ORDER NO. 1209

Before Commissioners:                       Edward J. Gleiman, Chairman;
                                                          George W. Haley, Vice Chairman;
                                                          W. H. "Trey" LeBlanc, III
                                                          George A. Omas

In the Matter of: Docket No. A98-1

Nassau, Minnesota 56272

(Verene Putzier, Petitioner)

On December 22, 1997, the Commission received a letter from James Schmeichel, the current officer-in-charge of the Nassau, Minnesota post office, advising the Commission that a certain notice related to the proposed closing of the Nassau post office had not been properly posted at the Nassau post office. Specifically, Mr. Schmeichel advised that the "Notice of Taking Proposal and Comments Under Internal Consideration," which ordinarily is posted at the time a proposal is removed (after the 60-day posting period), did not remain posted at all times between the removal of the proposal and the posting of the Final Determination. Construing Mr. Schmeichel's letter as a petition for review pursuant to section 404(b) of the Postal Reorganization Act (39 U.S.C. SS 404(b)), the Commission established Docket No. A98-1 to consider the appeal. Subsequently, on January 15, 1998, the Commission received separate letters in opposition to the closing of the Nassau post office from Verene Putzier, Linda Wildung and Margaret Davis.

On January 28, 1998, the Postal Service filed a motion to dismiss the appeal on the grounds that (1) Mr. Schmeichel's letter dated December 18, 1997, does not constitute a valid appeal under section 404(b) of title 39, United States Code, and section 111(a) of the Commission's Rules of Practice because he is not a "person served" by the post office, as required by section 404(b), and his letter does not indicate an intent to appeal, as required by section 111(a); and (2) the customers' letters received by the Commission on January 15, 1998, were not received within 30 days after the posting of the Final Determination.

On February 13, 1998, the Commission received a second letter from James Schmeichel, the officer-in-charge of the Nassau post office, stating that he did not intend for his initial letter to the Commission to be construed as an appeal and requesting that such letter not be considered as an appeal.

Under section 404(b)(5) of title 39, United States Code, a determination of the Postal Service to close or consolidate a post office may be appealed by any person served by such office to the Postal Rate Commission within 30 days after the determination is made available to such person. The Postal Service makes its decision available to the public by posting the Final Determination at the affected post offices.

According to Exhibits 1 and 2, attached to the Postal Service's motion, the Final Determination to close the Nassau post office was posted at both the Nassau and Marietta, Minnesota post offices on December 15, 1997. The 30-day limitation period commenced the next day, December 16, and ended on Wednesday, January 14, 1998.

In view of the explanation contained in Mr. Schmeichel's letter of February 10, 1998, concerning the purpose of his earlier letter dated December 18, 1997, the Commission finds it unnecessary to address the specific arguments of the Postal Service, raised in its motion to dismiss, concerning the validity of Mr. Schmeichel's appeal. The Commission agrees that Mr. Schmeichel did not intend to appeal the Postal Service's decision to close the Nassau post office.

With respect to the three letters the Commission received from customers of the Nassau post office on January 15, 1998, the record shows that one of the letters (from Verene Putzier) is dated January 5, 1998, and was mailed in a properly addressed envelope which bears a postmark of January 5, 1998. Thus, a total of 10 days elapsed between the date of mailing and the date of receipt by the Commission. The two other letters received by the Commission on January 15, 1998, were mailed in envelopes bearing postmarks of January 12, 1998. Those letters appear to have been delivered by the Postal Service in accordance with its existing service standards (three days after postmark in Minnesota).

With respect to the Putzier letter, the Commission finds that, given the occurrence of two holidays (Christmas and New Year's Day) during the 30-day posting period, the petitioner, Ms. Putzier, acted diligently and responsibly in mailing her appeal letter to the Commission on January 5, and that she had a reasonable expectation that her letter would be received by the Commission in a timely manner. The Commission finds, therefore, that the unreasonable and inexplicable delay in the delivery of the letter to the Commission (10 days from postmark to delivery) can be attributable only to the actions of the Postal Service after the letter was placed in its care by Ms. Putzier. While the Commission's Rules of Practice provide that a petition for review must be received by the Commission within 30 days after the Postal Service has made its determination available to the public (39 C.F.R. SS 3001.111(a)), the Commission finds that the actions of the Postal Service prejudiced Ms. Putzier's ability to comply with the 30-day filing requirement. Under the circumstances, the Commission believes that it is not unreasonable to hold the Postal Service responsible for the untimely receipt of the appeal letter. Therefore, the Commission finds that the appeal of Verene Putzier may be considered as timely filed.

It is ordered:

(1) The motion of the United States Postal Service to dismiss the proceeding in Docket No. A98-1 is denied.

(2) The Postal Service shall file the administrative record in this appeal by March 12, 1998.

By the Commission.

(SEAL)

Margaret P. Crenshaw

Secretary