Debt Collection Act Petition
Marcus Seymour v. United States Postal Service
Party Representatives:
Marcus Seymour, for Petitioner
Paul Ahnert, Labor Representative, for United States Postal Service
FINAL DECISION
The Postal Service seeks to collect seven alleged debts from Mr. Seymour by involuntary administrative salary offset. The debts fall into three categories: (1) recovery of Mr. Seymour’s share of his Federal Employee Health Benefits (FEHB) Program premiums, (2) salary overpayments, and (3) taxes associated with the salary overpayments. The Postal Service has offset a portion of the FEHB debts and $192.43 for one of the salary overpayments.
Mr. Seymour did not contest the FEHB debts. After the hearing held on these petitions, Mr. Seymour paid what the parties considered to be the remainder of the amount due.
The Postal Service met its burden of proof for only one of the other debts, a salary overpayment of $634.95. Mr. Seymour is liable only for that debt. The Postal Service may not collect the other debts discussed below. It also must refund the $192.43 already offset because that amount was applied to a debt that it did not prove.
FINDINGS OF FACT
PROCEDURAL HISTORY
Mr. Seymour filed three petitions for hearing based on these debts. They were docketed as DCA Nos. 22-383, 23-24, and 23-158 and consolidated. DCA No. 22-383 covers Invoice Nos. 703287617, 703307672, and 703330899. DCA No. 23-24 is duplicative of DCA No. 22-383.
DCA No. 23-158 covers Invoice No. 703366213 and the three tax invoices. (Pet. Exhs. 1, 11, 12; Notice of Docketing for DCA No. 22-383, Sept. 21, 2022; Notice of Docketing for DCA No. 23- 24, Jan. 13, 2023; Notice of Docketing for DCA No. 23-158, April 13, 2023; Order and Memorandum of Telephone Conference, Nov. 15, 2023).
Mr. Seymour had an opportunity to request documents and did so for certain invoices (Pet. Exhs. 1, 11, 12).
A hearing on all three petitions was held by video conference (Tr. 1). The Postal Service presented two witnesses: (1) an occupational health nurse administrator, and (2) a maintenance manager who testified that she could not explain how any of the debt amounts were calculated (Tr. 17–18, 38–39, 59–60).
DECISION
FEHB Payments
Invoice No. 703287617 and $851.84 of Invoice No. 703330899 are based on FEHB payments made on Mr. Seymour’s behalf. Mr. Seymour no longer contests these debts. Accordingly, the petitions are denied as to these amounts.
The Postal Service may retain the funds offset for Invoice No. 703287617.2 Mr. Seymour has paid $851.84, which satisfied the FEHB portion of Invoice No. 703330899.
Due Process
For the remaining debts, I first examine whether the Postal Service met its procedural due process requirements, and, if not, whether they were waived or cured. Before initiating collection under the Debt Collection Act (DCA), the Postal Service must provide the debtor with 30 days written notice of the nature and amount of the debt, the intention of the Postal Service to collect through deductions from pay, and an explanation of the debtor’s rights. 5 U.S.C. § 5514(a)(2).
Those rights include an opportunity to inspect and copy records, enter into a written agreement about a repayment schedule, and have a hearing on the existence or amount of the debt or, if applicable, the terms of the repayment schedule. Id. The Postal Service has the burden of proving it met these requirements.
The Postal Service normally meets these requirements by issuing a notice of involuntary administrative salary offset, accompanied by a statement of debtor’s rights and responsibilities. When he filed his first two petitions, Mr. Seymour complained that he had not received the required notices (Pet. Exhs. 1, 11). The parties and I discussed in numerous telephone conferences that the Postal Service needed to provide them. At one point, I ordered the Postal Service to provide Mr. Seymour with a notice for Invoice No. 703330899. (Orders and Memoranda of Telephone Conferences, Nov. 22, 2022, Dec. 7, 2022, Dec. 16, 2022, Nov. 15,
2023, Nov. 17, 2023, Nov. 27, 2023). Ultimately, the Postal Service produced the notices for every debt except for Invoice No. 703330899.
A lack of notice can be waived. Waiver is the intentional relinquishment or abandonment of a known right. See, e.g., United States v. Olano, 507 U.S. 725, 733 (1993). During a telephone conference early in these proceedings, Mr. Seymour stated that he did not waive his rights as to any missing notices (Order and Memorandum of Telephone Conference, Nov. 15, 2023). But he later agreed to pay, and then paid, the FEHB part of Invoice No. 703330899, and he participated in the hearing for the remainder of the debt. His subsequent words and conduct, when combined, establish that he waived the lack of notice for Invoice No. 703330899.
