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

INITIAL DECISION ON EQUAL ACCESS TO JUSTICE ACT APPLICATION

            The proceedings in this case were initiated on January 12, 2004, when Mr. Vincenti filed his Petition to challenge Respondent’s proposed termination of his post office box service.  Respondent’s action was based on allegations that Petitioner had provided false residence addresses on a number of occasions when updating information on his application for post office box service.

            After several months of pleadings, including Respondent’s Motion for Summary Judgment and Petitioner’s replies thereto, it was determined that summary judgment was not appropriate and a hearing was scheduled for August 31, 2004.  An Order dated May 6, 2004 had previously advised the parties that the only issue to be litigated, notwithstanding the many other issues Petitioner had raised in various letters, was whether Petitioner had provided false information as to his residence address on PS Forms 1093, Application for Post Office Box or Caller Service. 

            The hearing was later postponed to October 5, 2004, and was cancelled on September 30, 2004, when Respondent’s attorney informed this office that the parties had agreed on settlement and that he was drafting a settlement agreement.  On October 4, 2004, in accordance with his perception of their agreement, Petitioner mailed a newly completed PS Form 1093 to the Elizabeth, New Jersey Postmaster.  A disagreement then arose over whether Petitioner was also required to present two forms of personal identification to the post office.  Following a telephone conference on November 24, 2004, Respondent withdrew the requirement for Petitioner to submit the IDs and, because Petitioner’s Form 1093 could not be located, Respondent’s attorney asked that Petitioner send a copy of the form to him and stated that he would promptly give it to the Elizabeth Post Office so this matter could be concluded.  Petitioner did so and also filed a copy with this office.  Respondent’s attorney reported that the Form 1093 had been received.  On January 18, 2005, the case was dismissed, stating that the issues raised by the Petition had been resolved and that there was no longer an action pending to terminate Petitioner’s post office box service.

            On February 11, 2005, Petitioner filed an application for fees and expenses under the Equal Access to Justice Act, 5 U.S.C. §504.  Respondent filed a reply, opposing the application, and both parties subsequenetly responded to an issue raised by the court.

            The Equal Access to Justice Act (EAJA), implemented by the Postal Service in 39 C.F.R. Part 960, provides for award of attorney fees and other expenses to a prevailing party in administrative proceedings before the Postal Service, if the applicant meets certain eligibility requirements, unless the Postal Service's position in the action was "substantially justified," or unless special circumstances exist that would make an award of fees unjust.  5 U.S.C. §504(a)(1), 39 C.F.R. §960.1 and §960.5(a). 

            Petitioner requests $2,775.94.  He itemizes his time spent @ $50.00 per hour, for a total of $2,612.50, and lists an additional $163.44 in expenses, mostly for certified mailings and faxes.

            Petitioner argues that, although the matter was settled short of a decision being issued in his favor, he is a “prevailing party,” because his box service was not terminated and because the positions and actions taken by Postal Service officials and representatives were unreasonable and unjustified throughout the proceeding.

            Respondent argues that the Postal Service rule in 39 C.F.R. §960.6(a), which prohibits recovery of attorney fees by a pro se litigant bars Petitioner’s claim.  Respondent also argues that Petitioner was not a “prevailing party,” within the meaning of the statute, and also that, even if he was, Respondent’s position was “substantially justified.”  Finally, Respondent argues that Petitioner’s request should be denied under 39 C.F.R. §960.5(b), because Petitioner “unreasonably protracted” this proceeding.[1] 

            39 C.F.R. §960.6(a) states, in pertinent part: “Attorney fees may not be recovered by parties appearing pro se in postal proceedings.”  Petitioner represented himself throughout this proceeding.  Although Petitioner has not labeled the $50 per hour fees he is claiming as “attorney fees,” there is no other basis for a litigant to recover an hourly fee for his own time spent on the case.  The Postal Service rule quoted above is consistent with Federal case law on EAJA fees.  Hexamer v. Foreness, 997 F.2d 93 (5th Cir. 1993); Demarest v. Manspeaker, 948 F.2d 655 (10th Cir. 1991); Sommer v. Sullivan, 898 F.2d 895 (2d Cir. 1990); Naekel v. Department of Transportation, 845 F.2d 976 (Fed. Cir. 1988); Merrell V. Block, 809 F.2d 639 (9th Cir. 1987); Crooker v. EPA, 763 F.2d 16 (1st Cir. 1985).  See also, Kay v. Ehrler, 499 U.S. 432 (1991).

            Accordingly, Petitioner is not entitled to recover fees for his time spent working on this case.  This leaves the matter of Petitioner’s claim for $163.44 in expenses.  Assuming that a pro se applicant could recover these expenses in some circumstances, Respondent’s argument that Petitioner is not a “prevailing party” carries the day in this case.

            This case was resolved by mutual agreement when Petitioner finally submitted a new PS Form 1093 which accurately reflected his residence address.  The case was then dismissed, as noted above.  There was no judgment issued in Petitioner’s favor and no order directing Respondent to grant any relief that Petitioner was seeking.  Under such circumstances, Petitioner was not a prevailing party.  Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001); Brickwood Contractors, Inc. v. United States, 288 F.3d 1371 (Fed. Cir. 2002).    

            Having concluded that Petitioner was not a prevailing party, it is not necessary to address Respondent’s other arguments. 

            For the reasons stated above, Petitioner’s application is denied.  

                                                                        Bruce R. Houston
                                                                        Chief Administrative Law Judge

[1] This provision is also found in the statute, 5 U.S.C. §504(a)(3).