Febuary 5, 2003
In the Matter of the Petition by
MARY J. DOWNES
9 Brevoort Drive, Apt. 1C
at
Pomona, NY 10970-3071
P.S. Docket No. AO 02-210
APPEARANCE FOR PETITIONER:
Mary J. Downes
9 Brevoort Drive, Apt. 1C
Pomona, NY 10970-3071
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
POSTAL SERVICE DECISION
Petitioner, Mary J. Downes, has filed an appeal from an Initial Decision in which an Administrative Law Judge concluded that Petitioner is indebted to the United States Postal Service (Respondent) in the amount of $43,557, less any amount already withheld from Petitioner's annuity.
BACKGROUND
On January 29, 2000, Petitioner was apprehended by Postal Inspectors after leaving her duty station at the Suffern, NY Post Office with a registered article containing $12,856.[1] After being advised of her constitutional rights, Petitioner admitted that she had previously stolen three other registered articles containing a total of $43,557.[2] Thereafter, criminal charges were filed against Petitioner in the United States District Court for the Southern District of New York.[3] In the district court proceeding, Petitioner pleaded guilty to one count of mail theft in connection with the January 29, 2000 theft and on June 13, 2001, Petitioner was fined $100 and sentenced to three months in-home confinement followed by two years probation.[4]
Petitioner retired from the Postal Service effective February 1, 2000,[5] and on February 9, 2000, the Suffern, NY Postmaster initiated action to obtain repayment of the $43,557 Petitioner confessed to having stolen.[6] On April 16, 2001, the Office of Personnel Management (OPM) notified Petitioner that it intended to deduct $45,510.34 from her retirement annuity over a 64-month period to satisfy the debt
owed to Respondent.[7] Following denial of Petitioner’s request for reconsideration of
the proposed deduction,[8] OPM began withholding 50 percent of Petitioner's monthly annuity.[9] Petitioner appealed the offset to this office.
In the Initial Decision, the presiding Administrative Law Judge held that Petitioner was responsible for the loss of the registered articles and therefore indebted to the Postal Service. The Administrative Law Judge also concluded that due to the circumstances of the indebtedness, it was not appropriate to reduce the amount of the monthly withholding. However, the Administrative Law Judge determined that Respondent was only entitled to repayment of $43,557, the total amount of the loss, less any amount already withheld,[10] and not the higher amount of $45,510.34 asserted in the April 16, 2001 OPM notice.
On appeal, Petitioner repeats the arguments she made before the Administrative Law Judge which he found to be unpersuasive - she continues to deny taking the money missing from the Suffern, NY Post Office,[11] asserts that the district court judgment relieves her from any responsibility for repayment of the missing money and contests the proposed repayment schedule. In addition, Petitioner contends for the first time that the assignment of her case to an Administrative Law Judge was improper. Petitioner also contends that she was not given enough time to settle this matter and asks that the Judicial Officer attempt to settle this matter for her.
In a handwritten confession prepared at the time she was apprehended, Petitioner admitted she stole the $43,557 which Respondent is seeking to collect from her annuity in this proceeding.[12] Although Petitioner was provided a full opportunity to present evidence before the Administrative Law Judge, she did not present any persuasive evidence that she did not take the money being sought in this proceeding. While she continues to argue otherwise, her confession as well as the additional evidence of record[13] supports the Administrative Law Judge's conclusion that Petitioner took $43,557 from registered pouches dispatched from the Suffern, NY Post Office.
Petitioner's assertion that she should be relieved of the indebtedness based on the district court proceeding is also without merit. The action in the district court was a criminal proceeding in which Petitioner was only charged with the theft of the $12,856 recovered by the Postal Inspectors at the time she was apprehended. The debt which is the subject of this proceeding is based on the three prior thefts and therefore unrelated to the criminal prosecution. However, even if the prior thefts had been the subject of the criminal prosecution, the Postal Service would not be precluded from seeking restitution of any unrecovered funds in an administrative offset proceeding.[14] Therefore, the Postal Service may properly seek reimbursement for its monetary loss in this proceeding.
