June 13, 2018

In the Matter of the Administrative Offset Petition

DAVID EDWARD YOUNG v. UNITED STATES POSTAL SERVICE

P.S. Docket No. AO 13-327

APPEARANCE FOR PETITIONER:
David Edward Young

APPEARANCE FOR RESPONDENT:
Tracy A. Wood
Labor Relations Specialist

POSTAL SERVICE DECISION

On March 29, 2018, Administrative Judge Diane M. Mego issued the Initial Decision in this case.  That decision concluded that the Postal Service is entitled to collect $860.98 from Mr. Young by administrative offset, but is not entitled to recover the remaining $2,250.86 of its debt assessment.  Both parties filed appeals on May 9, 2018.  Both appeals are denied.

FACTUAL BACKGROUND

Briefly stated, for disciplinary reasons the Postal Service placed Mr. Young in leave-without-pay status on March 9, 2011 (Finding 1).  A grievance arbitration decision allowed the Postal Service to remove Mr. Young from employment on January 12, 2012 (Finding 4).  Three debt assessments resulted:  (1) $860.98 for 36 hours of overdrawn, unearned annual leave which the Postal Service paid Mr. Young while in leave-without-pay status; (2) $1,212.39 for uncollected health insurance premiums between July 2011 and February 2012; and (3) $1,038.47 for flexible spending account contributions which were not collected from Mr. Young while he was in leave-without-pay status (Findings 2-3, 6-7).

PROCEDURAL HISTORY

The Hearing Official at the trial level decides, after consulting with the parties and considering their recommendations, whether to conduct an oral hearing, or alternatively, resolve the case based on written submissions alone.  See 39 C.F.R. §§ 966.8(4), 966.9 (2013 version).  Here, Judge Mego decided to resolve the case based on written submissions without an oral hearing, and instructed the parties to submit evidence and briefs by November 15, 2013.  In doing so, she cautioned that submission on the written record does not relieve the parties from the necessity of proving the facts supporting their allegations.  See October 25, 2013 Order and Memorandum of Telephone Conference.
The perils of cases decided solely on a written record were explained by the Civilian Board of Contract Appeals in 1-A Constr. & Fire, LLP v. Dept. of Agric., CBCA No. 2693, 15 BCA ¶ 35,913 at 175,551 (internal quotations and citations omitted):
Submission on the written record does not relieve the parties from the necessity of proving the facts supporting their allegations or defenses.  While [the Hearing Official] can make inferences from the evidence and either accept or deny the probative value of documents, statements or other extrinsic evidence, in order . . . to find for a party, that party's evidence must establish, by a preponderance of the evidence, that it is entitled to relief.  A party . . .  acts at its peril, in a [case submitted on the written record in lieu of a hearing], where it fails to provide . . .  sufficient factual information, supported by affidavits or probative documentary evidence. . . . [F]ailure to present affidavits of sufficiently clear and probative documentary evidence will almost surely result in denial of [the claim].
In this case, neither party filed any witness testimony, sworn or otherwise.
Mr. Young filed no evidence at all concerning the merits of this dispute.  He submitted evidence related only to financial hardship, which is relevant to an offset schedule, not to the merits.
During the proceedings before the Hearing Official, the only evidence submitted by the Postal Service were minimal documents attached to its Answer.  Although the Postal Service filed a brief, it did not submit additional evidence as it was instructed to do.  The extraordinarily meager evidentiary record resulted.
The Hearing Official determined that the case was ready for the decision to be issued as of December 2, 2013.  See October 25, 2013 Order and Memorandum of Telephone Conference.  The Initial Decision was not issued, however, until March 2018.  The record does not reveal the reason for the lengthy delay.

STANDARD OF REVIEW

As I recently explained in Lofton v. United States Postal Service, AO 13-313, 2018 WL 2688562 (P.S.D. May 18, 2018), on appeal, I analyze the findings of fact in the Initial Decision using a clearly erroneous standard of review.  This standard requires that I accept those findings unless I have a definite and firm conviction that a mistake has been committed.  I cannot reverse findings of fact if the Initial Decision’s conclusions about the evidence are plausible in light of the record in front of the Hearing Official, even if I am convinced that I would have weighed that evidence differently.  Id.  With that standard in mind, I address both parties’ appeals.

MR. YOUNG’S APPEAL

Mr. Young’s appeal challenges the Initial Decision’s ruling that the Postal Service can collect $860.98 from him by administrative offset.  Mr. Young complains that the 2012 grievance arbitration decision resulting in his removal from the Postal Service was unfair.  The Debt Collection Act does not authorize me to change an arbitrator’s decision in a grievance proceeding, see, e.g., Gary Crowley, DCA-92, 1991 WL 12010567 (October 18, 1991), and I cannot provide him relief in that regard.
Mr. Young also argues that allowing collection now would be unfair, as both parties simply should move on from this old dispute.  I empathize with Mr. Young’s position given the extraordinary length of time that has elapsed since this dispute arose.  However, while the Postal Service remains able to consider a waiver of the debt as a matter of its management prerogative, neither the Hearing Official nor the Judicial Officer are authorized to grant a waiver in an Administrative Offset case under the Debt Collection Act.  We decide whether a debt has been proved; the Postal Service decides whether to collect it.  See Lofton, AO 13-313.
In addition to considering Mr. Young’s arguments, I reviewed the record on my own initiative.  After doing so, I conclude that the Initial Decision’s findings of fact concerning the overdrawn annual leave debt assessment are not clearly erroneous, nor is the Initial Decision incorrect in its analysis.  Mr. Young was paid for leave that he had not earned, and must pay it back despite the intervening passage of years since the overpayment.  The Postal Service is permitted to collect $860.98 from Mr. Young by administrative offset.

