In the Matter of the Petition by

ROBERT M. AUBUCHON
3150 State Highway Y
Jackson, MO 63755-7595

Termination of Post Office Box Service for P.O. Box 571, Italy, TX 76651-0571
P.S. Docket No. POB 04-125

APPEARANCE FOR PETITIONER:
Robert M. Aubuchon
3150 State Highway Y
Jackson, MO 63755-7595

APPEARANCE FOR RESPONDENT:
Catherine A. Green, Esq.
Corporate Law Section
United States Postal Service
475 L'Enfant Plaza SW, Room 6112
Washington, DC 20260-1135

INITIAL DECISION

             This proceeding arises from a Petition filed by Mr. Aubuchon after he received a written notice dated July 27, 2004, from the postmaster at Italy, Texas, informing him that his post office box service was being terminated because the box was being used primarily for having mail forwarded to another address.[1]

             On October 15, 2004, Respondent, the United States Postal Service, filed an Answer to the Petition, along with a Motion for Summary Judgment, arguing that there were no material facts in dispute and that Respondent was entitled to judgment as a matter of law. Attached to the motion was a sworn Declaration from Lela Cooper, the Italy Postmaster, and some supporting documents.

             Petitioner was given an opportunity to reply to the motion but did not do so.

The following findings of fact are based on the Petition and the documents filed by Respondent.

FINDINGS OF FACT

             1. Petitioner has rented Post Office Box 571 at the Italy, Texas Post Office since at least July 15, 1997. (PS Form 1093 attached to Petition and to Respondent’s motion).

             2. On May 16, 2002, and again on December 5, 2002, Petitioner submitted PS Forms 3575, Mail Forwarding Change of Address Order, directing that mail addressed to Box 571 be forwarded to 3150 State Highway Y, Jackson, MO 63755. The December 5, 2002 Order asked that the mail be forwarded until May 18, 2003. (Cooper Declaration ¶5 and Ex. B).

             3. On June 4, 2003, Petitioner submitted another Form 3575, directing that mail continue to be forwarded to 3150 State Highway Y, Jackson, MO 63755 until June 4, 2004. (Cooper Declaration ¶4 and Ex. A).

             4. On October 3, 2003, Postmaster Cooper wrote to Petitioner, citing the rule against using a post office box primarily for mail forwarding and stating that mail would no longer be forwarded. The letter also stated that Petitioner would receive a refund if he closed the box, or otherwise mail would be placed in the box until the rental term expired in July 2004. (Letter attached to Petition).

             5. By letter dated July 27, 2004, Postmaster Cooper notified Petitioner that she was terminating his post office box service and returning his renewal fee. (Cooper Declaration ¶10 and Ex. D).

             6. On August 25, 2004, Petitioner submitted another Form 3575, directing that mail continue to be forwarded to 3150 State Highway Y, Jackson, MO 63755 until August 27, 2005. (Form 3575 attached to Petition; Cooper Declaration Ex. B).

             7. Rules governing post office box service are found in Section D910 of the Domestic Mail Manual. Provisions pertinent here are:

D910.3.6 Forwarding

A post office box may not be used when the primary purpose is to have the USPS forward or transfer mail to another address free of charge.

D910.8.2 Termination

A postmaster may terminate post office box service, . . ., if the box customer . . . violates any standard on the care or use of the box; . . . The customer is notified of the postmaster's determination to refuse or terminate service and of the appeal procedures for that determination.

DECISION

             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 (1970); Fed. R. Civ. P. 56(e).

             Postmaster Cooper’s Declaration and the attached documents set forth undisputed facts sufficient to resolve this case. Nothing in the Petition itself disputes the facts found in Findings #2 and #3, and Petitioner did not reply to Respondent’s motion.

             In his Petition, Petitioner asserts that he has been in Missouri caring for a sick mother, that he had a prior arrangement for mail to be held, that he has not used the box to engage in an illegal scheme, and that he provided no false information regarding use of the box. Even assuming all this is true, the rule stated in DMM §D910.3.6 is clear, and the record demonstrates that Petitioner, having had mail forwarding orders in effect almost continuously for more than two years, has been using his post office box primarily for mail forwarding.

             Post office box service is not something any customer has a “right” to. It is a service offered to customers who are willing to comply with the rules and regulations pertaining to the use of post office boxes. R. C. Tanner, P.S. Docket No. POB 98-67 (P.S.D. May 15, 1998); Michael H. Briggs, P.S. Docket No. POB 96-428 (P.S.D. February 24, 1997); William H. Lahan, P.S. Docket No. 24/156 (P.S.D. December 31, 1986); Anthony E. DiBari, P.S. Docket No. 20/21 (P.S.D. January 24, 1985). The Postal Service has the right to establish reasonable requirements and rules for the use of post office boxes. Michael D. Tomsyck, P.S. Docket No. POB 98-168 (P.S.D. September 22, 1998).

             Respondent's Motion for Summary Judgment is granted, and the postmaster’s determination to terminate post office box service to Petitioner at P.O. Box 571, based on Sections D910.3.6 and D910.8.2 of the Domestic Mail Manual, is sustained.

                                                                                       Bruce R. Houston
                                                                                       Chief Administrative Law Judge

[1] Mr. Aubuchon sent his “appeal” to the postmaster, who forwarded it to this office on August 30, 2004, where it was docketed as a Petition under the provisions of 39 C.F.R. Part 958.