[Federal Register Volume 76, Number 50 (Tuesday, March 15, 2011)]
[Proposed Rules]
[Pages 13937-13944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-5872]


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POSTAL SERVICE

39 CFR Part 952


Rules of Practice in Proceedings Relative to False Representation 
and Lottery Orders

AGENCY: Postal Service.

ACTION: Proposed rule.

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SUMMARY: The Postal Service is proposing to adopt revised rules for 
proceedings relative to false representation and lottery orders. The 
primary purpose of this exercise is to update and align the rules with 
current practices.

DATES: Comments must be received on or before April 14, 2011.

FOR FURTHER INFORMATION CONTACT: Diane M. Mego, Esq., 703-812-1905.

SUPPLEMENTARY INFORMATION: The Postal Service is proposing to adopt 
revised rules for 39 CFR Part 952. These revised rules of procedure 
have the same general coverage as the existing rules. However, the 
revised rules have been updated, are more comprehensive than the 
existing rules, and are intended to reflect more precisely current 
practice.
    These revised rules will completely replace the existing rules of 
practice and once adopted as a final rule, will be effective 
immediately in accordance with section 952.2. While the language of the 
proposed rules may have changed considerably for clarity, and to 
reflect more precisely the practices in these matters, we here identify 
the most significant changes of substance.
    Section 952.7 is renamed from ``Notice of answer and hearing'' to 
``Notice of docketing and answer.'' Under the previous rules, a hearing 
was automatically scheduled for hearing thirty days from receipt of the 
complaint. Hearings are now scheduled as needed by the presiding 
officer after the pleadings have been received. The notice from the 
Recorder will include the notice that the matter has been docketed and 
advise Respondent that an answer is required within 30 days.
    Section 952.8 is modified to simplify service of the complaint and 
now requires Complainant to complete service of the notice of docketing 
and answer due date along with a copy of the complaint. Previously, the 
Recorder was required to forward the complaint and the notice of 
docketing and hearing due date to the local postmaster, who in turn 
served Respondent. The local postmasters have been removed from the 
procedure. The Recorder will now forward a copy of the notice of 
docketing and answer due date (see revised section 952.7), a copy of 
these rules and a docketed copy of the complaint to Complainant. 
Complainant is then responsible for obtaining service through certified 
mail, return receipt requested. Service is now complete upon mailing. 
Complainant is required to file either a receipt acknowledging the 
delivery of the notice or an affidavit of service if the mail is 
returned. Service may also be accomplished by hand.
    Section 952.9 is modified to require the parties, after the filing 
of the initial complaint, to serve all pleadings, motions, proposed 
orders and other documents for the record on the opposing party and 
provide an appropriate affidavit of service. The new rule clarifies 
that discovery does not need to be filed with the presiding officer 
unless the parties are seeking to include it in the record or the 
presiding officer so orders. In addition, the rule is changed to allow 
the filing of pleadings, motions, proposed orders and other documents 
by facsimile and electronic mail at the discretion of the presiding 
officer.
    Section 952.11 is modified to authorize the presiding officer to 
rule that a party that fails to respond to or comply with any order is 
in default. Currently, only a Respondent can be found in default and 
only for either failing to file an answer or for failing to appear at a 
hearing. The new rule will allow the presiding officer to enter a 
default against a non-responding party even if the initial pleadings 
have been received.
    Section 952.16 requires an attorney representing Respondent to file 
a notice of appearance. An attorney for either party who is seeking to 
withdraw from representation must file a motion to withdraw, which will 
be granted at the discretion of the presiding officer. If a successor 
attorney is not appointed at the same time for Respondent, the 
withdrawn attorney must provide adequate contact information for 
Respondent.
    Section 952.17(b)(10) is added to allow the presiding officer to 
resolve the proceeding on the written record without a hearing either 
at the request of the parties or on the presiding officer's own 
initiative. The current rules do not specifically allow for proceeding 
on the written record without a hearing.
    Section 952.17(b)(11) is added to allow for a hearing to be 
conducted by telephone, video conference, or other appropriate means.
    Section 952.21 is modified to allow the parties to participate in 
voluntary discovery without the intervention of the presiding officer 
and to clarify the discovery rules.
    Accordingly, the Postal Service invites public comment on the 
following proposed rules.

List of Subjects in 39 CFR Part 952

    Administrative practice and procedure, Fraud, False 
Representations, Lotteries, Penalties, Postal Service.


[[Page 13938]]


    For the reasons stated in the preamble, the Postal Service proposes 
to revise 39 CFR part 952 to read as follows:

PART 952--RULES OF PRACTICE IN PROCEEDINGS RELATIVE TO FALSE 
REPRESENTATION AND LOTTERY ORDERS

Sec.
952.1 Authority.
952.2 Scope.
 952.3 Informal dispositions.
952.4 Office business hours.
952.5 Complaints.
952.6 Interim impounding.
952.7 Notice of docketing and answer.
952.8 Service.
952.9 Filing documents for the record.
952.10 Answer.
952.11 Default.
952.12 Amendment of pleadings.
952.13 Continuances and extensions.
952.14 Hearings.
952.15 Change of place of hearings.
952.16 Appearances.
952.17 Presiding officers.
952.18 Evidence.
952.19 Subpoenas.
952.20 Witness fees.
952.21 Discovery.
952.22 Transcript.
952.23 Proposed findings and conclusions.
952.24 Decisions.
952.25 Exceptions to initial decision or tentative decision.
952.26 Judicial Officer.
952.27 Motion for reconsideration.
952.28 Orders.
952.29 Modification or revocation of orders.
952.30 Supplemental orders.
952.31 Computation of time.
952.32 Official record.
952.33 Public information.
952.34 Ex parte communications.

