TITLE
39 CODE OF FEDERAL REGULATONS Part
952 Rules
of Practice in Proceedings Relative SEC. 952.1 Authority
for rules. Authority: 39 U.S.C.
204, 401, 3005, 3012, 3016 These
rules of practice are issued by the Judicial Officer of the U.S. Postal
Service (see §952.26) pursuant to authority delegated by the Postmaster
General. These
rules of practice shall be applicable in all formal proceedings before the
Postal Service, 39 U.S.C. 3005, including such
cases instituted under prior rules of practice pertaining to these or
predecessor statutes, unless timely shown to be prejudicial to the Respondent. These
rules do not preclude the disposition of any matter by agreement between the
parties either before or after the filing of a complaint when time, the
nature of the proceeding, and the public interest permit. The
offices of the officials mentioned in these rules are located at 2101 Wilson
Boulevard, Suite 600, Arlington, VA 22201-3078, and are open Monday through
Friday except holidays from 8:15 a.m. to 4:45 p.m. When
the Chief Postal Inspector or his or her designated representative believes
that a person is using the mails in a manner requiring formal administrative
action under 39 U.S.C. 3005, he or she shall
prepare and file with the Recorder a complaint which names the person
involved; states the name, address and telephone number of the attorney
representing Complainant; states the legal authority and jurisdiction under
which the proceeding is initiated; states the facts in a manner sufficient to
enable the person named therein to make answer thereto; and requests the
issuance of an appropriate order or orders and/or the assessment of civil
penalties. Complainant shall attach to the complaint a copy of the order or
orders requested which may, at any time during the proceedings, be modified.
The person named in the complaint shall be known as the "Respondent",
and the Chief Postal Inspector or his or her designee shall be known as the
"Complainant". The
term "person" (1 U.S.C. 1) shall include
any name, address, number or other designation under or by use of which the
Respondent seeks remittances of money or property through the mail. In
preparation for or during the pendency of a
proceeding initiated under 39 U.S.C. 3005, mail
addressed to a Respondent may be impounded upon obtaining an appropriate
order from a United States District Court, as provided in 39 U.S.C. 3007. §952.7 Notice
of answer and hearing. (a) When a complaint is filed
against a Respondent whose mailing address is within the United States, the
Recorder shall issue a notice of answer and hearing stating the date for
filing an answer which shall not exceed 15 days from the service of the
complaint, the time and place of the hearing and a reference to the effect of
failure to file an answer or appear at the hearing and/or the assessment of
civil penalties authorized by 39 U.S.C. 3012. (See
§§952.10 and 952.11.) Whenever practicable, the hearing date shall be within
30 days of the date of the notice. (b) Where a complaint is filed
against a Respondent whose mailing address is not within the United States,
the Judicial Officer shall review the complaint and any supporting
information and determine whether a prima facie showing has been made that
Respondent is engaged in conduct warranting issuance of the orders authorized
by 39 U.S.C. 3005(a). Where he or she concludes
that a prima facie showing has not been made he or she shall dismiss the
complaint. Where he or she concludes that a prima facie showing has been
made, he or she shall issue a tentative decision and orders which: set forth
findings of fact and conclusions of law; direct Respondent to cease and
desist from engaging in conduct warranting the issuance of an order
authorized by 39 U.S.C. 3005(a); direct that postal
money orders drawn to the order of Respondent not be paid for 45 days from
date of the tentative decision; direct that mail addressed to Respondent be
forwarded to designated facilities and detained for 45 days from the date of
the tentative decision subject to survey by Respondent and release of mail
unrelated to the matter complained of; tentatively assess such civil
penalties as he considers appropriate under applicable law; and provide that
unless Respondent presents, within 45 days of the date of the tentative
decision, good cause for dismissing the complaint, or modifying the tentative
decision and orders, the tentative decision and orders shall become final.
