In the Matter of the Petition by

MARY J. DOWNES
9 Brevoort Drive, Apt. 1C

at

Pomona, NY 10970-3071

P.S. Docket No. AO 02-210

APPEARANCE FOR PETITIONER:
Mary J. Downes
9 Brevoort Drive, Apt. 1C
Pomona, NY  10970-3071

APPEARANCE FOR RESPONDENT:
Stuart James, Esq.
New York Metro Law Office
United States Postal Service
380 West 33rd Street, Room 4516
New York, NY  10199-9003

INITIAL DECISION

            Petitioner, Mary J. Downes, a former Postal Service employee, filed a Petition challenging the Postal Service's assertion that she owed the Postal Service a debt of $43,557.00.  The Petition was docketed under the procedures set forth in 39 C.F.R. Part 966, which allow a former employee to challenge collection of a debt alleged by Respondent.

            Two telephone conferences were held to discuss the processing of this case.  In the second telephone conference, on June 12, 2002, the parties agreed that this case would be decided on written submissions, and the parties were given time to file additional evidence and argument, beyond that filed with the Petition and the Answer.  Both parties filed additional material.  Respondent's submission included a sworn Declaration from Postal Inspector George DeQuattro.  The following findings of fact are based on all the material submitted by the parties.

FINDINGS OF FACT

            1.  Petitioner worked for the Postal Service for more than twenty-six years.  Her last position was as a window clerk at the Suffern, NY Post Office.  (Answer, Ex. 1, Ex. 6).

            2.  On September 24, 1999, a registered mail pouch purporting to contain six articles was dispatched from the Suffern, NY Post Office to the Westchester Processing & Distribution Center in White Plains, NY.  One of the articles, which contained $6,590.00 in cash, was not in the pouch when it arrived at Westchester.  The Postal Inspection Service was notified and opened an investigation.  (Answer, Ex. 7; DeQuattro Declaration).

            3.  On October 30, 1999, a registered mail pouch purporting to contain three articles was dispatched from the Suffern, NY Post Office to the Westchester Processing & Distribution Center in White Plains, NY.  One of the articles, which contained $19,294.00 in cash, was not in the pouch when it arrived at Westchester.  The Postal Inspection Service investigated.  (Answer, Ex. 8; DeQuattro Declaration).

            4.  On December 1, 1999, a registered mail pouch purporting to contain five articles was dispatched from the Suffern, NY Post Office to the Westchester Processing & Distribution Center in White Plains, NY.  One of the articles, which contained $17,673.00 in cash, was not in the pouch when it arrived at Westchester.  The Postal Inspection Service investigated.  (Answer, Ex. 9; DeQuattro Declaration).

            5.  On each of the three dates discussed above, Petitioner prepared the registered mail pouches for dispatch and was the last person at the Suffern, NY Post Office to have control of the registered articles.  (Answer, Exs. 8 and 9; DeQuattro Declaration).

            6.  On January 29, 2000, a registered mail pouch purporting to contain five articles was dispatched from the Suffern, NY Post Office to the Westchester Processing & Distribution Center in White Plains, NY.  One of the articles contained cash in the amount of $12,856.00.  Petitioner prepared the pouch for dispatch.  At approximately 3:15 p.m., Postal Inspectors observed Petitioner leave the post office and drive away with one of the registered articles in her possession.  (Answer, Ex. 1; DeQuattro Declaration).

            7.  At approximately 3:30 p.m. on January 29, 2000, the Postal Inspectors apprehended Petitioner at a shopping center as she exited her vehicle.  She admitted having the registered article and, after being advised of her rights, consented to a search of her vehicle.  The registered article containing $12,856.00 in cash was found under the front seat.  (Answer, Ex. 1; DeQuattro Declaration). 

