July 25, 1994
In the Matter of the Petition by
HERMAN BOONE
P.O. Box 1526
at
New York, NY 10037-0906
P.S. Docket No. DCA 94-1
APPEARANCE FOR PETITIONER:
Bernard N. Brent
Johnny W. McQuilla
National Association of Postal Supervisors
P.O. Box 459
Bronx, NY 10451-0459
APPEARANCE FOR RESPONDENT:
Robert P. Sindermann, Jr., Esq.
United States Postal Service
Law Department
475 L'Enfant Plaza, S.W.
Washington, DC 20260-1114
OPINION ON MOTION TO DISMISS
Respondent has filed a motion to dismiss the petition in this matter on the grounds that the petition was untimely filed.
On or about September 14, 1993, Petitioner received a letter of demand seeking repayment of a $500.00 shortage that allegedly occurred at the Jerome Station on August 18, 1993. Included with the letter was a document entitled "Options Available to Employee" which provided Petitioner the right to request records in connection with the alleged debt and also provided a range of options that Petitioner could exercise -- e.g., pay in full, consent to an offset, or request reconsideration. Petitioner was required to exercise one of the options within 15 days of receipt of the letter of demand or within 15 days of receipt of any requested records, whichever was later.
On March 4, 1994, Petitioner acknowledged receipt of a Notice of Involuntary Administrative Salary Offsets ("Notice") under the Debt Collection Act dated February 3, 1994. An attachment to the Notice, "STATEMENT OF DEBTOR'S RIGHTS AND RESPONSIBILITIES," provided Petitioner the right to request records related to the alleged $500 debt and also provided Petitioner with a number of options. One of the options noted was filing a petition for a hearing under the Debt Collection Act. Petitioner was advised that such a petition had to be filed with the Recorder, Judicial Officer Department, on or before the fifteenth calendar day following receipt of the Notice. Immediately following the text advising of the procedures for filing a petition was a paragraph, in bold type, which read:
NOTE: WHILE YOU MAY REQUEST A HEARING AND PURSUE ONE OF THE OTHER AVAILABLE OPTIONS, YOUR HEARING PETITION MUST BE FILED WITHIN THE REQUIRED TIME PERIOD. IF QUESTIONS RELATING TO THIS DEBT ARE RESOLVED BEFORE THE HEARING IS HELD, YOUR PETITION MAY BE WITHDRAWN.
By letter dated March 10, 1994, Petitioner's representative requested records in connection with the Notice. In a letter dated May 11, 1994, and apparently in response to the March 10, 1994, request, Petitioner was advised that all available records had been furnished. The letter, from the Manager, Customer Service Operations, closed with a sentence reading, "My investigation redounds in Mr. Boone being fully responsible for the deposit for [August 18, 1993]."
The Recorder received the petition in this matter by facsimile transmission on May 24, 1994, which was 81 days after Petitioner acknowledged receipt of the Notice.
5 U.S.C. § 5514 provides, in part:
"A hearing ... shall be provided if the individual, on or before the fifteenth day following receipt of the notice ..., and in accordance with such procedures as the head of the agency may prescribe, files a petition requesting such a hearing."
The Postal Service regulations governing hearings under the Debt Collection Act require that a petition be filed with the Postal Service Recorder within 15 days of receipt of a Notice of Involuntary Administrative Salary Offsets. 39 C.F.R. § 961.4. The regulations also provide that an employee may be deemed to have waived his right to a hearing if the petition is filed after the 15-day period and the employee "fails to demonstrate to the satisfaction of the Hearing Official good cause for the delay." 39 C.F.R. § 961.10(a).
The Postal Service Employee and Labor Relations Manual (ELM) also provides that a petition must be filed within the 15-day period. Further, the ELM warns that the petition must be timely filed even if the employee simultaneously pursues other options. ELM § 452.331.
Respondent argues that the petition should be dismissed because the Recorder did not receive the petition within 15 days after Petitioner received the Notice. Respondent argues that Petitioner has offered no explanation for failing to file on time.
In response, Petitioner argues that its petition was timely filed. Petitioner argues that he requested reconsideration by letter dated March 25, 1994,[1] that he did not receive a response to his request for reconsideration until he received the May 11, 1994, letter from the Manager, Customer Service Operations, and that he filed his petition within 15 days of receipt of that letter. Petitioner also argues that the 15-day time limit did not begin to run until he received the documentation he requested, citing § 452.235 of the ELM.
The Notice received by Petitioner specifically notified him of the need to file a petition within 15 days of receipt if he wished to have a hearing. Petitioner was also specifically warned that the petition had to be timely filed to preserve his right to a hearing notwithstanding his decision to pursue other options in the meantime. The same warning is found in the ELM, as noted above.
In contrast to the procedures in connection with the letter of demand Petitioner received in September 1993, the running of the 15-day time period for filing a petition under the Debt Collection Act is not tolled by a request for documentation. Petitioner's reliance on ELM § 452.235 is incorrect, since that section relates to procedures prior to the issuance of a formal Notice of Involuntary Administrative Salary Offsets. Further, the fact that Petitioner may have requested reconsideration of the Notice (although the letter allegedly requesting reconsideration is not in the record), would not automatically toll the running of the statutory 15-day period.
Having considered the record, including the arguments of the parties, I conclude that the petition in this matter was untimely filed and that Petitioner has not demonstrated good cause for the delay. Accordingly, the petition must be dismissed.
Respondent's motion to dismiss the petition is granted.
David I. Brochstein
Administrative Judge