$05:Civil Money Penalty
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Cases of: Department of Health and Human Services
- v. -
Dennis T. Bennett, Respondent.
DATE: August 31, 1994
Docket Nos. C-94-041
C-94-047
Decision No. CR330
DECISION
These Debt Collection Act cases are before me pursuant to the
requests for hearing timely filed by Dennis T. Bennett
(Respondent). HHS Exs. 14, 18, 20 at 1. 1/ The Department of
Health and Human Services (HHS) alleges that Respondent is indebted
to the United States for $664.79 in salary overpayments due to his
unexcused absences from his duty station during prescribed duty
hours. According to HHS, such unexcused absences totalled 16.5
hours and occurred on July 31 and August 6, 1992 and during the
workdays between September 22 and September 29, 1992. See
generally HHS Br.
The cases originally were assigned to Administrative Law Judge
Charles Stratton to hear and decide. Judge Stratton held various
prehearing conferences with the parties, including those of January
27 and February 24, 1994. On the parties' representations during
the conferences that the cases involved similar issues and facts,
Judge Stratton ordered consolidation of the cases and scheduled
them for an in-person hearing from May 4 through 6, 1994. Also
during the prehearing conferences, Respondent agreed to waive the
right to have the case decided within the 60 days provided by 45
C.F.R. 30.15(o).
The cases were reassigned to me on March 1, 1994, for reasons
related to Judge Stratton's health. I held a prehearing conference
with the parties on March 18, 1994, at which time HHS moved that I
issue a decision based on the documentary submissions to be filed
by the parties. After considering the parties' positions on HHS'
motion, I directed the parties to file their briefs and documentary
evidence in support of (or contra) proceeding to decision based on
a documentary record. I vacated Judge Stratton's order scheduling
an in-person hearing in this case, pending my consideration of
whether the cases may be decided on a written record as urged by
HHS. Order and Notice of Hearing dated March 30, 1994.
Having considered the briefs and evidence of record, 2/ I grant
HHS' motion for deciding the cases on a written record. On that
basis, I enter judgment in Respondent's favor.
ISSUES
Whether Respondent is indebted to HHS, and, if so, in what amount?
FINDINGS OF FACT
1. For purposes of this proceeding, a "debt" means an amount of
money or property owed to the United States due to a salary
overpayment to an employee. 45 C.F.R. 30.2.
2. The Secretary of HHS, or her designee within any Operating
Division or Regional Office, is authorized to collect debts owed to
the United States by its employees. See 45 C.F.R. 30.2,
30.11.
3. At all times relevant to this proceeding, Respondent has been
employed as an administrative law judge (ALJ) in the San Bernadino,
California, Hearing Office of the Social Security Administration
(SSA), Department of Health and Human Services. See HHS Exs. 1 -
7.
4. At all times relevant to this proceeding, Larry M. Weber has
been employed by SSA as the San Bernadino Hearing Office's Chief
Administrative Law Judge (HOCALJ). See HHS Exs. 1 - 7.
5. By memorandum dated August 7, 1992, HOCALJ Weber notified
Respondent that someone had reported Respondent for having arrived
in and departed from the Hearing Office at the following times:
July 31, 1992: Arrived 10:45 A.M.
Departed 11:30 A.M.
Arrived 12:55 P.M.
Departed 1:55 P.M.
Arrived 3:30 P.M.
Departed 4:30 P.M.
(HOCALJ Weber noted the receipt of Respondent's request for
sick leave for the period from 2:00 P.M. to 3:00 P.M. on July 31,
1992.)
August 6, 1992: Arrived 10:00 A.M.
Departed 12:15 P.M.
Arrived 2:00 P.M.
Departed 4:40 P.M.
(HOCALJ Weber noted also the absence of any leave request for
August 6, 1992.)
HHS Ex. 1.
6. HOCALJ Weber's memorandum of August 7, 1992 indicates that
Respondent was physically present in the Hearing Office for a total
of 2 hours and 45 minutes (45 minutes in the morning and 2 hours in
the afternoon) on July 31, 1992, and Respondent was known to have
been out of the office on approved sick leave for an additional
hour that afternoon. HHS Ex. 1.
7. HOCALJ Weber's memorandum of August 7, 1992 indicates that 3
hours and 45 minutes (3.75 hours) of July 31, 1992 were accounted
for by Respondent's physical presence in the Hearing Office and by
his use of approved sick leave. Finding 5.
8. HOCALJ Weber's memorandum of August 7, 1992 indicates that
Respondent was physically in the Hearing Office for a total of 4
hours and 55 minutes on August 6, 1992 and that he used no approved
leave that day. HHS Ex. 1.
9. HOCALJ Weber states in his August 7, 1992 memorandum that he
would appreciate Respondent's "assistance in resolving these
discrepancies" before HOCALJ Weber certified a report on the
Respondent's time and attendance. HHS Ex. 1.
10. On August 10, 1992, Petitioner responded to HOCALJ Weber's
memorandum by, inter alia, disagreeing with HOCALJ Weber's
authority to certify the time worked by ALJs, asserting that he
(Respondent) has "regularly worked well in excess of forty (40)
hours per week on many occasions," and requesting the name of
HOCALJ Weber's "informant," along with the relevant "recorded
notes" allegedly used to document his absences from the office.
HHS Ex. 2 at 1.
11. Respondent forwarded a copy of his August 10, 1992 memorandum
to SSA's Acting Chief ALJ, Jose Anglada. HHS Exs. 2 at 2, 9 at 2.
12. In his memorandum of August 10, 1992, Respondent does not
state that he was present in the San Bernadino Hearing Office or
that he was performing official work away from the Hearing Office
during any or all of the periods in question on July 31 and August
6, 1992. HHS Ex. 2.
13. HOCALJ Weber's memorandum of August 7, 1992 does not question
Respondent's total hours of work for any week, but it sets forth
concerns about Respondent's alleged absences from the Hearing
Office on July 31 and August 6, 1992. HHS Ex. 1.
14. Some time after August 7, 1992, but before August 12, 1992,
HOCALJ Weber certified a Time and Attendance Report prepared for
Respondent, which resulted in Respondent's receiving a salary check
calculated on the basis of 80 paid hours (including 1.5 hours of
annual leave and 17.25 hours of sick leave) during the biweekly
payroll period that ended on August 8, 1992. See HHS Exs. 1, 3, 20
at 2.
15. On August 12, 1992, HOCALJ Weber notified Respondent that the
Time and Attendance Report would be amended to reflect Respondent's
absence from work without leave (AWOL) for 3 hours and 15 minutes
(3.25 hours) on July 21, 1992 and for 2 hours and 15 minutes (2.25
hours) on August 6, 1992. HHS Ex. 3.
16. HOCALJ Weber cited Respondent's failure to provide
"appropriate documentation" as a basis for concluding that
Respondent had been AWOL for the specified periods on July 31 and
August 6, 1992. HHS Ex. 3.
17. In his memorandum asking Respondent's assistance in resolving
the "discrepancies" ensuing from the reports of Respondent's
arrival and departure times during July 31 and August 6, 1992,
HOCALJ Weber does not ask Respondent to provide any documentation.
HHS Ex. 1.
18. The record does not disclose what is meant by "appropriate
documentation" for addressing someone's report to HOCALJ Weber that
Respondent had arrived and departed from the Hearing Office at the
specified times.
19. The Time and Attendance Report for Respondent covering the
payroll period that ended August 8, 1992 was subsequently changed
by agency personnel on an unspecified date to show that Respondent
was charged 3.25 hours of AWOL for Friday, July 31, 1992 and 2.25
hours of AWOL for Thursday, August 6, 1992. HHS Ex. 11 at 1.
20. On August 12, 1992, Respondent directed a memorandum to HOCALJ
Weber in which he protests the alleged illegality of his having
been placed on AWOL and indicates his belief that no other ALJ in
the Hearing Office was being charged AWOL for leaving the office
during the workday. HHS Ex. 4.
21. Respondent forwarded a copy of his August 12, 1992 memorandum
to SSA's Acting Chief ALJ Anglada. HHS Ex. 4.
