In the Matter of the Petition by

CLAUDIA N. CARTER-BROWN
221 Bear Drive

at

Farmerville, LA 71241-6205

P.S. Docket No.  AO 02-497

APPEARANCE FOR PETITIONER:
Claudia N. Carter-Brown
221 Bear Drive
Farmerville, LA  71241-6205

APPEARANCE FOR RESPONDENT:
Ronald W. Deason
Labor Relations Specialist
United States Postal Service
1400 W. Jordan Street
Pensacola, FL  32501-9421

INITIAL DECISION

            Petitioner, Claudia Carter-Brown, a former Postal Service employee, filed a Petition challenging the Postal Service's action to have money withheld from her retirement annuity to recover a debt she owed the Postal Service.  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.

BACKGROUND

            On January 15, 1998, an earlier Petition by Ms. Carter-Brown was dismissed because the Postal Service withdrew its claim against Petitioner under the Administrative Offset procedures of 39 C.F.R. Part 966 (P.S. Docket No. AO 97-433).  The claim was withdrawn because the Postal Service acknowledged that Petitioner was making restitution pursuant to a U.S. District Court Order and the Postal Service stated that it no longer intended to recover the alleged debt through offset from her retirement account.

            Ms. Carter-Brown filed a second Petition after receiving a Notice of Intent to Collect Delinquent Debt from the Postal Service, dated August 7, 2000 (P. S. Docket No. AO 00-434).  Respondent, the United States Postal Service, filed a motion to dismiss, again acknowledging that Petitioner was making the court-ordered restitution payments.  Respondent stated that the file that generated the August 7, 2000 letter had been closed and that Petitioner would not receive any further collection notices.

            Accordingly, there being no claim against Petitioner under the Administrative Offset procedures of 39 C.F.R. Part 966, the motion was granted, and that case (AO 00-434) was dismissed.  The Dismissal stated that Petitioner retained her right to file a new Petition, under 39 C.F.R. Part 966, if the Postal Service re-initiated action to withhold money from her retirement account.

            On November 15, 2002, Petitioner filed a third Petition, based on receipt of a November 1, 2002 notice from the Department of Treasury, Financial Management Service, informing her that a $284.03 Federal payment to her had been applied to the debt she owed the Postal Service.  She later supplemented this Petition to assert that a second withholding of $283.01 had occurred on February 1, 2003.  This Petition was docketed as P. S. Docket No. AO 02-497, which is the instant case.

            Respondent’s position in response to this third Petition was that collection by withholding had begun because Petitioner stopped making the court-directed restitution payments.  By Order dated February 21, 2003, following a telephone conference with the parties on that date, Respondent was directed to file copies of any notices sent to Petitioner that informed her that involuntary withholding would begin, and also copies of any documents that stated the amount of the debt that Respondent asserts is owed by Petitioner.  Respondent’s representative also stated that he would take whatever follow-up action was necessary to insure that collection stopped until this case was resolved.

            In the meantime, Petitioner filed a motion for monetary and other sanctions against Respondent’s representative and the United States Postal Service Office of General Counsel.

            In a motion to dismiss filed on March 14, 2003, Respondent reported that notices of intent to collect were apparently sent to Petitioner at her previous address and that copies of such notices are not available.  Therefore, Respondent’s representative stated that the agency would refund the $284.03 and the $283.01 withheld in November 2002 and February 2003, and that no further collection would be sought until Petitioner was issued a proper notice of intent to collect.  Based on this, Respondent’s motion to dismiss was granted and the case was once again dismissed, on March 20, 2003.  Petitioner’s motion for sanctions was denied, as the Judicial Officer Department has no authority to grant such relief.

            Petitioner continued to report that she had not been reimbursed and also that additional money had been withheld on March 1, 2003.  By Order dated May 28, 2003, after two additional telephone conferences, Respondent was directed to present documents, by June 20, 2003, to show that Petitioner had been reimbursed.  Respondent did not do so.  By Order dated July 10, 2003, this case was reinstated on our docket and a hearing was scheduled to determine the amount of the debt still owed by Petitioner to the Postal Service.

            A hearing was held in Pensacola, Florida on August 15, 2003.  The Postal Service presented testimony from Charles Chan, an accountant at the Postal Service Accounting Center in San Mateo, California.  Petitioner testified on her own behalf.  Both parties relied on documents that had previously been filed, and both also submitted some additional documents during the hearing.  The following findings of fact are based on the entire record.

FINDINGS OF FACT

            1.  On November 17, 1997, following a plea of guilty in United States District Court for the Northern District of Florida to misappropriation of postal funds and money order fraud, Petitioner was sentenced by Judge Collier to a fifteen-month term of confinement and ordered to pay $11,318.39 in restitution, plus an assessment of $850.  (District Court Order attached to Respondent’s Motion to Dismiss in P. S. Docket No. AO 97-433).

