Appeal of FIRST WESTERN -- P.S. Docket No. WM 98-550

In the Matter of the Withholding       	)  March 22, 1999 
of Mail Addressed to                   	)
                                        )
FIRST WESTERN                          	)
P.O. Box 90672                         	)
                                        )
        at                              )
                                        )
Henderson, NV 89009-0672             	)  P.S. Docket No. WM 98-550

  
APPEARANCES FOR PETITIONER:    		Katherine M. Peck, Esq.
    					Hunterton & Associates
    					333 South Sixth Street
    					Las Vegas, NV  89101-5806

    					Scott M. Badami, Esq.
    					Bryan Cave
    					700 13th Street, NW, Suite 700
    					Washington,  DC  20005-5922

APPEARANCES FOR POSTAL SERVICE:  	Mary A. Denise, Esq.  
    					Ed Lawee, Esq.
    					Consumer Protection Law
    					United States Postal Service
    					Washington, DC  20260-1127

POSTAL SERVICE DECISION

Petitioner, First Western, has filed a Motion to Vacate or Deny the Application for Final Order. As Petitioner's Motion was received after the issuance of the final order, it is being treated as a motion to revoke or modify orders in accordance with 39 C.F.R. §964.20. The General Counsel of the United States Postal Service, opposes the motion and, in the alternative, has filed a Motion for Summary Judgment.

Background

On July 1, 1998, a Notice of Withholding Mail was sent to the captioned address via Certified and First Class mail advising the recipient that it had fourteen days to contact the postal inspector investigating the case and furnish satisfactory proof of its identity and right to receive the withheld mail or to file a petition with the Recorder, Judicial Officer Department, opposing the withholding of the mail. The Notice further advised that the withheld mail would be returned to sender if no action was taken within fourteen days.

The certified Notice was placed in the captioned post office box on July 3, 1998 and signed for on July 6, 1998, establishing July 20, 1998 as the last day on which proof of identity could be submitted to the investigating postal inspector or a petition filed with the Recorder. On July 24, 1998, eighteen days after Petitioner received the Notice of Withholding Mail, an attorney contacted the investigating postal inspector to obtain information concerning the detention of Petitioner’s mail. On at least two other occasions thereafter Petitioner’s attorney sought information about the detention of Petitioner’s mail.⁽¹⁾

On December 4, 1998, Respondent filed an Application for Final Order alleging that an individual was conducting a guaranteed credit card scheme at the captioned address using a fictitious, false or assumed name in violation of 18 U.S.C. §§1341 and 1342. By Order dated December 7, 1998, the Judicial Officer determined that the Application and exhibits supported the issuance of a final order pursuant to 39 C.F.R. §964.19 and ordered that all mail addressed to First Western at the captioned address be returned to sender due to addressee's violation of postal fictitious name or address law.⁽²⁾

By letter dated December 15, 1998, Petitioner’s attorney demanded that the detained mail be held and not destroyed until her clients could respond to the Application.⁽³⁾

Decision

Petitioner contends in its motion that the final order should be overturned because its counsel was not properly notified of the proceedings against it. Petitioner has not denied that it was properly served with a copy of the Notice of Withholding Mail no later than July 6, 1998 and that it did not contact the postal inspector until July 24, 1998 or file a petition with the Recorder within the allowed time. Although the postal inspector should have made Postal Service counsel aware that Petitioner was represented so the Application for Final Order could have been served on Petitioner’s counsel, that is not sufficient reason for modifying or revoking the final order. Petitioner was clearly placed on notice of how to proceed in order to claim the withheld mail and failed to avail itself of that opportunity within the permitted time. Moreover, Petitioner has not made any showing even in its current motion that it is not conducting a guaranteed credit card scheme using a fictitious, false or assumed name in violation of 18 U.S.C. §§1341 and 1342.

Accordingly, Petitioner’s Motion to Vacate or Deny the Application for Final Order is denied.⁽⁴⁾ The Supplement A issued on December 21, 1998 is revoked, and Withholding of Mail Order No. WM98-156 is placed in full force and effect.

					James A. Cohen
					Judicial Officer

1. On September 21, 1998, a postal inspector attempted to contact Petitioner's attorney by telephone. The inspector left a message, but never received a return phone call.
2. On December 21, 1998, after receipt of Petitioner's Motion, the Judicial Officer issued a Supplement A to the final order instructing the Postmaster to continue to hold, but not return the mail until the completion of this proceeding.
3. The Postal Service has noted that the Petitioner's Post Office box was deemed surrendered and closed for nonpayment of fees on October 10, 1998. Upon the closure of a Post Office box for nonpayment, the Postmaster is entitled to return any mail received to sender. Domestic Mail Manual §§D910, 8.4 and F030.5.7. Therefore, Petitioner would not be entitled to any mail received after that date regardless of the Notice of Withholding Mail.
4. Based on the outcome of this decision it is unnecessary to rule on Complainant's Motion for Summary Judgment.

March 22, 1999

SUPPLEMENT B TO WITHHOLDING OF MAIL ORDER NO. WM98-156


TO THE POSTMASTER AT:  	HENDERSON, NV  89015-9998


		  RE:  	FIRST WESTERN
          		P. S. Docket No. WM 98-550

You are hereby advised that Supplement A to Withholding of Mail Order No. WM98-156 is revoked, and the Order is placed in full force and effect.

				James A. Cohen
				Judicial Officer