A lack of notice can also be cured when a petitioner is provided the information and opportunities described in 5 U.S.C. § 5514(a)(2) through the petition process. Bell v. United States Postal Service, AO 19-361, 2020 WL 5255635 (Aug. 24, 2020); Ting v. United States Postal Service, DCA 20-52, 2020 WL 4501818, at *3 (July 22, 2020). That occurred here. Despite the lack of notice, Mr. Seymour was twice able to file a petition on Invoice No. 703330899. He had an opportunity to request documents and did so for other invoices. He had an opportunity to enter into a repayment agreement but opted to repay the FEHB part as a lump sum. He received information about the nature and amount of the debt and the Postal Service’s intention to collect through payroll deductions. He also received a hearing. Because he received the due process to which he was entitled, the Postal Service’s procedural violation was cured.
Moreover, the lack of notice alone would not have relieved Mr. Seymour of the debt. The traditional remedy for a procedural violation such as this one is to award the petitioner the right to the proper process. Williams v. United States Postal Service, DCA 19-233, 2020 WL 3000304 (May 15, 2020). Even if I had found that the lack of notice was not waived or cured, the Postal Service still could have initiated collection efforts in the future by properly providing notice.
Salary Overpayments
Next, I turn to the substantive analysis. To recover a salary overpayment, the Postal Service bears the initial burden of proving, by a preponderance of the evidence, the existence and amount of the debt. Terrell v. United States Postal Service, AO 21-77, 2021 WL 5579791, at *2 (Sept. 23, 2021). In other words, the Postal Service must prove it made the overpayment and properly calculated the amount of the debt. Normally, the Postal Service meets its burden by submitting payroll journals for the relevant pay periods, along with witness testimony explaining the relevant portions of the payroll journals. Cleaver v. United States Postal Service, AO 22-56, 2022 WL 16836195, at *2 (Oct. 28, 2022). If the Postal Service meets its burden, the burden shifts to the petitioner to show by a preponderance of the evidence that no debt exists or the amount of the debt is incorrect. Terrell, AO 21-77, at *2.
The Postal Service seeks to recover three alleged salary overpayments, each discussed below.
Invoice No. 703366213
With Invoice No. 703366213, the Postal Service seeks to recover $719.97 allegedly paid to Mr. Seymour for 40 hours in week two of pay period 20 of 2022. The Postal Service, however, presented no evidence—such as payroll journals—proving that Mr. Seymour was paid for those hours. In fact, two Postal Service exhibits, the Leave Year 2022 Absence Analysis and Employee Key Indicators Report, showed that Mr. Seymour was on LWOP or had scheduled days off during these dates.
The Postal Service also failed to prove the amount of the debt was correctly calculated. Before the hearing, the Postal Service used the remainder of Mr. Seymour’s sick leave to change 12 of the 40 hours from LWOP to paid, sick leave. At the hearing, it stipulated that the debt should be reduced by the monetary value of those hours. It did not, however, provide that value. I ordered the Postal Service to provide it within eight days of the hearing, but the Postal Service did not. (Tr. 39–42).
Having failed to meet its burden of proving the existence and amount of this debt, the Postal Service may not collect it.
Invoice No. 703330899
$634.95 of Invoice No. 703330899 was for a salary overpayment of 80 hours in pay periods 10–11 of 2022. Again, two Postal Service exhibits, the Leave Year 2022 Absence Analysis and the Employee Key Indicators Report, showed that Mr. Seymour was on LWOP. For this invoice, however, the Postal Service provided the relevant payroll journals. Those journals showed that Mr. Seymour was paid 80 hours during those two pay periods. The payroll journals also showed that the gross monetary value of those hours was $3,576.81. The Postal Service did not explain why it is seeking less, but it did prove that it is entitled to at least the amount sought.