    Authority:  39 U.S.C. 204, 401, 3005, 3012, 3016.


Sec.  952.1  Authority.

    These rules of practice are issued by the Judicial Officer of the 
United States Postal Service (see Sec.  952.26) pursuant to authority 
delegated by the Postmaster General, and in accordance with 39 U.S.C. 
3005, and are governed by the Administrative Procedure Act, 5 U.S.C. 
551, et seq.


Sec.  952.2  Scope.

    These rules of practice shall be applicable in all formal 
proceedings before the Postal Service under 39 U.S.C. 3005, including 
such cases instituted under prior rules of practice pertaining to these 
or predecessor statutes, unless timely shown to be prejudicial to 
Respondent.


Sec.  952.3  Informal dispositions.

    This part does not preclude the disposition of any matter by 
agreement between the parties either before or after the filing of a 
complaint when time, the nature of the proceeding, and the public 
interest permit.


Sec.  952.4  Office business hours.

    The offices of the officials identified in these rules are located 
at 2101 Wilson Boulevard, Suite 600, Arlington, VA 22201-3078, and are 
open Monday through Friday except holidays from 8:15 a.m. to 4:45 p.m.


Sec.  952.5  Complaints.

    When the Chief Postal Inspector or his or her designated 
representative believes that a person is using the mails in a manner 
requiring formal administrative action under 39 U.S.C. 3005, he or she 
shall prepare and file with the Recorder a complaint which names the 
person involved; states the name, address and telephone number of the 
attorney representing Complainant; states the legal authority and 
jurisdiction under which the proceeding is initiated; states the facts 
in a manner sufficient to enable the person named therein to answer; 
and requests the issuance of an appropriate order or orders and/or the 
assessment of civil penalties. Complainant shall attach to the 
complaint a copy of the order or orders requested which may, at any 
time during the proceedings, be modified. The person named in the 
complaint shall be known as ``Respondent'', and the Chief Postal 
Inspector or his or her designee shall be known as ``Complainant''. The 
term ``person'' (1 U.S.C. 1) shall include any name, address, number or 
other designation under or by use of which Respondent seeks remittances 
of money or property through the mail.


Sec.  952.6  Interim impounding.

    In preparation for or during the pendency of a proceeding initiated 
under 39 U.S.C. 3005, mail addressed to Respondent may be impounded 
upon obtaining an appropriate order from a United States District 
Court, as provided in 39 U.S.C. 3007.


Sec.  952.7  Notice of docketing and answer.

    (a) Upon receipt of a complaint filed against a Respondent whose 
mailing address is within the United States, the Recorder shall issue a 
notice of docketing and answer due date stating the date for an answer 
which shall not exceed 30 days from the service of the complaint and a 
reference to the effect of failure to file an answer and/or the 
assessment of civil penalties authorized by 39 U.S.C. 3012. (See 
Sec. Sec.  952.10 and 952.11).
    (b) Upon receipt of a complaint filed against a Respondent whose 
mailing address is not within the United States, the Judicial Officer 
shall review the complaint and any supporting information and determine 
whether a prima facie showing has been made that Respondent is engaged 
in conduct warranting issuance of the orders authorized by 39 U.S.C. 
3005(a). Where the Judicial Officer concludes that a prima facie 
showing has not been made the complaint shall be dismissed. Where the 
Judicial Officer concludes that a prima facie showing has been made, he 
or she shall issue a tentative decision and orders which: set forth 
findings of fact and conclusions of law; direct Respondent to cease and 
desist from engaging in conduct warranting the issuance of an order 
authorized by 39 U.S.C. 3005(a); direct that postal money orders drawn 
to the order of Respondent not be paid for 45 days from date of the 
tentative decision; direct that mail addressed to Respondent be 
forwarded to designated facilities and detained for 45 days from the 
date of the tentative decision subject to survey by Respondent and 
release of mail unrelated to the matter complained of; tentatively 
assess such civil penalties as he considers appropriate under 
applicable law; and provide that unless Respondent presents, within 45 
days of the date of the tentative decision, good cause for dismissing 
the complaint, or modifying the tentative decision and orders, the 
tentative decision and orders shall become final. The Judicial Officer 
may, upon a showing of good cause made within 45 days of the date of 
the tentative decision, hold a hearing to determine whether the 
tentative decision and orders should be revoked, modified, or allowed 
to become final. Should a hearing be granted, the Judicial Officer may 
modify the tentative decision and orders to extend the time during 
which the payment of postal money orders payable to Respondent is 
suspended and mail addressed to Respondent is detained.


Sec.  952.8  Service.

