CASE | DECISION | JUDGE

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
IN THE CASE OF  


SUBJECT:

Social Security Administration,

Petitioner,

DATE: May 20, 2003
                                          
             - v -

 

Thomas F. Cruise,

Respondent

 

Docket No. C-03-180
Decision No. CR1047
DECISION
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DECISION

This case has been assigned to me for hearing and decision. I enter summary disposition in this case sustaining the determination of the Social Security Administration (SSA) that Thomas F. Cruise (Respondent) received a salary overpayment. There are no material issues of fact in dispute that Respondent did receive the salary overpayment, and I do not have the authority to consider Respondent's arguments concerning the circumstances that resulted in the salary overpayment.

BACKGROUND

By letter dated July 15, 2002, SSA had informed Respondent that he was being indefinitely suspended, effective July 19, 2002, from duty and pay status. SSA Exhibit (Ex.) 3. Respondent challenged his suspension before the Merit Systems Protection Board (MSPB), but later withdrew his appeal. SSA Ex. 5. Respondent was inadvertently paid his regular salary during the period of his suspension. SSA Ex. 6. Respondent was returned to pay status effective August 9, 2002. SSA then undertook actions to recoup the salary overpayment from Respondent. SSA Ex. 7. SSA subsequently terminated Respondent's employment, and Respondent has appealed his termination to the MSPB.

By letter dated October 2, 2002, Respondent requested a hearing to dispute SSA's determination that he had received an overpayment in the amount of $6,253.87 in salary payments. Respondent argues that his suspension from employment was without basis and that the shortened notice of his suspension was in violation of federal personnel laws.

Respondent submitted a motion that this action be continued pending his appeal before the MSPB of his termination. SSA objected to that motion. The parties have submitted briefs and exhibits in support of their positions. SSA submitted seven exhibits. Respondent submitted 10 exhibits. Neither party objected to the other's exhibits. Accordingly, I accept into evidence SSA Exs. 1-7 and Respondent Exs. 1 - 10. On March 14, 2003, I issued a ruling denying Respondent's request for a continuance.

ISSUES, FINDINGS OF FACT, AND CONCLUSIONS OF LAW

A. Issues

The issues in this case properly before me are:

a. Whether Respondent received an overpayment; and

b. Whether SSA's calculation of the amount of the overpayment is correct.

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below as a separately numbered bolded heading. I discuss each finding in detail.

1. Respondent received a salary overpayment during his suspension, and I do not have the authority to review Respondent's arguments about the merits of his suspension.

Respondent did not deny that he was suspended without pay by SSA, but nevertheless received his salary during the period of his suspension. Rather, Respondent advanced arguments that his suspension was unjustified and in contradiction to established federal personnel laws. Respondent further alleged that I should continue this case pending a decision by the MPSB on the propriety of his termination of employment by SSA. Notwithstanding Respondent's arguments to the contrary, there is no connection between

Respondent's receipt of a salary overpayment and his termination. Those are two separate actions, and the outcome of Respondent's action before the MSPB on his termination will have no effect on the fact of his receipt of the overpayment due to his suspension.

Respondent could have challenged the basis for his suspension before the MSPB, and in fact did so, but then withdrew that appeal. The only issues properly before me over which I have jurisdiction are whether there was an overpayment to Respondent, and, if so, was the amount of the overpayment as stated by SSA correct. Respondent has conceded that he received the overpayment.

I have no authority to review Respondent's arguments about the merits of his suspension. The proper forum for Respondnet to contest the validity of his suspension was the MSPB. Nor do I have the authority, as Respondent suggested, to evaluate whether SSA's alleged negligence in sending the overpayments to Respondent constituted a constructive waiver of the overpayments; only SSA has the authority to grant a waiver of the overpayment.

2. Respondent received a salary overpayment in the amount of $4,806.21.

As there is no dispute between the parties that Respondent did receive salary payments during the period of his suspension, the remaining issue is the amount of the overpayment. SSA alleged that the overpayment amount was $6,253.17. Respondent contended that the amount of the overpayment was actually $4,806.21. Respondent Ex. 1. In my March 14, 2003 ruling, I found that SSA has the burden to articulate the amount of the overpayment and how it was calculated. SSA, asserting that the effort involved in gathering the documentation to support its calculation of the amount of the overpayment would be significant, stated that it was willing to stipulate that the amount of the overpayment was $4,806.21. SSA did so stipulate. Respondent had the opportunity to comment on SSA's stipulation, but did not do so. Accordingly, I find that the amount of the overpayment Respondent received was $4,806.21.

CONCLUSION

Based on my review of the entire record in this case, I find that Respondent received a salary overpayment in the amount of $4,806.21. This is the final administrative determination of the Social Security Administration in this case. There are no other administrative remedies. If Respondent wishes to seek judicial review, he is free to do so in the appropriate judicial tribunal of the United States, provided he acts within the time limits prescribed.

JUDGE
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Alfonso J. Montano

Administrative Law Judge

CASE | DECISION | JUDGE