Tiza Wilder, DAB CR6240 (2023)

DECISION

Debtor owes the United States $1,984.63, plus any accrued interest, penalties, fees, and costs.  The debt may be collected by federal salary offset or in any other manner permitted by law.  5 U.S.C. § 5514; 20 C.F.R. § 422.803(c)-(f), 422.810, 422.821, 422.829, 422.833.¹   

I.      Background and Jurisdiction

On January 6, 2023, the Civil Remedies Division (CRD), Departmental Appeals Board, United States Department of Health and Human Services received an email from the Social Security Administration (SSA) Office of General Counsel (OGC) with Debtor’s petition for hearing attached.  Departmental Appeals Board Electronic Filing System (DAB E-File) #1_b. 

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Debtor had sent her²  petition for hearing dated December 28, 2022, to the United States Department of Interior (DOI) by facsimile.  DAB E-File #1.  DOI sent the petition for hearing to the SSA OGC.  DAB E-File #1b.  Debtor also mailed her petition for hearing to SSA’s Division of Central Accounting and Reporting.  DAB E-File #5 

In the petition for hearing, Debtor admits that she received two notices from DOI that she owed two separate debts identified by Debtor as debt numbers 23051018881 and 2277101881.  Debtor does not state in the petition for hearing when she received the DOI letters or the amounts of the alleged debts.  DAB E-File #1at 3-4, #5a.³   

Debtor’s petition for hearing was sent to the CRD by the SSA OGC for assignment to an administrative law judge for review and decision pursuant to an interagency agreement as permitted by 20 C.F.R. § 422.810(i). 

The case was assigned to me for hearing and decision on January 9, 2023.  An Acknowledgment of Request for Hearing and Order for Case Development (Prehearing Order) was issued at my direction.  Pursuant to the Prehearing Order, both parties were required to submit any documents and written argument for my consideration not later than January 17, 2023.  The parties were also required to register to use DAB E-File.  The Prehearing Order was served upon Debtor by certified mail at the mailing address listed on her petition for hearing, and the United States Postal Service (USPS) reported that the documents were delivered to Debtor’s mailing address on January 13, 2023.  DAB E-File #10, #10a. 

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On January 13, 2023, SSA filed its brief (SSA Br.) and SSA exhibits (SSA Exs.) 1 through 3.⁴   

Debtor failed to comply with the Prehearing Order by not registering to use DAB E-File.  Debtor also filed no documents for my consideration by January 17, 2023.  Therefore, at my direction on January 20, 2023, my Attorney Advisor contacted Debtor by telephone to determine whether Debtor intended to proceed with the petition for hearing and to determine whether Debtor required assistance registering to use DAB E-File.  It was reported to me that Debtor was uncooperative.  As a result, my Attorney Advisor was unable to learn whether Debtor intended to proceed with the petition for hearing.  Accordingly, on January 25, 2023, I ordered that Debtor show cause in writing not later than February 3, 2023, why this case should not be dismissed for abandonment or as a sanction for failure to comply with my Prehearing Order.  DAB E-File #11.  My Order was served on Debtor by certified mail - return receipt requested at the mailing address listed in her petition for hearing, with a courtesy copy sent to Debtor’s official “SSA.gov” email address.  DAB E-File #12.  USPS tracking indicates that there was an attempt to deliver the certified mail package of documents.  However, as of February 11, 2023, the certified mail package was returned to sender.  DAB E-File #12_a. 

Debtor has failed to file any documents other than her petition for hearing for me to consider regarding the existence and amount of the alleged debt and I concluded that she has waived the right to make further filings.  Debtor has not objected to my consideration of SSA Exs. 1 through 3 and they are admitted as evidence. 

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II      Discussion

A.  Issues⁵ 

Whether Debtor is indebted to the Social Security Administration and, if so, the amount; and,

Whether collection of any debt may be accomplished by federal salary offset or other legal means.

B.  Applicable Law

The Commissioner of SSA (Commissioner) has promulgated regulations applicable to the collection of overdue administrative debts owed to SSA pursuant to 5 U.S.C. § 5514 and 5 C.F.R. part 550.  The regulations are found in 20 C.F.R. pt. 422. 

In this case, SSA referred the alleged debt of Debtor to the DOI Business Center for salary offset.  The applicable regulations for salary offset are found at 20 C.F.R. pt. 422, subpt. I, which prescribes the SSA’s standards and procedures for collecting debts owed

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by current SSA employees to SSA through involuntary salary offset.  Pursuant to 20 C.F.R. § 422.810, “[s]alary offset means an Administrative Offset to collect a debt under 5 U.S.C. [§ ]5514 owed by a current SSA employee through deductions at one or more officially established pay intervals from the current pay account of the current SSA employee without his or her consent.”  “Administrative Offset means withholding funds payable by the United States to, or held by the United States for, a person to satisfy a debt owed by the payee.”  20 C.F.R. § 422.810(d). 