The Judicial Officer may, upon a showing of good cause made within 45 days of
the date of the tentative decision, hold a hearing to determine whether the
tentative decision and orders should be revoked, modified or allowed to
become final. Should a hearing be granted, the Judicial Officer may modify
the tentative decision and orders to extend the time during which the payment
of postal money orders payable to Respondent is suspended and mail addressed
to Respondent is detained. (a) Where the Respondent’s mailing
address is within the United States, the Recorder shall cause a notice of
answer and hearing and a copy of the complaint to be transmitted to the
postmaster at any office of address of the Respondent or to the inspector in
charge of any division in which the Respondent is doing business, which shall
be delivered to the Respondent or his or her agent by said postmaster or a
supervisory employee of his or her post office or a postal inspector. A
receipt acknowledging delivery of the notice shall be secured from the
Respondent or his or her agent and forwarded to the Recorder, U.S. Postal
Service, 2101 Wilson Boulevard, Suite 600,
Arlington, VA 22201-3078, to become a part of the official record. (b) If, after 5 days, the
postmaster or his or her agent can find no person to accept service of the
notice of answer and hearing and complaint pursuant to paragraph (a) of this
section, the notice may be delivered in the usual manner as other mail
addressed to the Respondent. A statement, showing the time and place of
delivery, signed by the postal employee who delivered the notice of answer
and hearing and complaint shall be forwarded to the Recorder and such
statement shall constitute evidence of service. (c) Where the only address against
which Complainant seeks relief is outside the United States, a copy of the
complaint, the tentative decision, and a copy of these rules of practice
shall be sent by registered air mail, return receipt requested, by the
Recorder to the address cited in the complaint. A written statement by the
Recorder noting the time and place of mailing shall be accepted as evidence
of service in the event a signed return receipt is not returned to the
Recorder. §952.9 Filing
documents for the record. (a) Each party shall file with the
Recorder pleadings, motions, proposed orders and other documents for the
record. The Recorder shall cause copies to be delivered promptly to other
parties to the proceeding and to the presiding officer. (b) The parties shall submit four
copies of all documents unless otherwise ordered by the presiding officer.
One copy shall be signed as the original. (c) Documents shall be dated and
state the docket number and title of the proceeding. Any pleading or other
document required by order of the presiding officer to be filed by a
specified date shall be delivered to the Recorder on or before such date. The
date of filing shall be entered thereon by the Recorder. (a) The answer shall contain a
concise statement admitting, denying, or explaining each of the allegations
set forth in the complaint. (b) Any facts alleged in the
complaint which are not denied or are expressly admitted in the answer may be
considered as proved, and no further evidence regarding these facts need be
adduced at the hearing. (c) The answer shall be signed
personally by an individual Respondent, or in the
case of a partnership by one of the partners, or, in the case of a
corporation or association, by an officer thereof. (d) The answer shall set forth the
Respondent’s address and telephone number or the name, address and telephone
number of its attorney. (e) The answer shall affirmatively
state whether the Respondent will appear in person or by counsel at the
hearing. (f) If the Respondent does not
desire to appear at the hearing in person or by counsel he or she may request
that the matter be submitted for determination pursuant to paragraph (b) of
§952.11. (a) If the Respondent fails to
file an answer within the time specified in the notice of answer and hearing,
he or she shall be deemed in default, and to have waived hearing and further
procedural steps. The Judicial Officer shall thereafter issue orders without
further notice to the Respondent and/or assess civil penalties. (b) If the Respondent files an
answer but fails to appear at the hearing, the Respondent may, unless timely
indications to the contrary are received, be deemed to have abandoned the
intention to present a defense to the charges of the complaint, and the
Judicial Officer, without further notice to Respondent, may issue the orders
and/or assess civil penalties sought in the complaint. §952.12 Amendment
of pleadings. (a) Amendments proposed prior to the
