B-215267, JAN 24, 1985, OFFICE OF GENERAL COUNSEL

B-215267: Jan 24, 1985

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WE HAVE RECEIVED A LETTER FROM MR. IN WHICH HE PROTESTS A DETERMINATION THAT HE IS INDEBTED TO THE GOVERNMENT IN THE AMOUNT OF $2. WE UNDERSTAND THAT YOU HAVE SUSPENDED COLLECTION OF THE INDEBTEDNESS PENDING THE ISSUANCE OF OUR DECISION ON THIS MATTER. WE DO NOT BELIEVE THAT THIS IS THE APPROPRIATE POINT IN TIME FOR US TO ISSUE A DECISION. OUR DECISIONS ARE BASED SOLELY ON THE WRITTEN RECORD. WHICH WERE PUBLISHED ON JUNE 3. ALTHOUGH THESE REGULATIONS WERE PUBLISHED AFTER YOU SENT THE NOTICE TO MR. THE SAME REQUIREMENT WAS INCLUDED IN SECTION 550.1104(E)(12) OF THE PROPOSED REGULATIONS. WE BELIEVE THAT SUCH NOTICE IS MANDATED BY THE STATUTE ITSELF. WE ARE RETURNING THE FILE TO YOU SO THAT YOU CAN PROVIDE PROPER NOTICE TO MR.

B-215267, JAN 24, 1985, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

CLYDE MCSHAN, DIRECTOR: OFFICE OF FINANCE AND MANAGEMENT NATIONAL FINANCE CENTER U.S. DEPARTMENT OF AGRICULTURE P.O. BOX 60950 NEW ORLEANS, LOUISIANA 70160

AS YOU KNOW, WE HAVE RECEIVED A LETTER FROM MR. JERRY E. SCHMIDT, AN EMPLOYEE OF THE FOREST SERVICE, COPY ENCLOSED, IN WHICH HE PROTESTS A DETERMINATION THAT HE IS INDEBTED TO THE GOVERNMENT IN THE AMOUNT OF $2,083.62 AS THE RESULT OF A SHIPMENT OF HOUSEHOLD GOODS WHICH EXCEEDED THE 18,000 POUND STATUTORY WEIGHT LIMIT. WE UNDERSTAND THAT YOU HAVE SUSPENDED COLLECTION OF THE INDEBTEDNESS PENDING THE ISSUANCE OF OUR DECISION ON THIS MATTER. HOWEVER, WE DO NOT BELIEVE THAT THIS IS THE APPROPRIATE POINT IN TIME FOR US TO ISSUE A DECISION.

IN CONNECTION WITH HIS PROTEST MR. SCHMIDT REQUESTED A HEARING, BUT WE DO NOT HOLD HEARINGS. OUR DECISIONS ARE BASED SOLELY ON THE WRITTEN RECORD. SECTION 5(A)(2) OF THE DEBT COLLECTION ACT OF 1982 (PUB. L. 97 365, 96 STAT. 1749), FOUND AT 5 U.S.C. SEC. 5514(A)(2), PROVIDES THAT AN EMPLOYEE MUST PETITION FOR A HEARING WITHIN 15 DAYS AFTER HE RECEIVES NOTICE OF HIS RIGHTS UNDER THE ACT. ALTHOUGH WE NOTE THAT YOU PROVIDED MR. SCHMIDT WITH CERTAIN INFORMATION REGARDING HIS DEBT IN ACCORDANCE WITH THE ACT, YOU FAILED TO INFORM HIM OF THE 15-DAY TIME LIMIT FOR FILING.