    (a) Where Respondent's mailing address is within the United States, 
the Recorder shall cause a notice of docketing and answer due date (the 
``Notice''), a copy of these rules of practice, and a copy of the 
complaint to be transmitted to Complainant who shall serve those 
documents upon Respondent or his or her agent by certified mail, return 
receipt requested. Service shall be complete upon mailing. A receipt 
acknowledging delivery of the notice shall be secured from Respondent 
or his or her agent and forwarded to the Recorder, U.S. Postal Service, 
2101 Wilson Boulevard, Suite 600, Arlington,

[[Page 13939]]

VA 22201-3078, to become a part of the official record. In the absence 
of a receipt, Complainant shall file an Affidavit of Service, along 
with returned undelivered mail, or other appropriate evidence of 
service, with the Recorder. In the alternative Complainant may, in its 
discretion, effectuate service by hand on Respondent and file an 
Affidavit of Service with the Recorder.
    (b) Where the only address against which Complainant seeks relief 
is outside the United States, a copy of the complaint, the tentative 
decision, and a copy of these rules of practice shall be sent by 
international mail, return receipt requested, by the Recorder to the 
address cited in the complaint. A written statement by the Recorder 
noting the time and place of mailing shall be accepted as evidence of 
service in the event a signed return receipt is not returned to the 
Recorder.


Sec.  952.9  Filing documents for the record.

    (a) Each party shall file with the Recorder pleadings, motions, 
proposed orders, and other documents for the record. Discovery need not 
be filed except as may be sought to be included in the record, or as 
may be ordered by the presiding officer. Each filing after the initial 
complaint shall be served upon all other parties to the proceeding by 
the filing party, and an affidavit of such service signed and dated by 
the filing party shall be included on the last page of such filing, 
which shall state as follows:

I, [name of filing party] hereby certify that I served the within 
[title of document] upon each party of record by electronic mail or 
first class mail on [date].

    (b) The parties shall file one original of all documents filed 
under this section unless otherwise ordered by the presiding officer.
    (c) Documents shall be dated and state the docket number and title 
of the proceeding. Any pleading or other document required by order of 
the presiding officer to be filed by a specified date must be received 
by the Recorder on or before such date. The date of filing shall be 
entered thereon by the Recorder.
    (d) The presiding officer may permit filing of pleadings, motions, 
proposed orders, and other documents for the record by facsimile or by 
electronic mail with the Recorder.


Sec.  952.10  Answer.

    (a) The answer shall contain a concise statement admitting, 
denying, or explaining each of the allegations set forth in the 
complaint.
    (b) Any facts alleged in the complaint which are not denied or are 
expressly admitted in the answer may be considered as proved, and no 
further evidence regarding these facts need be adduced at the hearing.
    (c) The answer shall be signed personally by an individual 
Respondent, or in the case of a partnership by one of the partners, or, 
in the case of a corporation or association, by an officer thereof.
    (d) The answer shall set forth Respondent's address, electronic 
mail address, and telephone number or the name, address, electronic 
mail address, and telephone number of an attorney representing 
Respondent.
    (e) The answer shall affirmatively state whether the Respondent 
will appear in person or by counsel at the hearing.
    (f) In lieu of appearing at the hearing in person or by counsel, 
Respondent may request that the matter be submitted for determination 
pursuant to Sec.  952.17(b)(10).


Sec.  952.11  Default.

    (a) If Respondent fails to file an answer within the time specified 
in the notice of docketing and answer, Respondent may be deemed in 
default, and to have waived hearing and further procedural steps. The 
Judicial Officer may thereafter issue orders and/or assess civil 
penalties without further notice.
    (b) If Respondent files an answer but fails to appear at the 
hearing, Respondent may, unless timely indications to the contrary are 
received, be deemed to have abandoned the intention to present a 
defense to the charges of the complaint, and the Judicial Officer, 
without further notice to Respondent, may issue the orders and/or 
assess civil penalties sought in the complaint.
    (c) If Respondent or Complainant fails to respond to or comply with 
an order of the presiding officer, the party may be held in default, 
and absent good cause shown, the party may be deemed to have abandoned 
the intention to present a defense, or to prosecute the complaint, and 
the presiding officer or Judicial Officer, without further notice to 
the offending party, may, as appropriate, dismiss the complaint or 
issue the orders and/or assess civil penalties sought in the complaint.


Sec.  952.12  Amendment of pleadings.

    (a) Amendments shall be filed with the Recorder.
    (b) By consent of the parties, a pleading may be amended at any 
time. Also, a party may move to amend a pleading at any time prior to 
the close of the hearing and, provided that the amendment is reasonably 
within the scope of the proceeding initiated by the complaint, the 
presiding officer rule on the motion as he or she deems to be fair and 
equitable to the parties.
    (c) When issues not raised by the pleadings but reasonably within 
the scope of the proceedings initiated by the complaint are tried by 
express or implied consent of the parties, they shall be treated in all 
respects as if they had been raised in the pleadings. Such amendments 
as may be necessary to conform the pleadings to the evidence and to 
raise such issues may be allowed at any time upon the motion of any 
party.
    (d) If a party objects to the introduction of evidence at the 
hearing on the ground that it is not within the issues raised by the 
pleadings, but fails to satisfy the presiding officer that an amendment 
of the pleadings would prejudice him or her on the merits, the 
presiding officer may allow the pleadings to be amended and may grant a 
continuance to enable the objecting party to rebut the evidence 
presented.
    (e) The presiding officer may, upon reasonable notice and upon such 
terms as are just, permit service of a supplemental pleading setting 
forth transactions, occurrences, or events which have occurred since 
the date of the pleading sought to be supplemented and which are 
relevant to any of the issues involved.


