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                              Melissa Sulima, DAB CR5912 (2021)
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Melissa Sulima, DAB CR5912 (2021)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Civil Remedies Division





Melissa Sulima,
Petitioner,

v.

Social Security Administration.
Docket No. C-21-845Decision No. CR5912July 29, 2021

        
              
    

      DECISION

Petitioner is an employee of the Social Security Administration (SSA) who has been receiving leave donated from other federal employees through the Voluntary Leave Transfer Program (VLTP).  SSA determined that it had mistakenly credited Petitioner with 32 additional hours of leave that had not been donated.  By the time SSA came to this conclusion, Petitioner had used that leave and had otherwise exhausted the leave that she personally accrued.  As a result, SSA sought repayment equal to the net compensation Petitioner received for the 32 hours that SSA miscredited to her.  SSA then determined, for reasons that are unclear, that Petitioner owed an additional and unrelated debt.  Petitioner requested a hearing to dispute the existence and amount for each of these alleged debts.

In these statutorily expedited proceedings, SSA has produced almost no documentary evidence regarding the first alleged debt and none for the second alleged debt.  Indeed, SSA has explained that its computer record keeping system for payroll and leave is aged and has significant limitations, resulting in an inability to produce documentation showing the alleged error in over-crediting VLTP leave to Petitioner.

**Page 2**

While I sympathize with SSA counsel and her difficulty obtaining evidence to substantiate the factual basis for the alleged debts in this case, I must have documentary evidence in order to conclude that the debts exist.  Further, the applicable statute provides an extremely short timeframe in which to hold these proceedings and issue a decision.

In this case, SSA has produced insufficient evidence to prove there is a factual basis for the existence of the debts alleged to be owed by Petitioner.  As a result, I conclude that Petitioner owes no debt to the United States Government pertaining to the two alleged debts in this case.

I.  Background

In an April 19, 2021 letter, SSA informed Petitioner, an SSA employee and attorney advisor with its Office of Hearing Operations, that she received a total gross salary overpayment of $1,108.80 and a net salary overpayment of $709.40.  P. Ex. 1 at 1, 9.  The letter identified this as Debt ID No. 11101682996.  P. Ex. 1 at 4. The letter informed Petitioner that she needed to repay this alleged overpayment within 30 days.  P. Ex. 1 at 1, 3.  SSA also advised Petitioner of her right to request waiver of the overpayment and/or to request a hearing to dispute the existence of the debt or the amount of the debt.  P. Ex. 1 at 7-8.

In a May 3, 2021 letter, SSA informed Petitioner that she had received a total gross salary overpayment of $2,097.38 and a net salary overpayment of $1,577.92.  P. Ex. 2 at 1, 9.  The letter identified this as Debt ID No. 11241682996.  P. Ex. 2 at 4.  Like the previous letter, SSA informed Petitioner that she needed to repay this alleged overpayment within 30 days.  P. Ex. 2 at 1, 3.  The letter again informed Petitioner of the right to request waiver of the debt and/or a hearing to dispute the existence and the amount of the debt.  P. Ex. 2 at 7-8.

Petitioner requested hearings to dispute the existence and amount of both alleged debts.  The hearing requests were forwarded to the Department of Health and Human Services' Departmental Appeals Board (DAB) for hearing on June 15, 2021.1
  *See* *Portia L.*

**Page 3**

*Pierce*, DAB CR2049 at 5 (2009) (indicating that SSA and DAB have an interagency agreement in which DAB administrative law judges adjudicate disputes involving federal salary overpayments).

On June 16, 2021, I issued an Acknowledgment, Prehearing Order, and Notice of Hearing (Order) in which I established the prehearing exchange deadlines for the parties and set July 19, 2021, as the date for an oral hearing, should one be necessary.  In the Order, I informed the parties that there is a 60-day statutory time limitation in which to conduct the proceeding and issue a decision.  Further, I indicated my intention to calculate that deadline from June 14, 2021, the date when Petitioner provided her hearing requests to SSA officials by email.2
  As a result, I stated that I could not grant extensions to the prehearing exchange deadlines unless Petitioner requested a delay in the proceedings under 20 C.F.R. § 422.810(h)(4)(i).