THE REGULATIONS IMPLEMENTING THE ACT, WHICH WERE PUBLISHED ON JUNE 3, 1984, AT 49 FED.REG. 27470, INCLUDE THE 15-DAY FILING REQUIREMENT AND ALSO PROVIDE, AT SECTION 550.1104(D)(8), THAT THE EMPLOYEE SHOULD BE SPECIFICALLY INFORMED OF THE TIME PERIOD FOR PETITIONING FOR A HEARING. ALTHOUGH THESE REGULATIONS WERE PUBLISHED AFTER YOU SENT THE NOTICE TO MR. SCHMIDT, THE SAME REQUIREMENT WAS INCLUDED IN SECTION 550.1104(E)(12) OF THE PROPOSED REGULATIONS, PUBLISHED ON SEPTEMBER 26, 1983, AT 48 FED.REG. 43687. IN ANY EVENT, WE BELIEVE THAT SUCH NOTICE IS MANDATED BY THE STATUTE ITSELF. SEE COLES V. PENNY, 531 F.2D 609 (D. C. CIR. 1976). THEREFORE, WE CONCLUDE THAT MR. SCHMIDT'S RIGHT TO REQUEST A HEARING HAS NOT BEEN EXTINGUISHED.

SINCE 5 U.S.C. SEC. 5514 PROVIDES THAT AN EMPLOYEE'S PETITION FOR A HEARING SHOULD BE FILED IN ACCORDANCE WITH PROCEDURES PRESCRIBED BY THE HEAD OF THE AGENCY, WE ARE RETURNING THE FILE TO YOU SO THAT YOU CAN PROVIDE PROPER NOTICE TO MR. SCHMIDT, AND IF HE PETITIONS FOR A HEARING, ARRANGE FOR THAT HEARING. PLEASE NOTE THAT AS PROVIDED IN SECTION 550.1102(B)(2) OF THE CURRENT REGULATIONS, MR. SCHMIDT HAS THE RIGHT TO RESUBMIT HIS CLAIM TO US SHOULD HE DECIDE NOT TO REQUEST A HEARING OR IF HE IS FOUND TO BE INDEBTED BY THE HEARING OFFICIAL. WE ARE ENCLOSING A COPY OF A LETTER WE ARE SENDING TO MR. SCHMIDT INFORMING HIM OF OUR ACTIONS.

MR. JERRY E. SCHMIDT:

11603 CLIPSTONE LANE

RESTON, VIRGINIA 22091

THIS IS IN REFERENCE TO YOUR LETTER PROTESTING THE FOREST SERVICE'S DETERMINATION THAT YOU ARE INDEBTED IN THE AMOUNT OF $2,083.62 AS THE RESULT OF A SHIPMENT OF HOUSEHOLD GOODS EXCEEDING THE 18,000 POUND STATUTORY LIMIT. WE DO NOT HOLD HEARINGS, AND WE ARE UNABLE, THEREFORE, TO PROVIDE YOU WITH A HEARING AS YOU REQUESTED.

THE DEBT COLLECTION ACT OF 1982 PROVIDES THAT YOU HAVE A RIGHT TO A HEARING CONDUCTED BY AN INDIVIDUAL WHO IS NOT UNDER THE SUPERVISION OR CONTROL OF THE HEAD OF THE AGENCY. ALTHOUGH 5 U.S.C. SEC. 5514(A)(2) PROVIDES THAT A PETITION FOR A HEARING MUST BE FILED WITHIN 15 DAYS AFTER AN EMPLOYEE RECEIVES A NOTICE OF HIS RIGHTS UNDER THE DEBT COLLECTION ACT, WE BELIEVE YOU MAY STILL REQUEST THE HEARING SINCE YOUR AGENCY FAILED TO NOTIFY YOU OF THE TIME LIMIT FOR FILING.

WE ARE ENCLOSING A LETTER TO THE FINANCE CENTER OF THE DEPARTMENT OF AGRICULTURE IN WHICH WE ADVISED THEM TO GIVE YOU PROPER NOTICE OF YOUR RIGHT TO A HEARING AND TO ARRANGE FOR A HEARING SHOULD YOU REQUEST ONE. YOU HAVE THE RIGHT TO RESUBMIT YOUR CLAIM TO US IF YOU DECIDE NOT TO REQUEST A HEARING OR IF THE RESULT OF THE HEARING IS UNFAVORABLE TO YOU.