In the Matter of the Petition by

GREGG B. MAYES
2409 Concord Road

at

Lansing, MI 48910-2468

P.S. Docket No. DCA 03-261

APPEARANCE FOR PETITIONER:
Gregg B. Mayes
2409 Concord Road
Lansing, MI  48910-2468

APPEARANCE FOR RESPONDENT:
Phillip L. Luce
Labor Relations Specialist
United States Postal Service
P.O. Box 999401
Grand Rapids, MI  49599-9401

FINAL DECISION UNDER THE DEBT COLLECTION ACT OF 1982

            Petitioner, Gregg B. Mayes, filed a Petition for Hearing after receiving a Notice of Involuntary Administrative Salary Offsets from his postmaster on June 2, 2003.  This Notice stated the Postal Service’s intention to withhold $587.53 from Petitioner’s salary to recover an amount alleged to be owed to Petitioner’s Flexible Spending Account (FSA).

            Petitioner elected to have the case decided on written submissions.  The parties were given time to file additional evidence and argument, beyond that filed with the Petition and the Answer.  Both did so.  Respondent included a sworn statement from Susan Harcus-Zumberg, Customer Service Supervisor in Lansing, Michigan.  The following findings of fact are based on the entire record.

FINDINGS OF FACT

            1.  Petitioner is a Postal Service employee in Lansing, Michigan.  He enrolled in the Flexible Spending Account (FSA) program for 2002 in the amount of $3000, effective January 1, 2002.  The FSA program enables employees to pay certain health care costs with pre-tax deductions from salary.  This money is not subject to Federal taxes.  The employee then withdraws money from the account to pay health care expenses.^[1]  (Answer, Ex. 8; FSA Brochure, p. 4).

            2.  By his enrollment for the year 2002, Petitioner requested that $3000 be deducted from his salary and contributed to his FSA.  This resulted in deductions of $115.38 per pay period from Petitioner’s salary.  (FSA Brochure, p. 5: Answer, Ex. 8).

            3.  Once an employee enrolls in the FSA program, the employee is required to make the pro-rated contribution each pay period until participation ends.  Any contributions missed when an employee is in a leave without pay (LWOP) status must be made up.  (FSA Brochure, p. 15).

            4.  Petitioner was in LWOP status from pay period 7 through pay period 24 of 2002.  During this time, therefore, he made no contributions to his FSA.  In accordance with applicable rules, made known to Petitioner in the brochure provided to employees before enrollment, his FSA was continued for eight pay periods after LWOP began, and was then deactivated in pay period 15 of 2002.  (Harcus-Zumberg Declaration; FSA Brochure, p. 15).

            5.  Petitioner’s total required contribution to his FSA for 2002 (pay periods 1-14) was $1,615.32.  $1,027.79 was collected by payroll deductions.^[2]  The difference is $587.53.  (Answer, Ex. 2).

            6.  On December 26, 2002, the Accounting Service Center generated an invoice for $587.53.  On December 31, 2002, Ms. Harcus-Zumberg sent Petitioner a letter, with the invoice attached, stating that Petitioner owed the Postal Service $587.53.  (Harcus-Zumberg Declaration).

            7.  On May 29, 2003, Petitioner’s postmaster, Timothy Holmes, issued the Notice of Involuntary Administrative Salary Offsets.

DECISION

            Respondent’s position is based on the provision of the FSA program cited in Finding #3, i.e., that Petitioner was enrolled in the FSA program through pay period 14 of 2002 and therefore owes the contributions for fourteen pay periods.

            Petitioner makes no clear contention as to why he does not owe the alleged debt.  He complains that he did not receive some of the documents pertaining to the alleged indebtedness that Respondent says were sent to him.  Even assuming that is true, it is clear that he has been provided with copies of all pertinent documents since he filed his Petition, and he has not demonstrated that he has been harmed in any way by not receiving them earlier.

            Petitioner also notes that the excerpt of the FSA brochure filed by Respondent was for calendar year 2003, rather than calendar year 2002.  Although Respondent did not provide a copy of the brochure for calendar year 2002 as directed, this office obtained a copy of the earlier brochure and found the two to be identical in all pertinent aspects.  In the absence of any assertion by Petitioner that different rules applied in calendar year 2002, this is a matter of no consequence.

            Finally, Petitioner argues that Respondent has not cited any provision of law that gives Respondent authority to collect the FSA contributions, and claims that some unidentified FSA representative told him there was no legal authority for doing so.  This latter assertion is not evidence and carries no weight whatever.  As for Respondent’s legal authority to collect the alleged debt, it derives from the terms of the agreement Petitioner entered into when he enrolled in the FSA program for 2002.  Those terms are clearly set out in the brochure provided to Petitioner at the time of enrollment and define Petitioner’s obligations under the FSA program.

            The Petition is denied.  Respondent may collect $587.53 from Petitioner’s salary.

Bruce R. Houston
Chief Administrative Law Judge

[1]  There is no evidence in the record as to what withdrawals Petitioner may have made from his FSA in 2002.

[2]  $1,615.32 equates to $115.38 times fourteen pay periods (see Answer, Ex. 8).  The record does not make clear when, or at what rate, the $1,027.79 was collected, but I can perceive no way in which Respondent’s calculations can work to Petitioner’s detriment.