March 7, 2018

In the Matter of the Debt Collection Act Petition

AILEEN MOORE v. U.S. DEPARTMENT OF VETERANS AFFAIRS

P.S. Docket No. VA 17-238

APPEARANCE FOR PETITIONER:
Aileen Moore

APPEARANCE FOR RESPONDENT:
Kelly J. Burns, Esq.
U.S. Department of Veterans Affairs

FINAL DECISION UNDER THE DEBT COLLECTION ACT OF 1982

Aileen Moore, Petitioner, filed a Debt Collection Act Petition on February 21, 2017.  Respondent, the United States Department of Veterans Affairs (VA) seeks to collect $795.68 from Ms. Moore, which it contends is a salary overpayment.¹  I find in favor of Ms. Moore.

FINDINGS OF FACT

1. Ms. Moore is a Nurse/RN Educator at the Salem VA Medical Center (AE 1).
2. On January 6, 2016, Ms. Moore’s director awarded her a Superior Performance Award in a lump-sum payment of 1.5% of her base salary, or $1,256 (AE 4; AE 1 at 1).  The Superior Performance Award was based on Ms. Moore’s performance and proficiency during FY16 (AE 4 at 1).  Ms. Moore received the payment on March 5, 2016 (AE 5 at 1).
3. On August 21, 2016, Ms. Moore received a Special Advancement for Performance during the rating period of February 17, 2015 to February 17, 2016 (AE 1 at 3; AE 6 at 6).  Ms. Moore’s pay grade increased from Grade III, step 6 to Grade III, step 7 and increased her annual salary from $84,543 to $86,748 (AE 1 at 3).  The Nurse Professional Standard Board, which approved the step increase, based its decision on her proficiency reports from FY14 to FY16, her education and her professional experience (AE 6 at 9-10).
4. Following the award of the Special Advancement for Performance, the VA determined that under VA Handbook 5017, Employee Recognition and Awards, Ms. Moore was not entitled to receive a Superior Performance Award and Special Advancement for Performance for the same performance period (AE 2; AE 3).
5. On September 22, 2016, the VA cancelled the $1,256 Superior Performance Award, and on October 15, 2016, issued a letter of debt determination.  After adjusting for deductions, the VA seeks to recover $795.68 (AE 1 at 2; AE 8).
6. On February 21, 2017, Ms. Moore filed a Petition for Hearing under the Debt Collection Act.²

DECISION

When the VA seeks to recover a salary overpayment under the Debt Collection Act of 1982, it bears the initial burden to prove that (1) it made the salary overpayment, (2) it properly calculated the amount of the overpayment, and (3) the employee was not entitled to the overpayment.  Herrin v. U.S. Dep’t of Veterans Affairs, VA 17-48, 2017 WL 5516590 (June 30, 2017).  If the VA meets that burden, the burden shifts to the employee to prove either an excuse sufficient to relieve the debt or that the amount of the debt is inaccurate.  See Caroline Harrington, DCA 08-333, 2009 WL 10690544 (May 13, 2009).
Here, the VA has not met its initial burden.  The VA relies on VA Handbook 5017, Employee Recognition and Awards, to prove that Ms. Moore was not permitted to receive a Superior Performance Award and Special Advancement for Performance for the same performance period.  VA Handbook 5017 provides that
A registered nurse or nurse anesthetist may not receive a Special Advancement for Performance and a Special Contribution Award based on the same performance, nor may they receive a Special Advancement for Achievement and a Special Contribution Award based on the same achievement or contribution. (Emphasis added).
(AE 10 at 12).
Ms. Moore did not, however, receive both a Special Advancement and a Special Contribution Award.  Instead she received a Special Advancement and a Superior Performance Award.  By relying on Handbook 5017, the VA apparently is conflating the Special Contribution Award and the Superior Performance Award into the same award.   That argument is not supported by Handbook 5017.  Indeed, the Handbook has separate definitions for the two types of awards (AE 10 at 6).  As further evidence that the two types of awards are not the same, the VA Form 4659, Incentive Awards Recommendation and Approval, that awarded Ms. Moore for her superior performance lists the two awards separately (AE 4 at 1).  The prohibition against two awards during the same performance period does not apply to the two award types received by Ms. Moore.
Accordingly, the VA failed to meet its burden of proof on the claim of debt, and Ms. Moore is entitled to judgment in her favor.

ORDER

The Petition is granted.  The VA is prohibited from collecting $795.68 from Ms. Moore by administrative salary offset.

Diane M. Mego
Administrative Judge