P.S. Docket No. AWG 21-424

FINAL DECISION

The Postal Service assessed Bilal Raybon with a $724.39 debt for 32.18 hours of unearned annual leave.  The Postal Service forwarded the debt to the Department of Treasury (“Treasury”) which added $231.80 in collection fees because Mr. Raybon did not promptly repay the debt.  The total of the debt and collection fees is $956.19.  Mr. Raybon challenges the $956.19 assessed by the government.

The Petition is granted in part and denied in part.  Because the Postal Service failed to provide notice to Mr. Raybon, the $231.80 in collection fees were improperly added.  The government may not collect the collection fees already assessed.

FINDINGS OF FACT

1. Mr. Raybon worked for the Postal Service from the fall of 2004 to the summer of 2010 (Resp. Exh. 9; Tr. 31-32).
2. In 2009, Mr. Raybon was injured when he fell down a flight of steps which made it very difficult to perform the duties of a mail carrier (Tr. 108-10).
3. In 2009 and 2010, the Postal Service paid Mr. Raybon for 32.18 hours he did not work because of his injury.  Mr. Raybon did not have sufficient sick leave or annual leave to cover the 32.18 hours.  (Resp. Exhs. 6, 11; Tr. 109).¹
4. The 32.18 hours were worth $724.39 (Tr. 52; Resp. Exh. 5).
5. Effective July 1, 2010, Mr. Raybon left the Postal Service (Tr. 35; Resp. Exh. 9).
6. The record includes a July 21, 2010 invoice from the Postal Service to Mr. Raybon for $724.39 for the 32.18 hours.  Attached to the invoice is a Notice of Debt by Administrative Offset under the Debt Collection Act.  That Notice purported to notify Mr. Raybon that he owed the Postal Service for either overdrawn annual or sick leave.  The Notice also stated the Postal Service’s intention to refer the debt for collection by administrative offset.  (Resp. Exh. 5).
7. At some point during the past 11 years, the Postal Service forwarded the debt to Treasury for collection.  Treasury added a $231.80 collection fee to the debt.  (Department of Treasury Notice of Intent to Initiate Administrative Wage Garnishment Proceedings dated February 15, 2021 (“Treasury Notice”).  The Treasury Notice explained that Mr. Raybon had the opportunity to request a hearing on the merits.  He filed a timely Petition requesting a hearing which we docketed as AWG 21-424.
8. After this case was docketed, the Postal Service was ordered to produce “all available relevant records.”  Specifically, the Postal Service was ordered to produce evidence showing that it sent notice to Mr. Raybon advising him of his rights and that it had provided him with the required due process.  (See Order dated October 20, 2021; Order and Memorandum of Telephone Conference dated October 29, 2021; Order and Memorandum of Telephone Conference dated December 2, 2021; see also 39 C.F.R. § 961.7).
9. The Postal Service believes that it sent Mr. Raybon notice of the $724.39 debt.  The Postal Service did not, however, produce evidence supporting this belief such as a Track & Confirm® report, USPS Tracking® report, return receipts, testimony from a records custodian, or some other proof of mailing.  Mr. Raybon provided persuasive testimony that he never received the invoice or Notice.  (Tr. 58-59, 139).  The Postal Service did not rebut this testimony.
10. The Postal Service was also ordered to produce the relevant Agreement to Certify Federal Nontax Debts for the Centralized Receivable Service, the Cross-Servicing Program, and the Treasury Offset Program (commonly called the Certification Agreement) between the Postal Service and Treasury.  (See Order and Memorandum of Telephone Conference dated December 2, 2021).  The Certification Agreement produced by the Postal Service applies to calendar year 2021.²  The Postal Service explained that it had not retained a copy of any earlier agreements more relevant to this dispute because it was more than ten years old.  The Postal Service also explained that it had not retained copies of any other Dunning letters sent to Mr. Raybon.  (Resp. Exh. 11 at 2; Tr. 80-81; Resp. Brief dated December 16, 2021).

DECISION

The Postal Service has the initial burden of proving the existence and amount of the debt to a preponderance level of the evidence.  31 C.F.R. § 285.11(f)(8)(i).  To meet this burden, the Postal Service must show:  (1) the overpayments were made; (2) the amount of the overpayments; and, (3) that Mr. Raybon is not entitled to the overpayments.  See, e.g., Reid v. United States Postal Service, DCA 19-392, 2021 WL 1390580 (March 16, 2021); see also Calhoun v. United States Postal Service, AWG 21-218, 2021 WL 5824359 (November 23, 2021).  If the Postal Service meets this burden, the burden shifts to Mr. Raybon who must show to a preponderance level of the evidence that no debt exists or that the amount of the debt is incorrect.  31 C.F.R. § 285.11(f)(8)(ii).

Unearned Annual Leave

The evidence shows that the Postal Service paid Mr. Raybon the $724.39 for 32.18 hours which he did not earn. 

Mr. Raybon responds that he was injured and did not sign any leave forms.  I find his testimony on this issue to be credible.  His supervisor, however, could have submitted the leave forms on his behalf.  The Postal Service’s payroll journal (a detailed version of a pay stub) shows the specific pay periods when Mr. Raybon was not working.  These dates roughly correspond to the time when Mr. Raybon was injured.  Notwithstanding the Postal Service’s failure to preserve all relevant documents such as leave forms, the record contains sufficient evidence to meet the Postal Service’s burden of proof.