Sec.  952.13  Continuances and extensions.

    Continuances and extensions will not be granted by the presiding 
officer except for good cause shown.


Sec.  952.14  Hearings.

    Hearings are held at 2101 Wilson Boulevard, Suite 600, Arlington, 
VA 22201-3078, or other locations designated by the presiding officer. 
Time, date, and location for the hearing shall be set by the presiding 
officer in his or her sole discretion.


Sec.  952.15  Change of place of hearings.

    A party may file a request that a hearing be held to receive 
evidence in his or her behalf at a place other than that designated in 
Sec.  952.14. The party shall support the request with a statement 
outlining:
    (a) The evidence to be offered in such place;
    (b) The names and addresses of the witnesses who will testify; and,
    (c) The reasons why such evidence cannot be produced at Arlington, 
VA.
    The presiding officer shall give consideration to the convenience 
and necessity of the parties and witnesses and the relevance of the 
evidence to be offered.

[[Page 13940]]

Sec.  952.16  Appearances.

    (a) Respondent may appear and be heard in person or by attorney. A 
Notice of Appearance must be filed by any attorney representing 
Respondent.
    (b) An attorney may practice before the Postal Service in 
accordance with applicable rules issued by the Judicial Officer. See 39 
CFR part 951.
    (c) When Respondent is represented by an attorney, all pleadings 
and other papers subsequent to the complaint shall be mailed to the 
attorney.
    (d) Withdrawal by any attorney representing a party must be 
preceded by a motion to withdraw stating the reasons therefore, and 
shall be granted in the discretion of the presiding officer. If a 
successor attorney is not appointed at the same time, withdrawing 
counsel shall provide adequate contact information for Respondent.
    (e) Parties must promptly file a notice of change of attorney.


Sec.  952.17  Presiding officers.

    (a) The presiding officer at any hearing shall be an Administrative 
Law Judge qualified in accordance with law or the Judicial Officer (39 
U.S.C. 204). The Chief Administrative Law Judge shall assign cases. The 
Judicial Officer may, for good cause shown, preside at the hearing if 
an Administrative Law Judge is unavailable.
    (b) The presiding officer shall have authority to:
    (1) Administer oaths and affirmations;
    (2) Examine witnesses;
    (3) Rule upon offers of proof, admissibility of evidence, and 
matters of procedure;
    (4) Order any pleading amended upon motion of a party at any time 
prior to the close of the hearing;
    (5) Maintain discipline and decorum and exclude from the hearing 
any person acting in an inappropriate manner;
    (6) Require the filing of briefs or memoranda of law on any matter 
upon which he or she is required to rule;
    (7) Order prehearing conferences for the purpose of the settlement 
or simplification of issues by the parties;
    (8) Order the proceeding reopened at any time prior to his or her 
decision for the receipt of additional evidence;
    (9) Render an initial decision, which becomes the final agency 
decision unless a timely appeal is taken, except that the Judicial 
Officer may issue a tentative or a final decision;
    (10) Rule on motion by either party, or on his or her own 
initiative, for a determination on the written record in lieu of an 
oral hearing in his or her sole discretion;
    (11) Rule on motion by either party, or on his or her own 
initiative, to permit a hearing to be conducted by telephone, video 
conference, or other appropriate means;
    (12) Rule upon applications and requests filed under Sec. Sec.  
952.19 and 952.21; and,
    (13) Exercise all other authority conferred upon the presiding 
officer by the Administrative Procedure Act or other applicable law.


Sec.  952.18  Evidence.

    (a) Except as otherwise provided in these rules, the Federal Rules 
of Evidence shall govern. However, such rules may be relaxed to the 
extent that the presiding officer deems proper to ensure a fair 
hearing. The presiding officer may exclude irrelevant, immaterial, or 
repetitious evidence.
    (b) Testimony shall be under oath or affirmation and witnesses 
shall be subject to cross-examination.
    (c) Agreed statements of fact may be received in evidence.
    (d) Official notice, judicial notice or administrative notice of 
appropriate information may be taken in the discretion of the presiding 
officer.
    (e) Authoritative writings of the medical or other sciences, may be 
admitted in evidence but only through the testimony of expert witnesses 
or by stipulation.
    (f) Lay testimonials may be received in evidence as proof of the 
efficacy or quality of any product, service, or thing sold through the 
mails, in the discretion of the presiding officer.
    (g) The written statement of a competent witness may be received in 
evidence provided that such statement is relevant to the issues, that 
the witness shall testify under oath at the hearing that the statement 
is in all respects true, and, in the case of expert witnesses, that the 
statement correctly states the witness's opinion or knowledge 
concerning the matters in question.
    (h) A party which objects to the admission of evidence shall 
explain the grounds for the objection. Formal exceptions to the rulings 
of the presiding officer are unnecessary.


Sec.  952.19  Subpoenas.

