Andrea Simerick, CR6294 (2023)

DECISION

Petitioner is an employee of the Social Security Administration (SSA) who sustained a traumatic hand injury at the SSA field office located in Grand Rapids, Michigan.  Petitioner received Continuation of Pay benefits beyond the maximum 45 days allowed, causing SSA to determine Petitioner had received an overpayment of salary in Federal pay periods 22 through 25 of the year 2022.  Petitioner filed a Hearing Request and Waiver Request through a Union Representative challenging SSA’s debt determination.  For the reasons stated below, I conclude that Petitioner owes a debt of $1,459.56 (total gross) and owes a net salary overpayment of $1,196.14 to the United States government.

I.  Background and Procedural History

In a letter dated January 23, 2023, SSA informed Petitioner that “the processing of an amended time and attendance record or a personnel action has shown that you previously received employee pay that was higher than it should have been” and indicated that Petitioner needed to repay this alleged overpayment.  DAB Dkt. Entry No. 1a (“SSA Debt Letter”) at 1.  Accompanying the letter were various notices, including a description

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of the debt collection process, Petitioner’s right to a hearing to dispute the existence and amount of the alleged debt, and Petitioner’s right to seek waiver of the debt.  Id. at 3, 7-8.  The letter also attached an accounting of the alleged overpayment debt, which was identified as Debt ID No. 30241714284.  Id. at 4, 9.

On February 16, 2023, Petitioner, through a Union Representative, sent an email to SSA requesting a hearing to dispute the existence and amount of the alleged debt, a waiver of the overpayment, and an opportunity to review the information used to determine the overpayment.  DAB Dkt. Entry No. 1 (Petitioner’s Request for Hearing (RFH)) at 5-6.  The hearing request was forwarded to the Department of Health and Human Services’ Departmental Appeals Board (DAB) for hearing on March 28, 2023.  Id. at 1.

On April 4, 2023, I issued an Acknowledgment and Order to Show Cause (April 4 Order) directing the parties to address by April 21, 2023, whether Petitioner’s hearing request was timely and when the 60-day statutory time limitation commenced.  The parties timely responded to the April 4 Order and SSA also filed a motion to dismiss for untimeliness.  DAB Dkt. Entry Nos. 4-6, 8-9.

On April 28, 2023, I issued an Order Discharging the [April 4 Order], Ruling on SSA’s Motion to Dismiss, Prehearing Order, and Notice of Oral Hearing or Paper Hearing (PHO).  DAB Dkt. Entry Nos. 10, 10a.  The PHO found good cause to excuse Petitioner’s late haring request, set filing deadlines and a hearing date, and began the 60-day statutory time limitation on March 28, 2023.¹  A decision would be issued on May 30, 2023, unless Petitioner requested a delay in the proceedings.  See 20 C.F.R. § 422.810(h)(4)(i).

On May 3, 2023, Petitioner filed a Motion for Stay to delay these proceedings by one week, so the parties could obtain information and engage in settlement negotiations.  DAB Dkt. Entry Nos. 13, 14.  That same day a Stay Order was issued granting Petitioner’s motion and extending all filing deadlines by one week, and the decision’s due date until June 6, 2023.  Id. at 15.  The parties submitted a Joint Settlement Status Report indicating that the matter had not been resolved, and I issued an Order Lifting Stay on May 11, 2023.  Id. at 16-17.

On May 12, 2023, the parties filed their prehearing exchanges.  SSA filed a prehearing brief and motion for summary judgment (SSA PHB), with three proposed exhibits (SSA

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Exs. 1-3).  DAB Dkt. Entry Nos. 18-23.  SSA Exhibit 1 was a signed witness declaration.  Petitioner filed a prehearing brief (P. PHB), and four proposed exhibits (P. Exs. 1-4).²  Id. at 24-33.  Petitioner offered to testify as a witness without including a written declaration.

On May 19, 2023, SSA filed a response to Petitioner’s prehearing brief (SSA Supp. Br.) and supplemented its record with a fourth proposed exhibit (SSA Ex. 4).  Id. at 35, 35a, 36.  That same day, Petitioner filed a response to SSA’s prehearing brief and motion for summary judgment (P. Supp. Br.).  Id. at 37.  Petitioner supplemented her exhibits with proposed exhibits five and six (P. Exs. 5-6).  Id. at 38-41.

I presided over an oral hearing, in the form of an informal conference or meeting, on May 24, 2023.  Present at the hearing were:  Petitioner; Petitioner’s union representative, Amber Westbrook; Nancy Weiss and Patricia Stewart, counsel appearing on behalf of SSA; Christopher Pascual, Attorney Advisor, Civil Remedies Division (CRD) was present to assist; and Crystina Hong, CRD, was present to observe.  SSA’s witness was not present, and Petitioner did not prefile testimony.  Therefore, neither party cross-examined the other party’s witness.

After the hearing, I directed SSA to file several demonstratives used during the hearing, and asked Petitioner to indicate whether she objected to the demonstratives being admitted to the record.  Id. at 42.  SSA filed the requested demonstratives on May 25, 2023 (SSA Dems. 1-3).  Id. at 43-46.  Petitioner did not indicate whether she objected to the supplemental exhibits.

On May 26, 2023, an audio copy of the hearing was made available to the parties through the Departmental Appeals Board electronic filing system.  Id. at 47.  The record is complete and ready for a decision.

