MICHAEL W. MULDER

P.S. Docket No. DCA 08-367

APPEARANCE FOR PETITIONER
Lawrence Berger, Esq.

APPEARANCE FOR RESPONDENT
David M. Reardon

FINAL DECISION UNDER THE DEBT COLLECTION ACT OF 1982

            Petitioner, Michael Mulder, filed a Petition for Hearing after receiving a Notice of Involuntary Administrative Salary Offsets, dated November 14, 2008, from the Acting Executive Director of the Postal Inspection Service.  This Notice stated the Postal Service’s intention to withhold $3,526.79 from Petitioner’s salary to recover a salary overpayment in pay periods 6-11 of 2008.

            In a telephone conference with both parties’ attorneys on February 10, 2009, the parties agreed that there were no facts in dispute that required an oral hearing, and that the parties would file written arguments addressing applicable law and regulations.  Both have done so.  The following findings of fact are based on the entire record.

FINDINGS OF FACT

            1.  On or about February 21, 2008, Petitioner accepted an appointment into the Postal Inspection Service, with twelve-week Basic Inspector Training (BIT) scheduled to begin on March 3, 2008.  (Respondent’s Exhibits 1 and 3, attached to Answer; copies of same documents attached to Petition).

            2.  Federal law enforcement officers receive additional pay known as Law Enforcement Availability Pay (LEAP), as compensation for working unscheduled overtime.  LEAP is equal to 25% of the officer’s base salary and locality pay.  5 U.S.C. §5545a.

            3.  “Compensation and benefits for all Postal Inspectors shall be maintained on a standard of comparability to the compensation and benefits paid for comparable levels of work in the executive branch of the Government outside the Postal Service.”  39 U.S.C. §1003(c).[1]

            4.  Subsection (f)(1) of 5 U.S.C. §5545a states: “A criminal investigator who is eligible for availability pay shall receive such pay during any period such investigator is—(A) attending agency sanctioned training.”

            5.  Subsection (f)(2) of 5 U.S.C. §5545a states: “Notwithstanding paragraph [5 U.S.C. §5545a(f)] (1)(A), agencies or departments may provide availability pay to investigators during training which is considered initial, basic training usually provided in the first year of service.”    

            6.  When Petitioner was informed of his selection to the Postal Inspection Service by telephone, on or about February 21, 2008, he was told by the caller, following a written script, what his base salary and locality pay would be, and also that he would not begin receiving LEAP until he graduated from training and began his assignment in Tallahassee, Florida, on or about May 23, 2008.  (Answer, Exhibit 1). 

            7.  On February 28, 2008, the Postal Service, Corporate Personnel Management, sent Petitioner a letter welcoming him to the Postal Inspection Service.  The letter included charts showing what Petitioner’s pay would be during the 12-week training program and upon graduation and assignment to Tallahassee.  The letter stated, “You will not receive Law Enforcement Availability Pay (LEAP) during basic inspector training.”  (Answer, Exhibit 2).

            8.  During the training program, on or about April 7, 2008, Petitioner suffered a serious ankle injury.  He submitted the appropriate documents for disability compensation benefits to the Office of Workers’ Compensation Programs (OWCP), U.S. Department of Labor.  (Answer, Exhibit 4; several documents attached to Petition).

            9.  The OWCP approved Petitioner’s claim and, in accordance with established procedures, began paying Petitioner’s compensation, based on salary information provided by the Postal Service.  The Postal Service included the LEAP portion of Petitioner’s salary in information transmitted to OWCP.  On July 18, 2008, the Postal Service informed OWCP that LEAP should not have been included.  (Answer, Ex. 5).

            10.  During pay periods 6-11 of 2008, the compensation Petitioner received included LEAP.  The gross amount attributable to LEAP was $4,381.40.  After making adjustments for Federal income tax withholding, Social Security and other items, the Postal Service calculated Petitioner’s overpayment to be $3,526.79.  An invoice in that amount was issued on August 20, 2008, and the Notice of Involuntary Administrative Salary Offsets was issued on November 14, 2008.  (Answer, Exs. 6-8).  

DECISION

            Respondent contends that the Law Enforcement Availability Pay Act permits, but does not require, agencies to make LEAP available to trainees during basic training.  (See Finding #5).

            Respondent further contends that it was made clear to Petitioner when he was accepted into the Postal Inspection Service that he would not be entitled to LEAP until he completed the training program, and that he was paid LEAP during pay periods 6-11 only because of an administrative error.  Therefore, even though this error occurred through no fault of Petitioner, Respondent argues that he is not entitled to keep money erroneously paid to him.

            Petitioner provides a list of Federal agencies, which he asserts do pay LEAP to trainees during basic training that is comparable to the BIT program that Petitioner attended.  He argues that, under the statute requiring the Postal Inspection Service to provide compensation comparable to other executive agencies (see Finding #3), he was entitled to LEAP during training.

            Petitioner’s evidence, being nothing more than a list of agencies, with no further information or proof as to the circumstances under which these agencies  pay LEAP to trainees, falls far short of proving that the Postal Service is not in compliance with 39 U.S.C. §1003(c).  On the other hand, Respondent has submitted information demonstrating that the Federal Bureau of Investigation and the Drug Enforcement Administration do not pay LEAP to their agents until the agents have completed their basic training programs. 

            Based on the statute quoted in Finding #5 and all the information in the record, Petitioner has not demonstrated that the law requires the Postal Inspection Service to pay LEAP to trainees.  It is not the function of this forum to dictate what Postal Service policy should be, but the policy of not paying LEAP until the BIT program is completed is clear, and was clearly articulated to Petitioner when he accepted the appointment. 

           The record demonstrates that the payment of LEAP to Petitioner was the result of administrative error.  Petitioner is not entitled to keep money paid as a result of such error.  Accordingly, the Petition is denied.  Respondent may collect $3,526.79 from Petitioner.

Bruce R. Houston
Chief Administrative Law Judge

[1] The LEAP Act itself does not apply to the Postal Service, but the Postal Inspection Service has implemented its provisions, in accordance with 39 U.S.C. §1003(c).  Nigg v. United States Postal Service, 555 F. 3d 781 (9^th Cir. 2009); Nigg v. Merit Systems Protection Board, 321 F. 3d 1381 (Fed. Cir. 2003).