    (a) General. Upon written request of either party filed with the 
Recorder or on his or her own initiative, the presiding officer may 
issue a subpoena requiring:
    (1) Testimony at a deposition. The deposing of a witness in the 
city or county where the witness resides or is employed or transacts 
business in person, or at another location convenient for the witness 
that is specifically determined by the presiding officer;
    (2) Testimony at a hearing. The attendance of a witness for the 
purpose of taking testimony at a hearing; and
    (3) Production of records. The production by the witness at a 
deposition or hearing of records designated in the subpoena.
    (b) Voluntary cooperation. Each party is expected:
    (1) To cooperate and make available witnesses and evidence under 
its possession, custody or control as requested by the other party, 
without issuance of a subpoena, and
    (2) To secure voluntary production of desired third-party records 
whenever possible.
    (c) Requests for subpoenas. (1) A request for a subpoena shall to 
the extent practical be filed:
    (i) At the same time a request for deposition is filed; or
    (ii) Fifteen (15) days before a scheduled hearing where the 
attendance of a witness at a hearing is sought.
    (2) A request for a subpoena shall state the reasonable scope and 
relevance to the case of the testimony and of any records sought.
    (3) The presiding officer, in his or her sole discretion, may honor 
requests for subpoenas not presented within the time limitations 
specified in this paragraph.
    (d) Motion to quash or modify. (1) Upon written request by the 
person subpoenaed or by a party, the presiding officer may:
    (I) Quash or modify the subpoena if it is unreasonable, oppressive 
or for other good cause shown, or
    (II) Require the person in whose behalf the subpoena was issued to 
advance the reasonable cost of producing subpoenaed records. Where 
circumstances require, the presiding officer may act upon such a 
request at any time after a copy has been served upon the opposing 
party.
    (2) Motions to quash or modify a subpoena shall be filed within 10 
days of service, or at least one day prior to any scheduled hearing, 
whichever first occurs. The presiding officer, in his or her sole 
discretion, may entertain motions to quash or modify not made within 
the time limitations specified in this paragraph.
    (e) Form; issuance. (1) Every subpoena shall state the title of the 
proceeding, shall cite 39 U.S.C. 3016(a)(2) as the authority under 
which it is issued, and shall command each person to whom it is 
directed to attend and give testimony, and if appropriate, to produce 
specified records at a time and place therein specified. In issuing a 
subpoena to a requesting party, the presiding officer shall sign the 
subpoena

[[Page 13941]]

and may, in his or her discretion, enter the name of the witness and 
otherwise leave it blank. The party to whom the subpoena is issued 
shall complete the subpoena before service.
    (2) The party at whose instance a subpoena is issued shall be 
responsible for the payment of fees and mileage of the witness in 
accordance with 28 U.S.C. 1821, or other applicable law, and of the 
officer who serves the subpoena. The failure to make payment of such 
charges on demand may be deemed by the presiding officer as sufficient 
ground for striking the testimony of the witness and the evidence the 
witness has produced.
    (f) Service--(1) In general. The party requesting issuance of a 
subpoena shall arrange for service.
    (2) Service within the United States. A subpoena issued under this 
section may be served by a person designated under 18 U.S.C. 3061 or by 
a United States marshal or deputy marshal, or by any other person who 
is not a party and not less than 18 years of age at any place within 
the territorial jurisdiction of any court of the United States.
    (3) Service outside the United States. Any such subpoena may be 
served upon any person who is not to be found within the territorial 
jurisdiction of any court of the United States, in such manner as the 
Federal Rules of Civil Procedure prescribe for service in a foreign 
country. To the extent that the courts of the United States may assert 
jurisdiction over such person consistent with due process, the United 
States District Court for the District of Columbia shall have the same 
jurisdiction to take any action respecting compliance with this section 
by such person that such court would have if such person were 
personally within the jurisdiction of such court.
    (4) Service on business persons. Service of any such subpoena may 
be made upon a partnership, corporation, association, or other legal 
entity by:
    (i) Delivering a duly executed copy thereof to any partner, 
executive officer, managing agent, or general agent thereof, or to any 
agent thereof authorized by appointment or by law to receive service of 
process on behalf of such partnership, corporation, association, or 
entity;
    (ii) Delivering a duly executed copy thereof to the principal 
office or place of business of the partnership, corporation, 
association, or entity; or
    (iii) Depositing such copy in the United States mails, by 
registered or certified mail, return receipt requested, duly addressed 
to such partnership, corporation, association, or entity at its 
principal office or place of business.
    (5) Service on natural persons. Service of any subpoena may be made 
upon any natural person by:
    (i) Delivering a duly executed copy to the person to be served; or
    (ii) Depositing such copy in the United States mails, by registered 
or certified mail, return receipt requested, duly addressed to such 
person at his or her residence or principal office or place of 
business.
    (6) Verified return. A verified return by the individual serving 
any such subpoena setting forth the manner of such service shall 
constitute proof of service. In the case of service by registered or 
certified mail, such return shall be accompanied by the return post 
office receipt of delivery of such subpoena, or a statement of service 
by registered or certified mail in the event that receipt of delivery 
is unavailable.
    (g) Contumacy or refusal to obey a subpoena. In the case of refusal 
to obey a subpoena, the Judicial Officer may request the Attorney 
General to petition the district court for any district in which the 
person receiving the subpoena resides, is found, or conducts business 
(or in the case of a person outside the territorial jurisdiction of any 
district court, the district court for the District of Columbia) to 
issue an appropriate order for the enforcement of such subpoena. Any 
failure to obey such order of the court may be punishable as contempt.


