In the Matter of the Petition by                                )
                                                                               )
LEONARD F. DAVILA                                             )
44 Country Oaks Drive                                           )
                                                                               )
               at                                                             )
                                                                               )
Buda, TX 78610-9338                                            )  P.S. Docket No. DCA 98-452

APPEARANCE FOR PETITIONER:                           Leonard F. Davila
                                                                               44 Country Oaks Drive
                                                                               Buda, TX 78610-9338

APPEARANCE FOR RESPONDENT:                       Debbie G. Claye
                                                                               Labor Relations Specialist
                                                                               United States Postal Service
                                                                               8225 Cross Park Drive
                                                                               Austin, TX 78710-9401

DECISION ON MOTION TO DISMISS

Respondent has filed a motion to dismiss the Petition in this matter on the grounds that the Petition was untimely filed. Petitioner has filed an opposition to the motion, contending that the Petition was filed late because he was attempting to determine whether the alleged debt was the subject of a grievance.

On August 20, 1998, Respondent issued Petitioner a Notice of Involuntary Administrative Salary Offsets Under the Debt Collection Act stating Respondent’s intention to collect $610.28 from Petitioner’s salary due to an accountability shortage in that amount. The Notice and its attachments (Statement of Debtor’s Rights and Responsibilities and Rules of Procedure Governing Hearings Under the Debt Collection Act) were mailed by regular mail and by certified mail. The certified Notice was returned by the post office with a forwarding address noted. That Notice was resent on August 26, 1998, and Petitioner received it on September 1, 1998. Petitioner received the Notice sent by regular mail no later than August 28, as evidenced by his call to the post office on that date referring to the Notice and stating his belief that the debt was the subject of a grievance. ⁽¹⁾

The Statement of Debtor’s Rights and Responsibilities advised Petitioner of a number of options available to him, including the right to file a petition for a hearing under the Debt Collection Act. Petitioner was advised that such a petition had to be filed with the Recorder, Judicial Officer Department, on or before the fifteenth calendar day following his receipt of the Notice. Immediately following the text advising of the procedures for filing a petition was the following instruction:

"Note: While you may request a hearing and pursue one of the other available options, your hearing petition must be filed within the required time period. If questions relating to this debt are resolved before the hearing is held, your petition may be withdrawn."

By letter postmarked September 22, 1998, Petitioner filed with the Recorder, Judicial Officer Department, his petition requesting an oral hearing under the Debt Collection Act. This filing was more than 15 days after his receipt of the Notice of Involuntary Administrative Salary Offsets.

The Debt Collection Act and Respondent’s implementing regulations require that a petition be filed within 15 days after receipt of a Notice of Involuntary Administrative Salary Offsets. 5 U.S.C. 5514; Employee and Labor Relations Manual 452.331; 39 C.F.R. §961.4. An employee may be deemed to have waived his right to a hearing if the petition is filed after the 15-day period and the employee "fails to demonstrate to the satisfaction of the Hearing Official good cause for the delay." 39 C.F.R. §961.10(a).

The Petition in this case was filed more than 15 days after Petitioner received the Notice of Involuntary Administrative Salary Offsets even though the attachments specifically notified him of the need to file a petition within 15 days after receipt if he wished to have a hearing. Petitioner has not provided any evidence of good cause for his delay. In response to the motion to dismiss, Petitioner stated that he believed that the debt was the subject of a grievance and that he encountered delays in obtaining information from his union that he thought would confirm his belief. Ultimately, it was determined that the debt was not the subject of an active grievance. Having considered the record, I conclude that the Petition was untimely filed and that Petitioner has not demonstrated good cause for the delay. In light of the unequivocal instructions in the Statement of Debtor’s Rights and Responsibilities to file the petition within 15 days even if the employee was exploring other courses of action, delaying his petition under these circumstances was not justified.

Respondent’s motion to dismiss is granted, and the Petition is dismissed.

Norman D. Menegat
Administrative Judge

1.  The Notice of Involuntary Administrative Salary Offsets also contained the following language: "If there is a grievance pending that would stay this collection, contact the Supervisor, Accounting Services, San Antonio District, . . . within 20 calendar days of the date of this letter." It may have been this language that prompted Petitioner's August 28 call.