            2.  Petitioner began making payments on the $850 assessment in April 1998, and this amount was paid in full by January 2000.  (Record of Payments, attached as Ex. D to Petition in P. S. Docket No. AO 00-434).

            3.  Petitioner began making restitution payments in early 2000, after she completed her term of confinement.  Payments were made to the Clerk of the District Court, as directed.  (Tr. 55, 62; Record of Payments, attached as Ex. D to Petition in P. S. Docket No. AO 00-434; Pet. Ex. AH, p. 32, submitted at hearing).

            4.  On December 27, 2001, Judge Collier issued an Order stating that the court had learned from the Postal Service that the amount of restitution that had been ordered on November 17, 1997 was incorrect.  Judge Collier corrected the restitution portion of the sentence, reducing the ordered restitution from $11,318.39 to $8,629.88.  (Attached as Ex. W to Petitioner’s January 21, 2003 Supplement to Petition).

            5.  Because of some uncertainty over the amount of the debt after Judge Collier’s amending Order, Petitioner stopped making restitution payments in January 2002 (Tr. 45, 68-70).

            6.  Sometime thereafter, the Postal Service initiated action to have money withheld from Petitioner by the U. S. Treasury Department.  A total of $810.45 was withheld in November 2002, February 2003, and March 2003.  Collections were stopped, pending resolution of this case, and Respondent reported at the hearing that a check was being issued on that day (August 15, 2003) to reimburse Petitioner for these withholdings plus a collection fee of $13.20 that had been charged with each withholding.  (Attachment 1 to Respondent’s March 14, 2003 Motion to Dismiss; Tr. 25-26; PS Ex. C, submitted at hearing).

            7.  Respondent’s accounting records show a series of thirteen payments, beginning on April 28, 2000, and ending on January 17, 2002, against an original debt of $8,629.88.  The total payments add to $2,050, reducing the debt to $6,579.88.  (PS Ex. A, submitted at hearing; Tr. 19-24, 47).

            8.  A form titled “Record of Payments,” attached to the Petition in P. S. Docket No. AO 00-434 (see Finding #3), shows two restitution payments made earlier than April 2000 – one for $150 on January 10, 2000, and one for $200 on February 17, 2000.  Neither party addressed this document at the hearing.

DECISION

            At the hearing, Petitioner presented copies of approximately twenty money order receipts for money orders paid to the Clerk of the District Court in 1999, 2000, and 2001 (Pet. Ex. AH, pp. 16-24).  Petitioner argued that all these reflected payments toward the court ordered restitution, and that the Postal Service has not credited her with any of these.  Analyses of these receipts, in conjunction with the other payment records, i.e., the Postal Service accounting record (PS Ex. A) and the Record of Payments submitted earlier by Petitioner (Ex. D to Petition in P. S. Docket No. AO 00-434), demonstrates that Petitioner is correct only in a small part.

            The first eight receipts submitted by Petitioner (Pet. Ex. AH, pp. 16-18) correlate to payments toward the $850 assessment imposed as part of Judge Collier’s sentence, as recorded on Ex. D to Petition in P. S. Docket No. AO 00-434.  The nine receipts on Pet. Ex. AH, pp. 20, 21 and 23, and the second and third receipts on Pet. Ex. AH, p. 19, correlate to payments listed on Respondent’s account statement (PS Ex. A).  Thus, the only receipt submitted by Petitioner that appears to represent a restitution payment for which she has not been credited is a $100 payment in January 2000.  This is consistent with Ex. D to Petition in P. S. Docket No. AO 00-434, which shows payments of $150 and $200 in January and February 2000 (see Finding #8).

            Which records are most accurate here is anything but conclusive.  Respondent had more than ample time in the several months leading to this hearing to gather pertinent information and records.  The accounting expert purportedly familiar with the history of Petitioner’s debt was listed as a witness prior to the hearing, but was not available to testify.  Mr. Chan, who testified as a substitute, knew nothing of the history of this case and was able to do little more than read from documents prepared for him by Respondent’s representative.  Therefore, it is appropriate to give Petitioner some benefit of doubt as to the precise amount owed and credit her with the payments totaling $450 that appear to have been made in January and February 2000.  This reduces the remaining indebtedness to $6,129.88 ($6,579.88 - $450, see Finding #7).

            At the hearing, Petitioner presented evidence that she had begun again to make restitution payments to the District Court, approximately a week before the hearing.  It is not known whether she has continued to do so, or what action has been taken by the Clerk of the District Court.

CONCLUSION

            The amount owed by Petitioner to the Postal Service is $6,129.88, subject to further credit for any payments she has made toward this debt to the District Court since August 1, 2003.

                                                            Bruce R. Houston
                                                            Chief Administrative Law Judge