II.  Issues

The issues to be decided in this case are:

1. Whether Petitioner owes a debt to the United States government; and
2. If so, whether Petitioner owes a total gross debt of $1,459.56 and a total net debt of $1,196.14 after recoverables; and
3. If there is a repayment schedule that is established other than by written agreement, whether the terms of the repayment schedule are appropriate.

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III.  Jurisdiction

The three issues identified above are the only appealable issues regarding a salary overpayment matter.  5 U.S.C § 5514(a)(2)(D); 20 C.F.R. § 422.810(f)(1)(vii), (h)(4)(ii).

The statute authorizing these proceedings specifies that the head of an agency may appoint an administrative law judge to adjudicate an employee’s appeal of an alleged debt.  See 5 U.S.C. § 5514(a)(2); see also 20 C.F.R. § 422.810(d) (definition of Hearing Official), (i)(1).  SSA maintains an interagency agreement under which administrative law judges with CRD adjudicate SSA federal salary overpayment cases.  See Portia L. Pierce, DAB CR2049 at 5 (2009); Jan Donsbach, DAB CR1536 (2006).

IV.  Waiver

Petitioner’s February 16, 2023, email requesting a hearing also included a request for waiver.  RFH at 6.  Although Petitioner combined her request for hearing under 5 U.S.C. § 5514 and her request for waiver under 5 U.S.C. § 5584 in one email, those requests are “distinct, but not mutually exclusive methods of seeking relief from the agency’s intended action” to collect a debt from a federal employee.  Petra A. Illig, M.D., DAB CR2559 at 2 (2012).  Waiver requests are determined by the Commissioner of Social Security; therefore, I have no jurisdiction to decide Petitioner’s waiver request.  See Alfred H. Varga, DAB CR342 at 1-3 (1994).

V.  Rulings

1. Admission of Evidence

SSA’s complete record is comprised of four proposed exhibits submitted with its prehearing exchange and three hearing demonstratives filed at my direction.  Petitioner did not object to any of SSA’s exhibits or demonstratives.  Accordingly, I admit SSA Exhibits 1-4 and SSA Demonstratives 1-3 into the administrative record.

Petitioner’s complete record contains six exhibits.  SSA’s response brief objected to Petitioner’s Exhibits 2, 3, and 4, for immateriality.  Petitioner’s Exhibit 2 is her time and attendance summary (T&A Summary) for pay period 19 of 2022.  Petitioner’s Exhibit 3 is a printout from SSA’s Benefits Portal concerning workers’ compensation claims and continuation of pay.  Petitioner’s Exhibit 4 is an email communication from Petitioner’s union representative to an SSA HR Specialist concerning Petitioner’s workers’ compensation claim and leave without pay.

At the hearing, SSA counsel also objected to Petitioner’s Exhibits 5 and 6, for immateriality, but later withdrew those objections.  Petitioner’s Exhibit 5 is an email thread between Petitioner, her union representative, and an SSA HR Specialist

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concerning time and attendance corrections/updates to Petitioner’s timesheets for pay periods 22 through 25 of 2022 and pay periods 1, 2, 4 and 6 of 2023.  Petitioner’s Exhibit 6 is the attachment found at page 9 of the SSA Debt Letter, which is labeled “Exhibit 6” and provides an itemization of the alleged overpayment debt, and Petitioner’s T&A Summary for pay period 23 of 2022.  Petitioner asserted that each of the objected exhibits were relevant and material to the issues in this case.  At the hearing, I overruled SSA’s objections to Petitioner’s Exhibits 2, 3, and 4, and admitted Petitioner Exhibits 1-6 into evidence, finding that they are relevant to the issues in this case and would be accorded appropriate weight in this proceeding.

2. Denial of Motions for Summary Judgment

Both parties moved for summary judgment.  See generally, SSA PHB and P. Supp. Br.  Summary judgment is appropriate when there is no genuine dispute as to any issue of material fact for adjudication and the moving party is entitled to judgment as a matter of law.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986).  When ruling on a motion for summary judgment, I do not weigh the evidence and determine the truth of the matter, but determine whether there is a genuine issue for trial.  Anderson v. Liberty Lobby, Inc., 477 U.S. at 255.  At the hearing, I informed the parties that both summary judgment motions were denied because material facts related to the overpayment debt were in dispute.  Specifically, there was a genuine dispute concerning the calculation and collection of the alleged overpayment.

VI.  Findings of Fact

Petitioner is a federal employee who injured her hand at work on August 23, 2022.  SSA PHB at 3; P. PHB at 3.  The following day, Petitioner began receiving Continuation of Pay (COP) for any working hours she missed due to her hand injury under the Federal Employee Compensation Act (FECA).  SSA PHB at 3.  FECA eligibility is applied in “traumatic injury cases, [and] an employee may be entitled to a maximum of 45 days of COP . . . includ[ing] weekends and holidays.”  P. Ex. 3 at 4.  Petitioner’s 45-day limit expired on October 8, 2022.  SSA PHB at 3; SSA Ex. 1.  Unbeknownst to Petitioner, Petitioner’s supervisor continued using the COP code after the 45-day limit affecting pay periods 22 through 25 of calendar year 2022.  SSA Ex. 1.

