DECISION AND ORDER TRANSFERRING CASE TO
MERIT SYSTEM PROTECTION BOARD
This matter arises pursuant to a request for hearing to the Department of Labor Office of Administrative Law Judges by Petitioner, Dale R. Wilson, to dispute a determination of salary offset. The request for hearing includes a form entitled Request for Recovery of Debt Due the United States from the United States Postal Service (USPS) to the Office of Personnel Management (OPM). The form notifies OPM that Petitioner owes a debt to USPS and that the Petitioner has a "Retirement account" available for immediate set-off. The form also purports to certify that Petitioner was provided the due process procedures of 4 CFR 101.1 et seq. and 5 CFR 831.1801 et seq. or at 5 CFR 845.
Respondent, United States Department of Labor (DOL) , moves to dismiss these "salary offset proceedings" because "[a] review of the OWCP case record reveals that Wilson's last day of work for the U.S. Postal Service was February 5, 1998, at which time he was granted disability retirement...[t]herefore, salary offset proceedings before the Department of Labor is (sic) inappropriate under these circumstances."
Petitioner responds to the Motion To Dismiss by arguing that the motion be denied because the Office of Personnel Management (OPM) has and continues to garnish Petitioner's disability retirement without either OPM or the USPC providing for due process as required by the Debt Collection Act.
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DOL's motion to dismiss the salary offset proceedings is granted as this Office lacks jurisdiction to entertain this dispute. It is true that this Office has been given jurisdiction to adjudicate salary offset disputes; however, that jurisdiction arises from a salary offset dispute originating from a DOL proceeding to collect a debt from a government employee's salary. Here, the USPS requested OPM to recover the debt from Petitioner's disability retirement. Such an action is governed by subpart R of Title 5 C.F.R. Part 831 which provides the procedures for requests to OPM to recover a debt from the Civil Service Retirement and Disability Fund. The determination of whether to proceed before DOL or before OPM for offset appears to be whether offset is sought from the salary of a present employee, in which case the agency proceeds through DOL, or from the disability retirement fund of a retired employee, in which case the agency requests OPM to seek the offset. See 5 C.F.R. §§ 831.1801, 831.1805 and 29 C.F.R. § 20.31. See Ramirez v. Department of the Army, 86 M.S.P.R. 211 (June 22, 2000), where the Merit System Protection Board held that it had jurisdiction to consider a retiree's procedural claim that his former employing agency should have granted him a hearing before it commenced collection through offset from his retirement account.
Petitioner asserts that OPM commenced with the deduction of monies from his disability retirement without notice, and he expresses frustration at not being able find a person to account for the money withheld. After numerous complaints, the USPS informed Petitioner that they would be willing to waive any debt, and USPS has responded to the request for hearing here by stating that it "is the intention of the Agency to grant the waiver of debt." Nevertheless, OPM has not acknowledged USPS' waiver of the debt, has not ended its garnishment of Petitioner's wages, or, according to Petitioner, offered a hearing on the propriety of the recoupment action. OPM's own regulations at 5 C.F.R. § 831.1803 provide that the creditor agency must comply with 4 C.F.R. § 102.4 which requires that the creditor agency must certify that it has complied with the requirements of § 102.3, including any required hearing or review." 5 CFR §831.110 provides that actions of OPM that affect an individual's rights under the Civil Service Retirement System are appealable to the Merit System Protection Board.
In as much as the Petitioner has asserted a claim over which this Office lacks jurisdiction but which lies within the jurisdiction of the Merit System Protection Board, this matter is hereby transferred to the Merit System Protection Board for appropriate action.
ORDER
In consideration of the aforesaid, IT IS HEREBY ORDERED that this matter is transferred to the Merit System Protection Board for appropriate action.
