U.S. Department of Labor Office of Administrative Law Judges
Federal Building, Suite 4300
501 W. Ocean Boulevard
Long Beach, California 90802
(310) 980-3594
(310) 980-3596
FAX: (310) 980-3597
DATE: February 15, 1995
CASE NO: 94-DCA-00009
In the Matter of
CAROLYN S. HOWELL,
Petitioner,
v.
U.S. DEPARTMENT OF LABOR,
OFFICE OF WORKERS' COMPENSATION PROGRAMS,
Respondent.
DECISION AND ORDER
This case arises under Section 5 of the Debt Collection Act of
1982, (Pub. L. 97-365), 5 U.S.C. § 5514 (the "DCA"), and the
implementing regulations at 29 C.F.R. § 20.74 etseq. 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, 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 Employees'
Compensation Act ("FECA").
Procedural Background
A hearing was held in this matter December 6, 1994. The only
exhibit which the undersigned admitted into evidence at the hearing
was Petitioner's Exhibit 1, consisting of Petitioner's pay stubs
for periods 19 (bearing the note "scheduled cola change") and 24 of
1994 (Tr. at 16).[1]
[PAGE 2]
Petitioner's pre-hearing statement was received in my office
on November 9, 1994. Along with this statement Petitioner
submitted a mortgage loan statement dated 10-16-94, a gas bill
dated 10-25-94, and an annual LA County tax bill with the first
installment due 11-1-94. These documents are hereby identified as
Petitioner's Exhibit 2 and are admitted into evidence. Pursuant to
a request of the undersigned, after the hearing Petitioner
submitted a receipt for certified mail and a domestic return
receipt, an envelope which bears the return address of the OWCP in
San Francisco, California, and the postmark of 8-16-94, a letter
dated 8-12-94 from the OWCP in San Francisco and addressed to the
U.S. Postal Service, and a portion of a document entitled "Payroll
Deduction Authorization to Liquidate Other Government Agency
Indebtedness." These post-hearing submissions are hereby
identified as Petitioner's Exhibit 3 and are admitted into
evidence.
Respondent submitted a pre-hearing statement by facsimile on
November 23, 1994. In this pre-hearing statement Respondent stated
its intent to participate in the hearing only by submission of the
pre-hearing statement and the submission pre-hearing of a
memorandum of law. Along with its pre-hearing statement Respondent
submitted documents as an exhibit which are paginated 1-43. This
exhibit is hereby identified as Respondent's Exhibit 1 and is
admitted into evidence. Respondent submitted its memorandum of law
via facsimile on December 5, 1994.
Petitioner's letter dated September 2, 1994, by which she
requested an administrative law judge hearing, is hereby admitted
into evidence as Administrative Law Judge Exhibit 1.
Findings of Fact and Conclusions of Law
Respondent argues that Petitioner's request for an
administrative law judge hearing on OWCP's proposed salary offset
was not timely. Respondent cites regulations at 29 C.F.R. §
20.81(b) and 29 C.F.R. § 18.4. The regulation at 29 C.F.R.
§ 20.81(b) (1994) provides that a debtor seeking a hearing
must make the request in writing "not more than 15 days from the
date the notice of proposed salary offset was received by the
debtor." The regulation at 29 C.F.R. § 18.4(a) (1994)
provides that in computing any period of time for the purposes of
an order a U.S. Department of Labor administrative law judge must
consider the period to begin "with the day following the act,
event, or default" and end, unless the ending day would fall on a
weekend or legal holiday, on the
[PAGE 3]
last day of the period. Intermediate weekends and holidays are
included in the computation unless the period is seven days or
less. 29 C.F.R. § 18.4(a) (1994). Documents are not deemed
filed until they are received by the Chief Clerk at the Office of
Administrative Law Judges. 29 C.F.R. § 18.4(c)(1) (1994).
However, "when documents are filed by mail, five (5) days shall be
added to the prescribed period." 29 C.F.R. § 18.4(c)(1)
(1994). Also, when a party is required to take some action within
a prescribed period after the service of a notice on said party,
and the notice is served by mail, five (5) days shall be added to
the prescribed period. 29 C.F.R. § 18.4(c)(3) (1994). Aside
from complaints, service of all documents is deemed effective at
the time of mailing. 29 C.F.R. § 18.4(c)(2) (1994).