22. In an Earnings and Leave Statement issued by HHS to Respondent
for the pay period that ended on September 5, 1992, there appeared
5.5 hours of AWOL. HHS Ex. 21 at 1.
23. The 5.5 hours of AWOL resulted from adding the 3.25 hours of
AWOL for July 31, 1992 to the 2.25 hours of AWOL for August 6,
1992. See Findings 5, 22.
24. On September 21, 1992, Acting Chief ALJ Anglada responded to
Respondent's memoranda. HHS Ex. 9.
25. Acting Chief ALJ Anglada informed Respondent that HOCALJ Weber
is required to certify Respondent's time and attendance, to approve
Respondent's use of leave, and to take appropriate action where
leave use irregularities or abuses are identified. HHS Ex. 8 at 1.
26. Acting Chief ALJ Anglada also informed Respondent of the
following:
When a judge works less than the prescribed number of hours in
a day or week, the judge's non-working time must be recorded as
leave. There are no exceptions to this established policy, and it
must be applied strictly and uniformly. . . .
While it is appreciated that you have worked such hours [i.e.,
late into the night and on weekends], it is irrelevant to the issue
of time and attendance during your fixed tour of duty. You may not
substitute time spent on such occasions for time during your normal
tour of duty. . . .
[I]t is essential, whether you work a fixed tour of duty or an
alternate work plan, that all government-wide rules and regulations
on time and attendance are followed to certify your actual hours of
work.
HHS Ex. 9 at 2.
27. In his memorandum to Respondent, Acting Chief ALJ Anglada does
not state that, under SSA's established policy, AWOL would be
charged in lieu of leave for a judge's non-working time. HHS Ex.
9 at 2.
28. With respect to SSA's "established policy" referenced in the
memorandum to Respondent, Acting Chief ALJ Anglada does not state
whether an ALJ who has failed to work the required hours during the
workday would be asked to use his accrued (paid) leave for the time
he did not work, or whether the same ALJ would be placed on unpaid
leave status for the period he did not work. HHS Ex. 9.
29. Acting Chief ALJ Anglada did not define or otherwise explain
the terms "prescribed number of hours in a day or week," "normal
tour of duty," and "all government-wide rules and regulations on
time and attendance" he used in his memorandum to Respondent. HHS
Ex. 9 at 2.
30. On September 30, 1992, HOCALJ Weber notified Respondent by
memorandum that he (Weber) had observed Respondent arriving at work
at the following approximate times on six consecutive work days:
September 22, 1992: 10:00 A.M.
September 23, 1992: 9:55 A.M.
September 24, 1992: 10:00 A.M.
September 25, 1992: 10:00 A.M.
September 28, 1992: 9:35 A.M.
September 29, 1992: 9:15 A.M.
HHS Ex. 5.
31. HOCALJ Weber states in his memorandum dated September 30, 1992
that Respondent's "tour of duty" is from 8 A.M. until 4:30 P.M.,
and, therefore, there appears to be approximately 10 hours and 45
minutes of Respondent's work tour for which he was not present.
HHS Ex. 5.
32. In his memorandum of September 30, 1992, HOCALJ Weber asks
Respondent to advise him if the information concerning Respondent's
arrival times is incorrect. HHS Ex. 5.
33. Some time after September 30, 1992 but prior to October 6,
1992, HOCALJ Weber certified the Time and Attendance Report for
Respondent covering the dates of September 22 to 29, 1992, which
resulted in Respondent's receiving pay calculated on the basis of
his having worked and taken paid leave (1.50 hours of annual leave
and 9.25 hours of sick leave) for a total of 80 hours during the
biweekly pay period that ended on October 3, 1992. See HHS Exs. 5,
18 at 2.
34. On October 6, 1992, HOCALJ Weber issued a memorandum to
Respondent, stating that because Respondent did not timely respond
to the inquiry concerning Respondent's arrival times from September
22 to September 29, 1992, HOCALJ Weber had no choice except to find
that Respondent was AWOL for the 10 hour and 45 minute period
indicated in his earlier letter to Respondent. HHS Exs. 5, 6.
35. HOCALJ Weber did not notify Respondent that October 6, 1992
was the deadline for Respondent to explain his arrival times on
September 22 to 29, 1992. HHS Ex. 5.
36. On October 8, 1992, HOCALJ Weber received a letter dated
September 30, 1992 from Respondent. HHS Ex. 7.
37. Respondent's September 30, 1992 letter addresses HOCALJ
Weber's personal observations concerning Respondent's arrival times
at the Hearing Office by stating that, from September 22 to 25,
1992, Respondent had worked 30.50 hours, and from September 28 to
29, 1992, Respondent had worked 16 hours. HHS Ex. 7 at 2.
38. Respondent alleges in his September 30, 1992 letter
specifically that no 8:00 A.M. to 4:30 P.M. tour of duty for ALJs
was in effect at the San Bernadino Hearing Office because others
maintained hours that were different than the asserted tour of
duty, and others in the office allegedly had heard HOCALJ Weber say
that ALJs are permitted to set their own hours as long as they work
a "forty hour work-week." HHS Ex. 7 at 2.
39. After receiving Respondent's letter dated September 30, 1992,
HOCALJ Weber did not communicate with Respondent concerning his
determination that Respondent was absent for 10 hours and 45
minutes (10.75 hours) for the workdays from September 22 to 29,
1992. See HHS Exs. 5, 6.
40. On a later unspecified date, agency personnel amended the Time
and Attendance Report for Respondent covering the payroll period
ending October 3, 1992 to show that Respondent was charged 11 hours
of AWOL from Tuesday, September 22, 1992 until Tuesday, September
29, 1992. HHS Ex. 11 at 2.
41. A total of "16.50" hours in AWOL appears on the Earnings and
Leave Statement issued by HHS to Respondent for the pay period that
ended November 28, 1992. HHS Ex. 21 at 2.
42. On February 16, 1993, after having completed a payroll audit,
HHS prepared a Certification of Salary Overpayment, informing
Respondent that he had received a salary overpayment in the amount
of $443.19 due to the 11 hours of AWOL charged to the pay period
that ended on October 3, 1992. HHS Ex. 12.
43. The amount of $443.19 was calculated by multiplying
Respondent's then hourly rate of pay ($40.29) by 11 hours. See HHS
Ex. 18 at 2.
44. Beginning with the pay period that ended on April 17, 1993 and
continuing until the pay period that ended on May 15, 1993, HHS
made deductions of $36.76 from each of Respondent's pay checks.
HHS Ex. 13.
45. On May 5, 1993, HOCALJ Weber was told by the Director of
Division of Budget and Financial Management for HHS that the
earlier overpayment actions relating to the dates of July 31 and
August 6, 1992 had not yet been processed. HHS Ex. 15.
46. By memorandum dated May 5, 1993 to the Director of HHS'
Division of Budget and Financial Management, HOCALJ Weber requested
that processing begin for the overpayment actions relating to July
31 and August 6, 1992. HHS Ex. 15.
47. HOCALJ Weber states in his memorandum of May 5, 1993 that the
Certification of Salary Overpayment dated February 16, 1993 was
never received in the San Bernadino Hearing Office until it was
transmitted by facsimile on May 4, 1993. HHS Ex. 15.
48. In his May 5, 1993 memorandum, HOCALJ Weber referred to the
salary deductions HHS made from Respondent's paychecks as relating
to Respondent's "10 hours and 45 minutes of AWOL status from
September 1992." HHS Ex. 15.
49. On May 6, 1993, Respondent filed a request for hearing with
respect to the $443.19 amount in salary overpayment calculated by
HHS and stated that he had not received the Certification of Salary
Overpayment dated February 16, 1993. HHS Ex. 14.
50. HHS refunded the previously collected salary deductions of
$110.28 and, on October 21, 1993, issued to Respondent the
Certification of Salary Overpayment dated February 16, 1993. HHS
Ex. 17.
51. On November 5, 1993, Respondent filed another request for
hearing with respect to the amount of $443.19 after having received
the Certification of Salary Overpayment dated February 16, 1993.