Sec.  952.20  Witness fees.

    The Postal Service does not pay fees and expenses for Respondent's 
witnesses or for depositions requested by Respondent, unless otherwise 
ordered by the presiding officer.


Sec.  952.21  Discovery.

    (a) Voluntary discovery. The parties are encouraged to engage in 
voluntary discovery procedures. In connection with any deposition or 
other discovery procedure, the presiding officer may issue any order 
which justice requires to protect a party or person from annoyance, 
embarrassment, oppression, or undue burden or expense, and those orders 
may include limitations on the scope, method, time and place for 
discovery, and provisions for protecting the secrecy of confidential 
information or documents.
    (b) Discovery disputes. The parties are required to make a good 
faith effort to resolve objections to discovery requests informally. A 
party receiving an objection to a discovery request, or a party which 
believes that another party's response to a discovery request is 
incomplete or entirely absent, may file a motion to compel a response, 
but such a motion must include a representation that the moving party 
has tried in good faith, prior to filing the motion, to resolve the 
matter informally. The motion to compel shall include a copy of each 
discovery request at issue and the response, if any.
    (c) Discovery limitations. The presiding officer may limit the 
frequency or extent of use of discovery methods described in these 
rules. In doing so, generally the presiding officer will consider 
whether:
    (1) The discovery sought is unreasonably cumulative or duplicative, 
or is obtainable from some other source that is more convenient, less 
burdensome, or less expensive;
    (2) The party seeking discovery has had ample opportunity by 
discovery in the case to obtain the information sought; or
    (3) The discovery is unduly burdensome and expensive, taking into 
account the needs of the case, the amount in controversy, limitations 
on the parties' resources, and the importance of the issues at stake.
    (d) Interrogatories. At any time after service of the complaint, a 
party may serve on the other party written interrogatories to be 
answered separately in writing, signed under oath and returned within 
30 days. Upon timely objection, the presiding officer will determine 
the extent to which the interrogatories will be permitted.
    (e) Requests for admission. At any time after service of the 
complaint, a party may serve upon the other party a request for the 
admission of specified facts. Within 30 days after service, the party 
served shall answer each requested fact or file objections thereto. The 
factual propositions set out in the request may be ordered by the 
presiding officer as deemed admitted upon the failure of a party to 
respond timely and fully to the request for admissions.
    (f) Requests for production of documents. At any time after service 
of the complaint, a party may serve on the other party written requests 
for the production, inspection, and copying of any documents, 
electronically stored information, or things, to be answered within 30 
days. Upon timely objection, the presiding officer will determine the 
extent to which the requests must be satisfied, and if the parties 
cannot themselves agree thereon, the presiding officer shall specify 
just terms and conditions for compliance.
    (g) Depositions. Except as stated herein, depositions shall be 
conducted in accordance with Rule 30 of the Federal Rules of Civil 
Procedure.
    (1) After a complaint has been filed and docketed, the parties may 
mutually

[[Page 13942]]

agree to, or the presiding officer may, upon application of either 
party and for good cause shown, order the taking of testimony of any 
person by deposition upon oral examination or written interrogatories 
before any officer authorized to administer oaths at the place of 
examination, for use as evidence or for purpose of discovery. The 
application for order shall specify whether the purpose of the 
deposition is discovery or for use as evidence.
    (2) The time, place, and manner of conducting depositions shall be 
as mutually agreed by the parties or, failing such agreement, and upon 
proper application, governed by order of the presiding officer.
    (3) No testimony taken by deposition shall be considered as part of 
the evidence in the hearing of an appeal unless and until such 
testimony is offered and received in evidence at or before such 
hearing. It will not ordinarily be received in evidence if the deponent 
is available to testify at the hearing, but the presiding officer may 
admit testimony taken by deposition in his or her discretion. A 
deposition may be used to contradict or impeach the testimony of the 
witness given at the hearing. In cases submitted on the written record 
in lieu of an oral hearing, the presiding officer may, in his or her 
discretion, receive depositions as evidence in supplementation of that 
record.
    (4) Each party shall bear its own expenses associated with the 
taking of any deposition unless otherwise ordered by the presiding 
officer.
    (h) Sanctions. If a party fails to appear for a deposition, after 
being served with a proper notice, or fails to serve answers or 
objections to interrogatories, requests for admissions, or requests for 
the production or inspection of documents, after proper service, the 
party seeking discovery may request that the presiding officer impose 
appropriate orders. Failure of a party to comply with an order pursuant 
to this rule may result in the presiding officer's ruling that the 
disobedient party may not support or oppose designated charges or 
defenses or may not introduce designated matters in evidence. The 
presiding officer may also infer from the disobedient party's failure 
to comply with the order that the facts to which the order related 
would, if produced or admitted, be adverse to such party's interests. 
In the sole discretion of the presiding officer, failure of a party to 
comply with an order pursuant to this rule may result in the presiding 
officer's issuance of an order of default under Sec.  952.11(c).


Sec.  952.22  Transcript.