Based on the language of 29 C.F.R. § 20.81(b) (1994), and
the rule that service of all documents is deemed effective at the
time of mailing, 29 C.F.R. § 18.4(c)(2) (1994), the
undersigned finds that the key dates in question here are (1) the
date that notice of the proposed salary offset was received by
Petitioner and (2) the date that Petitioner mailed her request for
a hearing. The date that the request for hearing should be deemed
filed, which would be determined pursuant to 29 C.F.R. §
20.81(c)(1) (1994), is not directly at issue. Similarly, because
the 15 day period begins running at the time of receipt of notice
as opposed to service of notice, the time of service of the salary
offset notice is not directly at issue.
Considering the contents of Petitioner's hearing testimony,
and Petitioner's demeanor at the hearing, the undersigned finds
Petitioner to have been honest in her representations.
Petitioner's credibility is limited only by her memory.
In her letter requesting a hearing dated September 2, 1994,
Petitioner states that she had not received the OWCP letter dated
July 11, 1994, which disclosed the proposed salary offset (ALJX-1).
The Declaration of Thomas M. Markey, Director, OWCP, states "The
case file does not reflect that OWCP's July 11, 1994 letter to
[Petitioner] was returned to OWCP as undelivered." (RX-1 at 1).
Because the undersigned believes that Petitioner has been honest in
her representations, the undersigned accepts Petitioner's assertion
that she had not received the OWCP letter dated July 11, 1994.
Petitioner acknowledged at the hearing that she had seen the
August 12, 1994, letter from OWCP to the U.S. Postal Service in Van
Nuys, California (Tr. at 7). Petitioner was not sure how she had
received a copy of this letter (Tr. at 7-8). After the hearing,
Petitioner submitted her copy of this letter along with an envelope
[PAGE 4]
which is apparently the envelope in which the letter reached
Petitioner (PX-3). When the letter is folded along its existing
fold lines and placed in the envelope, Petitioner's name and
address (which are printed on the bottom of the first page) show
through the clear plastic rectangle located on the front of the
envelope (PX-3). Based on the envelope and letter, the undersigned
finds that OWCP mailed a copy of the August 12, 1994, letter to
Petitioner. Although the letter is dated August 12, 1994, the San
Francisco postmark on the envelope is August 16, 1994. Petitioner
appears to have initialed the envelope, indicating that she
received it on August 22, 1994. Having found Petitioner to have
been honest, the undersigned finds that Petitioner first received
notice of the proposed salary offset on August 22, 1994, at the
time she received a copy of the OWCP letter dated August 12, 1994.
Pursuant to 29 C.F.R. § 20.81(b) (1994), Petitioner was
required to mail her request for a hearing within 15 days after she
received notice of the proposed salary offset on August 22, 1994.
This 15 day period is not lengthened by the regulations at 29
C.F.R. § 18.4(c)(1) or (3) because the dates of service of the
notice and filing of the request for hearing are not directly at
issue. Thus, Petitioner was required to mail her request for a
hearing by September 6, 1994. The "Receipt for Certified Mail"
which Petitioner submitted post-hearing bears a stamp which
indicates that Petitioner mailed her request for a hearing via
certified mail on September 7, 1994 (PX-3).
Because Petitioner received notice of OWCP's proposed salary
offset on August 22, 1994, and did not request a hearing until
September 7, 1994, this proceeding is time-barred pursuant to 29
C.F.R. § 20.81(b) (1994). Therefore, the undersigned has no
authority to order OWCP to alter its determination regarding the
proposed salary offset.
However, the undersigned urges OWCP to reconsider, in light of
the evidence which has been submitted during this proceeding, the
proposed salary offset. The undersigned finds Petitioner to be an
unsophisticated and honest individual. Petitioner's good faith is
shown by her decision to submit post-hearing the documents which
have made it clear that her request for a hearing was untimely.
ORDER
This matter is HEREBY DISMISSED for lack of
jurisdiction, as Petitioner's request for a hearing was untimely.
Entered this day of February, 1995, at Long Beach,
California.
SAMUEL J. SMITH
Administrative Law Judge
[ENDNOTES]
[1] The following abbreviations will be used:
Tr. = Hearing Transcript
PX = Petitioner's Exhibit
RX = Respondent's Exhibit
ALJX = Administrative Law Judge Exhibit