HHS Exs. 14, 18.
52. In requesting a hearing concerning the $443.19 specified in
the Certification of Salary Overpayment dated February 16, 1993,
Respondent claimed as a basis that the Earnings and Leave Statement
issued to him for the payroll period ending October 3, 1992
contains the correct information -- that is, he was correctly
debited with only 1.50 hours of annual leave and 9.25 hours of sick
leave for that pay period. HHS Ex. 18.
53. On January 3, 1994, after having completed a payroll audit,
HHS issued a Certification of Salary Overpayment, informing
Respondent that he had been overpaid the amount of $221.60 for the
5.50 hours of AWOL charged to the pay period that ended on August
8, 1992. HHS Ex. 19 at 1 - 3.
54. The amount of $221.60 was calculated by multiplying
Respondent's then hourly rate of pay ($40.29) by 5.5 hours. See
HHS Ex. 20 at 2.
55. The amount of money allegedly owed by Respondent to the United
States totals $664.79. Findings 42, 43, 53, 54.
56. On January 18, 1994, Respondent filed his hearing request with
respect to the Certification of Salary Overpayment dated January 3,
1994. HHS Ex. 20 at 1.
57. In requesting a hearing concerning the $221.60 specified in
the Certification of Salary Overpayment dated January 3, 1994,
Respondent claimed as a basis that the Earnings and Leave Statement
issued to him for the payroll period ending August 8, 1992 contains
the correct information -- that is, he was correctly debited with
only 1.50 hours of annual leave and 17.25 hours of sick leave for
that pay period. HHS Ex. 20 at 1 - 2.
58. Respondent's position description as an ALJ for SSA states
that he is "subject only to such administrative supervision as may
be required in the course of general office management." HHS. Ex.
10 at 4.
59. At all times relevant to this proceeding, Respondent has been
subject to the administrative supervision of HOCALJ Weber that is
concomitant to the latter's general management of the San Bernadino
Hearing Office. HHS Ex. 10.
60. As part of his general office management responsibilities, the
HOCALJ is authorized to participate in investigations, in
coordination with the Regional Chief ALJ, into allegations of
improper conduct on the part of any employee, including ALJs, which
may be in violation of laws, regulations, or the agency's operating
rules. HHS Ex. 10 at 8.
61. The management duties of a HOCALJ include implementing
applicable regulations on leave approval and maintaining time and
attendance requirements in the Hearing Office. HHS Ex. 10 at 8.
62. The HOCALJ is authorized to certify the accuracy of Time and
Attendance Reports for all Hearing Office employees, including
ALJs. HHS Exs. 1, 10 at 8.
63. HOCALJ Weber is not precluded from implementing or enforcing
time and attendance requirements for all ALJs employed at the San
Bernadino Hearing Office. Findings 58 - 62.
64. If SSA or HOCALJ Weber had instituted time and attendance
requirements applicable to ALJs at the San Bernadino Hearing
Office, then Respondent would have been subject to such
requirements. See HHS Ex. 8.
65. HHS calculates Respondent's pay on the basis of 80 hours per
10 workdays. HHS Exs. 11, 20.
66. HHS has accounted for only 7 hours of Respondent's workday on
July 31, 1992 by placing Respondent on AWOL status for 3.25 hours
on the basis of information indicating that, for a total of 3.75
hours, Respondent was either present in the Hearing Office or used
approved sick leave. See Findings 5, 6.
67. HHS has accounted for only 7 hours and 10 minutes of the
August 6, 1992 workday by having placed Respondent on AWOL status
for 2.25 hours on the basis of information indicating that
Respondent was in the Hearing Office (and used no approved leave of
any type) for a total of 4 hours and 55 minutes. See Findings 5,
6.
68. HHS has introduced no evidence to explain why Respondent was
ultimately charged with 11 hours of AWOL for the period from
September 22 to 29, 1992, after HOCALJ Weber had repeatedly
referred to a lesser period of AWOL for the same period of time.
Findings 30 - 34.
69. HHS has not cited or introduced the laws, regulations, or
operating rules of the agency that HOCALJ Weber, SSA, or HHS have
relied on in charging Respondent with the AWOL hours in issue.
70. HHS has not cited or introduced any law, regulation, or
operating rule of the agency that specifies the time ALJs are to
arrive at SSA's Hearing Office, take their breaks, or end their
workday.
71. HHS has not cited or introduced any law, regulation, or
operating rule of the agency that specifies the permissible length
of breaks employees of SSA's Hearing Offices (including ALJs) may
take during the workday.
72. The only reference to a fixed "tour of duty" or to an 8:00
A.M. to 4:30 P.M. "tour of duty" for Respondent is contained in the
September 30, 1992 memorandum HOCALJ Weber issued asking Respondent
to explain his arrival time at the Hearing Office during the
preceding six workdays. HHS Ex. 5; see also Finding 11.
73. HHS has not cited or otherwise introduced any law, regulation,
or operating rule of the agency that sets ALJs' "tour of duty" at
8:00 A.M. to 4:30 P.M.
74. If HOCALJ Weber had set the specific hours of arrival for
work, departure from work, and lengths of breaks for all ALJs
employed in SSA's San Bernadino Hearing Office, HHS has not
introduced any evidence to show the establishment or implementation
of such requirements by HOCALJ Weber prior to Respondent's alleged
absences without leave on July 31, August 6, September 22 to 25,
and September 28 and 29, 1992. Findings 3 - 73.
75. HHS has not cited or introduced any law, regulation, or
operating rule of the agency relevant to leave-taking by employees,
including ALJs.
76. Respondent's position description as an ALJ does not limit him
to performing all his work activities at the Hearing Office site.
HHS Ex. 10.
77. A broad scope of technical, legal, medical, and economic
knowledge is specified in the position description for SSA's ALJs.
HHS Ex. 10 at 5 - 6.
78. HHS has not introduced any evidence relevant to the
circumstances and procedures under which ALJs and other employees
of SSA's San Bernadino Hearing Office are permitted to be away from
the Hearing Office during the workday.
79. HHS has not introduced any policy, regulation, or rule for
designating Respondent's status as AWOL because Respondent was
suspected to have deviated from a "tour of duty."
80. HHS has not introduced evidence on any policy it or SSA may
have promulgated or implemented concerning how a HOCALJ should
investigate or evaluate the merits of reports that an employee
(including an ALJ) may have been away from the office during his
work hours.
81. HHS has not introduced evidence on any policy HOCALJ Weber may
have promulgated or established prior to July 31, 1992 concerning
how he investigated or dealt with reports that an employee
(including an ALJ) may have been away from the office during his
work hours.
82. HHS has failed to introduce any evidence to explain why, in
charging Respondent with AWOL for July 31 and August 6, 1992,
HOCALJ Weber cited as a basis Respondent's failure to provide
"appropriate documentation" of his whereabouts when HOCALJ Weber's
earlier memorandum to Respondent had sought no documentation. See
Findings 69 - 81.
83. If reports concerning Respondent's absences from the Hearing
Office constituted allegations that Respondent's conduct was
improper and violative of a law, regulation, or agency rule, HOCALJ
Weber should have been a participant in an investigation conducted
in coordination with the Regional Chief ALJ. HHS Ex. 10 at 8.
84. HHS has not introduced any evidence indicating that HOCALJ
Weber participated in any investigation in coordination with the
Regional Chief ALJ concerning reports of Respondent's absences from
work.
ANALYSIS OF FACTS AND CONCLUSIONS OF LAW
I. I grant HHS' motion to issue a decision based on the written
record and order that judgment be entered in Respondent's favor.
I have summarized the relevant chronology of events in Findings 3
to 57. No real dispute exists concerning what took place.
Therefore, I will not repeat the acts that have brought the parties
before me for an adjudication concerning the debt allegedly owed by
Respondent.
