July 16, 2001 In the Matter of the Petition by MARK A. BRUMBALOW 2632 Abbey Ridge Road, SW at Conyers, GA 30094-3460 P.S. Docket No. DCA 01-210 APPEARANCE FOR PETITIONER: Charles Scialla 453 Preakness Avenue, #5 Paterson, NJ 07502-1121 APPEARANCE FOR RESPONDENT: Cynthia Johnson Labor Relations Specialist United States Postal Service 3900 Crown Road, Room 255 Atlanta, GA 30304-9351
DECISION ON MOTION TO DISMISS
Petitioner, Mark A. Brumbalow, filed a Petition for hearing after receiving a Notice of Involuntary Administrative Salary Offsets from the Manager of Post Office Operations for the Atlanta District. This Notice stated the Postal Service's intention to withhold $982.61 from Petitioner's salary to recover for a shortage in an account for which Petitioner was responsible.
Respondent, the United States Postal Service, filed a motion to dismiss on the basis that the Petition was untimely. Petitioner replied, admitting that the Petition was late but arguing that the late filing should be excused. The following findings of fact are based on all the information submitted by the parties.
FINDINGS OF FACT
1. On March 2, 2001, Joseph E. Griggers, Manager of Post Office Operations, issued Petitioner a letter of demand for $982.61, based on a shortage in his individual clerk account while he was serving as the Officer-in-Charge at the Grayson Post Office. (Attachment to Petition).
2. On March 19, 2001, Petitioner replied in writing to Mr. Griggers, asking for reconsideration. (Attachment to Petition).
3. On April 17, 2001, Mr. Griggers issued the Notice of Involuntary Administrative Salary Offsets, which made reference to the request for reconsideration but found it without merit. The Notice followed the format prescribed in the Employee and Labor Relations Manual (ELM) and listed as enclosures a "Statement of Debtor's Rights and Responsibilities," and the "Rules of Procedure Governing Hearings under the Debt Collection Act." (Attachment to Petition and also to motion to dismiss).
4. Although neither of the two enclosures noted above is included in this case file, Petitioner has not claimed that the two enclosures were not attached to the Notice, or that they were not facsimiles of the samples set forth in the ELM. Petitioner received the Notice on April 19, 2001. (ELM, Exhibit 452.322; PS Form 3811, attached to motion).
5. Petitioner filed his Petition on June 19, 2001.
DECISION
The Debt Collection Act and Respondent’s implementing regulations require that a petition for a hearing be filed within 15 days after receipt of a Notice of Involuntary Administrative Salary Offsets. 5 U.S.C. §5514(a)(2); Employee and Labor Relations Manual §452.331; 39 C.F.R. §961.4. 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 evidence submitted by Respondent (Finding of Fact #4) shows that Petitioner received the Notice of Involuntary Administrative Salary Offsets on April 19, 2001. His Petition, therefore, is approximately 45 days late. In reply to the motion to dismiss, Petitioner acknowledges the lateness but argues that this should be excused because the Notice of Involuntary Administrative Salary Offsets was "not in conformance with the information required" and was "confusing."
Petitioner does not explain how the Notice was defective or confusing, and has submitted no declaration or other evidence to show that he was confused. I find nothing in the Notice that appears to be confusing or not in accordance with the format set out in the ELM. The Statement of Debtor's Rights and Responsibilities and the Rules of Procedure both clearly spell out the requirement for filing a petition within 15 days after receipt of the Notice of Involuntary Administrative Salary Offsets.
The Petition was filed late and Petitioner has not shown good cause for the delay. Accordingly, Respondent's motion is granted and the Petition is dismissed.
Bruce R. Houston Chief Administrative Law Judge