Upon discovering the error, Petitioner’s supervisor, with Petitioner’s consent, changed 57.30 hours³ that were erroneously coded as COP after the expiration of the 45-day limit to Leave Without Pay (LWOP).  Id.; see also SSA Debt Letter at 9.  Petitioner’s

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supervisor also changed 2.00 hours of credit hours used by Petitioner to LWOP.  SSA Debt Letter at 9.  Therefore, the total number of hours owed by Petitioner is 59.30.  Petitioner’s hourly rate during the affected pay periods was $24.53.  SSA Ex. 3 at 1 (see column labeled “Daily/Hrly-Rte”).

In pay period 22 of 2022, Petitioner received payment for 11.45 hours of COP that were changed to LWOP, generating an overpayment of $288.23.  SSA Ex. 3 at 1.

In pay period 23 of 2022, Petitioner received payment for a net 27.45 hours of COP and credit hours⁴ that were changed to LWOP.  Petitioner received payment for 27.45 hours of COP less 2 hours of credit hours used that were adjusted from the overpayment (i.e., subtracted from the 27.45 hours of COP).  Accordingly, Petitioner received payment for a net of 25.45 hours that were changed from COP to LWOP and generating an overpayment of $631.65 ($680.71 less $49.06 for 2 hours of credit that were adjusted).  SSA Ex. 3 at 2.  Additionally, Petitioner received payment for 2.00 credit hours that were changed to LWOP, generating an overpayment of $49.06.  In sum, Petitioner received payment for 25.45 net COP hours converted to LWOP and for 2.00 credit hours converted to LWOP, generating a total overpayment of $680.71 ($631.65 + $49.06).

In pay period 24 of 2022, Petitioner received payment for 9.00 hours of COP that were changed to LWOP, generating an overpayment of $220.78.⁵  SSA Ex. 3 at 3.

In pay period 25 of 2022, Petitioner received payment for 15.15 hours of COP that were changed to LWOP, and 4.15 hours were adjusted for hours never paid, generating a net of 11.00 hours of LWOP and an overpayment of $269.84.  SSA Ex. 3 at 4.

In summary, Petitioner owes $288.23 for pay period 22; $680.71 for pay period 23; $220.78 for pay period 24; and $269.84 for pay period 25, which equals a total gross debt of $1,459.56 and a net debt of $1,196.14 after $263.42 in recoverables are deducted from the gross debt.  SSA Ex. 3.

During pay periods 5 and 6 of 2023, a total of $439.37 was collected from Petitioner to repay the overpayment debt.  P. Ex. 1.  According to Petitioner’s Earnings and Leave Statements, $220.40 was deducted from Petitioner’s wages in pay period 5 and $218.97 was deducted from Petitioner’s wages in pay period 6.  P. Ex. 1 at 1, 3 (see “Federal Debt Recovery – Involuntary” amounts under Deductions).  These deductions occurred before

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Petitioner’s request for hearing was received by the Departmental Appeals Board and assigned to me.  According to SSA’s Exhibit 4, a refund of $439.37 was due to Petitioner by pay period 11 of 2023.⁶  SSA Ex. 4.

Petitioner and the government share recoverables, totaling $467.05, related to the overpayment.  The total recoverables, noted as “Federal Debt Recovery – Voluntary” under Deductions on Petitioner’s Earnings and Leave Statement, were “adjusted” in pay period 3 of 2023.⁷  SSA Dem. 2.  Petitioner’s contribution to the recoverables included $64.21 for Retirement, and $87.58 for TSP, totaling $151.79.⁸  SSA Dem. 3 at 1.  The employee recoverables that were processed were not deducted from Petitioner’s pay and instead were placed in “associated accounts.”  Id.  The balance of the recoverables included $242.29 in Government Retirement, $58.39 in Government TSP Matching, and $14.58 in Government TSP, totaling $315.26.  Id.  These amounts were not deducted from Petitioner’s pay either, but were processed in associated accounts.  Id. (confirming calculations demonstrating that Petitioner’s net pay did not include a deduction for the shared recoverables).

VII.  Analysis and Conclusions of Law

If SSA determines that a current SSA employee is indebted to the United States government, SSA may offset the debt from that employee’s salary.  5 U.S.C. § 5514(a)(1); 20 C.F.R. § 422.310(a).  Before SSA offsets the debt, however, it must provide 30 days written notice to the employee concerning the nature and amount of the debt, its intent to collect the debt through salary offset, and the employee’s due process rights.  20 C.F.R. § 422.810(f)(1).  Among others, the employee has the right to request a

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hearing before an administrative law judge in order to dispute the existence of the debt, the amount of the debt, and/or the payment schedule established by the agency. 5 U.S.C. § 5514(a)(2); 20 C.F.R. § 422.310(c)(6).

1. Petitioner owes a debt to the United States government due to a salary overpayment.

It is undisputed that Petitioner suffered a hand injury on August 23, 2022, while on the job.  The following day, Petitioner was placed on COP, under 20 C.F.R. § 10.200, for any working hours she missed due to her injury.  COP entitled Petitioner to a maximum of 45 days, including weekends and holidays, of benefits, which, in Petitioner’s case, ended on October 8, 2022 (pay period 21 of 2022).  Petitioner continued to undergo medical treatment for her injury beyond October 8, 2022.  For the following four pay periods (pay periods 22, 23, 24, and 25 of 2022), Petitioner’s supervisor erroneously coded the time Petitioner missed from work as COP.  Upon discovering the error, Petitioner’s supervisor informed Petitioner and, at Petitioner’s request, changed any COP time, beyond October 8, 2022, to LWOP, generating the instant overpayment issue.  SSA Ex. 3.