HHS, the Petitioner herein, asked that the case be decided on the
written record placed before me. HHS contended that there is no
issue of veracity or credibility attendant with Respondent's
indebtedness or with HHS' calculations of the amount owed by
Respondent. HHS Br. at 2. HHS reasoned that Respondent's debt,
which was calculated by mathematically correct means, exists as a
matter of law because HOCALJ Weber has already found Respondent to
have been on AWOL for the specified periods. HHS contended that I
am without authority to readjudicate the merits of a discretionary
management function performed by HOCALJ Weber:
As to the existence of the debt, it is irrelevant whether
Respondent agrees with the determination to place him in AWOL
status. He was so placed, therefore the debt exists. This forum
is not constituted to readjudicate the merits of that discretionary
management action.
HHS Br. at 10.
Respondent urged me to set the case for an in-person hearing, where
HHS presumably would have presented witnesses who allegedly
observed Respondent's absences at issue, where Respondent would
have had the right to cross-examine such witnesses, and where
Respondent and his witnesses would have had the opportunity to
rebut HHS' documentary evidence. Respondent Br. at 3. Respondent
disputed the factual allegations contained in the HOCALJ's
statements of record. Respondent Br. at 4; see also HHS Exs. 18,
20. Respondent noted also the affirmative defenses he might have
pursued through witness testimony at an in-person hearing, such as
whether the pay of other judges and employees had been "docked"
under similar circumstances, whether the management actions taken
with respect to the alleged absences were required or appropriate
(or constituted interference with the judicial independence of
ALJs). Respondent Br. at 3 - 6. Respondent contended that the
merits of his case depended in substantial part upon witness
credibility. Id.
In its reply brief, HHS continued to argue that the matter before
me could be decided on the documentary record because the testimony
Respondent presumably would elicit goes to issues beyond the scope
of my jurisdiction, and, moreover, I should defer to HOCALJ Weber's
adjudication of the AWOL matter under the doctrine of comity:
In DHHS v. Dolly Jackson, [DAB CR102 (1990)], the Department
Appeals Board held in another debt-collection case that it was
without authority to reopen or otherwise modify a decision of the
MSPB [Merit System Protection Board], the implementation of which
resulted in an overpayment to Respondent; . . .
Likewise here, comity urges that the Departmental Appeals
Board grant deference to the agency's AWOL decision, made in the
legitimate exercise of its administrative management authority.
HHS Reply Br. at 2 - 3. According to HHS, the evidence contained
in the written record entitled HHS to judgment in its favor. E.g.,
HHS Reply Br. at 5 - 6. HHS continued to re-emphasize its view
that the appropriateness or necessity of the AWOL action cannot be
challenged in this forum because the Departmental Appeals Board
could not intrude into a matter committed to the sole discretion of
HHS/SSA. 3/ HHS contended that an in-person hearing was not
necessary because, in order for HHS to meet its burden of proving
that a debt exists, it is necessary for HHS to show only that it
"made a determination that Respondent was 'guilty of the offense
charged.'" HHS Reply Br. at 5 (emphasis added).
For the reasons that follow, I grant HHS' motion for disposition of
the issues based on the documentary evidence. On the basis of that
record, I enter judgment in favor of Respondent.
I find that the case need not proceed to an in-person hearing. HHS
is the Petitioner in this action, and it bears the burden of
proving by a preponderance of the evidence that Respondent is
indebted to the United States and in the amount of $664.79 for the
reasons contended by HHS. Order and Notice of Hearing dated March
30, 1994 at 2. Nearly two years have elapsed since HOCALJ Weber
placed Respondent on AWOL and provided the factual underpinnings
for HHS' claim of a debt. HHS has been on notice throughout that
Respondent disagreed with the facts asserted by HHS in claiming a
debt.
Respondent has consistently asked HHS to prove the accuracy of its
determinations. In his correspondence with HOCALJ Weber dated
August 10, 1992, Respondent requested the name of the "informant"
and a copy of the notes relied upon to lodge the "very serious"
allegations against him. HHS Ex. 2. Respondent did not receive
the information or documentation he sought. Instead, HOCALJ Weber
cited Respondent's failure to provide "relevant documentation" as
a basis for placing Respondent on AWOL. HHS Ex. 3. The record
reveals that Respondent was disputing the existence of any policy
or practice in the San Bernadino Hearing Office that required ALJs
to arrive or depart at the same specified hours each workday. HHS
Exs. 2 at 1, 7 at 2. In his hearing requests, Respondent contended
also that he should not have been charged with any unpaid absences
during the relevant pay periods. HHS Exs. 18, 20. 4/ HHS has
chosen to proceed on the documentary evidence it has submitted even
after Respondent had suggested to HHS that it should use the
testimony of eye-witnesses to prove that Respondent incurred the
unexcused absences that resulted in the indebtedness at issue. See
Respondent Br. at 3.
II. I have the authority to review the legitimacy and merits of
the management actions that gave rise to the debt in issue.
Respondent is entitled to an impartial evidentiary hearing on "the
administrative determination of the existence or amount of the
debt." See 45 C.F.R. 30.15(l), (n), (o). Hearing means
either a review of the documentary evidence of record or an
in-person hearing. 45 C.F.R. 30.15(b)(2). My responsibility is
to decide, based on the evidence presented by the parties, whether
and to what extent a debt exists. 45 C.F.R. 30.15(l), (n),
(o).
Here, the debt would not exist but for the AWOL designation. The
dispute concerning the existence of a debt (i.e., a salary
overpayment) arose only because HOCALJ Weber had decided to certify
retrospectively for Respondent's Time and Attendance Report that
Respondent was AWOL during the dates in question. The
administrative determination at issue is HHS' finding that
Respondent owes $664.79 in salary overpayments due to his having
been absent from the office without leave for a total of 16.50
hours.
HHS' arguments that I am obliged to refrain from reviewing the
merits of the administrative determination at issue are without
parallels. 5/ There would be no point for any debtor to seek
review under HHS' regulations if, as HHS suggests, HHS is entitled
to prevail at hearing whenever it shows that an agency manager has
determined for reasons not of record that the debtor was "guilty of
the offense charged." See HHS Reply Br. at 5. Contrary to HHS'
argument that "this forum is not constituted to readjudicate the
merits of that administrative agency action" (HHS Reply Br. at 2),
HHS' own regulations constituted this forum to adjudicate the
merits of the administrative agency action finding Respondent
indebted for $664.79 in salary overpayments due to HHS' having
charged him retroactively with 16.50 hours of AWOL. What this
forum was not constituted to do was to rubber-stamp HHS'
administrative or management actions.
I reject also as a matter of law the doctrine of comity urged by
HHS, as well as HHS' efforts to characterize its actions under
review in this forum as the equivalent of a decision issued by the
MSPB. I represent the Secretary of HHS in the present proceeding
for deciding whether Respondent owes the debt claimed by HHS. HHS'
status before me is that of the litigant, and HHS' managers and
officials involved in this action have the status of witnesses (or
potential witnesses) before me. 6/ HOCALJ Weber's determination of
Respondent's AWOL status is not conclusive or of dispositive
weight. Nor is his determination the equivalent of a final agency
determination. The Jackson decision cited by HHS is inapposite
because neither the MSPB nor any lawfully authorized adjudicator
has upheld the AWOL determination pursuant to an on-record review
of the relevant evidence.
HHS contended that Respondent should have invoked the agency's
grievance procedures under 5 C.F.R. Part 771, if Respondent wished
to challenge the merits of the AWOL action. HHS Br. at p. 6, n.4
(citing also Matter of Perry, 39 M.S.P.R. 446, 449 n.2). The
regulation on the agencies' administration of a grievance system
provides as follows in relevant part:
(c) Discretionary matter. This part does not apply to the
following matters unless the agency extends coverage to any aspect
of them:
(3) A matter meeting the definition of a grievance
but in which the employee files a complaint or other challenge
under another review procedure, reconsideration, or dispute
resolution process within the agency.
5 C.F.R. 771.201(c). But Respondent has properly filed a
request for hearing in the present forum, and HHS has not
introduced any evidence showing that HHS affirmatively extended
coverage to any aspect of the debt collection action (e.g., the
validity or legitimacy of the AWOL charge that gave rise to the
debt) under the grievance system it has set up. Nothing of record
indicates that, when the AWOL determinations were made, HHS
informed Respondent of any rights under a grievance process.
