In the Matter of the Petition by                                )
                                                                               )
DOWMAN GREENE                                                 )
Box 2274                                                                )
Loves Park, IL 61131-0274                                    )
                                                                               )
Re: Mail for Blackhawk West, Box 285                 )
Hiawatha, KS and Blackhawk MTN,                      )
Box 210, Conifer, CO                                             )     P. S. Docket No. 40/159

APPEARANCE FOR PETITIONER:                            Dowman Greene, Pro Se
Box 2274
Loves Park, IL 61131-0274

APPEARANCE FOR RESPONDENT:                        Jeannine H. Walter, Esq.
Consumer Protection Law
United States Postal Service
Washington, DC 20260-1147

INITIAL DECISION

On June 23, 1993, Respondent Postal Service filed an Answer And Motion For Summary Judgment Dismissing Petition pursuant to 39 C.F.R. § § 958.3(c) and (d). By order dated June 25, 1993, the undersigned Acting Chief Administrative Law Judge granted Petitioner ten (10) days from the date of receipt of the order to file a response to the Motion For Summary Judgment. A copy of the order was mailed to Petitioner Dowman Greene by certified mail at the above address, but it remained unclaimed until it was returned to the U.S. Postal Service Recorder's office by the post office on July 13, 1993. Subsequently, the order was re-sent by regular mail. On August 9, 1993, Petitioner filed a response to the summary judgment motion stating, inter alia, that he had not received a copy of the order until July 31, 1993. Petitioner's response is accepted as timely filed.

FINDINGS OF FACT

1. Box 210 at Conifer, Colorado ( "the Conifer box" ) was rented by R.L. Hough on behalf of "Blackhawk Mountain" on July 1, 1987. (Ex. 2).^1/ Mr. Hough last retrieved the mail from that box on September 8, 1989. (Ex. 8A). On August 5, 1992, the Postmaster sent a Determination letter to Mr. Hough denying his request for renewal of the Conifer box on the ground that he had not retrieved his mail for about three years. The Postmaster also cited Mr. Hough's request that the mail in the Conifer box be forwarded several times per year to another address, as an additional reason for the box closing. (Ex. 4).

2. The Postmaster's Determination stated that Mr. Hough could file a petition opposing the box closing within twenty (20) days after the date of receipt of the Determination. A Domestic Return Receipt (P.S. Form 3811) shows that the Determination was delivered on August 11, 1992, and was signed for by a "Christena M. Hough".( Ex. 5). Accordingly, Mr. Hough should have filed a Petition opposing the Determination by August 31, 1992. When no Petition had been received by the Postmaster by October 29, 1992, she rented the Conifer box to another customer. (Ex. 6).

3. In addition to the Conifer box, R.L. Hough rents P. O. box 285 in Hiawatha, Kansas on behalf of "Blackhawk SAA - West" ("the Kansas box"). (Ex.3). This box remains open and no Determination letter has been issued by the Postmaster at Hiawatha, Kansas.

4. On June 2, 1993, Mr. Dowman Greene filed a Petition directly with the U.S. Postal Service Recorder in his own name and that of "Blackhawk East". (Ex.1). In his Petition, Mr. Greene referred to Mr. Hough as one of "our" salesmen and stated that he and other individuals had been authorized to retrieve Mr. Hough's mail while he was in the field, but that they had been unable to do so recently. Mr. Greene requested that all of Mr. Hough's first class mail from the Conifer box and the Kansas box be forwarded to a post office box maintained by Mr. Greene and Blackhawk East, in Loves Park, Illinois. 5. In his response to Respondent's motion for summary judgment, Mr. Greene reiterated that Blackhawk East had been instructed to retrieve Mr. Hough's "important mail" until his return and that it had done so on "numerous occasions since 1957". Petitioner also indicated that Blackhawk East was willing to pay to have mail forwarded from the Conifer and Kansas post office boxes.

CONCLUSIONS OF LAW

1. The Petition, answer, and response filed herein present no genuine or material issues of fact requiring an evidentiary hearing. Disposition of this case pursuant to 39 C.F.R. § 958.3 (d) is, therefore, appropriate.