hearing shall be filed with the Recorder. Amendments proposed thereafter
shall be filed with the presiding officer. (b) By consent of the parties a
pleading may be amended at any time. Also, a party may move to amend a
pleading at any time prior to the close of the hearing and, provided that the
amendment is reasonably within the scope of the proceeding initiated by the
complaint, the presiding officer shall make such ruling on the motion as he
or she deems to be fair and equitable to the parties. (c) When issues not raised by the pleadings but reasonably within the scope of
the proceedings initiated by the complaint are tried by express or implied
consent of the parties, they shall be treated in all respects as if they had
been raised in the pleadings. Such amendments as may be necessary to make the
pleadings conform to the evidence and to raise such issues shall be allowed
at any time upon the motion of any party. (d) If a party objects to the
introduction of evidence at the hearing on the ground that it is not within
the issues made by the pleadings, but fails to satisfy the presiding officer
that an amendment of the pleadings would prejudice him or her on the merits,
the presiding officer may allow the pleadings to be amended and may grant a
continuance to enable the objecting party to rebut the evidence presented. (e) The presiding officer may,
upon reasonable notice and upon such terms as are just,
permit service of a supplemental pleading setting forth transactions,
occurrences, or events which have happened since the date of the pleading
sought to be supplemented and which are relevant to any of the issues
involved. §952.13 Continuances
and extensions. Continuances
and extensions will not be granted by the presiding officer except for good cause
shown. Hearings
are held at 2101 Wilson Boulevard, Suite 600, Arlington, VA 22201-3078, or
other locations designated by the presiding officer. §952.15 Change
of place of hearings. Not
later than the date fixed for the filing of the answer, a party may file a
request that a hearing be held to receive evidence in his or her behalf at a
place other than that designated for hearing in the notice. He or she shall
support his or her request with a statement outlining: (a) The evidence to be offered in
such place; (b) The names and addresses of the
witnesses who will testify; (c) The reasons why such evidence
cannot be produced at Arlington, VA. The presiding officer shall give
consideration to the convenience and necessity of the parties and the
relevancy of the evidence to be offered. (a) A respondent may appear and be
heard in person or by attorney. (b) An attorney may practice
before the Postal Service in accordance with applicable rules issued by the
Judicial Officer. See Part 951 of this chapter. (c) When a respondent is
represented by an attorney, all pleadings and other papers subsequent to the
complaint shall be mailed to the attorney. (d) A respondent must promptly
file a notice of change of attorney. (a) The presiding officer at any
hearing shall be an Administrative Law Judge qualified in accordance with law
or the Judicial Officer (39 U.S.C. 204). The Chief
Administrative Law Judge shall assign cases to Administrative Law Judges upon
rotation so far as practicable. The Judicial Officer may, for good cause
shown, preside at the reception of evidence in proceedings where expedited
hearings are requested by either party. (b) The presiding officer shall
have authority to: (1) Administer oaths
and affirmations; (2) Examine witnesses; (3) Rule upon offers
of proof, admissibility of evidence and matters of procedure; (4) Order any pleading
amended upon motion of a party at any time prior to the close of the hearing; (5) Maintain
discipline and decorum and exclude from the hearing any person acting in an
indecorous manner; (6) Require the filing
of briefs or memoranda of law on any matter upon which he or she is required
to rule; (7) Order prehearing conferences for the purpose of the settlement
or simplification of issues by the parties; (8) Order the
proceeding reopened at any time prior to his or her decision for the receipt
of additional evidence; (9) Render an initial
decision, which becomes the final Agency decision unless a timely appeal is
taken: The Judicial Officer may issue a tentative or a final decision; (10) Rule upon
applications and requests filed under §952.19 and §952.21. (a) Except as otherwise provided
in these rules, the Federal Rules of Evidence shall govern. However, such
rules may be relaxed to the extent that the presiding officer deems proper to
insure a fair hearing. The presiding officer shall exclude irrelevant,
