November 30, 2000 In the Matter of the Petition by ) ) WILLIAM D. VOGEL, JR. ) 2390 Deblin Drive ) ) at ) ) Cincinnati, OH 45239-5612 ) P.S. Docket No. DCA 99-396 APPEARANCE FOR PETITIONER: Timothy B. Theissen, Esq. Strauss & Troy Northern Kentucky Office, Suite 1400 50 East Rivercenter Boulevard Covington, KY 41011-5994 APPEARANCE FOR RESPONDENT: Vincent P. Catalano Labor Relations Specialist United States Postal Service 1591 Dalton Avenue Cincinnati, OH 45234-9401
FINAL DECISION ON EQUAL ACCESS TO JUSTICE ACT APPLICATION
The proceedings in this case were initiated on August 31, 1999, when Petitioner's supervisor issued a Notice of Involuntary Administrative Salary Offsets to Petitioner. This Notice stated the Postal Service's intention to withhold $29,939.43 from Petitioner's salary to recover for shortages in various accounts at the Batesville, Indiana Post Office during the time when Petitioner was the Batesville Postmaster.
A hearing was held in Cincinnati, Ohio on May 2, 2000. During records reviews and negotiations between the parties in preparation for the hearing, Petitioner was given credit for several overages in some accounts. By the time of the hearing, therefore, the alleged debt had been reduced to $7,088.03. A Final Decision was issued on August 3, 2000, holding that Petitioner was liable for $1,430.96, and that Respondent could collect that amount from his salary.
Petitioner has now filed an application for attorney fees under the Equal Access to Justice Act (EAJA), 5 U.S.C. §504. Respondent has filed a reply, stating that Petitioner may be entitled to some amount, but that "the Applicant overstates both the number of hours for which the Applicant is entitled to fees and the hourly rate to which the Applicant is entitled."
The threshold question, which neither party has addressed, is whether the Equal Access to Justice Act is applicable to Debt Collection Act proceedings. In 1990, one Postal Service Administrative Judge held that it was. Coral S. Vellocido, P.S. Docket No. DCA-47 (January 24, 1990)(aff'd on M/Recon, May 16, 1990). In 1992, another Postal Service Administrative Judge concluded that it was not. Linda R. Shires, P.S. Docket No. DCA-137 (October 23, 1992). This latter decision was based on an intervening decision by the United States Supreme Court, Ardestani v. Immigration and Naturalization Service, 502 U.S. 129 (1991).1
The EAJA is implemented by the Postal Service in 39 C.F.R. Part 960, and provides for award of attorney fees and other expenses to a prevailing party in some administrative proceedings before the Postal Service.
Parroting the language of the EAJA itself, the Postal Service rules state that the Act applies to "adversary adjudications" conducted by the Postal Service, and defines these as, "[A]djudications under 5 U.S.C. 554 in which the position of the Postal Service is represented by an attorney or other representative who enters an appearance and participates in the proceeding . . .." 39 C.F.R. §960.3(a)(1). Also included are cases before the Postal Service Board of Contract Appeals under the Contract Disputes Act of 1978 (39 C.F.R. §960.3(a)(2)). In 39 C.F.R. §960.3(b), the Rules go on to state that the Postal Service may designate other proceedings as covered and that, "[T]he failure to designate a proceeding as an adversary adjudication shall not preclude the filing of an application by a party who believes the proceeding is covered by the Act; whether the proceeding is covered will then be an issue for resolution in proceedings on the application."
The Postal Service rules pertaining to the EAJA do not mention Debt Collection Act cases, nor do the rules pertaining to the Debt Collection Act (39 C.F.R. Part 961) make any reference to the EAJA or to the requirements of the Administrative Procedure Act (APA). 5 U.S.C. §554 is part of the Administrative Procedure Act of 1946, 5 U.S.C. §551 et seq. Section 554 states that it applies to "every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing," with six listed exceptions not relevant here.
In Ardestani, the Supreme Court had to determine whether a deportation hearing conducted by the Immigration and Naturalization Service was within the scope of the EAJA. The Court articulated the issue as whether such a proceeding was an adversary adjudication "under section 554." 502 U.S. at 133. The Court then held that the term "adjudication under section 554" was "unambiguous in the context of the EAJA," i.e., that it means "subject to" or "governed by" section 554. 502 U.S. at 135. It is not enough that an agency proceeding might be conducted in a manner similar to the requirements of the APA. The Court stated:
"Section 554 does not merely describe a type of agency
proceeding; it also prescribes that certain procedures be
followed in the adjudications that fall within its scope. We
must assume that the EAJA's unqualified reference to a
specific statutory provision mandating specific procedural
protections is more than a general indication of the types of
proceedings that the EAJA was intended to cover." 502 U.S.
at 136.
The Court rejected Ms. Ardestani's argument that deportation proceedings fell "under section 554" because they are "required by statute to be determined on the record after opportunity for an agency hearing." The Court concluded that, even if a proceeding seems to fit that description, it is not "under section 554" if it is "not governed by the procedural provisions established in the remainder of that section." 502 U.S. at 135-36. 5 U.S.C. §554(c)(2) states that hearings and decisions will be "in accordance with sections 556 and 557 of this title."
One of the specific procedural requirements of the Administrative Procedure Act is that a hearing be conducted either by "the agency," or by "administrative law judges appointed under section 3105 of this title." 5 U.S.C. §556(b). Another requirement is that there be an opportunity to obtain review of an administrative law judge's initial decision by the agency. 5 U.S.C. §557. Debt Collection Act procedures do not include either of these requirements. Both the statute itself and the implementing Postal Service regulation provide that persons other than administrative law judges may serve as a Debt Collection Act Hearing Official.2 The statute and the implementing regulation also provide that the Hearing Official issues a final decision. There is no provision for further review by the agency, other than a request to the Hearing Official for reconsideration.3
In Ardestani, the Supreme Court also noted that Congress had twice amended the EAJA (5 U.S.C. §504(b)(1)(C)), to specifically include proceedings under the Contract Disputes Act of 1978 and the Program Fraud Civil Remedies Act of 1986. The Court concluded that because waivers of sovereign immunity must be strictly construed, and because deportation proceedings were not "under section 554" within the plain meaning of that term, it was "the province of Congress, not this court," to bring such proceedings within the scope of the EAJA, as Congress had done with those other proceedings. 502 U.S. at 137-38. This rationale applies as well to Debt Collection Act proceedings.
Because the EAJA is not applicable to Debt Collection Act proceedings, Petitioner's application is denied.
Bruce R. Houston Chief Administrative Law Judge
2 5 U.S.C. §5514(a)(2); 39 C.F.R. §961.3(c).
3 5 U.S.C. §5514(a)(2); 39 C.F.R. §961.9.