September 19, 2005

In the Matter of the Petition by

 

LESTER VINCENTI 

Post Office Box 9603

Elizabeth, NJ 07202-0603

 

Determination to Terminate Post Office Box Service for Post Office Box 9603, Elizabeth, NJ  07202-0603

P.S. Docket No. POB 04-3

 

APPEARANCE FOR PETITIONER:

Lester Vincenti

P. O. Box 9603

Elizabeth, NJ  07202-0603

 

APPEARANCE FOR RESPONDENT:

Stuart James, Esq.

New York Metro Law Office

United States Postal Service

380 West 33rd Street, Room 4516

New York, NY  10199-9003

 

POSTAL SERVICE DECISION ON MOTION FOR RECONSIDERATION

 

            Petitioner, Lester Vincenti, has filed a Motion For Reconsideration (hereinafter “Motion”) of a Postal Service Decision dated July 22, 2005, denying his application for Equal Access to Justice Act (EAJA) fees following the settlement and dismissal of his post office box case.[1]  Petitioner argues that his EAJA application was not fairly considered by the presiding Administrative Law Judge or the Judicial Officer, and that he was not given an opportunity to present evidence to support his claim at an oral hearing.  Petitioner requests that the Judicial Officer schedule an “in-person plenary hearing” in Newark, NJ no later than October 15, 2005, for the purpose of hearing argument and taking testimony on the issues raised in his Motion  as well as on the alleged improprieties he believes occurred during the processing of his case.

            Postal Service regulations do not provide for reconsideration of the Judicial Officer’s final decision on an EAJA claim.[2]  Nevertheless, Petitioner’s motion has been considered.  However, the record does not establish that Petitioner is entitled to recover the fees and expenses he is claiming.

            Petitioner was given a full and fair opportunity to present his case.  No statute[3] or regulation[4] requires an oral hearing on an EAJA claim, and Petitioner has

made no showing that there are disputed matters of fact pertinent to the issues properly presented in this proceeding.  Therefore an oral hearing was not necessary in order for the Administrative Law Judge and the Judicial Officer to fairly decide the issues properly raised in Petitioner’s application.[5]

            Petitioner has not shown any errors of fact or law in either the Initial Decision or Postal Service Decision nor has he shown that he was unfairly treated by the presiding Administrative Law Judge or the Judicial Officer.  Petitioner’s claim for EAJA fees was denied because he appeared pro se in the post office box proceeding underlying his EAJA application and, under 39 C.F.R. §960.6(a), “[a]ttorney fees may not be recovered by parties appearing pro se in postal proceedings.”  In addition, the post office box case was settled and the record does not establish that Petitioner was a prevailing party or that the position taken by the Postal Service in the post office box case was not substantially justified.

Accordingly, Petitioner is not entitled to recover any Equal Access to Justice Act fees and no useful purpose would be served by holding an “in-person plenary hearing” on the issues properly presented in this proceeding.  Petitioner’s motion for reconsideration is denied.

                                                                                    James A. Cohen

                                                                                    Judicial Officer


[1] Under 39 C.F.R. Part 958, a customer may contest the denial of post office box or caller service and a customer may appeal a determination to terminate such service.  Petitioner filed an appeal from the termination of his post office box service under this Part, and while the matter was pending before an Administrative Law Judge, the parties agreed that Petitioner would update his post office box application (PS Form 1093) and that service to his box would be restored.  See Petitioner’s letters, dated Sept. 23 and Oct. 4, 2004, January 3, 2005, and Dismissal, dated Jan. 18, 2005. 

[2] See 39 C.F.R. Part 960; see also 5 U.S.C. §504(a)(3) (stating that “[t]he decision of the agency on the application for fees and other expenses shall be the final administrative decision under this section”).

[3] Petitioner refers to the Administrative Procedure Act to support his contention that he is entitled to an oral hearing.  However, the Supreme Court has held that the term “hearing” as used in the Administrative Procedure Act, 5 U.S.C. §551 et al., “does not necessarily embrace either the right to present evidence orally and to cross-examine opposing witnesses, or the right to present oral argument to the agency’s decision-maker.”  United States v. Florida East Coast Railway Co., 410 U.S. 224, 240 (1973).  See also Texas v. United States, 866 F.2d 1546, 1555 (5th Cir. 1989) (finding that a “paper record” satisfies the requirement for a hearing under the Administrative Procedure Act) and Grossmuller v. Int’l Union, UAW, Local 813, 715 F.2d 853, 858 (3rd Cir. 1983) (stating that a “decision-maker need not hear oral testimony; a written record will suffice”).  In addition, the Equal Access to Justice Act does not provide for an oral hearing, see 5 U.S.C. §504, and the Supreme Court has held that a request for attorneys’ fees should not result in a second major litigation, Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).

[4] See 39 C.F.R. §960.18(a), which provides that “[o]rdinarily, the determination of an award will be made on the basis of the written record.”

[5] Under 39 C.F.R. §960.18(a), an oral hearing will held only when necessary for a “full and fair resolution of the issues arising from the application.”