In the Matter of the Petition by

ROSS HIMEBAUCH
P.O. Box 254
Ione, CA  95640-0254

Termination of Post Office Box Service

APPEARANCE FOR PETITIONER:
Ross Himebauch, Pro Se
P.O. Box 254
Ione, CA  95640-0254

APPEARANCE FOR RESPONDENT:
Wendy A. Hocking, Esq
Consumer Protection Law
United States Postal Service
475 L'Enfant Plaza, S.W.
Washington, DC  20260-1147

INITIAL DECISION

            This proceeding arises out of a Petition filed by Ross Himebauch on August 9, 1994, appealing the Postmaster's Determination of July 27, 1994 to terminate service for P.O. Box 254, Ione, CA  95640-0254.  The Postmaster's letter stated that Mr. Himebauch's box was being closed because of violation of two rules:  (1) the box was being used for the sole purpose of having the Postal Service forward mail to another address free of charge, and (2) the box was often in an overflow condition because of accumulation of non-forwardable mail.

            On September 8, 1994 the Postal Service (Respondent), filed an Answer and a Motion for Summary Judgment, along with a notice of intention to file additional documents as soon as they were received from the Ione, CA Postmaster.  On September 14, 1994 Respondent moved to postpone the scheduled hearing, and to delay decision on the Motion for Summary Judgment until after September 28, 1994.  Petitioner did not oppose, the scheduled hearing was cancelled, and the motion to delay was granted.  On September 27, 1994 Respondent filed a Supplementary Motion for Summary Judgment, along with a Declaration from Postmaster Michael Martinelli, and other documents.  Petitioner was given an opportunity to reply, which reply was received on October 18, 1994.  As petitioner stated that he did not desire an oral hearing, I shall treat this case as a request from both parties for a decision on the written record.

            Petitioner disputes the conclusion that he has violated the above rules, and asked that he be allowed to continue renting the box, but he does not disagree with the facts asserted by the Postmaster.

FINDINGS OF FACT

            1.  In response to his application on PS Form 1093, Post Office Box 254 was assigned to Mr. Himebauch on June 29, 1992.  He listed his address as 2432 Montgomery Way, Sacramento, CA  95818.

            2.  On November 11, 1992, Mr. Himebauch submitted a change-of-address order, PS Form 3575.  Because he did not include a date to discontinue forwarding, to indicate that this was a temporary change, his Post Office box was closed.

            3.  On July 19, 1993, Mr. Himebauch reapplied for Box 254 and it was reassigned to him.

            4.  Mr. Himebauch was given copies of the rules pertaining to use of Post Office boxes each time he applied.  These rules include the following, which are codified in the Domestic Mail Manual (DMM):

                        §D910.3.4 Accumulation.  Box customers must promptly remove mail from their boxes.  If mail will not be removed from the box for more than 30 days and an overflow condition is probable, the customer must make arrangements in advance with the postmaster.

                        §D910.3.7 Forwarding.  Boxes may not be used when the sole purpose is, through change-of-address orders, to have the USPS forward or transfer mail to another address free of charge.

            5.  Mr. Himebauch is employed as a merchant mariner and is often away from the Ione, CA area for several months at a time.  The Sacramento, CA address listed on his applications for the Post Office box is his parents' address.  He does not reside there, has no permanent residence of his own, and does not wish to use his parents' home as his mailing address.

            6.  During the time he has rented Post Office Box 254, Mr. Himebauch has submitted at least six change-of-address orders.[1]

            7.  By Mr. Martinelli's calculation, Mr. Himebauch's mail was forwarded for approximately 240 days in 1993,[2] and for 150 days thus far in 1994 (up to the date of Mr. Martinelli's Declaration, September 16, 1994).  This equates to approximately 62.5% of calendar years 1993 and 1994.

            8.  Although Mr. Himebauch has picked up mail from his box when no forwarding order was in effect, Post Office Box 254 has been in an overflow condition many times since being rented by Mr. Himebauch, mostly because of an accumulation of third-class mail.

            9.  Prior to the July 27, 1994 determination by Mr. Martinelli to close Box 254, Mr. Himebauch had never made any advance arrangements with the postmaster, or with anyone else, for disposition of non-forwardable mail.

CONCLUSIONS OF LAW

            1.  DMM §D910.7.2 states: "A postmaster may terminate post office box service if the box customer:…c. Violates any regulation or condition on the care or use of the box."  Such regulations or conditions include the two quoted in Finding of Fact No. 4.

            2.  Respondent argues that Petitioner's frequent use of change-of-address orders, and the duration of some of them, confirm that he has used the Post Office box for the "primary" purpose of having his mail forwarded.  The DMM rule, on the other hand, prohibits using a box for the "sole" purpose of mail forwarding.  There is no precedent for finding that "sole" may mean something less than 100%.  See James D. Mample, P.S. Docket No. 40/75 (I.D. April 29, 1993); Dr. Carey Carpenter, P.S. Docket No. 40/63 (I.D. March 16, 1993); Mrs. Junior E. Powell, P.S. Docket No. 21/159 (P.S.D. November 29, 1985).  On the facts presented in this case, however, which include findings that Petitioner's forwarding orders covered only 62.5% of the last two calendar years, and that he also has used his box for actually receiving mail, I cannot conclude that Mr. Himebauch is using the box for the "sole" purpose of mail forwarding.

            3.  It is clear, however, that Petitioner has regularly violated the rule regarding an overflow accumulation of mail.  His characterization of most of this mail as "junk" does not render the rule inapplicable.  Nor does it relieve the Post Office of the burden of finding a place to store the overflow, and this, of course, is the reason for the rule.

            4.  Petitioner's statement that the overflow problem no longer exists because he now has a friend removing mail from the box does not make the Postmaster's decision invalid.  It may have provided ammunition for negotiation, but the Postmaster is not required to give Petitioner additional chances to comply.

            5.  The Postmaster's Determination to close Petitioner's Post Office Box based on violation of DMM §D910.3.7 is not supported by the evidence and is not sustained.

            6.  The Postmaster's Determination to close Petitioner's Post Office Box based on violation of DMM §D910.3.4 is sustained.  Accordingly, the Petition is dismissed.

Bruce R. Houston
Administrative Law Judge

[1]  Six Forms 3575 are attached to Mr. Martinelli's Declaration.  He states that these forms are discarded after eighteen months, but estimates that Mr. Himebauch filed at least three others between June and November 1992.  Mr. Himebauch does not dispute this, but it is also noted that two of the 1993 forms cover the same period of time - the second apparently filed to give a more complete ZIP code.

[2]  This includes forwarding during the first half of 1993 pursuant to the November 11, 1992 change-of-address order, even though Mr. Himebauch's box was not re-opened until July 1993.