immaterial or repetitious evidence. (b) Testimony shall be under oath
or affirmation and witnesses shall be subject to cross-examination. (c) Agreed statements of fact may
be received in evidence. (d) Official notice or knowledge
may be taken of the types of matters of which judicial notice or knowledge
may be taken. (e) Authoritative writings of the
medical or other sciences, may be admitted in
evidence but only through the testimony of expert witnesses or by
stipulation. (f) Lay testimonials will not be
received in evidence as proof of the efficacy or quality of any product or
thing sold through the mails. (g) The written statement of a
competent witness may be received in evidence provided that such statement is
relevant to the issues, that the witness shall testify under oath at the
hearing that the statement is in all respects true, and, in the case of
expert witnesses, that the statement correctly states his or her opinion or
knowledge concerning the matters in question. (h) A party who objects to the
admission of evidence shall make a brief statement of the grounds for the
objection. Formal exceptions to the rulings of the presiding officer are
unnecessary. (a)
General. Upon written request of either party filed with the Recorder or on
his own initiative, the presiding officer may issue a subpoena requiring: (1) Testimony at a
deposition. The deposing of a witness in the city or county where the witness
resides or is employed or transacts business in person, or at another
location convenient for the witness that is specifically determined by the
presiding officer; (2) Testimony at a
hearing. The attendance of a witness for the purpose of taking testimony at a
hearing; and (3) Production of
records. In addition to paragraphs (a)(1) and (a)(2)
of this section, the production by the witness at the deposition or hearing
of records designated in the subpoena. (b) Voluntary cooperation. Each
party is expected: (1) To cooperate and
make available witnesses and evidence under its control as requested by the
other party, without issuance of a subpoena, and (2) To secure
voluntary production of desired third-party records whenever possible. (c) Requests for subpoenas. (1) A request for a
subpoena shall to the extent practical be filed: (i)
At the same time a request for deposition is filed; or (ii) 15 days before a
scheduled hearing where the attendance of a witness at a hearing is sought. (2) A request for a
subpoena shall state the reasonable scope and general relevance to the case
of the testimony and of any records sought. (3) The presiding
officer, in his discretion, may honor requests for subpoenas not made within
the time limitations specified in this paragraph. (d) Requests to quash or modify.
Upon written request by the person subpoenaed or by a party, made within 10
days after service but in any event not later than the time specified in the
subpoena for compliance, the presiding officer may: (1) Quash or modify
the subpoena if it is unreasonable and oppressive or for other good cause
shown, or (2) require
the person in whose behalf the subpoena was issued to advance the reasonable
cost of producing subpoenaed records. Where circumstances require, the
presiding officer may act upon such a request at any time after a copy has
been served upon the opposing party. (e) Form; issuance. (1) Every subpoena
shall state the title of the proceeding, shall cite 39 U.S.C.
3016(a)(2) as the authority under which it is issued, and shall command each
person to whom it is directed to attend and give testimony, and if
appropriate, to produce specified records at a time and place therein
specified. In issuing a subpoena to a requesting party, the presiding officer
shall sign the subpoena and may, in his discretion, enter the name of the
witness and otherwise leave it blank. The party to whom the subpoena is
issued shall complete the subpoena before service. (2) The party at whose
instance a subpoena is issued shall be responsible for the payment of fees
and mileage of the witness and of the officer who serves the subpoena. The
failure to make payment of such charges on demand may be deemed by the
presiding officer as sufficient ground for striking the testimony of the
witness and the evidence the witness has produced. (f) Service. (1) In general. The
party requesting issuance of a subpoena shall arrange for service. (2) Service within the
United States. A subpoena issued under this section may be served by a person
designated under 18 U.S.C. 3061 or by a United
States marshal or deputy marshal, or by any other person who is not a party
and not less than 18 years of age at any place within the territorial
jurisdiction of any court of the United States. (3) Foreign Service.
