January 13, 2004
In the Matter of a Mail Dispute Between
LAURA BETH MACKA
and
LINDA WITT
P.S. Docket No. MD 03-351
APPEARANCE FOR DISPUTANT LAURA BETH MACKA:
Jeff L. Davidson, Esq.
P.O. Box 500
Rutledge, TN 37861-0500
APPEARANCE FOR DISPUTANT LINDA WITT:
Linda Witt
Route 2, Box 449
Rutledge, TN 37861-9400
POSTAL SERVICE DECISION
On November 28, 2003, Disputant Laura Beth Macka filed an appeal from an Initial Decision, in which an Administrative Judge concluded that all mail addressed to the Grainger County News, P.O. Box 218, Rutledge, TN 37861-0218 should be delivered as directed by Disputant Linda Witt. Ms. Witt opposes the appeal.
BACKGROUND
Following the commencement of this proceeding, both parties were provided a full opportunity to present sworn statements with supporting documentation to the presiding Administrative Judge.[1] Ms. Macka did not file a sworn statement or any supporting documentation with the presiding Administrative Judge nor did she file a statement setting forth in detail her disagreements with Ms. Witt’s sworn statement as permitted by 39 C.F.R. §965.6. As a result, Ms. Macka was found to be in default. Nevertheless, Ms. Macka’s unsworn submittal to the postmaster with supporting documentation was considered by the presiding Administrative Judge in reaching his Initial Decision. However, on disputed issues of fact, the presiding Administrative Judge accorded greater weight to the sworn statement submitted by Ms. Witt and, on the record presented, concluded that Ms. Witt had not transferred ownership of the Grainger County News to Ms. Macka. The presiding Administrative Judge also concluded that Ms Macka had not established that as publisher she was the equivalent of the president of the organization[2] and thereby entitled to direct delivery of the organization’s mail.
DECISION
On appeal, Ms. Macka argues that her submittal to the postmaster was a sworn statement which should have been given the same weight as Ms. Witt’s statement and that when considered with her notarized notice of appeal and supporting documents, establishes that she is the owner of the Grainger County News and entitled to obtain delivery of its mail.
Ms. Macka has not shown that the presiding Administrative Judge improperly accorded greater weight to Ms. Witt’s submittal or that he erred in concluding that Ms. Witt had not transferred ownership of the Grainger County News to Ms. Macka. Ms. Macka’s submittal to the postmaster was unsworn and did not satisfy the requirements of 39 C.F.R. §965.5. Moreover, Ms. Macka’s notarized Notice of Appeal and supporting documents will not be considered a part of the evidentiary record inasmuch as they have not been shown to be newly discovered or otherwise unavailable for inclusion in the record before the presiding Administrative Judge.[3] In addition, while it is undisputed that Ms. Macka is the publisher of the Grainger County News and responsible for the daily operation of the organization, the evidence does not establish that she is the equivalent to the organization’s president and entitled to direct delivery of the organization’s mail contrary to the wishes of the organization’s owner.
Accordingly, the Initial Decision is affirmed and mail addressed to the Grainger County News at P.O. Box 218, Rutledge, TN 37861-0218 is to be delivered as directed by Ms. Witt. Since mail addressed to the Grainger County News at any other address was not considered to be in dispute, that mail is to be delivered in accordance with normal delivery procedures.
The parties are reminded that the purpose of a mail dispute proceeding is to determine the person or organization entitled to receive delivery of the mail to the address in dispute, not the ownership of the mail or the control of a post office box.[4] If either party receives mail intended for the other, that party is responsible for forwarding such mail to the intended recipient. If either party obtains a court order directing delivery of the mail, postal regulations provide that the mail is to be delivered in accordance with the court order.[5]
James A. Cohen
Judicial Officer
[1] See 39 C.F.R. §965.5. In addition, the Notice of Docketing and Submittal Due Date (Notice) advised both parties that they had 15 days to file sworn statements and was accompanied by a copy of the applicable rules of practice. The Notice was mailed to both parties by certified mail on September 16, 2003, and signed for by Disputant Macka’s representative on September 22, 2003.
[2] If a disagreement arises over where mail to a governmental or nongovernmental organization (including a sole proprietorship) should be delivered, Postal Operations Manual (POM) §614.1 provides that such mail “must be delivered according to the order of the organization’s president or equivalent official.” POM Issue 9, July 2002, Updated With Postal Bulletin Revisions Through September 4, 2003.
[3] See Christian Duru and Femmy Akene, P.S. Docket No. MD 00-490 (P.S.D. March 21, 2001); The Pelican Group and Consultis, Inc., P.S. Docket No. MD 00-475 (P.S.D. Feb. 5, 2001); Edwin J. Kirschner and Elaine Cartechine & Virginia Blanchard, P.S. Docket No. MD 98-39 (Order April 24, 1998).
[4] See POM §616; Carolyn Goethie and Rev. Dr. Thomas R. Bailey, P.S. Docket No. MD 01-359 (P.S.D. March 21, 2002); John Roberts and Bruce Keslar, P.S. Docket No. MD 96-332 (P.S.D. Nov. 5, 1996).