No way! PRC rejects appeal on post office closure for being late — by one day

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Last Friday afternoon, the Postal Regulatory Commission sent letters to the folks appealing the closure of the Franklin Station post office in Somerset County, New Jersey, telling them the appeals had been filed too late and were consequently being rejected.  The appeals were postmarked one day after the filing deadline.

The Commission’s decision is disturbing for a number of reasons.

First off, the Franklin post office is a station, and since the Postal Service believes only independent post offices are entitled to an appeal, the Final Determination notice announcing the closure did not inform Franklin customers they could appeal to the PRC.  It’s a wonder they even discovered that an appeal could be filed.  How could the people in Franklin know that the Commission disagrees with the Postal Service about stations and branches and always accepts appeals, regardless of the facility’s classification?

Then there’s the fact that the discontinuance study was conducted in late 2011 and early 2012.  A moratorium on post office closings ran from December 2011 to May 2012, so the Postal Service stopped the discontinuance process before it was completed.  Most people in Franklin probably had no idea that sometime this summer postal officials had resumed the process and signed off on the Final Determination.  There had been no talk about a possible closure since the public meeting was held back in February 2012.

It’s even possible that Franklin customers didn’t realize the appeal was late.  The Final Determination does not state that one has 30 days to file the appeal — it doesn’t even mention the right to an appeal to begin with.  It does state, however, that the Final Determination should be posted until August 13, which is the day the appeals were sent in.

There’s a chance that the Commission would have considered a late appeal if it had been accompanied by a request for late acceptance.  The Commission is currently considering such a request on the appeal in Freistatt, Missouri.  If it were necessary to file a request for late acceptance, then someone at the PRC should have immediately advised the petitioners to do so.  That obviously didn’t happen.

Chairman Ruth Goldway dissented from the decision to reject the Franklin appeal, for reasons that go unstated in the letter to the petitioners.  The four other commissioners agreed that the appeal should not be heard.  The commissioners didn’t even wait for the Postal Service to file a motion to dismiss the case, they didn’t give the Public Representative an opportunity to weigh in, and they didn’t ask to hear from the petitioners why the appeal wasn’t submitted sooner.  The four commissioners simply decided that one day late was sufficient cause to reject the appeal.

It should be noted, by the way, that parties often ask the Commission to accept late filings.  Since 1997, the Postal Service has filed something like 1,200 Motions for Late Acceptance.  The Commission granted nearly every one.

 

The timeline on Franklin

The Franklin Station plays a very important role in the life of the community.  It’s an older, densely populated area, very diverse in race and ethnicity, and currently being revitalized, with new commercial buildings and new housing for senior citizens, veterans, and the general public.  A large new residential building housing seniors and vets is just 100 feet from the post office.

According to the Final Determination, when questionnaires about the proposed closure were distributed in 2011, over 4,400 were returned.  The Postal Service says it will save about $130,000 a year, but that doesn’t include any lost revenue the closure may cause.  The post office does a thriving business; revenues for the past five years average over $500,000 annually.

The appeals point to many incorrect facts in the Postal Service’s Final Determination, some of which are not surprising, given that the data was collected over a year and a half ago.  Now that the appeal has been rejected, the significance of these errors will never be considered by the Commission.

According to federal regulations (39 CFR 241.3), “For purposes of determining whether an appeal is filed within the 30-day period, receipt by the Commission is based on the postmark of the appeal.”   It’s interesting to note that the law originally said that appeals needed to be received by the Commission within 30 days, but in 1995, the PRC modified the language to say the appeal needed to be postmarked within 30 days.  The Postal Service opposed the change, but the Commission argued that “uncertainties associated with postal processing, transportation, and delivery, a petition’s transit time from mailing by the appellants to receipt at the Commission’s offices cannot be known in advance.” Commission records showed that it sometimes took a week between postmark and arrival at the PRC.

The Final Determination was posted somewhere in the Franklin post office on Friday, July 12.  The thirty-day deadline was Sunday, August 11.  When a deadline falls on a Sunday like that, it’s customary for the Postal Service and the PRC to move it to the next business day.  That would have made the deadline for appeals Monday, August 12.   The two appeals on Franklin were postmarked August 13, 2013 — one day late.

It’s possible customers in Franklin were misled by the posting date at the top of the Final Determination notice.  It reads, “Date of Posting: 07/12/2013,” and “Date of Removal: 8/13/2013.”  This could easily give the impression that the final deadline for submitting an appeal was August 13, 2013, the day the appeals were postmarked.

The PRC’s rejection letter to the petitioners says appeals were due on August 11, ignoring the fact that this deadline fell on a Sunday.  The letter notes that the date of removal for the Final Determination was August 13, but it does not acknowledge that this could have been a source of confusion.  The letter also fails to take note of the fact that the Final Determination did not inform customers that they have the right to appeal or that there is a 30-day time frame for submitting appeals.

 

The unresolved controversy over station and branch appeals

The Postal Service believes that closing decisions on stations and branches cannot be appealed to the PRC because in its view the statutes governing closures apply only to independent post offices.  Consequently, when the Postal Service issues a Final Determination on a station or branch, it omits the paragraph about how to appeal to the PRC, a paragraph that always appears in final notices on regular post offices.