Mr. Seymour made several arguments in his defense before and during the hearing. Before the hearing, he claimed that the LWOP should have instead been recorded as paid COVID-19 leave, and he asked that the Postal Service apply his available sick leave and WWL to reduce the salary overpayment debts. At the hearing, Mr. Seymour requested that I order the Postal Service to change the 80 hours to WWL. He also claimed that (1) he had a right to know before the payroll adjustment giving rise to the debt was made; (2) the Postal Service violated the Fair Labor Standards Act (FLSA) by not keeping proper records of his pay, and (3) he is entitled to back pay based on ELM § 436.1, Corrective Entitlement. (Resp. Exhs. 1–2; Tr. 75–76, 80–82, 92–93, 103; Orders and Memoranda of Telephone Conferences, Dec. 4, 2023, Nov. 17, 2023, Dec. 7, 2022).
In general, a petitioner’s claim for money allegedly owed by the Postal Service is not heard under the DCA. Eric A. Van Dyke, DCA 12-2, 2012 WL 13034259, *1 (Apr. 26, 2012). But if the petitioner’s demand is so closely related to the Postal Service’s overpayment claim as to constitute a single debt dispute, I may hear it. Ashley A. Nokes, DCA 14-149, 2014 WL 12767839, *2 (July 16, 2014); Jerome L. Smith, AO 08-308, 2009 WL 10690538 (I.D. Sept. 17,
2009).
First, I address Mr. Seymour’s leave arguments. As discussed above, the Postal Service applied his available sick leave to reduce Invoice No. 703366213, leaving no hours to offset this invoice. As for his belated claims for COVID-19 leave and WWL, even assuming they are so closely related to Invoice No. 703330899 as to constitute a single debt dispute, they are not valid claims.
Mr. Seymour’s COVID-19 leave claim is not valid because paid COVID-19 leave was not available in 2022. Congress passed two acts allowing paid leave for COVID-19-related reasons, but both acts placed time restrictions on its use. In the first instance, the leave was available from April 1 to December 31, 2020. Families First Coronavirus Response Act, Pub. L. No. 116-127, 134 Stat. 177, 195 available from March 11 to September 30, 2021. American Rescue Plan Act, Pub. L. No. 117-2, 135 Stat. 4, 77–78 (2021) (codified at 5 U.S.C. § 6301 note). The debt here covers 80 hours of LWOP in pay periods 10–11 of 2022. Paid leave for COVID-19 was not available then.
The Postal Service also argued that Mr. Seymour did not prove eligibility (Tr. 47–48).
Based on my ruling above, I need not address that argument.
Mr. Seymour’s WWL claim also is not valid. Mr. Seymour claimed that he had 80 hours of WWL remaining for use in 2022 (Tr. 103). Eligible employees are credited with 104 hours of WWL each leave year. Management Instruction EL-510-2019-2 (included as Pet. Exh. 10 at 32 and Resp. Exh. 11). This leave is available only during the leave year it is given; it does not carry over. Id. To use it, a Postal Service employee must submit to his supervisor a PS Form 3971 (Request for or Notification of Absence), followed by a PS Form 5980 (Treatment Verification for WWL), within 15 days of returning to work. Id.
The Postal Service acknowledged that Mr. Seymour had an unused balance of WWL for 2022 but claimed it was 64 hours. It also claimed that Mr. Seymour did not provide proof of eligibility because he did not submit any completed PS Form 5980s for those hours. 3 It declined to waive the 15-day deadline for submission. (Tr. 15–16, 42). Mr. Seymour conceded that he did not submit that form in 2022 or 2023 because he had health privacy concerns. At the hearing, Mr. Seymour requested that I order the Postal Service to change the 80 hours at issue to WWL (Tr. 103). Even assuming I can hear his claim, Mr. Seymour did not provide sufficient proof of his eligibility for WWL during the 80 hours at issue.
Next, I address the remaining arguments made by Mr. Seymour at the hearing. One argument was that he had a right to know about the payroll adjustment giving rise to the debt before it was started by the local office. He pointed out that PS Form 2240 (Pay, Leave, or Other Hours Adjustment Request) has a section for, and instructions requiring, an employee’s signature (Pet. Exh. 13 at 47 of a valid debt. Lofton v. United States Postal Service, AO 13-313, 2018 WL 1606049, at *2 (March 29, 2018) (remanded on other grounds).