Petitioner’s union representative did not dispute the existence of the debt in her February 16 email requesting a hearing.  There, Petitioner’s union representative states “the reason for the overpayment was [due to] administrative error” and “[Petitioner] is being charged for an overpayment because of workers compensation she has not received.”  RFH at 6.  Similarly, in her prehearing brief, Petitioner admitted that there were absences that extended beyond the 45-day COP period and argued that the issue was that workers’ compensation payments had not been paid to date.  P. PHB at 3-4.  She also argued that she used sick leave that should have been charged to COP.  Id. at 3.

Although she acknowledges the existence of an overpayment debt, Petitioner contests the amount of the debt.  In Petitioner’s Response Brief, Petitioner challenges the amount of the debt with regard to how 2.00 credit hours from pay period 23 in 2022 factored into the overpayment calculation, but again did not challenge the existence of an overpayment.  P. Supp. Br. at 1.

Lastly, Petitioner argues that the overpayment should be waived because it was based on incorrect information certified by the agency, and the agency has failed to fulfill its obligations with respect to Petitioner’s workers’ compensation application.  P. PHB at 4.  Petitioner asserts it would be against equity and good conscience for her to repay the debt.  Given Petitioner’s acknowledgment of the overpayment, I conclude that a valid debt exists due to a salary overpayment.  As discussed above, I do not have jurisdiction over Petitioner’s waiver request.  Likewise, I do not have authority over the processing of Petitioner’s workers’ compensation claim.  More importantly, Petitioner’s waiver and workers’ compensation arguments do not invalidate the existence of the debt.  They are related to separate administrative processes and benefits that may enhance Petitioner’s

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financial ability to repay the debt, but they do not eliminate or reduce the amount of the overpayment debt itself.  For these reasons, I find that SSA has met its burden of proving Petitioner owes a debt to the United States government due to a salary overpayment.  My findings and conclusions concerning the amount of the overpayment are discussed in the next section.

2. Petitioner owes a total gross debt of $1,459.56⁹ and a total net debt of $1,196.14 after recoverables.

In December of 2022, Petitioner explicitly chose to convert the improperly received COP for pay periods 22, 23, 24, and 25 of 2022 into LWOP.  See SSA Ex. 2.  By doing so, Petitioner became indebted to SSA for 59.30 hours or $1,459.56, less $263.42 applicable recoverables, for a total net amount of $1,196.14.  SSA Exhibit 3¹⁰ shows each hour that was changed from COP and credit hours used to LWOP.

a. In pay period 22 of 2022, Petitioner received payment for 11.45 hours of COP that were changed to LWOP, generating an overpayment of $288.23.  See SSA Ex. 3 at 1.

For pay period 22 of 2022, the FPPS screenshot reflects two adjustments to pay code “101,” which indicates LWOP.  SSA Ex. 3 at 1.  The first week includes 3.45 hours of LWOP, while the second week of the pay period reflects 8.00 hours of LWOP, totaling a negative adjustment of 11.45 hours.  Id.  At Petitioner’s hourly rate of $24.53, the 11.45 hours of LWOP generated an overpayment of $288.23.  SSA Ex. 3 at 1.  These amounts are consistent with the audit document attached to SSA’s notice letter, which shows a time adjustment of -11.45 hours, corresponding to a $288.23 overpayment for pay period 22 of 2022.  SSA Debt Letter at 9 (itemization of overpayment labeled Exhibit 6); accord P. Ex. 6 at 1.

b. In pay period 23 of 2022, Petitioner received payment for 25.45 hours of COP that were changed to LWOP and 2.00 hours of used credit hours that were changed to LWOP, generating an overpayment of $631.65 for the LWOP and an overpayment of $49.06 for the credit hours converted to LWOP.  SSA Ex. 3 at 2; SSA Debt Letter at 9 (itemization of overpayment labeled Exhibit 6); P. Ex. 6 at 1.

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The FPPS screenshot for pay period 23 shows two LWOP adjustments (pay code 101) of 13.45 hours for week 1 and 14.00 hours for week 2.  SSA Ex. 3 at 2.  It also shows a negative adjustment of 2.00 credit hours used for week 1 (pay code 231) and 1.30 credit hours used for week 2.  Id.  The 14.00 LWOP hours and 1.30 credit hours used for week 2 are not at issue, and only the 14.00 hours of LWOP are included in the overpayment.

Petitioner raises concerns about the calculation of LWOP and the use of credit hours in week 1 of pay period 23 (Oct. 23-29, 2022).  P. Supp. Br. at 1-2.  Specifically, Petitioner contends that, contrary to SSA’s representations, 2.00 credit hours are included in the overpayment amount.  Id.  Petitioner cites SSA Exhibit 3 and Petitioner Exhibit 6 as demonstrating that the agency improperly included Petitioner’s used credit hours in the calculation of the overpayment.  Id.;SSA Ex. 3 at 2; P. Ex. 6 at 1, 2.  According to Petitioner, those documents show a negative adjustment of 2.00 hours for credit hours used (totaling $49.06), which is included in the gross overpayment.  P. Supp. Br. at 1-2.

