In the Matter of the Petition by                                ) 
                                                                               )
BERTHA L. JOHNSON                                            )
2330 Sunbury Road                                               )
                                                                               )
     at                                                                       )
                                                                               )
Columbus, OH 43219-3538                                    )  P.S. Docket No. DCA 99-63

APPEARANCE FOR PETITIONER:                           Keith E. Schneider, Esq.
                                                                               250 Civic Center Drive, Suite 200
                                                                               Columbus, OH 43215-5086

APPEARANCE FOR RESPONDENT:                       Kermit L. Stiltner
                                                                              Labor Relations Specialist
                                                                              United States Postal Service
                                                                              850 Twin Rivers Drive
                                                                              Columbus, OH 43216-9401

Respondent, the United States Postal Service, filed a Motion to Dismiss, arguing that Ms. Johnson’s Petition was not timely filed, i.e., that it was not filed within 15 days of receipt of the Notice of Involuntary Administrative Salary Offsets, as required by 39 C.F.R. §961.4(a). Petitioner’s reply to the motion argues that her late filing should be excused because the actions of Respondent led her to believe that she was properly pursuing her rights. Petitioner also argues that Respondent was late in filing its Answer to the Petition and, therefore, should be estopped from pursuing the Motion to Dismiss. The following findings of fact are pertinent in resolving this issue, and are based on the documents filed by both parties:

1. On July 27, 1996, Petitioner’s account was audited and found to be short by $932.09. (Answer, Ex. 16).

2. On August 6, 1996, a Letter of Demand for $932.09 was issued to Petitioner. (Answer, Ex. 15).

3. Petitioner filed a grievance, and an agreement between the Postal Service and Petitioner’s union was signed on August 20, 1997, stating that the grievant (Ms. Johnson) would pay $632.09. (Answer, Ex. 14).

4. On September 23, 1997, Kenneth Hays, Manager, Finance, issued Petitioner a letter stating the Postal Service’s intention to withhold $632.09 from her salary. This letter was not titled, "Notice of Involuntary Administrative Salary Offsets," but it was in the format prescribed for that Notice, and included as attachments a Statement of Debtor’s Rights and Responsibilities, and a copy of the Rules of Procedure Governing Hearings Under the Debt Collection Act. (Answer, Ex. 12; also attached to Petition).

5. In response, Petitioner wrote to Mr. Hays, stating that she did not owe the money and asking for records. Mr. Hays replied by letter, on September 26, 1997, with a copy of the settlement agreement. He also attached another copy of the Statement of Debtor’s Rights and Responsibilities. (Answer, Ex. 11; also attached to Petition).

6. Petitioner wrote to Mr. Hays again on October 20, 1997, stating that she had not agreed to the settlement, and that payment would be a financial hardship for her. (Answer, Ex. 10).

7. Mr. Hays replied by letter, on November 7, 1997. This letter made reference to Petitioner’s right to appeal, and cited the Statement of Debtor’s Rights and Responsibilities and the Rules of Procedure Governing Hearings Under the Debt Collection Act. (Answer, Ex. 9; also attached to Petition).

8. On December 16, 1997, Mr. Hays issued a second Notice of Involuntary Administrative Salary Offsets to Petitioner. Again, that caption was not on the letter, but the format was the same and additional copies of the Statement of Debtor’s Rights and Responsibilities and the Rules of Procedure Governing Hearings Under the Debt Collection Act were attached. (Answer, Ex. 8; also attached to Petition).

9. The Postal Service began collecting the debt in January 1998, by withholding $25.00 per pay period from Petitioner’s salary. Collection was completed in December 1998. (Answer, Ex. 4; also attached to Petition).

10. There were additional written responses by Mr. Hays, apparently to additional arguments by Ms. Johnson. In each of them, on July 9, 1998 and January 7, 1999, Mr. Hays declined to reverse the decision to collect the debt. In neither of them did he say anything about her right to file a Debt Collection Act Petition. (Answer, Exs. 5 and 6; also attached to Petition).

11. Ms. Johnson filed her Petition on February 17, 1999.

The Debt Collection Act and Respondent’s implementing regulations require that a petition for a hearing 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 her 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 15-day requirement is spelled out in the Statement of Debtor’s Rights and Responsibilities, which was provided to Ms. Johnson on three separate occasions. 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."

Even though the letters of September 23 and December 16, 1997, did not bear the caption, "Notice of Involuntary Administrative Salary Offsets," the letters unmistakably stated Respondent’s intention to make involuntary deductions from Petitioner’s salary to collect the $632.09. The Statement of Debtor’s Rights and Responsibilities repeated that intention and set forth the requirements for appealing the letter. Furthermore, in her Petition, Petitioner referred to the letter as a Notice, stated she received it in September 1997, and has not claimed that she was confused by the absence of a caption on the letter.

Petitioner’s claim that she was led to believe "through acts of the Post Office" that she was properly pursuing her rights and remedies is not supported by the evidence. To the contrary, Mr. Hays’ response to Petitioner’s early correspondence made specific reference to her right to appeal and provided another copy of the rules and procedures (see Finding of Fact 7). I find nothing in any of the correspondence that should have led Petitioner to believe that the requirement to file a timely petition was not applicable. The fact that postal officials continued to reply to her letters, and to review whatever information and arguments she presented (see Finding of Fact 10), long after the 15-day period had expired, did not amount to a rescission of the Notice.

As to Petitioner’s argument that Respondent’s Answer was filed late, it has long been the practice of this office that pleadings are considered to be "filed" when they are placed in the mail. Because the Answer was received on March 10, 1999, it is safe to conclude that it was placed in the mail, in Columbus, Ohio, on or before the March 9, 1999 deadline.

This Petition was more than a year late,⁽¹⁾ and Petitioner has not demonstrated that the late filing should be excused. Respondent’s Motion to Dismiss is granted.

Bruce R. Houston
Chief Administrative Law Judge

1.  This is true whether one takes the September 23, 1997 Notice, or the December 16, 1997 Notice, as the starting point. There is no merit to Petitioner's argument that issuance of the second Notice should be considered a waiver of the requirement for a timely petition.