I next turn to Mr. Seymour’s FLSA argument. He alleged that the Postal Service did not comply with FLSA, citing Fact Sheet #21, which discusses recordkeeping requirements. He claimed that the Postal Service did not keep accurate payroll records for him and that payroll journals are not official records (Tr. 80 Whether FLSA was violated is not for me to decide under the DCA. Even if it were, Mr. Seymour did not show that the Postal Service’s payroll journals were inaccurate for this debt, and he misunderstood what payroll journals are. A payroll journal is a Postal Service record that shows the details of an employee’s payments, deductions, and adjustments by pay period. Handbook F-18, Payroll Journal Guide, Transmittal Letter; Handbook AS-353, Guide to Privacy, the Freedom of Information Act, and Records Management, § 1.5.1 and Appendix § E, USPS 100.400. It is, in fact, a more detailed reflection of a paystub that an employee receives. Jollivette v. United States Postal Service, AO 22-280 et al., 2023 WL 6847479, at *2 fn. 4 (Aug. 2, 2023).
Finally, I turn to Mr. Seymour’s back pay argument. Mr. Seymour argued that he is entitled to back pay based on ELM 436.1, Corrective Entitlement (Tr. 92 was in effect that terminated or reduced the basic compensation, allowances, differentials, and employment benefits that the employee normally would have earned during the period.” Mr. Seymour claimed that the Postal Service’s actions regarding his WWL requests entitle him to back pay. This claim is not so closely related to any of the Postal Service’s debt determinations as to constitute a single dispute. It is therefore not for me to decide under the DCA.
In sum, the Postal Service has met its burden of proof for this salary overpayment, and Mr. Seymour offered no valid defenses.
Invoice No. 703307672
With Invoice No. 703307672, the Postal Service seeks to recover $256.89 allegedly paid to Mr. Seymour for eight hours of holiday leave in week two of pay period 1 of 2022 (December 31, 2021).4
To be eligible for holiday leave, an employee must be in pay status either the last scheduled hour before or the first scheduled hour after the holiday or designated holiday. But for employees on any form of extended LWOP, paid leave does not qualify the employee for holiday pay. ELM § 434.421.
The Postal Service’s Leave Year 2021 and 2022 Absence Analyses showed that Mr.
Seymour was on holiday leave on December 31, 2021 and that he was on LWOP the last scheduled hour before and the first scheduled hour after that holiday. But these analyses simply showed how each day was coded. They do not contain payment information. Further, the Postal Service showed in its pursuit of Invoice No. 703330899 that these absence analyses contradicted the payroll journals the Postal Service provided for that invoice. I therefore do not find them reliable for proof of payment.
For this invoice, the Postal Service did not provide payroll journals or other proof of payment, either written or through oral testimony. (Tr. 59–60, 63–64). The Postal Service, therefore, failed to prove the existence of the debt.
Accordingly, the Postal Service may not collect this debt.
Invoice Nos. 703389668, 703389646, and 703389667
Invoice Nos. 703389668, 703389646, and 703389667 were for taxes on the three salary overpayments. It is well settled that an employee who fails to repay a salary overpayment by the end of the calendar year incurs another debt to the Postal Service. Salzano v. United States Postal Service, DCA 17-228, 2019 WL 479670, at *3 (Jan. 7, 2019). The Postal Service withholds taxes and other amounts such as retirement contributions (collectively, “taxes”) on the total salary payment (known as the “gross payment”) and then pays the employee the remainder (known as the “net payment”). Id. The Postal Service takes the tax withholdings and forwards them to the appropriate taxing authorities. Id.
When the Postal Service calculates the debt amount for a salary overpayment that occurred before the end of the calendar year, it seeks only the net payment. Id. If the employee repays the net payment before the end of the calendar year, the Postal Service asks the taxing authorities to make a corresponding adjustment to the employee’s tax records, and the employee is cleared from any further liability for the overpayment. Id.
When the Postal Service calculates the debt amount for a salary overpayment that occurred before the end of the calendar year, it seeks only the net payment. Id. If the employee repays the net payment before the end of the calendar year, the Postal Service asks the taxing authorities to make a corresponding adjustment to the employee’s tax records, and the employee is cleared from any further liability for the overpayment. Id
If, however, an employee fails to repay the salary overpayment by the end of the calendar year, the Postal Service is no longer able to recoup the taxes it forwarded to the taxing authorities. Id. After the first of the year, the overpayment is treated as income by the taxing authorities, and the taxes paid by the Postal Service on behalf of the employee are credited as taxes paid by the employee. Id. At that point, it is too late for the Postal Service to recall those taxes from the taxing authorities. Id. The employee, however, was never entitled to the net payment or the taxes paid on his behalf to the taxing authorities. Id. The employee thus incurs a debt for both the net payment and the tax withholdings. Id.
