Office of Administrative Law Judges 50 Fremont Street, Suite 2100 San Francisco, CA 94105
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Issue Date: 08 October 2003
CASE NO. 2002-DCA-00001
In the Matter of:
NORMA J. MOSQUEDA, Petitioner,
vs.
UNITED STATES DEPARTMENT OF LABOR,
Respondent.
Appearances:
For the Petitioner Norma J. Mosqueda,
Pro Se, Los Angeles, California
For the Respondent Cheryl L. Adams, Esq.,
Office of the Solicitor of Labor, San Francisco, California
Before:
William Dorsey
Administrative Law Judge
DECISION AND ORDER WAIVING DEBT AND REQUIRING REFUND
This is a dispute under Section 5 of the Debt Collection Act of 1982 (Pub. L. 97-365), 5 U.S.C. § 5514, under the debt waiver provisions of 5 U.S.C. § 5584 (Pub. L. 90-616), and the Secretary of Labor's implementing regulations at 29 C.F.R. Subpart D (§ 20.74 et seq.). Together the statutes and regulations prescribe procedures for handling debts, authorize deductions from wages of federal employees to pay debts to the United States for such things as salary overpayments, and set standards for waiving those debts.
The Department of Labor offset money from wages due to Norma Mosqueda, an employee in the Los Angeles Office of the Solicitor of Labor (Employee or Petitioner), because it mistakenly paid her for a holiday while she was away from her job. The Department argues that an administrative law judge is no more than a bookkeeper, insuring that the amount of the debt is correct, but has no business looking into whether the debt should be waived.
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Fostering and promoting the welfare of wage earners is a central part of the Department's mission. http://www.dol.gov/opa/aboutdol/mission.htm. Yet the Department repeatedly failed to follow its own procedures in dealing with Employee, who was away from her job when the overpayment occurred due to a work-related injury, and suffered financial distress because the Department did not make timely payment of her workers' compensation benefits. It ignored her waiver request when it made its offset without notice, although its own policies support a waiver. The Department has devoted resources to oppose Employee's waiver request out of proportion to the amount involved. And of all holidays, the pay at issue was for Labor Day. The Department's incongruous conduct would draw a smile from Inspector Javert.
Because the Department's action took no account of the factors justifying waiver of the debt, and because its refusal to waive the overpayment was contrary to equity and good conscience, and was not in the best interests of the Government, the Department shall refund the money deducted from Employee's salary.
FACTS AND PROCEDURAL HISTORY
Employee's affidavit dated June 9, 2003, and two volumes of exhibits, numbers 1 through 24, are admitted into evidence, with the exception of exhibit 17, which Employee withdrew in her reply. The Department's exhibits 1 through 15 are admitted. No party requested to appear in person to present evidence, so the matter has been decided on the record, as 29 C.F.R. § 20.81(c) contemplates.
The Department withdrew its contention that this matter could only be determined through the grievance procedure in the collective bargaining agreement it entered into with the National Council of Field Labor Locals, AFGE/AFL-CIO (Department's Brief at pg. 3).
1 An employee is entitled to holiday pay when she works the day before and after a holiday.
2 The Act entitles the employee/debtor to have (1) a minimum of 30 days' written notice of the existence and amount of the debt and the agency's intention to collect the debt via salary deductions; (2) an opportunity to inspect and copy Government records relating to the debt; (3) an opportunity to enter into a written agreement with the agency establishing a schedule for repayment; and (4) an opportunity for a hearing on the determination of the agency concerning the existence or the amount of the debt, and the terms of the repayment schedule if no written agreement exists between the employee and the agency. 5 U.S.C. § 5514(a)(2).
3 The Department's change in the final text of 29 C.F.R. § 20.78(b)(7) from the text originally proposed reflect the concern for fairness. See 52 F.R. 3772 (Feb 5, 1987). The modification allows employees of the Labor Department's Office of Administrative Law Judges to have their review proceedings such as this (to determine the existence and amount of a debt and terms of a repayment plan under 29 C.F.R. § 20.81) to be heard and decided by a person not in the Office of Administrative Law Judges, and not under the supervision and control of the Secretary of Labor.
4 No party has requested an oral hearing, so none is required, Pigrenet v. Boland Marine and Manufacturing Co., 656 F.2d 1091, 1095 (5th Cir. 1981)(en banc).
5 "Unjustified or unwarranted personnel actions" include termination of employment, an agency's denial of a mandatory promotion, and reduction in rank or level. See Crowley v. Muskie, 496 F.Supp. 360 (D.D.C. 1980) (State Department employees who were wrongfully removed from the civil service jobs were entitled to retroactive promotion, back pay and attorney fees); Edwards v. Lujan, 40 F.3d 1152 (10th Cir. 1994) (Back Pay Act covers illegal refusals to make mandatory promotions of federal employees, but not discretionary promotions); Donovan v. U.S., 580 F.2d 1203 (3d Cir. 1978) (a "personnel action" within the meaning of the statute must result in a reduction of job grade or level).
6 An Article III court reviewing what happened up to this point would remand the matter to the agency to apply the Secretary's waiver criteria, even if the ultimate answer could be to deny the waiver. The Regional Financial Officer assumed that once the money was recaptured by offset, Employee could never get it back, because it was wrongly paid in the first place. That assumption is inconsistent with 5 U.S.C. § 5584(c); 29 C.F.R. §§ 20.78 (b)(13) and 20.87(a)(1); and DLMS-6, 1174. When an agency official fails to exercise judgment in the erroneous belief that there is no discretion, courts remand. See State of Arizona v. Thompson, 281 F.3d 248, 253 (D.C. Cir. 2002).
7See, e.g., the generally similar "Guidelines for Determining Requests [For Waiver]," U.S. Department of the Treasury Directive 34-01 (2000), available at http://www.treasury.gov/regs/td34-01.htm.. See also, 42 U.S.C. § 404(b), and the Commissioner of Social Security's implementing regulations at 20 C.F.R. § 404.506 - § 404.527 (standards for waiver of recovery of Social Security overpayments); and 20 C.F.R. § 416.550 et seq. (standards for waiver of recovery of Supplemental Security Income overpayments). The statutory "against equity and good conscience" standard for overpayment waivers appears to have its origin in this text from the Social Security Act.