I understand Petitioner’s concern that it appears at first glance that credit hours from pay period 23 were included in the overpayment erroneously.  However, the oral hearing shed light on this issue, revealing that two credit hours were properly excluded from the overpayment, but that another two credit hours were converted to LWOP and properly included in the overpayment.  At the hearing, SSA explained that Petitioner’s timesheet for pay period 23 of 2022 was corrected twice.  Petitioner’s Exhibit 6 is the second correction that reflects coding for workers’ compensation purposes.  In the second correction, LWOP entries were changed to pay code “162” for “FECA/OWCP.”  P. Ex. 6 at 2 (totaling 13.45 hours for “162-FECA/OWCP – Paid 1st” on October 24, 25, and 26 of week 1).  However, the first correction shows COP hours that were changed to LWOP.  At the hearing, SSA also introduced SSA Demonstrative 1 showing the changes that were made from COP to LWOP between Petitioner’s original timesheet and her first corrected timesheet.  SSA Dem. 1.  The original timesheet on the left side of the demonstrative shows 4.15 hours of pay code “160-FECA/COP -Paid 1st” (indicating COP) on October 24; 3.30 hours of COP on October 25; and 4.00 hours of COP on October 26.  Id.  The first corrected timesheet on the right side of the demonstrative shows that each of these COP entries were changed to pay code “101- LWOP (LWOP),” which is a total of 11.45 hours of LWOP for week 1 of pay period 23.  Id.

The original timesheet also shows two separate entries – 4.00 hours and 0.30 hours – for pay code “231- Credit Hours – Used” on October 25.  Id.  The second entry for 0.30 hours of credit hours used was not changed in the first corrected timesheet.  Id. (see October 25 at 2:30-3:00pm).  However, the first corrected timesheet shows that the original first entry for 4.00 credit hours used (see October 25 at 7:00-11:00am) was separated into three entries on the first corrected timesheet, resulting in 2.00 of the credit hours used on October 25 being converted to LWOP (see October 25 at 7:30-9:30am) and the remaining 2.00 hours remaining as credit hours used, in two separate entries of 0.30 hours and 1.30 hours (see 7:00-7:30 am and 9:30-11:00am).  Id.  Although Petitioner had

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used (and had been paid for) 4.00 credit hours, two of those credit hours were converted to LWOP, generating a debt of $49.06.  SSA Ex. 3 at 2.

The two remaining credit hours used on the second corrected timesheet were not included in the overpayment for pay period 23 because they were not converted to LWOP.  Petitioner has used (and has been paid for) the remaining 2.00 credit hours on October 25.

In sum, Petitioner was overpaid for 11.45 hours that were converted from COP to LWOP in week 1 of pay period 23 of 2022.  SSA Dem. 1.  Combined with the 14.00 hours of LWOP in week 2 of pay period 23, Petitioner was overpaid for 25.45 hours¹¹ in pay period 23, generating an overpayment of $631.65.  SSA Ex. 3 at 2.  Additionally, 2.00 of credit hours used were converted to LWOP during pay period 23, generating an overpayment of $49.06.¹²  These amounts are consistent with the audit document attached to SSA’s notice letter, which shows two separate time adjustments for pay period 23 of 2022.  The first adjustment is -25.45 hours for the COP pay converted to LWOP, corresponding to a $631.65 overpayment.  SSA Debt Letter at 9 (itemization of overpayment labeled Exhibit 6); accord P. Ex. 6 at 1.  The second adjustment is -2.00 hours for the used credit hours that were converted to LWOP, corresponding to a $49.06 overpayment.  SSA Debt Letter at 9 (itemization of overpayment labeled Exhibit 6); accord P. Ex. 6 at 1.

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c. In pay period 24 of 2022, Petitioner received payment for 9.00 hours of COP that were changed to LWOP, generating an overpayment of $220.78.¹³  SSA Ex. 3 at 3.

The FPPS screenshot reflects 6.30 hours of LWOP for week one of pay period 24 and 2.30 hours of LWOP for week two, totaling 9.00 hours.  Id.  Pay code 050 indicates Holiday pay.  The negative adjustment of 8.00 hours for Holiday pay means those hours were not included in the overpayment for pay period 24 of 2022.  Petitioner was paid for those hours, and they were not changed to LWOP.  Thus, Petitioner received 9.00 hours of COP that were changed to LWOP, generating an overpayment of $220.78 for pay period 24 of 2022.  These amounts are consistent with the audit document attached to SSA’s notice letter, which shows a time adjustment of -9.00 hours, corresponding to a $220.78 overpayment for pay period 24 of 2022 and no overpayment for Holiday pay.  SSA Debt Letter at 9 (itemization of overpayment labeled Exhibit 6); accord P. Ex. 6 at 1.

d. In pay period 25 of 2022, Petitioner received payment for 11.00 hours of COP that were changed to LWOP, and 4.15 hours were adjusted for hours never paid, generating an overpayment of $269.84.¹⁴  SSA Ex. 3 at 4.

For pay period 25, the first FPPS screenshot shows that 7.45 hours were changed to LWOP (code 101) in week 1 and 7.30 hours were changed to LWOP in week 2, totaling 15.15 hours.  Id.  The second FPPS screenshot shows a negative adjustment of 4.15 hours of LWOP in week 1 of pay period 25.  Id.  At the hearing, SSA explained that this time was already coded as LWOP and never paid to Petitioner.  See also SSA PHB at 6 (stating “4.15 hours were adjusted for hours never paid”).  Accordingly, a negative adjustment was made to ensure it was not included in the overpayment calculation.  After accounting for the 4.15 hours of LWOP that were not paid, only 11.00 hours of LWOP were included in the overpayment (totaling $269.84) for pay period 25 of 2022.  These amounts are consistent with the audit document attached to SSA’s notice letter, which shows a time adjustment of -11.00 hours, corresponding to a $269.84 overpayment for pay period 25 of 2022.  SSA Debt Letter at 9 (itemization of overpayment labeled Exhibit 6); accord P. Ex. 6 at 1.