            8.  The Postal Inspectors interviewed Petitioner at their office at the Westchester Processing & Distribution Center.  She admitted to the theft of the registered package found in her car and also admitted taking the three registered articles that were missing on September 24, October 30, and December 1, 1999.  In a sworn, handwritten statement she said she kept the money in her car and used it to pay bills and for gambling in Atlantic City.  She said she had so many debts that she lost all concept of what she was doing and that she spent all the money. (Answer, Exs. 1 and 4; DeQuattro Declaration).

            9.  On January 31, 2000, the Suffern, NY Postmaster placed Petitioner in a non-duty status, effective as of 3:30 p.m. on January 29.  Petitioner retired from the Postal Service effective February 1, 2000.  (Answer, Exs. 5 and 6).

            10.  On June 13, 2000, Petitioner pleaded guilty in U.S. District Court for the Southern District of New York to one count of mail theft on January 29, 2000.  Petitioner was sentenced to in-home confinement for three months, two years probation and a $100.00 fine.  (Answer, Ex. 10).

            11.  On February 9, 2000, the Suffern, NY Postmaster submitted a PS Form 1902, Justification for Billing Accounts Receivable, to the Minneapolis Accounting Service Center to establish that Petitioner owed the Postal Service a debt of $43,557.00.  This is the total amount of the three thefts on September 24, October 30 and December 1, 1999.  (Answer, Ex. 12).

            12.  On April 16, 2001, the Office of Personnel Management (OPM) sent Petitioner a notice that OPM intended to collect $45,510.34 from Petitioner's retirement annuity to collect a debt owed to the Postal Service.[1]  This notice stated that collection would begin on June 1, 2001, and continue with 63 monthly installments of $720.91 and one final installment of $93.01.  (Attachment to Petitioner's May 27, 2002 submission).

            13.  On May 7, 2001, Petitioner wrote to the Minneapolis Accounting Service Center arguing that the repayment schedule would constitute a financial hardship.  The Accounting Service Center denied relief on July 2, 2001.  (Attachments to Petitioner's May 27, 2002 submission).

            14.  OPM began the announced withholding on June 1, 2001.  As of April 1, 2002, the alleged indebtedness remaining was $38,301.24.  (Answer, ¶XXII).

DECISION

            Respondent's burden of proof in a case such as this is to show a loss to the Postal Service of the amount alleged and that Petitioner is responsible for the loss.

            Petitioner makes three arguments.  First, she says she did not take the registered mail packages and that she confessed only because the Postal Inspectors told her it would help her to do so.  This is completely unpersuasive.  Not only was the money from the January 29, 2000 theft found in her car, the confession to all four thefts is in her own handwriting, explains why she took the money and what she did with it, and states that she was sorry for what she had done.

            Second, Petitioner argues that restitution is not appropriate now because the District Court Judge who sentenced her did not include any restitution as part of the sentence.  In her criminal case, however, Petitioner was charged only with the January 29, 2000 theft.  The Postal Service suffered no loss on that occasion because the money was recovered.  The alleged debt is based on the three prior thefts.  As Petitioner spent that money, none of it was recovered and the Postal Service suffered a loss of $43,557.00.  The administrative offset procedure is a mechanism for the Postal Service to recover a financial loss.  Unlike the criminal case, punishment is not an issue here.  Therefore, the fact that the sentencing judge imposed no restitution has no bearing.

            Finally, Petitioner asserts that withholding at the rate of $720.91 per month constitutes a financial hardship and that she can afford to pay no more than $250.00 per month.  Petitioner's list of monthly expenses includes, among other items,  $360.00 for a car loan, $80.00 for gas, and $63.00 for cable television.  Considering all the circumstances of this case, I do not find it appropriate to reduce the amount of monthly withholding.

            The Petition is denied.  Respondent may collect $43,557.00 from Petitioner's retirement annuity.  Petitioner, of course, must be credited with any amount already withheld.

                                                                        Bruce R. Houston
                                                                        Chief Administrative Law Judge

[1] The record does not show what accounts for the difference between OPM's figure and the $43,557.00 debt asserted in this case.