    (a) Hearings shall be reported and transcribed by a court reporter. 
Argument upon any matter may be excluded from the transcript by order 
of the presiding officer. A copy of the transcript shall be a part of 
the record and the sole official transcript of the proceeding. Copies 
of the transcript shall be supplied to the parties to the proceeding by 
the reporter at rates not to exceed the maximum rates fixed by contract 
between the Postal Service and the reporter. Copies of parts of the 
official record including exhibits admitted into evidence, other than 
the transcript, may be obtained by Respondent from the Recorder upon 
the payment of reasonable copying charges. Items that cannot reasonably 
be photocopied may be photographed and furnished in that form.
    (b) Changes in the official transcript may be ordered by the 
presiding officer only to correct errors affecting substance and then 
only in the manner herein provided. Within 10 days after the receipt by 
any party of a copy of the official transcript, or any part thereof, he 
or she may file a motion requesting correction of the transcript. 
Opposing counsel shall, within such time as may be specified by the 
presiding officer, notify the presiding officer in writing of his or 
her concurrence or disagreement with the requested corrections. Failure 
to interpose timely objection to a proposed correction shall be 
considered to be concurrence. Thereafter, the presiding officer shall 
by order specify the corrections to be made in the transcript. The 
presiding officer on his or her own initiative may order corrections to 
be made in the transcript with prompt notice to the parties of the 
proceeding. Any changes ordered by the presiding officer other than by 
agreement of the parties shall be subject to objection and exception.


Sec.  952.23  Proposed findings and conclusions.

    (a) Each party to a proceeding, except one who fails to answer the 
complaint or, having answered, either fails to appear at the hearing or 
indicates in the answer that he or she does not desire to appear, may, 
unless at the discretion of the presiding officer such is not 
appropriate, submit proposed findings of fact, conclusions of law, 
orders and supporting reasons either in oral or written form in the 
discretion of the presiding officer. The presiding officer may also 
require parties to any proceeding to submit proposed findings of fact, 
conclusions of law, orders, and supporting reasons. Unless given 
orally, the date set for filing of proposed findings of fact, 
conclusions of law, orders and supporting reasons shall be within 30 
days after the delivery of the official transcript to the Recorder who 
shall notify both parties of the date of its receipt. The filing date 
for proposed findings of fact, conclusions of law, orders and 
supporting reasons shall be the same for both parties. If not submitted 
by such date, or unless extension of time for the filing thereof is 
granted, they will not be included in the record or given 
consideration.
    (b) Except when presented orally before the close of the hearing, 
proposed findings of fact shall be set forth in serially numbered 
paragraphs and shall state with particularity all evidentiary facts in 
the record with appropriate citations to the transcript or exhibits 
supporting the proposed findings. Each proposed conclusion shall be 
separately stated.
    (c) Except when presented orally before the close of the hearing, 
proposed orders shall state the statutory basis of the order and, with 
respect to orders proposed to be issued pursuant to 39 U.S.C. 
3005(a)(3), shall be set forth in serially numbered paragraphs stating 
with particularity the representations Respondent and its 
representative shall cease and desist from using for the purpose of 
obtaining money or property through the mail.


Sec.  952.24  Decisions.

    (a) Initial decision by Administrative Law Judge. A written initial 
decision shall be rendered by an Administrative Law Judge as soon as 
practical after completion of the hearing, or after close of the record 
in matters heard upon the written record in lieu of an oral hearing 
under Sec.  952.17(b)(10). The initial decision shall include findings 
and conclusions with the reasons therefor upon all the material issues 
of fact or law presented on the record, and the appropriate orders or 
denial thereof. The initial decision shall become the final agency 
decision unless an appeal is taken in accordance with Sec.  952.25.
    (b) Tentative or final decision by the Judicial Officer. When the 
Judicial Officer presides at the hearing he or she shall issue a final 
or a tentative decision. Such decision shall include findings and 
conclusions with the reasons therefor upon all the material issues of 
fact or law presented on the record, and the appropriate orders or 
denial thereof. The tentative decision shall become the final agency 
decision unless exceptions are filed in accordance with Sec.  952.25.
    (c) Oral decisions. The presiding officer may render an oral 
decision (an initial decision by an Administrative

[[Page 13943]]

Law Judge, or a tentative or final decision by the Judicial Officer) at 
the close of the hearing when the nature of the case and the public 
interest warrant. A party which desires an oral decision shall notify 
the presiding officer and the opposing party at least 5 days prior to 
the date set for the hearing. Either party may submit proposed 
findings, conclusions, and proposed orders either orally or in writing 
at the conclusion of the hearing.


Sec.  952.25  Exceptions to initial decision or tentative decision.

