In the Matter of the Withholding                              )
of Mail Addressed to                                              )
                                                                               )
ANY AND ALL OF VARIOUS NAMES                    )
OTHER THAN JAMES EDWARD SCHMIDT⁽¹⁾          )
7072 Fenton Road                                                  )
                                                                               )
              at                                                              )
                                                                               )
Fenton, MI 48430-9594                                          )  P.S. Docket No. WM 96-418

APPEARANCE FOR PETITIONER:                            Unidentified Persons
                                                                                7072 Fenton Road
                                                                                Fenton, MI 48430-9594

APPEARANCE FOR RESPONDENT:                         Wendy A. Hocking, Esq.
                                                                                Civil Practice Section
                                                                                Law Department
                                                                                United States Postal Service
                                                                                475 L’Enfant Plaza, SW
                                                                                Washington, DC 20260-1127

INITIAL DECISION

On November 21, 1996, the Postal Inspector in Charge for the Detroit, Michigan Division, directed the Fenton, Michigan Postmaster to withhold delivery of mail addressed to any and all names, other than James Edward Schmidt, at 7072 Fenton Road, Fenton MI 48430-9594. A Notice of Withholding Mail was sent to Mr. Schmidt at that address on that same date. This Notice advised Mr. Schmidt that he was entitled to contact the assigned postal inspector within fourteen days to submit proof of identity and his right to receive the withheld mail. He was also advised of his right to file a Petition to contest the withholding. Copies of pertinent postal regulations were included. A Petition, with a copy of the Notice attached, was received here on December 9, 1996. The signature on the Petition is not legible, the Petition contains no typed or printed name, and the author does not otherwise identify himself/herself.

With its Answer, Respondent, the United States Postal Service, filed a Motion to Dismiss, arguing that Petitioner has failed to identify himself or herself, and failed to state any relevant reason for opposing the Notice of Withholding Mail, as required by 39 C.F.R. §964.3(a). Respondent also argues that, there being no material issues of fact, a decision can be rendered on the pleadings. In support of the motion, Respondent attached the sworn Declaration of Postal Inspector Bosch, and several other documents pertinent to his investigation of this case. By Order dated December 24, 1996, Petitioner was given until January 15, 1997 to reply to the motion. Several pieces of paper, apparently from someone at 7072 Fenton Road, were received on December 31, 1996. The only relevant comment that can be gleaned from these papers is a statement that James Schmidt does not reside or receive mail at 7072 Fenton Road.

Rather than dismiss this Petition based on Petitioner’s failure to identify himself or herself, it is more appropriate to treat Respondent’s motion as a Motion for Summary Judgment, under 39 C.F.R. §964.3(d). The following findings of fact are based on all the material submitted by both parties.

FINDINGS OF FACT

1. The Notice that was sent to Mr. Schmidt at 7072 Fenton Road on November 21, 1996 advised that mail was being withheld pursuant to 39 U.S.C. §3003, because postal authorities believed false or fictitious names were being used to receive mail in connection with activities that violated mail fraud statutes, 18 U.S.C. §§1341 and 1342.

2. 39 U.S.C. §3003 provides, in pertinent part:

(a) Upon evidence satisfactory to the Postal Service that any person is using a fictitious, false, or assumed name, title, or address in conducting, promoting, or carrying on or assisting therein, by means of the postal services of the United States, an activity in violation of sections 1302, 1341, and 1342 of title 18, it may --

(1) withhold mail so addressed from delivery; and

(2) require the party claiming the mail to furnish proof to it of the claimant’s identity and right to receive the mail.

3. The pertinent sections of Title 18, United States Code, provide as follows:

§1341. Frauds and swindles

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, . . ., for the purpose of executing such scheme . . ., places in any post office or authorized depository for mail matter, any matter . . . to be sent or delivered by the Postal Service, . . ., shall be fined . . . or imprisoned for not more than four years, . . .

§1342. Fictitious name or address

Whoever, for the purpose of conducting, promoting, or carrying on by means of the Postal Service, any scheme or device mentioned in section 1341, . . ., uses or assumes, . . ., any fictitious, . . ., name, . . . or receives from any post office or authorized depository of mail matter, any letter, . . ., or other mail matter addressed to any such fictitious, . . ., name, . . ., shall be fined . . . or imprisoned for not more than five years, . . . .