Moreover, the portion of the MSPB decision cited by HHS does not
support the conclusion that employees dissatisfied with management
decisions must resort to the grievance system and can have no
recourse outside of the grievance system. 7/ If HHS' arguments on
deferral or comity are based on a theory that Respondent has lost
his right to challenge the correctness of the AWOL determinations
because he failed to timely file a grievance, then I find that HHS
has not provided the appropriate factual or legal support for such
a theory.
Respondent has made me aware that he has filed a complaint with the
MSPB, alleging that some of the management actions at issue here
were initiated against him in retaliation for his whistleblowing
activities. Respondent Br. at 2. Respondent asserts also that he
has filed a Report of Prohibited Personnel Practice or Other
Prohibited Activity with SSA's Office of Hearings and Appeals'
Special Counsel to challenge many of the same facts involved in the
present debt dispute. Id. However, Respondent's filings in the
other forums do not preempt me from deciding whether a debt exists
for the reasons and in the amounts alleged by HHS.
My jurisdiction is different than that of the MSPB and the Special
Counsel. Respondent is not precluded from seeking to invoke the
jurisdiction of other forums in his quest for different types of
relief based on the same set of facts. 8/ If HHS wishes to be
bound by any finding which may be made by the MSPB or the Special
Counsel on potentially overlapping issues of fact, HHS has the
option to delay its efforts to collect the alleged debt owed by
Respondent. However, having chosen to proceed, HHS should not have
rested its position on the fact that HOCALJ Weber made the AWOL
determination as a manager and that no employee should be absent
from his or her work without appropriate leave.
Without doubt, HOCALJ Weber has been delegated the responsibility
for performing certain general office management responsibilities,
which include determining whether any ALJ assigned to his Hearing
Office has been absent from work without leave and for what amount
of time. HHS Ex. 10. However, he does not have the unfettered
discretion to place an employee on AWOL merely because he is a
manager. As acknowledged also in HHS' arguments, HOCALJ Weber's
determinations on Respondent's AWOL status need to constitute and
reflect the legitimate discretionary exercise of agency managerial
authority. E.g., HHS Br. at 6; HHS Reply Br. at 2 - 3.
I agree fully with the view that all employees, including ALJs,
should follow the work rules set by an employer. Unless otherwise
mandated by laws such as the Fair Labor Standards Act, no employer
needs to pay its employees, including ALJs, compensation not
provided for by the employer's rules and policies. Thus, for
example, if an employer has rules requiring its employees to be at
the office during certain set hours, then the employees, including
ALJs, must comply. If the employer has rules requiring employees
to seek leaves of absences when they depart from the work site
during the required hours of work, then all employees, including
ALJs, must follow the procedures set by those rules. If the
employer has rules governing the procedures for investigating
whether its employees have deviated from any of the foregoing types
of rules, then the employees, including ALJs, are subject to them.
If the employer has rules setting forth the consequences to
employees when they are not present for work during the required
hours or fail to obtain leave approval as required by the employer,
then the employees, including ALJs, are subject to the
consequences. However, in addition to binding the employees, the
existence of such rules would obligate also the employer and its
managers to follow them as well.
In this case dealing with a debt created by the HOCALJ's
determination that Respondent was absent from the office without
management approval when he should have been present, HHS was
required to provide proof for its contention that the debt claimed
by HHS arose from the legitimate and proper exercise of managerial
authority as HHS claimed. If HHS is of the view that the exercise
of managerial authority was legitimate because the HOCALJ was
administering and enforcing established, pre-existing rules,
regulations, or policies of the agency, then HHS needed to
introduce such rules, regulations, or polices as part of its prima
facie case. If HHS is of the view that the exercise of managerial
authority was legitimate for reasons other than the enforcement of
established, pre-existing rules, regulations, or policies of the
agency, then HHS needed to introduce such reasons into the record
as part of its prima facie case.
My role is not to preempt HOCALJ Weber's managerial
responsibilities or make managerial decisions for HHS. However, I
will not accept on faith HHS' unsupported representations that the
HOCALJ's actions were consistent with or authorized by his
delegated managerial responsibilities. In sum, HHS should have
adduced the necessary proof to support its theory of legitimacy
instead of seeking to bar me from reviewing the factual and legal
underpinnings of the AWOL determinations, asking me to defer to
HOCALJ Weber's decision to place Respondent on 16.50 hours of AWOL,
or urging me to presume that the HOCALJ's actions were valid.
III. HHS has failed to establish which, if any, agency
regulations, policies, or rules have been applied in finding
Respondent AWOL.
The problem with HHS' case does not lie with HOCALJ Weber's
position as a manager, but with inadequacies and unexplained
inconsistencies in HHS' proof. At the very least, HHS' evidence
should have addressed the threshold issues of what hours Respondent
was required to be present in the office unless he had received
approval to the contrary, and, if he had been absent without
permission, what consequences were provided for by law,
regulations, rules, or policy.
However, having shown that a HOCALJ is authorized to perform
general office management tasks, HHS has introduced no evidence
showing what relevant agency rules, regulations, or policies were
in place at the San Bernadino Hearing Office on the dates in issue.
For example, HHS offered no evidence to show what rules or policies
may have existed concerning any of the following: the schedules
ALJs are required to work; if or how ALJs are to account for their
whereabouts during the workday; when or for what amount of time
ALJs are permitted to take breaks from their work. Nor did HHS
prove when such work rules were established and by whom. HHS did
not disclose whether any relevant work rules that may exist at the
San Bernadino Hearing Office were established by agency-wide
regulations, SSA's Office of Hearings and Appeal, or HOCALJ Weber.
Instead, HHS posited some general allegations and conclusions that
Respondent violated time and attendance rules or policies on the
dates in issue.
HHS has not shown the existence of any policy, regulation, or rule
that would put Respondent in AWOL status because Respondent was
suspected to have worked less than the hours required by his "tour
of duty." I make this finding not because I believe ALJs should be
beyond the reaches of any pre-existing AWOL policy the agency may
have, but in light of what is contained (and not contained) in
Acting Chief ALJ Anglada's letter to Respondent dated September 21,
1992. HHS Ex. 9. Acting Chief ALJ Anglada informed Respondent
that "[w]hen a judge works less than the prescribed number of hours
in a day or week, the judge's non-working time must be recorded as
leave." HHS Ex. 9 at 2 (emphasis added). The Acting Chief ALJ
further informed Respondent that "[t]here are no exceptions to this
established policy, and it must be applied strictly and uniformly."
HHS Ex. 9 at 2 (emphasis added).
Acting Chief ALJ Anglada made no mention of any policy to record an
ALJ's time as AWOL when the ALJ fails to work the requisite hours.
9/ Acting Chief ALJ Anglada made no mention of any policy to place
a judge on AWOL status even though he was responding to
Respondent's August 12, 1992 memorandum, in which Respondent raised
the issue of "unauthorized absences" and Respondent cited the
example of another ALJ in the San Bernadino Hearing Office who was
leaving the office for one to two hours every afternoon. HHS Exs.
4, 9. In fact, the very term AWOL (i.e., absent without leave)
does not appear to be consistent with the stated policy of
recording ALJs' non-working time as leave.
According to the evidence introduced by HHS, HOCALJ Weber's
memorandum dated September 30, 1992 contains the first and only
mention that Respondent is obligated to work a "tour of duty" from
8 A.M. to 4:30 P.M. each day. HHS Ex. 5. However, in this same
memorandum, the HOCALJ was asserting also that Respondent failed to
arrive on time for his "tour of duty" during six previous work
days. HHS Ex. 5. In addition, the record shows that before there
was an 8 A.M. to 4:30 P.M. "tour of duty," the HOCALJ had already
charged Respondent with a total of 5.5 hours of AWOL for July 31
and August 6, 1992 due to reasons that included Respondent's
failure to provide the "appropriate documentation." HHS Exs. 1, 3.
HHS did not establish that the HOCALJ had ever sought the
documentation.
