May 10, 2002
In the Matter of the Petition by
JACQUELINE MILLS
66 South Forest Avenue
Rockville Centre, NY 11570-5503
Appeal of Termination of P.O. Box 27, White Sulphur Springs, NY 12787-0027
P.S. Docket No. POB 02-56
APPEARANCE FOR PETITIONER:
Jacqueline Mills
66 South Forest Avenue
Rockville Centre, NY 11570-5503
APPEARANCE FOR RESPONDENT:
Catherine A. Green, Esq.
Corporate Law Section
United States Postal Service
475 L'Enfant Plaza, SW, Room 6112
Washington, DC 20260-1135
INITIAL DECISION
This matter was forwarded to this office by the Postal Service Law Department, New York Metro Office, on January 29, 2002, after that office was unable to resolve a dispute between Petitioner and the White Sulphur Springs, NY Postmaster. Petitioner's December 18, 2001 and December 23, 2001 letters to the Law Department were treated as a Petition, appealing a Determination to close P.O. Box 27.
On March 15, 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 Linda DeCarlo, the White Sulphur Springs, NY Postmaster, and other documents. Petitioner was given an opportunity to reply to the motion and did so. The following findings of fact are based on all the material submitted by the parties.
FINDINGS OF FACT
1. Petitioner has rented P.O. Box 27 at the White Sulphur Springs Post Office since 1981. The address listed on the application, PS Form 1093, was Dessecker Road. (DeCarlo Declaration, Form 1093 attached as Exhibit A).
2. Sometime thereafter, Petitioner ceased to live on Dessecker Road, although she remained in the White Sulphur Springs area. Petitioner did not update her Form 1093 to provide a new address. (DeCarlo Declaration).
3. Sometime in approximately 1999, Petitioner told the postmaster that she was going to Long Island, NY to live with and care for her father who was ill. She asked the postmaster to forward her mail. The postmaster agreed to do so even though Petitioner did not fill out a Change-of-Address form, PS Form 3575. Thereafter, the postmaster forwarded Petitioner's mail to 66 South Forest Avenue, Rockville Centre, NY. (DeCarlo Declaration).
4. On July 31, 2001, Postmaster DeCarlo sent Petitioner a handwritten note stating that she could no longer forward Petitioner's mail unless Petitioner filed an official Change-of-Address form. (DeCarlo Declaration, Exhibit B).
5. On October 22, 2001, Postmaster DeCarlo sent Petitioner another handwritten note, again stating that she could no longer forward Petitioner's mail unless Petitioner filed an official Change-of-Address form. She also stated that the box rent was due in September 2001, but that Petitioner must complete a new box application form before her post office box could be renewed. The postmaster enclosed both forms with her note. (DeCarlo Declaration, Exhibit C).
6. Petitioner called Postmaster DeCarlo on November 21, 2001. Ms. DeCarlo told Petitioner that her post office box had been closed and that mail had been returned to senders because there was no forwarding order on file. Petitioner became upset at this and made statements to Ms. DeCarlo that Ms. DeCarlo found to be threatening, such as, "You're ____ing with me and you're going to pay;" "I'm going to get even;" and "I will haunt you until the day you die." Ms. DeCarlo reported the matter to Postal Inspector Dubinski by letter dated November 21, 2001. (DeCarlo Declaration, Exhibit D).
7. Petitioner wrote to Postmaster DeCarlo on November 23, 2001. She included a PS Form 3575, Mail Forwarding Change of Address Form, signed and dated November 23, 2001 and labeled "temporary," but it included no forwarding address. She made no reference to the box application form (Form 1093) but strongly protested the postmaster's failure to continue to forward her mail. Referring to her payment for the box renewal, Petitioner stated "tell postal to shove the $10.00 money order enclosed where the sun don't shine." (Letter attached to Law Department forwarding letter).
8. By letter dated November 26, 2001, Postmaster DeCarlo turned this matter over to the United States Postal Service Law Department. On December 3, 2001, Ms. Buford, a Paralegal Specialist, wrote to Petitioner to inform her that the Postal Service was exercising its option to close Petitioner's post office box based on Petitioner's failure to comply with the requirement to complete a new PS Form 1093 and her abusive and threatening behavior toward Postmaster DeCarlo. The letter also informed Petitioner of her right to file a Petition opposing that determination under the provisions of 39 C.F.R. Part 958. (Letter attached to Law Department forwarding letter; also attached as Exhibit E to DeCarlo Declaration).