4. The Postal Service action in this case is based on evidence that James Edward Schmidt, through the use of a large number of fictitious names, and the use of many minor variations of the 7072 Fenton Road address,⁽²⁾ has ordered and received large quantities of merchandise through the mail, without intending to pay for said merchandise.

5. A representative of the BMG Music Service Club reported to postal inspectors that their records showed eleven accounts under different names, at the various Fenton/Denton Road addresses. BMG records also showed that $812.62 in merchandise had been shipped to those addresses, and that only one payment, $7.24, had been made.

6. A representative of the Columbia House Music and Video Club reported to postal inspectors that their records showed twenty-six accounts under different names, at the various Fenton/Denton Road addresses. Their records also showed that $2,905.00 in merchandise had been shipped to those addresses, and that only one payment, $11.34, had been made.

7. The material submitted by whomever filed the Petition does not address issues relevant to a mail withholding case.⁽³⁾ There is nothing offered to establish the identity of anyone claiming the mail, or of that person’s right to receive the mail that is being withheld.

CONCLUSIONS OF LAW

1. 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; Fed. R. Civ. P. 56(e).

2. By the sworn Declaration of Inspector Bosch, and the documents attached thereto, Respondent has carried its burden to establish the absence of any genuine issue of fact concerning the allegation that Petitioner is using fictitious names in conducting a scheme that violates 18 U.S.C. §§1341 and 1342. Petitioner has submitted no contradictory evidence. Once the Postal Service has established that the withheld mail is covered by 39 U.S.C. §3003, the burden of going forward with evidence to show a claimant’s identity and right to receive the mail is on the Petitioner. Petitioner in this case has presented no such evidence, either in response to the November 21, 1996 Notice of Withholding Mail, or in response to Respondent’s motion.

3. The determination to withhold mail addressed to any and all names, other than James Edward Schmidt, at 7072 Fenton Road, and variations of that address, is upheld. Accordingly, Summary Judgment in favor of Respondent is granted and the attached Order directing disposition of the mail under 39 U.S.C. §3003(b) should be issued.

Bruce R. Houston
Chief Administrative Law Judge

1. The caption of this case has been corrected to correspond to the Notice of Withholding Mail issued by the Postal Inspection Service.

2. E.g., S. Fenton Road; Denton Hill Road; South Denton Road; and Fenton Hill Road.

3. The Petition contained only an accusation that a mail carrier had threatened someone at Petitioner's address (satisfactorily established to be unfounded by the postal inspector's investigation), and threats by Petitioner to bring lawsuits against various people.

PROPOSED ORDER

WITHHOLDING OF MAIL ORDER NO.:

TO THE POSTMASTER AT:                                 FENTON, MI 48430-9998

Satisfactory evidence has been presented to the Postal Service in P.S. Docket No. WM 96-418 that mail addressed to any and all names other than JAMES EDWARD SCHMIDT, at the following addresses:

7072 Fenton Road Fenton, MI 48430-9594

7072 S. Fenton Road Fenton, MI 48430-9594

7072 Denton Hill Road Fenton, MI 48430-9594

is covered by 39 U.S.C. §3003(a) and is being properly detained. Although afforded an opportunity to do so, the party claiming the mail has failed to furnish proof of the claimant’s right to receive the mail addressed to the above addresses.

Now, therefore, pursuant to authority vested in the United States Postal Service, and by it delegated to me, I hereby order that all mail addressed to the above addresses, except for mail addressed to JAMES EDWARD SCHMIDT, be returned to sender marked "RETURNED TO SENDER DUE TO ADDRESSEE’S VIOLATION OF POSTAL FICTITIOUS NAME OR ADDRESS LAW." If the outside of the mail fails to contain information necessary to permit return of the mail to sender, the mail shall be disposed of under the postal regulations applicable to undeliverable mail.

Judicial Officer

PROPOSED ORDER - NOT ENFORCEABLE UNTIL DATED AND
SIGNED BY THE JUDICIAL OFFICER