Even though Acting Chief ALJ Anglada referred to "time and
attendance requirements," "fixed tour of duty," "normal
tour of
duty," and "all government-wide rules and regulations on time and
attendance," he made no mention of any tour of duty for ALJs that
spans the hours from 8 A.M. to 4:30 P.M. each day. If the 8:00
A.M. to 4:30 P.M. "tour of duty" had been contained in a policy,
employment rule, or agency regulation, HHS should have been able to
prove the relevant details concerning its origin and existence.
Yet, HHS has cited no rule or regulation of general applicability
setting those particular work hours as all government employees'
"tour of duty." The record is devoid of any evidence showing how,
when, or if such a fixed tour of duty came into existence for all
ALJs at the San Bernadino Office, as intimated by HHS.
HHS has not provided any evidence to show that, prior to September
30, 1992, there existed a policy, rule, or regulation in place at
the San Bernadino Hearing Office (whether promulgated by SSA/HHS or
the HOCALJ) that had required Respondent or any other ALJ to work
a "tour of duty" from 8 A.M. to 4:30 P.M. each day. If these
particular "tour of duty" hours had been announced to Respondent
for the first time in the September 30, 1992 memorandum, HHS has
not explained how a debt can be legitimately created through the
retroactive application of these hours. I note, too, that
Respondent has never conceded the existence of any fixed "tour of
duty" hours established for ALJs by management's policies or
practices in the San Bernadino Hearing Office. See HHS Exs. 4, 7.
HHS had notice that the existence of a fixed "tour of duty" rule,
as well as any rule concerning working from 8:00 A.M. to 4:30 P.M.,
was in controversy.
IV. Inconsistencies in HHS' evidence do not give rise to the
implication that HHS properly applied or enforced any relevant
pre-existing rule or policy.
Inconsistencies in the evidence introduced by HHS do not permit me
to discern any relevant policy or rule governing the ALJs' hours of
work, the length or timing of the breaks they are permitted to
take, or how the agency computes the time periods attributable to
AWOL. For example, HOCALJ Weber only mentioned 10.45 hours of AWOL
during the period from September 22 to September 29, 1992. 10/ Yet
HHS' payroll office employees repeatedly computed 11 hours of AWOL
for the same period of time. HHS Ex. 12; see also HHS Ex. 21 at 2.
HHS has not explained to Respondent or me why this difference
exists.
In addition, HHS' evidence shows that on July 31, 1992, Respondent
was present in the Hearing Office and used approved sick leave for
a total of 3.75 hours, and on August 6, 1992, Respondent was
present in the Hearing Office (and used no approved leave) for a
total of 4 hours and 55 minutes. See HHS Ex. 1. However, HHS'
charging Respondent with 3.25 hours of AWOL for July 31, 1992
accounts for 7 hours of the time Respondent was supposed to have
been working, and HHS' charging Respondent with 2.25 hours of AWOL
for August 6, 1992 accounts for 7 hours and 10 minutes of the time
Respondent was supposed to have been working. See HHS Exs. 3, 21.
HHS has not explained this discrepancy.
I find HHS' actions for July 31 and August 6, 1992 especially
problematic given that HHS was ostensibly calculating Respondent's
pay on the basis of 80 hours per 10 workdays (HHS Exs. 11, 20) and
claiming also that Respondent's fixed "tour of duty" spanned from
8:00 A.M. to 4:30 P.M. If ALJs of the San Bernadino Hearing Office
were entitled to take daily work breaks in an amount of time equal
to 1 hour and 30 minutes to 1 hour and 20 minutes as suggested by
HHS' evidence concerning July 31 and August 6, 1992, this
possibility still does not explain for which periods of time on
those days Respondent was charged with AWOL because, in HHS' view,
he was not entitled to be away on a work break and not using
approved leave. Nor does the possible aggregate length of all
daily breaks help prove that the 11 hours of AWOL HHS imposed for
the period from September 22 to 29, 1992 were calculated pursuant
to the same policies, practices, or considerations as for July 31
and August 6, 1992.
Even if I were to assume that certain unspecified agency policies,
rules, or regulations required ALJs in the San Bernadino Hearing
Office to work a fixed "tour of duty," HHS' evidence remains
inadequate for its failure to explain how such policies, rules, or
regulations are applied in the context of its employees' different
work responsibilities and its employees' status under the Fair
Labor Standards Act. A "tour of duty" need not necessarily connote
the requirement that all employees remain in the hearing office
throughout the designated hours, for example. According to their
job description, the ALJs employed by SSA are expected to exercise
initiative in managing and deciding the cases assigned to them, and
the agency expects them to acquire current knowledge on a broad
range of complex medical-legal matters involved in their
adjudicative responsibilities. HHS Ex. 10. Therefore, even if all
employees in the San Bernadino Hearing Office have the same "tour
of duty," the office need not require ALJs to remain in the office
throughout the workday or to make others aware of their whereabouts
to the same extent that, for example, a security guard or
receptionist employed by the office may have a need to do so, due
to the nature of that person's job responsibilities.
In addition, Respondent's job description establishes that he and
other ALJs are "exempt" employees under the Fair Labor Standards
Act. HHS Ex. 10 at 1. There are agency employees who are
"nonexempt" under the Fair Labor Standards Act. See id. HHS has
not shown that, even though the agency classified its employees
into "exempt" and "nonexempt" categories, the agency or
the HOCALJ
requires all employees to keep track of their work hours and to
keep their supervisors apprised of their whereabouts to the same
extent.
Here, nothing even indicates that employees of an SSA hearing
office are required to seek approval from a management official
whenever they wish to leave the office for any period of time not
coinciding with their break periods. Even though the HOCALJ is the
official from whom leave should be sought by an ALJ, the HOCALJ
must use his time also to hold hearings and to perform all the
other duties of an ALJ. HHS Ex. 10 at 7 - 8. HHS has not shown
under what circumstances ALJs must seek leave from a HOCALJ for
absences during routine workdays.
If what occurred in Respondent's situation was unique, then HHS
should have used evidence to explain why its actions were
reasonable and why they were not applicable to other ALJs. HHS has
not shown or explained those parameters on requesting leave that
were allegedly exceeded by Respondent. The absence of relevant
evidence does not permit me to conclude that HHS determined
Respondent to have been AWOL pursuant to a proper exercise of its
management discretion.
V. There is nothing inherently persuasive in the findings that
Respondent was absent from the office without leave on the days in
issue or absent from the office without leave for a total of 16.50
hours.
To show that its determination of Respondent's AWOL status
constituted a legitimate exercise of management discretion, HHS
could have introduced evidence that its manager used a fair process
reasonably calculated to secure all relevant facts, and he reached
a conclusion reasonably consistent with the facts before him. I
emphasize that the test is not how I or another individual not
employed as a manager by HHS would decide a question de novo. HHS'
determination can reflect a legitimate exercise of its managerial
discretion if the facts relied upon by its manager appear
reasonably complete and can be fairly construed to give rise to the
conclusion reached by the manager.
HHS has not proven the reasonableness of its process for concluding
that Respondent had been absent without leave for a total of 16.50
hours. Even though the HOCALJ is authorized to help investigate
allegations of possible misconduct on the part of any employee (HHS
Ex. 10 at 8), HHS has not shown that the manner in which it
investigated Respondent's alleged absences or the conclusions
reached by HHS are within the proper exercise of managerial
discretion. For example, HHS has not shown how its managers
generally handle similar charges pursuant to agency rules,
regulations, or policies. If the manner for conducting
investigations of alleged time and attendance problems is left to
the discretion of managers on a case by case basis, then HHS has
failed to answer many of the questions left open in the
circumstances surrounding the determination of the 16.50 hours of
AWOL in issue.