2. The Domestic Mail Manual ( "DMM" ) limits the appeal period from Determinations terminating post office box service, to twenty (20) days after receipt of the Determination. DMM 951.841a. The DMM and Postal Service Rules also require that a Petition in opposition to a Determination be signed by the box customer or the customer's attorney. DMM 951.832; 39 C.F.R. § 958.3 (a).

In this case, the Determination was delivered on August 11, 1992. (Ex.5). However, the Petition opposing the box closure was not filed until June 2, 1993 (ex.1), approximately ten (10) months after the filing deadline had passed. No reason was given for this lengthy delay in filing. Moreover, the late-filed Petition was not signed by Mr. Hough or by his attorney, as required by the rules. Accordingly, the Petition should be dismissed on procedural grounds alone.

3. In addition to its procedural defects, the Petition fails to state any grounds for overturning the Postmaster's Determination to close the Conifer box. Thus, the Petition does not controvert the Postmaster's statement that Mr. Hough's mail has not been retrieved from the Conifer box for several years.^2/ Such failure to retrieve mail held in a post office box violates postal Service regulations. DMM 951.162a.^3/

The Petition merely requests that the post office forward all first class mail to a post office box in Loves Park, Illinois "about four times a year." As the Postmaster stated in her Determination, the DMM specifies that post office boxes may not be used when the sole purpose is "to have mail forwarded or transferred to another address by the U.S. Postal Service, free of charge." DMM 951.164. The fact that Blackhawk East may be willing to pay for mail forwarding, as indicated in Petitioner's response, is irrelevant, since there is no provision for such an arrangement in Postal Service regulations. See, James D. Mample, P.S. Docket No. 40/75, sl. op. at 4 ( I.D. April 29, 1993), aff'd. (P.S.D. August 13, 1993).

In any event, the Conifer box has been rented to another customer since November 1, 1992. (Ex.6). Postal Service regulations do not provide for the return of a post office box to a former boxholder after the box has been rented to another customer. See, William Kuntz III, P. S. Docket No. 40/55, sl. op. at 2 and case cited ( P. S. D. April 26, 1993).

4. With respect to the Kansas post office box, the uncontroverted evidence shows that the Postmaster at Hiawatha, Kansas has not issued a Determination terminating service for box 285. The jurisdiction of the undersigned is limited to issues concerning a postmaster's Determination refusing to provide or terminating post office box service. See, 29 C.F.R. Part 958. Therefore, the undersigned has no jurisdiction to consider that portion of the Petition requesting mail forwarding service from the Kansas box to Loves Park, Illinois.

5. In view of the above findings and conclusions, the Conifer, Colorado Postmaster's Determination is sustained with respect to the closure of box 210. The Petition fails to raise any issue concerning box 285 at Hiawatha, Kansas over which the undersigned has jurisdiction. Accordingly, Respondent's Motion For Summary Judgment Dismissing Petition is granted and the Petition is hereby dismissed.

Judith A. Dowd
Acting Chief Administrative Law Judge

1/ "Ex." refers to the numbered exhibits attached to Complainant's Answer And Motion For Summary Judgment Dismissing Petition.

2/ Although Petitioner states in his response that Blackhawk East has retrieved Mr. Hough's mail on "numerous occasions since 1957", the Conifer box was not opened until 1987. Petitioner does not specifically state when mail was last retrieved by Blackhawk East employees from the Conifer box. Petitioner has also acknowledged that Mr. Hough last collected his own mail from the Conifer box on September 8, 1989. ( Ex. 8A ). Petitioner's vague statement that Mr. Hough's mail has been collected on numerous occasions by Blackhawk East since 1957, does not raise any factual issue requiring a hearing.

3/ DMM 951.162a provides, in pertinent part, as follows:

Time Limit. Box customers must remove mail promptly from their boxes. If mail is to accumulate for more than 30 days and an overflow condition is probable, the customer must make arrangements in advance with the postmaster....