Appeal of NATHAN RIVALDO - P. S. Docket No. DCA-158

In the Matter of the Petition by	)  March 23, 1993
					)
NATHAN RIVALDO				)
132 NE Sagamore Terrace			)
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	at				)
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Port St. Lucie, FL  34983-1263		)  P. S. Docket No. DCA-158

APPEARANCE FOR PETITIONER:		Charles Scialla
					Scialla Associates, Inc.
					453 Preakness Ave., Unit 5
					Patterson, NJ  07502-1121

APPEARANCE FOR RESPODNENT:		Robert P. Sindermann, Jr., Esq.
					Appellate Division
					Law Department
					United States Postal Service
					Washington, DC  20260-1132

FINAL DECISION ON RESPONDENT'S MOTION TO
DISMISS UNDER THE DEBT COLLECTION ACT OF 1982

Respondent has filed a Motion to Dismiss the Petition in this matter. The motion states that Petitioner is no longer a Postal Service employee and that the Notice of Involuntary Administrative Salary Offsets sent to Petitioner has been withdrawn. A document attached to Respondent's motion verifies that the notice of offsets has been withdrawn.

Petitioner opposes the Motion to Dismiss on various grounds: (1) that Respondent misrepresented the reason for its failure to file a timely response to the petition; (2) that Petitioner would not have retired had he known the notice of offsets would be withdrawn; (3) that the Administrative Judge exceeded his authority in granting Respondent a time extension to respond to the petition; (4) that Petitioner is being deprived of a hearing; (5) that the Administrative Judge has predetermined the outcome of this matter. In regard to (4) above Petitioner has submitted documents which establish that Respondent intends to offset his retirement funds to satisfy the amount ($1,450) previously sought by the Notice of Involuntary Administrative Salary Offsets.

In regard to arguments (1) and (2) the record does not support a conclusion of misrepresentation by counsel for Respondent, and as discussed below Petitioner will be entitled to an administrative hearing if Respondent pursues its claim, thus his retirement does not deprive him of an opportunity to defend his position. Arguments (3) and (5) do not address the jurisdictional issue at hand. In addition Petitioner has shown no prejudice as the result of the Administrative Judge granting a time extension for Respondent to file a response to the petition. Further, the Administrative Judge has not predetermined the outcome of this matter and as discussed below the matter will not be decided at this time.

Turning to argument (4) that Petitioner is being deprived of a hearing, the Postal Service has adopted regulations for two sets of offset actions -- (a) Debt Collection Act actions against present employees (39 C.F.R. §961), and (b) Administrative Offset actions against former employees (39 C.F.R. §966). An affected individual is entitled to an administrative procedure depending on his or her employment status under one of the two distinct offset actions¹

In the matter now pending the Notice of Involuntary Administrative Salary Offsets Against Petitioner under the Debt Collection Act has been withdrawn. Therefore, since no claim exists against Petitioner under the Debt Collection Act this proceeding must be dismissed. See E. A. Kidd, P. S. Docket No. DCA-150 (Dismissal Feb. 5, 1993).

However, should Respondent attempt to seek attachment of and offset from Petitioner's Civil Service annuity to satisfy the alleged debt Respondent must follow its regulations in regard to administrative offsets. Thereafter Petitioner would be entitled to challenge any determination to offset as provided in 39 C.F.R. §966. See Joe Achans, P. S. Docket No. DCA-160 (Dismissal March 8, 1993).

This matter is dismissed.

					James  D. Finn, Jr.
					Administrative Judge

¹ Establishing an administrative procedure for offset actions against former employees is consistent with Office of Personnel Management regulations which prescribe procedures to be followed prior to offsetting debts owed by retirees from the Civil Service Retirement Fund. See 5 C.F.R. §831.1801 - .1805.

In the Matter of the Petition by	)     April 26, 1993
					)
NATHAN RIVALDO				)
132 NE Sagamore Terrace			)
					)
					)
	at				)
					)
					)
Port St. Lucie, FL  34983-1263		)     P. S. Docket No. DCA-158

O R D E R

Respondent has filed a "Motion for Reconsideration" of the March 30, 1993 Final Decision in this matter which dismissed Petitioner's complaint. The motion actually seeks a clarification of that portion of the Final Decision which refers to proceedings unde 39 C.F.R. §966. Specifically, Respondent requests that the Final Decision be amended or supplemented to clarify the prerequisites see e.g. §§966.3(h), 966.4(a), for invoking the procedures of 39 C.F.R. §966.

The March 30, 1993 Final Decision clearly advises of the alternative administrative procedures available to an individual under one of the two district offset actions. Rules of Practice in proceedings under the Debt Collection Act are clearly set forth in 39 C.F.R. §961. Rules of Practice in proceedings relative to administrative offsets are

clearly set forth in 39 C.F.R. §966. Modification or clarification is unnecessary. The Motion for Reconsideration is denied.

					James D. Finn, Jr.
					Administrative Judge