Any such subpoena may be served upon any person who is not to be found within
the territorial jurisdiction of any court of the United States, in such
manner as the Federal Rules of Civil Procedure prescribe for service in a
foreign country. To the extent that the courts of the United States may
assert jurisdiction over such person consistent with due process, the United
States District Court for the District of Columbia shall have the same
jurisdiction to take any action respecting compliance with this section by
such person that such court would have if such person were personally within
the jurisdiction of such court. (4) Service on
Business Persons. Service of any such subpoena may be made upon a
partnership, corporation, association, or other legal entity by: (i) Delivering a
duly executed copy thereof to any partner, executive officer, managing agent,
or general agent thereof, or to any agent thereof authorized by appointment
or by law to receive service of process on behalf of such partnership,
corporation, association, or entity; (ii) Delivering a duly executed copy thereof
to the principal office or place of business of the partnership, corporation,
association, or entity; or (iii) Depositing such copy in the United
States mails, by registered or certified mail, return receipt requested, duly
addressed to such partnership, corporation, association, or entity at its
principal office or place of business. (5) Service on Natural
Persons. Service of any subpoena may be made upon any natural person by: (i) delivering a
duly executed copy to the person to be served; or (ii) depositing
such copy in the United States mails, by registered or certified mail, return
receipt requested, duly addressed to such person at his residence or
principal office or place of business. (6) Verified Return. A
verified return by the individual serving any such subpoena setting forth the
manner of such service shall be proof of service. In the case of service by
registered or certified mail, such return shall be accompanied by the return
post office receipt of delivery of such subpoena. (g) Contumacy or refusal to obey a
subpoena. In the case of contumacy or refusal to obey a subpoena, the
Judicial Officer may request the Attorney General to petition the district
court for any district in which the person receiving the subpoena resides, is
found, or conducts business (or in the case of a person outside the
territorial jurisdiction of any district court, the district court for the
District of Columbia) to issue an appropriate order for the enforcement of
such subpoena. Any failure to obey such order of the court may be punishable
as contempt. The
Postal Service does not pay fees and expenses for Respondent’s witnesses or
for depositions requested by Respondent. §952.21 Depositions,
interrogatories, requests for admission of fact and production of documents. (a) Not later than 5 days after
the filing of Respondent’s answer, any party may file application with the
Recorder for the taking of testimony by deposition. In support of such
application the applicant shall submit under oath or affirmation a statement
setting out the reasons why such testimony should be taken by deposition, the
time and the place, and the name and address of the witness whose deposition
is desired, the subject matter of the testimony of each witness and its
relevancy. (b) If the application is granted,
the order for the taking of the deposition will specify the time and place
thereof, the name of the witness, and require that the deposition be taken
before a person authorized to administer oaths as required by paragraph (f)
of this section. (c) Each witness testifying upon
deposition shall be duly sworn, and the adverse party shall have the right to
cross-examine. The questions and answers together with all objections,
shall be reduced to writing and, unless waived by stipulation of the parties,
shall be read to and subscribed by the witness in the presence of the
deposition officer who shall certify it in the usual form. The deposition
officer shall file the testimony taken by deposition as directed in the
order. The deposition officer shall put the witness on oath. All objections
made at the time of examination shall be noted by the deposition officer and
the evidence objected to shall be taken subject to the objections. In lieu of
participating in the oral examination, a party may transmit written
interrogatories to the officer, who shall propound them to the witness and
record the answers verbatim. Objections to relevancy or materiality of
testimony, or to errors and irregularities occurring at the oral examination
in the manner of taking the deposition, in the form of the questions or
answers, in the oath or affirmation, or in the conduct of the parties and
errors of any kind which might be obviated, cured or removed if promptly
presented, are waived unless timely objection is made at the taking of the
deposition. (d) At the hearing any part or all
of the deposition may be offered in evidence by any party who was present or
represented at the taking of the deposition or who had notice thereof. If the
deposition is not offered and received in evidence, it shall not be
considered as a part of the record in the proceeding. The admissibility of
depositions or parts thereof shall be governed by the rules of evidence. (e) The party requesting the
deposition shall pay all fees required to be paid to witnesses and the
