In the Matter of the Petition by:  

 CORAL S. VELLOCIDO, 
 94-1076 Lumikula Street 
 at 
 Waipahu, HI  96797-3937

 P.S. Docket No. DCA-47

 02/23/90

 Cohen, James A., Judicial Officer

 Appearance for Petitioner:  Coral S. Vellocido, 94-1076  
 Lumikula Street, Waipahu, HI  96797-3937  

 Appearances for Respondent:  Stephen E. Alpern, Esq., James A.  
 Friedman, Esq., Robert P. Sindermann, Jr., Esq., Law Department,  
 United States Postal Service, Washington, DC  20260-1132; M. Perry  
 Johnson, Esq., Office of Field Legal Services, United States  
 Postal Service, Western Division, San Bruno, CA  94099-0170; Larry  
 Koseki, Manager, Labor Relations, United States Postal Service,  
 Main Post Office, 3600 Aolele Street, Honolulu, HI  96820-9401  

Respondent has requested that the Judicial Officer review a decision of the Associate Judicial Officer which holds that Petitioner Coral S. Vellocido, the prevailing party in a Debt Collection Act (DCA) case, is entitled to recover attorney fees and costs under the Equal Access to Justice Act (EAJA). Respondent contends that the Judicial Officer has jurisdiction to review the EAJA decision even though he has no authority to review the merits of the underlying DCA decision. While Respondent's request was pending before the Judicial Officer, Petitioner Vellocido filed a request for payment of the EAJA award in accordance with 39 C.F.R. § 960.22.

Respondent's request for review is being decided without obtaining a response from Petitioner since it is clear that the Judicial Officer has no authority to review the Associate Judicial Officer's EAJA decision.

The Postal Service Rules of Practice which implement the EAJA, 39 C.F.R. Part 960, were intended to provide that the agency official who renders the final agency action on the underlying claim will take final action on matters pertaining to the EAJA as applied to that proceeding. This intent is reflected in 39 C.F.R. § 960.8 and 960.20 which distinguish between EAJA procedures applicable where an appeal to the Judicial Officer of the underlying claim is permitted under § 960.20(a) (i.e., false representation, lottery and mailability proceedings), and those in which an internal appellate procedure is not available under § 960.20(b) (i.e., Board of Contract Appeals proceedings). Compare 39 C.F.R. § 952.25(a), 952.26 and 953.14 with 39 C.F.R. § 955.1. DCA proceedings are similar to Board of Contract Appeals proceedings in that by statute the Hearing Official, like the assigned Board panel, makes the final agency decision on the underlying claim. * See Debt Collection Act of 1982, 5 U.S.C. § 5514(a)(2); Contract Disputes Act of 1978, 41 U.S.C. § 607(g). The Judicial Officer has no authority to review the decision in either type of case. See 39 C.F.R. § 955.1, 961.9. Therefore, DCA proceedings fall within the purview of 39 C.F.R. § 960.20(b) rather than 39 C.F.R. § 960.20(a). Since in this proceeding the Associate Judicial Officer is the official authorized to issue the final agency decision on the underlying DCA claim, he is also the official authorized to issue the final agency decision on the EAJA claim.

n* As stated by the Administrative Conference of the United States, "it would be neither efficient nor logical for the decision on whether the government's position in litigation was substantially justified to be made by an official (or body) that had no authority to decide (or review the decision in) the substantive case." Model Rules for Implementation of the Equal Access to Justice Act, 51 Fed. Reg. 16,659, 16,664 (1986).

Accordingly, Respondent's request for review of the Associate Judicial Officer's decision is dismissed by the Judicial Officer for lack of jurisdiction but referred to the Associate Judicial Officer for possible consideration as a motion for reconsideration under 39 C.F.R. § 960.20 and 961.9. Petitioner's request for payment of the EAJA award under 39 C.F.R. § 960.22 is placed in a suspense status pending further action of the Associate Judicial Officer.