In the Matter of the Petition by ) June 3, 1997 ) TAWN ALLEN ROSE ) 110 North Bell, Suite 300 ) Shawnee, OK 74801-6967 ) ) ) ) Denial of Second-Class Mail ) Privileges for "THE SOFTWARE ) NEWS" ) P.S. Docket No. SCD 97-127 APPEARANCE FOR PETITIONER: Tawn Allen Rose Publisher/ "The Software News" 110 North Bell, Suite 300 Shawnee, OK 74801-6967 APPEARANCE FOR RESPONDENT: Jeannette Bisson, Esq. Civil Practice Section United States Postal Service 475 L'Enfant Plaza, SW, Room 6503 Washington, DC 20260-1148
Respondent's Motion to Dismiss, arguing that the Petition was not timely filed, was received on April 24, 1997. Petitioner's Brief in Response was received on May 20, 1997, and Respondent replied on May 29, 1997. The following facts are based on all the documents in the case file.
1. Petitioner, Mr. Rose, submitted an application for periodical (second-class) mailing privileges for The Software News on April 8, 1996. The application was denied by Edward Walker, Manager, Memphis Rates and Classification Service Center, on September 11, 1996. Mr. Walker's letter informed Petitioner that he could appeal that ruling by filing a written appeal, within fifteen (15) days, to the Business Mail Acceptance Manager in Washington, D.C.
2. Petitioner did appeal Mr. Walker's ruling, but the appeal was denied by Anita J. Bizzotto, Manager, Business Mail Acceptance, in a letter dated November 27, 1996. The last paragraph of Ms. Bizzotto's letter stated:
The Periodicals mail privileges will be denied unless you contest this ruling by filing a petition within fifteen (15) days from your receipt of this letter in accordance with the provisions of section 954.8 of the enclosed copy of the "Rules of Practice in Proceedings Relative to the Denial, Suspension or Revocation of Second-Class (Periodical) Mail Privileges."
3. The copy of Ms. Bizzotto's one-page letter filed with the Petition contains a handwritten note at the top of the page - "Received 12-1-96."
4. The Petition is dated April 2, 1997 and was received on April 15, 1997.
Respondent, the United States Postal Service, notes that the Rules of Practice, 39 C.F.R. §954.8(b), require a petition to be filed within fifteen days of receipt of the ruling of the Manager, Business Mail Acceptance. In this case that was December 16, 1996 - fifteen days after the date noted on the top of Ms. Bizzotto's November 27, 1996 letter. Because the date for filing a petition had not been extended, and because Petitioner has presented no creditable excuse for the late filing, Respondent argues that the Manager's ruling has become final, under 39 C.F.R. §954.7, and the Petition should be dismissed.
Most of Petitioner's argument deals with the merits of his application for second-class mail status. Those issues, and most of the case law he cites, are not relevant to a Motion to Dismiss for untimeliness. He states, "Petitioner construes Respondent's motion as a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure." That is not an accurate characterization of Respondent's motion. The Petition, assuming it was placed in the mail on the day it was dated, was filed approximately 105 days beyond the deadline prescribed in 39 C.F.R. §954.8(b). The only issue raised by the motion is whether that tardiness can, or should, be excused.
Petitioner makes no claim that he did not receive Ms. Bizzotto's letter on or about December 1, 1996, nor does he claim that he did not understand the import of the last paragraph of that letter. In the response to the motion, he initially argues that the motion should be denied because he was not provided a copy of the rules found in 39 C.F.R. Part 954, but later clarifies that statement to mean that he did not receive a copy of the rules with Mr. Walker's September 11, 1996 denial letter. There was no requirement to provide a copy of the rules with that letter, as Mr. Rose's right to file a petition under 39 C.F.R. §954.8 did not arise until Ms. Bizzotto's decision was rendered. There is no reason to believe that a copy of the rules was not provided with Ms. Bizzotto's letter.
A late filing may be permitted on the basis of "excusable neglect," but it is Petitioner's burden to show that the facts justify such a request. Park Corp. v. Lexington Insurance Co., 812 F.2d 894, 897 (4th Cir. 1987); ViAids Laboratories v. United States Postal Service, 464 F. Supp. 976, 982 (S.D.N.Y. 1979); Caruso v. Drake Motor Lines, Inc., 78 F.R.D. 586, 588 (E.D. Pa. 1978); George Llama, P.S. Docket No. PF 94-119 (P.S.D. August 31, 1995). Petitioner has made no such showing in this case.
The Petition was not timely filed, in accordance with 39 C.F.R. §954.8(b). Accordingly, Respondent's motion is granted, the Petition is dismissed, and the decision of the Manager, Business Mail Acceptance, is sustained.
Bruce R. Houston Chief Administrative Law Judge