deposition officer, and shall provide an original and one copy of the
deposition for the official record, and shall serve one copy upon the
opposing party. (f) Within the United States or
within a territory or insular possession, subject to the dominion of the
United States, depositions or interrogatories may be taken or certified
before an officer authorized to administer oaths by the laws of the United
States or of the place where the examination is held; within a foreign
country, depositions or interrogatories may be taken or certified before a
secretary of an embassy or legation, consul general, vice consul or consular
agent of the United States, or any other person designated in the order for
the taking of a deposition. (g) Depositions may also be taken
and submitted on written interrogatories in substantially the same manner as
depositions taken by oral examination. When a deposition is taken upon
written interrogatories and cross-interrogatories, none of the parties except
a witness who is a party shall be present or represented, and no person,
other than the witness, a stenographic reporter, and the officer shall be
present at the examination of the witness, which fact shall be certified by
the officer, who shall propound the interrogatories and cross-interrogatories
to the witness in their order and reduce the testimony to writing in the
witness’ own words. For good cause shown or by stipulation of the parties,
written interrogatories and cross-interrogatories propounding questions of
fact may be answered by the witness in writing, without the presence of an
officer and without being recorded by a stenographic reporter, provided the
answers are sworn to by the witness before a person authorized to administer
an oath prescribed by paragraph (f). (h) Not later than 5 days after
the filing of Respondent’s answer, any party may serve on the other party a
request for the admission of specified facts. In the event the party served
refuses timely to respond to the request for admissions, the presiding
officer for good cause shown may require the party served to admit or deny
each requested fact. The factual propositions set out in the request shall be
deemed admitted upon the failure of a party to respond to the presiding
officer’s order for admission or denial. (i) Not
later than 5 days after the filing of Respondent’s answer, either party may
file an application for the production of documents or objects. The
application shall state the cause therefor and
specifically identify the documents or objects and their relevance and
materiality to the cause or causes in issue. The presiding officer may order
the other party to produce and permit the inspection and photographing of any
designated documents or objects not privileged which are reasonably
calculated to lead to the discovery of admissible evidence. If the parties
cannot themselves agree thereon, the presiding officer shall specify such
terms and conditions in making the inspection and taking the copies and
photographs. (j) Failure of a party to comply
with an order pursuant to this rule may result in the presiding officer’s
ruling that the disobedient party may not support or oppose designated
charges or defenses or may not introduce designated matters in evidence. The
presiding officer may also infer from the disobedient party’s failure to
comply with the order that the facts to which the order related would, if produced
or admitted, be adverse to such party’s interests. The admissibility of
matter adduced by operation of §952.21 shall be governed by §952.18. (a) Hearings shall be stenographically reported by a contract reporter of the
Postal Service under the supervision of the assigned presiding officer.
Argument upon any matter may be excluded from the transcript by order of the
presiding officer. A copy of the transcript shall be a part of the record and
the sole official transcript of the proceeding. Copies of the transcript
shall be supplied to the parties to the proceeding by the reporter at rates
not to exceed the maximum rates fixed by contract between the Postal Service
and the reporter. Copies of parts of the official record including exhibits
admitted into evidence, other than the transcript, may be obtained by the
Respondent from the Recorder upon the payment of reasonable copying charges.
Items that cannot reasonably be photocopied may be photographed and furnished
in that form to Respondent. (b) Changes in the official
transcript may be made only when they involve errors affecting substance and
then only in the manner herein provided. No physical changes shall be made in
or upon the official transcript, or copies thereof, which have been filed
with the record. Within 10 days after the receipt by any party of a copy of
the official transcript, or any part thereof, he or she may file a motion
requesting correction of the transcript. Opposing counsel shall, within such
time as may be specified by the presiding officer, notify the presiding
officer in writing of his or her concurrence or disagreement with the
requested corrections. Failure to interpose timely objection to a proposed
correction shall be considered to be concurrence. Thereafter, the presiding
officer shall by order specify the corrections to be made in the transcript.
The presiding officer on his or her own initiative may order corrections to
be made in the transcript with prompt notice to the parties of the proceeding.