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As explained above, Petitioner owes $288.23 for pay period 22 + $680.71 ($631.65 + $49.06) for pay period 23 + $220.78 for pay period 24 + $269.84 for pay period 25, which equals a total gross debt of $1,459.56 and a net debt of $1,196.14 after subtracting $263.42 in recoverables.  SSA Debt Letter at 9; DAB Dkt No. 1a at 9; P. Ex. 6 at 1.  Petitioner’s share of ‘recoverables’ includes her contributions for Medicare, OASDI, retirement, and TSP.  SSA Supp. Br. at 2.  These amounts are deducted from the overpayment, as shown in the audit document attached to SSA’s notice letter.  SSA Debt Letter at 9 (indicating a total of $263.42 is subtracted from the overpayment for Medicare, OASDI, Retirement and TSP).

Petitioner challenged the accuracy of the debt calculation in regard to how it treated credit hours in pay period 23 of 2022.  As discussed above, Petitioner originally used 4.30 credit hours on October 25, but 2.00 credit hours were converted to LWOP.  It is unclear why those credit hours were converted to LWOP, but the changes were made on Petitioner’s timesheet and in the FPPS system for pay period 23, resulting in an overpayment of salary.  SSA Dem. 1; SSA Ex. 3 at 2.  Petitioner is not entitled to payment for 2.00 credit hours that were converted to LWOP, and they are properly included in the overpayment calculation.

Petitioner also argued that an email from an SSA HR Specialist incorrectly included 5.30 hours of LWOP on October 25 for workers’ compensation coding on Petitioner’s timesheet.  P. Ex. 5 at 1 (listing 5.30 hours on October 25 among “FECA 162 coding done in webTA”).  According to Petitioner, only 3.30 hours of COP were initially changed to LWOP.  P. Supp. Br. at 2.  However, as SSA explained at the hearing, two corrections were made to Petitioner’s timesheet for pay period 23, which includes October 25.  The first correction changed the COP (pay code 160) to LWOP (pay code 101) and the second correction changed LWOP to workers’ compensation (pay code 162) for processing her workers’ compensation application.  The second change to pay code 162 was for administrative purposes and does not negate the overpayment.  Petitioner is correct that Petitioner’s original timesheet only included 3.30 hours of COP.  SSA Dem. 1 (see left-side, original timesheet, 10/25 at 11:00am-2:30pm).  However, as discussed above, those hours were converted to LWOP, along with 2.00 hours of credit hours used.  Id. (see right-side, first corrected timesheet, 10/25 at 11:00am-2:30pm and 7:30am-9:30am).  Thus, a total of 5:30 hours were changed to LWOP.  Petitioner’s second corrected timesheet also reflects a total of 5.30 hours of workers’ compensation (code 162) on October 25, which correspond with the LWOP entries on the previous timesheet, demonstrating that the previous LWOP entries were changed to workers’ compensation coding.  P. Ex. 6 at 2 (see 10/25 at 7:30am-9:30am and 11:00am-2:30pm, totaling 5.30 hours).  The LWOP and worker’s compensation entries on both of Petitioner’s corrected timesheets are consistent with the 5.30 hours stated in the HR Specialist’s email.  P. Ex. 5 at 2.  Therefore, I do not find any miscalculation of LWOP or the amount of the overpayment for October 25 or pay period 23 of 2022.

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3. A formal repayment schedule has not been established and Petitioner’s Due Process rights were not violated.

When a federal agency seeks to collect an employee’s debt through salary offset, it must provide at least 30 days written notice and inform the employee of the right to file a hearing request.  5 U.S.C. § 5514(a)(2)(A), (D); 20 C.F.R. § 422.810(f)(1).  Within 15 days of receiving the notice, the employee may file a hearing request disputing “the existence or amount of the debt or the offset schedule established by [the agency].”  20 C.F.R. § 422.810(h)(1)(i); see also 5 U.S.C. § 5514(a)(2)(D).  The timely filing of a hearing request will suspend collection of the debt.  5 U.S.C. § 5514(a)(2)(D); 20 C.F.R. § 422.810(h)(1)(iii).