To recover a tax debt, the Postal Service must meet the same standard of proof and prove the same elements as the salary overpayment. Lofton, AO 13-313, at *2. There is, however, a rebuttable presumption that the Postal Service paid the withholdings on the employee’s behalf to the applicable tax authorities consistent with its legal obligations. See, e.g., Jollivette v. United States Postal Service, AO 22-280, 23-132, 2023 WL 6847479, at *4 (Aug. 2, 2023).
Here, in early 2023, the Postal Service issued three invoices for taxes allegedly forwarded on Mr. Seymour’s behalf for the three claimed salary overpayments. As discussed above, the Postal Service failed to meet its burden of proof for two of the three claimed salary overpayments: the 40 hours in pay period 20 of 2022 and the holiday pay. Accordingly, it failed to prove entitlement to any associated taxes for those two alleged debts. Those taxes are sought in Invoice No. 703389668 in the amount of $91.63 and Invoice No. 703389646 in the amount of $5.34.
The Postal Service also failed to meet its burden to recover Invoice No. 703389667, which covered the $164.83 in taxes it forwarded on the 80 hours in pay periods 10–11 of 2022. While it proved the underlying salary overpayment and the tax debt existed, it failed to prove that the $164.83 it seeks was properly calculated. For all the debts combined, the Postal Service provided payroll journals for only three pay periods: 10, 11, and 16 of 2022. While those payroll journals showed that more than $164.83 was withheld in pay periods 10–11 of 2022, the Postal Service did not provide sufficient evidence of its calculation. It did not present witness testimony or provide any documents that specifically explained how any of the tax debts were calculated.
Testimony or more documents were essential here because of the complexities of the underlying salary overpayment invoice, which was Invoice No. 703330899, and the payroll journals it provided. With Invoice No. 703330899, the Postal Service sought only $634.95 for the 80 hours even though Mr. Seymour’s gross payment for those hours was $3,576.81 and his net payment was not explained. In addition, the payroll journals showed several different net payments for pay periods 10–11 of 2022. The Postal Service needed to show by a preponderance of the evidence that $164.83 was the correct withholding amount for $634.95. It did not.
ORDER
Invoice No. 703287617
DCA Nos. 22-383 and 23-24 are denied in part. Mr. Seymour is liable for Invoice No. 703287617. What the parties considered to be due was collected by offset.
Invoice No. 703307672
DCA Nos. 22-383 and 23-24 are granted in part. Invoice No. 703307672 is invalidated. The Postal Service may not collect this invoice. The Postal Service also must issue a refund to Mr. Seymour of $192.43 not later than 60 days from the date of this order.
Invoice No. 703330899
DCA Nos. 22-383 and 23-24 are denied in part. Mr. Seymour is liable for Invoice No. 703330899. He has already paid $851.84 by lump sum. The Postal Service may collect the remaining balance of $634.95 by involuntary administrative salary offset.
Invoice Nos. 703366213, 703389668, 703389646, and 703389667
DCA No. 23-158 is granted. Invoice Nos. 703366213, 703389668, 703389646, and 703389667 are invalidated. The Postal Service may not collect these invoices.
Catherine Crow
Administrative Judge
2 There is a question about whether Invoice No. 703287617 was collected in full. That invoice amount was $1,053.90, and the evidence shows that, from May through July 2022, at least $980.31 was offset, a difference of $73.59. In discussions about the payment amount, however, the Postal Service did not allege that any other funds were owed for this invoice. Also, in September 2022, the Postal Service moved on to offsetting another invoice. (Tr. 8–10, 105–6; Pet. Exh. 5 at 15). I therefore make no finding about whether there should be any remaining collection for this invoice.
3 The Postal Service did not explain how Mr. Seymour was approved for 40 hours of WWL in 2022 without any PS Form 5980s. Once a supervisor approves WWL leave, the PS Form 5980 is submitted to the occupational health nurse administrator’s office for filing. The nurse administrator who testified for the Postal Service searched and found none for 2022 (Resp. Exh. 30 at 192; Tr. 18, 21, 25, 42).
4 During the hearing, the Postal Service referred to December 24, 2021 as the holiday at issue. But December 24, 2021 fell on week one of the pay period, not week two. Also, the Postal Service previously agreed that the holiday at issue was December 31, 2021 (Tr. 44; Order and Memorandum of Telephone Conference, Nov. 17, 2023). Regardless, my decision remains the same. The Postal Service did not provide proof of payment for that pay period.