In the matter of the Petition by 	)   August 2, 1999
					)
RUSSELL BENNETT				)
6735 Yellowstone Blvd., Apt. 3C 	)
					)
	at 				)
					)
Flushing, NY  11375-2602		)   P. S. Docket No. DCA 99-281


APPEARANCE FOR PETITIONER:		Jon Buckley, Esq.
					300 Eastern Parkway
					Farmingdale,  NY  11735-2714

APPEARANCE FOR RESPONDENT:		Helen Moore Kondek
					Labor Relations Specialist
					United States Postal Service
					142-02 20th Avenue, Room 202
					Flushing, NY  11351-9401

Petitioner, Russell Bennett, filed a Petition after receiving a Notice of Involuntary Administrative Salary Offsets, dated May 12, 1999. The Notice advised Petitioner of the Postal Service's intent to withhold $129.31 from his salary to recover a shortage discovered in his account on or about June 10, 1998.

As part of its Answer, Respondent, United States Postal Service, requested that the Petition be dismissed as untimely, contending that Petitioner had failed to file his Petition within 15 days of receiving the Notice of Involuntary Administrative Salary Offsets. That request is being treated as a motion to dismiss the Petition.

The following findings of fact are based on documents submitted with the Petition and Answer.

On or about June 15, 1998, Petitioner received a Letter of Demand, indicating Respondent's intention to collect $129.31 from Petitioner because of a shortage in his credit. The letter cited the National Agreement, which provided that an employee would be strictly accountable for shortages in fixed credits, unless the employee exercised reasonable care in the performance of his or her duties. (Answer, Exh. 1A, 4).

A Notice of Involuntary Administrative Salary Offsets was issued to Petitioner on or about May 12, 1999. Petitioner received the Notice on May 14, 1999.⁽¹⁾ The Notice stated that if Petitioner disagreed with the determination with respect to the alleged debt, he could take actions detailed in the "enclosed Statement of Debtor's Rights and Responsibilities." The copy of the Notice filed with the Answer did not contain a copy of the Statement of Debtor's Rights and Responsibilities. (Answer, Exh. 5A, 5B).

The Petition in this matter was received by the Recorder on June 16, 1999. It was dated June 2, 1999, and was postmarked on June 7, 1999, in New Hyde Park, NY. In his Petition, Petitioner stated, among other things, that he would testify that he had never been advised by management of his rights under the Debt Collection Act.

Under §§452.322 and 462.32 of the Employee and Labor Relations Manual (ELM), a Notice of Involuntary Administrative Salary Offsets is required to inform the employee about procedural rights available to him or her, including the right to a hearing, and the appropriate method for exercising those rights.

Under the regulations at 39 C.F.R. §961.10, an employee may be deemed to have waived his or her right to a hearing if the employee "[f]iles a Petition for hearing after the end of the 15-day period allowed… for filing the Petition,⁽²⁾ and fails to demonstrate to the satisfaction of the Hearing Official good cause for the delay…." In this instance, Respondent argues that the Petition was untimely since it was received after June 1, 1999, the first business day following the 15^th day after Petitioner received the Notice of Involuntary Administrative Salary Offsets. In an unsigned response to Respondent's motion to dismiss, Petitioner's representative requested "that the Notice of Involuntary Administrative Salary Offsets be dismissed because it was not directed to Petitioner. Petition was filed accordingly and in the manner prescribed."

Although Respondent is correct in arguing that the Petition would ordinarily be considered untimely⁽³⁾ and be subject to dismissal, I conclude that this Petition should not be dismissed because Respondent has not demonstrated that, as required by the ELM, the Notice advised Petitioner of his right to a hearing and that he was required to file a Petition within 15 days in order to exercise that right. Petitioner raised the issue of notice in his Petition, and Respondent failed to address that argument in its Answer. Further, the copy of the Notice of Involuntary Administrative Salary Offsets sent to Petitioner and filed with the Answer does not contain the enclosure which would have described the right to a hearing (see ELM §452.322 and Exhibit 452.322 (pages 2, 3)). Accordingly, I cannot conclude that Petitioner was properly advised of his right to a hearing and, based on the existing record, I conclude that dismissal of the Petition as untimely is not justified.

Respondent's motion to dismiss the Petition is denied.

2. See 39 C.F.R. §961.4

3. Respondent argues that the filing date is the date on which the Petition was received (June 16, 1999) and that the Petition, therefore, was 15 days late. It has long been the practice of this Office that a Petition is considered "filed" when it is placed in the mail. Wendy Keller, P.S. Docket No. DCA-88 (March 8, 1991). Nevertheless, since the Petition was not mailed until June 7, 1999, it would still ordinarily be considered untimely.