When a current employee of SSA owes SSA a delinquent debt, SSA may involuntarily offset, or withhold the amount of the debt from the employee’s disposable pay.  20 C.F.R. § 422.810(e)(1).  At least 30 days prior to initiating a salary offset, a notice must be sent to the employee’s last known address informing the debtor of the nature and amount of the debt; the intention to collect the debt (including accumulated interest, penalties, and administrative costs) by administrative offset; the amount, not to exceed 15 percent of disposable pay, the frequency, the commencement date, and the duration of the intended deductions; an explanation of the policies concerning the assessment of interest, penalties, and administrative costs; the employee’s right to review and copy all records pertaining to the debt; the opportunity to establish a schedule for the voluntary repayment of the debt through offset, or to enter into an agreement to establish a schedule for repayment of the debt in lieu of offset; the right to a hearing conducted by an impartial hearing official with respect to the existence and amount of the debt, or the repayment schedule; and the deadlines for exercising his or her rights.  20 C.F.R. § 422.810(f).  Debtor does not assert in her petition for hearing that the notices she received from DOI failed to meet the content requirements of the regulation.  Debtor does assert in the petition for hearing that she did not feel she received “a detailed explanation of this debt” which Debtor asserts she does not owe.  DAB E-File #1 at 4, #5a at 3.  However, any lack of information and explanation regarding the origin of the debts and amounts have been remedied by the SSA brief and SSA Exs. 1 through 3. 

If a debtor files a petition for hearing, the hearing may be an oral or paper hearing.  For a paper hearing, the parties submit evidence and arguments in writing by the date specified in the notice, after which the record will be closed.  20 C.F.R. § 422.810(h)(3)(i), (iii).  The hearing official then decides the case based on review of the documents in the record.  The hearing official may determine that an oral hearing is necessary, for example, when issues cannot be resolved by review of documents alone or when there are issues of credibility or veracity involved.  20 C.F.R. § 422.810(h)(3)(ii).  There are no issues of credibility or veracity or other reason to convene an oral hearing in this case.  

The regulation requires that a decision be issued no more than 60 days after the petition for hearing is received by the agency.  20 C.F.R. § 422.810(h)(4)(i).  In this case, the only evidence I have of a date of receipt is a facsimile header showing the facsimile was received on December 28, 2022.  DAB E-File #1.  Therefore, this decision is timely if issued before February 26, 2023.  Debtor states in the petition for hearing that she sent a

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response to the first letter from DOI on October 31, 2022, that was received on November 3, 2022.  However, Debtor does not assert that the October 31, 2022 response was a petition for hearing.  DAB E-File #1 at 4, #5a at 3.  

Compensatory time off for religious observances, also referred to as religious compensatory time off or religious comp. time (RCT) is authorized by 5 U.S.C. § 5550a.  The statute provides that an employee whose religious beliefs require “abstention from work during certain periods of time,” may elect to perform overtime work to make up for work time lost to meet personal religious requirements.  An employee who elects to do overtime work is granted an equal amount of RCT off from his or her scheduled tour of duty for religious reasons, rather than receiving overtime pay.  5 U.S.C. § 5550a(a); 5 C.F.R. § 550.1003.  An employee who uses RCT prior to earning it must perform their overtime work obligation within 13 pay periods after the pay period in which the RCT was used.  The 13 pay periods are counted beginning with the first pay period after the date on which the RCT was used.  If the employee fails to earn RCT within 13 pay periods after taking RCT, the agency has discretion to take action to eliminate or reduce the employee’s negative balance by making a corresponding reduction in the employee’s balance of annual leave, credit hours, compensatory time off, or time-off awards.  However, if after making adjustments there is any remaining balance of RCT used that has not been offset, the agency is required to charge the employee with leave without pay (LWOP) for the remaining balance of RCT used and not offset.  Conversion to LWOP results in a debt to the agency that is subject to the agency’s internal debt collection procedures.  5 C.F.R. § 550.1006(c)(1)-(3). 

C.  Findings of Fact, Conclusions of Law, and Analysis

My conclusions of law are set forth in bold followed by a statement of the pertinent facts and my analysis. 

1.  Debtor owes the United States $1,984.63, plus any interest, penalties, fees, and costs.

2.  Collection by federal salary offset is permissible. 

My findings of fact are based on the undisputed allegations from the SSA brief and SSA Exs. 1 through 3. 

The total debt that I conclude Debtor owes is based on two separate debt determinations related to Debtor’s use of RCT for which she did not perform the number of hours of overtime necessary to make up for the RCT she used.  One debt was determined to be $1,312.73 based on the following use of RCT in calendar year 2022, that was converted to 60 hours and 45 minutes of LWOP by SSA and/or its pay agent DOI: 

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• Pay period 5 - 12 hours and 45 minutes of RCT;⁶
• Pay period 6 - 8.00 hours of RCT; and
• Pay period 7 - 40.00 hours of RCT.

The second debt was $671.90 for 32 hours of RCT used during pay period eight in 2022, that was converted to LWOP by SSA or DOI.  SSA Ex. 1. 