Any changes ordered by the presiding officer other than by agreement of the
parties shall be subject to objection and exception. §952.23 Proposed
findings and conclusions. (a) Each party to a proceeding,
except one who fails to answer the complaint or, having answered, either
fails to appear at the hearing or indicates in the answer that he or she does
not desire to appear, may, unless at the discretion of the presiding officer such
is not appropriate, submit proposed findings of fact, conclusions of law,
orders and supporting reasons either in oral or written form in the
discretion of the presiding officer. The presiding officer may also require
parties to any proceeding to submit proposed findings of fact, conclusions of
law, orders, and supporting reasons. Unless given orally, the date set for
filing of proposed findings of fact, conclusions of law, orders and
supporting reasons shall be within 15 days after the delivery of the official
transcript to the Recorder who shall notify both parties of the date of its
receipt. The filing date for proposed findings of fact, conclusions of law,
orders and supporting reasons shall be the same for both parties. If not
submitted by such date, or unless extension of time for the filing thereof is
granted, they will not be included in the record or given consideration. (b) Except when presented orally
before the close of the hearing, proposed findings of fact shall be set forth
in serially numbered paragraphs and shall state with particularity all
evidentiary facts in the record with appropriate citations to the transcript
or exhibits supporting the proposed findings. Each proposed conclusion shall
be separately stated. (c) Except when presented orally
before the close of the hearing, proposed orders shall state the statutory
basis of the order and, with respect to orders proposed to be issued pursuant
to 39 U.S.C. 3005(a)(3),
shall be set forth in serially numbered paragraphs stating with particularity
the representations Respondent and its representative shall cease and desist
from using for the purpose of obtaining money or property through the mail. (a) Initial decision by
Administrative Law Judge. A written initial decision shall be rendered by
an Administrative Law Judge with all due speed. The initial decision shall
include findings and conclusions with the reasons therefor
upon all the material issues of fact or law presented on the record, and the
appropriate orders or denial thereof. The initial decision shall become the
final Agency decision unless an appeal is taken in accordance with §952.25. (b) Tentative or final decision
by the Judicial Officer. When the Judicial Officer presides at the
hearing he or she shall issue a final or a tentative decision. Such decision
shall include findings and conclusions with the reasons therefor
upon all the material issues of fact or law presented on the record, and the
appropriate orders or denial thereof. The tentative decision shall become the
final Agency decision unless exceptions are filed in accordance with §952.25. (c) Oral decisions. The
presiding officer may render an oral decision (an initial decision by an
Administrative Law Judge, or a tentative or final decision by the Judicial
Officer) at the close of the hearing when the nature of the case and the
public interest warrant. A party who desires an oral decision shall notify
the presiding officer and the opposing party at least 5 days prior to the
date set for the hearing. Either party may submit proposed findings,
conclusions, and proposed orders either orally or in writing at the
conclusion of the hearing. §952.25 Exceptions
to initial decision or tentative decision. (a) A party in a proceeding
presided over by an Administrative Law Judge, except a party who failed to
file an answer, may appeal to the Judicial Officer by filing exceptions in a
brief on appeal within 15 days from the receipt of the Administrative Law
Judge’s initial decision. (b) A party in a proceeding
presided over by the Judicial Officer, except one who has failed to file an
answer, may file exceptions within 15 days from the receipt of the Judicial
Officer’s tentative decision. (c) If an initial or tentative
decision is rendered orally by the presiding officer at the close of the
hearing, he or she may then orally give notice to the parties participating
in the hearing of the time limit within which an appeal must be filed. (d) The date for filing the reply
to an appeal brief or to a brief in support of exceptions to a tentative
decision by the Judicial Officer is 10 days after the receipt thereof. No
additional briefs shall be received unless requested by the Judicial Officer. (e) Briefs upon appeal or in
support of exceptions to a tentative decision by the Judicial Officer and
replies thereto shall be filed in triplicate with the Recorder and contain
the following matter in the order indicated: (1) A subject index of
the matters presented, with page references; a table of cases alphabetically
arranged; a list of statutes and texts cited with page references. (2) A concise abstract
or statement of the case in briefs on appeal or in support of exceptions. (3) Numbered
exceptions to specific findings and conclusions of fact, conclusions of law,
or recommended orders of the presiding officer in briefs on appeal or in
support of exceptions. (4) A concise argument