According to HHS' evidence, the investigation of alleged time and
attendance infractions consisted of the HOCALJ's written inquiries
to Respondent and the latter's answers. I found Respondent's
written communications with HOCALJ Weber highly inappropriate in
tone and containing several misstatements of law. 11/ Whatever the
history between these two individuals, Respondent should have been
mindful that he was communicating with the Chief ALJ of his hearing
office on official agency matters, and Respondent should have
tempered his answers to the HOCALJ's questions accordingly. This
is not to imply, however, that because Respondent's tone was
belligerent and he failed to indicate any sincere willingness to
cooperate with the HOCALJ's request, HHS is therefore justified in
claiming a debt by putting him on AWOL status. As recapitulated in
one of the MSPB cases HHS cited:
placement in AWOL status for pay purposes is not a
disciplinary action. Rather, it is a purely remedial action taken
to avoid compensating an employee for time not worked. Unexcused
failure to report for duty is an offense against the employment
relationship. . . .
Office of Hearings and Appeals, SSA v. John Whittlesey, 59 M.S.P.R.
684, 690 (1993) (citation omitted).
Especially with respect to the allegations concerning Respondent's
absences on July 31 and August 6, 1992, I have earlier noted that
Respondent asked HOCALJ Weber for the "informant's" identity and a
copy of all documents used by HOCALJ Weber to address the merits of
the allegations. HOCALJ Weber did not provide the requested
information but, instead, placed Respondent on AWOL for failing to
provide documentation, although the HOCALJ had not sought that
documentation. Respondent then objected to the HOCALJ's statement
"you have not provided appropriate documentation." HHS Ex. 4.
Even though Respondent objected due to his incorrect belief that
HOCALJ Weber was not his supervisor, he did object and raise the
issue of whether he should have been required to provide
documentation that he was in the office or not otherwise AWOL. See
id. If the existence of documentation was to form a basis of the
administrative determination on whether Respondent had arrived at
or departed from the office at the hours reported by an
unidentified person, then Respondent should have been so informed
in advance, and HHS should have explained to what documents the
HOCALJ was referring in finding Respondent AWOL.
HHS has not adequately or directly addressed the question of
whether, during an investigation of possible time and attendance
infractions, the burden is on the accused to prove the absence of
wrongdoing, or on the agency manager to prove the occurrence of
wrongdoing. 12/ Moreover, whether or not the HOCALJ was entitled
to withhold the information requested by Respondent and place the
consequences of non-production and non-response on Respondent
during an investigation, the same approach cannot be taken in this
proceeding. Here, HHS bears the burden of persuasion and the
burden of moving forward with the evidence in support of its claim
that a debt was created because Respondent was AWOL.
In addition to the previously noted deficiencies and
contradictions, the evidence HHS introduced does not show that the
unidentified person's allegations on Respondent's absences for July
31 and August 6, 1992 are inherently credible. The person merely
reported having seen Respondent arrive and depart from the office
at the specified times. HHS submitted no evidence to show, for
example, that the reporting individual was in a position to see all
of Respondent's movements or that the person's statements were
reliable by virtue of his or her job responsibilities or other
reasons. Therefore, there is also insufficient evidence for
showing that HOCALJ Weber reached a reasonable conclusion with
respect to the 5.5 hours of AWOL notwithstanding his reliance on
the absence of documents never requested of Respondent.
With respect to the AWOL hours for September 22 to 29, 1992,
Respondent challenged HOCALJ Weber's personal observations by
contending that HOCALJ Weber probably could not have seen whether
Respondent arrived at the office by 8:00 A.M., alleging that HOCALJ
Weber rarely arrives by that time of the morning. Respondent
alleged also that the HOCALJ told the other judges that they could
set their own work hours, so long as they worked a total of 40
hours a week. HHS Ex. 7. 13/ By the time Respondent's response
letter to HOCALJ Weber's observations was received in the Hearing
Office, HOCALJ Weber had already decided to place Respondent on
AWOL for 10.45 hours because Respondent had not responded by
October 6, 1992. HHS Ex. 6. HOCALJ Weber had not set October 6,
1992 as a deadline for receiving Respondent's answer. See HHS Ex.
5.
Moreover, there is no evidence that, after Respondent's answers to
HOCALJ Weber's personal observations were received in the San
Bernadino Hearing Office, any HHS management official had reviewed
the merits of Respondent's answers (including his additional
assertion that HOCALJ Weber told the judges in the office that they
may set their own hours in order to work 40 hours each week) before
declaring that Respondent owed a debt. The record does not
indicate that HOCALJ Weber reviewed Respondent's answers even after
October 6, 1992 or considered Respondent's claim that, in the
exercise of the HOCALJ's managerial discretion, he had exempted all
ALJs in the Hearing Office from a fixed tour of duty. For these
reasons, the process by which the 11 hours of AWOL was determined
is not inherently reasonable. At the very least, HHS' evidence
indicates that its determination of the total 16.50 hours of AWOL
was based on an incomplete review of Respondent's position, the
absence of documents not sought from Respondent, and the use of a
timetable not disclosed to Respondent.
VI. Respondent need not present his proof at an in-person hearing
where, as here, HHS has failed to prove a prima facie case that
Respondent owes a debt to the United States.
For the reasons explained above, I find HHS' arguments untenable as
a matter of law and HHS' evidence inadequate for proving a prima
facie case of indebtedness by Respondent. HHS cannot establish the
existence of a debt by showing that HHS has found Respondent
"guilty of the offense charged" for reasons not of record. HHS
Reply Br. at 5. Even though I cannot order HHS to delete the AWOL
from Respondent's records or set aside HHS' determination of
Respondent's "guilt" on the AWOL charge, I cannot also give any
legal effect to a debt claimed by HHS as a consequence to its
having found Respondent "guilty" for reasons HHS has not adequately
or persuasively set forth in the record before me.
In the absence of a prima facie case by HHS, the burden of moving
forward with evidence does not shift to Respondent. Therefore, I
do not find it necessary to grant Respondent's motion to have an
in-person hearing so that Respondent may present witnesses to rebut
HHS' evidence or prove that his versions of the underlying facts
are more credible than HHS'.
Even if an in-person hearing might now be of benefit to HHS, I am
not giving HHS another opportunity to prove a prima facie case
against Respondent. HHS, as the Petitioner, chose the method for
presenting its case against Respondent. HHS has repeatedly and
unequivocally chosen to prove its case on a documentary record.
HHS has had a full and fair opportunity to present its position in
this case. I am therefore ruling against HHS on the basis of the
record before me. HHS is not entitled to collect any debt from
Respondent pursuant to its having placed Respondent on AWOL status
for a total of 16.50 hours.
Mimi Hwang Leahy
Administrative Law Judge
APPENDIX
RECITATION OF THE RECORD THAT WAS REVIEWED
I admitted the following exhibits in this case:
DHHS Ex. 1: August 7, 1992 memorandum to Dennis T. Bennett,
Office of Hearings and Appeals, Administrative Law Judge from Larry
M. Weber, Office of Hearings and Appeals, Chief Administrative Law
Judge.
DHHS Ex. 2: August 10, 1992 letter to Larry M. Weber from Dennis
T. Bennett.
DHHS Ex. 3: August 12, 1992 letter to Dennis T. Bennett from
Larry M. Weber.
DHHS Ex. 4: August 12, 1992 memorandum to Larry M. Weber from
Dennis T. Bennett.
DHHS Ex. 5: September 30, 1992 letter to Dennis T. Bennett from
Larry M. Weber.
DHHS Ex. 6: October 6, 1992 letter to Dennis T. Bennett from
Larry M. Weber.
DHHS Ex. 7: September 30, 1992 letter to Larry M. Weber from
Dennis T. Bennett.
DHHS Ex. 8: January 11, 1993 opinion and order in the case of
Office of Hearings and Appeals, Social Security Administration,
Agency, v. Arthur F. Bronczyk, Respondent.
DHHS Ex. 9: September 21, 1992 memorandum to Dennis T. Bennett
from Jose A. Anglada, Acting Chief Administrative Law Judge.
DHHS Ex. 10: April 10, 1985 standard position description for an
Administrative Law Judge (Licensing & Benefits).
DHHS Ex. 11: Undated time and attendance reports of Dennis T.
Bennett (pay periods ending August 8, 1992 and October 3, 1992).
DHHS Ex. 12: February 16, 1993 certification of salary
overpayment to Personnel Office from Joseph V. Colantuoni,
Assistant Director for Personnel and Pay Systems Division, with
attachments.
