In the Matter of the Withholding   	) June 22, 1999
of Mail Addressed to               	)
                                    	)
DR. JAY ART SCHAEFER, JR.         	)
P.O. Box 7817                      	)
                                    	)
        at                          	)
                                    	)
Reading, PA 19603-7817             	) P.S Docket No. WM 99-177

APPEARANCE FOR PETITIONER: 		Dr. Jay Art Schaefer, Jr.
      					P.O. Box 7817
      					Reading, PA 19603-7817

APPEARANCE FOR RESPONDENT: 		Janessa L. Grady, Esq.
      					Civil Practice Section, Room 6347
      					United States Postal Service
      					475 L'Enfant Plaza, SW
      					Washington, D.C. 20260-1127

INITIAL DECISION

On April 23, 1999, the Postal Inspector-in-Charge for the Philadelphia, Pennsylvania Metro Division directed the Reading, Pennsylvania Postmaster to withhold delivery of mail addressed to any and all names, "except the surnames Schaefer and Schaeffer," at P. O. Box 7817, Reading, Pennsylvania 19603. A Notice of Mail Withholding was sent to "Boxholder" at that address on that same date. The Notice advised that the boxholder was entitled to contact the assigned postal inspector within fourteen days to submit proof of identity and his right to receive the withheld mail. He was also advised of his right to file a Petition to contest the withholding. Copies of pertinent postal regulations were included.

A letter bearing the name "Dr. Jay Art Schaefer, Jr." was received here on April 29, 1999, and was docketed as a Petition. In its Answer, Respondent, the United States Postal Service, asks that the Petition be dismissed, arguing that the uncontested facts establish that the boxholder was using fictitious names in violation of 18 U.S.C. §1341 or §1342, and that the Petition fails to present any identification of the boxholder or set forth any right to receive the withheld mail. In support of this argument, Respondent filed a sworn Declaration of Postal Inspector Jeffrey Braun. An Order, dated May 21, 1999, advised Petitioner that his letter failed to state the reasons for his opposition to the Notice of Withholding Mail, as required by 39 C.F.R. §964.2, and gave him until June 4, 1999 to supplement the Petition. This Order was received by Mr. Schaefer on May 29, 1999, but he has not replied.

Rather than dismiss this Petition, it is appropriate to treat Respondent's Answer and attached documents as a Motion for Summary Judgment, under 39 C.F.R. §964.3(d). The following findings of fact are based on the uncontested information submitted by Respondent.

FINDINGS OF FACT

1. Post Office Box 7817 in Reading, Pennsylvania was rented by Petitioner, Jay Art Schaefer, Jr., on October 27, 1998. He identified himself on the application form, PS Form 1093, as "CEO of 60 Fictitious Employees."

2. In April 1999, postal inspectors from Harrisburg, Pennsylvania informed Inspector Braun that mail, including parcels, addressed to at least 100 different names was being received at P. O. Box 7817.

3. Also in April 1999, a representative of a mail order music service known as BMG Direct told Inspector Braun that BMG had approximately 60 different accounts associated with P. O. Box 7817, Reading, PA 19603, and that BMG had not received any payments for merchandise mailed to that address.

4. The Notice that was sent to Mr. Schaefer on April 23, 1999, advised that mail was being withheld pursuant to 39 U.S.C. §3003, because postal authorities believed false or fictitious names were being used to receive mail in connection with activities that violated mail fraud statutes, 18 U.S.C. §§1341 and 1342.

5. 39 U.S.C. §3003 provides, in pertinent part:

6. The pertinent sections of Title 18, United States Code, provide as follows:

7. The material submitted by Mr. Schaefer does not address issues relevant to a mail withholding case. There is nothing offered to establish the identity of anyone claiming the mail, or of that person’s right to receive the mail that is being withheld.

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; Fed. R. Civ. P. 56(e).

2. By the sworn Declaration of Inspector Braun, and the documents attached thereto, Respondent has carried its burden to establish the absence of any genuine issue of fact concerning the allegation that Petitioner is using fictitious names in conducting a scheme that violates 18 U.S.C. §§1341 and 1342. Petitioner has submitted no contradictory evidence. 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. Petitioner in this case has presented no such evidence, either in response to the April 23, 1999 Notice of Withholding Mail, or in response to Respondent’s Answer, or the Order of May 21, 1999.

3. The determination to withhold mail addressed to any and all names, other than the surnames Schaefer and Schaeffer, at P. O. Box 7817, Reading, PA 19603-7817, is upheld. Accordingly, Summary Judgment in favor of Respondent is granted and the attached Order directing disposition of the mail under 39 U.S.C. §3003(b) should be issued.

       
					Bruce R. Houston
					Chief Administrative Law Judge