In the Matter of the Petition
by
D. STEVEN TRENT
3221 Benefit Road
at
P.S. Docket No. DCA
04-146
APPEARANCE FOR APPELLANT:
Charles Scialla
APPEARANCE FOR RESPONDENT:
John W. Fry, II
Manager, Labor Relations
DECISION ON MOTION TO DISMISS
Respondent filed a Motion to Dismiss, arguing that the Petition was not filed within fifteen (15) days of Petitioner’s receipt of a Notice of Involuntary Administrative Salary Offsets.
Petitioner filed his opposition to the motion and, in response to an Order requesting further information, an additional statement from Petitioner’s representative. The following findings of fact are based on all the material filed by the parties.
FINDINGS
OF FACT
1. Petitioner, D. Steven Trent, was issued a letter by his postmaster on September 15, 2004, stating the Postal Service’s intention to begin collecting a debt of $36,624.09 from Petitioner’s salary by withholding $178 per pay period. The letter referenced a March 2, 2004 letter as having previously notified Petitioner of this debt.
2. The September 15 letter was not titled, “Notice of Involuntary Administrative Salary Offsets,” although it followed the prescribed format for that Notice, and included as an attachment a Statement of Debtor’s Rights and Responsibilities. Those “Rights” include the right to file a Petition for Hearing under the Debt Collection Act within fifteen days of receipt of the Notice. Petitioner received this letter on or about September 17, 2004.
3. On September 20, 2004, Petitioner, through a representative, wrote to the postmaster, asking for reconsideration and stating some supporting arguments.
4. On October 1, 2004, the postmaster denied the request for reconsideration, also stating that the request was untimely.
5. Petitioner’s current representative filed the Petition on Mr. Trent’s behalf on October 13, 2004.
6. In response to an Order giving Petitioner the opportunity to reply to the motion to dismiss, Petitioner’s representative states that Petitioner acted on the representative’s advice in not treating the September 15 letter as a Notice of Involuntary Administrative Salary Offsets. He argues that Petitioner acted in good conscience and should not be denied his right to a hearing.
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 the right to a hearing, and Respondent authorized to implement the proposed offset from the employee’s pay, 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).
A combination of factors mitigate against holding that Petitioner has waived his right to a hearing. Although the September 15, 2004 letter did not announce that it was a Notice of Involuntary Administrative Salary Offsets, it was sufficient to start the clock running on the time to file a Petition. However, this Petitioner was acting on the advice of a representative experienced in these matters, and whether or not the representative’s advice to not treat the letter as a Notice was sound, one must conclude that Petitioner likely was confused about what action he was required to take. Also, Petitioner did not ignore the letter, but promptly, via his original representative’s September 20, 2004 letter, demonstrated his intent to contest the alleged debt. We conclude that the totality of the circumstances here make it more appropriate to resolve this case on its merits.
The Motion to Dismiss is denied. Respondent shall file an Answer within fifteen days of receipt of this Order.
Bruce R. Houston
Chief Administrative Law Judge