Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220
(412) 644-5754 (412) 644-5005 (FAX)
DATE: February 27, 2001
CASE NO: 2000-DCA-5
In the matter of
BRENT E. MOSS
Petitioner
v.
U.S. DEPARTMENT OF LABOR
Respondent
DECISION AND ORDER
This case arises under Section 5 of the Debt Collection Act of 1982, 5 U.S.C. §5514, (DCA), and the implementing regulations at 29 C.F.R. §20.74 et seq. The DCA authorizes agency heads to deduct amounts from an employee's pay to satisfy a debt owing to the United States. Respondent, the U.S. Department of Labor (DOL), Office of Workers' Compensation Programs (OWCP), determined that Petitioner's pay should be offset to satisfy a debt resulting from payments which were made to Petitioner pursuant to the Federal Employee's Compensation Act (FECA). Petitioner disputed the OWCP's determination to collect this debt through salary offset, and requested a hearing before the Office of Administrative Law Judges.
A hearing was held on Tuesday, December 12,2000 in Salt Lake City, Utah. Petitioner appeared at the hearing and was represented by counsel. At the hearing, Petitioner's Exhibits (PX) A - DD were admitted into evidence. Respondent, did not appear, but on October 2, 2000, submitted a Memorandum of Law for consideration. The Affidavit of the Chief of the Branch of Regulations, Policies, and Procedures for Federal Employee's Compensation, OWCP, Roberta Mosier (Aff. Mosier) was also submitted with Attachments (Att) A - M.
Procedural History and Evidence Submitted
Petitioner was employed as a toolmaker with the U.S. Department of the Air Forces when he was injured on November 6, 1985 in a car accident while in the course of his federal employment. Petitioner filed for benefits under the Federal Employees' Compensation Act (FECA) and received compensation for medical treatment and wage-loss due to his back and neck strain. (Aff. Mosier pg. 1,2) & (PX B).
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On April 27, 1987, OWCP informed Mr. Moss that pursuant to 5 U.S.C. §5514 and OWCP regulations, any monies he received as a result of a third party settlement from a responsible tortfeasor had to be used to reimburse OWCP for any FECA benefits already paid. (Att. C).
By letter dated January 31, 1990, OWCP noted that Moss had recovered $10,000 from a third party settlement relating to the November 6, 1985 car accident. Moss was sent a Statement of Recovery and informed that he needed to reimburse OWCP for FECA benefits totaling $5,277.77. This letter was signed by Yvonne Tender, Paralegal, under Tedrick A. Housh, Jr., Regional Solicitor, Office of the Solicitor, Kansas City, Missouri. (Aff. Mosier pg. 2) & (Att. D).
By letter dated September 29, 1995, OWCP issued a preliminary determination finding that Moss had received an overpayment of compensation in the amount of $5,277.77. The letter advised Mr. Moss of his right to request a pre-recoupment hearing with a representative of the Branch of Hearings and Review. (PX A).
A hearing was held on October 23, 1996 for review of overpayment of benefits under the Federal Employees Compensation Act (FECA) before a Hearing Representative. (PX B pg. 2). At the hearing Mr. Moss testified that he received a third party settlement on or about November 6, 1989 and that per directors of Yvonne and her secretary, he sent two cashiers checks to Yvonne's office. Mr. Moss also testified that both checks came from Clearfield State Bank which is now defunct and was taken over by First Security Bank, and that First Security Bank does not possess records of the checks. (PX B pg. 17).
In a decision dated January 3, 1997, the OWCP Hearing Representative vacated the preliminary determination of an overpayment under FECA. (PX C). The Hearing Representative explained that although the Office properly determined the amount of the government's credit and refund to prevent double recovery by the Petitioner, no overpayment existed because a debt resulting from a third party recovery is not an overpayment of compensation and not subject to waiver provisions of 5 U.S.C. 8129. Mr. Moss' debt to OWCP occurred as a result of the third party recovery, not an overpayment of compensation. By letter dated January 13, 1997, the Petitioner was advised that the case file was returned to the District Office for further review. (PX D).