Debtor has not disputed that she used 112 hours of RCT during pay periods five through eight in 2022.  Debtor does not deny that she did not work enough overtime to cover 92 hours and 45 minutes of the RCT she used in pay periods five through eight in 2022.  Debtor does not deny that after using the 92 hours and 45 minutes of RCT, 13 pay periods elapsed and she had failed to work the required number of overtime hours to offset the 92 hours and 45 minutes of RCT she used.  When SSA or DOI converted 92 hours and 45 minutes of RCT into LWOP, it resulted in a total debt of $1,984.63 that Debtor owes the United States as an overpayment of pay and allowances.  Debtor’s hourly rate of pay was $30.35 during 2022.  SSA Ex. 3.  The net debt is calculated by multiplying 92.75 hours by $30.35, yielding $2,814.96, which when adjusted for deductions, benefits, and taxes, yields the net debt of $1,984.63.  DAB E-File #2 at 9, #2a at 9. 

Debtor does not assert and has presented no evidence that she repaid any portion of the debt.  Debtor has also presented no evidence or argument that would support a conclusion that SSA has no right to collect the debt. 

Debtor filed a petition for hearing but failed to participate in the proceedings and comply with my Prehearing Order.  However, I find that there is insufficient evidence to conclude Debtor’s petition for hearing was baseless or intended to delay the debt collection process.  20 C.F.R. § 422.810(h)(4)(ii)(B). 

There is no evidence of a repayment schedule in this case.  20 C.F.R. § 422.810(h)(4)(ii)(C). 

I conclude Debtor is indebted to the United States in the total amount of $1,984.63, plus any accrued interest, penalties, fees, and costs.  20 C.F.R. § 422.807, 422.810(o).  The debt may be collected by federal salary offset or in any other manner permitted by law. 

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My determination is an official certification regarding the existence and amount of the Debtor’s debt for purposes of executing federal salary offset under 5 U.S.C. § 5514 and 20 C.F.R. § 422.810(i)(3). 

III.      Conclusion

For the foregoing reasons, I conclude that Debtor owes the United States $1,984.63, plus any interest, penalties, fees, and costs, which may be collected by federal salary offset or in any manner authorized by law. 

Endnotes

¹   Citations are to the 2021 revision of the Code of Federal Regulations (C.F.R.), unless otherwise indicated. 

²   The pronouns she and her are used in this decision as Debtor has indicated no preference. 

³   SSA subsequently sent the CRD two letters from SSA to Debtor dated October 3 and 31, 2022.  The letters refer to debt numbers 22771018881 and 23051018881.  DAB E-File #2, #2a, #2b.  SSA did not mark the letters as evidence or offer them as part of the SSA submission on the merits.  The letters, which are marked “reprint” are also not accompanied by an affidavit or declaration stating that those letters were actually mailed to Debtor and Debtor has not conceded that she received any letters regarding debts from SSA.  Debtor refers to debt number 2277101881, the SSA notice includes an additional digit, listing the number as 22771018881.  DAB E-File #2.  SSA refers to debt number 2277101881 six times in its brief and to 22771018881 four times in its brief.  SSA Br. at 1-3, 6, 7, 8.  There is no need to resolve the inconsistency as the debt number is not a material fact that affects the outcome in this case, particularly because there is no dispute that two debts were declared and no dispute as to their amounts. 

⁴   SSA certified that on January 17, 2023, it served its brief and exhibits upon Debtor by mailing them to the Debtor at the address listed in her petition for hearing.  DAB E‑File #8. 

⁵   SSA argues that the petition for hearing should be dismissed because it was not timely filed.  Debtor admits to receiving notices declaring the debts from DOI.  Debtor does not, however, admit to the dates she received the DOI notices.  Debtor does state that she received a letter from DOI that was dated October 3, 2022, and she states she mailed a response on October 31, 2022.  DAB E-File #1, #5a.  However, 20 C.F.R. § 422.810(h)(1)(i) requires that a petition for hearing be filed within 15 days of receipt of the notice of indebtedness and the regulation establishes no presumption as to a date of receipt based on the date of a notice of indebtedness or the date on which it was mailed.  No notices from DOI have been placed in evidence by SSA.  The letters on SSA letterhead from SSA to Debtor dated October 3 and 31, 2022, were not marked and placed in evidence by SSA.  SSA filed no supporting affidavit, declaration, or other evidence to show that those letters were mailed to Debtor and Debtor has not conceded that she received any letters regarding debts from SSA.  Based on the evidence it is not possible for me to determine when Debtor received notices of the alleged debts.  Accordingly, dismissal because the petition for hearing was not timely filed is not appropriate.  I have also considered whether to dismiss the petition for hearing because Debtor failed to comply with the Prehearing Order.  However, I have determined to proceed with a decision on the merits, rather than penalize Debtor for her violations of my order. 

⁶   Debtor used a total of 32 hours of RCT during pay period 5 in 2022, but SSA only converted 12 hours and 45 minutes to LWOP.  SSA Ex. 1 at 2.