P.S. Docket No. DCA 21-68

FINAL DECISION UNDER THE DEBT COLLECTION ACT OF 1982

Mr. Bettwieser received a salary advance in November 2020 when his regular salary check did not arrive as scheduled. The next day, Mr. Bettwieser received the missing paycheck but refused to repay the salary advance. The Postal Service now seeks to collect a debt based on the salary advance. In defense, Mr. Bettwieser wants to be excused from the debt because of alleged procedural missteps by the Postal Service, both before and during this proceeding. For the reasons below, those arguments are not persuasive. The petition is therefore denied.  

FINDINGS OF FACT

Mr. Bettwieser worked at the Five Mile Post Office in Boise, Idaho, at all times relevant to this dispute. On November 27, 2020, he asked his supervisor, John Lopez, for a salary advance because he hadn’t received his regular paycheck as scheduled (Tr. 1 at 13; Resp. Exh. 1). As part of that process, Mr. Bettwieser and Mr. Lopez prepared a PS Form 2240-R, Emergency Salary Advance Authorization and Receipt, for a salary advance. Immediately above Mr. Bettwieser’s signature, the form notified Mr. Bettwieser of his obligation to repay the cash advance by stating:
I hereby certify that I have received an emergency salary payment of the stated amount. I authorize the USPS to recover this amount upon receipt of the missing check or in the calculation of the salary check that reflects the appropriate adjustment, or subsequent salary checks, as required, to satisfy the debt.

(Resp. Exh. 1). Mr. Bettwieser then received money orders totaling $1,741.82 (Resp. Exh. 2; Tr. 1 at 14–15, 51). 
The next day, several missing salary checks, including Mr. Bettwieser’s, arrived at the Five Mile Post Office, and Mr. Bettwieser received his salary check that had been the basis for the salary advance the previous day (Tr. 1 at 15–16, 54; Resp. Exh. 3). A few days later, Mr. Lopez told Mr. Bettwieser that he needed to repay the advance, but Mr. Bettwieser refused, saying that he intended to wait for a demand letter from the Postal Service before repaying the advance. (Tr. 1 at 16).  
On January 21, 2021, the Postal Service issued a Notice of Involuntary Administrative Salary Offset Under the Debt Collection Act (Pet. Exh. K at 2).

