SUBJECT:

Michael H. Park,

Petitioner,

Department of Health and Human Services.

DECISION

This matter is before me pursuant to 5 U.S.C. § 5514 and 45 C.F.R. § 30.15. Petitioner, Michael H. Park, was advised by letter dated October 20, 2003, from the Director, Division of Payroll, Personal Pay System Division, Program Support Center (PSC), Department of Health and Human Services (HHS or the agency), that he received an overpayment in salary and was indebted to the government in the amount of $351.94. Petitioner requested a hearing by letter dated November 4, 2003. Petitioner's hearing request was forwarded to the Departmental Appeals Board (Board), Civil Remedies Division, by Robin J. Green, Paralegal Specialist, Claims and Employment Law Division, Office of the General Counsel, General Law Division, HHS, and received on January 21, 2004.

On February 11, 2004 this case was assigned to me for hearing and decision. Receipt of the hearing request was acknowledged by letter dated February 11, 2004.

Petitioner is granted the right to request a hearing by 5 U.S.C. § 5514(a)(2)(D), which also provides that the timely filing of a request for hearing stays commencement of collection proceedings. The Secretary of Health and Human Services has promulgated regulations at 45 C.F.R. § 30.15 implementing 5 U.S.C. § 5514(a)(2)(D), pursuant to authority granted by 5 U.S.C. § 5514(b). Petitioner's request for hearing dated November 4, 2003 was timely filed.

Title 45 C.F.R. § 30.15(n)(2) provides that if an oral hearing is to be held it will "normally be held no later than 30 days from the date of receipt by the agency of the request for hearing." Title 5 U.S.C. § 5514(a)(2)(D) requires that a decision be issued not later than 60 days "after the filing of the petition requesting the hearing." The Secretary has also provided by regulation that a final decision must issue within 60 days of the filing of the request for hearing. 45 C.F.R. § 30.15(o). Neither the statute nor the regulation provide a remedy if a decision is not timely issued. In this case, the request for hearing is dated November 4, 2003. Although the letter from Ms. Green, Office of General Counsel, General Law Division indicates that her office received the hearing request on December 22, 2003, I find no indication in the documents provided by the agency as to when the request for hearing was initially received by the agency. The request for hearing was not forwarded by Ms. Green to the Board until January 13, 2004, and it was not received by the Board until January 21, 2004. No explanation for the delay from November 4, 2003 to January 21, 2004 is evident from the record. Clearly, issuing a decision within 60 days of the date of the request for hearing was not possible given that the request for hearing was not received by the Board before the 60-day period expired. I find no prejudice to Petitioner, however, given that dismissal is appropriate because Petitioner has failed to raise an issue of law or fact for resolution. The regulations provide that the "hearing will normally be a review of the record, unless the hearing officer determines that a decision cannot be made without resolving an issue of credibility or veracity . . . ." 45 C.F.R. § 30.15(n). However, the regulations also provide that a request for hearing will be summarily denied where the request raises no genuine issue of fact or law. 45 C.F.R. § 30.15(m). I find no genuine issues of law or fact to resolve in this case. Accordingly the request for hearing is dismissed.

Petitioner was advised by the PSC letter of October 20, 2003, that he owed $351.94 for an overpayment of salary as determined by an audit report which he was advised was available for his review. It is not clear that Petitioner ever reviewed the audit report or consulted his servicing personnel office as suggested in the PSC notice of October 20. However, enclosed with the January 13, 2004 Office of General Counsel letter forwarding this matter for hearing were the audit report, Petitioner's request for hearing, and the October 20 PSC letter. In his request for hearing Petitioner disputes the calculations of the alleged salary overpayment, claiming that a retroactive one-percent salary increase, which he asserts he is entitled to, was erroneously used to calculate the alleged overpayment. Review of the audit sheets reveals that no error was made in calculation of the overpayment amount.

The audit sheets are attached to this order for ease of reference (Petitioner's social security number has been redacted for privacy reasons). The audit sheets include four tables titled "Was Paid," "Should Have Been Paid," "Difference," "Gross To Net - Overpaid," and some textual information. Annual salary and hourly rates are reflected in the second and third column of each of the first three tables. The first table, "Was Paid" shows how Petitioner was paid before the audit. There is no dispute by Petitioner that he was paid before the audit as reflected in the "Base Pay" and "Gross Pay" columns of the "Was Paid" table. The second table titled "Should Have Been Paid" reflects the auditor's view of how payments should have been made to Petitioner. The Office of Personnel Management (OPM) publishes the official salary tables for all federal employees each year. The OPM salary tables are official government records and public documents and are freely available on the web at http://www.opm.gov/Federal_Salaries_Wages. The salary tables applicable in this case are for 2003. There are two salary tables for General Schedule (GS) employees, an hourly/overtime schedule and an annual rate schedule. I refer to both, and both include locality pay (12.74%) (Washington-Baltimore locality pay area including the District of Columbia-Maryland-Virginia-West Virginia) and the approved increases for 2003 (totaling 4.27%). According to his request for hearing, Petitioner was a GS employee, Grade 13, Step 2, when he filed his request for hearing. The audit report reflects in the text that Petitioner received his in-grade increase from Step 1 to Step 2 effective July 13, 2003, with an annual salary increase to $71,357. The OPM annual salary table for 2003 reflects that the correct annual salary for a GS 13, Step 1 was $69,054, and for a GS 13, Step 2 was $71,357. The OPM hourly/overtime rate schedule shows an hourly rate for a GS 13, Step 1 as $33.09 per hour, and for a GS 13, Step 2, $34.19 per hour. My review of the second audit table titled "Should Have Been Paid" reveals that the auditor applied the correct annual salary and hourly rate for a GS 13, Step 1 for the pay period ending January 25, 2003 through the pay period ending July 12, 2003. There is no issue that Petitioner received his in-grade increase to GS 13, Step 2 effective July 13, 2003; and for pay periods ending July 26, 2003 through September 20, 2003, the audit report shows that the correct annual salary and hourly rate for a GS 13, Step 2 was used by the auditor. By comparing the first table, "Was Paid," with the second table, "Should Have Been Paid," it is apparent that Petitioner was underpaid as follows: for pay periods ending January 25, 2003 and February 8, 2003 in the amount of $29.60; for pay periods ending February 22, 2003, March 8 and 22, 2003, and April 5 and 19, 2003 in the amount of $108.80; and for the pay period ended May 3, 2003, in the amount of $29.60. The total underpayment was $632.80. Petitioner was then overpaid for the pay period ending May 17, 2003, in the amount of $554.40, and for the pay period ended May 31, 2003, in the amount of $473.60. The total overpayment amounted to $1,028.00. Subtracting the underpayment from the overpayment yields an overpayment of $395.20 ($1028.00 - $632.80 = $395.20). My calculations are the same as those of the auditor as reflected in the third table which is titled "Difference." The auditor took the gross amount of the overpayment of $395.20 and deducted amounts for employers retirement contribution (FERS), Medicare, FICA, State tax, and Petitioner's life insurance election, leaving a net overpayment amount of $351.94, which is the amount the agency seeks to collect from Petitioner as an overpayment.

There are no facts in dispute in this case and the case requires nothing more than the accounting exercise of applying the official government pay tables to the undisputed facts about Petitioner's pay grade. There are also no issues of law raised by this case. Accordingly, dismissal is appropriate pursuant to 45 C.F.R. § 30.15(m).

Keith Sickendick

Administrative Law Judge