On June 30, 1997, OWCP contacted Mr. Moss' employer, U.S. Air Force, to verify salary information for collection of the debt under the DCA. (Aff. Mosier pg. 3) & (Att. I). Mr. Moss' annual salary was reported as $40,300.00 with gross pay of ,544.80 every two weeks. (Aff. Mosier pg. 3).
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By letter dated December 22, 1997, the OWCP notified both Petitioner and his employer that the Petitioner had an unresolved debt and that the DCA empowered the OWCP to make deductions from the Petitioner's pay for reimbursement purposes. (Att. K). On January 26, 1998, OWCP informed Mr. Moss that $160.00 would be deducted from his pay every two weeks. This figure was later changed to $147.60, due to changes in Mr. Moss' salary. Mr. Moss was also informed that he could request a hearing by an Administrative Law Judge to dispute the Office's determination to utilize salary offset. The OWCP has since suspended the salary withholding, pending the outcome of this decision. (Aff. Mosier pg.4) & (Att. M, N).
At the December 12, 2000 hearing before the undersigned, Mr. Moss testified that after he received his settlement, he called Yvonne Tender, from the Office of the Solicitor, who requested that Mr. Moss send his settlement check to her office for her to copy for her records. The check was sent back to Mr. Moss and he deposited the check into his account. (TR 23). Mr. Moss also testified that shortly thereafter he used cash to purchase two cashier's checks payable to the U.S. Department of Labor from Clearfield State Bank and was told by Yvonne Tender's secretary to send the checks, totaling $5,277.77, to the Solicitors Office in Kansas. (TR 26). Mr. Moss stated that he sent the checks and then left a follow-up message with Yvonne Tender letting her know that he sent the checks. (TR 27). Mr. Moss did not hear back from Yvonne Tender and was not notified of any problem with this matter until 1996. (TR 27). A search of OWCP's records failed to find any documentation to support Mr. Moss' assertion that he paid this debt. (Aff. Mosier pg. 2) & (Att. F ).
Mr. Moss testified that on notice of the discrepancy he attempted to obtain copies of the cashier's checks from Clearfield State Bank, however, the bank was now defunct and now operating as First Security Bank which did not have those records. (TR 28). Mr. Moss received a letter from First Security Bank, dated October 30, 1996, which stated that First Security did not have records dating back to 1989-1990. (PX DD). Mr. Moss also testified that due to personal turmoil and various relocations he did not have any records regarding the cashier checks. (TR 29, 30).
Discussion, Findings of Fact and Conclusions of law
The DCA provides debtors with a right to a hearing prior to execution of salary offset concerning the existence or amount of the debt or the repayment schedule proposed by the agency. However, neither the DCA nor its implementing regulations vest an ALJ with the jurisdiction to substantively review the underlying debt. Such review is governed solely by the provisions of FECA which states that "[t]he action of the Secretary or his designee in allowing or denying a payment under the sub-chapter is " (1) final and conclusive for all purposes and with respect to all questions of law and fact; and (2) not subject to review by another official of the United States." 5 U.S.C. §8128(b). Thus this proceeding under §5514(2)(D) of the DCA is only to determine: (1) whether the debtor's agency has actually established both a debt and its correct amount upon which an offset is based; and (2) whether the terms of the proposed repayment schedule are feasible, allowable and appropriate. Milligan v. OWCP, 1999-DCA-3 (ALJ Mar. 30, 2000).
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The evidence clearly establishes and the parties agree that a debt was created by the Thrid party settlement in amount of $5,277.77. Thus, I find a debt was created in the amount of $5,277.77. However, a repayment schedule is not appropriate with regard to the aforementioned debt. The petitioner has presented credible evidence establishing the repayment of this debt by the tender of two cashier's checks. The Respondent has not offered sufficient evidence to rebut the Petitioner's contention. Accordingly, I find that the Petitioner owes no further money to the respondent.