On June 25, 2021, SSA filed a brief and motion for summary judgment (SSA Br.) as well as two proposed exhibits (SSA Exs. 1-2) regarding the first alleged debt (i.e., Debt ID No. 11101682996).  Also on that date, SSA filed a motion to stay the prehearing exchange schedule regarding the second alleged debt (i.e., Debt ID No. 11241682996) for 30 days because SSA counsel was unable to obtain documentation regarding the debt, given the short timeframes involved in this matter.  On June 28, 2021, SSA provided a witness list for three named witnesses and a possible fourth unnamed witness.

On June 28, 2021, the Civil Remedies Division (CRD) attorney assisting me emailed Petitioner and asked if she consented to a delay in the case.  In a July 1, 2021 email, Petitioner responded that she did not consent to a delay.  On July 1, 2021, I denied SSA's request for a stay, noting that SSA controls when it issues debt notices and ought only to issue one when prepared to defend the notice in this statutorily expedited review process.

**Page 4**

On July 8, 2021, the day that Petitioner's prehearing exchange was due, Petitioner emailed the CRD attorney assisting me requesting a five-day extension of time to file her prehearing exchange.  In a response, sent through the CRD attorney, I informed Petitioner that I could not grant the extension but would consider a delay in the proceedings for 17 days.  This would allow the rescheduling of the hearing while providing Petitioner with additional time.  If Petitioner did not want to delay the proceeding, I permitted a one-day extension to the prehearing exchange filing.

In an email response, Petitioner declined to request a delay in the proceeding and said she would file the exchange on July 9, 2021.  However, in an email on July 9, 2021, Petitioner indicated that she could not file her prehearing exchange due to providing care for a relative.  By email sent through the CRD attorney assisting me, I informed Petitioner that if Petitioner was unable to file her prehearing exchange on July 9, 2021, then she should do so as soon as possible and provide a statement of good cause, and I would then decide whether to accept the filing.  Petitioner indicated that, at the latest, she could file her exchange on July 12, 2021.  On July 10, 2021, SSA objected to providing an extension to Petitioner to file a prehearing exchange.  Petitioner did not file her exchange on July 12, 2021.

On July 13, 2021, I issued a Notice of Cancellation of Oral Hearing, Notice Case Will Proceed as a Paper Hearing, and Order for Final Submissions.  In that notice I stated:

I have reviewed the filings in this case and have determined that an oral hearing is not necessary.  I am only to hold an oral hearing if the "matter cannot be resolved by review of documentary evidence alone because an issue of credibility or veracity is involved."  20 C.F.R. § 422.810(h)(3)(ii).  Having reviewed this case, I see little documentary evidence, and none that turns on the credibility or veracity of an individual.

While the statutory time limitations are unavoidable, I do not want this case to turn on the parties' lack of time to submit their cases to me.  Because I must cancel the hearing, I can provide the parties with a limited additional amount of time to file final submissions.

Therefore, I give notice that I will conduct this matter as a "paper hearing" and allow the parties one final opportunity to provide documents and argument, after which the record will close.  20 C.F.R. § 422.810(h)(3)(i), (iii).

**Page 5**

Petitioner filed a brief (P. Br.) and five exhibits (P. Exs. 1, 2, 2A, 3, 4).  SSA and Petitioner both filed reply briefs (SSA Reply and P. Reply).

II.  Issues

Whether Petitioner owes a debt to the United States Government based on receiving a salary overpayment.
	If Petitioner owes a debt, what amount does Petitioner owe.III.  Evidentiary Rulings

SSA filed two exhibits.  Both are screen shots of SSA's personnel payroll system.  Petitioner objects to SSA's exhibits because they have not been authenticated and are not self-authenticating.  P. Reply at 2.