I conclude that Mr. Raybon did not earn the pay he received for the 32.18 hours.  Because he did not earn the money, he is not entitled to retain it.  See, e.g., Ting v. United States Postal Service, DCA 20-52, 2020 WL 4501818 (July 22, 2020).  The Postal Service has therefore shown to a preponderance of the evidence that the government is entitled to collect the $724.39.

Due Process

Treasury added $231.80 in collection fees because Mr. Raybon did not promptly pay back the $724.39.  Mr. Raybon also challenges these fees, which were assessed because he did not timely repay the assessed debt. 

The additional collection fees are problematic.  Employees and former employees are entitled to due process before the government may collect debts by involuntary administrative salary offset, administrative offset, tax offset, or wage garnishment.  In the most basic sense, due process requires that employees and former employees are entitled to notice and an opportunity to be heard.  See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985); 5 U.S.C. § 5514; 31 U.S.C. §§ 3716(a)(1), 3720A(b)(1), 3720D(b)(2); 39 C.F.R. Parts 961 and 966; see also Employee Labor Relations Manual § 472.11 (March 2021)(“The Postal Service may initiate administrative offset only after the former employee has been provided with written notice . . . .”).  In this context, Mr. Raybon’s due process rights bear on the government’s ability to assess and collect the processing fees added by Treasury.  Simply put, the Postal Service must show that it sent Mr. Raybon notice of the debt before referring it to Treasury for further collection action, and the addition of the fees.  In the absence of such proof, Treasury’s assessment of fees before any prior notice was given by the Postal Service violates these due process principles.

Regarding the first debt for $724.39, the record includes some evidence that the Postal Service sent an initial notice to Mr. Raybon in July 2010.  The Postal Service produced a Notice letter.  If notice were not an issue, that would generally be sufficient.  I would presume that saving a letter would generally mean it was sent.  Then, I would presume that a letter deposited into the mail stream is generally delivered as addressed.  See, e.g., Republic of Sudan v. Harrison, 139 S. Ct. 1048, 1057 (2019)(the Court relied on “the venerable ‘mailbox rule’” for the proposition that mail properly addressed and deposited into the mail stream will be delivered); see also Restatement (Second) Contracts § 66 (Am. Law. Inst. 1981).

Mr. Raybon, however, credibly testified that he never received the Notice.³  In rebuttal, Postal Service could not produce evidence from its own Track & Confirm® system, USPS Tracking®, testimony from a cognizant Postal Service records custodian, or other evidence proving that it was deposited into the mail stream.  Accord Rios v. Nicholson, 490 F.3d 928, 930 (Fed. Cir. 2007)(the cognizant records custodian testified that its “Page of Registry of Sent Correspondence” shows that a letter was placed in the mail stream, thus the mailbox rule applied).  At trial, the Postal Service’s witness did not have personal knowledge of whether the Notice was placed into the mail stream.  39 C.F.R. § 258.11(e)(1).  Based on the facts in the record, I conclude that the Postal Service failed to meet its burden of showing that proper notice was sent to Mr. Raybon.

Mr. Raybon first learned of the two debts when he received a Notice of Intent to Initiate Administrative Wage Garnishment Proceedings issued by Treasury in February of 2021.  Mr. Raybon then timely requested a hearing. This Treasury Notice satisfies the Postal Service’s due process obligation for the principal debt of $724.39, but as discussed below, it is not sufficient to support the Treasury fees.  

The Postal Service argues that the proper method to address the failure to provide notice is to request an administrative offset hearing.  See 31 U.S.C. § 3716; 39 C.F.R. Part 966.  However, if the Postal Service never sent Mr. Raybon notice (and he never received it), he would not know of the debt and his rights.  This position is fundamentally unreasonable because the Postal Service has not proved that it notified Mr. Raybon of the debt in July 2010, or at any other time before referring the debt to Treasury.

The Postal Service also argues that Mr. Raybon should have addressed the problem when he received his biweekly pay stubs showing a negative leave balance.  The record does not include the biweekly pay stubs, so the argument is unsupported by evidence in the record.  Additionally, the Postal Service did not produce evidence showing that the biweekly pay stubs advised Mr. Raybon of his due process rights.

The law as applied to the evidence shows that Mr. Raybon owes the Postal Service for the 32.18 hours.  The Postal Service, however, failed to show that it sent Mr. Raybon notice.  This failure to provide notice (an important part of due process) resulted in an improper addition of $231.80 in collection fees by Treasury.  Mr. Raybon was prejudiced by the Postal Service’s failure to provide notice.  See, e.g., Suntec Indus. Co. Ltd. v. United States, 857 F.3d 1363, 1368 (Fed. Cir. 2017)(litigant must show that the lack of notice prejudiced it in order to receive relief).

In summary, the government doesn’t get to deprive a person of due process (in this case the required notice and an opportunity for a hearing) and then add collection fees because the debts weren’t promptly paid.

ORDER

The Petition is denied as to the $724.39.  The government may collect the $724.39. 

The Petition is granted as to the $231.80 in collection fees.  Because the Postal Service did not send notice, the government may not collect the $231.80 in Treasury-related collection fees.