B-150407, APR. 4, 1963

B-150407, APR. 4, 1963

TO MR. JENARO CAPARROS:

REFERENCE IS MADE TO LETTERS DATED JANUARY 17, 1963, AND MARCH 21, 1963, FROM YOUR ATTORNEY, MR. ENRIQUE IGARAVIDEZ, WITH FURTHER REGARD TO WITHHOLDING OF YOUR CIVIL SERVICE ANNUITY PAYMENTS TO LIQUIDATE YOUR INDEBTEDNESS TO THE UNITED STATES AS DISCUSSED IN OUR LETTER OF DECEMBER 17, 1962.

IT WAS EXPLAINED IN OUR LETTER OF DECEMBER 17 THAT LOSSES SUFFERED BY THE GOVERNMENT, AND DETERMINED BY THE POST OFFICE DEPARTMENT AS CHARGEABLE TO YOU, AMOUNTED TO $11,916.43. YOUR ATTORNEY STATES IN HIS LETTER OF JANUARY 17, THAT OUR LETTER WAS THE FIRST NOTICE OF YOUR BEING HELD LIABLE FOR SUCH AMOUNT AND REFERS, PRESUMABLY AS THE ONLY OTHER NOTICE OF YOUR LIABILITY, TO THE INDICTMENT WHICH CHARGED YOU WITH THE THEFT OF $1,006.14, AND A LETTER DATED DECEMBER 12, 1961, FROM THE UNITED STATES CIVIL SERVICE COMMISSION NOTIFYING YOU OF A REQUEST FROM THE POST OFFICE DEPARTMENT TO WITHHOLD $6,661.42 FROM YOUR ANNUITY PAYMENTS. YOUR ATTORNEY CONTENDS FURTHER THAT YOU WERE NEVER GIVEN NOTICE OF THE AMOUNT OF LOSSES CLAIMED BY THE POST OFFICE DEPARTMENT NOR WERE YOU EVER GIVEN AN ADMINISTRATIVE HEARING IN ORDER TO REFUTE THESE CLAIMS.

THE NATURE OF THE QUESTIONS RAISED BY YOUR ATTORNEY REQUIRED THAT WE OBTAIN ADDITIONAL INFORMATION FROM THE POST OFFICE DEPARTMENT. BY LETTER DATED MARCH 7, 1963, THE CHIEF POSTAL INSPECTOR INFORMED US THAT REPORTS OF LOSSES OF OFFICIAL REMITTANCES AND OTHER REGISTERS UNDER INVESTIGATION AT THE TIME YOU WERE APPREHENDED AMOUNTED TO $11,655 IN CURRENCY. LOSSES OF OTHER REGISTERS WERE REVEALED AS THE INVESTIGATION PROGRESSED ON WHICH THE DEPARTMENT WAS REQUIRED TO PAY POSTAL INDEMNITIES. THESE AND OTHER ADJUSTMENTS ARISING OUT OF THE ORDERLY PROCESSING OF POSTMASTERS' CLAIMS FOR LOST REMITTANCES RESULTED IN AN ADJUSTED GOVERNMENT LOSS OF $11,916.43. THE INVESTIGATION DISCLOSED THAT ALL THE REGISTERED LETTERS CHARGED TO YOU WERE LOST AFTER THEY REACHED THE SAN JUAN POST OFFICE. ALL THE EMPLOYEES IN THAT OFFICE IT WAS REPORTED THAT YOU ALONE, BY REASON OF YOUR POSITION AS FOREMAN OF THE MAILING SECTION, HAD THE ACCESSIBILITY, OPPORTUNITY, AND FREEDOM OF MOVEMENT TO BE RESPONSIBLE FOR EACH LOSS. YOU WERE THEREFORE CONSIDERED RESPONSIBLE FOR THE LOSSES, THE EVIDENCE BEING SUFFICENT TO MEET THE STANDARDS OF BOERNER V. UNITED STATES, 30 F.SUPP. 635 (E.D. N.Y. 1939), AFFIRMED 117 F. 2D 387 (2ND CIV. 1941), CERTIORARI DENIED 313 U.S. 587 (1941).

THE CHIEF POSTAL INSPECTOR ADVISED US THAT IT WAS POSSIBLE TO MAKE ONLY ONE DIRECT COLLECTION FROM YOU AND FOR WHICH YOU WERE GIVEN AN OFFICIAL RECEIPT. THIS COLLECTION WAS THE $25 RECOVERED FROM YOU AT THE TIME OF YOUR APPREHENSION. ALSO WE WERE ADVISED THAT YOU WERE SUBSEQUENTLY CONTACTED REGARDING THE CHARGEABLE LOSSES AND THAT YOU REFUSED TO MAKE ANY PAYMENT.

WHERE AS HERE THE FACTS AS REPORTED BY YOUR ATTORNEY AND THE ADMINISTRATIVE OFFICE ARE AT VARIANCE, IT IS THE UNBROKEN RULE OF THE ACCOUNTING OFFICERS TO ACCEPT THE STATEMENT OF FACTS AS FURNISHED BY ADMINISTRATIVE OFFICERS, IN THE ABSENCE OF A CLEAR SHOWING THAT SUCH STATEMENT IS NOT CORRECT. ON THE BASIS OF THE PRESENT RECORD, AND AS YOU WERE ADVISED IN OUR LETTER OF DECEMBER 17, THE REPORTING OF YOUR INDEBTEDNESS TO THE CIVIL SERVICE COMMISSION FOR OFFSET OF ANNUITY PAYMENTS DUE YOU WAS PROPER.

YOUR ATTORNEY'S REQUEST THAT YOU BE GIVEN AN ADMINISTRATIVE HEARING SO YOU MAY HAVE AN OPPORTUNITY TO REFUTE THE LOSSES CHARGED AGAINST YOU INDICATES THAT HE DESIRES TO CONTEST ON YOUR BEHALF THE CORRECTNESS OF THE FACTS AS REPORTED BY THE CHIEF INSPECTOR. THIS IS A MATTER WHICH SHOULD BE TAKEN UP WITH THE POST OFFICE DEPARTMENT RATHER THAN WITH THIS OFFICE, AND ACCORDINGLY NO ACTION WILL BE TAKEN HERE ON SUCH REQUEST.