Petitioner filed five exhibits.  They are the two debt letters that SSA sent to Petitioner, a United States Postal Service receipt for certified mail to an unstated address (P. Ex. 2A), and two compilations of emails purporting to be between Petitioner and various SSA and Department of Interior officials (SSA Exs. 3, 4).  SSA objects to Petitioner Exhibit 2A because it lacks information as to who the sender is, who the recipient is, and what was mailed.  SSA Reply at 7.  SSA objects to Petitioner Exhibit 3 for unstated reasons.  SSA Reply at 7.  SSA objects to Petitioner Exhibit 4 because the emails are not in their original format, appearing to be cut and pasted together "without a full regard for completeness or chronological order."  SSA Reply at 8.

I overrule the objections because these proceedings are informal and, therefore, the rules of evidence do not apply.  SSA's objections appear to be concerned primarily with allegations of due process violations by SSA officials.  My authority is limited to determining if there is an evidentiary basis for a debt, and I do not discuss due process issues in this decision.  Therefore, I admit SSA Exhibits 1 and 2 and Petitioner Exhibits 1-4 into the record.

IV.  Findings of Fact, Conclusions of Law, and Analysis.

The evidentiary record in this case is sparse.

**Page 6**

**1.  SSA produced insufficient evidence in Debt ID No. 11101682996 as to the amounts of donated leave that Petitioner received and that Petitioner used.**

Petitioner entered the VLTP on or about September 9, 2019.  *See* SSA Exs. 1-2 (indicating that Petitioner's "Emergency Began," presumably for participation in VLTP, on September 9, 2019).

In a March 22, 2021 email, Unit Manager Emery MacFarlane summarized a meeting at which Ms. McFarlane informed Petitioner that, due to an administrative error, a 16-hour leave donation had been credited to Petitioner twice. As a result, other types of leave would be used to cover the now 16-hour shortfall created by the error.  Petitioner requested that SSA grant her administrative leave to cover the 16 hours that had been over-credited; however, Ms. McFarlane was unable to grant Petitioner's request.  P. Ex. 3 at 1-3.

SSA submitted screen shots from its payroll system.  The first screen shot indicates that it related to the sixth pay period in 2021.  There is little information on this screen shot, but, most importantly, it states "Total Hours Donated" was 208.30 and "Total Hours Used" was 208.30.  SSA Ex. 1.

The second screen shot indicates that it related to the seventh pay period in 2021.  This time "Total Hours Donated" was shown as 176.30 and "Total Hours Used" was 176.30.  SSA Ex. 2.

This is generally consistent with the April 19, 2021 debt letter (Debt ID No. 11101682996) where it shows, as the basis for the alleged debt in this case, a subtraction of "Leave Share Used Self" of 26.30 hours effective pay period two of 2021 and a subtraction of 5.30 hours effective pay period four of 2021.  P. Ex. 1 at 9.

Although SSA counsel provides a detailed explanation of the alleged error that resulted in too much VLTP time being credited to and used by Petitioner, none of that information is in the record other than what I have summarized in SSA's exhibits.  SSA Br. at 3, 5.  The documentation in the record merely establishes that Petitioner was in the VLTP since 2019 and that SSA removed 32 hours from both the balance of the amount of leave that Petitioner had been donated and the amount used.  SSA Exs. 1-2.  It does not evidence the individual leave amounts donated and the amounts of leave taken so that a comparison would show that there had been 32 hours miscredited and that Petitioner had used that miscredited time.  Instead, SSA's exhibits merely show that SSA removed 32 hours from Petitioner's balances.  SSA not only deducted 32 hours from the donated

**Page 7**

leave total but also from the amount used.  If taken literally, that would indicate that Petitioner only used the amount of leave that had been donated and would not support an overpayment.

SSA counsel accounts for the lack of evidence by stating that SSA's MS-DOS payroll system is antiquated and has significant limitations on its ability to record historical data, as opposed to reflecting current data.  SSA Reply at 5.  However, such a limitation makes it extremely difficult for SSA to prove the basis for a debt in this case.  Further, SSA's reference to Ms. MacFarlane's emails only shows that SSA took the position that Petitioner was incorrectly credited donated leave, but it does not prove that such was the case.  SSA Reply at 6.