    (a) A party in a proceeding presided over by an Administrative Law 
Judge may appeal to the Judicial Officer by filing exceptions in a 
brief on appeal within 15 days from the receipt of the Administrative 
Law Judge's initial decision.
    (b) A party in a proceeding presided over by the Judicial Officer 
may file exceptions within 15 days from the receipt of the Judicial 
Officer's tentative decision.
    (c) If an initial or tentative decision is rendered orally by the 
presiding officer at the close of the hearing, he or she may then 
orally provide notice to the parties participating in the hearing of 
the time limit within which an appeal must be filed.
    (d) The date for filing the reply to an appeal brief or to a brief 
in support of exceptions to a tentative decision by the Judicial 
Officer is 10 days after the receipt thereof. No additional briefs 
shall be received unless requested by the Judicial Officer.
    (e) Briefs upon appeal or in support of exceptions to a tentative 
decision by the Judicial Officer and replies thereto shall be filed in 
duplicate with the Recorder and contain the following matter:
    (1) A subject index of the matters presented, with page references; 
a table of cases alphabetically arranged; a list of statutes and texts 
cited with page references;
    (2) A concise abstract or statement of the case in briefs on appeal 
or in support of exceptions;
    (3) Numbered exceptions to specific findings and conclusions of 
fact, conclusions of law, or recommended orders of the presiding 
officer in briefs on appeal or in support of exceptions; and
    (4) A concise argument clearly setting forth points of fact and of 
law relied upon in support of or in opposition to each exception taken, 
together with specific references to the parts of the record and the 
legal or other authorities relied upon.
    (f) Unless permission is granted by the Judicial Officer no brief 
shall exceed 50 printed pages double spaced, using 12 point type.
    (g) The Judicial Officer will extend the time to file briefs only 
upon written application for good cause shown. If the appeal brief or 
brief in support of exceptions is not filed within the time prescribed, 
the defaulting party may be deemed to have abandoned the appeal or 
waived the exceptions, and the initial or tentative decision shall 
become the final agency decision.


Sec.  952.26  Judicial Officer.

    (a) The Judicial Officer is authorized:
    (1) To act as presiding officer;
    (2) To render tentative decisions;
    (3) To render final agency decisions;
    (4) To issue Postal Service orders for the Postmaster General;
    (5) To refer the record in any proceeding to the Postmaster General 
or the Deputy Postmaster General for final agency decision;
    (6) To remand a case to the presiding officer for consideration; 
and,
    (7) To revise or amend these rules of practice.
    (b) In determining appeals from initial decisions or exceptions to 
tentative decisions, the entire official record will be considered 
before a final agency decision is rendered. Before rendering a final 
agency decision, the Judicial Officer may order the hearing reopened 
for the presentation of additional evidence by the parties.


Sec.  952.27  Motion for reconsideration.

    A party may file a motion for reconsideration of a final agency 
decision within 10 days after receiving it or within such longer period 
as the Judicial Officer may order. Each motion for reconsideration 
shall be accompanied by a brief clearly setting forth the points of 
fact and of law relied upon in support of said motion.


Sec.  952.28  Orders.

    (a) If an order is issued which prohibits delivery of mail to 
Respondent it shall be incorporated in the record of the proceeding. 
The Recorder shall cause notice of the order to be published in the 
Postal Bulletin and cause the order to be transmitted to such 
postmasters and other officers and employees of the Postal Service as 
may be required to place the order into effect.
    (b) If an order is issued which requires Respondent to cease and 
desist from using certain representations for the purpose of obtaining 
money or property through the mail, it shall be incorporated in the 
record of the proceeding and a copy thereof shall be served upon 
Respondent or his or her or its agent by certified mail or by personal 
service, or if no person can be found to accept service, service shall 
be accomplished by ordinary mail to the last known address of 
Respondent or his or her or its agent. If service is not accomplished 
by certified mail, a statement, showing the time and place of delivery, 
signed by the postal employee who delivered the order, shall be 
forwarded to the Recorder.


Sec.  952.29  Modification or revocation of orders.

    A party against which an order or orders have been issued may file 
an application for modification or revocation thereof. The Recorder 
shall transmit a copy of the application to the Chief Postal Inspector 
or his or her designee, who shall file a written reply within 10 days 
after filing or such other period as the Judicial Officer may order. A 
copy of the reply shall be sent to the applicant by the Recorder. 
Thereafter an order granting or denying such application will be issued 
by the Judicial Officer.


Sec.  952.30  Supplemental orders.

    When the Chief Postal Inspector or his or her designee, or the 
Chief Postal Inspector's designated representative shall have reason to 
believe that a person is evading or attempting to evade the provisions 
of any such orders by conducting the same or a similar enterprise under 
a different name or at a different address, he or she may file a 
petition with accompanying evidence setting forth the alleged evasion 
or attempted evasion and requesting the issuance of a supplemental 
order or orders against the name or names allegedly used. Notice shall 
then be given by the Recorder to the person that the order has been 
requested and that an answer may be filed within 10 days of the notice. 
The Judicial Officer, for good cause shown, may hold a hearing to 
consider the issues in controversy, and shall, in any event, render a 
final decision granting or denying the supplemental order or orders.


Sec.  952.31  Computation of time.

    A designated period of time under these rules excludes the day the 
period begins, and includes the last day of the period unless the last 
day is a Saturday, Sunday, or legal holiday, in which event the period 
runs until the close of business on the next business day.


Sec.  952.32  Official record.

    The hearing transcript together with all pleadings, orders, 
exhibits, briefs and other documents filed in the proceeding

[[Page 13944]]

shall constitute the official record of the proceeding.


Sec.  952.33  Public information.

    The Librarian of the Postal Service maintains for public inspection 
in the Library copies of all initial, tentative and final agency 
decisions and orders. The Recorder maintains the complete official 
record of every proceeding.


Sec.  952.34  Ex parte communications.

    The provisions of 5 U.S.C. 551(14), 556(d), and 557(d) prohibiting 
ex parte communications apply to proceedings under these rules of 
practice.

Stanley F. Mires,
Chief Counsel, Legislative.
[FR Doc. 2011-5872 Filed 3-14-11; 8:45 am]
BILLING CODE 7710-12-P