In the Matter of the Petition by: 

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

 P.S. Docket No. DCA-47:  

 5/16/90

 Finn, James D. , Jr., Associate 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 filed a Motion for Reconsideration of the earlier decision (January 24, 1990) in this matter which granted Petitioner's Equal Access to Justice Act (EAJA) request for award of attorney fees and other expenses arising from her successful petition under the Debt Collection Act (DCA). Petitioner has opposed the Motion for Reconsideration. In its motion, Respondent argues that the EAJA does not give the hearing official jurisdiction to award fees and expenses in Postal Service cases under the DCA n1. This argument was previously raised by Respondent and was considered and resolved in the January 14, 1990, decision. It again has been considered and is once more rejected.

n1 In support of its position Respondent also relies upon the Postal Service's exemption from the strictures of the Administrative Procedure Act (APA) see 39 U.S.C. § 410(a). However, the Postal Service has adopted APA type rules of procedure for DCA cases, thus voluntarily complying with the APA. Compare American Postal Workers Union v. United States Postal Service, 891 F.2d 304 (DC Cir. 1989), in which the Postal Service by specific regulation elected to voluntarily comply with the APA.

Respondent next argues that the hearing official ignored the controlling judicial standard under EAJA. In so arguing, Respondent states that the decisions of the various administrative bodies cited in the earlier decision are "curiosities" and convey no legal authority. Respondent's argument has no validity. Those decisions relied upon were issued by boards of contract appeals created pursuant to the Contract Disputes Act, 41 U.S.C. § 601 et seq. Accordingly, their decisions are not legal curiosities and in fact do convey legal authority.

Respondent contends the hearing official misapplied the standard for determining whether the Postal Service's action was substantially justified. In this regard, Respondent correctly states, citing applicable case law, that no presumpton is created that the government's position was not substantially justified merely because it was not upheld on the merits. However, Respondent contends the hearing official in fact applied a presumption against the Postal Service's DCA position in awarding EAJA fees.

Respondent's contention is not well taken. Respondent merely reiterates previous arguments. n2 Its position in attempting to collect the funds from Ms. Vellocido and subsequently defending such action in litigation was not reasonable. Respondent waited approximately 50 days before it took any action to collect the amount of the bad check from Wolf. It made no further attempt for another month to collect from Wolf until Petitioner herself asked a Postal Inspector for assistance, and another letter was sent. Although regulations permitted the Postmaster to file suit against Wolf in small claims court, the record does not indicate any such action was ever contemplated subsequent to the initial letter of demand sent to Wolf. Rather, the record supports the conclusion that those in charge of this matter found it more convenient to seek reimbursement from Ms. Vellocido and refrain from expending any effort to obtain from Wolf the funds it rightfully owed the Postal Service.

n2 In so doing, Respondent continuously refers to Ms. Vellocido having "accepted" the bad check. In fact, Ms. Vellocido did not accept the check. It was accepted by another Postal Supervisor, Ms. Tanibe, who was aware of all existing regulations on this matter. The record does not indicate the propriety of Ms. Tanibe's acceptance of the check was ever questioned.

Respondent takes exception to the hearing official in the EAJA decision relying on provisions contained in Handbook F-1, as those provisions were not discussed in the DCA decision. The Handbook was first made a part of the record in this proceeding when Respondent made reference to it and relied upon it in stating its opposition to Petitioner's fee application. It was not a part of the record in the DCA proceeding, nor was consideration of it necessary in reaching a decision in the debt collection action. Reference to it was useful, however, it assessing the reasonableness of Respondent's debt collection administrative and litigation position for purposes of the EAJA proceeding.

Respondent objects to the hearing official having accepted as reasonable the number of hours expended (42.25) by Petitioner's counsel. Counsel's affidavit of hours spent and photocopies of itemized billings have again been examined. They again appear reasonable. Additional expense costs of $243.53 also were properly awarded as reasonable. Respondent's Motion for Reconsideration is denied.