February 9, 2006

In the Matter of the Petition by

DENNIS R. ESTERLINE

P.S. Docket No. AO 05-237

APPEARANCE FOR PETITIONER:

David Deakin

APPEARANCE FOR RESPONDENT:

Theresa Hensel

Labor Relations Specialist

United States Postal Service

DECISION ON MOTION TO DISMISS

On July 5, 2005, Mr. Esterline, a retired Postal Service employee, filed a Petition for Hearing, challenging a different debt than is the subject of this case. That case was docketed as AO 05-125. During a telephone conference with the parties on August 29, 2005, Respondent’s representative noted that there was an additional debt of more than $9,000 being asserted against Petitioner, but that no formal notice of that debt had yet been issued. The parties agreed that the two cases should be litigated together and that the hearing scheduled for September 29, 2005, would be postponed, if necessary.

Another telephone conference was held on September 20, 2005. Respondent’s representative reported that Petitioner had been sent a notice of the second alleged indebtedness in the amount of $9,059.28. Petitioner’s representative was not aware that the new notice had been received, but stated that it was Petitioner’s intent to contest both debts and that he would file a new Petition when the new notice was received. The hearing scheduled for AO 05-125 was cancelled and further action was suspended to await information from the parties on the second notice.

Another telephone conference was held on October 21, 2005. Respondent’s representative reported that Petitioner had made no response to the second notice. Petitioner’s representative stated that he did not know whether Petitioner had received the notice. Respondent’s representative raised an issue over the timeliness of any challenge to the second debt. The parties were advised that our Rules of Procedure, 39 C.F.R. §966.4, state that a former employee may file a Petition for Hearing if he has received a formal notice of the debt and then asked for, and received, reconsideration from his former postmaster or installation head. The Rules give him 30 days from the date of denial of reconsideration to file his Petition. The Rules do not prescribe a time limit for requesting reconsideration. The parties were directed to file a status report, either jointly or separately, by November 4, 2005.

Respondent’s November 3, 2005 status report stated that Petitioner had received the second notice and had requested reconsideration of the alleged debt on October 25, 2005. No action had yet been taken on his request. An Order dated November 7, 2005 advised the parties that, if Petitioner’s request for reconsideration was denied and if he wished to contest the debt further, he must promptly file a new Petition. The Order further stated that, if a new Petition was received, we would docket a second case, consolidate the two cases, and initiate another telephone conference to discuss a timetable for further action. The parties were directed to file another status report if a new Petition had not been filed by December 1, 2005.

On December 19, 2005, Respondent filed a status report, stating that Petitioner’s request for reconsideration had been denied on November 3, 2005 and that a copy of the denial was faxed to Petitioner’s representative on November 21, 2005.

Another telephone conference was held on December 28, 2005. No Petition on the second debt had yet been filed but Petitioner’s representative stated that Petitioner wished to do so. Respondent’s representative raised the issue of timeliness, as more than thirty days had passed since denial of the request for reconsideration. Petitioner was directed to address that issue if he filed a new Petition. He was advised that he must either demonstrate that the Petition was not filed late, or if he conceded lateness he must demonstrate why the late filing should be excused.

Petitioner filed his new Petition, by fax, on December 28, 2005, and this new case, AO 05-237, was docketed. Respondent filed a Motion to Dismiss, arguing that the Petition was filed beyond the 30-day limit and that the late filing should not be excused.

DECISION

As noted above, the Rules of Procedure, 39 C.F.R. §966.4(b), state that a former employee must file a written Petition within thirty calendar days after receipt of the Postmaster/Installation Head’s written decision on reconsideration. In his Petition, Petitioner acknowledges that he received the reconsideration decision on November 5, 2005. The Petition, filed on December 28, 2005, was therefore, twenty-three days late.

The Rules of Procedure, 39 C.F.R. §966.12(a), state that a Hearing Official may determine that the former employee has waived his right to a hearing if the Petition is filed after the thirty-day period and the Petitioner fails to demonstrate good cause for the delay.

While the arguments Petitioner offers to excuse his delay in filing the second Petition do not fully explain the reason for the delay, the totality of circumstances here warrant allowing this second Petition to proceed. First, the Petition, although late, was not egregiously late. Second, throughout the series of telephone conferences, Petitioner‘s representative always expressed Petitioner’s intention to contest the second debt and Petitioner did act promptly in requesting reconsideration when he received formal notice of the debt. Finally, the fact that we are proceeding toward a hearing on the original alleged debt makes it appropriate to resolve the second debt on its merits as well.

The Motion to Dismiss is denied. By March 3, 2006, Respondent shall file an Answer addressing the merits of the debt alleged in AO 05-237. Also by March 3, 2006, Petitioner shall file a brief statement of the issues he intends to raise in defense to both AO 05-125 and AO 05-237. We will then hold another telephone conference to discuss further proceedings. The parties are also encouraged to explore settlement of both cases.

Bruce R. Houston

Chief Administrative Law Judge