SSA’s debt letter did not establish a repayment schedule, but Petitioner argued that her due process rights were violated because SSA had started to collect the debt before the expiration of the 30-day notice period and after she filed a hearing request on February 16, 2023.  P. PHB at 2-3; P. Supp. Br. at 3.  The SSA Debt Letter was dated January 23, 2023, which falls within pay period 3 of 2023.  SSA Debt Letter at 1.  Notice requirements prevented the agency from collecting the debt until February 22, 2023, which fell in pay period 5.  However, Petitioner contends SSA started collecting the debt in pay period 3.  Specifically, Petitioner takes issue with “voluntary” and “involuntary” collection amounts that were deducted on her Earnings and Leave Statements (ELS) in pay periods 3, 5, and 6 of 2023.  P. PHB at 2; P. Supp. Br. at 3.  For instance, SSA Demonstrative 2 shows an ELS from pay period 3 of 2023, where a $467.05 “Federal Debt Recovery – Voluntary” deduction occurred.  SSA Dem. 2 at 3.  Although this deduction appears, at first blush, to be a collection of the debt, SSA explained at the hearing that it was an administrative deduction for recoverables and not collection of the overpayment debt.  These recoverables were processed automatically after the debt is created (during pay period 3 of 2023), placed in associated accounts, and will be recovered from the associated accounts later, not from the employee’s wage, after resolution of the employee’s debt case.  SSA Dem. 3 at 1; see also SSA Ex. 4 (DOI’s Debt Management Supervisor confirming that [t]he amounts you see on the LES for 2023-03 are the first set of recoverables and NOT deducted from her pay – [they] will not be refunded unless the hearing and/or waiver is approved.”)  If the debt is upheld, the recoverables are deducted from the gross overpayment, resulting in a net overpayment due.  P. Ex. 6 at 1; SSA Debt Letter at 9.

In this case, Petitioner and the government share $467.05 in recoverables.  Petitioner’s contribution to the recoverables included $64.21 for Retirement and $87.58 for TSP, totaling $151.79.¹⁵  SSA Dem. 3 at 1.  These amounts are consistent with the

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recoverables listed on the SSA Debt Letter.  P. Ex. 6 at 1; SSA Debt Letter at 9.  The balance of the recoverables included $242.29 in Government Retirement, $58.39 in Government TSP Matching, and $14.58 in Government TSP, totaling $315.26.  SSA Ex. 3 at 1.  These amounts were not deducted from Petitioner’s pay either, but were processed in associated accounts.  Id. (confirming calculations demonstrating that Petitioner’s net pay did not include a deduction for the shared recoverables).  Although the government’s share of recoverables were processed in associated accounts in pay period 3, SSA explained at the hearing that they do not appear on the SSA Debt Letter because the government’s share of recoverables does not reduce the gross debt owed.  Therefore, I find that the $467.05 deduction that occurred in pay period 5 was not a premature collection of Petitioner’s debt.  Rather, it was an administrative collection of recoverables that were not deducted from Petitioner’s wages.  Accordingly, Petitioner’s due process rights were not violated.

Petitioner also argued that her due process rights were violated when a total of $439.37 was collected from her wages during pay periods 5 and 6.  P. PHB at 2-3; P. Ex. 1 at 1, 3.  Petitioner’s argument has some merit.  According to Petitioner’s Earnings and Leave Statements, $220.40 was deducted from Petitioner’s wages in pay period 5 and $218.97 was deducted from Petitioner’s wages in pay period 6.  P. Ex. 1 at 1, 3 (see “Federal Debt Recovery – Involuntary” amounts under Deductions).  These deductions occurred in March 2023, after Petitioner filed a hearing request on February 16, 2023.  Thus, collection of the debt ordinarily would have been suspended pending resolution of this administrative proceeding.

Nevertheless, I excuse the premature collection of $439.37 because of the unusual procedural history of this case.  To request a hearing, agency regulations require “the employee” to “send a written petition to the office [SSA] identified in the notice . . . within 15 days of receipt of the notice” and to sign the request. 20 C.F.R. § 422.810(h)(1)(i)-(ii)(A).  Instead of mailing her hearing request to the address identified in the notice letter, Petitioner filed her hearing request through an email from her union representative, and it was not signed by Petitioner.  SSA Debt Letter at 8; RFH at 5-6.  As a result, SSA did not initially recognize that Petitioner had requested a hearing concerning the debt or determine whether it was timely.  Indeed, the hearing request was not forwarded to the DAB until March 28, 2023.  See Dkt. Entry No. 1.  After considering arguments from the parties, I ruled, on April 28, 2023, that good cause existed to excuse Petitioner’s late hearing request.  PHO at 3.

Due to the procedural irregularities concerning Petitioner’s request for hearing and the significant lapse of time before I accepted Petitioner’s hearing request, SSA did not know

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that Petitioner requested a hearing or that an administrative proceeding was pending.  Therefore, SSA did not knowingly initiate collection proceedings while Petitioner’s hearing request was pending.  In SSA Exhibit 4, a DOI Debt Management Supervisor confirmed that “[SSA] collected in pay periods 2023-05 and 2023-06 while we were waiting confirmation of the hearing request.”  SSA Ex. 4.  Further, DOI’s Debt Management Supervisor stated that a “refund for $439.37 has been processed for pay period 2023-11.”  Id.  In other words, the $439.37 is being returned to Petitioner now that the instant case is underway.  At the hearing, Petitioner’s union representative stated that, according to Petitioner’s ELS, the collected amount was not refunded during pay period 11, which was the most recent pay period at the time of the hearing.  SSA counsel indicated that it would follow-up with DOI if it did not appear on Petitioner’s next ELS for pay period 12, which ended on June 3, 2023.  Understanding that the $439.37 is being refunded to Petitioner and the unique procedural circumstances of this case, I also find that SSA has not imposed a repayment schedule¹⁶ on Petitioner and her due process rights were not violated.

