In the Matter of a Mail Dispute		)  December 14, 1999
Between					)
					)
FRANK KERR				)
					)
    and					)
					)
WINSLOW SCOTT				)  P.S. Docket No. MD 99-474

APPEARANCE FOR DISPUTANT		Roger L. French, Esq.
FRANK KERR:				Russia Wharf West
					530 Atlantic Avenue
					Boston, MA 02210-2218

APPEARANCE FOR DISPUTANT		James G. Rowe, Esq.
WINSLOW SCOTT:				Kelly & Rowe, P.A.
					50 Merrimon Avenue
					Asheville, NC 28802-2865

This mail dispute has been docketed pursuant to Postal Operations Manual (POM 7, August 1, 1996) Section 616.21, which requires the Chief Field Counsel to forward certain unresolved mail disputes to the Judicial Officer for resolution. The mail in dispute is that addressed to The Chosin Few, Inc. at 30 Mountain Spring Road, Waynesville, NC 28786-9763, and 100 Mountain Spring Road, Waynesville, NC 28786-9781. The mail is currently being held by the Waynesville Postmaster.

Both parties have filed sworn statements, as required by 39 C.F.R. §965.5, and reply comments, in accordance with 39 C.F.R. §965.6. The following findings of fact are based on all the material submitted by the parties, and the information forwarded by the United States Postal Service Law Department, Mid-Atlantic Office.

1. The Chosin Few, Inc. is a Massachusetts non-profit corporation whose origin and purpose are not identified in the case file.

2. Sometime in 1998, a dispute between members, or groups of members, resulted in the filing of a lawsuit in United States District Court for the Western District of North Carolina. The case is captioned, The Chosin Few, Inc., Plaintiff vs. Winslow Scott, Richard Oly, and Harold Slawson, Defendants, Civil No. 1:98CV59.

3. After a trial began in November 1998, the parties entered into a settlement agreement. On January 7, 1999, Judge Thornburg issued an Order and a Judgment, designed to enforce the settlement agreement. The provisions of the Judgment pertinent to this mail dispute are as follows:

"As of November 19, 1998, the Board of Directors of The Chosin Few, Inc., is composed of the following directors: [13 men, including Frank Kerr, are listed]."

"Pending elections as set forth herein, this Board shall not be permitted to conduct any business of the corporation except in the case of emergency action."

"By June 1, 1999, there will be an election of four directors to fill the open positions of the following directors: [four are named]."

"Winslow Scott has agreed as of November 19, 1998, to terminate his employment contract with The Chosin Few and will not function as the editor of The Chosin Few News Digest. Until a new executive director is selected by the newly elected Board of Directors, Winslow Scott will continue to handle the day-to-day administrative tasks for the corporation . . . ."

"Frank Kerr is hereby named as the interim president of The Chosin Few until completion of the election of the newly formed Board of Directors."

"All remaining offices are hereby declared relinquished until the election of the new Board of Directors who shall then elect new officers, including president."

The Judgment spelled out in some detail what was to be done in preparation for the June 1999 election.

4. Sometime after the January 7 Order, the named Defendants in the above captioned case filed a "Motion in the Cause," alleging several breaches of the settlement agreement by Mr. Kerr and his supporters. It is unclear exactly what the Defendants were asking the court to do, but on March 24, 1999, Judge Thornburg declined "to become involved in the management of the corporation," or "to become involved in the arguments between the factions," and denied the motion.

5. Despite the judge's admonitions about "quibbling," "picayune squabbling," and "distasteful posturing," the two parties have continued to fight, and the elections agreed to in the settlement agreement and directed by Judge Thornburg still have not been held. On September 10, 1999, Mr. Kerr submitted two Change of Address Orders, PS Form 3575, to the Waynesville Post Office, directing that mail addressed to The Chosin Few at both the Mountain Spring Road addresses be forwarded to 202 Rolling Road, Gaithersburg, Maryland 20877-2042. That precipitated this mail dispute.

Each of the disputants relies on language in the January 7 Judgment. Mr. Kerr argues that because he was named president of the corporation, postal regulations require that the mail be delivered as he directs. He also argues that the Board of Directors was authorized to change the corporation's mailing address as an "emergency action," and that the Board did so.

Mr. Scott argues that Mr. Kerr is only an "interim" president, and that the intent of the Judgment was that his authority be very limited, as was the authority of the Board of Directors, pending the election of new directors. Because the Judgment directed that Mr. Scott was to continue to manage the "day-to-day administrative tasks of the corporation," Mr. Scott contends that this includes continuing to receive the corporation's mail at the corporation's headquarters in Waynesville.

A general purpose of the rules for resolving mail disputes is that mail should be delivered as intended by the sender. In this case there is nothing in the case file to show who the senders are, or what their intent might be. Therefore, it is necessary to defer to the rule found in Section 614.1 of the Postal Operations Manual, which states that in the event of a dispute over mail addressed to a corporation, the mail "must be delivered according to the order of the organization’s president or equivalent official."

Mr. Kerr's argument that the Board properly changed the corporation's mailing address as an "emergency" action is not persuasive. The evidence does not show that the Board acted in accordance with any established rules, or that this action qualified as an emergency under Judge Thornburg's Judgment. However, no one disputes that Mr. Kerr is currently the president, in accordance with Judge Thornburg's Judgment and the apparent settlement agreement. Mr. Scott's status, on the other hand, was that of an employee under contract, which contract was terminated in November 1998. There is nothing in the Judgment to suggest that his authority to conduct "day-to-day" administrative business would extend to overruling an action of the president. Therefore, Mr. Kerr has a greater claim to delivery of the mail.

This decision deals only with delivery of the disputed mail. It does not determine who is best suited to lead the corporation, whether the corporation should be dissolved, or any other dispute that may exist between the parties. If either party obtains a court order that directs delivery of the mail, postal regulations provide that the mail will be delivered in accordance with such an order. POM §616.3.

The attached delivery order should be issued.

					Bruce R. Houston
					Chief Administrative Law Judge

TO THE POSTMASTER AT:	WAYNESVILLE, NC 28786-9998

		  RE:	Mail Dispute Between

			FRANK KERR

			   and

			WINSLOW SCOTT

			P.S. Docket No. MD 99-474

		THE CHOSIN FEW, INC.
		30 Mountain Spring Road
		Waynesville, NC 28786-9763
			and
		100 Mountain Spring Road
		Waynesville, NC 28786-9781

					Judicial Officer 

PROPOSED ORDER - NOT ENFORCEABLE UNTIL DATED AND
SIGNED BY THE JUDICIAL OFFICER