Wilfredo Nieves, DAB CR5882 (2021)

DECISION

Five years ago, Petitioner, Wilfredo Nieves, PhD, an employee of the Department of Health and Human Services (HHS), timely appealed HHS's determination that he had been overpaid $3,329.37 as a result of the agency's retroactively reclassifying his position from GS-13 to GS-11.  At the same time, Petitioner requested a waiver of the debt.  HHS personnel sat on those requests for years, without referring them to the appropriate reviewers.

As discussed below, my authority here is limited.  I am authorized to review the validity of the overpayment.  Although I may be concerned that HHS did not properly afford Petitioner appeal rights for the reclassification of his position (the record is ambiguous), I am not authorized to review that determination.  Nor may I consider Petitioner's request for waiver.  Finally, I cannot grant equitable relief, even if I conclude that the Department has not treated Petitioner fairly.

Based on the reclassification of Petitioner's position, which I am bound to accept, and, for the reasons explained below (I quibble with some of the arithmetic), I find that Petitioner was overpaid $3,322.12; I therefore affirm HHS's determination, with a slight modification.1

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Background

In a letter dated July 11, 2016, Defense Finance and Accounting Service (DFAS), a component of HHS, advised Petitioner of its reconsidered determination validating that he owes HHS $3,329.37, stemming from overpayments dating back to the pay period ending January 31, 2009.  HHS Ex. 2 at 2-4.  Petitioner disputed the overpayments and, on July 20, 2016, timely requested a hearing.  On April 20, 2021, personnel from the HHS Office of Human Resources, Staffing, Recruitment, & Operations Center forwarded to the Departmental Appeals Board, Civil Remedies Division (CRD) Petitioner's hearing request.  HHS Ex. 2; DAB Electronic Filing System (E-File) Docket Entry #1b.

HHS now moves for summary judgment.  With its motion and brief (HHS Br.), it submits 13 exhibits (HHS Exs. 1-13).  Petitioner submits a written argument (P. Br.) with documents attached.  The documents are not properly marked as exhibits.  To reduce confusion, I will refer to the attachments collectively as one exhibit, P. Ex. 1.  In the absence of any objections, I admit into evidence HHS Exs. 1-13 and P. Ex. 1.

The regulations that govern these proceedings instruct me to provide an oral hearing if I determine "that the matter cannot be resolved by review of documentary evidence alone because an issue of credibility or veracity is involved."  45 C.F.R. § 33.6(c)(2).  In my prehearing order, I advised Petitioner that, to secure an oral hearing, he should affirmatively ask to cross-examine one of HHS's witnesses and show that conducting an oral hearing is necessary to resolve an issue of credibility or veracity.  Prehearing Order at 5 (¶ 8) (April 26, 2021).

HHS has proffered two witnesses, and provided their direct testimony in the form of written declarations.  Petitioner has not asked to cross-examine them or otherwise indicated that an oral hearing is necessary.  I therefore decide this case based on the written record, without considering whether the standards for summary judgment are satisfied.

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Discussion

Petitioner is indebted to the United States government in the amount of $3,322.12.2

Effective November 11, 2007, Petitioner was employed as a GS-13 mental health officer by the Office of Emergency Response, Office of Emergency Preparedness, within the Department of Health and Human Services.  HHS Exs. 5, 6.  It is a sporadic job, with virtually no benefits.  HHS Exs. 6, 11.  The job is part of the National Disaster Medical System; these workers are paid only when they work, generally responding to a major emergency requiring extraordinary medical services.  HHS Ex. 8 at 3; HHS Ex. 13 at 1 (Chaboudy Decl. ¶ 3).

Petitioner has a PhD in psychology.  He is a licensed mental health counselor.  HHS agrees that, when he applied for the position, he accurately disclosed his qualifications.  HHS Br. at 3; HHS Ex. 9.  In 2016, nine years after he was hired, HHS personnel officials determined that Petitioner did not qualify for the GS-13 position because he was not licensed as a psychologist, which is a requirement.  HHS Ex. 8 at 4; HHS Ex. 13 at 2 (Chaboudy Decl. ¶ 7).  On March 10, 2016, an HHS personnel management specialist changed Petitioner's appointment to that of a GS-11 mental health specialist, retroactive to November 11, 2007.  This position requires licensing or registration as a professional mental health worker.  HHS Ex. 3 at 1; HHS Ex. 7.

Petitioner challenges the reclassification, arguing that he was qualified for the GS-13 position and that he has performed well in the position.  No one questions his job performance, and HHS asserts that, in 2016, Petitioner "asked for a review, and it was determined that he had been hired into the incorrect position."  HHS Ex. 13 at 2 (Chaboudy Decl. ¶ 7).  The vagueness of this statement is troubling.  I have no idea what kind of review this was, nor whether Petitioner was afforded the opportunity to appeal the determination to the Office of Personnel Management (OPM), as provided for in the applicable federal statute and regulations.  5 U.S.C. § 5112; 5 C.F.R. §§ 511.603(a)(1), 511.604.  However, I do not have the authority to hear appeals of agency classification decisions.  That authority rests with OPM.  Jorge Gomez v Dep't of HHS, DAB CR4175 at 8-9 (2015) (citing Caporale v. Nat'l Aeronautics & Space Admin., 4 M.S.P.R. 161, 162 (1980)).

As for the sole issue I am empowered to resolve, there seems to be little dispute.  The pay periods implicated here are those ending:  January 31, 2009; April 10, 2010 through September 7, 2013; April 9, 2014 through July 12, 2015; and February 21, 2015.  HHS Ex. 2 at 2-3.  In its July 11, 2016 letter to Petitioner, DFAS sets forth its calculations.  HHS Ex. 2 at 2-3.  The parties have not discussed these calculations, and I do not understand one of them.  Specifically, DFAS calculated that Petitioner was overpaid

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$11.70 per hour for 72.5 hours of regular pay for the pay period ending April 10, 2010 through the pay period ending September 7, 2013.  He was paid $39.21 per hour instead of the GS-11 rate of $27.61.  Contrary to DFAS, I calculate an hourly overpayment of $11.60 ($39.21-$27.61=$11.60).  HHS Ex. 2 at 2.

The overall result is negligible, $7.25.  The error is in HHS's favor, and I therefore decrease the amount of the overpayment by $7.25.

Conclusion

I sustain HHS's determination that Petitioner was overpaid, but decrease the amount of his debt from $3,329.37 to $3,322.12.  This decision is the final agency decision.  5 U.S.C. § 5514(a)(2).

I encourage HHS to forward Petitioner's waiver request to OGC immediately.

1. HHS represents that Petitioner's debt has been placed on hold, and no interest has accrued.  HHS Ex. 12 at 2 (Boyer Decl. ¶ 9).  Inasmuch as HHS is responsible for the long delays in this case, it would be hard to justify charging interest on the debt.  To its credit, when it reclassified the position, HHS personnel advised Petitioner to request a waiver and developed a waiver recommendation package for him.  HHS Ex. 12 at 2 (Boyer Decl. ¶ 10); HHS Br. at 4, 5.  However, the agency did not then forward the package to the Office of General Counsel (OGC), which is authorized to review waiver requests.  HHS Ex. 12 at 2 (Boyer Decl. ¶ 10); HHS Br. at 6.  Apparently, for reasons I do not understand, OGC will not review a waiver request if a hearing request is pending.  HHS Ex. 12 at 2 (Boyer Decl. ¶ 12); HHS Br. at 6.
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2. I make this one finding of fact/conclusion of law.
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