Due to the paucity of evidence showing the dates and amounts of leave donated to Petitioner and the dates and amounts of donated leave used by Petitioner, SSA tries, without legal citation, to put the burden of proof on Petitioner.  However, neither the statute nor the regulations place the burden of proof on a federal employee to rebut an agency's claim that the employee has been overpaid.  Indeed, in the situation presented in this case, how could an employee rebut SSA's allegations?  Even SSA apparently does not have records of how much voluntary leave was donated and when it was donated, and the amount of donated leave Petitioner took and when.  To place the burden of proof on an employee to disprove SSA's allegations would be fundamentally unfair and contrary to my reading of the applicable statute.

If SSA determines that an SSA employee is indebted to the United States, SSA may offset the debt from that employee's salary.  5 U.S.C. § 5514(a)(1).  Before SSA offsets the debt, the employee has the right to request a hearing before an administrative law judge (or another individual who is not under the supervision or control of the Commissioner of Social Security) in order to dispute the existence of the debt, the amount of the debt, and/or the payment schedule established by the agency, and the decision issued by that independent hearing official will be the final decision.  5 U.S.C. § 5514(a)(2).  This statute also requires that the employee be afforded the right to "inspect and copy Government records relating to the debt."  5 U.S.C. § 5514(a)(2)(A).  The statute clearly envisions that SSA would have a documentary basis that proves the basis for the alleged debt.  Further, the statute removes from SSA's management control the final decision as to whether a debt exists.  Instead, SSA must prove the debt exists to a neutral factfinder.  In the present case, SSA has failed to do this.

**Page 8**

**2.  SSA produced no evidence supporting Debt ID No. 11241682996.**

SSA demanded Petitioner repay an alleged salary overpayment apparently based on errors related to donated leave and sick leave in 2019 and 2020.  P. Ex. 2 at 9.  SSA did not submit any argument or evidence to support the alleged debt generated from these alleged leave errors.  Therefore, I find no support for them.

**3.  Petitioner does not owe the United States Government a debt with regard to Debt ID Nos. 11101682996 and 11241682996.**

Based on the foregoing, I conclude that there is an insufficient evidentiary basis for the existence of the alleged debts in this case.

V.  Conclusion

Petitioner is not indebted to the United States Government as alleged in Debt ID Nos. 11101682996 and 11241682996.  If SSA withheld money from Petitioner's salary to repay these alleged debts, SSA is to refund that money to Petitioner.

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


          /s/
        Scott Anderson

                      Administrative Law Judge
      1. The record contains email correspondence between Petitioner and various SSA officials as well as payroll personnel from the Department of the Interior (i.e., the department that assists SSA in payroll matters).  P. Exs. 3-4.  Further, there are emails from SSA officials referring Petitioner's hearing requests to the DAB.  DAB E-File Document No. 1d.  Petitioner also filed the individual hearing requests and a certified mail receipt that she asserts is proof of mailing for the second hearing request.  P. Ex. 2A; DAB E-File Document Nos. 1, 1b.  The statute governing these proceedings requires an employee to file a hearing request within 15 days of receiving notice of a salary overpayment-related debt. 5 U.S.C. § 5514(a)(2).  SSA's implementing regulations require the hearing request to be filed with the office stated in the debt notice and that SSA may excuse a late-filed hearing request.  20 C.F.R. § 422.810(h)(2)(i).  The record is unclear as to whether SSA considered Petitioner's hearing requests timely or excused them as late filings.  In this proceeding, SSA has not moved for dismissal.  Therefore, because SSA forwarded this matter to the DAB for adjudication and has not otherwise specifically sought dismissal, I need not inquire further into the specific circumstances surrounding Petitioner's filings of her hearing requests. back to note 1
                      2. Neither party objected to using June 14, 2021, as the date on which the 60-day deadline would commence. back to note 2 Back to top
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