While the repayment schedule proposed by OPM requires a sizable deduction from Petitioner’s monthly annuity, Petitioner has not shown that the schedule should be revised to permit lower monthly payments over a longer period of time. The proposed schedule is in accordance with the government installment withholding regulations[15] and already provides for a repayment period of more than five years. In addition, Petitioner has had the benefit of having the deductions from her annuity stayed during the pendency of this proceeding. Therefore, the repayment schedule will not be revised to provide for a reduction of the rate of withholding from Petitioner’s annuity. However, Respondent may collect only $43,557 from Petitioner’s retirement annuity, not the $45,510.34 claimed in the OPM notice.
Neither of Petitioner’s additional arguments serves as a basis for reversing the Initial Decision. The Chief Administrative Law Judge is qualified to hear cases under the Administrative Procedure Act and therefore, under the Rules of Practice,[16] may properly serve as the Hearing Official in this proceeding. Finally, although the parties were encouraged to consider the possibility of settlement both at the initial[17] and appellate[18] stages of this proceeding, they were not able to arrive at a mutually satisfactory resolution of the issues presented.[19]
CONCLUSION
Petitioner's contentions on appeal have been considered and no error of fact or law has been found. Accordingly, Petitioner’s appeal is denied and OPM may resume collection of the remaining debt in accordance with this decision.
James A. Cohen
Judicial Officer
[1] Answer, Exhibit (Ex.) 1; Declaration of Postal Inspector G.J. DeQuattro (DeQuattro Decl.) ¶¶5-7.
[2] Answer, Exs. 4, 7, 8 and 9; DeQuattro Decl. ¶8.
[3] Answer, Ex. 10.
[4] Id.
[5] Answer, Ex. 6
[6] Answer, Ex. 12.
[7] Petitioner’s May 27, 2002 Supplement to the Record (Petitioner’s Supp.), attached Office of Personnel Management (OPM) Letter, dated April 16, 2001. There is no explanation in the record for the difference between the OPM figure of $45,510.34 and the $43,557 debt asserted by Respondent in this proceeding.
[8] See Petitioner’s Supp., attached Letter from Petitioner to Disbursing Officer, dated May 7, 2001, and Petitioner’s Supp., attached Letter from G. J. Laurent to Petitioner, dated July 2, 2001.
[9] Petitioner’s Supp., attached OPM Letter, dated April 16, 2001. After the Petition was filed, the withholdings were suspended.
[10] The record does not indicate that the amount withheld prior to the initiation of this proceeding was refunded to Petitioner.
[11] During the pendency of her appeal, Petitioner asked that the Postal Service investigate embezzlement allegations against another former Postal Service employee who Petitioner alleges was responsible for the losses at the Suffern, NY Post Office. See Order and Memorandum of Telephone Conference, dated Dec. 10, 2002. Although Postal Service Counsel declined to initiate a further investigation, Petitioner was informed that she could present any additional information she might have to substantiate her claim and “the Judicial Officer would issue a ruling on whether such information would be considered at this stage of the proceeding.” Id. Petitioner did not file any additional information with the Judicial Officer.
[12] Answer, Ex. 4.
[13] See Answer, Ex. 8 (Form 3854 signed by M. J. Downes as Dispatching Clerk) and Ex. 9 (Statement of L. Barron and Form 3854 signed by M. J. Downes as Dispatching Clerk); DeQuattro Decl. ¶¶10-15, 18 and 19.
[14] Cf. Hudson v. United States, 522 U.S. 93 (1997) (holding that prior criminal prosecutions do not bar the imposition of civil assessments and penalties).
[15] See 5 C.F.R. §845.407.
[16] See 39 C.F.R. §966.3(e) (providing that “an Administrative Law Judge qualified to hear cases under the Administrative Procedure Act” is one of the persons the Judicial Officer may appoint as a Hearing Officer under 39 C.F.R. Part 966). See also 39 C.F.R. §§966.8 and 966.10.
[18] See Orders and Memorandums of Telephone Conferences, dated Nov. 4, 2002 and Dec. 10, 2002. Although the parties were encouraged to consider the possibility of settlement while this matter was on appeal to the Judicial Officer, settlement is a voluntary process between the parties and the Judicial Officer has no authority to require the parties to enter into a settlement agreement.