The PRC has long maintained that decisions on stations and branches can be appealed, and it consistently ignores the Postal Service when it argues otherwise.  The controversy has never been resolved, however, and the Commission has not forced the issue.  As a result, many communities never learn that they could have filed an appeal even though the Postal Service did not inform them of this.  For this reason, the Commission itself must bear some of the responsibility for the Postal Service’s failure to properly notify customers of their rights.

One of the ironies of the Postal Service’s position on stations and branches is that when it suits its purposes the Postal Service concedes there’s no difference among the different types of post office.  In 2011, when the Postal Service amended its regulations on post office closings, it used the Commission’s argument — for most people stations and branches are indistinguishable from regular post offices — to help make its case for changing the definition of “consolidation” (which helped make POStPlan a reality).

In the Final Rule on the changes in the regulations, the Postal Service stated, “While the Postal Service continues to disagree with the proponents of this view as to whether that lack of perceived difference has legal relevance, the Postal Service acknowledges the practical vitality of the observation [that customers perceive no functional difference between a Post Office and a classified station or classified branch].”  That seemed to be a concession that stations and branches would get the same treatment as post offices, but it turns out the Postal Service meant no such thing.

In case after case since the Final Rule was published in the Federal Register, the Postal Service has continued to argue that stations and branches are not entitled to an appeal.  It has also continued to omit reference to appeals in Final Determinations on stations and branches.  It has sometimes even claimed (as in the case of the East Akron Station) that “Final determination posting is not required for CPO, classified station, or classified branch discontinuance.”  In these cases, customers just get a note that their post office is closing, period.

A few weeks ago, the Postal Service inadvertently posted a Final Determination informing customers in Glenoaks, California, they could appeal the closure of their post office, a station.  The notice was quickly pulled when appeals started to be filed.  The Postal Service subsequently filed a revised Final Determination without the paragraph on appeals.

 

Precedents on “untimely” appeals

There have been only a handful of cases where appeals were filed after the deadline, so one cannot really argue that the Commission has a long history of rejecting late appeals.  These precedents are currently being discussed in another case before the PRC at this moment, the appeal on Freistatt, Missouri.

In this case, the appeal was filed a week late, but rather than rejecting it immediately, as it has done with Franklin, the Commission sat back and waited.  The Postal Service filed a Motion to Dismiss, the Public Representative opposed it, the petitioner filed an opposition as well, the Postal Service filed a reply to the reply, and the Public Representative replied to that.  The parties await the Commission’s ruling.  (The motions and replies are here; for more on Freistatt, here.)

The exchange on Freistatt has been useful.  It has given both sides an opportunity to argue their cases, review the precedents, examine why the appeal was filed late, and consider the issues.  Previous orders by the Commission play a big role in the deliberations.  Here’s a quick summary of orders on late appeals.

 

1. Nassau, Minnesota

Docket No. A98-1, Order No. 1209, Order Denying Postal Service Motion to Dismiss, March 5, 1998.

The Postal Service posted the Final Determination on Monday, December 15,1997; thirty days later was Wednesday, January 14, 1998.  The PRC received a letter about the closing on December 22, and then several more on January 15.  The Postal Service argued that the December 22 letter was invalid and that the January 15 letters were too late (by one day).

The Commission denied the Postal Service’s Motion to Dismiss the case, noting that the Postal Service’s own actions had prejudiced the petitioner’s ability to file the appeal before the deadline.

 

2. Roanoke, West Virginia

Docket No. A2000-1, Order No. 1296, Order Denying Postal Service Motion to Dismiss, June 16, 2000.

An appeal on Roanoke was filed on April 21, 2000.  The Postal Service filed a Motion to Dismiss based on the fact that the Final Determination had been posted on March 4, 1998, making the appeal nearly two years late.

That sounds like a reasonable argument — until you consider the fact that the Roanoke post office had been closed by emergency suspension since 1982.  Yes, you read that right, 1982.

The office was suspended for a good reason — the central area of Roanoke was taken over by the Corp of Engineers as part of constructing the Stonewall Jackson Dam.  The Postal Service waited a couple of years before proceeding to review the office for discontinuance.  That decision was appealed, and the Commission remanded the matter back to the Postal Service for further consideration.

Then nine years later, the Postal Service issued another final determination, and since Roanoke had closed over a decade before, it posted the notice at another post office, eleven miles away. Needless to say, not many people saw it there, so the Commission found that the Postal Service had failed to provide adequate notice.  Consequently, the Commission found that the “failure of the Postal Service to provide adequate notice prejudiced the petitioner’s ability to file a timely appeal.”  The Motion to Dismiss was denied, and the appeal was accepted as timely, even though it was two years “late.”

 

3. State University, Arizona

Docket No. A2011-41, Letter rejecting appeal, August 16, 2011.

In this case, the 30-day deadline for filing an appeal was Thursday, August 4, 2011.  The Commission says it received the appeal on Friday, August 5, after the close of business, so it was formally accepted on the next business day, Monday, August 8, 2011.