THE POSTAL SERVICE’S APPEAL

In its appeal, the Postal Service argues that it proved Mr. Young’s liability for the other two assessed debts – the flexible spending account payments debt and the uncollected health insurance premiums debt – by its 2013 submissions to the Hearing Official.
Regarding the flexible spending account issue, the precedent cited in the Initial Decision is misplaced, as those decisions apply to health insurance premium debts.  To collect its assessed debt related to Mr. Young’s flexible spending account, the Postal Service was required to prove that Mr. Young was enrolled in a flexible spending account, and was in leave-without-pay status during an identified time within that enrollment period.  It also must explain its calculation of the value of the missed payments.  See Vernice Armstrong, AO 13-261, 2014 WL 12767821 (I.D. February 6, 2014).
The Postal Service proved that Mr. Young was in leave-without-pay status, but it did not prove that he was enrolled in a flexible spending account during that time.  Indeed, other than submitting an invoice,¹ the Postal Service submitted no proof at all on the issue in 2013 – only argument.  I therefore agree with the Initial Decision that the Postal Service failed to satisfy its burden of proof.  See John Dergosits, AO 07-6, 2007 WL 9676905 (I.D. June 5, 2007).
However, with its 2018 appeal, the Postal Service submitted Exhibit 7, which seems to show Mr. Young’s flexible spending account enrollment and its amount.  Had the Postal Service submitted Exhibit 7 as evidence before the Hearing Official (or had it submitted similar documentary evidence or relevant written testimony), the Postal Service may well have been able to prove its case.  Because the record does not show that this crucial evidence was filed until years after the record closed, I issued an Order providing the Postal Service with an opportunity to show that the documents filed with its appeal were part of the record previously, or if not, to explain why I should consider them on appeal.  See May 25, 2018 Order.
In the Postal Service’s June 11, 2018 Response, it does not contend that the documents attached to its 2018 appeal were in the 2013 evidentiary record before the Hearing Official, nor does it contend that it was confused by or misunderstood the Hearing Official’s Order.  Rather, the Postal Service argues that its newly-filed documents corroborate the evidence that it filed in 2013.  The Postal Service also emphasizes that this newly-submitted evidence readily was pulled from Mr. Young’s Official Personnel File.
Without having been provided any explanation of why I should consider new evidence years after the record closed, I exclude it.  See Frank Gomon, POB 98-505, 1999 WL 35796449 (P.S.D. February 18, 1999); Filomena D. Winslow, PF-5, 1990 WL 10850718 (P.S.D. September 13, 1990) (new evidence on appeal will not be considered in Postal Service administrative proceedings without a party showing why it should be permitted to introduce such evidence); see also Grant v. United States Postal Service, DCA 15-47, 2015 WL 13647649 at n. 1 (June 11, 2015) (new evidence offered after the record closed is excluded because the party seeking to introduce it did not satisfy the exacting standard for demonstrating that new evidence could not have been presented at the hearing).
The Postal Service argues that Mr. Young failed to prove that he cancelled health insurance coverage when given the opportunity by the paperwork sent to him with the Postal Service’s Notice of Removal, and therefore, I should hold him liable to pay premiums for continued health insurance coverage.  The Initial Decision found that the Postal Service sent PS Form 3011, Federal Employees Health Benefit Coverage or Termination, to Mr. Young.  That form allows an employee to discontinue health insurance coverage while in leave-without-pay status, and advises that if the employee does not return the form, his health insurance coverage will continue.  (Finding 5).  I accept those findings as supported by the record below.
Finding 5 also concludes that the record does not establish whether Mr. Young returned the form.  I have reviewed the record carefully, and agree with the Initial Decision that the Postal Service submitted no proof in this regard before the Hearing Official.  The Postal Service therefore failed to prove that Mr. Young was covered by postal-funded health insurance while in leave-without-pay status.²  Because the Postal Service bore the burden of proving the debt, see Patricia McLean, DCA 07-31, 2007 WL 9676925, and failed to satisfy that burden by not submitting evidence, its argument on appeal must be denied.
As with the flexible spending account debt assessment, it would seem to have been a simple matter for the Postal Service to have submitted to the Hearing Official documentary or testimonial evidence showing that Mr. Young was provided postal-funded health insurance coverage during the time in question.  Indeed, on appeal, the Postal Service notes how easy it was to retrieve supporting documentary evidence from Mr. Young’s Official Personnel File.  The Postal Service simply failed, at its peril, to submit that evidence when it needed to do so.
It is the responsibility of each party to present the evidence necessary to satisfy that party’s burden of proof.  The judge evaluates that evidence - she does not independently search for, present, or create the evidence.  Further, “[i]t is not the judge’s role to examine all the documents [in the evidentiary record] and advise a party that some element of proof is missing.”  Patricia O’Connell, DCA 02-9, 2002 WL 35644073 (April 3, 2002).  Where the record is essentially completely barren, as in this case, the burden of proof controls the outcome.  See Marcus Carter, DCA 08-323, 2008 WL 11383916.

CONCLUSION AND ORDER

Both appeals are denied.  The Postal Service is permitted to collect $860.98 from Mr. Young by administrative offset, but is not entitled to recover the remaining $2,250.86 of its debt assessment.

Gary E. Shapiro
Judicial Officer