August 5, 2002
In the Matter of the Petition by
MEL M. MARIN
P.O. Box 222
Vista, CA 92085-0222
Appeal of Termination, P.O. Box 4312, Ithaca, NY 14852-4312
P.S. Docket No. POB 02-231
APPEARANCE FOR PETITIONER:
Mel M. Marin
P.O. Box 222
Vista, CA 92085-0222
APPEARANCE FOR RESPONDENT:
Catherine A. Green, Esq.
Corporate Law
United States Postal Service
475 L'Enfant Plaza, SW, Room 6112
Washington, DC 20260-1135
INITIAL DECISION
This proceeding arises from a Petition filed by Mr. Marin after receiving a written notice from the postmaster at Ithaca, New York, dated March 6, 2001, that his post office box service would be terminated.[1]
On June 21, 2002, Respondent, the United States Postal Service, filed an Answer to the Petition, along with a Motion for Summary Judgment, arguing that there were no material facts in dispute and that Respondent was entitled to judgment as a matter of law. Attached to the motion was a sworn declaration from Edward P. Gatch, the Ithaca Postmaster, and other documents. Petitioner was given an opportunity to reply to the motion but did not do so. The following findings of fact are based on all the material submitted by the parties.
FINDINGS OF FACT
1. On March 15, 1999, Mr. Marin (a.k.a., Mel Marinkovic) submitted a PS Form 1093, Application for Post Office Box or Caller Service, to the Ithaca Post Office and was assigned P.O. Box 4312. The residence address on the form was 301 Dryden Ave., Ithaca, New York 14850. (Gatch Declaration, Ex. 1).
2. On November 5, 1999, Petitioner submitted a PS Form 3575, Official Mail Forwarding Change of Address Form, requesting that, beginning on November 8, 1999 and ending on January 15, 2000, all mail addressed to P.O. Box 4312 be forwarded to Post Office Box 90703 in San Diego, California. (Gatch Declaration, Ex. 3).
3. On February 17, 2000, Petitioner submitted another PS Form 3575, Official Mail Forwarding Change of Address Form, requesting that, beginning on February 16, 2000 and ending on September 1, 2000, all mail addressed to P.O. Box 4312 be forwarded to Box 90703 in San Diego, California. (Gatch Declaration, Exs. 4 and 6).
4. On June 19, 2000, Petitioner submitted a PS Form 3546, Forwarding Order Change Notice, requesting that the previous forwarding order be cancelled and that all mail addressed to P.O. Box 4312 be forwarded to Post Office Box 222 in Vista, California until September 15, 2000. (Gatch Declaration, Ex. 5).
5. On October 2, 2000, Petitioner submitted another PS Form 3575, Official Mail Forwarding Change of Address Form, requesting that, beginning on October 2, 2000 and ending on January 15, 2001, all mail addressed to P.O. Box 4312 be forwarded to Box 222 in Vista, California. (Gatch Declaration, Exs. 4 and 6).
6. On February 25, 2001, Petitioner submitted another PS Form 3575, Official Mail Forwarding Change of Address Form, requesting that, beginning on March 1, 2001 and ending on May 1, 2001, all mail addressed to P.O. Box 4312 be forwarded to Box 222 in Vista, California. (Gatch Declaration, Ex. 7).
7. In a letter dated February 6, 2001, Postmaster Gatch informed Petitioner that his continued forwarding of mail violated postal policy in that a post office box cannot be used solely for the purpose of forwarding mail. He told Petitioner that he had 30 days to submit a permanent change-of-address notice, which would then entitle him to have mail forwarded to that address for twelve months. Finally, he told Petitioner that if no permanent change-of-address was received mail would no longer be forwarded but would be returned to senders. (Gatch Declaration, Ex. 9).
8. On March 6, 2001, apparently in response to correspondence from Petitioner that is not included in the case file, Postmaster Gatch sent Petitioner another letter, reiterating the rules previously stated and giving Petitioner until March 10, 2001 to submit a permanent change-of-address. (Gatch Declaration, Ex. 10).
9. Section D910.3.6 of the Domestic Mail Manual (DMM Issue 58) provides as follows:
A post office box may not be used when the primary purpose is to have the USPS forward or transfer mail to another address free of charge.
10. Section D910.8.2 of the Domestic Mail Manual (DMM Issue 58) provides as follows:
A postmaster may terminate post office box service, . . . if the box customer . . . violates any standard on the care or use of the box; . . . .
DECISION
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 (1970); Fed. R. Civ. P. 56(e).
The sworn declaration of Postmaster Gatch, along with the other documents in the case file set forth undisputed facts sufficient to resolve this case. As noted above, Petitioner has filed nothing to dispute the facts set forth by Respondent. Respondent's position on the law is based on the two provisions of the Domestic Mail Manual quoted in Findings #9 and #10.
Petitioner's argument is not entirely clear, as the second page of his apparent three-page Petition is missing.[2] It is clear, however, that Petitioner claims to have been performing military reserve duty during the time in question. His position is that, because of that status, the rule on mail forwarding cannot validly be applied to him.
The facts presented by Respondent establish that Petitioner has been using his assigned post office box primarily for the purpose of having mail forwarded to other addresses. Petitioner had forwarding orders in effect for all but twelve weeks of the period from November 8, 1999 through March 6, 2001, the date of the postmaster's determination to terminate service.
The Postal Service regulation quoted in Finding #9 contains no exception for persons on military duty and I find no basis for concluding that such an exception is required by any other regulation or law. See Judith Gruber, P. S. Docket No. POB 98-1 (I.D. March 25, 1998). Petitioner's request for an amendment to the pertinent provisions of the DMM to exempt military persons from the rule quoted in Finding #9 is beyond the authority of this forum.
Post office box service is not something any customer has a “right” to. It is a service offered to customers who are willing to comply with the rules and regulations pertaining to the use of post office boxes. R. C. Tanner, P.S. Docket No. POB 98-67 (P.S.D. May 15, 1998); Michael H. Briggs, P.S. Docket No. POB 96-428 (P.S.D. February 24, 1997); William H. Lahan, P.S. Docket No. 24/156 (P.S.D.
December 31, 1986); Anthony E. DiBari, P.S. Docket No. 20/21 (P.S.D. January 24, 1985). The Postal Service has the right to establish reasonable requirements and rules for the use of post office boxes. Michael D. Tomsyck, P.S. Docket No. POB 98-168 (P.S.D. September 22, 1998).
The Petition also asks for an order staying the closing of Petitioner's box until proceedings in the United States Court of Appeals for the District of Columbia Circuit are final. Petitioner submitted nothing to show what action, if any, is pending in the Court of Appeals and I find no basis for staying further action on this administrative case.
The record establishes that Petitioner is using P.O. Box 4312 for the primary purpose of having mail forwarded to other addresses. This is contrary to the rule in DMM §D910.3.6. Accordingly, Respondent's Motion for Summary Judgment is granted and the postmaster's determination to close Petitioner's post office box is sustained.
Bruce R. Houston
Chief Administrative Law Judge
[1] Although the Petition is dated March 10, 2001 and is addressed to the Judicial Officer Department, it did not arrive here until May 1, 2002. Apparently, Petitioner sent the Petition to the postmaster who thought it was only a copy and did not realize Petitioner had not sent the Petition directly to this office. The postmaster forwarded the Petition to this office on April 29, 2002.
[2] Petitioner did not reply to a May 6, 2002 letter from this office asking him to provide the missing paragraphs 3-6 of his Petition.