9. After receipt of the letter from Ms. Buford, Petitioner wrote two letters, dated December 18 and December 23, 2001 to Stephen A. Moe, Managing Counsel, Law Department, New York Metro Office. In these letters, Petitioner argued that Ms. Buford's letter cited no rule regarding a new box application, stated that Ms. DeCarlo had never demanded a new box application "until this incident," and challenged the Law Department's jurisdiction to be handling this matter for Ms. DeCarlo. She also reiterated her complaint about the "obstruction" of her mail. (Letters attached to Law Department forwarding letter).
10. On December 23 and December 26, 2001, Petitioner submitted two completed PS Forms 3575, directing that mail addressed to herself and to Champagne Acres at P.O. Box 27 be forwarded to 66 So. Forest Ave., Rockville Centre 11570. At the top of each form she wrote, "Under Protest." (Attached to Law Department forwarding letter).
11. On January 3, 2002, Mr. Moe replied to Petitioner's two letters. Mr. Moe reiterated the reasons stated in Ms. Buford's letter for the determination to close Petitioner's post office box, i.e., her failure to update the application form and her abusive and threatening behavior. The letter also repeated the information regarding the procedure for Petitioner to appeal the determination to close her post office box. Mr. Moe's letter references multiple telephone conversations between Petitioner and members of his staff. The case file also contains other memoranda referencing several telephone calls from Petitioner to various members of the Law Department. (Letter and memoranda attached to Law Department forwarding letter).
12. On January 24, 2002, Ms. Buford wrote to Petitioner to inform her that the case had been forwarded to this office and that, in accordance with Postal Service regulations, her box would remain open and that her mail would be forwarded pending resolution of this case. (Letter attached to Law Department forwarding letter).
13. Section D910.2.1(a) of the Domestic Mail Manual (DMM) states:
The applicant must complete all required items on Form 1093, Application for Post Office Box or Caller Service, . . .. Furnishing false information or refusing to furnish required information may be sufficient reason for denial of the application or discontinuance of service.
§D910.2.1(d) states:
When any information required on Form 1093 changes, the box customer must update the application on file at the post office.
§D910.3.6 states:
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.
§D910.8.2 states:
A postmaster may terminate post office box service, . . ., if the box customer . . . refuses to update information on the box application; violates any standard on the care or use of the box; conducts himself or herself in a violent, threatening, or otherwise abusive manner on postal premises; or uses it for any unlawful activity as described in 3.5. The customer is notified of the postmaster's determination to refuse or terminate service and of the appeal procedures for that determination.
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 DeCarlo, along with the various letters and other documents in the case file set forth undisputed facts sufficient to resolve this case. Although Petitioner has disputed some facts, most of her submissions address matters not relevant to this case and she has not challenged any of the material facts.
Respondent argues that there are three bases for upholding the termination of Petitioner's box service, i.e., that she refused to update her application form, that she has been using the post office box service primarily for mail forwarding, and that she behaved in an abusive and threatening manner toward the postmaster.
Petitioner does not dispute that she has failed to update her Form 1093 even though she has not resided at the address listed on her Form 1093 for three years or more. There may be some uncertainty over when Petitioner was first put on notice of the requirement to update this information, but it was made clear to her at least by October 22, 2001 (see Finding #5).
Petitioner also does not dispute that she has used the box almost exclusively to have mail forwarded to the Rockville Centre address for approximately three years. The fact that this regulatory provision was not cited in Ms. Buford's December 3, 2001 letter as a basis for termination of service does not bar Respondent from citing it now, as there is no factual dispute over the matter. Also, the fact that the postmaster may have agreed to forward mail for an extended period of time, and without a Change-of-Address form being filed, does not foreclose the Postal Service from properly enforcing its rules now.
Finally, Petitioner does not dispute that she used the language alleged in Postmaster DeCarlo's declaration in her November 21, 2001 conversation with Ms. DeCarlo. Under the circumstances of this case, I find the language that Petitioner directed toward the postmaster in her November 21 telephone conversation to be abusive and threatening. The provision in DMM §D910.8.2 refers to conduct "on postal premises." Although Petitioner herself was not on postal premises, the postmaster to whom the abusive and threatening language was directed was on postal premises performing her official duties. I find this behavior to be covered by the cited provision in DMM §D910.8.2.
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).
Respondent's Motion for Summary Judgment is granted, and the determination to terminate post office box service to Petitioner at P.O. Box 27, based on Sections D910.2.1(d), D910.3.6, and D910.8.2 of the Domestic Mail Manual, is sustained.
Bruce R. Houston