clearly setting forth points of fact and of law relied upon in support of or
in opposition to each exception taken, together with specific references to
the parts of the record and the legal or other authorities relied upon. (f) Unless permission is granted
by the Judicial Officer no brief shall exceed 50 printed or 100 typewritten
pages double spaced. (g) The Judicial Officer will
extend the time to file briefs only upon written application for good cause
shown. The Recorder shall promptly notify the applicant of the decision of
the Judicial Officer on the application. If the appeal brief or brief in
support of exceptions is not filed within the time prescribed, the defaulting
party will be deemed to have abandoned the appeal or waived the exceptions,
and the initial or tentative decision shall become the final Agency decision. The
Judicial Officer is authorized: (a) To act as presiding officer at hearings,
(b) to render tentative decisions, (c) to render final Agency decisions, (d)
to issue Postal Service orders for the Postmaster General, (e) to refer the
record in any proceeding to the Postmaster General or the Deputy Postmaster
General for final Agency decision, (f) to remand a case to the presiding
officer for consideration, (g) to revise or amend these rules of practice. In
determining appeals from initial decisions or exceptions to tentative
decisions (see §952.24 (a) and (b) supra), the entire official record will be
considered before a final Agency decision is rendered. Before rendering a
final Agency decision, the Judicial Officer may order the hearing reopened
for the presentation of additional evidence by the parties. §952.27 Motion
for reconsideration. A
party may file a motion for reconsideration of a final Agency decision within
10 days after receiving it or within such longer period as the Judicial
Officer may fix. Each motion for reconsideration shall be accompanied by a
brief clearly setting forth the points of fact and of law relied upon in
support of said motion. (a) If an order is issued which
prohibits delivery of mail to a Respondent it shall be incorporated in the
record of the proceeding. The Recorder shall cause notice of the order to be
published in the Postal Bulletin and cause the order to be transmitted to
such postmasters and other officers and employees of the Postal Service as
may be required to place the order into effect. (b) If an order is issued which
requires the Respondent to cease and desist from using certain
representations for the purpose of obtaining money or property through the
mail, it shall be incorporated in the record of the proceeding and a copy
thereof shall be served upon the Respondent or his or her agent by certified
mail or by personal service, or if no person can be found to accept service,
service shall be accomplished by ordinary mail to the last known address of Respondent
or his or her agent. If service is not accomplished by certified mail, a
statement, showing the time and place of delivery, signed by the postal
employee who delivered the order, shall be forwarded to the Recorder. §952.29 Modification
or revocation of orders. A
party against whom an order or orders have been issued may file an
application for modification or revocation thereof. The Recorder shall
transmit a copy of the application to the Chief Postal Inspector or his or
her designee, who shall file a written reply within 10 days after filing or
such other period as the Judicial Officer may fix. A copy of the reply shall
be sent to the applicant by the Recorder. Thereafter an order granting or
denying such application will be issued by the Judicial Officer. When
the Chief Postal Inspector or his or her designee, or his or her designated
representative shall have reason to believe that a person is evading or
attempting to evade the provisions of any such orders by conducting the same
or a similar enterprise under a different name or at a different address he
or she may file a petition with accompanying evidence setting forth the
alleged evasion or attempted evasion and requesting the issuance of a
supplemental order or orders against the name or names allegedly used. Notice
shall then be given by the Recorder to the person that the order has been
requested and that an answer may be filed within 10 days of the notice. The
Judicial Officer, for good cause shown, may hold a hearing to consider the
issues in controversy, and shall, in any event, render a final decision
granting or denying the supplemental order or orders. A
designated period of time under these rules excludes the day the period
begins, and includes the last day of the period unless the last day is a
Saturday, Sunday, or legal holiday, in which event the period runs until the
close of business on the next business day. The
transcript of testimony together with all pleadings, orders, exhibits, briefs
and other documents filed in the proceeding shall constitute the official
record of the proceeding. The
Librarian of the Postal Service maintains for public inspection in the
Library copies of all initial, tentative and final Agency decisions and
orders. The Recorder maintains the complete official record of every
proceeding. §952.34 Exparte communications. The
provisions of 5 U.S.C. 551(14), 556(d) and 557(d)
prohibiting ex parte communications are made
applicable to proceedings under these rules of practice. |