DHHS Ex. 13: Undated earnings and leave statements for Dennis T.
Bennett (pay periods ending April 17, 1993, May 1, 1993, and May
15, 1993).
DHHS Ex. 14: May 6, 1993 letter to Joseph V. Colantuoni, with
attached May 7, 1993 request for hearing from Dennis T. Bennett.
DHHS Ex. 15: May 5, 1993 memorandum to Sharon Coulter, Director,
Division of Budget and Financial Management from Larry M. Weber.
DHHS Ex. 16: Undated earnings and leave statement of Dennis T.
Bennett (pay period ending October 2, 1993).
DHHS Ex. 17: October 21, 1993 memorandum to Larry M. Weber from
Sharon J. Coulter, with attachments.
DHHS Ex. 18: November 5, 1993 response of Dennis T. Bennett and
an undated earnings and leave statement of Dennis T. Bennett (pay
period ending October 3, 1992).
DHHS Ex. 19: January 6, 1994 memorandum to Larry M. Weber from
Sharon J. Coulter, with attachments.
DHHS Ex. 20: January 18, 1994 response of Dennis T. Bennett and
an undated earnings and leave statement of Dennis T. Bennett (pay
period ending August 8, 1992).
DHHS Ex. 21: Undated earnings and leave statements of Dennis T.
Bennett (pay periods ending September 5, 1992 and November 28,
1992).
1. Throughout this decision, I use abbreviations to denote the
pleadings, briefs, and exhibits the parties have filed. I refer to
HHS' motion and brief in support of its request for disposition of
the cases without an in-person hearing as "HHS Br. at (page)." I
refer to an HHS exhibit as "HHS Ex. (number)." (Respondent did not
submit any exhibits.) I refer to Respondent's opposition to HHS'
motion and brief as "Respondent Br. at (page)." I refer to HHS'
reply to Respondent's opposition as "HHS Reply Br. at (page)."
2. As noted earlier, HHS has filed two briefs, and Respondent
has filed one brief. In addition, HHS has submitted 21 proposed
exhibits (HHS Exs. 1 to 21) and a copy of a Departmental Appeals
Board Decision (DHHS v. Dolly Jackson), labelled as "DHHS
Attachment 1." Some of HHS' proposed exhibits duplicate documents
Respondent had attached to his hearing requests.
I have admitted into evidence all of HHS' proposed exhibits because
they are relevant to HHS' position and appear to be authentic
copies of what they purport to be. I have taken notice also of the
Departmental Appeals Board Decision appended to HHS' brief as
"Attachment 1."
Respondent has not filed any proposed exhibits or objected to the
admissibility of HHS' documents.
3. "The purported issue of appropriateness of the AWOL action
and whether it was required to be taken
. . . is not relevant here and calls for the Departmental Appeals
Board to improperly intrude in matters committed to the sole
discretion of the agency in the exercise of its legitimate
management authority." HHS Reply Br. at 3.
4. Respondent alleged in his hearing requests that the Earnings
and Leave Statements reflecting no AWOL hours contain the correct
information for the relevant time periods. Therefore, I construe
his hearing requests as challenging HHS' contentions as to the 16.5
hours of AWOL and authorizing me to review the AWOL issue under 45
C.F.R. 30.15(n)(3)(vi) and (o).
5. For example, in cases brought under sections 1128 and 1156
of the Social Security Act, the Inspector General of HHS will not
prevail at hearing if, like here, the Inspector General merely
proves that she has been delegated the authority to impose
sanctions as part of her administrative responsibilities for HHS
and she made a determination that a particular individual is
subject to a sanction that she has imposed. Even though the
Inspector General's status is that of a respondent in such cases,
the fact that the Inspector General received a delegation of
authority and the fact that she made an administrative
determination would not meet her burden of showing that her
determination in issue is factually and legally valid. Here, I
note especially that HHS is the Petitioner in the present debt
collection case. As Petitioner, HHS has the ultimate burden of
persuasion on all material issues of fact as well as the initial
burden of moving forward with evidence sufficient for showing that
a debt exists for the reasons alleged by HHS.
6. Even though HHS argued against having an in-person hearing,
nothing contained in my prehearing order precluded HHS from
introducing the affidavits or written statements of its managers
and employees to explain the information contained in other
submissions.
7. The Perry case involved MSPB's determination that the
management actions cited by ALJ Perry did not attain the results
that would invoke MSPB's jurisdiction. In the portion of the Perry
case cited by HHS, the MSPB was discussing the frivolous nature of
the action brought by ALJ Perry against SSA, which involved ALJ
Perry's allegation that the agency's issuance of a single reprimand
to him due to certain pending travel voucher disputes
constructively removed him from his position and constructively
reduced his pay. The MSPB found that the agency actions at issue
did not amount to a "sufficiently pernicious agency conduct" for
invoking the MSPB's jurisdiction. Id. at 449.
Even though the MSPB pointed out in footnote 2 of its decision that
dissatisfied employees are permitted to utilize the grievance
process to seek review of the appropriateness of "minor management
actions, like the issuance of reprimands," id., the MSPB was not
suggesting that it or any other adjudicator should refrain from
reviewing all management actions for which there exists a grievance
process. The MSPB noted at the outset of its decision that its
jurisdiction extends to reviewing certain types of management
actions, and it will take jurisdiction over a "'constructive
removal' . . . [where the agency's conduct] has a pernicious effect
on the complaining judge's qualified independence." Id. at 448.
The MSPB refused to exercise jurisdiction to review the management
actions involved in the Perry case only because the management
actions (a single reprimand and disputes over travel vouchers) did
not have the consequences (e.g., constructive removal or
constructive reduction in pay) required for invoking the MSPB's
jurisdiction.
8. The regulation that provides for Respondent's hearing rights
"does not supersede or require omission or duplication of
administrative proceedings required under contract, statute,
regulation or other agency procedures." 45 C.F.R. 30.4.
9. Since an ALJ is "subject only to such administrative
supervision as may be required in the course of general office
management" (HHS Ex. 10 at 4), I interpret the established policy
of recording as leave ALJs' non-working time as being applicable to
situations where an ALJ is not present to perform work when he or
she should be present to perform work. I do not construe this
policy as being limited to those situations where the ALJ was
present in the office but was not engaged in activities related to
the official responsibilities of an ALJ.
10. On September 30, 1992, HOCALJ Weber stated "[i]t appears
that there is approximately 10 hours and 45 minutes of your work
tour that you were not present." HHS Ex. 5. On October 6, 1992,
he stated "I have no choice but to find you were absent from work
without leave for the periods indicated in said letter." HHS Ex.
6. Then on May 5, 1993, HOCALJ informed the Division of Budget and
Financial Management that "salary adjustments have apparently
started relative to Judge Bennett's 10 hours and 45 minutes of AWOL
status from September 1992." HHS Ex. 15.
11. For example, there is no legal merit to Respondent's claim
that the HOCALJ is without the responsibility or right to certify
Time and Attendance reports for ALJs. See HHS Ex. 2; Finding 62.
12. Nothing introduced by HHS indicates whether the agency has
regulations, rules, or policies that place the burden on its
"exempt" employees (see HHS Ex. 10 at 1) to either prove that they
were present during any specified period of a workday or have their
pay docked. Given the remedial nature of the AWOL designation, the
absence of any sign-in/sign-out requirements for ALJs like
Respondent, and HOCALJ Weber's having certified Respondent's Time
and Attendance Reports for 80 hours of pay while awaiting responses
from Respondent concerning his whereabouts (see Findings 5 - 17),
there exists an inference that the agency presumes Respondent and
other ALJs to have worked during the hours they were supposed to
unless the agency can prove the contrary. HHS suggests a different
allocation of the burden by its evidence indicating that the AWOL
determination was reached because Respondent did not answer or did
not answer appropriately the inquiries made by his HOCALJ.
However, HHS provided nothing in support of its position.
13. Also, Respondent alleged that the HOCALJ's memorandum had
been placed on his desk and that he had been convalescing from
surgery (and using annual and sick leave) until September 22, 1992.
HHS Ex. 7.