A letter was sent to the petitioner from the PRC’s secretary explaining that the appeal was filed after the deadline.  “The Commission is, therefore, unable to consider your filing as a timely appeal of the consolidation of the State University post office as it does not conform to the statutory requirements for an appeal.”

There’s not much in the record on this case, so it is not possible to determine when the appeal was postmarked, and it’s not clear if this is actually a “precedent” since the Commission did not issue an order.

It should be noted that the State University post office was a classified station, so the Final Determination would not have included the paragraph informing customers of their right to appeal or the deadline for filing.

 

4. Graves Mill, Virginia

Docket No. A2011-3, Order No. 672, Order Dismissing Appeal, February 11, 2011.

In this case, the Postal Service posted the Final Determination on June 30, 2010.  Thirty days later would have been July 30, 2010.  The appeal was postmarked November 14, 2010 — about fifteen weeks late.

That may seem like a very late appeal, but as with Roanoke, there’s an important detail to consider — the Graves Mill post office had been closed by emergency suspension since 2001, nine years earlier.

Since Graves Mill was closed (it had been replaced by a cluster box unit), the Final Determination notice was posted at two other post offices — in Madison, thirteen miles away, and in Wolftown, six miles away.  No notice was posted at the Graves Mill cluster box unit.

The Commission nonetheless dismissed this appeal, observing that notice was posted at the Postal Service facilities closest to Graves Mill and that was “adequate.”  The Commission did make the following observation, however: “This is not to suggest that the Postal Service could not have done more to notify affected customers. As Petitioner notes, notice could have been posted at the cluster box unit.  Postal Service regulations, however, do not require such additional notice requirements.”

 

5. Little America, Wyoming

Docket No. A2012-64, Order No. 1189, Order Dismissing Appeal, February 1, 2012.

The Final Determination to close the Little America post office was posted on August 29, 2011, making the 30-day deadline September 28.  The appeal was postmarked November 3, 2011, over a month late.

The petitioner explained the delay by saying that he was given misinformation and inadvertently sent his appeal to the Post Office Review Coordinator rather than the PRC.

In this case, Little Wyoming was an independent post office, so the Final Determination did include the paragraph with information about filing an appeal.  The Commission concluded therefore granted the Motion to Dismiss and the appeal was rejected.

 

6. Crescent Lake, Oregon

Docket No. A2010-4, Order No. 486, Order Dismissing Appeal, July 8, 2010.

The Final Determination to close the Crescent Lake Post Office was posted on February 2, 2009; thirty days later would have been March 4.  The appeal was received by the PRC on March 12, 2010, over a year later.  The Postal Service filed a motion to dismiss the appeal as “untimely,” and it certainly seems that way.  But there’s more to this story, too.

The Crescent Lake post office was closed for an emergency suspension back in 2005, when a fire destroyed the building housing the post office.  It was replaced by a nonpersonnel unit (NPU), meaning the office still had post office boxes but no retail window.  When it came time to close the post office permanently, some five years later, the Postal Service posted the Final Determination at the Crescent post office and at the Crescent  Lake NPU.

NAPUS intervened on the case and argued that posting the Final Determination at the Crescent post office was “disingenuous and did not constitute the notification envisioned by section 404(d).”

The Commission ruled, however, that the Postal Service had complied with the statute, and the case was dismissed as untimely.  The Commission did note, however, that the Postal Service might have done more than post the final determination at these two locations. “In the future, to avoid potential confusion for patrons of offices subject to discontinuance, the Postal Service should consider providing direct notice to affected persons via the mail. This seemingly could be accomplished easily and at a nominal cost.”

 

No precedent for Franklin

As this handful of cases illustrates, there is not a consistent pattern to the Commission’s orders on late appeals.

In all but one of the six cases the Postal Service filed a Motion to Dismiss, and the Commission responded to the motion, one way or the other.  It did not preemptively reject the appeal as untimely before the Postal Service filed anything, as it did with Franklin.  The only case where an appeal was rejected without a Motion to Dismiss was State University, Arizona, and in this instance it does not appear that the Commission actually issued an order;  there is only the secretary’s letter to the petitioner.  In the five cases where it issued orders, the Commission denied the Motion to Dismiss twice, and rejected the appeal as untimely three times.

In three cases — Roanoke, Graves Mill, Crescent Lake — the post office had been suspended long before, so notification was an issue.  The Commission denied the Motion to Dismiss in one of the three cases, but noted the problem in the other two as well.

Five of the six cases involved independent post offices, not stations or branches, so presumably the Final Determinations included a paragraph advising customers about appeals.  Customers could not claim ignorance or tardiness on that basis.

Overall, there is really no good precedent for the Commission’s decision to reject the Franklin appeal as untimely, especially without waiting for the Postal Service to file a Motion to Dismiss and giving the community an opportunity to respond.

But now Franklin Station itself may become a precedent, which suggests that from now on, if your appeal is late, even by just one day, forget about it.

(Photo credits: Post office in Franklin, NJ; former Little Wyoming PO;

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