Appeal of P.S. Docket No. 9/65 -- KIMBERLY JEWELS, INC.

 In the Matter of the Complaint Against

 KIMBERLY JEWELS, INC.
 177 NE 166 Street
 and 251 NE 166 Street
 at Miami, FL 33162

 P.S. Docket No. 9/65;
 
 11/12/81
 
 Cohen, James A.

 APPEARANCE FOR COMPLAINANT:
 James F.McMullin, Esq.
 Consumer Protection Division
 Law Department
 United States Postal Service
 475 L'Enfant Plaza West, SW
 Washington, DC 20260

 APPEARANCE FOR RESPONDENT:
 Stephen H. Broudy, Esq.
 Entin, Schwartz, Angert, Dion & Broudy
 2020 N.E. 163rd Street Suite 300
 North Miami Beach, FL 33162

POSTAL SERVICE DECISION ON

RESPONDENT'S MOTION TO DISMISS

Respondent has filed a Motion to Dismiss the Petition for Supplemental Order filed by Complainant on October 5, 1981. In its motion Respondent contends that it has requested a de novo trial before the District Court for the Southern District of Florida and that the decision of the Judicial Officer, dated July 23, 1981, is not final until the District Court has made final disposition of all issues. It, therefore, argues that the Petition for a Supplemental Order is premature. Complainant opposes the Motion, contending the Judicial Officer's decision is a final order, that no right to a de novo trial exists or has even been requested, and that a petition for a supplemental order is properly filed following the issuance of a false representation order by the Judicial Officer.

Under 39 USC § 3005 an order issued by the Judicial Officer is a final agency order. While such order is subject to judicial review, the District Court does not conduct a de novo trial but reviews the proceedings to determine whether the agency's findings and conclusions are supported by substantial evidence. Shaw v. Duncan, 194 F.2d 779 (10th Cir. 1952); Diet Lake, Inc. v. United States Postal Service, Case No. 78-6436-Civ-JE (S.D. Fla. May 3, 1979); Diet Lake, Inc. v. United States Postal Service, Case No. 78-6417-Civ-JE (S.D. Fla. May 3, 1979), aff'd, Docket No. 79-2563 (5th Cir., July 18, 1980). Pending the outcome of judicial review, the agency decision remains in effect although at the request of Respondent the return portioin of the Mail Stop Order has been stayed. Since the agency order remains in effect a petition for supplemental order is not premature.

Accordingly, Complainant's Petition for a Supplemental Order under 39 CFR § 952.30 has been properly filed. Respondent's Motion to Dismiss is, therefore, denied.