the Administrative Law Judge was a coerced statement of voluntary discontinuance which should not have been considered in this proceeding, he is entitled to recover damages for lost business because his post office boxes were improperly closed during the pendency of this proceeding and finally that he was unable to properly defend himself because he was not furnished information he sought under the Freedom of Information Act.

The evidence presented by Respondent, even without Petitioner’s statement of voluntary discontinuance, establishes that Petitioner used numerous fictitious names to fraudulently solicit rebate checks to Post Office Box 2024.⁽⁴⁾ Petitioner submitted no contradictory evidence.⁽⁵⁾ Thus, the uncontroverted evidence establishes that Petitioner has violated 18 U.S.C. §§1341 and 1342 and 39 U.S.C. §3003.

In a companion post office box closing case Petitioner was advised that his post office boxes would remain open until his right to use the boxes was finally adjudicated. However, the initiation of this and another withholding of mail case under 39 U.S.C. §§3003 and/or 3004 directed the detention of mail to any name other than that which Petitioner could prove he had a right to use. Petitioner’s failure to present such proof resulted in the detention of mail, not the closure of his post office boxes. However, both boxes have now been closed as the result of the final adjudication of Petitioner’s right to use those boxes in P.S. Docket No. POB 95-231.⁽⁶⁾ Under such circumstances, Petitioner is not entitled to recover damages as the result of the closure of his post office boxes.⁽⁷⁾

Petitioner’s final contention, that he was unable to properly defend himself because he was not furnished the information he sought under the Freedom of Information Act was previously raised by Petitioner and addressed in an Order dated October 3, 1995. In that Order it was concluded that the information sought by Petitioner had been furnished in this and the related post office box closing case in more than sufficient time to allow Petitioner to prepare his defense.⁽⁸⁾ Petitioner’s arguments on appeal do not establish that this conclusion is in error. Therefore, the failure of Respondent’s officials to provide Petitioner the information he sought under the Freedom of Information Act does not provide a basis for relief in this proceeding.

Conclusion

Petitioner has not established that the Initial Decision is erroneous as a matter of fact or law. Accordingly, Petitioner’s appeal is denied and the Order authorized by 39 U.S.C. §3003 is issued herewith.

						James A. Cohen
						Judicial Officer

2. Additionally, Respondent initiated a separate withholding of mail proceeding regarding P.O. Box 16801, Beverly Hills, CA, and a post office box closing proceeding for P.O. Boxes 16801 and 2024, Beverly Hills, CA.

3. Respondent argues that the Petition should be dismissed because it was not filed within 14 days from the date of receipt of the withholding of mail notice, as required by 39 C.F.R. §964.3(a). However, the Initial Decision granted Respondent's Motion for 4Summary Judgment without reaching the timeliness issue.

4. Michael T. Hart, P.S. Docket No. WM 95-267 ID at 5 (Sept. 7, 1995); Michael T. Hudak, P.S. Docket No. POB 95-231 ID at 2-3 (Aug. 15, 1995), finalized by, JO Orders (Sept. 19, 27 and Oct. 31, 1995).

5. Michael T. Hart, P.S. Docket No. WM 95-267, ID at 6 (Sept. 7, 1995). Although Petitioner has submitted new evidence on appeal, this evidence does not demonstrate that there is a genuine issue of material fact or that Respondent is not entitled to judgment as a matter of law.

6. To the extent Petitioner seeks to have the post office boxes reopened, the appeal period in the post office box closing case has expired and the final administrative action has been taken. Michael T. Hudak, P.S. Docket No. POB 95-231 ID (Aug. 15, 1995), finalized by, JO Orders (Sept. 19, 27 and Oct. 31, 1995). Accordingly, no further action will be taken in that case.

7. Id.; Moreover, the Judicial Officer does not have authority to order the monetary relief which Petitioner seeks in this case. Thus, only Petitioner's arguments related to the propriety of granting the Motion for Summary Judgment have been addressed.

8. Michael T. Hart, P.S. Docket No. WM 95-267, JO Order (Oct. 3, 1995).