November 22, 2004

In the Matter of the Petition by

PAUL D. TESTA

Post Office Box 1258

at

Molalla, OR 97038-1258

P.S. Docket No. DCA 04-116

APPEARANCE FOR PETITIONER:

Paul Testa

P.O. Box 1258

Molalla, OR 97038-1258

APPEARANCE FOR RESPONDENT:

Peter Henry, Esq.

Employment and Labor Law

United States Postal Service

475 L'Enfant Plaza SW, Room 6414

Washington, DC 20260-1150

FINAL DECISION ON MOTION FOR RECONSIDERATION

UNDER THE DEBT COLLECTION ACT OF 1982

Petitioner, Paul D. Testa, filed a timely Motion for Reconsideration, under 39 C.F.R. §961.9, of the October 1, 2004 Decision on Motion to Dismiss in this case. Respondent sought to collect $3,034.13 from Petitioner's salary to recover an erroneous salary payment. The Decision held that the procedures set out in the Postal Service Employee and Labor Relations Manual (ELM), by which the Postal Service implemented the Debt Collection Act of 1982, 5 U.S.C. §5514, did not apply to the type of debt alleged in this case and that Petitioner was, therefore, not entitled to a Debt Collection Act hearing. Respondent’s Motion to Dismiss was granted. Respondent has filed a reply in opposition to the Motion for Reconsideration.

Petitioner argues three points in his motion. First, he cites the Notice of Docketing of Petition that was issued by our Recorder’s Office on the day the Petition was received. That Notice includes a standard sentence, “Pursuant to §5 of the Debt Collection Act, initiation of this proceeding stays further collection action.” Petitioner contends that Respondent violated an order of the Judicial Officer Department by making a deduction from his salary after his Petition was docketed and before the Decision was issued. This issue is rendered moot by the October 1, 2004 Decision. Once it was determined that the Debt Collection Act did not apply to this case, this issue provides Petitioner no basis for relief.

Next, Petitioner argues that the Decision was in error in assuming that Petitioner had received two letters, dated June 15, 2004 and July 23, 2004, from Postal Service financial officials. The Decision made no such assumption, but merely recited the actions taken by postal officials once they became aware of the erroneous payments that had been made to thousands of postal employees. Whether or not Petitioner actually received those two letters does not affect Respondent’s right to collect back an erroneous payment.

Finally, Petitioner argues that the change to the ELM, which implemented an earlier amendment to the Debt Collection Act, cannot be applicable to this case because the ELM change was not effective until July 22, 2004, more than a month after the payroll error occurred. There is no dispute that the ELM change was in effect before any involuntary collection action began. Petitioner cites no authority for the proposition that the change in procedure must precede the payroll error itself, and we know of none. See Robert I. Boda, P. S. Docket No. DCA 96-336 (October 15, 1996); Tom Martin, P. S. Docket No. DCA 95-319 (October 17, 1995). Further, we note that the ELM change adopted nearly verbatim an earlier amendment to the Debt Collection Act itself.

The Motion for Reconsideration is denied.

Bruce R. Houston

Chief Administrative Law Judge