Finally, I must determine “whether the employee’s petition for hearing was baseless and resulted from an intent to delay the creditor agency’s collection activity.”  20 C.F.R. § 422.810(h)(4)(ii)(B).  I find that Petitioner did not file a baseless request for hearing, nor did she dispute the debt with the intention of delaying SSA’s collection activity.  Petitioner raised legitimate arguments concerning the computation and collection of the debt.  Further, any delay in these proceedings arose from Petitioner’s confusion over the agency’s notices regarding the timeframe for reviewing information and filing a hearing request and SSA’s delay in forwarding Petitioner’s hearing request.  PHO at 1-4.  There is no indication that Petitioner sought to delay payment of the debt, but undertook efforts to understand the nature and computation of the debt.

VIII.  Conclusion

Petitioner is indebted to the United States government in the amount of $1,459.56 (total gross) and has a total net debt of $1,196.14 after recoverables.

This is the final agency decision pursuant to 5 U.S.C. § 5514(a)(2)(D).

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Endnotes

¹ Footnote 1 of SSA’s prehearing brief argues that while the “Board has concluded Petitioner’s request [was] timely, Petitioner did not properly request a hearing as directed by the debt notice and required agency regulations at 20 C.F.R. § 422.810.”  While it is true that Petitioner did not follow the instructions provided in the debt notice to request a hearing, Petitioner’s request is accepted in the manner it was submitted in the interest of due process.

² Petitioner refiled a legible copy of Exhibit 1 on May 17, 2023.  DAB Dkt. Entry No. 33.

³ On SSA’s Federal Personnel Payroll System (FPPS), half hours are recorded as “0.30.”  Correspondingly, 15-minute and 45-minute increments are recorded as “0.15” and “0.45,” respectively.

⁴ As explained in further detail below, pay period 23 included an adjustment for 2.00 credit hours used that were not included in the overpayment and another 2.00 credit hours used that were converted to LWOP, which was included in the overpayment amount.

⁵ Pay code 050 indicates Holiday pay.  The 8.00 hours and negative adjustment of 8.00 hours were not included in the overpayment for pay period 24 of 2022.

⁶ During the hearing Petitioner informed SSA that she had not received the $439.37 refund.  SSA is reminded to follow up with their contact at the Department of the Interior to confirm when Petitioner will receive this refund.

⁷ The U.S. Department of Interior (DOI) is SSA’s payroll provider.  According to an email communication from an unidentified DOI Debt Management Supervisor, the recoverables amounts are processed automatically after the debt is created, placed in associated accounts, and subsequently recovered from the associated accounts, not from the employee’s wage, after resolution of the employee’s debt case.  SSA Dem. 3 at 1.

⁸ Additional recoverables from Petitioner, consisting of $21.15 for Medicare and $90.48 for Old-Age, Survivors, and Disability Insurance (OASDI), totaling $111.63, were not included in the recoverables calculation that were processed in pay period 3 of 2023.  Petitioner’s total share of recoverables (which is deducted from the overpayment debt) is $263.42, which represents $151.79 for Retirement and TSP plus $111.63 for Medicare and OASDI.

⁹ Multiplying 59.30 hours by Petitioner’s hourly wage of $24.53 yields a total overpayment of $1,459.54.  However, SSA’s rounding methodology for pay periods 24 and 25 increases the total overpayment by 2¢, to $1,459.56.  SSA Debt Letter at 9.

¹⁰ At the hearing, SSA explained that SSA Exhibit 3 captures the most updated information from webTA and FPPS.

¹¹ Mathematically, SSA arrives at 25.45 hours of LWOP by subtracting the remaining 2.00 credit hours that Petitioner used (and was already paid for) during week 1 of pay period 23 from 27.45 hours.  See SSA Ex. 3 at 2.  At the hearing, SSA explained that the total adjusted LWOP hours for pay period 23 was 27.45 and the agency subtracted the 2.00 hours of credit used during week 1 because it should not be included in the overpayment.  Thus, Petitioner had a net of 25.45 hours changed to LWOP ($680.71 less $49.06 for 2 hours of credit that were adjusted).  SSA PHB at 5.

¹² At the hearing, Petitioner expressed concern that the 2.00 hours of credit hours that were converted to LWOP may not have been restored to her leave account.  SSA stated that the used credit hours should have been added back to Petitioner’s leave account when the credit hours were changed to LWOP.  Petitioner should follow-up with her timekeeper to ensure that the 2.00 credit hours were restored to her leave account, as restoration of leave is outside the scope of these proceedings.

¹³ Multiplying 9.00 hours by Petitioner’s hourly wage of $24.53 yields a total overpayment of $220.77.  However, SSA’s rounding methodology for pay period 24 increases the overpayment to $220.78.  SSA Debt Letter at 9.

¹⁴ Multiplying 11.00 hours by Petitioner’s hourly wage of $24.53 yields a total overpayment of $269.83.  However, SSA’s rounding methodology for pay period 25 increases the overpayment to $269.84.  SSA Debt Letter at 9.

¹⁵ Additional recoverables from Petitioner, consisting of $21.15 for Medicare and $90.48 for Old-Age, Survivors, and Disability Insurance (OASDI), totaling $111.63, were not included in the recoverables calculation that were processed in pay period 3 of 2023.  Petitioner’s total share of recoverables (which is deducted from the overpayment debt) is $263.42, which represents $151.79 for Retirement and TSP plus $111.63 for Medicare and OASDI.

¹⁶ Before imposing a repayment schedule on Petitioner, I urge SSA to come to an agreement with Petitioner concerning the repayment schedule.  See 5 U.S.C. § 5514(a)(2)(C).