DECISION

The Postal Service may give an employee a salary advance if the employee did not receive a regular salary check. Handbook F-101, Field Accounting Procedures, § 23-3.1.1b. The F-101 also sets out the procedures that both the Postal Service and the employee must take when a salary advance is necessary. For its part, the Postal Service may, among other things, prepare a form—in this case a PS Form 2240-R. The form will list the amount of the salary advance and act as a proof of receipt. F-101, § 23-3.2. It goes without saying that the employee is not entitled to keep a salary advance if the employee eventually receives a regular salary check covering the same amounts paid in the salary advance. To recover a salary advance, the Postal Service therefore must prove that it made the salary payments, the amount of the payments, and that the employee was not entitled to keep them. Abdullah v. United States Postal Service, DCA 15-19, 2015 WL 13647643 (May 11, 2015).  
Here, the facts surrounding the salary advance to Mr. Bettwieser are generally undisputed. In November 2020, Mr. Bettwieser (and several other employees at the Five Mile Station) did not receive their salary checks as scheduled. As permitted by Postal Service regulations, Mr. Bettwieser asked for, and received, a salary advance of $1,741.82. He also executed a Form 2240-R. The next day, Mr. Bettwieser received his regular salary check, thereby triggering his obligation to return the salary advance. The Postal Service has thus met its initial burden of proof. 
In his defense, Mr. Bettwieser has raised a long train of alleged abuses by the Postal Service that he believes should relieve him from the debt. Most of these arguments were dealt with before the hearing.¹ This decision will address the major arguments raised during and after the hearing. First, Mr. Bettwieser alleges that the Postal Service violated 31 U.S.C. § 3716 throughout these proceedings (Tr. 1 at 56). While that statute does govern certain administrative offsets, this petition is proceeding under 5 U.S.C. § 5514 and our implementing regulations in 39 C.F.R. Part 961. Section 5514(a)(2), however, covers much of the same ground as § 3716(a), especially as it relates to procedural issues. Both statutes provide that before an agency seeks to collect a debt it must provide the alleged debtor with (1) written notice of the debt and the agency’s intention to collect the debt, (2) an opportunity to inspect and copy government records, (3) an opportunity to establish a repayment schedule, and (4) an opportunity for a hearing on the existence and amount of the debt, and if appropriate, a repayment schedule. 
Mr. Bettwieser has not proved the Postal Service violated any of these provisions, let alone all of them. The Postal Service notified Mr. Bettwieser in early January 2021—mere weeks after the salary advance—that he had incurred a debt based on the salary advance (Resp. Exh. 6). Next, during this proceeding, Mr. Bettwieser was provided with documents relevant to the dispute and had a full and fair opportunity to review those documents before the hearing. And although he chose not to negotiate a repayment schedule, Mr. Bettwieser was reminded many times during the proceedings that he could do so if he wanted. Finally, Mr. Bettwieser had a chance to present testimony from five of the witnesses on his witness list. Taken together, these facts show that the Postal Service did not deprive Mr. Bettwieser of the statutory due process rights provided by either 31 U.S.C. § 3716 or 5 U.S.C. § 5514.  
Mr. Bettwieser next argued that the Postal Service defaulted because it did not follow its own grievance procedures (Tr. 1 at 64). As early as December 3, 2020, Mr. Bettwieser started a grievance proceeding about the salary advance (Pet. Exh. I at 2). The Postal Service received a PS Form 8191 (USPS-NRLCA Joint Step 1 Grievance Form) from Mr. Bettwieser in January 2021 (Pet. Exh. O at 1). But the Postal Service did not respond, and Mr. Bettwieser stated his concerns about that fact in letters in late January and early February 2021. He believed then—and continues to argue—that the Postal Service’s failure to respond to those letters and otherwise process his grievance entitles him to relief from the debt (See Pet. Exh. G at 1; Pet. Exh. J at 1; Pet. Exh. K at 1).
To begin, Mr. Bettwieser’s assertion about the Postal Service’s failure to follow its own grievance procedures is generally outside the scope of review in a Debt Collection Act proceeding. Further, Mr. Bettwieser did not take advantage of the possible remedies available to him in the face of the Postal Service’s apparent failure to respond to his Step 1 grievance.² Rather than pursuing that grievance, Mr. Bettwieser instead filed a petition with the Judicial Officer Department seeking review under the Debt Collection Act. That decision suggests that Mr. Bettwieser effectively abandoned his grievance and proceeded with this petition—which he was legally entitled to do. Employee and Labor Relations Manual (ELM) § 462.22b. Having chosen to proceed under the Debt Collection Act, Mr. Bettwieser cannot now complain about a procedural misstep by the Postal Service in the grievance process.  
Shortly after the hearing, Mr. Bettwieser filed a Motion for Adverse Inference and Sanctions, which focused on the logistical difficulties in scheduling the witnesses. Later, Mr. Bettwieser supplemented his motion, which now complained that he had not received the Postal Service’s written closing statement. Each of these issues will be discussed in turn.  
Mr. Bettwieser is correct that scheduling the witnesses was difficult, resulting in the need to conduct the hearing in four sessions over several months. But there is no credible evidence to support his assertion that those difficulties justify either relief from the debt or drawing an adverse inference against the Postal Service. See Helman v. United States Dep’t of Veterans Affairs, VA 14-397, 2015 WL 13647663 (September 16, 2015) (setting out the requirements for drawing an adverse inference). In fact, the Labor Representative ultimately arranged for the testimony of five Postal Service employees—each of whom Mr. Bettwieser had a chance to examine under oath. Mr. Bettwieser thus had a full and fair opportunity to present his case, negating any justification for relief from the debt or drawing an adverse inference. 
Second, at the end of the hearing, Mr. Bettwieser asked if he could submit his closing statement in writing. I granted his request and allowed each party to file a written closing statement (Tr. 4 at 9–11). Mr. Bettwieser now complains that he never received a closing statement from the Postal Service. In response, the Postal Service filed a status report asserting that it mailed a copy of its closing statement to Mr. Bettwieser.  
In considering this part of the motion, I need not doubt the assertions of either party. I have no reason to question the Labor Representative’s claim that she mailed her closing argument to Mr. Bettwieser. I also have no reason to doubt that Mr. Bettwieser, for whatever reason, did not receive it. As to the merits of the motion, I find that Mr. Bettwieser was not prejudiced by his non-receipt of the closing statement. The Postal Service’s closing statement simply reiterated arguments it had presented throughout this proceeding, all of which Mr. Bettwieser had a chance to refute. There was thus no need for any further response from Mr. Bettwieser.  
For these reasons, Mr. Bettwieser’s Motion for Adverse Inference and Sanctions is denied.  

ORDER

The petition is denied. The Postal Service may collect $1,741.82 by involuntary administrative salary offset.