In the Matter of the Petition
by
GARY LISTER
302 W. 7th Street
at
P.S. Docket No. DCA 05-199
APPEARANCE FOR PETITIONER:
Charles Sciala
Scialla Associates, Inc.
APPEARANCE FOR RESPONDENT:
William L. Malfait
Labor Relations Representative
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, supported by a statement from his former representative, and other documents. The following findings of fact are based on all the material filed by the parties.
FINDINGS
OF FACT
1. On August 24, 2005, the former Officer-in-Charge of Petitioner’s post office issued Petitioner a letter of debt determination, stating that Petitioner owed the Postal Service $6,911.65 for relocation benefits to which he was not entitled. (Letter attached to Respondent’s motion).
2. On September 23, 2005, the current Officer-in-Charge issued Petitioner a Notice of Involuntary Administrative Salary Offsets, alleging the same debt. Included as an attachment was 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 these documents on September 23, 2005. (Notice attached to Respondent’s motion).
3. Between late August and mid-October, Petitioner and his local NAPS[1] representatives engaged in discussions with both the former and current OICs, in an attempt to resolve the alleged debt. These discussions continued after Petitioner received the Notice of Involuntary Administrative Salary Offsets. At some point Mr. Clark, the current OIC, agreed to discuss the matter with officials at the District Office. (Lister statement; Ewing statement).
4. On October 19, 2005, in an email message to one of Petitioner’s representatives, Mr. Clark stated, “. . . to follow up on phone conversations concerning the involuntary offset for relocation expenses for Gary Lister, I am denying your appeal . . ..” (Message attached to Ewing statement).
5.
Petitioner’s current representative filed the Petition on his behalf on
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).
The due date for a Petition in this case was October 8, 2005. Mr. Lister’s Petition was, therefore, twelve days late.
Twelve days is not an egregiously long time, and the totality of the circumstances here mitigate against holding that Petitioner has waived his right to a hearing. Clearly, an employee who has received a Notice of Involuntary Administrative Salary Offsets should heed the warning contained in the Statement of Debtor’s Rights and Responsibilities and file his Petition within fifteen days, even if he is continuing to pursue other avenues. Had Mr. Lister done so, this timeliness issue would have been avoided. However, Petitioner did not ignore either the letter of indebtedness or the Notice, but began promptly to contest the indebtedness and was working continuously with his local representatives to resolve the matter. Most persuasive is Petitioner’s argument that, based on Mr. Clark’s October 19 message, it was reasonable for him and his local representatives to believe that, until that date, the matter was still under consideration by the OIC. We conclude that the late filing should be excused and that it is more appropriate to resolve this case on its merits.
The Motion to Dismiss is denied. By December 9, 2005, Petitioner shall complete his Petition by filing a statement as to his basis for contesting the alleged debt, along with any supporting documents and a list of witnesses that he would call at a hearing. Fifteen days from receipt of the completed Petition, Respondent shall file an Answer addressing the merits of the case.
Bruce R. Houston
Chief Administrative Law Judge